author: Mr. Justice Baker

text:
    Peter Cooper’s Glue Factory, Plaintiff in Error, v. Devoe & Raynolds Company, Defendant in Error.
    Gen. No. 17,137.
    1. Brokers — sales through. Where a broker not intrusted with possession of goods contracts in his own name to sell the same to a vendee to whom he is indebted to apply on his indebtedness, the vendee having no knowledge that such broker is not the real owner, and the owner delivers and hills the goods to the vendee, recovery may he had hy the owner from the vendee.
    2. Assumpsit — retaining goods. If a person receiving goods keeps them and deals with them as his, he is liable on an implied promise to pay their value.
    3. Brokers — distinction between brokers and factors. The test whether an agent is a broker or a factor is in his having possession of the goods in the transaction.
    4. Brokers — possession. A broker has not possession of goods bought or sold for his principal.
    5. Brokers — must .yse name of principal. A broker must buy and sell in name of his principal.
    6. Factors — may buy and sell in own name. A factor may buy and sell in his own name.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed with judgment here.
    Opinion filed March 24, 1913.
    WiNSTON, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade and Arthur C. Marriott, of counsel.
    Elbert C. Ferguson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Peter Cooper’s Glue Factory sued the defendant Devoe & Raynolds Company in the Municipal Court for the purchase price of 13 barrels of glue alleged to have been sold and delivered hy plaintiff to defendant. The trial, hy the court, resulted in a judgment for tlie defendant and the plaintiff prosecutes this writ of error.

In January, 1910, one E. C.‘ Thomas was indebted to the defendant and the defendant, January 27, 1910, gave to Thomas an order and January 29 another order for glue. Both orders were in writing and in each was the provision: “to be billed by E. O. Thomas and to be applied on his indebtedness to Devoe Baynolds Co.” Thomas, about January 1, 1909, began business for himself. He testified in June, 1910, that he bought and sold goods up to the end of the year 1909, but in 1910 sold on the commission basis and was a broker. A broker differs from a factor, in that he has not possession of the goods to be bought or sold for his principal. A factor may buy and sell in his own name. A broker is always bound to buy and sell in the name of his principal. Saladin v. Mitchell, 45 Ill. 79; Story on Agency, Sec. 34.

“Whether the selling agent has possession of the wares determines the character of his agency. That is the test, and the law defining their respective duties and powers is as old as the law of commerce. # * * A commission merchant may be a broker for any number of transactions, and a broker may also act in the capacity of a factor. It is the transaction which makes him a broker or a factor, and not what he may choose to style himself.” Robinson, Norton & Co. v. Corsicana Cotton Factory, 124 Ky. 442, 8 L. E. A. (N. S.) 474.

Thomas had no authority to sell the wares of the plaintiff in his own name, or in payment of his debt. He gave plaintiff an order for the articles mentioned in the orders the defendant gave him, but concealed from the plaintiff the fact that such orders provided that the articles should be billed by him to the defendant and applied on his indebtedness to the defendant. So far as the plaintiff knew or was informed, the order given to it by Thomas was based on a sale of the articles by Thomas as a broker to the defendant, and was so treated by the plaintiff. This is further shown by the facts that with the glue plaintiff sent blank receipts to the “Peter Cooper due Factory” for the glue, which were signed by the receiving clerk of the defendant, and the plaintiff within a few days after sending the goods sent by mail to the defendant bills for the goods. The bills were all similar-to the following:

“Peter Cooper's G-lue Factory.
1/1/16 Manufacturers of Refined American Gelatine, Glue,
Neatsfoot Oil & C.
Chgo Gen.
Ect
No. 218 La Salle St.
Sold New York Office
To Devoe & Reynolds 13 Burling Slip.
176 Randolph St.
Chicago, Ill. Terms: 2% 10 Das H Chicago 2/2/10
Net 60 Das o CD u*W M M M M ¡S ^ 9^ CO 9^ co HMÜ1ÜI' Q ÍL ED totototoc-;-W050WS
563 94 469 at 17%c 82.08”

One of the other hills was for 5 bbls. $362, another for 4 bbls. $117.50. The three bills amounted to $562.16, the amount sued for.

The case presented therefore is this: A broker who is not intrusted with the possession of property contracts in his own name to sell the same to a vendee to whom he is indebted, to apply on his indebtedness, the vendee has no knowledge that the broker is not the real owner, but deals with him as such. The broker notifies the owner that he has sold the glue for it. The owner, without any knowledge that the broker has contracted in his own name, or agreed that the proceeds of the sale shall apply on his indebtedness to the ven-dee, and without any conduct on its part clothing the broker with any authority, express or implied, to receive payment or to apply the proceeds on his indebtedness to the vendee, or any possession, actual or constructive, of the property, delivers the same to the ven-dee. Will such transaction between the broker and the vendee, under such circumstances, prevent the owner from recovering the purchase price of his property?

In Saladin v. Mitchell, 45 Ill. 79, it was said, p. 83: “if a broker sells the goods of his principal in his own name, without some special authority so to do, inasmuch as he exceeds his authority, the principal will have the same rights and remedies against the purchaser as if his name had been disclosed by the broker. Story on Agency, sec. 28.” In Baving v. Corrie, 2 Barn. & Ald. 137, cited with approval in Saladin v. Mitchell, supra, in answer to the objection that the broker would be enabled by his principal to deceive innocent persons, it was said: The answer, however, is obvious, that he cannot do so unless the principal delivers over to him the possession and indicia of the property.” To same effect are Crosby v. Hill, 39 Ohio St. 100; Higgins v. Moon, 34 N. Y. 417; Kornemann ch. 36; Clark v. Smith, 88 Ill. 298.

Thomas bought and sold glue on his own account in 1909, but not in 1910. The fact that plaintiff in 1909 delivered to defendant goods bought by defendant of Thomas was not evidence tending to show that Thomas in 1910, when he was only a broker, had authority to receive payment for goods sold by him as a broker or to transfer such goods in payment of his debt. In the absence of actual authority the plaintiff could only be bound on the ground that it had by its action induced defendant -to believe that Thomas had authority to transfer its goods in payment of his debt. But the goods were not even sent to Thomas for delivery, but were sent direct to the defendant by the plaintiff and a receipt to the plaintiff for them required and given. There was nothing to exonerate the defendant from ascertaining the authority of Thomas. The contract between Thomas and the defendant provided that the goods should be billed by Thomas. This provision Thomas did not comply with, and when the goods were billed by the plaintiff to the defendant, instead of inquiring of the plaintiff, it inquired only of Thomas. It had no right to act on anything that did not proceed from the plaintiff either as actual authority or in some form of binding admission. There was no proof of either of these essentials, and the transfer of plaintiff’s goods to defendant in payment of his debt was therefore wholly unauthorized and in no way bound the plaintiff.

The glue was the property of the plaintiff. Thomas, a broker, made the contract with the defendant in his. own name without the authority of the plaintiff, and the plaintiff, not knowing the facts, and believing that he had sold the goods as a broker, delivered the goods to the defendant. This made the contract plaintiff’s contract, and it had an undoubted right to claim the benefit of it. In Saladin v. Mitchell, supra, the broker, having authority to sell barley of the plaintiff in the name of the plaintiff, sold it in his own name and it was held that the plaintiff had an undoubted right to claim the benefit of the contract. In Stewart v. Woodward, 50 Vt. 78, the manager of a merchant tailor’s store, owing to a physician a bill for services, solicited the physician to have a new suit of clothes, and told him that the price should apply in payment of his doctor’s bill, and it was held that the implied promise arising from taking the benefit of the delivery of the clothes was sufficient to warrant a recovery by the owners of the store in an action for the price of the clothes. “If a person sends goods to another, and the latter uses the goods, keeps them or deals with them as his, he will be liable on an implied promise to pay what the goods are worth, unless he had a right to suppose and did suppose, that a gift was intended. The acceptance by their use raises an implied promise to pay their price.” Vol. 9, Cyc. of Law and Procedure, 256.

‘ ‘ Though one has not ordered goods shipped to him, yet if with knowledge of the facts he retains them and uses them or exercises over them acts of ownership, he will he deemed to have assented to their sale to him and will be liable as a purchaser. ’ ’ Mechem on Sales, Sec. 243. To the same effect are Hobbs v. Massasoit Whip Co., 158 Mass. 194; Thompson v. Douglass, 35 W. Va. 337.

We think that on the evidence in this record the plaintiff was clearly entitled to recover the amount of the bills rendered by it to the defendant for glue delivered by it to defendant, with interest at five per cent, from the time the same became due, according to the terms stated in said bills.

The judgment of the Municipal Court is reversed with judgment here for six hundred and twenty-eight dollars and eighty cents ($628.80) and costs in this court and in the Municipal Court for plaintiff in error against defendant in error. .

Reversed with judgment here for plamtiff in error.


source: Caselaw Access Project

author: Mr. Justice Baser

license: Public Domain

text:
    Simon Horvitz and Albert Horvitz as Horvitz Bros., Defendants in Error, v. Sam Fredson, impleaded with Chris Swanson, Plaintiff in Error.
    Gen. No. 17,182.
    1. Sales — furnishing cars. Where a contract of sale “f. o. b.” cars is silent as to whether the buyer or seller is to furnish cars, the jury in a case of conflicting evidence is to determine the construction placed on the contract by parties.
    2. Contracts — lex loci. The law of a state where a contract is made is controlling.
    3. Contracts — law of other state. Where the law of another state is not offered in evidence, it cannot be applied.

      Error to tlie Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    Russell B. Fischer, for plaintiff in error; Peter Fisher, Jr.,-of counsel.
    Jesse Lowenhaupt, for defendants in error.
   Mr. Justice Baser

delivered the opinion of the court.

Defendants in error sued Swanson and Fredson in the Municipal Court to recover damages for a breach of a contract for the sale and delivery of fifty tons of cabbage by defendants to plaintiffs. Fredson only was served before the trial, which resulted in a verdict and judgment for the plaintiffs against Fredson for $865 damages, and to reverse such judgment Fredson prosecutes this writ of error. The grounds of reversal urged are: first, that the trial court erred in admitting improper evidence for the plaintiffs; and, second, that the court erred in refusing to direct a verdict for the defendant.

- The contract of sale was made at Pleasant Prairie, Wisconsin, and provided that the cabbages should be delivered f. o. b. cars at that station. It is contended that the court improperly admitted evidence of the market value of cabbage at places some miles distant from Pleasant Prairie, and improperly permitted witnesses to testify as to the market value of cabbage at Pleasant Prairie who had not dealt in cabbage at that place, but had bought cabbage in the section of country in which Pleasant Prairie is situated. It was shown that Pleasant Prairie was a village of two or three hundred inhabitants, situated in a country where cabbage is largely grown; that the railroad rates from the different villages in that section were the same, and the price of cabbage substantially the same. We do not think that the rulings as to evidence complained of were erroneous.

The contention of plaintiff in error that a verdict should have been directed for the defendant is based on the contention that it was the duty of the plaintiffs, the buyers, to furnish cars at Pleasant Prairie for the cabbage, and that the failure of the defendant to deliver the cabbage was caused by the failure of the plaintiffs to furnish cars.

It is true, as contended by defendants in error, that as the contract was made and to be performed in "Wisconsin, the law of that State is controlling on the question of whose duty it was to furnish the cars; but they offered no evidence as to the law of Wisconsin, and we are therefore unable to apply the law of that state to the contract in question. Christiansen v. Graver Tank Works, 223 Ill. 142.

In Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 326, it was said: “Different courts have held different views as to whether the buyer or the seller is bound to furnish cars under such a contract containing no express stipulation on the subject. (Hocking v. Hamilton, 158 Pa. St. 107; O ’Brien Lumber Co. v. Wilkinson, 117 Wis. 468.) The question has never been determined by this court. (Harman v. Washington Fuel Co., 228 Ill. 298.) In Consolidated Coal Co. v. Schneider, 163 Ill. 393, the court declared that a contract to furnish coal f. o. b. cars at a mine was silent in regard to the party who should furnish the cars, and that the agreement to furnish coal free on board the cars had no bearing on the question of whose duty it was to furnish the cars. The court adopted the construction placed upon the contract by the parties themselves, as shown by the evidence.” The evidence as to the construction placed on the contract by the parties is conflicting; that for the plaintiffs tending to show that the defendants verbally agreed to furnish cars and did furnish the cars that were shipped to the plaintiffs; that plaintiffs did not agree to furnish cars, but only to help the defendants to secure cars, and that all the requests they made for cars were made to help the defendants to get cars. The evidence for the defendants tends to show that the plaintiffs verbally agreed to furnish cars and that defendants did not agree to furnish and did not furnish cars. The finding of the jury implied by their verdict was that the construction placed on the contract by the parties was that it was the duty of the defendants to furnish cars. Whether the construction placed on the contract by the parties was that it was the duty of the plaintiffs or of the defendants to furnish cars, was, on the evidence in the case, a question of fact for the jury, on which their verdict must be held conclusive.

We think the court did not err in refusing to direct a verdict for the defendant.

We find no error in the record and the judgment is affirmed.

Affirmed.


text:
    Abe Cohn, Trading as Cohn Suit & Skirt Company, Defendant in Error, v. Joe Arkin, Plaintiff in Error.
    Gen. No. 17,207.
    1. Accord and satisfaction — ~bona fide dispute. Where goods are not delivered as ordered, in absence of amicable adjustment, there is a question of bona fide dispute, upon which an accord and satisfaction may be based.
    2. Accord and satisfaction — check “in full." A check marked “all claims accounts paid in full,” if cashed on receipt, where there is a bona fide dispute, held to amount to an accord and satisfaction.
    3. Accord and satisfaction. Accord and satisfaction held established by evidence.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March term, 1911.
    Reversed with judgment here.
    Opinion filed March 24, 1913.

      Saltiel & RosseN, for plaintiff in error.
    Elbert C. Fergusok, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff Cohn recovered a judgment for $18.75 in an action of the fourth class in the Municipal Court against defendant Arkin, who has sued out this writ of error. The statement of claim is in substance the consolidated common counts, to which is attached a statement of account showing goods sold $111.00, a credit of $83.75, leaving balance due $18.75. Defendant filed an affidavit of defense, stating that he had a good defense to the suit as to the whole of plaintiff’s demand, and that the nature of his defense was as follows:

“A dispute existed between the parties as to the correct amount due, and on September 8 this affiant sent to the plaintiff, Cohn Suit & Skirt Co., a check in the sum of $83.25, upon which check was endorsed the words, ‘all claims accounts paid in full,’ the plaintiff accepted said check and had the same cashed, which said check has been returned stamped ‘paid.’ ”

It appears from the record that the plaintiff is a manufacturer of ladies’ suits and skirts and sold to the defendant, a retailer of such articles, a number of bills of goods; that a dispute arose over two items of $48 each, consisting of six coats; that plaintiff admitted that the coats were not what defendant had ordered and offered to allow defendant twenty-five per cent., but defendant insisted on an allowance of fifty per cent. Allowing the defendant twenty-five per cent., the amount due is $18.75. The court found as a fact that, “there was no bona fide dispute between the parties as to the amount due.” This finding is clearly erroneous. When the plaintiff delivered to defendant goods which he had not ordered, the allowance to be made to the defendant was a matter for adjustment, and the amount due for such goods was, in the absence of amicable adjustment, a question of bona fide dispute between the parties.

It further appears that about a year after the goods were delivered the defendant sent to the plaintiff a check, payable to his order, of $83.75, on the back of which, at the time of the trial, were the words: “All claims accounts paid in full,” with lines drawn through those words. Plaintiff testified that these lines did not appear on the check when it was sent to him, and on his cross-examination, “did neither admit nor deny that said words were endorsed on said check,” but claimed that he did not remember, and admitted that he had received and collected the check. The bookkeeper of the defendant testified that she wrote the check with the exception of the signature and wrote on the back thereof the words: “All claims accounts paid in full,” and mailed the check with such endorsement thereon to the plaintiff. The finding of facts on this point is “The court finds as a fact that the defendant did not-remit the said sum as payment in full.”

This finding is also erroneous. The bookkeeper’s testimony was affirmative and positive, and unless she knowingly testified falsely the words in question were on the check when it was mailed to the plaintiff. The plaintiff’s testimony that the lines through the words in question on the check as it appeared at the trial were not on the check when he received it, and that he did not remember whether such words were on the check when he received it, tends but slightly, if at all, to contradict the testimony of the bookkeeper.

We think the evidence in the record and the eviden-tiary facts found by the court clearly establish the defense of accord and satisfaction set up in defendant’s affidavit of defense, and the judgment will be reversed with judgment here for the defendant and for his cost in this court and in the Municipal Court.

Reversed with judgment here for defendant.


text:
    Willis I. Saunders, Defendant in Error, v. John V. Fox, Plaintiff in Error.
    Gen. Nos. 17,246, 17,247.
    1. Landlord and tenant — eviction. Only acts of a grave and permanent character, which amount to a clear indication of intention on the landlord’s part to deprive the tenant of the enjoyment of the demised premises, constitute eviction.
    2. Landlord and tenant — waiver. By retaining possession after a constructive eviction, a tenant waives a right of abandonment.
    3. Landlord and tenant — eviction. Facts stated by a tenant to show actual eviction by being deprived of an easement on a lawn, which show at most a deprivation of the right to go on the lawn, the tenant still retaining and enjoying the easement of light and air, helé an insufficient defense to an action for rent.
    4. Municipal court — jury trial. Where an amended affidavit of merits is stricken from the flies, and leave is not asked to file another, defendant is not entitled to trial by jury.
    5. Municipal court — amendment of affidavit of merits. The filing of an amended affidavit of defense is an abandonment of the original affidavit.
    6. Damages — assessment on default. Where default is entered, and no request is made to have damages assessed by jury, defendant is not entitled to such assessment.
    7. Words and phrases — “during.” An affidavit of merits stating that an eviction occurred “during the time” for which suit for rent is brought if held to mean “in the time,” is insufficient.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1911.-
    Affirmed.
    Opinion filed March 24, 1913.
    Rehearing denied and opinion modified April 7, 1913.
    Statement by the Court. Plaintiff Saunders leased to defendant Fox by written lease for one year from May 1, 1910, at a rental of $70 per month, the house 510 Arlington Place, Chicago. Following the description of the demised premises in the lease is the provision: “together with the privilege of the use, for lawn purposes in common with the lessor, of the lawn East and adjoining said house except the East 50 feet of said lawn, which said East 50 feet is not included herein, to he occupied for residence purposes only and for no other purpose whatever.”
    Plaintiff brought two actions of the fourth class in the Municipal Court against defendant for instalments of rent under the lease; one for rent for May, June, July, August, September and October, the other for November, 1910. In each case plaintiff filed an affidavit of claim. The defendant filed in each case an affidavit of defense, which were held insufficient and stricken from the files and the defendant given leave to file amended affidavits of defense. He filed amended affidavits of defense, which were also held insufficient, and thereupon the court ordered in each case that judgment be entered against the defendant “by default for want of such affidavit of merits, and entered judgment in each case for the amounts stated in the affidavits to he due in the affidavits of claim. Defendant then moved in each case to vacate the judgment and filed an affidavit in support of his motion. The motions were denied and the defendant sued out writs of error to review the judgments. The affidavit and amended affidavit of defense and the affidavit in support of the motion to vacate the judgment filed in each case are identical, and it will therefore only he necessary to consider the affidavits filed in one case.
    Adler & Lederer, for plaintiff in error.
    Robert S. Iles and Robert D. Martin, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The filing of an amended affidavit of defense was an abandonment of the original affidavit. Rule 17 of the Municipal Court provides that in cases of the fourth class where the affidavit of defense is stricken from the files for insufficiency the court may enter judg-ruent as in cases of default on tlie plaintiff’s affidavit of claim. Tlie contention of plaintiff in error that he was entitled to a trial by a jury, although his amended affidavit of defense had been stieken from the files and he did not ask leave to file another affidavit of defense, cannot be sustained. Neither was he entitled to a jury to assess damages, because he did not demand, after his default was entered, that the damages be assessed by a jury.

The amended affidavit states that the nature of the defense of the defendant to the suit is as follows: “A constructive eviction of part of the premises in question by which this defendant is excused from paying rent sued for, and that said constructive eviction occurred during the time for which said suit is brought, and this defendant says he was evicted from a part of the premises described in the lease between plaintiff and defendant under which said premises are held, and that said eviction occurred by the lawn east and adjoining said house, excepting the east fifty feet of said lawn, as described in said lease, being covered over and from which said lawn this defendant was barred and lost the use of during said time, because of the storing and placing upon said lawn of building material by the plaintiff, which said building material was used in the construction of a building adjoining said lawn; that defendant was by said acts prevented from enjoying a part of the premises leased to him under said lease, and the sidewalk and fence inclosing said lawn were demolished by the plaintiff, so that from all said acts defendant lost the enjoyment of said premises.” The construction of the amended affidavit depends on the sense in which the word “during” was used in the affidavit. In the Century Dictionary the word is defined as follows: “In the time of; in the course of; throughout the continuance of.” The connection in which an ambiguous word is used often determines its meaning as used. The affidavit states that the building material which it states was placed on the lawn in question, “was used in the construction of a building adjoining said lawn.” If so used, it certainly was not stored on the lawn throughout the time for which rent was claimed, and it would seem to follow that the affiant meant only to state that the material “was stored in the time” that the rent sued for accrued. Again, it is to be noticed that the affidavit states that “the eviction occurred” during the time “for which said suit is brought,” not that the material was stored on the lawn, “during the time,” etc. If the affidavit be held to mean that the material was stored on the lawn, “in the time” that the rent accrued, as we think it should be, it is clearly insufficient, for it is only “Acts óf a grave and permanent character, which amount to a clear indication of intention on the landlord’s part to deprive the tenant of the enjoyment of the demised premises which will constitute an eviction.” Keating v. Springer, 146 Ill. 481, 495.

But waiving all technical objections to the amended affidavit, we think the facts therein stated do not constitute a defense to the action for rent. The lease gave to the defendant an easement in the lawn. He still retained and enjoyed the easement of light and air. At most he was deprived of the right to go on the lawn. The facts stated either in the amended affidavit or in the affidavit in support of the motion to vacate do not show an actual eviction, and the fact that defendant retained possession after an alleged constructive eviction is a waiver of the right of abandonment. Barrett v. Boddie, 158 Ill. 479; Keating v. Springer, supra; Chicago Legal News Co. v. Browne, 103 Ill. 317.

We think the court properly gave judgment for the plaintiff, and the judgment in each case is affirmed.

Judgments affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Al. Jacobson, Plaintiff in Error.
    Gen. No. 18,648.
    1. Informations — idem sonans. There is no substantial variance between “Stall” and "Stoll,” and they are the same names.
    2. Informations — where contraction of name is used. Where prosecuting witness wrote his Christian name “Leonhard” in signing the information and affidavit and testified that his name was “Leon,” it is presumed that his name is “Leonhard” and “Leon” is a contraction.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 24, 1913.
    Day & GueNther, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hoeheimer, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error was convicted of petit larceny in the Municipal Court and prosecutes this writ of error to reverse the judgment on the grounds, first, that the name of the person whose money was stolen was not proved as alleged in the information; and, second, that the evidence is insufficient to warrant the finding of guilty. The information and accompanying affidavit were signed “Leonhard Stall.” The inforrtíation alleged that the defendant stole certain money, “the property of Leonhard Stoll.” The prosecuting witness testified that his name was Leon Stoll.

There is no substantial variance in sound between Stall and Stoll and they are the same names.

In Wilson v. Turner, 81 Ill. 402, where the name of the plaintiff was Elizabeth H. Turner and the note sued on was payable to “Lizia H. Turner,” it was lield that the presumption might he indulged that the word “Lizia” in the connection used was a contraction of the name Elizabeth, the Christian name of the plaintiff. Here the prosecuting witness wrote his Christian name in signing the information and affidavit, “Leonhard,” and testified that his name was “Leon.” Leon is a contraction of “Leonhard.” It means a lion; “Leonhard” means brave or strong as a lion; and we think that in the connection used the presumption may he indulged that the Christian name of the prosecuting witness was “Leonhard” and that the word “Leon” is a contraction of the word “Leon-hard.”

The defendant offered no evidence on the trial. We think that from the evidence the jury might properly find the defendant guilty as charged in the information, and the judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Barney J. Grogan, Plaintiff in Error.
    Gen. No. 18,766.
    1. CoNtempt — in applying to 'become surety on bail bond. A finding of tlie court that defendant is guilty of contempt in making an application to become surety on a bail bond is not sustained where there is no evidence that a misstatement in the application was made for the purpose of deceiving the judge or inducing him to accept defendant as surety.
    2. Contempt — where misstatement is made to another judge. Where the court sends one applying to be accepted as surety on a bail bond to another judge who approves the bond, a misstatement made to this judge is not a contempt of court in the court where the bond is required.
    3. Contempt — answer cannot be traversed. In a prosecution on behalf of the People for contempt, the answer of respondent cannot be traversed and must be taken as true.

      4. Contempt — where answer is inconsistent. Where an answer in contempt proceedings states facts that are inconsistent with respondent’s avowed purpose and intention as stated in his answer, the court is at liberty to draw its own inferences from the facts stated.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed March 24, 1913.
    J. W. SuttoN, for plaintiff in error.
    Maclay HoyNe, for defendant in error; Zach Hoe-heimer, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error Grogan was by a branch of the Municipal Court, held by Judge Gemmill, adjudged guilty of contempt of court, fined $200, and to reverse such judgment prosecutes this writ of error. August 17, 1912, William Waite was required by the Municipal Court to give bond in the sum of $2,500 to answer a charge of malicious mischief. Grogan applied to the clerk of the court to become surety for Waite. The clerk prepared a bond and an affidavit as to the sufficiency of Grogan to become such surety, which was signed by him and sworn to by him before the clerk. He then took the bond and affidavit to Judge Wells of the Municipal Court to have the bond approved. Judge Wells examined him and among other questions asked him if he was on any other bond, and he answered that he was on a bond for $1,000 and was on several “disorderly” bonds, but thought they had been disposed of. The judge asked him if the property, 209 South Centre avenue, which the affidavit stated was worth $6,250, was not worth more than that sum, and he answered that he paid $6,250 for the property and had expended $3,800 for improvements thereon. The judge then asked if the property was worth $10,000 and he answered that it was. The judge then struck out “$6,250” and inserted “$10,000.” Grogan in answer to questions of the judge stated that he owned three hundred acres of land in Jefferson county, Wisconsin, worth $50,000; that said real estate was clear of incumbrance and that he was worth over and above his indebtedness $100,000. Judge Wells inserted in the affidavit Grogan’s statement as to the Wisconsin land, reswore him to the affidavit and approved the bond. _

The state’s attorney filed a petition in the Municipal Court alleging that Grogan “made application for a bond” before Judge Wells and in said “application for bail,” sworn to before Judge Wells, in answer to the question, “Are you surety for any one else; if so, for what amount and for what?” answered, “Yes, $1,000;” that Grogan was then surety on three bonds of $400 each in cases brought by the City of Chicago and on one bond for $1,000 in a prosecution in the name of the People of the State of Illinois; that since the application for bail was made the defendant in one case brought by the city had been fined and that Grogan was still “surety for the other defendant in the sum of $1,800 and not in $1,000 as stated in his said application for bail before said Judge Wells.” The concluding portion of the petition is as follows: “Wherefore your petitioner asks that this Honorable court enter a rule on said Barney J. Gro-gan to show cause why he should not be held in contempt of this court for his practices of deceit and misrepresentation upon one of the Honorable Judges of said Municipal Court of Chicago, as hereinbefore shown.” This is not an averment that Grogan had practiced fraud or deceit on a Judge of the Municipal Court, nor is there in the petition any allegation that the misstatement by Grogan in his affidavit as to the amount for which he was surety was made for the purpose of deceiving Judge Wells or inducing him to accept Grogan as surety when he would not, but for such misstatement, have accepted him.

The only evidence introduced or offered in support of the petition was the bonds mentioned in the petition and accompanying affidavit. The respondent answered the petition, stating that he answered fairly and frankly the questions propounded to him by Judge Wells and believed at the time that the answers were true, and that he then believed that the said city cases had been disposed of; that he did not intend to make any false representation as to his property and had no intention to practice fraud or deceit on Judge Wells. He testified as a witness on his own behalf, and his testimony tended to support the averments of his answer.

The finding of the court was that the defendant practiced deceit and misrepresentation in answering said questions and that, “he is, by reason of said conduct of the defendant in disobeying the order of the Court as aforesaid, guilty of a direct contempt of this Court in open court.”

The defendant disobeyed no order of the court, for Judge Wells made no order that defendant do or refrain from doing anything. He was not guilty of contempt of court in open court, for the application to accept him as surety was made to Judge Wells, not to the court, and the bond was approved by the judge, not by the court.

This is a prosecution in behalf of the people and it is a cardinal rule that in such proceedings for contempt the answer of the respondent cannot be traversed and must be taken as true. 4 Black Com. 289. If the answer states facts that are inconsistent with respondent’s avowed purpose and intention as stated in ids answer, the court will be at liberty to draw its own inferences from the facts stated. In re May, 2 Flippin, 562. In the answer in this case no facts are stated inconsistent with respondent’s purpose and intention as stated in his answer.

But waiving all technical objections, we think that the evidence fails to show that the respondent intended to deceive Judge Wells or induce Mm by misstatements to accept respondent as surety on a bond, when, if all tbe facts in relation to tbe bonds on which be was surety bad been stated, be would not bave been accepted. Tbe evidence that respondent was worth over and above bis indebtedness $100,000; that be owned in fee clear of incumbrance real estate in Chicago worth $10,000 and for wbicb be bad paid within about two years in purchase price and improvements $10,000, and that be owned three hundred acres of land in Wisconsin worth $50,000, wbicb was clear of in-cumbrance, is not controverted.

We think that tbe evidence fails to show that tbe respondent was guilty of contempt and that tbe rule to show cause should bave been discharged.

Por tbe reasons indicated tbe judgment of tbe Municipal Court is reversed.

Reversed.


author: Mr. Justice Browe

text:
    Sears, Roebuck & Company, Plaintiff in Error, v. Winchester Repeating Arms Company, Defendant in Error.
    Gen. No. 16,801.
    1. Appeals and buboes — instructions. Where all the evidence is not preserved in the record, defendant in error cannot claim that an erroneous instruction was harmless or that the jury could have reached no other conclusion.
    2. Instructions — MU of exceptions. If an erroneous instruction was not harmful by reason of matters appearing in proof, the ap-pellee or defendant in error should insist upon the bill oí exceptions reciting the evidence before it is signed.
    3. Appeals and eeeoes — MU of exception. Where the sole question raised on appeal is error in instructions, the hill of exceptions need only present enough of the evidence to show the pertinency of the instructions.

      4. BvideNce — ■preponderance. A preponderance of the evidence in favor of plaintiff, however slight, by no means removing all doubt, is sufficient to justify a verdict for plaintiff.
    а. Instructions — as to doubt. An instruction that “if the jury find that the evidence in the case is evenly balanced, and they are in doubt as to whether defendant is indebted to plaintiff, then their verdict should be for defendant,” is misleading as leaving the impression that if evidence was so balanced as to leave a doubt in their minds as to indebtedness of defendant, they must not find for plaintiff.
    б. Instructions — preponderance of evidence. Failure to give an instruction that “if the jury find from the evidence that plaintiff has made out its case by a preponderance of the evidence, as laid in the declaration, the jury should find for the plaintiff” where another instruction, given for defendant, is misleading, is reversible error.
    7. Contracts — minds must meet. Before there can be a contract between two parties, their minds must come together upon all the terms and conditions.
    Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Rehearing denied April 7, 1913.
    Adler & Lederer, for plaintiff in error; FraNCIS Adams, Jr., of counsel.
    Albert H. & HeNry Veeder and Louis C. Ehle, for defendant in error.
   Mr. Justice Browe

delivered tie opinion of tie court.

Tie judgment wiici tiis writ of error is brougit to reverse was one of nil capiat and for costs rendered against tie corporation plaintiff in error iere and plaintiff below, in a suit brougit by it against tie defendant corporation in tie Superior Court.

Tie plaintiff was attempting to recover from the defendant tie sum of $973.51 and interest on a contract for a special rebate on tie purchase of certain fire arms wiici plaintiff purchased from tie defendant in 1904.

Tie defendant contended below and contends iere that no binding contract for such a rebate was ever made by it, and also that if it conld be held to have made such an agreement, it was conditioned, among other things, on the undertaking of the plaintiff not to sell or to offer in print to the trade any of the goods at a price lower than the minimum price feed by the defendant, and that the plaintiff had not kept the agreement in this particular, but had sold and offered in print at such lower price.

The cause was tried below before a jury, which found a verdict for the defendant, on which the judgment complained of was entered. The bill of exceptions brought here as a part of the transcript of the record does not purport to contain all the evidence, but states that “the evidence was contrary and conflicting,” and that the issues were: first, whether or not a contract existed between plaintiff and defendant; second, whether the plaintiff had performed the agreements of said alleged contract on its part to be performed; and, third, whether or not the defendant had broken the alleged contract. It then recites that the plaintiff, to maintain the issues on its part offered evidence, tending to show certain things, and that the defendant offered evidence tending to show certain other things; and that the court then “gave to the jury on behalf of the plaintiff” certain instructions which are set forth in full, and “on behalf of the defendant” certain instructions also set forth, to the giving of which the defendant excepted; and, further, that the plaintiff, by its counsel, asked the court to give each of four instructions set forth, and the court refused to give each of said instructions, to which refusal the defendant excepted.

As the plaintiff in error has raised in this court only the question of error in the instructions, it was only necessary for it to present in the bill of exceptions enough of the evidence to show the pertinency of the instructions. Sidwell v. Lobly, 27 Ill. 438; Illinois Cent. R. Co. v. O’Keefe, 154 Ill. 508. Nor can, in the present state of tlie record here, the defendant in error maintain that an erroneous instruction, if there were one, was not harmful by reason of the justice of its cause as shown by the evidence.

In Schmidt v. Chicago & N. W. R. Co., 83 Ill. 405, 412, the Supreme Court says:

“It is only where the evidence is all preserved in the record, and we can see from it that the jury could have reached no other conclusion than they did had the instructions and all of the rulings been correct, that we will affirm notwithstanding error may have been committed in giving or refusing instructions. In this case the bill of exceptions shows that the evidence was inharmonious. As only legal questions arising on the record are presented, we cannot presume the finding was right in despite of thé errors committed by the court on the trial of the case.”

The Appellate Court of the Third District made the necessary deduction from this rule in the statement in Tipton v. Schuler, 87 Ill. App. 517, that:

“If, as a matter of fact, the erroneous instruction complained of was not harmful by reason of matters appearing in proof, the appellee or the defendant in error should have insisted upon the bill of exceptions reciting the evidence before it was signed.”

We are in this cause, therefore, limited to passing on the accuracy of the instructions given and on the question whether the refusal of those rejected was justified. The plaintiff in error confines his argument to the giving of instruction numbered 4, the giving of instruction numbered 8, and the refusal of instruction numbered 9.

Instruction 4 (given) was this:

“If the jury find that the evidence in this case is evenly balanced and they are in doubt as to whether defendant is indebted to the plaintiff, then their verdict should be for the defendant.”

Instruction 9 (refused) was as follows:

“The court instructs the jury that if they find from the evidence that the plaintiff has made out its case by a preponderance of tbe evidence as laid in its declaration, then tbe jury sbonld find for tbe plaintiff.”

We are of tbe opinion that giving tbe first and refusing tbe second of these instructions, taken together, constituted reversible error.

Instruction 4 might naturally tend to mislead tbe jury, for a superficial reading or attention to it might well leave tbe impression that it meant that if the evidence were so balanced as to leave a doubt in their minds as to tbe indebtedness • of tbe defendant, they must not find for tbe plaintiff, — a proposition which is manifestly erroneous. A preponderance of tbe evidence, however slight, in favor of tbe plaintiff, by no means removing all doubt, would have been sufficient to justify a verdict for it. And it was precisely an emphasis on this point which tbe plaintiff sought by instruction 9, which has been often held unobjectionable. Chicago & J. Elec. R. Co. v. Patton, 219 Ill. 214.

It is true that instruction 4 does not actually read as we have said it might be misread; and it is not so much as inaccurate as misleading that we must condemn it. Under the construction which defendant insists it should bear, the words “and they are in doubt as to whether defendant is indebted to the plaintiff” are purely surplusage. Without them the instruction would state the truth; but even if it were so given, a refusal to supplement it with the tendered instruction 9 could hardly have been justified. With the words in question in instruction 4 we think the refusal to give 9 was reversible error, and we think instruction 4 misleading.

Instruction 8 (given) was:

“The eourt instructs the jury that before there can be a contract between two parties, the minds of the two parties must come together upon all the terms and conditions of the contract, or, as is sometimes said, ‘the minds of the contracting parties must meet.’ ”

We do not see the objections to this instruction which counsel for plaintiff in error finds to it.

But for tlie refusal of instruction 9, in connection with the giving of instruction 4, the judgment is reversed and the cause remanded.

Reversed, and remanded.


author: Mr. Justice Browu

text:
    John Riordan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,945.
    1. Street railroads — duty to laborer on track. A declaration which in substance states that plaintiff was employed in a gang cleaning sewers through manholes which were located in a narrow space between street railway tracts, and was injured by two cars approaching in opposite directions, which were not stopped although signaled to, and that plaintiff’s unsafe condition was known to defendant’s servants, is sufficient to point out a duty and charge a negligent breach constituting a cause of action.
    2. Torts — liability. Liability only follows a negligent or reckless act when the party guilty of the act owes to the party injured some duty which is violated by the commission of the negligent or reckless act.
    3. Negligence — elements of cause of action. In an action on the case the constituent elements of proof required by plaintiff are: (1) That plaintiff was exercising due care for his own safety at and just prior to accident; (2) that defendant was guilty of negligence in the manner charged; (3) that such negligence was the proximate cause of injuries.
    4. Negligence — exercise of clue care to be alleged. It is necessary for plaintiff, in order to show a complete cause of action, to aver that he was at the time in the exercise of due care for his own safety.
    5. Negligence — pleading exercise of due care. The phrase “while the plaintiff was exercising ordinary care and caution for his own safety,” in a declaration by one injured by street cars while he was working between tracks, held under the circumstances alleged to refer to time of approach of cars as well as of the actual passing.
    6. Pleading — declaration. The purpose of a declaration is to state the cause of complaint clearly so that defendant will know what he has to meet.

      7. Pleading — allegation of duty. The description of a situation may show a duty without the direct allegation of such duty.
    8. Pleading — declaration must allege facts. The mere use of an adverb describing an act, such as “negligently,” will not of itself make that act actionable.
    9. Pleading — defects cured by verdict. Allegations that might not have been regarded specific enough on demurrer may become so after verdict on motion in arrest of judgment.
    10. Pleading — arrest of judgment. To justify denial of motion in arrest of judgment, it is only necessary that one count should state a cause of action.
    11. Instructions — preponderance of evidence. An instruction that the “plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence,” is less open to objection than instructions concerning the amount of preponderance required.
    12. Instructions — assuming negligence. Instructing the jury that if they believe from the evidence that plaintiff “was injured as a direct result and in consequence of defendant’s negligence, as charged,” etc., then they should find defendant guilty, does not assume that the facts charged constituted negligence as 'matter of law.
    13. Negligence — contributory. There is no specific rule concerning contributory negligence, its existence depends on the particular facts.
    14. Practice — leading questions. The objection to leading questions largely rests in the discretion of the trial court where not abused.
    15. Street railroads — contributory negligence. Where plaintiff, a laborer employed as a member of a sewer cleaning gang, was caught between street cars while between the tracks and injured, it is proper, as bearing on his contributory negligence, to show what orders had been given him by his foreman.
    16. Street railroads — contributory negligence. Contributory negligence of a laborer working between street railroad tracks as a member of a sewer cleaning gang held a question for the jury in an action for an injury sustained by being caught between passing cars.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 24, 1913.
    John E. Kehoe and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    James C. McShane, for appellee.
   Mr. Justice Browu

delivered the opinion of the court.

The appellee, John Riordan, on April 16, 1910, recovered in the Superior Court of Cook county on the verdict of a jury a judgment against the appellant, the Chicago City Railway Company, for $3,000 as damages for personal injuries received by him through the alleged negligence of the defendant company. Prom this judgment the defendant company has appealed to this court. It here assigns as error various matters, insisting in argument on four propositions, which we will discuss in a different order from that chosen by the appellant.

The first question which we think should he determined by us is whether the appellant is correct in asserting that the court below instead of overruling should have sustained the motion in arrest of judgment on the ground that neither of the two counts of the plaintiff’s declaration stated a cause of action.

The first count of the declaration alleges that on the 9th day of March, 1908, the defendant Company owned and operated a street railway with two parallel tracks a few feet only apart on Root street in Chicago, using one track for east-bound and the other for west-hound cars; that the plaintiff was employed by the city at that time as one of a gang to clean sewers; that the city had a sewer extending longitudinally along Root street beneath the space between said two tracks; that there was a number of - manholes between said two tracks opening into said sewer; that the plaintiff was on said day, with other members of his gang, cleaning and raising dirt out of the sewer up through one of said manholes, a short distance east of Union avenue; that to do this work it was necessary that he and other members of the gang should stand between said tracks in a space too narrow for a person to stand in safety there when cars moving in opposite directions upon said tracks were passing each other; all of which the defendant knew; that the de-fondant was at tins time operating two certain street cars in opposite directions along said tracks np toward and close to the point where the plaintiff and his fellow workmen and the manhole were situated; that in the ordinary and customary prosecution of said work, the defendant was accustomed to stop its said cars before reaching any point where the said gang were so cleaning sewers, and not to attempt to run said cars past each other at such a point until said gang were out of the way; that as the said cars were so approaching said place and each other the plaintiff and his fellow workmen were in plain view of defendant’s servants in charge of the management, operation and control of said cars; that he and his fellow workmen signaled and notified the operatives in charge of the cars to stop said cars until he and his fellow workmen could get out of the way; that the defendant nevertheless by “its operatives so in charge of the management, operation and control of said cars, then and there wrongfully, negligently and improperly ran said cars past each other at the time and place where plaintiff and his fellow workmen were as aforesaid,” and as a direct result thereof, while he was exercising ordinary care for his own safety, he was caught and crushed between said cars and seriously injured.

The second count alleges the same matters with little variation. It says nothing about the customary way of doing things in this situation, but alleges that while the plaintiff and another member of the city’s said gang, with a certain ladder and other appliances, were so engaged in cleaning said sewer through said manhole, and while he and his said fellow workmen were upon one of said tracks and between said tracks in the performance of their work, and while plaintiff was exercising ordinary care and caution for his own safety, and when the defendant’s servants so in charge of the operation of said cars knew of his presence and the presence of his fellow workmen, and although the space between the tracks was so narrow that a person could not stand in safety between said tracks when cars moving in opposite directions passed each other on said tracks, defendant’s said servants so negligently, carelessly and improperly ran, managed and operated said ears np toward and past the place where plaintiff and his fellow workmen were as aforesaid, that as a direct result of the negligent, careless, and improper manner in which the defendant ran, managed and operated said cars, the plaintiff was caught and crushed between said cars as said cars were passing each other, and he was thereby injured.

If the purpose of a declaration is to state the cause of complaint clearly, so that the defendant will know what he has to meet, it would seem that this declaration met the requirement.

The allegations certainly did state what was complained of clearly. If these things did not constitute' a cause of action, the defendant would naturally have demurred instead of pleading. Allegations that might not have been regarded as specific enough before verdict became so after verdict, and we think in this case, had there been any doubt as to sustaining the declaration on demurrer, there could be none on the motion in arrest. But we do not think that the declaration fails to state a complete cause of action or should have been held bad on demurrer. It is true, as appellant argues, that the mere use of an adverb describing an act will not by itself make that act actionable, and that as the Supreme Court has said, “Liability only follows a negligent or reckless act when the party guilty of the act owes to the party injured some duty which is violated by the commission of the negligent or reckless act.” McAndrews v. Chicago, L. S. & E. E. Co., 222 Ill. 232.

But if it is true that the mere use of the word “negligently” does not show that a described act was the violation of a duty, it is also true that the description of a situation may show a duty without the direct allegation of such a duty. "When the plaintiff in the case at bar stated in bis declaration tbat to do bis work it was necessary for bim to stand between tbe tracks in a space too narrow for one to stand when cars moving in opposite directions were passing each other, and tbat tbe defendant knew tbis and was accustomed to stop its cars before reaching tbe sewer cleaning gang to which plaintiff belonged, and tbat at tbis time tbe plaintiff and bis companions signalled tbe operators of tbe cars, who bad them in plain sight, to stop tbe cars until they could get out of tbe way, be stated circumstances tbat showed a duty of which tbe allegation tbat tbe defendant, by its agents, ran said cars past each other at tbe time and place where said plaintiff and bis fellow workmen were located, charged a breach. It did not even require, in our opinion, tbe use of tbe words “wrongfully, negligently and improperly” to make tbis a charge of negligence. It is true tbat under our decisions it was necessary for plaintiff to aver, in order to show a complete cause of action, tbat be was at tbe time in tbe exercise of due care for bis own safety; but tbis be did aver.

Under tbe circumstances shown in tbis case it is mere bypercriticism to say tbat tbe phrase “while the plaintiff was exercising ordinary care and caution for bis own safety” does not refer to tbe time of tbe approach as well as of tbe actual passing or juxtaposition of tbe cars.

It is only necessary tbat one count of tbe declaration should state a complete cause of action to justify tbe denial of tbe motion in arrest, but we think its second count no less than tbe first states such a cause and for tbe same reasons. Tbe circumstances alleged pointed out a duty and a breach of it on tbe part of tbe defendant.

Tbe next position of tbe appellant demanding attention is tbat improper and incompetent evidence offered by the plaintiff and objected to by tbe defendant Company was admitted on tbe trial of tbe cause.

Tbe objections which are here insisted on as valid, the overruling of which’is said to have been reversible error, are of three classes — those to evidence offered of orders from the foreman of the gang to the plaintiff always to stand close to the hole; those to proof that this foreman was an employe of the city, and those to leading questions.

The objection to leading questions is one largely resting in the discretion of a trial court, and we do not think in this case the discretion was abused.

Nor do we regard the introduction of the evidence complained of as incompetent to be error. The alleged contributory negligence of the plaintiff, the want of due care for himself, that is, immediately before and at the time of the injury, was made below and is made in this court the chief matter of defense.

It seems to go without saying that in an inquiry as to this matter, it was competent to show the nature of the plaintiff’s employment, why he was at any time in the given place in the line of an advancing car, for example, or between the tracks in a space too. narrow for safety while cars were passing each other. That his foreman was a city employe merely followed from his being foreman of the gang; it was a fair inference from the evidence given, but does not seem to have been insisted on or emphasized except by innuendo of the defendant’s counsel. It was of no consequence one way or the other.

A third position of the defendant involves alleged error in instructions. Two instructions which were given to the jury at the request of the plaintiff are attacked by appellant in the argument of this appeal as erroneous. The first of these was instruction 4, as follows:

“The jury are instructed that the plaintiff is not bound to prove his case beyond a reasonable doubt, but is merely bound to prove it by a preponderance of the evidence.”

This instruction does not undertake to declare either directly or indirectly the constituents of the plaintiff’s “case;” it merely relates to the primary rule of evi-deuce in civil as distinguished from criminal cases. It is much, less open to criticism, we think, than instructions concerning the amount of preponderance required, which have been declared unexceptionable. It has been approved in express terms by the Supreme Court. Pierson v. Lyon & Healy, 243 Ill. 370, and cases therein cited.

Instruction 4 was immediately followed by instruction 5, which is also attacked. It is as follows :

“You are instructed that if you believe from the evidence that the plaintiff, while in the exercise of ordinary care for his own safety, — if you believe from the evidence that he was in the exercise of such care— was injured as a direct result and in consequence of the negligence of the defendant as charged in the declaration, or one of the counts thereof, if you believe from the evidence that the defendant was so negligent, then you should find the defendant guilty.”

That this instruction could have been understood by the jury to assume that the action of the servants of the Eailroad Company charged in the declaration was negligent as a matter of law, which seems to be the argument of the appellant, we do not believe, especially in view of the fact that the cause was submitted to it with an instruction asked by the defendant to the effect that if they believed from the evidence that the defendant exercised at all times ordinary care and caution to avoid injuring the plaintiff, but that nevertheless he was injured, they should find the defendant not guilty.

It certainly no more suggested such an assumption than another instruction given at the defendant’s request, which tabulated the three necessary constituents of the case for the plaintiff to prove in order to recover — as

First: That the plaintiff was exercising ordinary care, caution and vigilance for his own safety at and just prior to the time of the accident in question.

Second: That the defendant was guilty of aegli-gence in the manner charged in the declaration or one of the counts thereof.

Third: That such negligence was the proximate, direct cause of the injuries in question.

However, although in our opinion the questions for the jury were rightly stated in both these instructions, it is equally, in our opinion, true that no harm practically could have resulted from such a construction or misconstruction as the appellant imagines might have been put on the first.

In our preceding discussion of the sufficiency of each count of the declaration we have indicated why we believe that the statements made therein show a duty and a breach of it. If there was a duty under the circumstances to avoid running the cars past each other when the injured man was between the tracks, as we have said we think there was, then the breach of that duty was either négligent or malicious. That it was the second there is no contention; that it was the first must have been the opinion of all reasonable men.

Of course an essential part of the circumstances charged which made the alleged action of the defendant negligence, was the knowledge by the defendant, or the certainty of knowledge had proper care been used, of the presence of the plaintiff in the unsafe place when the cars were run past each other; but this element was involved in their decision of the question which the appellant maintains was the first for them to answer, “Did the defendant commit the acts charged?” Running the cars past each other merely was not the act charged. The act charged was so running the cars while knowing the unsafe position of the plaintiff.

The real and controlling question in this appeal is not on the negligence of the defendant, but is whether the contributory negligence of the plaintiff was so proven that it should have been held by the court to be a matter of law and the case taken from the jury; or that the jury having found for the plaintiff, the verdict should be set aside as against the weight of the evidence.

On this the emphasis of the defendant’s argument is properly enough laid, and it involves the fourth contention of the defendant. Many cases from different jurisdictions are cited and quoted by defendant’s counsel in which persons engaged in work upon railroad tracks, who have been injured by passing trains have been held unentitled to recover because their own negligence materially contributed to the accident. The rule, if a specific rule can be said to exist in cases which must all turn upon their particular facts, and which are all governed by the general doctrines of the .law concerning contributory negligence, was probably well enough expressed by the Supreme Court of Missouri in Clancy v. St. Louis Transit Co., 192 Mo. 615, when it said, as quoted by counsel: “It was * * * negligent for the plaintiff to remain in a dangerous proximity to the track and in such a position that he could not see the approaching car, and to take no precautions whatever looking to his own safety.”

In reality, however, there is no specific rule, and other cases cited as authority have little to do with this one. The difficulty is not in the law, which is perfectly well settled, but in the application of it to the facts of this case.

It does not seem to us that it is necessary and desirable to discuss in detail the varying statements of thq witnesses which together go to show these facts. It is clear to us that the jury had ground in the evidence for believing that the gang to which the plaintiff belonged was engaged in a work which not only justified but required him, under all ordinary circumstances, to stand with a ladder close to the hole into the sewer, where one of the gang was working with the risk of being suddenly overcome by gas; that this was customary and must have been known to the servants of the defendant who were operating cars along the two tracts; that this hole was between the two tracks; that the space between the two tracks rendered the place dangerous when two cars passed each other; that the custom as to running the cars was to check or stop altogether the car when approaching this work and thus gire time to the men to adjust their positions to safety; that when two cars were approaching each other, in a situation like the one involved herein, one east-hound and one west-bound, both cars so regulated their approach that one at least was stopped while the other passed, thus not compelling the men between the tracks to put the width of a track between them and the hole; that the men working here were in sight of the respective motormen; that the gestures in the way of signals made by the defendant were intended and should clearly have been interpreted by both motormen as warnings to both, considering all the circumstances; that for some reason neither motorman slowed or checked the speed of his car; that the plaintiff and his companions had the right to suppose that both servants of the defendant would do what neither of them did, and especially that when one in the sight of the other was coming on regardless of signals, that that other would not fail in the duty of caution; that when the east-bound car did not slow up or stop, as it should have done, it whs not unnatural for the men to step to the west-bound track, as all three of them on the ground did do (which is in itself significant); that in so doing they had a right to suppose the west-bound car was slowing or stopping; that it was at least doubtful whether, after the moment that the plaintiff realized that the east-bound car was not going to slacken speed he could have crossed ahead of it with safety; that he was suddenly, through no fault of his own, placed in a position of great danger; that he did what was natural and he thought best under the circumstances; and that in consequence of neither car stopping or slowing, but swiftly passing each other without regard to the warnings given them, the plaintiff was injured.

If they did so believe, it was their duty to find the defendant liable. We do not think that they should have been peremptorily instructed to the contrary or that the verdict was clearly against the weight of the evidence. Therefore the judgment is affirmed.

Affirmed.


author: Me. Justice Beowh

text:
    Lipman Omensky and Ida Omensky, Defendants in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 17,178.
    Landloed and tenant — failure to ohtain saloon license. A judgment for rent is sustained though there is a provision in the lease that it shall he void if at any time during the term a saloon license cannot he obtained, where there is no sufficient proof that a license could not have been obtained by reasonable effort.
    Error to the Municipal Court of Chicago; the Hon. J. H. HuME, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    H. A. Daughebty, for plaintiff in error.
    No appearance for defendants in error.
   Me. Justice Beowh

delivered the opinion of the court.

This is a writ of error to reverse a judgment of the Municipal Court of Chicago for the sum of $78.62 rendered on November 5, 1910, in favor of the plaintiffs (defendants in error here) against the defendant corporation (plaintiff in error here). The judgment was for rent of certain premises at the corner of Hastings and Baffin streets in Chicago for the month of February, 1910, and the first eleven days of March, 1910, at $70 a month. This was the amount of rent reserved in a written lease of said premises from the plaintiff to the defendant corporation under date of January 9, 1909, leasing the premises in question from May 1, 1909, to April 30, 1911. On the amount which it was computed would have been due for the premises for the month and eleven days involved, $14 was credited by the plaintiffs — that amount having been collected by them from occupants of a portion of the premises which the plaintiffs, after their abandonment by the defendant, had been able to let. With this credit there was claimed as due for said rent $76.52. The jury added $2.10 interest to this amount in their verdict, making the amount of the judgment recovered.

The defense made in the cause was that one of the conditions of the lease was as follows:

“If at any time during the term of this lease or during the option of renewal given in this lease, a City of Chicago Saloon License cannot be obtained for these premises, it is hereby agreed that upon the lessee giving thirty days notice to lessor, that after the expiration of said notice, this lease and agreement shall be null and void;”

and that such license could not be obtained and that the notice required by this provision of the lease was duly served.

For much the same reasons for which the Branch Appellate Court, speaking through, Mr. Justice Fitch, in the cause between the same parties (172 Ill. App, 507), brought to this court in an effort to reverse a judgment for rent under this lease for the month of January, 1910, affirmed that judgment, we must hold that the defendant Company did not establish this defense in this case.

It is true that the evidence was not identical and that an additional witness was introduced by the defendant. Mr. Flanagan’s seemingly evasive and inconclusive testimony, however, does not, to our .mind, render less true in this case than in that, that there is no sufficient proof in the record that “Ryan’s license or some other could not have been obtained by reasonable effort nor that a new license for a new tenant could not have been obtained in the same manner as it had been obtained and used for said premises during the six months prior to November 1, 1909.”

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Browk

text:
    Nachman Drosdoff, Defendant in Error, v. Henry Fetzer, Plaintiff in Error.
    Gen. No. 17,189.
    1. Sales — misrepresentation. Testimony which leaves a suspicion that defendant was not over scrupulous in “puffing” the value of the good-will in the sale of a store is not sufficient evidence to avoid the contract for misrepresentation.
    2. Sales — rescission T)y mutual consent. Where defendant because of plaintiff’s dissatisfaction retakes possession of a store which he had sold to plaintiff the day before, there is a rescission by mutual consent and defendant will be required to return the money received as part payment.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the March -term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    Robeet E. Cahtwell, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Browk

delivered the opinion of the court.

The plaintiff in error, Henry Petzer, before September 2, 1910, was the proprietor of a grocery store at 412 West Division street in Chicago. On that day he entered into an agreement with the defendant in error, Nachman Drosdoff, the memorandum of which reduced to writing was introduced in evidence in this case in the court below. It reads as follows:

“Chicago, 9/2/10.
Deceived of Nachman Drosdoff check for $200.00 as part of the purchase price of all goods and fixtures and good will contained in store at 412 W. Division St., balance of $975 to be paid of Henry Fetzer on the condition that the lease can be transferred, also on the condition that said Henry Fetzer can not engage in the retail grocery business within a radius of 4 blocks square for 5 years. It is further agreed that Nachman Drosdoff will pay Henry Fetzer $200 on Sept. 6, 1910, to apply on the balance providing the lease has not been as yet transferred. Balance to be paid when the lease is transferred.”
This paper, or the copy of it as it appears in the transcript of the record in this case, is not signed, but the testimony of Drosdoff is that it was signed by both, parties.
Drosdoff took the store, he says, and “started to run the business.” Twenty-three hours afterward he had discovered, he says, that representations made to him as to the amount of business done by the store, that is, in effect, the “good will,” were false. He asked Fet-zer to return him the two hundred dollars he had paid and take back the store. During this twenty-three hours he had sold goods to the amount of $19 (which amount he had received), and had bought goods and put them in stock to the amount of $29. In answer to questions put to him by his counsel in the trial below: “When did you surrender the store; when did you give it up?” Drosdoff answered: “On Saturday afternoon. ° * ® I had it about twenty-three hours,
but I did not like it. ’ ’

Fetzer testified that Drosdoff took the store on Friday afternoon and on Saturday morning met him and reported that Mrs. Drosdoff was dissatisfied with the store and that he wished to be let off his bargain. In answer to the question, “What happened?” Fetzer testified:

“Well, when I saw the man was dissatisfied I went over to see the landlord and I asked him, I says, ‘We can’t get the lease transferred until next week because the landlord is ont of town.’ I says that to Mr. Dros-doff at half past one on Saturday, and he says to me, ‘I have destroyed the lease with my two hundred dollars on it; my wife is dissatisfied and she is always a-crying about it.’ I says to him then, ‘I am sorry for yon, but yon certainly had lots of time to look the store over and yon stayed in there some three or four days and yon should have decided at that time; it is too late now.’ ”

This testimony is not particularly clear, especially as to the “transfer of the lease;” and neither Dros-doff nor Fetzer said on the trial below anything’ further as to what became of the store and its contents after Drosdoff left it. But from the testimony of one Michael Scanlon, a clerk of Fetzer in the store in question, it would appear — although none too clearly — • not only, as is conceded, that Fetzer took possession of the store on the “Saturday” in question, but also that he ran it for ten or twelve weeks and then closed it up and moved out the fixtures.

However that may be, it is evident from the preliminary affidavits and statements of the parties in the case at bar, that Drosdoff left the store and that Fetzer took possession of it again on that Saturday, but did not then or afterward return to Drosdoff the $200 he had received. Drosdoff therefore sued him in the Municipal Court of Chicago.

In his statement of claim Drosdoff alleges that he made the agreement heretofore mentioned to purchase the store, that he paid $200 as a part of the purchase price and took possession thereof. He then makes allegations concerning misrepresentations of the amount of business done by the store before the purchase, and proceeds:

“The plaintiff then surrendered the possession of said store to the said defendant, who received and accepted possession thereof, and wholly refused to return to tlie plaintiff herein the said sum of Two Hundred Dollars. ”

Fetzer thereupon entered his appearance and filed an affidavit of merits of defense, in which he admitted the agreement of purchase and sale and “that in pursuance to said agreement the defendant accepted for plaintiff the sum of Two Hundred Dollars ($200) as a part of the purchase price thereof, and that the said plaintiff took possession, of said store under said contract.” The affidavit proceeds: “Defendant further admits that he retook possession of said store at plaintiff’s special instance and request.” Then denying any misrepresentations, the affiant also denies that the plaintiff at any time before the filing of the suit requested the return of the two hundred dollars. The defendant also filed a claim in set-off, in which he sets up the sale for $1175, and then says:

“The receipt of two hundred dollars of said consideration is hereby acknowledged as having been received under said contract. Defendant further alleges that after plaintiff had occupied said store for a day he requested this defendant to retake possession thereof and that defendant hereto demanded of plaintiff the balance due under said contract, which plaintiff wholly refused to pay, and that defendant accepted possession of said store because he considered it absolutely necessary in order to protect the goods therein, and that he did not accept possession until plaintiff had abandoned or surrendered possession of same.”

The claim is then made for $975 damages against the plaintiff.

The court on the trial found the issues against the defendant, assessed the plaintiff’s damages at $200 and entered judgment in his favor against the defendant for that amount. The defendant is by this writ of error endeavoring to reverse this judgment.

We think the judgment should be affirmed. There is no sufficient evidence of misrepresentation that would avoid the contract, although the testimony leaves some suspicion of not over scrupulous “puffing” of the value of the good will sold.

But we should not consider the judgment justified if it had to rest upon this.

The statement of the matter, however, by the defendant himself in his affidavit of merits and in his counterclaim, borne out as it is also by the meagre evidence on the subject, shows what the law calls and makes a rescission of this contract by mutual consent, despite the attempt to put another aspect on it. In case of such rescissions the parties should be put by each other as nearly as possible in the “statu quo ante, etc.,” and the law will compel a final adjustment to this end where only a part of it has been made.

The judgment is affirmed.

'Affirmed.


author: Mr. Justice BeowN

text:
    William M. P. Wolf for use of S. T. Atkins, Defendant in Error, v. A. F. Lake, Plaintiff in Error.
    Gen. No. 17,230.
    1. Pleading — reference to usee as “plaintiff.” Where an action is brought by one person for the use of another, it is immaterial that the statement of claim refers to the beneficial usee as “plaintiff.”
    2. VendoR and tondee — earnest money. Where a contract for the sale of land provides that the earnest money shall be held by defendant, agent of the vendor, for the mutual benefit of the parties, and in case the purchaser fails to complete the contract shall be forfeited as liquidated damages, defendant does not become liable to plaintiff, the purchaser, in paying the money to the vendor after the plaintiff has refused to complete the contract.
    3. Vendor and vendee — when continuation of abstract is waived. In an action to recover earnest money paid on a contract for the purchase of land, plaintiff cannot excuse his failure to complete the contract by showing the abstract was not continued to date, where it is proved that the continuation was waived.
    4. Appeals and errors — disposition of cause. Where an improper judgment is rendered in a cause tried below without a jury, the appellate court will, in disposing of it, render such judgment as should have been rendered.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jb., Judge, presiding. Heard in this court at the March term, 1911.
    Reversed and judgment here.
    Opinion filed March 24, 1913.
    A. E. Lake, for plaintiff in error.
    Charles E. Selleck, for defendant in error.
   Mr. Justice BeowN

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago sued out to reverse a judgment of that court for $150 in favor of the plaintiff below, defendant in error here, ¥m. M. P. Wolf, against A. F. Lake, the defendant below and plaintiff in error here. On September 20, 1909, Wm. M. P. Wolf signed a contract, which Lake also signed, as follows: “H. D. Maize by A. E. Lake, his attorney.” This contract was for the purchase by Wolf and the sale by Maize of certain property in Western Springs in this county. The parts of the contract essential to consider in this controversy follow:

“This memorandum witnesseth: that H. D. Maize hereby agrees to sell and W. P. Wolf agrees to purchase at the price of sixty-nine hundred dollars the following described real estate situated in Cook County, Illinois: Lot, etc., * * * subject to Deed of Trust for $5100.00 due May 1,1911, which purchaser agrees to assume. Said purchaser has paid one hundred and fifty dollars as earnest money, to be applied on said purchase when consummated and agrees to pay within five days after the title has been examined and found good the further sum of seven hundred fifty dollars * * * provided a good and sufficient warranty deed, conveying to said purchaser a good title to said premises (subject as aforesaid) shall then be ready for delivery. * * A complete Abstract of Title or merchantable copy to be furnished ivithin a reasonable time, with a continuation thereof brought down to this date. In case the title upon examination is found materially defective, within ten days' after said abstract is furnished, then unless the material defects he cured within sixty days after written notice thereof, the said earnest money shall he refunded and this contract shall become inoperative.

“Should said purchaser fail to perform this contract promptly 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 forfeited as liquidated damages including commissions payable by vendor and this contract shall be and become null and void. Time is of the essence of this contract and of all the conditions thereof.

“This contract and earnest money shall be held by A. E. Lake for the mutual benefit of the parties hereto.”

There was delay in the carrying out of this contract and much communication about it between Lake and one S. T. Atkins, who, as a real estate agent, was the negotiator with Lake concerning the execution of the contract in the first instance, and who took the contract away after it was drafted and brought it back signed by Wolf.

October 29, 1909, Lake wrote Wolf the following letter:

“Mr. W. M. P. Wole,
% Samuel T. Atkins,
1038 Stock Exchange Building,
Chicago, Ill.
Dear Sir :
Tour contract with H. D. Maize dated September 20, 1909, for the South West corner of Chestnut and Central streets, Western Springs, Ill., is hereby can-celled at the request' of H. D. Maize for failure to pay the $1650 due thereon according to the terms of said contract, and the $150 which I held has been paid to H. D. Maize as liquidated damages.
Tours respectfully,
Albert E. Lake.”

July 5, 1910, Wolf (for the use of Atkins) brought the suit against both Lake and Maize resulting in the judgment here questioned, alleging in Ms statement of claim that Lake as the ‘‘ escrow holder of said earnest money paid under said contract, wrongfully paid same over to said Maize and said Maize, with full knowledge of same, accepted said earnest money.”

Maize was never served and the suit was prosecuted and the judgment obtained against Lake alone.

The “statement of claim” seemingly refers to Atkins as “Plaintiff” in distinction from Wolf, and in the-argument of this writ of error much emphasis is placed by the plaintiff in error on the want of proof that Atkins was properly a principal in the transaction and entitled to bring the suit.

We agree with counsel for defendant in error as to the entire irrelevancy of this. Whatever incorrect use of the word “plaintiff” was made in the statement of claim. Wolf was the nominal plaintiff, and if does not concern the defendant- what beneficial usee was named in the action. Atkins v. Moore, 82 Ill 241; Schott v. Yonree, 142 Ill. 233.

We agree also with the counsel for defendant in error in the position which he takes in his brief and. argument, that the real question at issue in this case is whether Atkins representing Wolf waived the continuation to date of the abstract involved in this controversy. If, there being no sneh waiver. Maize did not, through Lake or otherwise, tender an abstract continued to date, he did not under the contract acquire a right to Wolf A earnest money and Lake had no right to pay it over to him.

If, on the other hand, Wolf, through his agent Atkins or otherwise, waived the continuation of said abstract beyond the date of August 30th, to which date an abstract extended that it is conceded was by Lake as agent for Maize delivered to Atkins as agent for Wolf, then, as there is no contention that such objections as were found and insisted on in the opinion of title rendered by the legal adviser of Wolf and Atkins were not sufficiently met, nor any doubt that the “deal” which Atkins had been relying on had failed without the substitution of another, nor any reason to suppose that Wolf could or would have carried out promptly the contract which he had made; it follows that Lake had a right, under the provisions of the contract heretofore quoted, to pay over the money in his hands to Maize as liquidated damages for breach of the contract.

Upon the decision by us of this question must be based the disposition of this suit. We are unable to agree with the learned court below.

As is clearly pointed out by the counsel for defendant in error in his brief, there is on this question a conflict of evidence. Atkins, whose testimony is relied on by the defendant in error, who is in fact ' in one sense the defendant in error himself, and Wolf, who is the plaintiff in error, directly clash in their statements.

Atkins, testified, according to the statement of facts filed in the cause:

“I obtained the abstract from a Mr. Winkler and had an examination made of it, but said abstract was only brought down to August 30th. After I had had the examination made I delivered it to Mr. Lake and requested him to have it brought down to date in accordance with the contract, but he refused to have the continuation made. The examination I had made was by L. J. Atkins, a lawyer, and dated October 4, 1909.” (It seems to be conceded that Winkler was the holder of the incumbrance mentioned in the contract.)

A. E. Lake on the other hand testified:

“I gave Mr. Atkins an order on Mr. Winkler for the abstract, and explained to him that it had been brought down to August 30th, and that as Mr. Maize lived in. Springfield, Ohio, there were no judgments here against him, and that if his party was anxious to close the deal, it might save him some time not to have the abstract brought down. Mr. Atkins said that under the circumstances he saw no necessity for having the continuation made, and that lie would take it np with Mr. Jones and if it was not brought down, examine the tract book and see if any transfers had been made since that date. I told him in the event Mr. Jones wanted it brought down to take it to the Chicago Title & Trust Company and instruct them to charge it to my account, which he agreed to do. * * * He returned to the city on or about October 5th and returned the abstract to me. He said the title was satisfactory and that he would have parties close it up on the following day. I talked with Mr. Atkins over the telephone a number of times, and he was in to see me once or twice after October 4th, always asking for delay, but made no objections to the property on account of title and made no request that I have the abstract continued.”

But balanced as the evidence might be considered by these contradictory statements taken by themselves, we feel that the other circumstances and conversations testified to by both parties or by one and not denied by the other, are inconsistent with Mr. Atkins’ testimony and make a clear preponderance of weight in favor of Lake’s. By such other testimony it appears that Atkins in the first instance called on Lake, who had advertised the Maize property for sale, and as a real estate dealer or broker informed himself as to the terms; that after other calls he announced to Lake that he had a purchaser for the property; that he took from Lake the draft of a contract and had Wolf, a hotel porter, sign it, although he told Lake that the party who was really going to buy the property was one Jones, who occupied a responsible position with a large business house; that Lake urged, and Atkins promised, great promptness in the matter, and that Atkins offered as proof that this could be secured assurances that Jones was anxious to move; that Atkins did actually get the abstract from Winkler and have it examined at once, instead of waiting for its continuation; that he brought back to Lake an opinion on it with objections to the title, which objections related solely to taxes and the identity of certain “’Washburnes,” whose residence was variously given in different items of the abstract; that, as he testified himself, he “made no objections to the title, excepting taxes and the residence of the Washburnes, both of which were fixed up by Mr. Lake;” that after this Mr. Lake called up Mr. Jones and Jones told him that Atkins had been trying to sell him the property; that he, Jones, had decided not to take it, and that Lake would better, if he had another purchaser, sell to him; that finally Atkins told him that Jones “had cold feet,” but that he had another party who he thought would take the property.

Atkins himself testified, “I lost my customer and was looking for another party to buy the house.”

•These things make us believe that the waiver of continuation was made so far as the expected sale for which the contract was made is concerned, irrespective of the statement in Lake’s testimony that when Atkins told him that he had another customer for the property than Jones he (Lake) told him that he must act immediately; that he was having the abstract brought down, and that if he seemed another purchaser the abstract would be in shape to prevent any delay if that purchaser required an abstract to date, and irrespective of the statement of Lake connected therewith that at the trial of the case the abstract was in the court room, brought down to October 15. We are therefore not called on to pass on the position of the defendant in error that “an argument based upon an alleged continuation of the abstract of title can not be considered” because the abstract was not offered in evidence.

As this cause was tried below without a jury, we may in disposing of it render such judgment as in our opinion the court below should have rendered.

The judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs in both courts will be entered here against the plaintiff (the defendant in error here) and in favor of the defendant (the plaintiff in error here).

Reversed and judgment here.