text:
    C. T. Barr, Defendant in Error, v. American Copying Company, Plaintiff in Error.
    Gen. No. 13,912.

      Contract—particular instrument construed as one of employment. Held, that the contract set forth in the opinion in this case was one of employment providing a fixed salary and expenses during a specified period rather than one merely of bargain and sale of merchandise.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. • Frank Crowe, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Leslie A. Needham, for plaintiff in error.
    Winston, Payne, Steawn & Shaw, for defendant in error; Edward W. Everett, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in error—the defendant below—is attempting in this court to reverse a judgment for $1,000 against it, entered by the Municipal Court, sitting without a jury, on August 14,1907. The suit was one of the fourth class under the Municipal Court Act.

The parties to it had, on December 5, 1906, made a contract under seal, of some paragraphs of which we give a transcript and of some an abstract:

(Opening paragraphs in full.) “This agreement made and entered into this fifth day of December, 1906, by and between the American Copying Company, a corporation, of the City of Chicago, and State of Illinois, party of the first part, and Mr. C. T. Barr, party of the second part, of the City of Philadelphia and State of New York;

“Witnesseth: That the parties hereto, after a personal interview and examination by said second party of the goods manufactured and sold by said first party, have embodied the result of all previous and present negotiations into this writing, said agreement being as follows, to-wit:

“1. The said first party engages the said second party in the capacity of sales agent to conduct a sales agency in the city of Bochester, State of Hew York, for a period of two (2) years from the date that the sales office is opened for the second party as hereinafter provided for, and for and in consideration of the faithful performance and fulfillment of each and all of the several agreements hereinafter contained and agreed to between the parties—the party of the first part agrees to engage the said second party for a period of twenty-four months, and agrees to pay the party of the second part one hundred and twenty-five dollars ($125) per month, payable as hereinafter provided, and five per cent. (5%) additional commissions on all sales of said office during the continuance of this contract.
“2. The party of the first part agrees, at its own expense, to open and fit up an office or salesroom for the use of the second party at said city, in which the party of the second part shall carry on said business, as herein provided for, and the party of the first part further agrees to sell and deliver to said second party such stock as it manufactures and sells as the trade of said office may require from time to time at forty per cent. (40%) discount from retail or list prices, and to supply merchandise at the same rate for all moneys received from said second party, and to instruct said second party in the details of handling the business until he is sufficiently instructed in the estimation of the said first party.
“At the expiration of the term and fulfillment of this agreement by said second party, the party of the first part further agrees to repurchase from said second party all stock that he may have on hand, purchased from said first party, paying therefor in cash the same prices originally charged him.
“In consideration of the foregoing and subsequent agreements the said second party agrees to the following:”

1. (Abstracted): The party of the second part agrees to become sales agent of the party of the first part for two years, and that he will devote his whole time and efforts to advancing the success of the business, etc.

2. (Abstracted): Second party will supply no stock to purchasers that will in any way demoralize the trade, and only for cash or on short time on security, or to responsible parties. If second party uses due diligence in selling on credit, losses are to be charged as items of expense to business.

3. (In full): “Said second party further agrees to carry a stock of merchandise, amounting to One Thousand Six Hundred and Sixty-six Dollars, 66/100 ($1166.66) at retail or list prices, which shall be an assortment to be selected by the party of the first part, or jointly selected, and to be billed to said second party at Forty Per Cent. (40%) discount from retail prices, amounting to One Thousand Dollars ($1,000) net.”

4. (In full) : “The party of the second part further agrees to furnish the said party of the first part with daily and weekly reports, and at the end of each month'to forward to the party of the first part a report of all business done during the month, giving the names and addresses of any and all agents appointed, a full and accurate statement of expenditures, amount of goods sold, of money collected, and other information regarding the business that may be desired by the party of the first part.”

5. (In full): “As the permanent success of this business will depend upon a reasonable amount of merchandise being sold, it is understood and agreed that the sales of each month shall amount to Five Hundred Dollars, which shall be considered the minimum amount of business necessary to constitute the fulfillment of this contract. If the sales of any month shall not amount to the minimum amount, namely Five Hundred Dollars, and during the succeeding month sales should be in excess of the minimum amount to make up an average of Five Hundred Dollars per month, this contract will thereby be fulfilled in this respect by the party of the first part.

6 ‘ If the sales at the end of the first year shall not have averaged Five Hundred Dollars per month, the party of the first part reserves the right to cancel this contract, if it so desires, and upon such cancellation shall repurchase from said second party all stock that he may have on hand, purchased from said first party, at prices originally charged. All sales to be made by the said second party to agents at a discount of 33% per cent, and to dealers at 25 per cent, from list or retail prices.”

6. (In full): “It is mutually understood and agreed between the parties hereto that said second party shall have the right and authority to collect all moneys for business done through said office, and that at the end of each month, after deducting from the receipts of said office the amount of his own remuneration, to-wit: One Hundred and Twenty-five Dollars, necessary expenses, such as rent, necessary office help, postage, advertising matter, office sundries and commission, all other expenses than those herein mentioned being subject to the approval in writing by the party of the first part, he shall remit with his monthly account the balance to said party of the first part at its office in the City of Chicago. When such remittance is received, the party of the first part shall then replace, as herein provided for, the stock sold during the previous month by the party of the second part, and in ease the minimum amount of business required to be transacted shall not be sufficient to pay the necessary expenses of the office as herein provided for—cost of replacing stock sold— such deficiency shall be made good by the first party at the end of each month.”

7. (Abstracted): In ease of the death of second party before termination of contract, first party will repurchase from the estate of said second party all stock on hand at prices originally charged.

8. (Abstracted): Second party has the right to renew the contract on its expiration.

(Final paragraph—in full): “In consideration of the foregoing covenants and agreements to be kept and performed by the party of the first part, the party of the second part has this day paid to the party of the first part the sum of One Thousand Dollars, the receipt whereof is hereby acknowledged in payment of stock of goods as herein provided.”

This is one of those peculiar agreements, becoming too common in enterprises of this kind, which are evidently purposely ambiguous.

It is impossible even to tell, from its seemingly inconsistent provisions, whether it is contemplated that the “stock of merchandise” “to be billed” to the second party at a thousand dollars, and to be replaced wholly or partly monthly by the party of the first part, and “to be replenished” in certain contingencies by him for the party of the second part, is to be actually the property of the second party or not. From the language just quoted, and from the stipulation that the first party agrees “to sell and deliver it,” it would seem that it was; but on the other hand, the first party does not call the second party a “purchaser,” but “engages him” for a stipulated sum per month and a commission on his sales as- “a sales-agent,” to “conduct a sales agency;” and the second party agrees .to become “a sales agent,” and is to sell the goods only for prices and on conditions dictated by the first party, and then is not to be at the risk of losses from bad debts. He is, moreover, to make to the first party daily, weekly and monthly reports of the business done, and remit all his receipts less a fixed remuneration and office expenses to the first party, in return for which the party of the first part is to replace the goods sold; and finally, it is “in consideration of the foregoing covenants and agreements to be kept and performed by the party of the first part” (not in consideration of the merchandise) that the party of the second part “has paid to the party of the first part the sum of One Thousand Dollars,” although “the receipt” of the same thousand dollars “is acknowledged in payment for a stock of goods as herein provided.”

It is probable that in the event of successful sales of the merchandise involved and a failure to pay over the proceeds to the party of the first part, a construction would be put by the first party on the second party’s rights different from that which would be adopted if the sales did not materialize.

It reminds one of the intention of the legendary sportsman to hit the moving game if it were a deer and miss it if it were a calf.

Since the final paragraph is not consistent with itself or with any one theory of the relations of the parties, it is not astonishing that there is ambiguity also in the provisions concerning the compensation to be paid to the party of the second part and the manner in which it is to be paid. Upon this ambiguity turns the decision of this cause. The party of the second part, the plaintiff in the case, contends that so long as he was not in fault and did the best he could in the business, the party of the first part agreed to pay him monthly a fixed stipend. The party of the first part (the defendant) insists that he only agreed that out of the proceeds of the sales which the plaintiff might make he might retain that certain amount monthly as remuneration. On this theory, if the plaintiff did not sell anything, he was to get nothing for pay.

If this last were the bona fide construction put by the party of the first part on the contract when it was made, we do not believe the minds of the parties ever met on it. However, the contract in question, after some preliminary correspondence, was signed by both parties, and the plaintiff proceeded to open an office in Bo Chester, under its provisions.

In accordance with the contract, plaintiff paid to the defendant one thousand dollars and received from it a great variety of pictures and frames, “billed” at prices aggregating $1,000, and “listed” at prices amounting to $1,666.66, together with “instructions,” etc., about the proper method of disposing of the same so as to make a profitable business.

The business was not a success. The office was opened on January 5,1907. Mr. Barr made many complaints during the month of January to the manager of the Copying Company. He found the prices put on the pictures too high to compete with other dealers. Many of the pictures, he claimed, were imperfect, and the terms on which he was allowed to sell or to authorize sub-agents to sell were impracticable. Correspondence ensued on these lines—complaints by him and attempted justification by the Company’s manager.

On January 31,1907, Mr. Barr sent to the American Copying Company the'following statement:

“Rochester, N. Y., Jan. 31, 1907.
American Copying Company,
Chicago, Ills. Dr.
To C. T. Barr, Manager, Rochester Art Company, “Rochester, N. Y., Jan. 31, 1907.
MONTHLY STATEMENT for January, 1907.
Incidental Expenses:
Ink, Pens, City Guide, Screw Eyes, Cord, Hangers, Nails and other sundries, 50(6 10(6 94(6 20(6 44(6 28^ 30(6 30(6 05(6 35(6..................$ 3.46
5 Incandescent lights for office (not furnished with room) at 18(6............. .90
Postage .. .■........................... 1.44
Advertising for Salesmen $2.34, $1.02, .84, .84......... 5.04
Lettering glass in door to Art Room (authorized by Mr. Utz)................. 1.00
Office rent from Feb. 5, ’07, to March 1, ’07, one month....................... 12.00
Cleaning and varnishing office furniture (authorized by Mr. Utz)............... 2.00
Salary of Manager from Jany. 5, ’07, to Feb. 1, ’07, 26 days at $125 per month month ............................. 104.84
Total Expenses.................... 130.68 Or.
Picture No. 0283 sold 1 copy 50$ less com. 33% and 05%....................... . .31
Balance due for month of January 130.37
“Please remit with Chicago Draft and save expense of collection.”

After some inquiries concerning the failure to acknowledge this communication had been made by Mr. Barr, the Copying Company, under date of February 7, 1907, wrote him returning him the receipted bills, “as” they say, “you will want to keep them on file.” They also say: “We regret to note that your sales for the month have not reached the minimum amount as required in your contract, and we hope that during the second month you will be able to make up for it, so that the two months will average $500 per month, and if you do, the total expenses and salary for two months may be deducted from the receipts of the office.”

Mr. Barr does not seem to have been overwhelmed with these kind expressions, but wrote somewhat indignantly in reply and desired a direct answer to the question—“Do you propose that this office shall make sales of pictures which are to be furnished or which are furnished by you at your prices to the extent of $500 per month, or that shall average that amount throughout the year, before you pay one cent for salary of the manager or for office expenses?” He was unsuccessful in his attempt to get the direct' answer, the Company contenting itself with “the simple explanation that we propose to live up to the terms named in our contract and will fully abide by all the conditions in it.”

They “trusted that this would be satisfactory,” but it was not—to Mr. Barr at least; so after some further correspondence, in which he offered unavailingly to “step down and out” if the Company would take the pictures off his hands and release him from the contract, he informed them that he had been advised that the Company stood in default on the contract, “in view of which fact” he proceeded:

“I take this opportunity to notify you that I desire to cancel the contract that is now in existence between us, and I hereby make the following demand, viz:
* That you return to me the one thousand dollars that was paid to you by me on said contract, for which I stand ready to turn over to you all of the pictures that were received from you on the 5th ultimo, in the same condition as they were received by me from you.
‘ ‘ That you settle in full with cash or by bank draft for my statement of 31st ultimo, which represents the salary of your sales agent and other office expenses to that date, amounting in total to one hundred and thirty dollars and thirty-seven cents, and also that you settle in full with cash or bank draft my salary as your sales agent and other office expenses from February 1st, 1907, to date, amounting in full to one hundred dollars and sixteen cents. Grand total: One Thousand Two Hundred and Thirty Dollars and Fifty-three cents. See statement. * * *
“I make the above demand of you to give you an opportunity to settle the same in full before action is commenced to recover.
“I also inform you at this time that the pictures in question will be boxed forthwith and put in storage, where they will be at your disposal upon compliance with the above demands.”

This demand was not complied with, and after further correspondence Barr brought suit against the Copying Company in the Municipal Court of Chicago, claiming $1,000.

The first bill of particulars stated the claim to be, “for damages for breach of contract entered into between the parties hereto on December 5,1906.”

An amended bill added thereto: “The amount claimed by the plaintiff is the sum of one thousand dollars ($1,000), being the amount advanced by the plaintiff to the defendant, which sum was to he returned to the plaintiff by the defendant upon plaintiff returning or tendering to the defendant certain pictures, and which said sum is due to the plaintiff by reason of the failure of the defendant to keep and perform the conditions in the above mentioned contract.”

During the trial Mr. Barr testified that the pictures sent to him by the defendant he had packed, and that they were in storage in Bochester at the room in which he had originally opened the business. Mr. Graham, the secretary and treasurer of the Copying Company, swore that none of the goods had ever been tendered back to the Company, after which he was asked if he was willing to accept the pictures that he had shipped to Mr. Barr and return him the thousand dollars. He answered “No.” Thereupon, however, counsel for plaintiff offered him the pictures and demanded of him the thousand dollars. But he declined to receive the pictures or turn over the money.

Following this the court found the issues for the plaintiff and assessed the damages at one thousand dollars and, after overruling a motion for a new trial, entered judgment for that amount.

We think the court was right. Without discussing in detail the testimony and documentary evidence which was admitted on the ground that it tended to explain and make clear the meaning which an ambiguous contract bore to the parties who executed it, we are prepared to say that an examination of it has brought us to the conclusion that the contract was understood by the plaintiff to mean that he was to get $125 a month salary and to have his office expenses paid so long as he followed instructions—did his best—or until a cancellation of the contract at the end of the first year, at the option of the Company, for failure to reach a stipulated minimum amount of business; and that it was intended by the managers of the Copying Company that he should so understand it.

If the ambiguity which manifestly exists in the contract' is latent, so that it can be explained by parol testimony, we are of the opinion that it has been explained so as to show the meaning of the contract to be that the $125 and office expenses which were demanded and refused at the beginning of February, 1907, were then due.

If, on the other hand, the ambiguity was, as it seems to us it was, patent, and it was and is for the court to interpret the contract, we think the proper interpretation for us to give to it is the same.

The salary is certainly not made expressly dependent on the sales reaching $500 a month, nor is it made payable only from the receipts of the office. Nor are we impressed with the strength of the argument that it is impliedly so made dependent or so exclusively payable. The argument is indeed to pay the sum “payable as hereinafter provided”—an innocent looking phrase enough in connection with a subsequent provision that the agent should be allowed to deduct it himself from the receipts before accounting for and remitting the balance. If ambiguity had not been desired, and the intention had been to make payment only possible by such deduction, the agreement would have said so.

We think that, construed solely by the light of its own provisions, it made the amount due which was demanded by the statement of January 31st.

If this amount was due, the defendant broke the contract by refusing payment of it.

If the defendant broke the contract in this essential matter, the plaintiff had the right to treat it as can-celled and sue for damages; and, in view of the ambiguity of the contract as to the consideration for the thousand dollars and the ownership of the goods for which the amount was ostensibly paid, he had the right to claim, as a part of those damages, the thousand dollars which he had paid, and to hold the goods at the order of the defendant upon repayment.

It is needless to discuss further than we did at the beginning of this opinion the peculiar character of the phrasing of the contract under which this $1,000 was paid. It was to our mind more in the nature of a deposit or security for the goods delivered to the agent, than purchase money.

Finally, if the written contract was incurably uncertain from ambiguity, the same results would follow from the condition of affairs shown by the evidence outside of the contract.

In any view, the plaintiff evidently claimed less than he was entitled to, in order to bring the case within the fourth class of cases in the Municipal Court, and he has recovered no more than he claimed.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
      The People ex rel. Martin Hayes, Appellee, v. City of Chicago et al., Appellants.

      Gen. No. 13,921.

    1. Civil Service Act-how far courts may review action of commission. It makes no difference whether the review is attempted hy certiorari or in a petition for mandamus; the inquiry which may he made hy the courts is limited to the question whether the commission had jurisdiction and whether it followed the form of proceedings legally applicable in such cases.
    2. Civil Service Act-when written charges before commission state “cause” sufficient to confer jurisdiction. Jurisdiction is conferred upon the commission to punish where the charges allege the doing of anything explicitly forbidden and subjected to punishment by the written rules of discipline provided for the department. So held in a cause where the violation of discipline alleged was the entering by a policeman into a dram-shop while on duty but not while in the discharge thereof.
    Mandamus. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 6, 1908.
    Statement by the Court, This is an appeal by the City of Chicago and the other respondents from a decree of the Circuit Court of Cook county rendered June 21, 1907, and running as follows:
    “This cause coming on this day to be heard and now come the defendants and except to the ruling of the Court overruling the demurrer of defendants to said petition. And now come the defendants by their counsel and elect to stand by their demurrer; whereupon the Court doth order that a writ of mandamus issue under the seal of this Court, directed to the City of Chicago, to the Superintendent of Police of said City, to Joseph Powell, William Prentiss and Prank Wenter, and their successors in office as Civil Service Commissioners of said City, defendants in this cause, commanding said defendants to forthwith place the name of Martin Hayes upon the roster of police Captains and upon the police payroll of said City of Chicago, to the end that said Martin Hayes, relator, may at once enter upon the performance of his duties as police captain, with the same right to continue in the performance thereof, and receive salary therefor, as he had to continue in the performance thereof and receive salary therefor prior to his unlawful removal on October 1, 1906, subject to the laws, rules and ordinances pertaining to police captains of the City of Chicago.”
    The demurrer mentioned in this order was a general one. The petition to which it applied was filed January 30,1907, by “The People at the relation of Martin Hayes.” Its allegations, briefly abstracted, are as follows :
    The City of Chicago is a municipal corporation under the City and Villages Act. It was incorporated under a prior act of the legislature, which created the office of three captains of police in the police department. After the adoption of the City and Village Act by Chicago, and on June 28, 1875, the city council passed an ordinance adopting all the members of the police force then working for the city and all the offices in the department. On April .18, 1881, an executive department of the city was created by ordinance, which consisted of superintendent of police, the secretary to the superintendent and one captain of police for each police district. Said superintendent was the head of the police department, and until the Civil Service Act was adopted had the power of appointment of all members of the department, including captains. The aforesaid ordinance of April 18,1881, provided that captains should be appointed from among the lieutenants and that the superintendent should divide the city into police districts, and that he did thereupon divide said city into fifteen districts.
    The Civil Service Act became operative in Chicago on July 1, 1895, and Civil Service Commissioners appointed. On January 1, 1898, Martin Hayes, the petitioner, was a citizen of the United States more than twenty-one years old, and for more than two years had been a resident of Chicago, and was then a qualified elector of the city, and had never been a defaulter to the city. He had for six years prior been a lieutenant of police, for four years before that a sergeant of police, and for ten years before that a patrolman. On January 1, 1898, he took the civil service examination for captain of police, and passed as duly qualified.
    February 8, 1898, the Civil Service Commission certified to the superintendent of police the name of the petitioner to fill a vacancy among the captains of police and the petitioner entered upon his duties as such captain.
    The petitioner is “still a captain of police in said City of Chicago, duly appointed and qualified and lawfully entitled to all the rights and privileges of said office.”
    The petitioner has never violated any of the rules prescribed by the authorities for the regulation of the Police Department, nor any of the rules of the Civil Service Commission, nor any of the provisions of the Civil Service Act, nor has he ever been reprimanded or disciplined in any way while being a member of said department.
    On August 31, 1906, the superintendent of police filed charges against the petitioner, charging petitioner with the violation of two rules of the department and with neglect of duty. One of the rules was Buie 36, section 2, paragraph 2, and made a policeman liable to punishment, ‘ ‘ reprimand, deduction of pay or dismissal from service, according to the nature and aggravation of the offense,” for “entering any place where intoxicating drinks are sold while on duty, except in the immediate discharge of duty.”
    On October 1, 1906, the Civil Service Commission found the petitioner guilty as charged of “entering a place where intoxicating liquors are sold, while on duty, except in the immediate discharge of duty,” and decided that “he be discharged from the Police Department and from the service of the City of Chicago,” which order was immediately enforced by the superintendent of police.
    The number of police captains since that time has never been as large as the number of police districts, and the office held by the petitioner has never been held by any other person, but the superintendent of police has refused to permit the petitioner to report for duty, and the superintendent and Civil Service Commission have refused to put the petitioner’s name on the pay roll of the city, and the Comptroller of the city has refused to pay his salary.
    This conduct of all these officials is unauthorized and illegal. The Civil Service Commission exceeded its jurisdiction in discharging the petitioner for the offense of which they found him guilty. Said offense is not sufficient offense to justify the judgment or order of discharge from the police department of the City of Chicago.
    The Civil Service Commission have never since the adoption of the Civil Service Act ordered a discharge when an officer has been found guilty of such an offense as petitioner was found guilty of, but always have confined the punishment to a reprimand or a fine of from one to thirty days’ pay and suspension for a period not exceeding thirty days. The Civil Service Commission have many times sentenced an officer for drunkenness on duty only to a fine of from one to thirty days’ pay or to a suspension from one to thirty days.
    While said charges were pending and after the evidence was all heard and the matter was under advisement by the Commission, the Civil Service Commission notified the petitioner that if he would resign from the police department they would exonerate him upon all the charges then pending against him, but upon petitioner’s stating that he would not resign, said Commission thereupon exonerated him upon part of the charges, but found him guilty on one as above set forth.
    The petition then, sets forth the whole of Buie 36 of the Book of Buies governing the Police Department, which rule sets out forty-two offenses for which policemen are subject to the penalties of reprimand, fine or dismissal, as before mentioned. It then charges that:
    “According to the intent, meaning and wording of said rule the offense of which petitioner was found guilty is the most trivial of the offenses enumerated in said rule; there was no aggravation of the offense; there was no repetition of the offense; from the nature of the offense and the finding, it was not such an offense as to cause the offender to be subjected to the greatest penalty therein provided, but should have called for the least punishment therein provided, to-wit, a reprimand or at most a deduction of pay not to exceed thirty days, due or to become due; the judgment and order of discharge was, in the light of said rule, unreasonable, excessive, oppressive and tyrannical, and therefore illegal and unlawful.”
    It also charges that the judgment or order of discharge was entered by the Civil Service Commission in excess of its jurisdiction, was without jurisdiction and void, and that so also was the action of the Superintendent of Police; and that the petitioner has made demands without success on the City, the Superintendent of Police, the Civil Service Commission and .the City Comptroller, to cause Ms name to be placed on the pay-roll, “to the end that he might be enabled to draw Ms salary due to him as a police officer, alike the salary already accrued to him and the salary accruing to him from month to month as such Captain of Police of said City, to wMch he is lawfully entitled;” and that the said salary is $186.50 a month.
    Wherefore the petitioner prays for a mandamus on the City and Superintendent of Police and Civil Service Commissioners and City Comptroller, to forthwith place the name of the petitioner on the roster of police officers and upon the police pay-roll of the City of Chicago.
    Clyde L. Day and George W. Miller, for appellants; Edward J. Brundage, of counsel.
    A. D. Gash, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

We think the Circuit Court erred in overruling the demurrer to this petition for mandamus. It should have been sustained.

The reasons alleged in the petition for granting the writ resolve themselves into this proposition—that the Civil Service Commission was tyrannical, unjust and oppressive in visiting so severe a pumshment on what is claimed to be a comparatively light offense. Moreover, there is an implied charge of an attempted corrupt bargain, contrary to the spirit of the Civil Service Law, by which, if the petitioner would waive his right to protection and resign, he should be acquitted. The conviction is laid to his repudiation of this offer. .

But with these things this court has nothing to do. We stated in the case of Heaney v. The City of Chicago, 117 Ill. App. 405, our view of how far the Circuit Court or Superior Court or this court may review the decisions of the Civil Service Commission of Chicago in a trial of city officers or employes protected by the Civil Service Act and Regulations, and we have seen no reason to change it. It makes no difference whether the review is attempted by certiorari or in a petition for mandamus; the inquiry on our part and on the part of the Circuit and Superior Courts is limited to the questions whether the Commission had jurisdiction and whether it followed the form of proceedings legally applicable in such cases. This is what the Supreme Court said in People v. Lindblom, 182 Ill. 241, and we have repeated in the Heaney case and in other cases.

With the justice or injustice of the Commission’s findings and sentence the courts have nothing to do, nor with the severity of the punishment, provided always that the finding and action are within its jurisdiction and the proceedings regular. There is no charge (except conclusions of law) in the petition that in this case that jurisdiction or regularity failed.

We have held that a “cause” must be stated in the written charges, but the doing of anything explicitly forbidden and subjected to punishment by the written rules of discipline provided for the department, especially such a plainly substantial violation of discipline as to enter a dram-shop while on duty but not in discharge of duty, is sufficient “cause.”

The petitioner may not have been guilty, or he may have been punished too severely for justice, but these things cannot protect him frqm discharge under the Civil Service Law. That law only protects him from discharge when the Commission has not found him guilty, has tried him for something over which it had no jurisdiction, or, in trying him, has not proceeded according to the forms prescribed by the law.

We are of opinion that the petition for mandamus on its face shows that it should be denied, and we therefore must reverse the judgment with directions to the Circuit Court to sustain the demurrer and dismiss the petition.

Reversed and remanded with directions.


text:
    James S. Watson, Defendant in Error, v. Francis C. Donald, Plaintiff in Error.
    Gen. No. 13,925.
    1. Contracts—“may” defined. Held, that the word “may” as used in the contract involved in this case was not indicative of a conditional obligation but that the same, taken in connection with the other provisions of such contract, was to be construed as absolute in effect.
    2. Contracts—when purchase price may he recovered hack. Money paid for stock in a corporation to be organized may be recovered back upon proof that it had become impossible for the party who received such money to organize such corporation and carry out his contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Brode B. Davis, for plaintiff in error.
    Bulkley, Gray & Moore, for defendant in error.
   Mr. Justice Brown

delivered, the opinion .of' the court.

This_ is a writ of error sued out to reverse a judgment entered August 24th, 1907, by the Municipal Court (sitting without a jury) for $512, in favor of the defendant in error, plaintiff below, James S. Watson, against Francis C. Donald, plaintiff in error and defendant below.

The suit was brought for money advanced by Watson to Donald—five hundred dollars—contemporaneously with the execution and delivery by Donald to Watson of the following instrument, which was introduced in evidence:

“Chicago, Feb. 7, 1906.
Upon the surrender of this receipt I do hereby contract and agree to deliver to James S. Watson or his assigns capital stock tu the amount of Five Thousand ($5,000) at its par value, in any Company that may be organized for the purpose of exploiting the Bobertson Off Centre Automobile Wheel. It is further understood and agreed that said stock is to be as fully paid and non-assessable. The capital stock of the Company organized to be not less than Fifty Thousand Dollars ($50,000) not more than Two Hundred Thousand Dollars ($200,000).
Witness: F. C. Donald.
Wm. J. McMullen.”

This instrument when produced in evidence was marked Exhibit A, and will be so spoken of in this opinion.

The evidence showed that at the time Exhibit A was executed and five hundred dollars paid over by Watson to Donald, Donald had in contemplation the formation of a company “to exploit” the Bobertson Off Centre Automobile Wheel, but that no such company had been formed up to the time this suit was begun.

A document was introduced in evidence and marked Exhibit C, which was dated December 21, 1905, and was an agreement between the Off Centre Wheel Co., a South Dakota corporation, of the first part, and one O. H. Tucker and the defendant Donald of the second part. This agreement recites the ownership by the company of certain letters patent and provides that “the party of the first part grants to the party of the second part, through the medium of an incorporate company to be instituted in due course by the parties hereto, as hereinafter provided, the expenses thereof to be borne by said party of the second part, the sole and exclusive privilege and rights to introduce and commercially promote the device described and granted by said letters patent in so far as it may be applied to all kinds and description and types of self-propelled vehicles of whatsoever source of propelling power, commonly known as automobiles.”

By the agreement also Tucker and Donald agree to assume the expense and supervision of such experimental work as may be necessary completely to demonstrate the practicability and commercial value of the said patented device; and “In the event the party of the second part shall find and decide as the result of said tests and experiments, that the aforesaid patented device may be profitably applied to the improvement and betterment of self-propelled vehicles of whatsoever source of propelling power, commonly known as automobiles, then an incorporate company as hereinbefore provided shall be formed by the parties hereto, the capital stock of which shall not be less than Fifty Thousand Dollars ($50,000), nor in excess of Two Hundred Thousand Dollars ($200,000). The shares of said incorporate company shall be apportioned and owned as follows: 45 per cent, to the party of the first part, and 55 per cent, to the party of the second part.”

It can be seen that the corporation contemplated by the two agreements, Exhibits A and C, was the same.

Differences seem to have arisen between the parties of the first part and the parties of the second part to Exhibit O, respecting the division of the stock in the proposed company, and under date of December 26, 1906, the Off Centre Wheel Company notified Tucker and Donald that as they had failed to carry out the agreement of December 21, 1905, the company can-celled the agreement from said date of December 26, 1906, and “was at liberty to enter into contract with other parties or manufacture and dispose of automobile wheels as seems most advantageous to the company and for the best interests of their stockholders.”

On March 5, 1907, Donald and Tucker sued the Off Centre Wheel Company in the Superior Court of Cook county for damages which they set at one hundred thousand dollars, done to them by the cancellation of the contract.

In or about August, 1906, Mr. Watson had become a stockholder in the Off Centre Wheel Company, and in January or Febrauary of 1907, he went to Mr. Donald and demanded the five hundred dollars back on the ground that the Off Centre Wheel Company had can-celled their contract and that Donald therefore could not organize the proposed corporation. The demand was not acceded to, and Watson began this suit in the Municipal Court for the amount on February 25, 1907. It resulted in the judgment before described.

The plaintiff relied below and relies here on the position that there was a contract of sale between Trim and Donald, by which Donald absolutely sold him, and he absolutely purchased for the $500, paid stock to be delivered in the future; that it is no longer possible for the contract to be carried out by the defendant, because he has abandoned—voluntarily or involuntarily —the organization of such a corporation as is described; that such a corporation indeed could only be formed with the co-operation and under the contract, Exhibit C; that this contract is cancelled and repudiated by the Off Centre Company, and will not and cannot be carried out, and that Donald by beginning in conjunction with Tucker a suit for damages against the Off Centre Company has affirmed the cancellation; that in consequence he, the plaintiff, is entitled to recover back the $500 he paid Donald as money had and received for his use.

Upon the face of the matter at least this position seems well taken. Exhibit A, which was given for the $500 advanced, and plainly in consideration for it, does indeed say that the stock; to be delivered is to be in any company that “may” be organized, etc., but it also says that it is agreed that the stock is to be fully paid and non-assessable and of an issue of not less than $50,000 nor of not more than $200,000. It is, except so far as the use of the word “may” can be said to effect it, direct and positive in its terms, making the agreement to deliver the stock conditional only on the delivery of the certificate. We think that the use of the word “may” does not turn the contract or agreement into a conditional one dependent on the organization of the company, nor give to the defendant an option whether or not he will organize or abandon the proposed corporation, and in consequence an option whether or not he will deliver to the plaintiff any stock in any company. Therefore it would seem to be reasonable that when it became impossible, as the breach between the parties to Exhibit C and its results certainly made it, for the defendant to form a corporation which should effect the purposes of the proposed corporation, he should return, the five hundred dollars advanced on the credit of Exhibit A. For it is to be noted that not only did the other parties to Exhibit C repudiate and annul the contract, but the defendant, by bringing suit for damages for it against them, accepted the action as an accomplished although unwarrantable act.

That the plaintiff had the right to recover and that the defendant was liable in this present action in the absence of some element not as yet noticed in this opinion, we think is not only consonant with reason but also with authority. The citations of the plaintiff in this connection are in point: Kempson v. Saunders, 4 Bingham’s Bep. 5; Walstab v. Spottiswoode, 15 Beeson & Welsby’s Bep. 500; Nockells v. Crosby, 3 Barnwell & Creswell 814; Benjamin on Sales, sec. 424.

But it is claimed by the defendant not only that this interpretation that we hold must prima facie be placed on Exhibit A, is incorrect, but that even, if it would carry that meaning considered only by itself, it is subject to interpretation in the light of circumstances and conversations appearing in evidence in the record, and that these necessarily place upon it a conditional meaning.

The contention is that one McMullen, who brought to Donald the certified check of Watson for $500, and received Exhibit A in return, which document he brought with him already drafted for Donald’s signature, did all this business as a means of procuring an interest in the enterprise for himself. He introduced the Off Centre Wheel Company and the patents involved in this matter to the notice of Mr. Donald, who was president of the Automobile Club, and he apparentiy thought that this entitled, him to “recognition,” as he phrased it, which meant that he should be admitted to an interest in the contract between Donald, Tucker and the Off Centre Wheel Company. Then he was told that “if he wanted to come in and take pot-luck with Donald and Tucker he could come;5 ’ that “if it panned out, he was in, but if it didn’t pan out, he was out and they were out.” In response to this invitation or permission alone, he brought the $500, and received Exhibit A. Donald took the $500 under this understanding and arrangement with McMullen, and expended it with several thousand dollars of his own money in experimental work upon the device covered by the letters patent in question, and had not reached a point where the device had been demonstrated to be a commercial success, so as to warrant the forming of a corporation to put it on the market, when the Off Centre Wheel Company repudiated the contract nor when this present suit was begun. McMullen was cognizant of all this and of the clause in the contract with the Off Centre 'Wheel Co., Exhibit C, which provided that a corporation should be formed to promote the device only in case that such experimental work did result in establishing to Tucker and Donald’s satisfaction that the device might be profitably applied to automobiles, and thus be a commercial success—so that McMullen must, under the circumstances, be considered the agent of Watson, and Watson held to be in the shoes of McMullen so far as his rights, claims or liabilities in this lawsuit are concerned.

To fortify this argument it is pointed out that McMullen was a friend of Watson’s of thirty years’ standing and familiarly associated with him in office occupancy, and that Donald never knew Watson until after this money had been advanced and Exhibit A executed; also that when Donald saw the draft- of Exhibit A, which McMullen handed to him, he said, “I thought you wanted this for yourself,” to which McMuUen replied, Watson is all right. It is the only way I can get anything out of it for myself.”

It will be seen that this contention hinges on the assumed agency of McMullen for Watson. No part of all this evidence introduced to show the construction placed on the transaction when it took place is competent or material against Watson on any other theory. Whether then, even, it would not properly be excluded from consideration on the ground that the written instrument must be considered to have included all the terms of the contract, it is unnecessary for us to inquire; for we can see no evidence of agency on the part of McMullen or any evidence that he was held out as an agent by Watson. McMullen says, in effect, that it will be of advantage to him to have a contract of sale made to Watson, and then, although himself understanding that if let in to the undertaking he is to share the risk, brings from Watson, who is not known to defendant, a cheek, and demands for it a direct agreement of sale of stock running to Watson. If Watson, under these circumstances, repudiates the alleged agency of McMullen and says he did not understand that he was placing his money at the risk of the experimenting, it is for the defendant to prove that the contrary is true if he would put Watson into McMullen’s shoes. There is nothing in the transaction itself which can place Watson there.

We do not think there was error in the trial or decison of this case by the Municipal Court, and we affirm the judgment.

Affirmed.


text:
    William F. Brase, Appellant, v. Chicago Union Traction Company, Appellee.
    Gen. No. 13,935.
    1. Instructions—what essential to justify peremptory. It is not proper to take a case from the jury unless there is no evidence which with all the inferences and intendments reasonably to be drawn from it would support a verdict for the plaintiff.
    2. Master and servant—what essential to establish liability of former to latter caused by defective appliances. Three things must concur to render a master liable for an injury caused by a defective appliance: (1) the appliance must have been defective; (2) the master must have had knowledge or means of knowledge, which should have been used, of the defect; and (3) the servant must not have known of the defect or have had equal means of knowledge with the master,—exceptions to the last condition existing in certain eases, of emergent special orders, unredeemed promises to repair, and immaturity or inexperience with machinery or complicated devices, etc.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed July 6, 1908.
    Statement by tie Court. TMs is an appeal from a judgment by the Superior Court of nil capiat and for costs rendered against the plaintiff, William F. Erase, and in favor of the defendant, the Chicago Union Traction Company, on June 15,1907.
    The suit was in case for personal injuries caused by the negligence of the defendant. It was begun on February 3, 1903, and came to trial before a jury on April 15, 1907.
    There were four counts in the original declaration and one additional count filed thereafter by leave of court.
    The plaintiff discontinued on the second, third and fourth counts before the trial, and left the first original count and the additional count as the statements of his cause of action.

      The first count avers that the defendant was on December 16, 1902, the owner and operator of certain street cars in Chicago, propelled by electricity, and that the plaintiff was on that day in the employ of defendant as a conductor on one of its cars operated on its tracks on East Van Burén street. That amongst the other duties imposed upon the plaintiff by the said defendant “was the duty of aiding and assisting in starting, moving and pushing certain heavy wagons; trucks or vehicles which might become stalled or stuck on the inclines or approaches to viaducts and bridges on which the tracks of said defendant ran, by means of a certain appliance of wood or other material, which said appliance the plaintiff, in the discharge of his duties as conductor, was required to place against the said vehicles, trucks or wagons so stalled or stuck as aforesaid, arid the front end of the car in charge of the plaintiff as conductor, so that the said truck, wagon or vehicles might be forced or shoved ahead by means of the electric power of said car; ’ ’ that it was the duty of the defendant to furnish the plaintiff a safe place to work and reasonably safe and fit appliances with which to perform his duties, and to order and direct the work of the plaintiff to be done in such manner as would be reasonably safe for plaintiff; that nevertheless, while the plaintiff was discharging his duties as servant of the defendant under its orders and using due care for his own safety, and was aiding and assisting in moving and starting a certain heavy wagón which had become stalled on the east approach to the Van Burén street bridge, and had placed the rear end of said wagon and the front end of the car in charge of the plaintiff a certain piece of wood furnished and supplied for that purpose by the said defendant, the defendant negligently furnished and kept for the use of its conductors at the east approach to said bridge a piece of wood which had become old and battered at the ends and unfit for the purposes to which it was applied; by means of all which and the unsafe and unfit appliance so furnished, when the electric force was applied to the said car the said piece of wood slipped from its place, and allowed the car and wagon to come together with great force and violence, so that the plaintiff was caught between the same and greatly injured.
    The additional count avers that the defendant negligently ordered the plaintiff to use and take a certain wooden stick or appliance and to place it against the front of the car and a certain heavy wagon and to push said wagon up the incline of the bridge, and that said stick, on account of its shape, size, construction and material and worn and slippery condition, was inadequate, unfit and unsafe to be used for such purposes, and that the dangers thereof were unknown to the plaintiff and well known to, or by reasonable care ascertainable by, the plaintiff. It also avers that the said stick slipped, fell out and dropped from between the car and the wagon, on account of its inadequate and unfit shape, size, construction, material ana worn and slippery condition, and the plaintiff was thereby caught between the car and the wagon and grievously injured.
    The general issue was pleaded to both these counts. At the trial, after the evidence for the plaintiff had been heard, the defendant moved the court to exclude from the jury all the evidence on behalf of the plaintiff and to instruct the jury to find the defendant not guilty. This motion was allowed by the court and the jury were so instructed, and a verdict returned in accordance with the instruction.
    A motion for a new trial was made and overruled, and judgment was entered on the verdict. From this judgment the plaintiff appealed to this court and in this court has assigned the peremptory instruction, the entry of the verdict and of the judgment, and the denial of the motion for a new trial for error.
    James Maher, for appellant.

      John A. Rose and Frank L. Kriete, for appellee; W. W. Gurley, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

We cannot reverse the action of the court below in this cause. We can only see a very sad and unfortunate accident, for which the defendant cannot, within the acknowledged principles of the law, be held liable.

The injuries which the plaintiff suffered, including the loss of one leg and the permanent crippling of another, as they did, cannot but excite the compassion of all who hear of it; nevertheless it seems to us very clear that the misfortune is one for which he cannot recover unless the defendant is to be considered an insurer of the safety of its servants in all the duties which they may be performing under its direction.

The plaintiff in this case—a man then thirty-one years of age—was at the time of the accident a conductor in the employ of the defendant. He had been so for a year and three months, and for ten months had been on the same regular run. It frequently happens that the street cars are delayed at the approaches to the bridges in Chicago by wagons or trucks or other vehicles which find the grades too steep for an easy ascent. They are on the tracks and becoming thus stalled or stuck, obstruct the passage of the cars. It is the custom in such cases, when other means are unavailing, to use the electric motive power of the obstructed car to assist the intervening vehicle, whatever it may be, up the incline. This is done generally by" placing a stick made of hard wood, several feet long, between the front of the car—the bumper so-called— and the rear of the wagon, and thus utilizing the power which propels the car to push the wagon and aid the horses in overcoming the ascent. The run which the plaintiff had was on Van Burén street, where there is a bridge with a moderate ascending approach on each side. When the barn-boss first set the plaintiff to work as a “student” conductor, as the new men who are being broken in as employes are called, he went with other conductors on various streets. In Kedzie avenue he was told by the conductor he was working with or under, on an occasion when an ash wagon was in the way of the car, to get a stick and push the wag’on out of the track, but he says “the company furnished no stick on Kedzie avenue.” On other occasions, he says, he was taught by the conductors that he ran with as a student, whenever a wagon or anything was stalled in front of a car, to push it out so that the car could proceed. At one time, about a month before the accident, the bam boss happened to be with the plaintiff when he was approaching with his car, on the west side of the river, the bridge at Van Burén street. There was an empty box wagon stalled there, and the boss pointed out a stick that lay on the bridge and told the plaintiff to “Get the stick and give them a push;” that stick was a little over four feet long, 6 or 8 inches wide and two inches thick, but had no handle or other appurtenances to it. This was not, however, the only time certainly, and presumably not the first time, that the plaintiff had used this method of aiding a stalled wagon at that point up the incline, for he had been running the car there for several months preceding, and he says that he had several times before the accident done this thing at the west approach of the bridge, although he had never had occasion, so far as he could recollect, to do it on the east side of the river.

On the 16th of December, 1902, the day of the accident, he came with his car, going westward to the east approach of the bridge. While he was collecting fares the motorman called his attention to a loaded wagon stalled on the incline. He got off the car, he says, “seeking a stick of wood that he knew to be there.” He could not at first find it, and looking about saw a piece of railroad iron about five feet long. He tried to get that in between the car and the wagon, but it was too heavy. Then his attention was called to a stick which he says came from the Madison street general repair shop, which was lying near. This stick was of oak, and was from 3 to 4 feet long (the plaintiff in one place, however, says six), with a notch in the end of it, and with a copper handle attached to it by which it could be lifted, the handle being like a door handle through which the hand could be inserted. He says it was “in bunged up shape,” by which he says he means that the ends were bruised and splintered, as the faces of a wooden mallet would be that had been used to hammer with. The stick looked old, and, lying outside, was wet, and on one end covered with a slight film of ice. He first used this stick as a block under one of the back wheels of the wagon, so as to prevent the wagon sliding back if the teamster could make his horses get the front wheel on to the bridge. This, he says, cleared the end of the ice that was on it. He found that this did not work, however, and then placed the stick between the bumper of the car at the center and the rear of the wagon. He describes what then took place thus:

“Before making a direct impact so that the car and the wagon would be tense with the stick, it took two or three trials and finally the car and the wagon became tense, and the driver of the wagon drove his horses onward—told them to 1 get up,’ as drivers do, and the motorman—I told him to come on, and he came on and turned on one point of the current as they call it, and while he was doing that, all of a sudden there was a give upward and outward, and I attempted to hold it down with all my strength and weight, and I couldn’t do it. When I saw it was going to give I made a jump outward and away from it and I could not make it and I was caught in between the car and the wagon.”

The direct examination proceeded:

41Q. What do you mean by giving, when you saw it was going to give? A. There was kind of like a bend. I caught here (indicating) with my hands, and lower than that center business there. (Illustrating.) There was a kind of a bend' in a slant-wise direction, partly outward and partly up. I could not hold it down—it was coming upward and outward and sideways.
“Q. Slipping out? A. Yes, sir, kind of slipping and bending.
“Q. Then what happened? A. Then I got caught between the car and the trucks of the wagon.”

On cross-examination the plaintiff further explained that he went between the car and the wagon three times; once with the iron rail, once in an unsuccessful attempt to put the stick between the wagon and the car, and for the third time, when he did it; and that when he told the motorman to “come on” and the current was turned on, he was standing on the fender of the car. He stood there until he was caught and crushed with such distressing results.

Before the stick slipped out the wagon had been moved, but not to exceed nine or ten feet. He says there was no other way to get the stick in that he knew of than to go in with it as he did. The stick when it slipped out fell down alongside the car and the plaintiff never saw it again. He testified that he had no means of obtaining it and did not know where it was.

Another eye-witness of the accident was produced as a witness by the plaintiff—a policeman named King. He was standing by the side of the motorman inside of the front vestibule of the ear against the window. He says the conductor took the stick and placed it between the car and the wagon and told the motorman to come on; that “they started up the grade—started to shove the wagon, and had got up a little piece when the stick slipped and the car caught the conductor.” He says •that the stick seemed to be “frayed a little” at both ends as though it was pounded or used, “as though the ends had been worn and were rough”—like a mallet which had driven a stick into the ground, he explained. This witness testified also that a one-horse wagon drove in ahead of the heavy wagun as it was being pushed up the grade, and as the one-horse wagon drove in the horses on the heavy wagon shied a little to the north—two or three feet—and that was when the stick slipped off, the west end of the stick going to the south. He thinks the heavy wagon at this time had been pushed but five or six feet up the incline.

It was on this state of facts, as shown by the evidence, that the trial court took the case from the jury. We do not see how, acting in consonance with recognized legal rules, it could have done otherwise.

There is no difference between the parties about the rule applicable. It has often been laid down and is now established beyond question in Illinois, that it is not proper to take a ease from the jury unless there is no evidence which, with all the inferences and intendments reasonably to be drawn from it, would support a verdict for the plaintiff.

But the defendant claims that in this case this condition is met, and we are forced to agree with it, despite the natural sympathy which all must feel for the unfortunate plaintiff.

The law has been laid down in this state in many cases—which it is not necessary to cite, so well recognized is the rule—that three things must concur to render a master liable for an injury caused by a defective appliance: (1) That the appliance was defective ; (2) that the master had knowledge or means of knowledge, which should have been used, of the defect; and (3) that the servant did not know of the defect or have equal means of knowledge with the master; exceptions to the last condition perhaps existing in cases of emergent special orders, unredeemed promises to repair, and immaturity or inexperience with machinery or complicated devices, et cetera.

In the case at bar these conditions were not met. The plaintiff was a man of maturity, certainly of average intelligence (his testimony would seem to indicate of more than usual mental calibre), the appliance complained of was of the simplest possible kind, with any defect, if defect there could be said to be, entirely and perfectly obvious, with no latent flaw or imperfection proven in it. It is indeed argued that the stick 5 6 bent, ’? and that this showed such an imperfection; hut the evidence which we have detailed certainly does not show such a bending or buckling of the wood as indicated any inherent defect of fibre. The stick slipped from the place in which it was placed evidently from some other cause than any actual weakness or pliability. If it was the roughness or splintering of the ends (although it is hard to see how this could have affected the matter), that was obvious; if it was the swerving of the horses of the wagon, which seems more probable, that was not the defect of the appliance. But even if it were inherent pliability of the fibre of this simple oak stick, how could the defendant be presumed to know better than the plaintiff the danger?

Indeed, except so far as the general order to carry his cars through on schedule time implied it, there was no order, general or special, as we view it, to use this particular appliance. It seems to have been put on the bridge by the company to accommodate its employes in cases where such adventitious aid might he required in the performance of their general duties; but the precise times and manner in which it should be used, if at all, must necessarily have been left to the judgment of those employes respectively, in view of the incessant change and variety of circumstance attending a block at a bridge. All kinds of vehicles, of all kinds of shapes, weight and motive power, and in all sorts of weather and condition of the tracks and the street, are likely to be crossing the bridge while the car is attempting to do so, and may by stalling become obstructions to the latter.

The directions in such cases “to get the stick and give a push.” are not in reason to be taken as a binding order on the car conductors which deprives them, as at the special command of a master, of the free use of their own judgments as to employing that particular method of relief. That the plaintiff did not so consider it in the present case is plain from his first attempting to use an iron rail to serve his purpose, and afterwards using the stick, not to push with, but as a “rider” to block the wagon wheel.

Nor was it necessary or a part of his instructions in any view of the matter, that he should stand on the fender of the car for an instant after the power was applied.

We do not think that the citations of car coupling cases and others made by appellant are in point in the case at bar, and we affirm the judgment of the Superior Court.

Affirmed.


author: Mr. Presiding Justice Baker

text:
    John D. Casey, Administrator, Appellee, v. J. W. Reedy Elevator Mfg. Company, Appellant.
    Gen. No. 14,085.
    1. Master and servant—when appliances supplied not such as to justify recovery for injury sustained. If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.
    2. Evidence—what not competent to prove safety or danger of manner of performing particular work. Certain evidence introduced in this case, held, incompetent upon the question as to whether the manner of performing the work, which resulted in the accident complained of, was reasonably safe or was dangerous.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 14, 1908.

      Eastman, Eastman & White, for appellant.
    Edward J. Green and Charles C. Spencer, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of file court.

This is an appeal by the defendant from a judgment for $5,000 recovered by the administrator of Carl J. Kokum, in an action on the case for wrongfully causing the death of Kokum.

The owners of a certain five story building in Chicago in which was a steam freight elevator were engaged in adding two stories to the building. Defendant contracted with the owners to extend the elevator to the top of the new part of the building, and to replace the steam operating machinery with electrical machinery and appliances necessary for the operation of the elevator by electricity. Plaintiff’s intestate was one of four or five men employed by defendant to work for defendant at said building. The additional stories were built, and at the top of the new elevator shaft the defendant put in the sheaves over which the steel elevator cables were intended to pass. The new cables were passed over the sheaves and their loose ends lashed to the beams at the top of the shaft, ready to be attached to the cab. The cab was at the fifth floor of the building and the defendant decided to raise it to the top of the shaft and attach the cables to it. For that purpose a chain tackle was used. The upper hook of this tackle was hooked into a rope sling passed over a beam at the top of the shaft, and the lower hook was hooked into a rope sling passed around the steel or iron cross-beam of the cab. The deceased stood on this cross-beam and two men above him pulled on the chain-tackle to raise the cab. While raising it, in the manner stated, the rope sling around the cross-beam of the cab parted, and the cab, with Kokum on the crossbeam, fell to the ground and by the fall he was killed.

Qn the trial the plaintiff was permitted to prove, over the objections of the defendant, that Jallings, defendant’s superintendent, told Johnson, who was in charge of the men in the service of defendant at the building, and who worked with them, to run the machinery, by which the cables were intended to be operated, backward and bring the ends of the cables from the top of the building down to the cab to attach them to the cab; that the connection could have been made in that manner, and that the new cables would sustain a weight of 17,000 pounds. .

In this we think the court erred. It was decided to raise the cables from the fifth floor to the top of the building by means of the chain tackle. This the deceased knew. He selected the rope sling which was passed around the cross-beam of the cab, and he passed that sling around the beam and hooked the chain tackle into the sling.

The question for the jury was not, whether the cab could have been raised more safely by using the cables and electric power than by hand with the chain tackle, but was, whether having decided to use the chain tackle, the defendant was guilty of the negligence charged in the declaration in the manner in which such tackle was used and employed.

“If a servant, knowing the hazards of his employment, as the business is conducted, is injured while engaged therein, he cannot maintain an action against the master for the injury merely on the ground that there was a safer mode in which the business might have been conducted, the adoption of which would have prevented the injury.” Simmons, Admx., v. The Chicago & T. Ry. Co., 110 Ill. 340-347.

The testimony referred to did not tend to prove any allegation of the declaration nor any ground of recovery. It was not admissible as part of the res gestae. Three witnesses, Grady, Moork and Jallings, testified, over the objection of the defendant, that Jallings told Johnson to bring down the ends of the cables to the cab at the fifth floor and hitch them to the cab and raise it the other two stories by the new machinery, and each gave testimony tending to show that it could have been raised in that maimer more safely than with the chain tackle. This testimony was not alone irrelevant, but tended to confuse and mislead the jury, and its admission, in our opinion, was reversible error.

For that error the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Me. Justice Freeman

text:
    Andrew Christensen, Appellee, v. Oscar Daniels Company, Appellant.
    Gen. No. 14,010.
    1. Variances-what fatal. An allegation that the plaintiff “tripped upon the said cable and threw his hand back against the said drum” and other allegations in substance the same, is not sustained by proof that the plaintiff “was tripped by the lower drum, that is, the one behind me,” etc., and the variance being specifically pointed out in the trial court, is fatal.
    2. Amendments and jeofails-what does not accomplish actual amendment. Obtaining leave to amend is not the equivalent of an amendment and unless the permission to amend that has been granted has been followed up, no change in the record results.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tothill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed July 14, 1908.
    Rehearing denied July 24, 1908.
    Statement by tine Court. This is an action to recover for personal injuries, in which appellee recovered a judgment for $2,200, from which defendant appeals.
    The declaration consisting of one count states in substance that plaintiff was a structural iron worker in the employ of defendant, that the latter was engaged in placing structural iron work in a building; that in order to place iron beams in position defendant was using a derrick with machinery, consisting of drums, cables, etc.; that it was the duty of defendant to furnish plaintiff a reasonably safe place to work; that defendant failed to use care to do this; that there were certain drums in connection with the hoisting machinery necessary to hold certain cables and plaintiff was ordered by the defendant’s foreman to go between said drums in a “narrow place” and to put a certain cable upon one of said drums; that at the time plaintiff was so ordered one of the drums was shut down and not in motion; that plaintiff was not notified that said drum was to be started, and that after placing the cable upon the drum which was in motion, he stepped away for the purpose of getting out from between the said drums and in so doing tripped upon the cable from the other drum which had in the meantime been started by order of the foreman without plaintiff’s knowledge; that by reason of the negligence of the foreman in ordering said drum to be started without notice to plaintiff, the latter “who had in the meantime tripped upon the said cable, threw his hand back against the said drum, and the said cable upon the said drum then and there caught his finger between the said drum and cable,” the plaintiff meanwhile exercising all due care and caution for Ms own safety, and that by reason of the premises the first finger of plamtiff’s left hand was cut off at the middle joint “and Ms hand was more or less lacerated.”
    Eddy, Haley & Wetten, for appellant.
    John A. Bloomingston, for appellee.
   Me. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant that there is a fatal variance between material averments of the declaration and the plaintiff’s proof. The declaration avers that the plaintiff “tripped upon the said cable and threw his hand back against the said drum”; that plaintiff stepped away from the moving drum upon which he had been placing the cable, with the purpose of getting out from between the said drums, “and in so doing tripped upon the cable from the other drum,” which had in the meantime been started; and that he “threw his hand back against the said drum and the said cable upon the said drum then and there caught his finger.” This averment is not supported by the plaintiff’s evidence. The testimony of the plaintiff is, not that he tripped upon the cable, but that he “was tripped by the lower drum, that is the one behind me,” and that it was the drum he “had been working on all the time and the one I put my finger on,” which inflicted the injury complained of and not the other and lower drum alleged in the declaration to have been negligently started without notice to plaintiff. The latter testifies not only that he “tripped on the lower drum behind me,” but that “the.cable on the lower drum had been wound up.” It is clear therefore from his own statement that he did not trip on the cable of the lower drum or any cable as his declaration avers. One of plaintiff’s witnesses testifies that plaintiff “went to step backwards over the bottom drum. In so doing he lost his balance and went to grab out or get hold of the topping lift cable and hung on to it, and his hand went in and caught on .the cable. At the time the plaintiff lost his balance one foot was between the drums and the other was over the drum,” that is the lower drum. The variance is clear and relates to material averments of the declaration, upon which plaintiff bases his claim to recover.

Defendant’s attorneys at once moved to strike out that testimony on the ground of variance. Plaintiff’s attorney thereupon asked and was given leave to amend imtanter. No amendment, however,' was filed, and at the conclusion of the plaintiff’s evidence, the defendant moved the court to instruct the jury to find the defendant not guilty. The court denied the motions and defendant’s counsel preserved exceptions.

The cause was submitted to the jury upon the declaration containing the material averments which the plaintiff’s evidence had failed to sustain. If an amendment had been filed the defendant might have wished to demur, to have pleaded the Statute of Limitation or other defense and it would have been entitled • to such privilege. After obtaining leave to amend “the plaintiff was in no wise obligated to exercise the privilege given and make the amendment, and until the amendment was in fact made the declaration remained the same as though no leave to amend it had been given.” Wisconsin Central Railroad Co. v. Weiczorek, 151 Ill. 579-583 et seq. Upon that declaration as it stood it was erroneous to deny the motions to direct a verdict for the defendant upon the plaintiff’s evidence which failed to support the declaration. It scarcely requires citation of authorities in support of the proposition that the allegations and proofs must correspond. The plaintiff having averred negligence in one particular cannot on the trial recover for alleged negligence in some other respect. The defendant is entitled to know what the ground is upon which the plaintiff seeks to hold him liable and it is the purpose of the declaration to advise him. Toledo, N. & W. R. R. Co. v. Foss, 88 Ill. 551; Gavin v. City of Chicago, 97 Ill. 66; Wabash W. Ry. Co. v. Friedman, 146 Ill. 583-588; Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523; Lake St. Elev. R. Co. v. Shaw, 203 Ill. 39-42; Wabash Ed. Co. v. Billings, 212 Ill. 37-40. In this last cited case it is said: “Every allegation which is descriptive of the cause of action must be proved as alleged in the pleading, and any variance therefrom is fatal unless it is waived by not calling it to the attention of the trial court, or is cured by an amendment of the pleading. Even if there are unnecessary allegations descriptive of what is material they must be proved.” In Chicago Union Traction Co. v. Hampe, 228 Ill. 346-348, the Billings case is cited and it is held that “in the absence of an amendment to the declaration, a verdict for defendant should have been directed,” there being in that case a variance between the averment of the declaration and the proof.

For the reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Freeman

text:
    Christ Becker, Appellee, v. F. O. Erickson Company, Appellant.
    Gen. No. 14,021.
    1. Real property-what justification for refusal to perform contract to purchase. Inability of the vendor to convey a good title justifies a refusal by the vendee to carry out his contract to purchase. A good title cannot be conveyed if a doubt exists so as to make it probable that the purchaser’s rights may be a matter of legal investigation, or if the title depends upon facts which can only be established by parol evidence should the title be attacked, and the purchaser will not in general be compelled to complete the purchase.
    2. Instructions-when errors will not reverse. Errors in instructions which do not result in harm are not ground for reversal.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed July 14, 1908.
    Statement Tby tke Court. This is an action brought by appellee to recover money alleged to have been improperly paid to appellant by a third party by whom it is said to have been held in escrow.
    On the 8th of March, 1905, an agreement was made and entered into between appellant F. O. Erickson Company, a corporation, Aaron Fried and others, parties of the first part, with appellee, party of the second part, wherein the parties of the first part agreed to sell “the entire stock, business, property, good will, leases, rights and interests of sakJ F. 0. Erickson Company, ’ ’ and it was further agreed that the parties of the first part should execute on or before March 13, 1905, “all bills of sale, assignments and other papers necessary to transfer said goods, business, property, good will, leases, rights and interests of said F. 0. Erickson Company to said second party.” It was further provided in the agreement that the parties thereto other than the corporation appellant here would assign their several shares and certificates of stock in the said corporation to said second party on or before said March 13, 1905. The contract states that “to secure the faithful performance on his part of this agreement and of the covenants and agreements therein contained by him to be performed said second party has paid the sum of $1,000 earnest money. ’ ’
    The declaration sets up the written contract and alleges it was agreed that the one thousand dollars to be paid as earnest money should be evidenced by a check for that sum payable to the order of appellant, to be placed in escrow with Keith Brothers <fe Company, and that it was agreed “that said Keith Brothers & Company should hold said check until all the bills of sale, assignment and other papers necessary to transfer the aforesaid goods,” leases and other rights and interests had been properly made and delivered by said Erickson Company to the plaintiff and “the lease to said aforesaid premises had been properly assigned and delivered and the possession of the premises been duly given to the plaintiff:” and the Erickson Company “had in all respects fully performed its part of the aforesaid contract.” It is further averred that in case the Erickson Company should “in any manner fail to perform and fulfill its part of the contract,” then said check should not be delivered to said Erickson Company, but should be re-delivered to the plaintiff—appellee herein—by said Keith Brothers & Company. It appears, however, that the check was within a few days turned over by Keith Brothers & Company to appellant, by whom it was collected. This suit is brought to recover the money alleged to have been thus improperly paid, the plaintiff claiming that the defendant Erickson Company failed to comply with its said contract in that the defendant Erickson Company failed to make a valid assignment of the lease of the premises which by the contract it had agreed to assign to appellee.
    It appears that the lessors of the premises refused to permit the lease to be transferred to appellee for the unexpired term ending, it is said, April 30, 1906. The lease contained a provision in and by which the lessees agreed “not to sublet the same or any part thereof without in each case the written consent of the party of the first part * * * of the interest in said premises acquired through this lease.”
    Kickham Scanlan, for appellant.
    C. H. Seppel, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended on the part of appellant that under the terms and provisions of the written contract appellant was not required to obtain the consent of the lessor or his agents to the assignments of the lease in question. With this contention we are unable to agree. A contract to assign a lease the unexpired term of which is for a period greater than one year is a contract to convey an interest in or concerning lands. In Chicago Attachment Company v. Davis S. M. Co., 142 Ill. 171-180, it is said that the statute of frauds and perjuries (chap. 59 R. S.) “not being limited to the creation of an estate but including every contract ‘for the sale of * * * any interest in or concerning’ lands for a longer term than one year,” would seem as clearly as it is possible for language to express that idea, to include the sale by the tenant of the remainder of his term, provided only that remainder is for a longer term than one year. It is further said that an assignment of a term is the transfer of the whole estate of the tenant therein to a third person. It is held in McGuire Bros. v. Blanchard, 107 Ia. 490-493, that “the legal effect of contracts to sell and convey land is generally to require the vendor to make a good title, ’ ’ and every purchaser of real estate is entitled to a marketable title, free from encumbrance and defects, unless he expressly stipulates to accept a defective title. In the case at bar the written contract in legal effect required the transfer of a good title to the lease and to the premises therein conveyed. It is said in Harrass v. Edwards, 94 Wis. 459-463: “The plaintiff as a purchaser could not be required to accept a defective or unmarketable title. He had an undoubted right to a good title, and while a title may be good, yet if there is reasonable doubt of its validity, the purchaser is not obliged to take it, and so it follows that a title may be valid and yet not marketable. A material defect in the title to land is such a defect as will cause a reasonable doubt and just apprehension in the mind of a reasonably prudent and intelligent person acting upon competent legal advice, and prompt him to refuse to take the deed at a fair value.” It is apparent from the evidence and not contradicted that there was grave doubt as to whether or not, without the consent of the lessor, appellee could acquire a valid title by a mere assignment of the lease by the Erickson Company, and if a doubt exists so as to make it probable that the purchaser’s rights may be a matter of legal investigation, or if the title depends upon facts which can only be established by parol evidence should the title be attacked, the purchaser will not in general be compelled to complete the purchase. In Vought v. Williams, 120 N. Y. 253-257, it is said that a marketable title is one that is free from reasonable doubt and that there is reasonable doubt when there is uncertainty as to some material fact relating to the title or interfering with its sale; that “a purchaser is not to be compelled to take property possession of which he may be compelled to defend by litigation. He should have a title that would enable him to hold his land in peace.” It is apparent from the evidence that the appellant failed to convey a good title to the leasehold premises in question, such as by the terms of his contract the appellee was entitled to receive. Under these circumstances, appellee was not bound to carry out his part of the contract and pay the purchase price, and appellant was not entitled to forfeit and retain possession of the one thousand dollars earnest money paid by appellee.

It is urged by appellant’s counsel that the trial court erred in giving to the jury the following instruction:

“The court instructs the jury that if you believe from the evidence that the defendant, F. 0. Erickson Co., agreed to assign to the plaintiff the lease introduced in evidence and that Aaron Fried told the plaintiff that the lessor or his agents would consent to such assignment as testified to by the plaintiff, and that the plaintiff relied thereon, then it became and was the duty of said defendant under such assignment to obtain the written consent of said lessor or his agents to such assignment.”

The instruction is undoubtedly erroneous. The suit is brought upon a written contract. In and by that contract the defendant Erickson Company agreed to assign to the plaintiff the lease, and it was under obligation to convey a sufficient title. This obligation was not dependent upon statements which Fried may have made, but was created by the written instrument. The conclusion of the instruction, however, that it was the duty of the defendant under such assignment to obtain the written consent of the lessor or his agents, is not incorrect, in view of the evidence, and the error referred to was not harmful to appellant, nor do we find reversible error in other instructions complained of.

The contention that appellee waived the right to insist upon appellant’s compliance with the contract as to the lease, is not justified by the evidence.

There is evidence tending to show that the lease in question was originally granted to one Anna C. Erickson as lessee, and that it had been subsequently assigned, with the written consent of the lessor, to one Aaron Fried and others who afterward apparently became officers or stockholders in the appellant company. That assignment stipulated that no further assignment should be made without the written consent of the lessor. Subsequently the appellant corporation, when organized, appears to have continued the business and paid the rent to the lessor. There is, however, no evidence of any formal assignment of the lease to the appellant. It is urged that the lessor had permitted the appellant corporation to become his tenant to all intents and purposes as fully as if he had given a formal consent in writing to a written assignment of the lease to the corporation, that thus the provision that no further assignment should be made without the lessor’s written consent was determined, and that an assignment by the appellant company to appellee would not be a breach of the provision against assignment without the lessor’s consent or give to the lessor a right of re-entry. We do not concur in such contention. Tliere having been, so far as appears, no formal assignment to the appellant corporation by Fried and the others to whom the original lease had been assigned with the lessor’s consent, the lease appears to have been still held by Fried and his associates, some of whom at least appear to have been officers or stockholders in the appellant corporation, engaged in conducting the business in the corporate name. Substantially there was, so far as appears, no change in the lessees. There is no sufficient evidence tending to support the contention that the lessor knew that appellant corporation as such to be in possession, or that it claimed to be in possession of the premises as lessee, or that any verbal or written assignment of the lease was ever made to it. We are not prepared to hold that under the evidence the lessor had waived his right to forfeit the lease in case of an assignment without his consent, merely because the rent was paid by or in the name of the appellant corporation in which the actual lessees appear to have been stockholders and officers. See Medinah Temple Co. v. Currey, 162 Ill. 441. In support of appellant’s contention the case of Dumpor v. Symms, 4 Coke, 119 (Smith’s L. C. 85-115), is cited. In that case “it was held that a condition not to alien without a license is determined by the first license granted.” But, as in the case of Kew v. Trainor, 150 Ill. 150, the provision against assignment in Dumpor’s case was entirely different from that of the lease in controversy. The case is not therefore in point, even if it ought otherwise to be followed in this state, in view of what is said in Kew v. Trainor, supra.

The judgment of the Superior Court will he affirmed.

Affirmed.