author: Mr. Justice Browh

text:
    E. P. Raymond, Defendant in Error, v. Clark Varnum, Plaintiff in Error.
    Gen. No. 18,569.
    1. Judgment, § 657

      —when direction of verdict in action on foreign judgment not error. In an action of debt on an Iowa judgment, a direction of a verdict for plaintiff held not error under the state of the pleadings.
    2. Appeal and erbok, § 1456

      —when striking of pleas cannot he complained of. Striking of certain pleas of the defendant cannot be complained of where they would have availed defendant of nothing, there being nothing showing leave to file them and the action of the court being within its discretion, and it also appearing that all that could be claimed as material in such pleas was before the court in pleas that were allowed to he filed and to stand and which were successfully demurred to.
    3. Appeal and error, § 1361

      —when refusal of leave to file plea not an abuse of discretion. Refusal of leave to file “a plea of payment and discharge” on the eve of the trial, almost five years after the suit was begun, and after defendant on six different dates, authorizedly and unauthorizedly filed pleas, held not an abuse of trial court’s discretion.

      4. Appeal and error, § 994

      —when refusal of leave to file additional plea not presented for review. Refusal of leave to file an “additional plea” cannot be considered where such plea is not preserved or described in the record.
    5. Pleading, § 98

      —when plea of nil debet demurrable. Demurrer to a plea of nil debet to a declaration in debt on a foreign judgment held properly sustained.
    6. Set-off and recoupment, § 2

      —when plea of set-off is available. To make a plea of set-off available, the damages to be set off must be liquidated or they must spring from the same transaction that the action is brought on.
    7. Set-off and recoupment, § 10

      —when claim for damages cannot to be set off in action on a judgment. In an action on a foreign judgment, pleas of set-off claiming damages for the conversion by plaintiff of certain collateral notes placed in plaintiff’s hands at the time defendant executed and delivered to plaintiff certain notes which were made the basis of the foreign judgment, held demurrable for the reason that the claim was for unliquidated damages and did not spring from the same transaction.
    8. Set-off and recoupment, § 10

      —right to set off unliquidated damages against a judgment. Section 33 of the Practice Act, J. & A. j[ 8570, which provides that “demands upon simple contracts may be set off against demands upon sealed instruments, judgments and decrees,” has never been construed to change the rule that unliquidated damages may not be set off against a judgment.
    9. Set-off and recoupment, § 10

      —when allegations of plea do not show damages liquidated. Allegations of a plea of. set-off that certain notes left with plaintiff by defendant as collateral were of a certain amount and represented “honest money due” to the defendant from the maker, and that the maker had sufficient means when they became due so that he could have been compelled by plaintiff to pay the notes, and that the maker afterwards became bankrupt and fled, held not sufficient to make certain and liquidated defendant’s claim for damages for -failure of plaintiff to collect from maker, the claim being necessarily unliquidated and dependent on the judgment of a jury upon the trial.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term. 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement by the Court. This writ of error is brought to reverse a judgment in debt for $2,500 rendered by the Circuit Court of Cook county on May 5, 1909, against Clark Varnum, defendant below and plaintiff in error here, in favor of E. P. Raymond, plaintiff below and defendant in error here.
    The judgment was rendered on an instructed verdict. The history of the cause and the pleadings therein leading’ up to such instructed verdict and to the judgment thereon, so far as it appears in the prcecipe record filed herein, follows:
    September 3, 1902, there was rendered in the District Court of Iowa in and for Poweshiek county a judgment in favor of the plaintiff Raymond against the defendant Varnum. As this judgment and its terms form the basis of the cause at bar and the judgment of the Circuit Court of Cook county, we quote entire the copy of the Iowa judgment order, which, duly exemplified under the Act of Congress in relation to the authentication of judicial proceedings, was introduced in evidence below:
    “In the District Court of Iowa in and for Poweshiek County.
    September Term, 1902.
    E. P. Raymond ) vs. ) Clark Varnum )
    No. 5572.
    Be it remembered that on this day, to-wit, September 3,1902, the same being afternoon of the second day of the September Term of said Court in said year, this cause coming on for final hearing and trial, plaintiff appearing by H. E. Boyd, his attorney, and the defendant though duly and legally served with due, timely and legal notice of the beginning and pendency of this action by personal service in Poweshiek County, Iowa, came not but herein makes default and is adjudged of record to be in default, and the Court having heard the evidence and the arguments of counsel and being well and fully advised in the premises finds that the averments of the plaintiff’s petition are true and that he is entitled to judgment against the defendant in the sum of .$1,638.29, defendant being justly indebted to him in that sum on the note forming the basis of this suit.
    It is therefore ordered and adjudged by the Court that the plaintiff shall have and recover of and from the defendant the sum of $1,638.29, with interest thereon from this date at the rate of eight per cent, per annum and the costs of this action including an attorney’s fee of $56.38 in favor of plaintiff’s attorney taxed at $61.33.”
    May 6, 1904, Raymond began in the Circuit Court of Cook county the action here under review. It was an action of debt on the Iowa judgment. He filed a declaration with one special count, setting forth the terms of the judgment, and some consolidated common counts in debt. The ad damnum was $2,500.
    May 18, 1904, Varnum filed to this declaration five pleas, together with an affidavit of merits. The first plea was nil debet; the second nul tiel record; the third, that no proper process was issued or served on the defendant in the action resulting in the alleged judgment, by reason whereof the court in Iowa was without jurisdiction; the fourth, in set-off, that the plaintiff was indebted to the defendant in a larger sum than that claimed to be due from the defendant to the plaintiff, in that on February 24, 1894, the defendant gave the plaintiff, as collateral security, two promissory notes made by one Henriques, payable to the defendant or order, each for $1,250, one payable February 20, 1895, and one payable February 20, 1896, and that on February 20, 1896, the plaintiff “converted, took, kept and put to his own use the said two promissory notes,” etc.; the fifth, a plea in set-off, based on the same transaction as the fourth, but in detail asserting that the defendant indorsed said Henriques notes in blank and gave them to the plaintiff, that the plaintiff agreed to hold them as collateral security, that when the first note became due the plaintiff made no effort to collect them, but kept said notes in Iowa and refused to collect the same or forward the same to the place of business of Henriques in Illinois, and until after the said notes became due refused to collect them or allow the defendant to collect'them or to account to defendant for their value. The plea further alleged that when the notes became due Henifiques was solvent and in the State of Illinois, but afterwards, while the plaintiff held the notes, became insolvent and fled from Illinois, by reason of all which the defendant became damaged to the amount of $5,000, which the defendant was ready to set off, etc.
    June 6, 1907, the plaintiff filed a general demurrer to the plea of nil debet, a replication of prout patet per recordum to the plea of nul tiel record, a replication to the third plea, traversing it and alleging due and proper service of process on the defendant in and for the District Court of Poweshiek county in Iowa, and to each of the fourth and fifth pleas, a general and special demurrer, the special grounds of demurrer being (a) that the suit was based on a judgment of a court of record in Iowa, wherein process was duly served on the defendant; (b) that the claim of the defendant was alleged in the plea to have become due from the plaintiff before the judgment sued on; (c) that the action at bar sounded in contract and the conversions alleged in the plea sounded in tort, and therefore were not “the subject of defense, by way of recoupment, set-off or otherwise to plaintiff’s cause of action.”
    June 22,1907, the demurrers to the first, fourth and fifth pleas of May 18, 1904, were sustained.
    July 2, 1907, an order was entered requiring the defendant to plead to “the plaintiff’s declaration as amended,” but the prcecipe record does not show the amended declaration nor in what respect the declaration of May 6, 1904, was changed by any amendment that was made.
    July 10, 1907, the defendant filed pleas. The first was expressed to be to “the second count or consolidated common counts,” and was non assumpsit. The second was also to “the second count or consolidated common counts of the plaintiff’s declaration, and was nil debet. The third plea was expressed to be to the first count and was, like the third plea, filed May 18, 1904, that no proper process in the Iowa suit was issued or served on the defendant, but contained an allegation also that the defendant did not “owe the money” in said first count mentioned; the fourth plea was to the whole of the plaintiff’s declaration and alleged a set-off, and prayed “judgment against the plaintiff for $5,000.” Like the fourth plea of May 18, 1904, it alleged the conversion by the plaintiff of the two Henriques notes, but alleged further that said notes were delivered to the plaintiff as collateral security, as a part of the same transaction by which the defendant became indebted to the plaintiff in the sum of $3,300 on two promissory notes executed to the plaintiff by the defendant under date of February 24, 1894, and that the judgment in Iowa set out in the first count of the plaintiff’s declaration was based solely and exclusively upon the remainder of said debt of $3,300, which had not been paid in cash at the date of said judgment. The fifth plea contained the same allegations as the fifth plea of May 18, 1904, and the additional ones immediately before mentioned as in the fourth plea of July 10, 1907.
    September 20, 1907, the plaintiff filed separate demurrers to the first, second, fourth and fifth pleas of July 10, 1907. To the first and second pleas the demurrers were general, to the fourth and fifth they were both general and special, and set up the same special causes as did the demurrers filed June 6, 1907, to the fourth and fifth pleas filed May 18, 1904. To the third plea of July 10, 1907, the plaintiff filed on September 20, 1907, a replication like that filed by him on June 6, 1907, to the third plea of May 18, 1904. It asserted that due process was issued and served on the defendant in the Iowa suit.
    September 28th an order was entered which speaks of “the additional pleas of the defendant heretofore on July 10, 1907 filed herein,” and leave was by said order “given to the defendant to withdraw the first and second additional pleas filed herein as aforesaid,” and in the same order, “the demurrer of the plaintiff to the fourth and fifth pleas of the defendant heretofore on July 10, 1907, filed herein * * * is sustained.” October 14, 1907, two further pleas, entitled respectively “Additional Plea” and “Second Additional Plea,” were filed. They were respectively identical with the fourth and fifth pleas of July 10,1907.
    December 19,1907, an order was entered £ £ on motion of defendant’s attorney” giving the defendant leave to file two additional pleas to the declaration, and on the same date two pleas were filed. The first of these was in the form of a declaration in assumpsit on the consolidated common counts alleging damages in the sum of $5,000 for breach of the promise, and concluding: “Therefore the said defendant brings this suit by way of set off to and against any claim which the plaintiff has against defendant, and defendant prays judgment against plaintiff for five thousand dollars and costs.”
    The second of these pleas of December 19, 1907, was in all material matters to the same purport arid effect as the fifth plea of July 10, 1907, and the second plea of October 14, 1907. It added, however, the allegation that at the maturity of the collateral notes mentioned the defendant Varnum demanded that said plaintiff Raymond should bring suit against Henifiques and that the plaintiff refused.
    December 20, 1907, the plaintiff filed a general and special demurrer, stated to be to “the first, second and third additional pleas” of December 19, 1907, although but two such additional pleas had been filed.' The special causes of demurrer assigned were (a) that it did not appear the alleged matters of set-off arose after the rendition of the judgment sued on by the plaintiff; (b) nor that the supposed set-off was of liquidated damages; and (c) that the matters set forth in said pleas were not proper matters of set-off upon a demand based on a foreign judgment. The plaintiff also filed a general and special demurrer, stated to be to the fourth additional plea filed December 19, 1907. No such plea appears in the record. The special causes of demurrer given are the same as those assigned in the demurrer to the “first, second and third additional pleas” of December 19, 1907, and the further one that “said plea is double.”
    February 1, 1908, an order was entered to amend the record of the order of September 28, 1907, so as to make it show that it was the demurrers to the first and second pleas of July 10,1907, that were withdrawn, instead of the first and second pleas, which were still to stand.
    Further the order provided that the pleas filed October 14,1907, might be refiled as of December 19,1907. The plaintiff was required to answer them within three days. February 4, 1908, the plaintiff filed a general and special demurrer to “the first plea * * * pleaded on October 14, 1906, and * * * ordered refiled as of December 19, 1907,” specially alleging as causes (a) that the plaintiff’s demands sounds in contract while the supposed conversion sounds in tort and is not alleged to have grown out of the subject-matter of the plaintiff’s demand, and is not therefore available in recoupment or set-off; (b) that the supposed damages set up by the plea were not liquidated damages. The plaintiff filed also February 4, 1908, a demurrer to “the second plea of October 14, 1906, * * * ordered refiled as of December 19, 1907,” alleging as a special cause of demurrer that “it does not appear by said plea that the damages arising out of the supposed cause of action set up by way of set-off are or were liquidated damages or that the subject matter of defendant’s plea grew out of the same subject matter with the plaintiff’s demand.”-
    February 8,1908, an order was entered:
    (1) Striking out the first and second pleas of the defendant filed October 14, 1902; (2) sustaining the plaintiff’s demurrers to the first, second, third and fourth pleas of December 19, 1907; and (3) “dismissing” the common counts of the plaintiff’s declaration.
    February 15, 1908, the order of February 8th was amended so far as to make it show that the plaintiff’s demurrers to all the pleas filed December 19, 1907, were sustained. 'The record shows that on the same day defendant offered to file an additional plea and was refused such leave, the tendered plea being identified by being marked “tendered February 15, 1908,” but not appearing in the record. February 4, 1909, the defendant filed “An Additional Plea” setting up the same matter as is contained in the second plea of December 19, 1907, the fifth plea of July 10, 1907, and the second plea of October 14, 1907, but incorporating therewith an instrument of the date of February 24, 1894, signed by plaintiff and defendant, describing the collateral notes in said plea mentioned with certain certificates of stock, as collateral security for the notes of Varnum given to Raymond and containing a stipulation that Raymond “agrees that he will hold such collateral according to the law and usage governing the receiving and holding of collateral securities.” The plea asserts that the original note, the collateral note and the said instrument were all one transaction, and that the alleged judgment on which the suit is brought “is merely a change of the form of indebtedness from the said balance due upon said debt evidenced by the defendant’s promissory notes made to the plaintiff * * * from the form of the notes * * * to the form of a judgment.”
    April 17, 1909, the plea filed February 4, 1909, was by order stricken from the files.
    April 28, 1909, an order was entered denying leave to the defendant “to file plea of payment and discharge.”
    May 5,1909, the cause came on for trial. The plaintiff offered the authenticated copy of the judgment sued on and rested. The defendant offered to prove as a ground of set-off the matter set up in the various pleas filed and offered to be filed by him, bnt all such evidence was, on the objection of the plaintiff, ruled out, and the only evidence offered by the defendant which was admitted were certain sections of the Code of Iowa concerning interest, one of which is to the effect that interest shall be allowed on all money due on judgments and decrees of court at the rate of six per cent, unless a different rate is fixed by the contract on which the judgment or decree shall draw interest at the rate expressed in the contract, not exceeding eig’ht per cent., which rate must be expressed in the judgment or decree.
    The court then, on motion of the plaintiff, instructed the jury to find for the plaintiff in the sum of $2,500, and, on the verdict thus instructed, entered the judgment herein attached, after a motion for a new trial and a motion in arrest of judgment had been denied.
    The assignments of error in this court cover each case of sustaining demurrers to the defendant’s pleas, the refusal of leave to the defendant on February 15, 1908, to file an additional plea, the striking from the files on April 17, 1909 of the pleas filed February 4, 1909, the refusal of leave to the defendant on April 28, 1909, to file plea of payment and discharge, the instruction to find for the plaintiff and the denial of the motions for a new trial and for arrest of judgment. The other assignments of error relate principally to the rejection of the evidence by which the defendant sought to prove his alleged set-off, to the ruling of the court that there could be no recoupment under the general issue in a ease brought in debt upon a foreign judgment, and to the refusal by the court to allow the defendant to offer evidence showing that the notes resulting in the Iowa judgment bore only seven per cent, interest.

      S. E. Chute, for plaintiff in error.
    Samuel B. King and William B. Ward, for defendant in error.

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

      Seo lUinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Browh

delivered the opinion of the court.

As the parties differ as to the pleadings on which this cause was tried in the court below, we have at some length set forth in the preceding statement those pleadings and the orders made concerning them. It appears plainly enough that the case went to trial under: First, plaintiff’s declaration in debt (whether “amended” or not, according to the description in the order of July 2, 1907, there is no way of telling from this prcecipe record), which contained a special count on the Iowa judgment involved, but did not contain any common counts, such common counts being withdrawn or “dismissed” on February 8, 1908, and the pleas made expressly to them of course falling with them; second, defendant’s plea of nul tiel record to the special count filed May 18,1904, with a proper replication by plaintiff “prout patet recordum;” third, defendant’s plea filed May 18, 1904, that there had been no service of process on the defendant in the suit in which said Iowa judgment had been rendered, and a traverse thereof by the plaintiff, and a practically identical plea and traverse filed July 10, 1907. (The “nil debet” inserted in the plea was no answer to this count of the declaration and must be disregarded.)

No attempt was made by the defendant at the trial to prove his plea against the case made by the recital of service in the authenticated copy of the judgment offered. The plea of nul tiel record raised, as the Supreme Court says, in Waterbury Nat. Bank v. Reed, 231 Ill. 246, “only one question, and that is whether there is a record of a judgment corresponding to that set out in the writ, and that quéstion is one to be determined by the court from an inspection and examination of the record itself.”

As the pleadings stood, therefore, the court did not err in directing a verdict for the plaintiff.

There are other antecedent errors complained of. One is in the striking of certain of defendant’s pleas on February 8, 1908, and April 17, 1909, as detailed in the statement prefixed hereto1. Even if this question had been properly preserved by an exception shown by the bill of exceptions, it would have availed defendant nothing. There is nothing showing leave to file said pleas, and the action of the court was within its discretion. All that could be claimed as material in the said pleas was however before the court in pleas that were allowed to be filed and to stand and which were successfully demurred to as hereafter recited.

Another alleged error was the refusal to defendant on April 28, 1909, of leave to file “a plea of payment and discharge.” This was almost five years after the suit was begun, on the eve of trial, and after the defendant had on six different dates, authorizedly and unauthorizedly, filed pleas. We do not think the court abused its discretion in refusing the leave. Nor do we believe that it did so on February 15, 1908, in refusing leave to file “an additional plea”; but in any case we could not judge it to have done so, for the ‘ ‘ additional plea” is not preserved or described in the record before us.

There can be no serious claim that the demurrer to a plea of nil debet to a declaration in debt on a judgment was not properly sustained.

The only question, therefore, which rises to any importance in the case before us is whether the court rightly sustained demurrers to various pleas of set-off of the defendant, which sought to set off damage suffered by him from the alleged violation of a duty owed to him by the plaintiff in relation to certain collateral notes of a third party, placed by him in the plaintiff’s hands contemporaneously with the execution and delivery by him to the plaintiff of the notes sued on in Iowa and made the basis of the Iowa judgment.

We think the demurrers were properly sustained. In order to make a plea of set-off available, the damages to be set off must be liquidated or they must spring from the same transaction that the action is brought on. 'The defendant claims that in the case at bar the damages alleged by him in the way of set-off are liquidated and also that they spring from the same transaction as the debt sued on. We hold to the contrary as to both propositions.

Notwithstanding the statement in plaintiff in error’s brief regarding the quality of the intellect that can see any difference between a judgment and the obligation on which that judgment is founded, we continue to think that there is, in deciding in the case at bar whether the set-off pleaded arose “out of the same transaction” as the plaintiff’s claim, a great difference between the notes and the judgment founded on them. It is a difference not in form merely, but in essence. The defendant had his day in court on the “transaction” in which the notes were given when he was sued in Iowa. He mig*ht then have pleaded his set-off had he wished. , He chose to make default, and an entirely new form and character of indebtedness arose from the “transaction” in the Iowa court which resulted in a judgment. If a man might in answer to a suit on a judgment plead whatever might, by way of set-off or recoupment, have been a defense to the suit in which the judgment was obtained, there would be a great loss of finality in litigation.

Defendant calls attention to section 33 of the Practice Act, which provides that “demands upon simple contracts may be set off against demands upon sealed instruments, judgments and decrees.”

But this provision has never been construed to change the rule that unliquidated damages may not be set off against a judgment, or, in other words, to contain any implication that the “transaction” in court, out of which a judgment or decree arises, can have in it the basis of any claim which can be made in set-off. It may be that damages arising out of the same judicial “transaction” which produced the judgment are conceivable, but none such suggest themselves to our minds as possible.

The damages to be set off against a judgment then must be “liquidated,” which brings us to the determining question in this case. As we have said, we do not regard as “liquidated” those claimed by the defendant because of the alleged breach by the plaintiff of a contract “to hold” certain notes deposited with him “according to the law and usage governing the holding and receiving of collateral security.”

We think that the Supreme Court of Michigan was right in Mitchell v. Shuert, 16 Mich. 444, in shying that such damages are “necessarily unliquidated,” a conclusion for which the reasons in an analogous case are thus set out by the report of an arbitrator, affirmed by the Court of Appeals of Virginia in Harrison v. Wortham, 8 Leigh 296.

“I know of no better rule as to the damages which may be the subject of set-off than this, that they must be liquidated, and (where they do not grow out of a specialty) such as indebitatus assumpsit will lie for. In this case, it seems to me, the damages could not be recovered in an action of assumpsit for the payment of .money; but the action would be one setting forth the implied undertaking to use due care in the collection of the bill; charging a breach of that undertaking, and a consequent loss to the plaintiff, and claiming damages for that loss. These damages must be regarded as unliquidated and uncertain.”

This construction of the term “liquidated damages’’’ does not differ from that adopted by the Appellate Court of the Fourth District in Horn v. Noble, 95 Ill. App. 99, and by this court in Smith v. Billings, 62 Ill. App. 77, and by the text writers in 19 Amer. & Eng. Encyc. of Law, p. 395, and 24 Amor. & Eng. Encyc. of Law, p. 511.

The allegations of the pleas demurred to, that the notes left as collateral were of a certain amount and represented “honest money due” to the defendant from their maker, and that the maker had sufficient property and means when they came due so that he could have been compelled to pay said notes, and that he afterward became bankrupt and fled, are not sufficient to make certain and liquidated what is “necessarily unliquidated” and dependent on the judgment of a jury upon a trial. It would be for them to say, under all the circumstances, what damages the plaintiff had inflicted on the defendant, not by default in the payment of a stipulated sum of money, but by breach of an obligation to carry on certain proceeding's, legal or otherwise, the proper nature of which would be a still further object of investigation.

The judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    James A. McInerney, Plaintiff in Error, for use of J. W. Williamson and Mary Williamson, Defendants in Error, v. Andrew J. Graham, Defendant in Error.
    Gen. No. 18,592.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon, Edward A. Dicker, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Garnishment proceeding in the Municipal Court by James A. Mclnerney for the use of J. W. Williamson and Mary Williamson against Andrew J. Graham, doing business as Graham & Son, as garnishee. An affidavit was filed by J. W. Williamson alleging that a judgment was rendered in the Municipal Court against Mclnerney in favor of the Williamsons; that an execution had been issued and returned unsatisfied, and that the garnishee was indebted to the judgment debtor Mclnerney. A final judgment was entered against the garnishee for $452.70. To reverse the judgment, Mclnerney sues out a writ of error.
    Abstract of the Decision.
    1. Garnishment, § 118

      —when objection for defects in affidavit cannot be urged on review. Objections to an affidavit for garnishment that the jurat shows an omission of the concluding figure of the date and also an omission to give the official designation of the officer before whom the affidavit was sworn, that a wrong initial is used in the name of the bailiff who returned the execution, and that there is discrepancy of seventy-five cents in stating the amount of the debt, cannot be urged where ail the parties at one stage or another of the subsequent proceedings were before the court and no objection was made in the court below that the affidavit was insufficient or not properly sworn to.
    2. Garnishment, § 72

      —when appearance by garnishee waives irregularities in process. Appearance by garnishee to a scire facias on a conditional judgment waives any preceding irregularities in the process by which he was brought before the court.
    3. Garnishment, § 116

      —when invalidity of service of process and irregularities in conditional judgment do not render final judgment erroneous. Invalidity of service on garnishee on which a conditional judgment against him is found, and irregularities in the recitals of the conditional judgment, cannot be urged as a ground that the final judgment against him is erroneous, where he appeared and made answer to the scire facias after proper service of a summons upon him to show cause why a final judgment should be entered against him.

      George H. Sugrue and Jesse Wilcox, for plaintiff in error.
    Charles L. Mahony and John C. DeWolee, for defendants in error J. W. Williamson and Mary Williamson ; Hogan & Hogan, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.

4. Garnishment, § 118 —effect of failure to file Mil of exceptions. When no bill of exceptions is filed it cannot be urged that a final judgment against the garnishee is unwarranted because there is in the record no recital of evidence or finding of the judgment against the nominal plaintiff in favor of the beneficial plaintiff. In the absence of anything answering to a bill of exceptions it cannot be presumed that no evidence of such judgment as recited in the scire facias was given before the court.

5. Garnishment, § 32 —when injunction against payment of funds to judgment debtor no defense to garnishee. In a suit in garnishment to recover money deposited with the garnishee by the judgment debtor, the fact that Circuit Court had issued an injunction against the payment by the garnishee to the judgment debtor in favor of his wife in divorce proceedings, held no defense to the garnishee against the rights of the judgment creditor.

6. Municipal Court oe Chicago, § 34 —necessity of interrogatories in garnishment. In a fourth class case in garnishment in the Municipal Court the cause proceeds as it might before a justice of the peace without the filing of interrogatories.


text:
    Stanley Mackowiak, Defendant in Error, v. O. F. Smith, Plaintiff in Error.
    Gen. No. 18,642.
    1. Vendor and purchaser, § 336

      —burden of proof in action for earnest money. In an action to recover earnest money paid on a contract for the purchase of real estate where the facts show that the vendor had put it out of his power to perform the contract by selling the property to another party, the burden is upon the vendor to prove a forfeiture under the terms of the contract.
    2. Vendor and purchaser, § 124

      —what not a sufficient compliance mth contract as to abstract of title. Where a contract for the purchase of real estate required the vendor to furnish (1) a certificate of title issued by the registrar; or (2) a complete merchantable abstract of title or merchantable copy of such abstract of title brought down to date; or (3) a merchantable title guaranty policy, held that a letter of the Chicago Title & Trust Company was not a sufficient compliance.

      3. New trial, § 66

      —wliat not ground for. Where a person who had entered into a contract to purchase real estate recovers a judgment against the vendor for the earnest money paid, the fact that such person had the contract recorded cannot be made the ground of a motion for a new trial where the vendor had at least constructive notice thereof at the time of the trial.
    4. Vendor and purchaser, § 329

      —right of purchaser to recover earnest money. In an action to recover earnest money paid on a contract for the purchase of real estate, the fact that the purchaser had the contract recorded, held no defense. ■
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Rehearing denied March 23, 1914.
    Ossian Camieron and C. S. Graves, for plaintiff in error.
    Henry Pollenz, for defendant in error.

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

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

   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in this case (defendant in error here) made a contract for the purchase of real estate from the defendant (plaintiff in error here) and paid $500 as earnest money. The contract was never carried out and the plaintiff sued in the Municipal Court for a return of this money and had judgment. This writ of error is brought to reverse it.

The contract recited that Mackowiak agreed to purchase certain real estate in Chicago for $7,000, and that Smith agreed to sell the same at that price, and to convey to the purchaser “a good,and merchantable title thereto by general warranty deed subject to taxes and assessments levied after 1910,” and to certain other limited unpaid special taxes or assessments described.

The contract recited that the purchaser had paid $500 as earnest money to be applied on such purchase when consummated and had agreed to pay $6,500 at the office of (blank) “within five days after the title has been examined and found good or accepted by him,” “provided a good and sufficient general warranty deed conveying to' said purchaser a good and merchantable title to said premises (subject as aforesaid) shall then be ready for delivery.”

The contract had these further provisions:

“A certificate of title issued by the Begistrar of Titles of Cook County or complete merchantable abstract of title or merchantable copy brought down to date hereof, or merchantable title Guaranty Policy shall be furnished by the vendor within a reasonable time, which abstract shall upon the consummation of this sale remain with the vendor or his assigns as part of his security until the deferred installments are fully paid. The purchaser or his attorney, if an abstract or copy shall be furnished, shall within ten days after receiving such abstract deliver to the vendor or his agent (together with the abstract) a note or memorandum in writing signed by him or his attorney specifying in detail the objections he makes to the title, if any, or if none, then stating in substance that the same is satisfactory. In case material defects be found in said title and so reported, then if such defects be not cured within sixty days after such notice thereof this contract shall at the purchaser’s option become absolutely null and void, and said earnest money shall be returned, notice of such election to be given to the vendor, but the purchaser may nevertheless elect to take such title as it then is and in such case the vendor shall convey as above agreed; provided, however, that such purchaser shall have first given a written notice of such election within ten days after the expiration of the said sixty days, and tendered performance hereof on his part. In default of such notice of election to perform and accompanying tender within the time so limited, the purchaser shall without further action by either party be deemed to have abandoned his claim upon said premises, and thereupon this contract shall cease to have any force or effect as against said premises or the title thereto or any right or interest therein, but not otherwise. Should said purchaser fail to perform this contract properly on his part at the time and in the manner herein specified, the earnest money paid as above shall at the option of the vendor be retained by the vendor as liquidated damages and this contract shall thereupon become and be null and void. Time is of the essence of this contract and of all the conditions hereof. The notices required to be given by the terms of this agreement shall in all cases be construed to mean notices in writing signed by or on behalf of the party giving the same, and the same may be served either upon the other party or his agent. * * * The contract and the said earnest money shall be held by................................. for the mutual benefit of the parties concerned and after the consummation of the sale he shall be at liberty to retain the cancelled contract permanently and it shall be the duty of said..........................in case said earnest money be retained as herein provided to apply the same, first, to the payment of any expenses incurred for the vendor by his agent in said matter, and second, to the payment to vendor’s broker of a commission of.........per cent, on the selling price herein mentioned for his services in procuring this contract, rendering the overplus to the vendor.”

The contract was signed under date of June 30,1911, by “O. F. Smith by Schuberth & Co.” and by “Stanley Mackowiak.” There is no doubt that the contract signed for Smith by Schuberth & Co. was authorized and accepted by Smith, although one of the grounds of defense alleged in the affidavit of defense is a want of such authority. It is plain, however, that Smith was liable in this suit if under the contract and subsequent proceedings the $500 was not forfeited to him as “liquidated damages.”

It is the contention of Smith that it was so forfeited. He wrote on August 25,1911, to Schuberth & Company, declaring that the execution of the contract had been too long delayed, that he had several propositions for the property and that he could not hold it any longer “for your” (Schuberth’s) “party.” “Unless,” he said, “they put up a larger deposit or go ahead immediately with the contract I shall exercise my right and declare the $500.00 forfeited.” August 31, 1911, he wrote to Mr. Mackowiak as follows:

“Dear Sir: Referring to the contract you signed on June 30, 1911, for the purchase of the southeast corner of 79th and Emerald avenue, and to a letter addressed to Messrs. Schuberth & Company on August 25,1 wish to say that unless this deal is closed not later than September 5, or an additional $1,000 placed in my hands as earnest money, I will declare the $500 forfeited and the contract null and void.”

September 14th he conveyed the property to a third party. The dispute as to who was entitled to the $500 then began.

The position of the defendant is that the plaintiff could not properly recover it unless he assumed and sustained the burden of proof that he had “complied with the requirements of .the contract in every respect ’ ’ and “that he was able and ready to make the remaining payments under the contract.” We do not think so. The contract not being carried out and the defendant having put it out of his power to perform it, prima facie, the earnest, money should be returned. The forfeiture of it to the defendant under the terms of the contract was something for him to prove.

It is true that the contract provided for such forfeiture at the option of the vendor “if the purchaser should fail to perform the contract promptly on his part at the time and in the manner herein specified”; but the burden of proving that the purchaser had so failed and that the vendor had exercised his option was on the defendant after the nonperformance of the contract and the sale to a third party were shown.

The purchaser under the terms of the contract was to pay nothing more until “after the title had been examined and found good or accepted by him.” This method of showing him the state of the title was pointed out in the contract. It was to be either by (1) a certificate of title issued by the registrar; (2) a complete merchantable abstract of title or merchantable copy of such abstract brought down to date; (3) a merchantable title guaranty policy. If the abstract or copy should be furnished, the further proceedings to be taken by the purchaser and vendor concerning the title, if there were objections found thereto, are indicated. In the case at bar no one of the three things above tabulated was furnished. The letter of the Chicago Title & Trust Company was not such a compliance with the requirements as to impose a further duty on the purchaser.

Nor could the record "of the contract be properly made the ground of a motion for a new trial. It had taken place before the suit was begun and the defendant had at least constructive notice of it; but no mention was made of it at the trial, nor would it have been a defense if proved then. Theoretically it can have done no harm to the vendor, nor was there any proof offered that it did so practically.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    John Hemwall Automobile Company, Defendant in Error, v. George Cassidy, Plaintiff in Error.
    Gen. No. 18,655.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlir, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by John Hemwall Automobile Company against George Cassidy to recover damages for breach of contract for the purchase of an automobile. Plaintiff recovered a judgment in the Municipal Court of Chicago for one hundred dollars, to reverse which defendant sued out a writ of error.
    Abstract of the Decision.
    Automobiles, § 4

      —when purchaser liable for breach of contract. In an action for breach of contract for the purchase of an automobile, plaintiff claimed that the sale was by sample and that a car similar to the sample had been furnished, while defendant contended that he bought a particular car picked out from plaintiff’s stock and did not get it. Defendant used the machine a few days and then returned it and plaintiff resold it at an alleged loss of two hundred dollars. Held that a verdict for plaintiff for one hundred dollars was sustained by the evidence.
    Charles A. Ward, for plaintiff in error.
    Percival Steele, for defendant in error; H. L. Cavendbr, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Northwestern Railways Advertising Company, Plaintiff in Error, v. Evers & Williams Shoe Company, Defendants in Error.
    Gen. No. 18,668.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Ho sea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by Northwestern Railways Advertising Company, a corporation, against Evers & Williams Shoe Company, a corporation, John J. Evers and Charles Williams, individually and as copartners under the name and style of Evers & Williams, in the Municipal Court to recover damages for a breach of a contract. To reverse a judgment of nil capiat and for costs against plaintiff and in favor of the defendants, the plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    Judgment, § 192

      —when judgment must he against all joint defendants or none. In assumpsit against three defendants jointly where one of the defendants was defaulted for want of appearance and neither of the other two defendants were defaulted nor the suit dismissed as to either, although one appeared and filed an affidavit of defense, held that the plaintiff was not entitled to a recovery against the defendant appearing where the evidence did not establish that all the defendants were liable.
    Davis & Rankin, for plaintiff in error; Arthur. M. Kracke, of counsel.
    Frank L. Childs, for defendants in error.

      Seo Illinois Notes Digrest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Fred Grandt, Defendant in Error, v. Kirkeby-Grunderstrup Seed Company, Plaintiff in Error.
    Gen. No. 18,695.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    .Statement of the Case.
    Action by Fred Grandt against Kirkeby-Grunderstrup Seed Company to recover damages for breach of a contract entered into between plaintiff and defendant, where defendant agreed to purchase plaintiff’s entire onion crop raised from seeds purchased of defendant. To reverse a judgment in favor of plaintiff for $147.42, defendant prosecutes a writ of error.
    Abstract of the Decision.
    1. Municipal Couet of Chicago, § 26

      —sufficiency of statement of facts. A so-called “brief statement of the facts appearing upon the trial,” etc., held not such a certificate as contemplated by section 23 of the Municipal Court Act, J. & A. f 3335, and held that if considered as a bill of exceptions it contained no certificate and raised no presumption that the evidence recited in it was all the evidence heard upon the trial.
    2. Sales, § 158

      —when purchaser liable for contract price of onion crop frozen pending delivery. In an action to recover for the contract price of onions, it appeared that the defendant agreed to purchase plaintiff’s entire onion crop at a certain price, that defendant postponed delivery of the onions until he should notify plaintiff, that plaintiff stored what he could in his cellar and that those he had no room for therein or elsewhere were frozen, and that there was no market for onions where the plaintiff lived. Held that a finding of the trial court that defendant was liable for the contract price of the onions which were frozen but that plaintiff could not recover for those which were stored in the cellar, as he should have tried to reduce the damages .by finding a market for them, will not be disturbed.
    Charles Daniels, for plaintiff in error.
    Fred A. Bathje and Charles E. Lot, for defendant in error.

      See IUinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the-court.


text:
    E. G. Lancaster, Appellee, v. Western Stoneware Company, Appellant.
    Gen. No. 18,814.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1380

      —when refusal to set aside default judgment not an abuse of discretion. Refusal of trial court to set aside a judgment entered by default on failure of defendant to plead, held not an abuse of the trial court’s discretion, where the only excuse offered for neglect to plead within the time allowed by the court was the fact that one of the attorneys of record for the defendant had been engaged in court upon important cases since the rule was entered and that he had been misled by the plaintiff to believe that no advantage would he taken of his failure to plead within the time specified.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimoee Cooper, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statément of the Case.
    Motion by Western Stoneware Company, a corporation. to set aside a judgment entered against the Company in favor of E. G. Lancaster. From a judgment denying the motion, the Company appeals.
    Don P. Pennywitt and Andrew L. Hainline, for appellant; Albert N. Eastman, of counsel.
    Samuel A. Harrison, for appellee.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Patrick O’Malley, Plaintiff in Error.
    Gen. No. 19,446.
    (Not to The reported in full.)
    Abstract of the Decision.
    Intoxicating liquors, § 148

      —when conviction for keeping saloon open on election day not sustained by the evidence. On information charging a saloon keeper with keeping his saloon open on a special election day in violation of the statutes of Illinois, the evidence held insufficient to show that the place was “open” in the sense manifestly used by the statute and insufficient to sustain a conviction, the witnesses for the People being three police officers who testified that they entered the saloon at a side entrance and found the defendant and four other men inside but there was no evidence that drinks were served and there being evidence that the doors were locked and also evidence explaining the presence 'of the persons found in the saloon.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Information filed by The People of the State of Illinois charging Patrick O’Malley with keeping his saloon open on a special election day within one mile of the place of holding the election, in violation of the statutes of Illinois. Defendant waived a jury trial, and the court found him guilty and fined him twenty-five dollars. To reverse the judgment, defendant prosecutes a writ of error.
    'Thomas J. 0 ’Hare, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

      See Illinois Notes Digest, Volé. XI to XV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Paul S. Bennett, Plaintiff in Error.
    Gen. No. 19,577.
    1. Indictment and information, § 34

      —when information sufficiently states the venue. An information alleging that the offense was committed in the city of Chicago sufficiently states the venue.
    2. Indictment and information, § 29

      —when information charges the offense of pandering. An information charging that “by the abuse of his position of confidence” the defendant “did induce” a woman named to enter a house where prostitution is encouraged and allowed, held to charge the offense of pandering.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed March 9, 1914.
    George W. Blackwell, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

      Seo Illinois Notes Digest, Vols. XI to XV, samo topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error was convicted before the Municipal Court of the. city of Chicago of the offense described and made punishable by “An Act in Relation to Pandering,” approved June 1, 1908, as amended by Act approved July 1, 1908. Among the particular actions described in the act as pandering are “procuring any female person” “by fraud or artifice or by duress of person or goods or by abuse of any position of confidence or authority” “to enter any place in which prostitution is encouraged or allowed within this State. ’ ’

It was charged by information in the Municipal Court that the plaintiff in error “heretofore, to-wit, on the 5th day of April, A. D. 1913, at the City of Chicago aforesaid, wilfully and unlawfully, by the abuse of his position of confidence, did induce Marie A. Bartelle, a female person, to enter a house, number ten South Baffin street, said house being a place in which prostitution is encouraged and allowed.”

The plaintiff in error filed a waiver in writing of a jury trial and was convicted on consideration by the court of “the testimony of witnesses and arguments of counsel.”

No bill of exceptions or record of the evidence in any form was preserved or is before us, but the plaintiff in error relies for reversal on two propositions, neither of which is tenable. He says: First, that the information charges no offense; and, second, that the venue was not laid in the city of Chicago. The reverse of each of these propositions is true. The information charges that “by the abuse of his position of confidence ’ ’ the plaintiff in error ‘ ‘ did induce ’ ’ the woman named to enter a house where prostitution is encouraged and allowed. This is an offense provided for by the statute. It is argued that a woman may be induced to enter a house of this character for an innocent purpose and that the punishment for such a persuasion without criminal intent would be unconstitutional. It is unnecessary to discuss this argument. The criminal intent would be shown by showing “the abuse of a position of confidence,” and this, it must be presumed by us, was .shown. It is a part of the offense of which the plaintiff in error was convicted.

It is also argued that the word “induce” used in the information is not equivalent to the word “procure” used in the statute. We think it is. So did the Supreme Court when deciding People v. VanBever, 248 Ill. 140, cited by the plaintiff in error, as shown by the language used in the opinion. The information alleges that the offense was committed at the city of Chicago. This is a sufficient statement of the venue.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Minnie J. Christiansen, Defendant in Error v. James R. Navigato and Joseph Del Re, Plaintiffs in Error.
    Gen. No. 18,665.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Negligence, § 198

      —when contributory negligence is a question of law. Contributory negligence is not a question of law merely because the facts are not disputed. Not only must the evidentiary facts be undisputed, but all reasonable minds must agree as to the conclusion to be drawn therefrom before such a question can be said to be one of law.
    2. Landlord and tenant, §.259

      —when question of contributory negligence of tenant injured by board walk is for jury. In an action against landlords for injuries sustained by a tenant caused by a defective board walk on the premises, the facts showed that plaintiff had knowledge of the defective condition of the walk and had complained of it to defendants, who made no promise to repair, and that plaintiff on returning home in the evening tripped on a loose hoard which caused her to fall forward, stepping heavily upon a board which broke. Held that the question of plaintiff’s contributory negligence was for the jury, and that refusal of' court to direct a verdict for defendant was not error.

      Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jb., Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case,
    Action by Minnie J. Christiansen against James E. Navigato and Joseph Del Ee to recover damages for an injury to plaintiff’s anlde caused by a defective board walk leading to a rear flat occupied by plaintiff as a tenant of the defendants. From a judgment in favor of plaintiff for three hundred dollars, defendant brings error.
    Comerford & Cohen, for plaintiffs in error.
    LeBosky & Plumb and T. D. Hurley, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Anna Krasa and Louis S. Cohen, Defendants in Error, v. United States Brewing Company of Chicago and Charles Vogel, Plaintiffs in Error.
    Gen. No. 18,676.
    1. Landlord and tenant, § 464

      —place of payment and demand of rent. Where a lease provides that the rent shall be paid at the office of the lessee Company, held that the office hearing the name of another company having the same officers as the lessee Company was the office of the lessee mentioned in the lease at which the lessors could demand the rent, it appearing that the lease was signed at such office and that previous payments of the rent had been made therefrom in the name of the lessee Company.
    2. Landlord and tenant, § 79

      —when notice of intention to declare a forfeiture for nonpayment of rent unnecessary. Under a provision in a lease that failure of lessee to keep the condition and covenants shall constitute a forfeiture of all rights under the lease and that a further occupancy thereunder shall be a forcible detainer of the premises by the lessee, no notice by the lessor of his intention to declare a forfeiture is necessary where the lessee neglected to keep a covenant to pay rent.
    Error to the Municipal Court of Chicago; the Hon. Harry P, Dolan, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Rehearing denied March 23, 1914.

      Certiorari denied,by Supreme Court (making opinion final).
    Winston, Payne, Strawn & Shaw, for plaintiffs in error; John C. Slade, of counsel.
    Vincent D. Wyman, Charles E. Carpenter and Otto W. Jurgens, for defendants in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit in forcible detainer, in which Anna Krasa and Louis S. Cohen had judgment. The defendant, United States Brewing- Company of Chicago, was the lessee of plaintiffs under a written lease, and had sublet the premises, 1444-1446 South Halsted street, to Charles Vogel. 'The lease to the United States Brewing Company provided for payment of rent on the first day of each month during- the term, to be paid “at the office of said lessee in said City of Chicago,”

It is conceded that the rent for December, 1911, and January, 1912, was unpaid, and the plaintiffs claim that this constituted a forfeiture of all rights under the lease, by virtue of the eighth section thereof, which is as follows:

“The neglect or failure of said lessee to keep the foregoing conditions and covenants, or any or either of them, shall constitute a forfeiture of all rights under this lease, and the further occupancy of said demised premises after such forfeiture by said lessee shall be deemed, held and taken as a forcible detainer thereof by said lessee and said lessor may without notice reenter and take possession thereof, and with or without force, and with or without legal process, evict and dispossess said lessee from said above demised premises.”

Defendants claim that no demand for rent was made at the office of the lessee, United States Brewing- Company, as required by the lease, and hence it was not in default. The demand for rent was made by plaintiffs at an office in the building at 908-920 West 12th street, Chicago. This office is in a large building which is operated as a brewery. Defendant Brewing Company claims that this is not its office, and that its office is at 1422 First National Bank Building, Chicago. The question therefore is whether the office in the brewery on West 12th street is the office contemplated by the provision of the lease that the rent should be paid at the office of the lessee. The sign over the office door of the brewery on West 12th street bears the name “Bartholomae & Boesing Brewing and Malting Com-party.” The officers of this company and of the United States Brewing Company are the same. The lease was signed in the office on West 12th street, and checks in payment of rent came to plaintiffs inclosed in envelopes bearing the address of the United States Brewing Company at 908-920 West 12th street. Inclosed with these checks was .sent a printed form of rent receipt, which bears the heading “United States Brewing Company of Chicago, 908-920 West Twelfth street.” Thirteen of such rent receipts were received by the plaintiffs and introduced in evidence. Plaintiffs testified that they would acknowledge receipt of the rent by signing these rent receipts and returning them by messenger to the office at 908-920 West 12th street.

It also appears that when the plaintiff Cohen called at this office to request the payment of rent, he was told that the reason it was not paid was that the subtenant, Vogel, had not yet paid.

Letters are in evidence, sent to plaintiffs and signed by Bartholomae and Boesing, referring to the premises “leased to us” and explaining that they were “withholding payment” of rent until the basement floor of which “our tenant at 1444 S. Halsted St. complains” was repaired.

These and other matters in evidence lead to the conclusion that the office of the brewery on West 12th street was the office “of said lessee” mentioned in the lease, for all purposes connected with payment of rent or other matters growing out of the leasing. Plaintiff having demanded payment of the rent at this office, which payment was refused, the lessee was in default and had failed and neglected to keep his covenant to pay rent.

Lane v. Brooks, 120 Ill. App. 501, is cited in support of the point that plaintiffs were obligated to give notice of their election to declare a forfeiture, but the lease in that ease, as pointed out in the opinion, contained no provision whereby the tenant agreed that the fact of nonpayment of rent should constitute a forcible detainer, or any provision similar to that in the lease in Espen v. Hinchliffe, 131 Ill. 468. The provision in the lease before us is similar in this regard to the provision of the lease in Espen v. Hinchliffe, in that the tenant agrees therein that the failure of the lessee to keep, its conditions or covenants, which would include the payment 'of rent, “shall constitute a forfeiture of all rights under the lease,” and a further occupancy thereunder shall be “a forcible detainer thereof by said lessee.” It has been held many times that under such a provision no notice of intention to declare a forfeiture is necessary. Espen v. Hinchliffe, supra; Belinski v. Brand, 76 Ill. App. 404; McKinney v. Mulvey Mfg. Co., 157 Ill. App. 339; Kenyon v. Manley, 125 Ill. App. 615; Sherman House Hotel Co. v. Cirkle, 136 Ill. App. 381; Cox v. Eckstrom, 142 Ill. App. 426; Strauss v. Fornaciari, 147 Ill. App. 18.

The finding of the trial court being justified by the evidence, the judgment will be affirmed.

Affirmed..


text:
    Frank Prox Company, Defendant in Error, v. E. A. Bryan, Plaintiff in Error.
    Gen. No. 18,698.
    1. Corporations, § 710

      —when foreign corporation is not doing business in this State. Where a foreign corporation, having no license to do business in this State and having no office in this State, sold its manufactured articles to customers in Illinois through traveling salesmen or by mail, and sometimes in filling orders purchased articles from a company in Chicago, held that it was engaged in interstate commerce and not doing business in this State, within the meaning of the statute prohibiting it from suing in the courts of this State.
    2. Payment, § 1

      —when giving of order on a third party does not amount to accord and satisfaction. An order given to one party on another, which is a mere request to pay a certain sum of money out of moneys not yet due to the party giving the order,
      held not to amount to an accord and satisfaction where the money was never paid and it is undisputed that the order was never intended to operate as payment.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Davis & Rankin, for plaintiff in error.
    Eastman & White, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Defendant in error brought an action to recover the price of certain articles sold and delivered by plaintiff to the defendant, and had judgment for the amount claimed. The defendant claims that the plaintiff was a foreign corporation not authorized to do business in Illinois; that it had done business in Illinois, therefore could not recover.

Plaintiff was a corporation organized under the laws of Indiana, with its place of business at Terre Haute, Indiana, and it had no license to do business in Illinois. It was engaged in the general foundry business, manufacturing mining machinery and doing a jobbing business in pipes and pipe fittings. It had no office in Illinois. It procured some orders in Illinois, either through traveling salesmen or by mail. Sometimes in filling orders in Illinois and elsewhere, which called for pipes and pipe fittings, they were purchased from the Crane Company of Chicago, and deliveries were made direct from Crane Company to the customer, but bills for same sent to plaintiff at Terre Plante. This was done in the transaction giving-rise to this litigation. Plaintiff also in two or three instances sold to parties in Illinois a mining appliance called a shaker screen, which was manufactured at 'Terre Haute and installed in Illinois by men sent from the factory. No materials going into the structure were purchased in Illinois.

These facts bring plaintiff squarely within the description of a corporation engaged in interstate commerce, and hence the statute invoked by the defendant has no application to it. See opinion in Lehigh Portland Cement Co. v. McLean, 245 Ill. 326, in which is a discussion of many decisions involving the consideration of what corporate activities come within the description of interstate commerce. The reasoning and conclusion therein expressed control our conclusion in the case before us. See also Journal Co. of Troy v. F. A. L. Motor Co., 181 Ill. App. 530, for an extended discussion and large list of cases touching this question.

The transaction between Crane Company and plaintiff did not make Crane Company an ag’ent of plaintiff so that what Crane Company did in Illinois could be called the doing of business in Illinois by plaintiff. Plaintiff was simply a purchaser in the matter.

It is argued that a certain order on another concern, given by defendant to plaintiff, amounts to an accord and satisfaction. The order was merely a request to pay plaintiff a certain sum of money out of money not yet due to defendant. This money was never paid, and the undisputed testimony of plaintiff is that the order was not intended to operate as payment, and the subsequent letters of defendant promising to pay the account support plaintiff’s testimony. These facts completely negative any defense based upon the claim of accord and satisfaction.

■The judgment is correct and is affirmed.

Affirmed.


text:
    The Wm. Doerflinger Company, Defendant in Error, v. E. M. Seymour, Plaintiff in Error.
    Gen. No. 18,761.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 990

      —when error in ruling on motion for bond for costs not reviewable. Error in the action of the trial court on a motion to require plaintiff to file a bond for costs cannot be reviewed where no such motion appears in the record, nor the action of the court thereon.
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Rehearing denied March 23, 1914.
    Statement of the Case.
    Action in the Municipal Court of Chicago by the Wm. Doerflinger Company against E. M. Seymour to recover the amount of a check alleged to have been collected and indorsed by defendant under a forged indorsement by a prior holder. It was claimed that the check made payable to a certain person by mistake, and that such person, knowing of the mistake, indorsed the check and that defendant subsequently collected it and negotiated it to others. From a judgment for plaintiff for $81.40, defendant bring’s error.
    E. M. Seymour, for plaintiff in error; Irving J. Res-nick, of counsel.
    Brundage, Wilkerson & Cassels, for defendant in error; Francis Adams, Jr. and Kenneth B. Hawkins, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

2. Appeal and ebbob, § 983 —when error in refusing to dismiss not reviewable. Error in refusing to dismiss a cause for failure to prove that plaintiff was a corporation is not reviewable where no motion therefor appears in the record.

3. Appeal and ebbob, § 956 —what not reviewable on striking of statement of facts. Where the statement of facts was stricken from the record, the denial of a motion to dismiss for want of proof that plaintiff was a corporation cannot he reviewed, since it would be impossible to conclude that the court ruled, incorrectly.


text:
    Louise M. Ferrier, Plaintiff in Error, v. Chicago Railways Company, Defendant in Error.
    Gen. No. 18,788.
    1. Negligence) § 140

      —who has burden of proof under res ipsa loquitur doctrine. In cases where the res ipsa loquitur doctrine is applied the burden of proof is not thereby shifted, but continues with the party maintaining the affirmative of the issues, although the adverse party may be required to produce proof to rebut the presumption of negligence.
    2. Cabeiebs, § 494

      —when instruction on burden of proof not erroneous. Where plaintiff claimed to have been injured by the lifting of a car step as she was in the act of alighting, defendant contending that she was injured by falling on the street after having alighted, it was held that an instruction that “the burden of proof * * * is on the plaintiff to prove by a preponderance or greater weight of the evidence that the accident happened in the way she contends and not as the defendant contends” was not erroneous.
    3. Cabeiebs, § 460

      —when res ipsa loquitur doctrine inapplicccble. The res ipsa loquitur doctrine is inapplicable to a passenger claiming to have been injured by the raising of the car step as she was in the act of alighting.
    4. Cabbiebs, § 460

      —application of res ipsa loquitur doctrine. The res ipsa loquitur doctrine is inapplicable where the defect, deficiency or peculiarity in the carrier’s means of transpo/rtation or accommodation, causing the accident, was visible to, seen by or known to the passenger as well as the carrier, and where the accident took place either before the actual commencement of the transit or after its termination, and while the passenger was in the affirmative act of boarding the carrier’s vehicle, or alighting therefrom, or coming upon or passing from the grounds of the carrier.

      5. Carriers, § 487

      —when instruction not erroneous as directing verdict on evidentiary facts. In an action by a passenger against a street railway company, where plaintiff claimed to have been injured by the raising of the car step as she was in the act of alighting, while defendant contended that she fell on the street after having alighted, an instruction “that if you believe from the evidence that plaintiff fell while-walking from the car to the sidewalk, then you must find the defendant not guilty” is not erroneous as directing a verdict upon an evidentiary fact, nor is it misleading as covering the period from the time she arose within the car.
    6. Carriers, § 493

      -—when instruction on degree of care not erroneous. An instruction on the degree of care required of a passenger is not erroneous because using the words “a reasonable person” instead of “a reasonably prudent person.”
    7. Instructions, § 100

      —when instruction on impeachment of witness correct. Instruction on impeachment of witness by contradictory statements held correct.
    Error to the Superior Court of .Cook County; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    The eighth instruction, given in behalf of defendant, which is referred to in the opinion of the Court, is as follows:
    “The jury are instructed that one mode of impeaching a witness is by showing that the witness has made different and contradictory statements on a material point on some former occasion. If it appears from the evidence in this case that any witness or witnesses has or have been impeached in this manner, the jury have the right, in passing upon the credibility of such witness or witnesses, to take into consideration such impeachment in determining the value or want of value of the testimony of such witnesses in connection with all the other facts and circumstances in evidence.”
    Elmer & Cohen, for plaintiff in error.
    Weymouth Kirkland and William H. Symmes, for defendant in error; J. R. Guilliams and Frank L. Kriete, of counsel.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is an action brought by Louise M. Ferrier, plaintiff, to recover damages for injuries alleged to have been received while alighting from one of defendant’s cars. She claims that the defendant,1 through its servants, negligently folded up the step on which she was about to place her foot, so that she stepped directly from the platform to the ground, falling on her left side. Defendant’s testimony tended to show that the step was in place when she alighted and that she slipped or stumbled on the street as she was walking away from the car and some feet from it. The jury returned a verdict finding the defendant not guilty. _ _ ,

_ _ It is not contended in this court that this verdict is contrary to the weight of the evidence, but it is argued that certain instructions given to the jury at the request of the defendant were improper, and hence calculated to mislead the jury.

Plaintiff was a passenger on one of defendant’s ears running east on Van Burén street. As the train approached State street, the eastern terminus of the line, the employes of the defendant closed the rear doors of the car and required all passengers to alight from the front end of the south side of the car. The car was then to be switched on to the north or westbound track and returned westward on Van Burén street. Plaintiff testified that she was the last person to leave the car; that when she was on the front platform she looked for the step and saw it in place and then looked for the railing with which to support herself, then stepped down, but that in the meantime the step had been pulled up, and she went clear to the ground, falling by the car on her left side, suffering a fracture of the neck of the femur; that after falling she felt pain and tried to. get up, but could not until she was helped up and taken into a store nearby. Other witnesses for the plaintiff testified as to seeing her after she had fallen, lying on the ground. They varied as to the distance she was at this time from the car and the sidewalk.

The defendant introduced testimony showing that there had been a slight snowfall on that day and that between the car and the curb it was icy and slippery. One of the employes testified that he was switchman at that point, and that it was his duty after the passengers had alighted to shut the step up; that the step is closed by pushing it up, and this causes the step on the opposite side to fall down into place; that he was standing right by the step in question waiting for the passengers to alight, and that all had alighted before he closed the step. Another employe testified that he was the starter at the point where the accident happen ; that he saw the plaintiff step down, and that the step was in place at the time; that after she had gone about midway between the car and the sidewalk she seemed to slip and her ankle gave out and she fell. Other witnesses testified as to her being about half way between the car and the curb when she fell,—including a police officer who assisted in picking her up and carrying her into the store on the corner.

With this evidence before the jury, it is said that it was prejudicial error to instruct the jury “that the burden of proof * * * is on the plaintiff to prove by a preponderance or greater weight of the evidence that the accident happened in the way she contends and not as the defendant contends.” This is only part of the instruction, but in general it instructs the jury that the burden of proof is upon the plaintiff, and it is said that this is erroneous in the case of a passenger and carrier, for the reason that, having established her prima facie case, the burden shifts onto- the defendant to make out its defense. This is not the law even in a res ipsa loquitur case. While it may be true that at times the defendant is under the necessity of producing evidence to rebut the presumption of negligence, still the general rule as to the burden of proof is not changed. The burden of establishing a case by a preponderance of the evidence rests upon the party asserting the affirmative of the issue, and this never shifts during the course of the trial but remains with him to the end. Here the burden of proof to establish her claim by a preponderance of the evidence was upon the plaintiff, and the instruction in this regard was not erroneous. Chicago Union Traction Co. v. Mee, 218 Ill. 9; Elgin, A. & S. Traction Co. v. Hench, 132 Ill. App. 535. A further answer is that in this case the doctrine of res ipsa loquitur cannot apply. The doctrine of res ipsa loquitur “does not apply where the defect, deficiency, or peculiarity in the carrier’s means of transportation or accommodation, which was the occasion of the accident, was visible to, seen by or known to the passenger, as well as the carrier, and where the accident took place either before the actual commencement of the transit or after its termination, and while the passenger was in the affirmative act of boarding the carrier’s vehicle, or alighting therefrom, or coming' upon or passing from the grounds of the carrier, in all of which cases the carrier is not the exclusive bailee of the passenger, but the passenger is required under the principles of law, to take reasonable care for his own safety.” 3 Thompson on Negligence, sec. 2763. “Nor does the foregoing rule apply where the occasion of the hurt of the passenger was an active voluntary movement on his part, combined with some alleged deficiency in the carrier’s means of transportation or accommodation; and the reason is that in such cases it is necessary to consider whether there may not have been contributory negligence on the part of the passenger.” 3 Thompson on Negligence, sec. 2764.

In this case the plaintiff is seeking to establish a specific act of negligence. The deficiency which she claims caused the accident was as well known to her as to the defendant. Moreover, she was in the act of alighting from the train, and defendant was no longer her exclusive bailee. These features take the case out from the rule of res ipsa loquitur. McFadden v. Chicago; R. I. & P. R. Co., 149 Ill. App. 298; Barnes v. Danville St. Railway & Light Co., 235 Ill. 566.

In the second instruction the jury was told “that if you believe from the evidence that plaintiff fell while walking from the car to the sidewalk, then you must find the defendant not guilty. ” It is argued that this was erroneous because it directed a verdict on a purely evidentiary fact not controlling on the issues tried. In our view of the case this evidentiary fact was the controlling issue. Plaintiff claims to have been injured through a fall caused- by the removal of the step on which she was about to alight. Defendant’s testimony tended to show that the fall occurred after she had safely alighted from the car and while she was in the act of walking towards the sidewalk. She fell only once, and the fall caused the injury, and if the jury should find that this happened while she was in the act of walking towards the sidewalk, this would completely negative the claim of the plaintiff as to the manner of the accident, and a verdict of not guilty would necessarily follow. While it may be improper in many cases to state what facts are controlling, yet in this case we see no escape from the conclusion that if the jury should find that plaintiff fell after she had safely reached the ground and while she was walking towards the sidewalk, the verdict must be for the defendant. We do not think the jury could have been misled by the language of this instruction into thinking that by the words “while walking” it was intended to mean from the time she arose within the car up to the time she approached the sidewalk. The language is, “while walking from the car to the sidewalk,” and this means after she had left the car.

Criticism as to the fourth instruction is met by what we have heretofore said concerning the first instruction. We see no material difference in the use of the words “a reasonable person” and the words “a reasonably prudent person.” The degree of care which a “reasonable person” would ordinarily exercise is substantially the same degree of care that would be exercised by a “reasonably prudent person.” In any event, how can the plaintiff be heard to complain of an instruction calling for a lesser degree of care on her part than if the word “prudent” had been inserted. |

Defendant’s eighth instruction has already been approved in Day v. Sampsell, 148 Ill. App. 88, where the Court discusses this instruction and holds it was not erroneous to give it.

There was no error in giving defendant’s fifteenth instruction, for the reason, as stated before, that the doctrine of res ipsa loquitur does not apply in this case.

The criticisms of the instructions are for the most part technical, and we cannot say that they could have misled the jury. It is manifest that the verdict was the only one that could properly have been returned under the evidence, and there appearing no reason why the judgment should be disturbed, it is affirmed.

Affirmed.


author: Mr. Justice MoSurely

text:
    Mary Hartnett, Plaintiff in Error, v. Boston Store of Chicago, Defendant in Error.
    Gen. No. 18,804.
    1. Negligence, § 8

      —when violation of ordinance does not create liability. The violation of an ordinance enacted for the safety of the public, while prima facia evidence of negligence, does not impose liability in the absence of a causal connection between the negligent act and the injury.
    2. Negligence, § 52—when condition created by negligence not proximate cause. Where negligence results in nothing more than the creation of a condition by which an injury is made possible, and such conidtion causes injury by the subsequent independent act of a third person, the existence of the condition is not the proximate cause.
    3. Negligence, § 52

      —when intervening cause breaks causal connection. Where a negligent act creates a condition resulting in injury through the intervening act of a third person not under the control of the person guilty of the original act of negligence, and whose act is such as could not reasonably have been anticipated, the connection is broken and the original negligence is not the proximate cause.
    4. Negligence, § 52

      —when sale of rifle to minor not proximate cause of injury to third person. Sale of a rifle to a fifteen-year-old boy, in violation of an ordinance, held not the proximate cause of injury to a third person shot by the boy while shooting at a target.
    5. Negligence, § 118

      —when declaration insufficient. A declaration charging negligence in the sale of a rifle to a boy is insufficient to state a cause of action at common law in the absence of any allegation of the latter’s unfitness or inexperience.
    6. Pleading, § 100

      —when general issue does not cure defects in declaration. Failure of the declaration to state a cause of action is not cured by the filing of the general issue.
    Error to the Superior Court of Cook County; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Rehearing denied March 23, 1914.
    B. Wilson More, for plaintiff in error; George H. Mason and Fred B. Hovey, of counsel.
    Moses, Bosenthal & Kennedy, for defendant in error; Hamilton Moses and Walter Baohrach, of counsel.

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

      See Illinois Notes Digest, Vols. XI to XV, same topie and section number.

   Mr. Justice MoSurely

delivered the opinion of the court.

Plaintiff in error seeks to have reversed a-judgment for the defendant on a directed verdict in an action brought to recover damages for injuries caused, as alleged, by the sale of a gun by the defendant to a minor, contrary to the provisions of a city ordinance, which forbids under penalty the sale of firearms to minors.

The declaration sets out á .municipal ordinance of the city of Chicago, which provides that “no person shall sell, loan or furnish to any minor, any gun, pistol or other firearm,” and that defendant negligently and carelessly, and in violation of the ordinance, sold a gun to Oscar Soderquist, a minor fifteen years of age, and that said Soderquist discharged a bullet from the gun which struck the plaintiff, inflicting the injuries complained of. Upon the trial the ordinance was introduced in evidence, and it was proved that the defendant, Boston Store, sold to Soderquist, who was then fifteen years of age, a 22 caliber rifle and two boxes of cartridges; that the boy took the gun home and hid it for about two days, and on the following Saturday took it out, loaded it with the cartridges which he had bought, put a target on the fence in the back yard of his home, and shot at the target; that the bullet passed through the fence and struck the plaintiff, who was then passing along the public alley at the rear of the yard.

At the conclusion of plaintiff’s case, upon motion, the court instructed the jury to return a verdict finding the defendant not guilty.

Plaintiff argues that the violation of a municipal ordinance, enacted for the safety of the public, is prima facie evidence of negligence, and many cases are cited which support this as a general proposition. ' We understand counsel for defendant to concede this to be the law. We think, however, that counsel for plaintiff is in error in assuming that a sufficient averment of negligence or evidence sufficient to support a finding of negligence by the defendant necessarily involves liability. In addition to proving negligence, there must also be shown some causal connection between the negligent act and the injury for which compensation is sought. Among the many decisions so holding are Illinois Cent. R. Co. v. Schmitt, 100 Ill. App. 490; Toledo, W. & W. Ry. Co. v. Jones, 76 Ill. 311; Chicago, B. & Q. Ry. Co. v. Notzki, 66 Ill. 455; Gibson v. Leonard, 143 Ill. 182; Schulte v. Schleeper, 210 Ill. 357.

Before the defendant can be held liable in this case it must appear that the sale of the gun to Soderquist was the proximate cause of plaintiff’s being shot. The rules for determining whether a negligent act or omission is the proximate cause of an injury have been stated in many cases, with practically no difference of opinion as to what the rules are. To constitute proximate cause, the injury must be the natural and probable consequence of the negligence, and be of such a character as an ordinarily prudent person ought to have foreseen might probably occur as a result of the negligence. If the negligence does' nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent independent act of a third person, the existence of the condition is not the proximate cause of the injury. "When the act of a third person intervenes which is not a consequence of the first wrongful act or omission, and which could not have been foreseen by the exercise of reasonable diligence, and without which the injurious consequences could' not have happened, the first act is not the proximate cause of the injury. If the act of a third person, which is the immediate cause of the injury, is such as in the exercise of reasonable diligence could not have been anticipated, and the third person is not under the control of the one guilty of the first act, the connection is broken, and the first act is not the proximate cause of the injury. Seith v. Commonwealth Electric Co., 241 Ill. 252; Chicago Hair & Bristle Co. v. Mueller, 203 Ill. 558.

In Cooley on Torts (3.d Ed.) 99, the rule is stated as follows: “If an injury has resulted in consequence of a certain wrongful act or omission, but only through or by means of some intervening cause, from which last cause the injury followed as a direct and immediate consequence, the law will refer the damage to the last or proximate cause) ¿nd refuse to trace it to that which was more remote.”

Wharton thus discusses the question: “Supposing that if it had not been for the intervention of a responsible third party the defendant’s negligence would have produced no damage to the plaintiff, is the defendant liable to the plaintiff? This question must be answered in the negative for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action. I am negligent on a particular subject-matter as to which I am not contractually bound. Another person, moving independently, comes in and either negligently or maliciously so acts as to make my negligence injurious to a third person. If so, the person so intervening acts as a non-conductor and insulates my negligence so that I cannot be sued for the mischief which the person so intervening directly produces. He is the one who is liable to the person injured. ’ ’ Wharton on Hegligence, sec. 134.

With these principles in mind, it cannot properly be said that the sale of the gun to Soderquist was the proximate cause of the injury received by the plaintiff. We have here a situation where the sale of the gun did nothing more than furnish a condition by which the accident was made possible; the injury was caused by the intervening, independent act of a third person, namely the boy, Soderquist. The sale of the gun must be classed, with respect to the causal connection, as should be the manufacturing of the gun or the manufacturing of the cartridges, and the shape and material of the bullet, or the sale of the cartridges to the boy, each of which things contributes to the circumstances and conditions which made possible the injury, but none of which things could be said with reason to be the proximate cause of the injury.

Some of the cases in which the same conclusion was reached, upon facts similar to those before us, are Loftus v. Dehail, 133 Cal. 214; Otten v. Cohen, 1 N. Y. Supp. 430; O’Connor v. Brucker, 117 Ga. 451; Tutein v. Hurley, 98 Mass. 211; Beetz v. City of Brooklyn, 75 N. Y. St. Rep. 1376; Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579.

In Binford v. Johnston, 82 Ind. 426, cited by plaintiff, the facts somewhat resemble those before us but are different in some important particulars. In that case it appears that the defendant sold ordinary pistol cartridges to two boys, ten and twelve years old, for use in a toy pistol; that defendant instructed them how to use these cartridges in the toy pistol, that he knew it was dangerous so to use them, and also knew that the lads were unfit to be given such articles. Such facts are not present in the case before us.

We cannot agree with counsel for plaintiff that regardless of the ordinance the declaration stated a good cause of action at common law.

As was said in Palm v. Ivorson, 117 Ill. App. 535, where the facts are practically like those before us: “Danger cannot be reasonably anticipated by permitting a boy twelve years old to have and use a gun when he is experienced in the use of guns, is acquainted with their construction and the proper mode of carrying, handling and discharging them and has been careful in their use.” The declaration by omitting any allegation of the inexperience or unfitness of the minor, Soderquist, failed to state a cause of action at common law, and this failure cannot be cured by the defendant filing a plea of general issue: Chicago & A. R. Co. v. Clausen, 173 Ill. 100. *

Under the declaration and evidence no liability of the defendant wag shown, and the order of the trial judge in instructing the jury to return a verdict of “not guilty” was proper, and the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois ex rel. Catherine Murphy, Appellee, v. Edward Frowley, Appellant.
    Gen. No. 18,830.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Evidence, § 450

      —when comparison of signatures erroneous. The genuineness of a signature cannot be proved by comparison with other admittedly genuine handwriting or signatures not admissible in evidence for other purposes, and not already a part of the record.
    2. Bastards, § 20

      —burden of proof. In a bastardy proceeding the burden is upon complainant to prove her claim by a preponderance of the evidence.
    3. Bastards, § 22

      —when evidence insufficient. In a bastardy proceeding, where complainant testified to two acts of intercourse, one by force and the other with her consent, while defendant denied ever having knowingly seen her until several months after complainant became pregnant, and testified that owing to an injury he had been incapable of having intercourse for a period of twenty years, offering to submit to an examination by a physician appointed by the court, it was held that judgment of guilty was against the greater weight of evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 9, 1914
    Statement of the Case.
    Bastardy proceeding by The People of the State of Illinois ex rel. Catherine Murphy against Edward Frowley, in the Municipal Court of Chicago. From a judgment of guilty on trial by the court without a jury, defendant appeals.
    Joseph E. Byan, for appellant.
    Maclay Hoyne, for appellee; Zach Hofheimer, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    John D. Casey, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant.
    Gen. No. 18,900.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Limitation of actions, § 69

      —when amendment does not state a new cause of action. -In an action for the wrongful death of a fourteen-months-old child, an amendment changing the averment that the child was in the exercise of due care for her safety, to an averment that the parents were in the exercise of such care, does not state a new cause of action so as to be barred by the statute of limitations.
    2. Appeal and error, § 369

      -—when change of theory not permitted on appeal. In an action for the wrongful death of a fourteen-months-old child where the case was tried upon the theory that the question of contributory negligence involved solely the conduct of one or other or both of the parents, defendant cannot, ior the first time, contend on appeal that plaintiff was not entitled to recover because of the absence of an averment that an older sister of the child, in whose care it was at the time of the accident, exercised due care for the safety of the child while in her custody.

      Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.
    Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Action by John D. Casey, administrator of the estate of Wilmer Eberl, deceased, against Knickerbocker Ice Company to recover for the'wrongful death of said Wilmer Eberl, a fourteen-months-old child, due to the negligence of a driver in defendant’s employ in running over the child while playing in a public street. From a judgment for plaintiff for one thousand seven hundred dollars, defendant appeals.
    Quin O’Brien and. O. A. Arnston, for appellant; John P. McKinley, of counsel.
    Elm:er & Cohen, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

3. Roads and bbidges, § 232 —when owner of vehicle liable for hilling child playing in street. Where a fourteen-months-old child, in the custody of a nine-year-old sister, while playing with other children about a sand pile in a public street was run over and killed by a team driven at a fast trot on the wrong side of the street, the driver of which paid no heed to warning cries of persons in the street, and knew nothing of the accident until his horses were stopped by a pedestrian about seventy-five feet from the scene of the accident, a verdict for plaintiff was held to be sustained by the evidence.