text:
    Briggs Hotel Company, Appellee, v. The Zurich General Accident & Liability Insurance Company, Ltd., Appellant.
    Gen. No. 24,759.
    Indemnity, § 11

      —what is not action for injuries accidentally suffered within indemnity policy. An action brought against a hotel company for damages for a wilful and malicious assaulting and beating of a person is not within the terms of an indemnity policy by which the insurer agrees to indemnify the company •against losses “respecting bodily injuries * * * accidentally suffered * * * by any person” and service was to be rendered in defending any suit “brought to recover damages on account of such cases of bodily injuries.”
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Z. Uhxik, Judge, presiding. Heard in this court at the October term, 1918.
    Reversed and judgment here.
    Opinion filed March 10, 1919.
    Wilkerson, Cassels & Potter, for appellant; Ralph F. Potter, of counsel.
    Ivor Jeffreys and William Mathiesen, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit alleging that the defendant, a corporation engaged in the insurance business, had agreed to indemnify plaintiff for a period of 3 years against certain losses and expenses; that plaintiff had incurred expenses to the amount of $537.62, which defendant under its contract of insurance was obligated to repay to plaintiff. Upon trial by the court plaintiff was found entitled to this amount, and judgment was entered against defendant for $537.62, from which it appeals.

There is no dispute as to the facts. While the policy was in force one Edmund Eddy was injured while on the sidewalk adjacent to plaintiff’s premises. This was reported to the defendant in accordance with the terms of the policy, and an investigation made. Some months later Eddy commenced a suit against the Briggs Hotel Company, in an action of trespass, alleging in his declaration that the defendant, the Briggs Hotel Company, had committed an assault and báttery upon him, inflicting injuries, and that such injuries were caused by a wilful and malicious assaulting and beating of the plaintiff, Eddy. Upon the commencement of such suit notice was given by the Hotel Company to the Insurance Company in accordance with the terms of the policy, and when Eddy’s declaration was filed the Insurance Company notified the Hotel Company that the injuries alleged by Eddy were not such as were covered by the policy issued by the Insurance Company to the Hotel Company, and that Eddy’s suit was not such as the policy required the Insurance Company to defend. The Hotel Company thereupon undertook the defense of Eddy’s suit on its own account and expended therein the amount now in controversy. The Hotel Company was successful in that suit, and a judgment in favor of the defendant was entered.

The provisions of the insurance policy which are material are as follows:

“The Zurich General Accident & Liability Insurance Company, Limited (herein called the company), does hereby agree with the assured, respecting bodily injuries * * * accidentally suffered or alleged to have been suffered, during the policy period * * * by any person or persons * * * while within or upon the premises described * * * or upon the sidewalks or other ways immediately adjacent thereto, from any cause whatsoever * * * as follows:

Agreement I—Damages.

“To indemnify the assured against loss from the liability imposed by law upon the assured for damages.

Agreement II—Service.

“To give prompt and efficient service * * * (c) in defending any suit brought to recover damages on account of such cases of bodily injuries * *

We are of the opinion that the suit brought by Eddy does not come within the terms of the defendant’s policy, and that it was under no obligation to defend the same. By the policy defendant specifically undertook to indemnify the plaintiff against losses “respecting bodily injuries * * * accidentally suffered or alleged to have been suffered * * * by any person,” and service was to be rendered in defending any suit “brought to recover damages on account of such cases of bodily injuries.” This clearly means a suit brought to recover damages on a claim for bodily injuries accidentally suffered. Eddy’s suit against the Hotel Company was clearly not of this character; he asserted a wilful and malicious assault. The result of his suit has no bearing upon the contract of the Insurance Company. Neither is the dictionary definition of the word “accident” of much importance. Defendant was obligated for its service only in the event of a suit claiming injuries from accident, and Eddy’s declaration filed in his suit negatives such injuries by asserting that they were inflicted wilfully and maliciously.

This consideration makes it unnecessary to refer to the points discussed by counsel. It follows that the finding and judgment of the trial court were improper. The judgment will therefore be reversed, and as under the terms of the contract there is no liability for the claim of plaintiff, judgment of nil capiat will be entered in this court.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Central Trust Company of Illinois, Appellee, v. Bernhard Loeff, Appellant.
    Gen. No. 24,227.
    1. Time, § 1

      —how computed. The proper mode of computing time when an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done.
    2. Municipal Coubt of Chicago, § 12

      —what is first date on Which summons is returnable. The first date on which a summons is returnable after its issuance, under section 28 of the Municipal Court Act (J. & A. f 3340), providing that the summons shall be returnable upon some Monday at least five days after the date thereof, is October 15th, where such day is Monday and the notice was issued on October 10th previous.
    3. Costs, § 67

      —when allowed for dilatory appeal. An appellee was awarded 5 per cent statutory damages for a dilatory appeal, under section 23, ch. 33, Rev. St. (J. & A. If 2737), where an appeal was prosecuted for purpose of delay.
    Appeal from the Municipal Court of Chicago; the Hon. Wells Mi Cook, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918. Certiorari denied by Supreme Court (making opinion final).
    Affirmed with damages.
    Opinion filed March 12, 1919.
    H. J. Rosenberg, for appellant; Irving Zimmerman, of counsel.
    Winston, Strawn & Shaw, for appellee; Frank H. Towner and Leslie M. O’Connor, of counsel.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit to recover $1,514.49 against the defendant in the Municipal Court of Chicago on two promissory notes. The suit was commenced October 10, 1917, and at that time a summons was issued returnable on Monday, October 15, 1917. The defendant was served on the 11th, and on October 15th he filed a special appearance and moved the court to quash the summons and dismiss the suit. The motion was overruled, the special appearance stricken, and the defendant was ordered to file an affidavit of merits, which was not done. Thereupon he was defaulted and judgment entered against him for the amount of plaintiff’s claim.

The basis of defendant’s motion was that the summons was not made returnable in accordance with section 28 of the Municipal Court Act (J. & A. ¶ 3340). That section provides: “The summons, * * * shall be returnable upon some Monday at least five days * * * after the date thereof.” And it is argued that “five full days must intervene between the date of the summons and the Monday to which the same is returnable that neither the date upon which the summons was issued nor the Monday to which the same is made returnable can be counted as part of the intervening five days.” In support of this the cases of Richardson v. Ford, 14 Ill. 332; Webster v. French, 12 Ill. 302; Coleman v. Keenan, 76 Ill. App. 315, and authorities from other jurisdictions are cited. In the Richardson ease, it was held that where an agreement was made to pay $400 more “between now and the 1st of September next” the offer to pay the money on September 1st was too late. The court there said: “Where the act is to be done by or before a given day, it must be performed prior to that day.” It is clear that that case is not in point. There the money was to be paid between the date of the agreement and September 1st, and of course this would not be done unless payment was made before September 1st. The statute in question in the instant case does not provide that the summons shall be issued at least five days before the date on which it is returnable, but the provision is that it shall be returnable at least five after its date. In the Webster case, the law required the Governor to receive written sealed bids until the 1st day of July, and it was held that the last day on which such bids could be received was June 30th. In the Coleman case, the statute in reference to filing records in this court provided that ten days should “Intervene,” and it was held that “Intervene means to come between,” and that ten full days must intervene between the last day of the term of court at which judgment was rendered and the sitting of this court. Manifestly this case is not in point, for the section of the Municipal Court Act under consideration does not require that at least five days shall intervene between the date of the summons and its return. The authorities from other jurisdictions cited need not be considered, since the question has been determined by the courts of this State. Moreover, we think the statute is clear and needs no construction. It provides in plain terms that the summons shall be returnable at least five days after its date. In the instant case its date is October 10th. Five days after this date is October 15th.

In the case of Dierssen v. Williamsburg City Fire Ins. Co., 204 Ill. App. 240, where we had occasion to consider a similar question, we said: “It has long been firmly established in this State that the proper mode of computing time when an act is to be performed within a particular period from or after a specified day is to exclude the day named and include the day on which the act is to be done.”

In Ewing v. Bailey, 5 Ill. (4 Scam.) 420, the court said: “The proper mode of computing time, where an act is to be performed within a particular period from or after a specified day, is to exclude the day named, and include the day on which the act is to be done. ’ ’

Paragraph 11, sec. 1, ch. 131, Rev. St. (J. & A. ¶ 11102), provides: “The time within which any act provided by law is to be done shall be computed by excluding the first day and including the last, unless the last day is Sunday, and then it also shall be ex-eluded.” Section 6, ch. 100, Rev. St. (J. & A. ¶ 7860), provides: “In computing the time for which any notice is to be given, whether required by law, order of court or contract, the first day shall be excluded and the last included, unless the last day is Sunday, and then it also shall be excluded.”

In Richter v. Chicago & E. R. Co., 273 Ill. 625, it was held that where the appellant “was given sixty days from December 14, 1912, in which to file a bill of exceptions, the last day on which the bill could be filed was February 12, 1913. In computing the sixty days from December 14th, the first day was excluded and the last day included.

In the instant case, the statute provides the summons shall be returnable not less than five days after or from the date thereof. And by the same method of computation, five days from October 10th, the date of the issuance of the summons, would be October 15th. To the same effect in People v. Snow, 279 Ill. 289. There the statute provided that no appropriation ordinance should take effect “until ten days after” publication, and it was held that where the publication of such ordinance was on January 29th, it became effective on February 8th. From the foregoing it is clear that there was no merit in the defendant’s contention, and the trial court properly overruled his motion.

Plaintiff insists that this appeal is prosecuted solely for delay, and therefore he is entitled to statutory damages, as provided by section 23, ch. 33, Rev. St. (J. & A. ¶ 2737). That section provides that where a judgment of the trial court, is affirmed and the court is of the opinion that the appeal or writ of error is prosecuted for delay, the party prosecuting such appeal or writ of error shall pay to the opposite party a sum not to exceed 10 per cent of the judgment of the court. We think it clear that the appeal in this case was prosecuted for delay, and therefore under section 23, supra, 5 per cent of the amount of the judgment will be added thereto.

The judgment of the Municipal Court of Chicago is affirmed with damages.

Affirmed with damages.


author: Mr. Justice Taylor

text:
    The People of the State of Illinois, Defendant in Error, v. Harry A. Dubia, Plaintiff in Error.
    Gen. No. 24,043.
    1. Indictment and information, § 78

      —when objection of variance waived. The objection of variance between the allegations of the indictment and proof is waived where it is not raised in the trial court.
    2. Banks and banking, § 64

      —when value of checks shown in criminal prosecution of banker. In a prosecution of a banker for receiving a deposit, including checks, while knowingly insolvent, evidence held sufficient to show the value of the checks to be their face value.
    3. Criminal1 law—when jury may determine both fine and imprisonment. Under J. & A. If 4143, providing that where punishment “shall be confinement in the penitentiary if the case is tried by a jury, the jury shall say in their verdict for what time the offender shall be confined,” and J. & A. If 4144, providing that when a fine is to be inflicted it shall be fixed by the jury, and J. & A. If 4146, providing that “when the punishment may he either by imprisonment in the penitentiary, or by confinement in the county jail, with or without fine, if the jury will not inflict the punishment of imprisonment in the penitentiary, they shall simply find the accused guilty, and the court shall fix the time of confinement in the jail, or fine, or both, as the case may require,” where a defendant may be both fined and imprisoned, the jury may determine both fine and imprisonment.
    4. Pardon and parole, § 4

      —nature of indeterminate sentence. An indeterminate sentence is for the maximum term.
    5. Pardon and parole, § 4

      —necessity of duration of sentence being left indeterminate. Under section 2 of the Act of June 25, 1917, relating to sentences of imprisonment, the duration of a sentence or commitment must not be fixed, but must be left indeterminate.
    6. Criminal law, § 599

      —when reversal and remandment proper. A judgment in a criminal case will be reversed and the cause remanded to the trial court with leave to the State’s Attorney to move for, and with directions to the court to enter, a proper judgment making a sentence of imprisonment general and indeterminate, where the sentence was improperly for a fixed termi
    Error to the Criminal Court of Cook county; the Hon. Kickham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed March 12, 1919.
    Thomas F. Donovan and John S. Hummer, for plaintiff in error.
    Maclay Hoyne, Edwin J. Baber, Grover C. Niemeyer and Edward E. Wilson, for defendant in error.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

The defendant, Harry A. Dubia, was indicted, charged with doing a banking business and receiving a deposit on September 21, 1916, at a time when he was and knew that he was insolvent. He pleaded not guilty. The jury brought in a verdict finding him guilty as charged in the indictment and fixing his punishment at imprisonment in the penitentiary for 3 years, and a fine of $805. This writ of error is prosecuted for a reversal of that conviction.

The evidence showed that the defendant conducted a private bank at 2007 Blue Island Ave., in the City of Chicago, for about 20 years; that on September 21, 1916, he voluntarily closed his bank and went into bankruptcy, the Central Trust Company being appointed receiver. At 2:30 p. m., just prior to the closing of the bank, J oe Dory deposited with the receiving teller at the defendant’s bank the following: Curreney $225, United States money; gold $10; silver $0.91, and various checks of the value of $166.72, making a total deposit of $402.63.

It was admitted in the course of the oral argument before us, by counsel for the plaintiff in error—and the evidence obviously justifies the admission—that at the time of the deposit in question the defendant was insolvent and had knowledge of that fact.

In the brief of counsel for the defendant it is claimed: First, that there was a variance between the allegations and the proof. Second, that in the indictment against the plaintiff for receiving money, checks and othéí valuable things, when insolvent, the value of the thing embezzled must be alleged and proven in order to determine the amount of the fine to be imposed as punishment. Third, that the court álone and not the jury had authority to direct that the defendant should be imprisoned in the penitentiary. Fourth, that imprisonment in the penitentiary should have been for an indeterminate and not a fixed term.

First. As to the question of variance. We are of the opinion that the allegations in the indictment were sufficient and that the evidence sufficiently proved the allegations. Further, it is not shown that the question of Variance was raised in the trial court and, of course, upon failure to raise it there it is waived. People v. Melnick, 274 Ill. 616; Greene v. People, 182 Ill. 278. In the latter case the court said: “Nothing is better settled than that the objection of variance, to be available upon appeal or writ of error, either in a civil or criminal action, must be urged in the court below, and for the reason that if it is pointed out and insisted upon it may be avoided by amendment or other proofs.”

Second. As to the value of the thing embezzled: The deposit sfip which the receiving .teller gave the depositor, Joe Lory, on September 21, 1916, . showed substantially the following: Currency $225, gold $10, silver $0.91, checks on Chicago banks $166.72. Total $402.63.

The books of the bank contained an account with Joe Lory showing various items of deposits and among them one of $402.63, dated September 21, 1916. One Kroll, the receiving teller and general bookkeeper for the defendant, who himself made the untry of the deposit in the books of the bank, testified that Joe Lory was a regular depositor of the bank; that as receiving teller of the bank he received from Joe Lory “cash for $225; gold for $10; silver amounting to $.91, and various checks amoufiting to $166.72, a total of $402.63”; that “the money went in my—in the receiving teller drawer as per custom”; that the “checks were put through their regular channels; ’ ’ through the bank; that he entered the deposit in the receiving teller record under September 21, 1916; that the $225 consisted of “currency; United States currency,” “bank notes of regular tender in the United States”; that the gold consisted of $10 gold coin of the United States; that the silver was “silver coin of the United States”; that he made an entry in the deposit book of Joe Lory on September 21, 1916, as follows: “September 21, $402.63”; that he made all the entries referred to in the regular course of business as receiving teller for the bank, and that the books of the bank show that the balance of Joe Lory on September 21, 1916, at the. close of business, after crediting him with a deposit of $402.63, was $589.31.

In the schedule filed by the defendant on November 8, 1916, in the District Court in his bankruptcy proceedings, there is set forth the following item: “Joe Lory * * * balance of checking deposit in bank $589.21.” The testimony of Joe Lory himself was to the effect that he deposited “$225 currency, United States money; $10 in gold; $.91 in silver” of the United States, and $166.72 in checks, and that he was not indebted in any way at that time to the defendant and that he has not at any time singe making the de-. posit received any part thereof.

We are of the opinion from the foregoing evidence that (1) as the receiving teller received the checks without objection and by making appropriate record of them on the books of the defendant and in the pass book of the depositor, charged the defendant and gave credit to the depositor, and (2) as the defendant in his schedule of November 8, 1916, 47 days after the deposit was made, recognized the full amount of the deposit, including the checks, as still a debt, and (3) as the receiving teller himself testified that the checks were put through the regular channels,” through the bank, the proof sufficiently established, as far as the requirements of the statute are concerned, the value of the checks which were deposited. In Ellis v. State of Wisconsin [138 Wis. 513], 20 L. R. A. (N. S.) 444, the court said: 1 ‘ True, the check, as it went over the counter, was not money, but it was treated as such between the bank and its customer. It was taken as the equivalent of money at the face value. The money equivalent was placed to the credit of the depositor the same in all respects as if legal tender money had been passed over the counter. The relation of debtor and creditor, as between the bank and the depositor, with the characterization of liability on the one side and expectancy on the other as to payment on demand at any time within the banking hours, was created. ’ ’

Third. As to whether the jury had authority to direct that the defendant should be imprisoned in the penitentiary: Counsel for the defendant insists that whether such punishment should be inflicted should have been determined by the court and not by the jury. The Criminal Code (chapter 38, J. & A. ¶ 3617) provides that the banker receiving the deposit ‘‘shall be termed guilty of embezzlement, and upon conviction thereof, shall be fined in a sum double the amount of the sum so embezzled and fraudulently taken, and in addition thereto, may be imprisoned in the State penitentiary, not less than one nor more than three years. ’ ’

Section 6 of division 14, of the Criminal Code (J. & A. ¶ 4143), provides that where punishment “shall be confinement in the penitentiary, if the case is tried by a jury, the jury shall say in their verdict for what time the offender shall be confined.” Section 7 (J. & A. ¶ 4149) provides “when a fine is also to be inflicted, the jury shall fix the amount of the fine. When either fine or imprisonment in the penitentiary may be inflicted, the jury shall determine which, and the time of confinement or the amount of the fine.” Section 8 (J. & A. ¶ 4146), provides “when the punishment may be either by imprisonment in the penitentiary, or by confinement in the county jail, with or without fine, if the jury will not inflict the punishment of imprisonment in the penitentiary, they shall simply find the accused guilty, and the court shall fix the time of confinement in the jail or fine, or both, as the case may require.” Section 9 (J. & A. ¶ 4147), provides that “when the accused pleads guilty, and in all other cases not otherwise provided for, the court shall fix the time of confinement, or the amount of the fine, or both, as the case may require.”

We are of the opinion that sections 6, 7 and 8, when read together, mean that in such a case as this, where the defendant may be both fined and imprisoned, the jury may determine both the fine and the imprisonment. Section 6 announces that where the punishment is confinement in the penitentiary and the case is tried by a jury “they shall say in their verdict for what time the offender shall be confined,” and section 7 announces that “when a fine is also to be inflicted, the jury shall fix the amount of the fine.” It is but reasonable in construing those sections to conclude that in the instant case the jury did have authority to determine whether or not the defendant should be imprisoned in the penitentiary.

Fourth. That imprisonment in the penitentiary should have been for an indeterminate and not a fixed term. Of course, it is the law that an indeterminate sentence is for the maximum term (People v. Peters, 246 Ill. 351; People v. Joyce, 246 Ill. 124), and counsel for the State argue that since the sentence is for the maximum term it is unimportant that the court put in the maximum term in the judgment; that writing in the judgment the term of 3 years added no force to it; and further, that, inasmuch as the statute of June 15, 1917 (providing for a system of parole) provides that ‘ every person so sentenced shall be held in the respective institution, reformatory or penitentiary, for and during the definite term in said sentence named, subject to transfer, subject to parole * * * and it shall be termed and taken as a part of every such sentence that all the provisions for transfer, parole and discharge * * * shall be a part of said sentence as fully as though written in it,” the defendant is in exactly the same position as if the period of 3 years were eliminated, and,, therefore, fixing the term at 3 years was not prejudicial error. However, in section 2 of the Act of June 25, 1917, it is provided that “except for the crimes enumerated in section 1 of this act, every sentence to the penitentiary * * * shall be a general sentence of imprisonment, and the courts of this State imposing such sentence or commitment shall not fix the limit or duration of such imprisonment,” and accordingly, it is the contention of the defendant that the sentence of imprisonment should have been for an indeterminate and not a fixed term. We agree with the contention of the defendant. The statute is plain and mandatory that the duration of the sentence or commitment shall not be fixed, but indeterminate.

The judgment, therefore, will be reversed and the cause remanded to the Criminal Court of Cook county, with leave to the State’s Attorney to move for, and directions to the court to enter, a proper judgment on the verdict making the sentence of imprisonment general and indeterminate. People v. Boer, 262 Ill. 152.

Reversed and remanded with directions.


text:
    The Russell Company, Appellee, v. Robert Wachman and M. Wachman, Appellants.
    Gen. No. 24,128.
    1. Attachment, § 44

      —when fraudulent concealment of property urith intent to hinder and delay creditors is shown. In an action of attachment against a husband and wife, evidence held sufficient to show that defendants left their former home in another State and came to Illinois surreptitiously and concealed their whereabouts, and undertook fraudulently to conceal their property or effects, so as to hinder and delay their creditors.
    2. Husband and wife, § 8

      —when joint liability shown for goods purchased. Evidence held sufficient to show joint liability of husband and wife for an indebtedness for goods purchased by the wife on credit.
    3. Account stated, § 3

      —when amount of account liquidated. The amount of an account was liquidated where the amount of each item was specified, and it was stated what each was for and the date given and it was only necessary to add them up to ascertain the total amount.
    4. Appeal and erbob, § 1421

      —when judgment not disturbed. The maxim de minimis non curat lex applies, in an attachment suit against a husband and wife to recover the sum of $107.85, where a mistake of $1 in addition was made and there were two items amounting to $1.80 that could not be made part of the jud& ment.
    Appeal from the Municipal Court of Chicago; the Hon. Habry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 12, 1919.
    Thomas J. Sutherland, for appellants.
    Musgrave, Oppenheim & Lee, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a suit in attachment wherein judgment was entered for the plaintiff and against the defendants in the sum of $107.85 with costs.

On March 24, 1917, plaintiff filed an affidavit of attachment reciting, among other things, that the nature of the plaintiff’s claim is “for goods, wares and merchandise sold and delivered by the plaintiff to the defendants at their special instance and request; that the defendants are husband and wife; that under the statutes of Illinois they are jointly liable for the aforesaid goods as family necessaries;” that the defendants “concealed themselves so that process cannot be served upon either of them”; that “they have within 2 years last past fraudulently concealed or disposed of their property so as to hinder and delay their creditors; that they are about fraudulently to conceal, assign or otherwise dispose of their property or effects, so as to hinder and delay their creditors.”

On March 24, 1917, an attachment bond was duly filed by the plaintiff and on the same day a writ of attachment issued, and on March 27, 1917, writ was served on the Baltimore & Ohio Chicago Terminal Railroad Company and on the Michigan Central Railway Company as garnishees. Service was had upon the defendants by publication. On April 19, 1917, the defendants entered a special appearance “for the sole purpose of traversing the affidavit of attachment” and to move to quash the writ and dismiss the suit. On April 19, 1917, leave was given the defendants to file an affidavit of merits and traverse within 8 days. On April 26, 1917, the defendants, by their attorney, filed a special plea requesting that the writ be quashed on the ground that they have not concealed themselves or either of them nor do they now conceal themselves so that process cannot be served upon them or either of them. That neither they nor either of them have within 2 years last past fraudulently concealed or disposed of their or either of their property so as to hinder and delay their creditors; that they are not now and were not at the time of the commencement of said suit about fraudulently to conceal, assign or dispose of their or either of their property or effects so as to hinder and delay their creditors.

The plaintiff offered in evidence certain depositions which were taken in Detroit, together with certain ex-Mbits and certain acts of the Michigan statutes.

The evidence shows that Eobert Wachman and M. Wachman were husband and wife and had been living in Detroit for about 14 years; that he was in the auto supply business and manufacturing specialties for automobiles; that he and Ms wife made purchases of merchandise from time to time from the plaintiff who conducted a store in Detroit; that on the 29th day of December there was a balance due from the plaintiffs to the defendant of $107.85. Plaintiff offered in evidence the entries made in its ledger and also the testimony of one Sparks, the credit man of the plaintiff.

The defendant when called did not deny the claim made by the plaintiff but stated that he was with Ms wife when the purchases were made; that the payments on account that were made prior to the items in the account here sued upon were made by him. The evidence shows that the defendant’s family consisted of himself, his wife and four sons, all of whom were living together. Some time in the early part of March, 1917, the defendant packed up his household goods and shipped them to Chicago, and on the 16th day of March, 1917, he came to Chicago.

The defendant, Eobert Wachman, testified that when he left Detroit he owed a number of bills but had no money to pay them, and that on account of his wife’s health and on account of his financial condition they moved to Chicago “to better” themselves; that he had no other merchandise or property with the exception of his household goods at the time he came to Chicago; that when he left Detroit he was unable to pay the plaintiff’s account.

The plaintiff offered in evidence a copy of a warranty deed dated March 6, 1917, from the defendant and his wife to John Lee and Joseph E. Lee (who were described as his brothers), by which they conveyed a certain lot No. 4, situated in Wayne County, Michigan, subject to a mortgage in the sum of $4,200; the consideration mentioned in the deed is the sum of $1.

The defendant, Robert Wachman, testified that the property mentioned in the warranty deed had been foreclosed and that upon the transfer he received some money—he does not say how much—with part of which he paid some accounts he owed in Detroit, with part of which he paid the freight on the property sent to Chicago, and with part of which he expected to locate in Chicago.

Evidence was introduced by the plaintiff undertaking to show that the defendants left Detroit surreptitiously, but that is contradicted by the defendant, Robert Wachman.

The household goods which were shipped from Detroit occupied a whole car and were sent as freight and billed in the name of the defendant, M. Wachman, the wife. When the car arrived in Chicago the defendant, Robert Wachman, obtained the household goods from the railroad company, paid the charges, and on the 26th day of March, 1917, moved into the premises known as 3446 West Mo-nroe street. Prior to March 26, 1917, after coming to Chicago, the defendant lived with his wife’s mother at 1523 South Lawndale avenue. The defendant, Robert Wachman, when asked if he were the owner of the household goods answered, “Well I purchased it. A man has his interest, or a man has his interest jointly I suppose, but I own the property. I purchased and paid for it.” The defendant also testified that after he arrived in Chicago on March 16, 1917, he did nothing whatever to conceal himself but went about his business, undertaking to get settled in Chicago; that as soon as he came to Chicago he looked for a house; that his household goods did not arrive until 10 days or 2 weeks later. When asked about notifying the plaintiff that he was going to leave Detroit he answered. “I would have jeopardized my entire family interests if I had done that. I was absolutely unable to pay them at that time.”

On September 15, 1917, the trial court found the issues against the defendants, Robert Wachman and M. Wachman, his wife, both as to the attachment and the debt, and rendered judgment against the defendants in the sum of $107.85. This appeal is taken therefrom.

Many points are made in the brief of counsel for the defendants but only a few of them are argued. We shall consider the following: (1) Did the court acquire jurisdiction? (2) Were the defendants jointly liable? (3) Was the alleged indebtedness a liquidated amount? (4) As to the items: “Coat & Alt. 1.50 69.00”; “Petticoat & Alt. .30 15.50.”

(1) The affidavit stated three grounds for attachment: Concealment so that process could not be served; fraudulently concealing or disposing of their property so as to hinder and delay their creditors, and that they were about fraudulently to conceal, assign or otherwise dispose of their property or effects so as to hinder and delay their creditors. The evidence shows that the defendants, who lived in Detroit, Michigan, packed up their household goods and shipped them in a car by freight to Chicago, and went themselves about the same time to the same destination, their purpose being, apparently, to make their residence thereafter in Chicago. When they left Detroit there remained a number of debts due from the husband to various creditors. The evidence, also, shows that on March 6, 1917, just prior to leaving Detroit, the defendant and his wife conveyed a certain piece of real estate, subject to a mortgage in the sum of $4,200, tó John Lee and Joseph E. Lee, who were apparently brothers of the wife, and that the husband received some money as part of the consideration. Further, the testimony of the husband shows that he refrained from notifying the plaintiff that he was going to leave Detroit because, as he stated, “I would have jeopardized my entire family interests if I had done that. I was absolutely unable to pay them at that time.” Considering all of the evidence in the case, it is difficult to resist the conclusion that the defendants left surreptitiously and concealed their whereabouts and undertook fraudulently to conceal their property or effects so as to hinder and delay their creditors. The trial judge came to that conclusion, and we do not feel justified, from the record as it appears before us, in disturbing that judgment.

(2) As to the question of joint liability: the evidence of Sparks, the credit manager of the plaintiff, is to the effect that Mrs. Wachman asked for the credit and he opened the account; that she went to see him personally; that he investigated the matter and extended her credit. .That evidence taken in conjunction with the practically admitted liability of Mr. Wachman sufficiently proves that it was a joint liability for the indebtedness.

(3) The criticism, that the amount is unliquidated, is not justifiable. The items were proven by the books of the plaintiff. Each amount being specified, what it was for, and its date given, it was only necessary to add them up to determine the total amount. Neither the existence of the indebtedness nor its amount depended upon any unascertained contingency.

(4) A mistake of $1 in the addition seems to have been made, and there are two small items, apparently for alterations, one of $1.50 and one for 30 cents which it is claimed could not be made part of the judgment. Under the circumstances we think it is a situation where the principle of the maxim, de minimis non curat lex, applies. Crook v. Rindskopf, 105 N. Y. 476; Chenery v. Stevens, 97 Mass. 77.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Raymond J. Morfa and Walter W. Morfa, trading as Morfa Brothers, Appellants, v. J. M. Rhodes and H. A. Doner, trading as Graceland Garage, Appellees.
    Gen. No. 24,197.
    Automobiles and garages, § 5

      —when garage keeper not entitled to lien on car and may not replevin it. Under the Act of June 21, 1917, sec. 3a, relating to liens by garage keepers upon motor vehicles “kept by them” for charges for keeping and repairs, and section 3b, providing for replevin of motor vehicles, upon which garage keepers acquire liens, anywhere within the jurisdiction of the court, garage keepers are not entitled to a lien for charges where they have voluntarily allowed the owner to taire his car away, and may not maintain an action of replevin to recover possession thereof.
    Appeal from the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Affirmed.
    Opinion filed March 12, 1919.
    Rehearing denied March 25, 1919.
    Ryan & Lewis, for appellants.
    A. B. Dunning and Abel L. Allen, for appellees.

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

   Mr. Justice Taylor

delivered the opinion of the court.

On December 31,1917, the plaintiffs filed an affidavit in replevin, alleging, among other things, that they were entitled to the possession of a certain Marmon limousine automobile; that “on the 15th day of December, 1917, J. M. Rhodes and H. A. Doner (the defendants) doing business as Graceland Garage, wrongfully took and now wrongfully detain” the said, automobile. On December 31,1917, based on the above-mentioned affidavit, a writ of replevin was duly issued and served and the automobile taken by the sheriff from the defendants and delivered, pursuant to the writ of replevin, to the plaintiffs.

On January 9, 1918, each of the defendants filed a separate plea, setting up that the plaintiffs’ action would not lie; that the automobile was the property of the defendant, J. M. Bhodes, and praying for a return of the automobile and for damages and costs.

The evidence of Walter W. Morfa is to the effect that Walter W. Morfa and Baymond J. Morfa were partners and conducted a licensed automobile garage; that they, the plaintiffs, had a claim in the sum of $125.11 against the defendant, Bhodes; that in various conversations with Walter W. Morfa, the defendant, Bhodes, admitted the account and stated that he would pay it later on. The witness was examined somewhat concerning an itemized statement but the contents of that statement do not appear in the record. He was asked concerning an item “December 14th, to parking” and stated that the automobile in question was taken on December 14th by the defendant, Bhodes, into the plaintiffs’ garage. The defendant evidently bought merchandise of the plaintiffs from time to time and kept an open account with them, and at various times his automobile was in the garage of the plaintiffs. On December 14, 1917, the time referred to by Walter W. Morfa, the automobile was in the garage of the plaintiffs for 3 hours and in that time nothing was done upon it; it was there merely in storage, and at the end of the 3 hours it was taken out, apparently without objection, by the defendant Bhodes.

The plaintiff, John Morfa, testified that the defendant, Bhodes, brought the automobile into the plaintiffs’ garage at about 7:15 on the evening of December 14, 1917, and that it was in there for about 3 hours. No other evidence was introduced. On January 16, 1918, the trial judge entered judgment that the defendants “have and recover of and from the plaintiff the possession of the property replevied, herein, and that a writ of retorno habendo issue herein for the return of said property.” From that judgment this appeal is taken.

The contention of the defendants is “that where a party stores an automobile for another he thereby acquires a lien and notwithstanding the fact that he allows the same to go out of his possession, he may maintain an action of replevin for the purpose of enforcing the same.”

The statute dated June 21, 1917, which was an act to amend an act entitled “An act to revise the law in relation to liens” provides as follows: Section 3a “Garage keepers shall have a lien upon any motor vehicle, * * * kept by them, for the proper charges due for the keeping thereof, the repair thereof, the materials furnished thereto and the expenses bestowed thereon at the request of the owner,” etc. By section 3b it is provided that “Any garage keeper acquiring a lien under the provisions of this act upon any motor vehicle * * * may replevin the same * * * for the purpose of enforcing such lien and thereby seize and secure the possession of said motor vehicle * * * wherever the same may be found within the jurisdiction of the court * * #,” etc.

Inasmuch as it is provided in section 3a that garage keepers shall have a lien upon any motor vehicle “kept by them” for the proper charges due for the keeping thereof, it seems difficult to conclude that the legislature intended that a party out of possession through his own voluntary act, as in the instant case, may bring replevin. The-words, “Any garage keeper acquiring a lien under the provisions of this act” which occur in section 3b, would seem to refer to such a lien as is given in section 3a, and such a lien is only given where the motor vehicle is. “kept by them,” and has been taken out of the possession of the lienor against his will. In the instant case, when the replevin suit was instituted by the plaintiffs the automobile was in the possession of the owner, J. M. Bhodes, with the consent of the plaintiffs.

Counsel for the plaintiffs seem to argue that if a garage keeper at any time has possession of an automobile he may thereafter, even though voluntarily he has allowed the automobile to get out of his possession, maintain a lien. With that we are unable to agree. Inasmuch, therefore, as the evidence shows that at the time of the institution of the replevin suit the automobile was rightfully in the possession of the owner, one of the defendants, and the only obligation of the defendants to the plaintiffs was on an open account, for merchandise sold by the plaintiffs to the defendants, we are of the opinion that replevin would not lie.

Finding no error in the record the judgment is affirmed.

Affirmed.


text:
    Alice Burge, Appellee, v. Englewood Motor Car and Garage Company, Appellant.
    Gen. No. 24,292.
    1. Tboveb and convebsion, § 4

      —what not conversion. A mere demand and refusal are not sufficient to constitute a conversion.
    2. Tboveb and convebsion, § 37

      —when burden on plaintiff to show affirmative wrongful act. In an action for damages for conversion of personal property, the burden is on plaintiff to prove some affirmative wrongful act, on the part of defendant, concerning the property itself.
    3. Tboveb and conversion, § 3

      —what are requisites of act to constitute conversion. The act alleged to he a conversion must be positive and tortious, but not necessarily wilful or corrupt, and neither negligence, active or passive, nor a breach of contract, even though it results in the loss of the specific property, constitutes the wrong.
    4. Tboveb and conversion, § 19

      —what not conversion by garage keeper. A garage keeper is not liable for the conversion of a stored car stolen from the garage by some unknown person.

      5. Municipal Coubt op Chicago, § 10

      —what is effect of improperly declaring in trover instead of in case. The fact that the plaintiff, in a fourth-class case in the Municipal Court, of Chicago, improperly declares in trover, instead of in case, does not affect his right of recovery.
    6. Tboveb and convebsion, § 39

      —when verdict unsupported 6y evidence. In an action of replevin in the Municipal Court of Chicago, against a garage owner, which was later changed to one in trover, upon discovery that the property had been stolen by some unknown person, a verdict finding defendant “guilty of having maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff, converted to defendant’s own use the goods and chattels of the plaintiff,” held unsupported by evidence and to be improper in form.
    Appeal from the Municipal Court of Chicago; the Hon. John Richabdson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed March 12, 1919.
    Church, Shepard & Day, for appellant; Howard W. Lewis, of counsel.
    Robert E. Lee, for appellee; Ellis D. Whipp, of counsel.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

On August 22, 1917, the plaintiff filed an affidavit for the replevin of a Ford automobile. The affidavit among other things set up that the defendant wrongfully took and wrongfully detained said automobile from the plaintiff. On the same date a “fourth-class replevin writ” was issued, and on the 24th day of the same month that writ was returned and recited that a demand had been made and that it was “unexecuted as to the within described property.” On September-1, 1917, the defendant entered its appearance, and, on the 17th day of the same month, the court entered an order granting leave to the plaintiff to file a statement of claim in trover instanter and ordered the defendant to file an affidavit of merits within 5 days. A statement of claim in trover was accordingly filed and set up: (1) That the plaintiff was the owner of said Ford automobile of the value of $372.75, and that, being the owner, was entitled to the possession of the property on August 5, 1917; that the said automobile being then in the pos'session of the defendant, the latter, knowing the said automobile to be the property of the plaintiff, “by contriving and intending to injure the plaintiff in this behalf,” has not since the 5th day of August, 1917, delivered the automobile to the plaintiff although often requested so to do, and afterwards, to wit, on the 5th day of August, 1917, converted and disposed of the same to its own use to the damage of the plaintiff in the sum of $500; (2) that the plaintiff was on August 5, 1917, the owner of and entitled to the possession of the said automobile in the value of $372.75; that the said automobile was on August 3, 1917, left with the defendant, then in the business of conducting a public garage in the City of Chicago; that it then and there “undertook to and did, for hire, agree with the plaintiff therein to keep her said property herein described until she should call for same,” and on August 5,1917, she did call for said automobile and demand that the same be delivered to her; that the defendant failed and refused to deliver it to her and wrongfully withheld it from her, and on August 5, 1917, “did convert the same to their own use” to the damage of the plaintiff in the sum of $500.

On September 20,1917, the plaintiff filed an affidavit of merits denying the refusal or failure to deliver; denying conversion to its own use and making the following averments: “That said defendant received said automobile from the plaintiff for the purpose of storing the same in its public garage and undertook only to exercise that degree of care and caution for the safety of said automobile as is ordinarily required to be exercised by an owner of a public garage in caring for an automobile for hire; that said defendant did exercise all due care and caution for the safe care and keeping of said automobile; notwithstanding which some person or persons unknown to said defendant, and while said defendant was exercising all due care and caution for the safe-keeping of said automobile, stole said automobile from said public garage; that said defendant immediately after said theft occurred made diligent search for said automobile and for the person or persons who stole the same, but has been, and still is, unable to find or recover said automobile; that said defendant never wrongfully withheld said automobile from plaintiff or converted it to its own use.”

The evidence shows the following: On August 4, 1917, the plaintiff bought from the Wells Motor Company a Ford automobile, paying therefor the sum of $372.75. Immediately after it was delivered, she took it over to the defendant and asked one Rector, the secretary and treasurer of the defendant, how much it would cost to leave it in the defendant’s garage. Finally arrangements were made that she should pay 25 cents a day. She left the automobile in the defendant’s garage on that day, and from time to time between August 4th and August 12th it was taken out and used and returned to the defendant’s garage by the plaintiff. The defendant’s garage was located on the south side of 64th street between Union avenue and Halsted street. About 10:45 p. m., Sunday, August 12, 1917, the watchman, one George Winterbottom, who had charge of the garage at night, heard an automobile start in the rear of the garage. He started in to investigate and as he got to the interior entrance of the garage, the plaintiff’s automobile, driven by someone unknown to him, came towards him, causing him to get out of the way. It was driven fast by some one the watchman did not recognize. He was unable to stop it, and it has not been seen or heard of since. At the time of the theft there were in the garage altogether about 60 automobiles. The next morning, about 20 minutes past 7, Rector, of the defendant company, called the plaintiff on the telephone and asked her if she had sent any one for her automobile, and she answered that she had not done so. He then told her that it had been out of the garage since 10:45 the night before. The police were notified at once but the automobile was not found. It was admitted by the defendant, as stated in his affidavit of merits, that the automobile was stolen from the defendant’s garage.

At the close of the evidence the jury were instructed that the burden of proof was upon the plaintiff to show by a preponderance of evidence that the Ford automobile in question was lost to the plaintiff by reason of the negligence of the defendant, and unless they believed from the evidence that it was lost by reason of the negligence of the defendant they should find the defendant not guilty. They were also instructed that the keeper of a public garage is not an insurer of automobiles left in his charge but is required to exercise only reasonable or ordinary care to prevent the loss of such automobiles, and that reasonable or ordinary care which is required of the keeper of a public garage in such cases is such care as a man of ordinary prudence and discretion ought to exercise and would be expected to exercise over his own automobiles under the same circumstances. Further, that if they believed from the evidence that the defendant exercised reasonable and ordinary care to prevent the theft of the Ford automobile in'question, but that notwithstanding the exercise of such care the said automobile was stolen from the garage of the defendant, they should find the defendant not guilty; that ordinary care is such care as every prudent person takes of his own goods; that if they found the issues for the plaintiff in assessing the damages, their verdict should be for the value of the automobile left with the defendant on August 12, 1917.

The trial judge submitted two forms of verdict to the jury, one of which, and which was the one returned by the jury, is as follows; “We, the jury, find the defendant, Englewood Motor Car and Garage Company, guilty of having maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff, converted to defendant’s own use the goods and chattels of the plaintiff, and assess the plaintiff’s damages at the sum of $371.15.”

It is now contended by the defendant that, although it is provided in section 18, ch. 119, of the Illinois Statutes (J. & A. ¶ 9203) that when, in replevin, the property is not found and the defendant enters his appearance, “the plaintiff may declare in trover for such property” and “if he shall recover, shall be entitled to judgment for the value thereof or his interest therein, and such damages as he shall have sustained by reason of the wrongful taking and detention, as in other cases of trover,” the plaintiff is not authorized to declare, in an action on the case, for the loss of his property through the negligence of the defendant, or in assumpsit for the breach of a contract to properly care for the property.

The plaintiff’s statement of claim alleges as the sole ground of recovery that the defendant converted the plaintiff’s automobile and disposed of it to its own use, and the verdict of the jury upon which judgment was entered, finds the defendant guilty of “maliciously, wilfully and intentionally” converting the property to its own use. Of course the evidence does not support the verdict. The defendant denies the conversion in its affidavit of merits and the evidence shows that the automobile was not lost through any overt act of the defendant but through the act of some unknown person. At the time the plaintiff made demand for the automobile it was not in the possession of the defendant, and as it is the law that a mere demand and refusal are not sufficient to constitute a conversion, the burden was upon the plaintiff to prove some affirmative wrongful act' on the part of the defendant, concerning the property itself. “The act alleged to be a conversion must be positive and tortious, but not necessarily wilful or corrupt; for neither negligence, active or passive, nor a breach of contract, even though it result in the loss of specific property, constitutes the wrong under consideration.” 38 Cyc. 2008. Of course, if negligence were the proximate cause of the loss, then the defendant would be liable in an action on the case. It is difficult, however, to discover in what way, under the law, the defendant is liable in trover for a conversion.

However, as this is an action of the fourth class, the fact that it is stated to be in trover and not in case would not affect the plaintiff’s right to recover, at least in so far as the mere form of the motion is concerned. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311.

A further contention of the defendant—and which is decisive of this appeal—is that the verdict returned was not supported by the evidence. In L. Fish Furniture Co. v. Reliable Storage & Van Co., 187 Ill. App. 6, which was an action of replevin, later changed to trover, a verdict similar in form to the one in the instant case was held to be erroneous. We are, therefore, of the opinion that the particular form of verdict here under consideration, and which was presented to and returned by the jury, constitutes error. Although it followed the averments in plaintiff’s statement of claim in trover, it was entirely unsupported by the evidence. Considering the action as one in case, the verdict was improper, and considering it as an action in trover, the evidence did not prove a conversion.

On account of the errors referred to, the judgment will be reversed and the cause remanded.

Reversed and remamded.


author: Mr. Justice Thomson

text:
    Sidney C. Eastman, Trustee, Complainant, v. George S. Dole et al., Defendants. Henry W. Leman, Executor, Appellee, v. Sidney C. Eastman, Appellant.
    Gen. No. 23,289.
    1. Contempt, § 1

      —what constitutes criminal. When the contempt consists of something done or omitted in the presence of the court, tending to impede or interrupt its proceedings or lessen its dignity, or, out of its presence, in disregard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the contempt proceeding which follows is punitive, and the fine or imprisonment inflicted is by way of punishment for the wrongful act and to vindicate the authority and dignity of the courts, and such contempt is criminal contempt.
    2. Contempt, § 1

      —what constitutes civil. Where a party to a civil suit, having the right to demand that the other party do some act for his benefit and to his advantage in the litigation, obtains an order of the court commanding it to be done, and the party so ordered refuses to do as directed, the court may proceed as for a contempt, and such contempt is civil contempt.
    3. Contempt, § 1

      —distinction as to objects of criminal and civil proceedings for. In criminal contempt proceedings, the object of the proceedings is, by punishment of the wrongdoer, to vindicate and preserve the dignity and respect for the court, while in civil contempt proceedings the penalty inflicted is by way of execution of the court’s order.
    4. Contempt, § 80

      —when civil proceedings for are at cm end. Civil contempt proceedings are at an end as soon as the party in whose interest the order of contempt was entered is satisfied.
    5. Contempt, § 70

      —when civil contempt order imposing fine is erroneous. A civil contempt order imposing a fine of $500 "as a punishment” is erroneous, where the terms of the original order have been complied with.
    6. Contempt, § 70

      —what requisites of civil contempt order prescribing punishment. Any order prescribing a fine or imprisonment, or both, in a case of civil contempt, should be made conditional upon compliance with the terms of the original order.
    7. Appeal and- ebrob, § 1109

      —when dismissal proper. The existence of an actual controversy is an essential reauisite to appellate jurisdiction, and a reviewing court will dismiss an appeal or writ of error, where facts are disclosed which show that such a controversy does not exist, even though such facts do not appear in the record.
    8. Appeal and error, § 1170

      —when only moot question involved. Only a moot question is presented on an appeal in civil contempt proceedings, when the original orders on which the contempt proceedings were based have, since perfection of the appeal, been vacated and set aside in the same proceedings in which they were entered.
    9. Contempt, § 74

      —when order finding trustee guilty of civil and imposing punishment reversed and not dismissed. The appeal from an order finding a trustee, a party to a suit for the approval of his accounts and for his discharge, in contempt of court for refusal to pay money to certain persons, and ordering that he be imprisoned until he obeys the orders of the court, and until further order of court, or until he be released by due process of law, will not be dismissed where the original orders on which the contempt proceedings were based have, since perfection of the appeal, been vacated and set aside in the proceedings in which they were entered, but the order will be reversed.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate "Court at the March term, 1917. Certiorari denied by Supreme Court (making opinion final).
    Reversed.
    Opinion filed March 12, 1919.
    Rehearing denied March 28, 1919.
    Chytratis, Heady & Frost, Carl V. Wisher and John Peter Barnes, for appellant.
    Henry W. Leman, pro se; Frank H. Culver, of counsel.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

Sidney C. Eastman, trustee of the estate of James H. Dole, deceased, filed his hill in equity, praying for the approval and settlement of his accounts and that he might be permitted to resign as trustee and turn over the estate to another who might be appointed by the court. The heirs and legatees under the will were made parties defendant. The case was referred to a master and many hearings followed, covering an extended period of time.

During the course of this litigation three orders were entered, by different judges of the Circuit Court, directing the trustee to pay out money. The first order was entered April 7, 1915. This order directed the trustee to pay the sum of $5,000 to the solicitor for Frances E. Dole Leman, one of the life tenants under the trust, upon her giving bond conditioned to refund the sum so advanced, to the trustees, “in the event that in the adjustment of all the rights and equities herein * * * it be determined at any time hereafter that” said sum did not belong and was not due to her.

This order was complied with and the trustee paid over the $5,000 as directed on April 10, 1915.

The next one of these orders was entered on September 27, 1915, and called for the payment of a like amount to the solicitor for Mrs. Leman. About two weeks later, namely, on October 12, 1915, Mrs. Leman died, and her husband, Henry W. Leman, as executor of her estate, was substituted as a party to the litigation. The last of these orders was entered July 5, 1916, and directed the trustee to pay Henry W. Leman as executor of the estate of Frances E. Dole Leman, deceased, the sum of $2,500. In other respects this order was similar to the others. The trustee appealed from both of the last two of these orders but the appeals were dismissed. He never complied with either of them and in due time he was ordered to show cause why he should not be attached for contempt of court by reason of his failure to do the things he was directed to do by these orders, and after a hearing the court found that no sufficient cause had been shown by the trustee why he had not obeyed said orders, and that he had and did wilfully refuse to obey said orders and that his conduct had been and was contumacious and reprehensible and therefore the court, “ordered and adjudged that said Sidney C. Eastman is guilty of a wilful contempt of this court and that he be and he is hereby fined therefor the sum of five hundred dollars ($500) as a punishment for said wilful contempt of this court, and that he be committed to the custody of the Sheriff of Cook County, Illinois, and confined in the County Jail of Cook County, Illinois, until he obeys said orders of this court of September 27, 1915, and July 5, 1916, respectively, and until the further order of this court, or until he be released by due process of law, and that the warrant of this court do issue, directed to the Sheriff of Cook County, Illinois, for that purpose and as is herein above ordered.”

In connection with his appeal from that order, the trustee has made a motion to reverse the order on the ground that after it had been entered and appeal therefrom had been perfected, the main case came on for final hearing in the trial court, and that in the adjustment of all the rights and equities of the parties therein, it had been determined that the sums in question did not belong and were not due to the parties to whom the trustee had been directed to pay them, and that in the final decree entered in said cause, the two orders, which the trustee had refused to obey as a result of which he had been adjudged in contempt of court, had been vacated and set aside.

The law applicable to this situation is not entirely free from difficulty, nor are the decisions in the various jurisdictions in complete harmony. But there can be no doubt of the fact that there is a clear distinction between criminal and civil contempt of court.

When the contempt consists of something done or omitted in the presence of the court, tending to impede or interrupt its proceedings or lesson its dignity or, out of its presence, in disregard or abuse of its process, or in doing some act injurious to a party protected by the order of the court, which has been forbidden by its order, the contempt proceeding which follows is punitive and the fine or imprisonment inflicted is by way of punishment for the wrong act and to vindicate the authority and dignity of the People as represented in and by their judicial tribunals. This is what is known as criminal contempt. But where a party to a civil suit, having the right to demand that the other party do some act for his benefit and to his advantage in the litigation, obtains an order of the court commanding it to be done, and the party so ordered refuses to do as directed, the court may proceed as for a contempt, and this is what is known as a civil contempt. "Whatever the court does in the latter class of cases, whether by way of ordering a fine or imprisonment, it acts for the purpose of advancing the civil remedy of the other party to. the suit. While in such a situation, the public authority, as represented by the court, is vindicated, that result is incidental to the main object of the action of the court, which is remedial, or a means to the end that the suitor may benefit in the act thus compelled to be done. In the first class of cases the object of the proceeding is, by punishment of the wrongdoer, to vindicate and preserve the dignity of and respect for the court, while in the latter the penalty inflicted is by way of execution of the court’s order. Lester v. People, 150 Ill. 408, 424, 425; Crook v. People, 16 Ill. 534, 538; Buck v. Buck, 60 Ill. 105, 106; Leopold v. People, 140 Ill. 552, 556, 559; People v. Diedrich, 141 Ill. 665, 669, 670; Holbrook v. Ford, 153 Ill. 633, 647; Swedish American Tel. Co. v. Fidelity & Casualty Co. of New York, 208 Ill. 562, 572; O’Brien v. People, 216 Ill. 354, 368, 369; Hake v. People, 230 Ill. 174, 185; Barnes & Co. v. Chicago Typographical Union No. 16, 232 Ill. 402, 409; Rothschild & Co. v. Steger & Sons Piano Mfg. Co., 256 Ill. 196, 201.

In this class of cases the party litigant alone, in whose interest the order has been entered, is interested in its enforcement and, the moment he is satisfied, the contempt proceedings are at an end. A motion to commit for a civil contempt mav be answered by showing that the party in interest has waived it. Holbrook v. Ford, supra.

Where the order entered is directory, as it is where one party to a suit is directed to pay another a sum of money, and the order is not complied with, resulting in the party so failing to comply with the order being adjudged in contempt of court and he is fined or committed to jail, or both, and later the original order is vacated for any reason, the contempt proceedings necessarily fall. There could be no other result for, in such a contempt, the party in contempt could only be relieved of bis contempt by his compliance with the order. Swedish-American Tel. Co. v. Fidelity & Casualty Co. of New York, supra. If, as a result of such alleged contempt, a fine were ordered, the respondent could not, by payment of the fine, absolve himself from, contempt, nor could he do so by serving the term of imprisonment prescribed, if that is what the court ordered. Lester v. People, supra. And if, as a result of the alleged contempt, the court orders the respondent committed to jail, there to remain until he complies with the original order, as in the case at bar, and subsequently the original order is vacated and no longer exists, of what moment can the imprisonment be thereafter?

The contempt order appealed from was erroneous in imposing a fine of $500 “as a punishment.” There is nothing in the record to show any criminal contempt on the part of the trustee, Eastman. Where an order is entered for the benefit of a party litigant, noncompliance with that order can never be construed as a criminal contempt but only as a civil contempt. In all such cases a compliance with the terms of the original order will entitle the respondent to his discharge and, whatever order may have been entered prescribing a fine or imprisonment, or both, becomes inoperative. It is, therefore, improper in such a case to impose a fine or a definite term of imprisonment “as a punishment” for noncomplianee with the terms of the original order. Rothschild & Co. v. Steger & Sons Piano Mfg. Co., supra. Any order prescribing a fine or imprisonment, or both, in a case of civil contempt should be made conditional upon compliance with the terms of the original order.

The contempt here involved, being civil only, fell when the original order was vacated and set aside. Red River Potato Growers’ Ass’n v. Bernardy, 128 Minn. 153; Brunson v. Brunson, 91 S. C. 411, 74 S. E. 928; State v. Nathans, 49 S. C. 199, 207; Pelzer, Rodgers & Co. v. Hughes, 27 S. C. 408, 418; In re Hall, 10 Mich. 210.

Appellees have called our attention to a number of cases but in our opinion none of them are in point. In no case cited was there such a situation as the one involved here, where the original order was entirely directory and subsequently vacated.

Appellees contend that this court cannot consider matter dehors the record but must decide the issue on the record alone. This is not the law. The existence of an actual controversy is an essential requisite to an appellate jurisdiction, and a reviewing court will dismiss an appeal or a writ of error where facts are disclosed which show that such a controversy does not exist, even though such facts do not appear in the record. Wick v. Chicago Tel. Co., 277 Ill. 338, 341; Donahoe v. Owens, 277 Ill. 318, 324.

The matter dehors the record, brought to our attention in the case at bar, consisting of a certified copy of the final decree entered in the trial court in the main case, as an incident to which this contempt proceeding arose, establishes the fact that the original orders on which the contempt proceeding was based have, since the contempt order was entered and this appeal therefrom perfected, been vacated and set aside in the very proceedings in which they were entered. That being the case, there is now nothing but a moot question pending before this court in this contempt proceeding.

This case, moreover, is not one in which the -appeal should be dismissed, because that would leave the contempt order to be enforced as rendered, which the facts, which have been presented in support of this motion, show is no longer possible. The trustee could not be committed to jail there to remain until he had complied with orders which have since been vacated. Gulf, C. & S. F. Ry. Co. v. Dennis, 224 U. S. 503. Of course he could be committed and immediately discharged on habeas corpus, on the strength of the vacation of the original orders in and by the final decree, but the law will not require a useless thing to be done.

For the reasons stated, the motion is allowed and the order appealed from is reversed.

Beversed.


text:
    Arthur B. Greenwood, Administrator, Appellant, v. John R. Thompson Company, Appellee.
    Gen. No. 24,079.
    1. Saxes, § 388

      —what remedies available to one damaged, by breach of warranty. One who is damaged by a breach of warranty may bring an action on the case, based upon the alleged wrongful act of the defendant in committing the breach, or he may bring an action in assumpsit, based upon the contractual relation existing and defendant’s failure to fulfil his express or implied promise of warranty.
    2. Saxes, § 398

      —non-necessity of alleging scienter in action on ease for breach of warranty. In an action on the case for breach of warranty, the gravamen of the action is not fraud and deceit, but the wrongful act of defendant in making a false warranty, and therefore scienter need not be alleged or proven.
    3. Innkeepers, § 5

      —when liable for selling unwholesome food. The law imposes upon a restaurant keeper an implied warranty that the food he serves and sells to his patrons is wholesome and fit to be eaten, and he will be liable if it proves otherwise, whether he was negligent or not.

      4. Innkeepers, § 5

      —when liable for selling unwholesome frankfurter sausages. The rule that a restaurant keeper is liable for serving and selling unwholesome food, upon an implied warranty of its fitness, irrespective of any question of negligence, applies where the food involved is in air-tight casings, such as frankfurter sausages.
    5. Innkeepers, § 5

      —when count in declaration in action for damages for sale of unwholesome food is sufficient. A count of a declaration, in an action for damages against a restaurant keeper for the sale of unwholesome food, which, after setting-up, the relation of restaurant keeper and patron, proceeds by saying, “Whereby the said defendant then and there warranted,” etc., was sufficient upon demurrer, though it alleged neither an express warranty by defendant with knowledge that it was false, nor negligence on his part in preparing and serving the food in question.
    6. Death, § 36

      —when count in action against restaurant keeper for damages for death of patron due to unwholesome food is sufficient. A count in a declaration against a restaurant keeper for damages for the death of a patron as a result of being furnished with unwholesome food, which was based upon the alleged wrongful act of defendant in failing to fulfil the duty imposed upon it by law of serving wholesome food, is within the provisions of chapter 70, sec. 1, of the statutes (J. & A. V 6184), and sets forth a cause of action which was good upon demurrer.
    7. Innkeepers, § 5

      —when count of declaration in action for damages for death of patron due to unwholesome food is sufficient. Aj restaurant keeper is engaged in selling the food served to patrons and therefore is within the provisions of section 7 of the Criminal Code (J. & A. If 3445), applying to those who “sell or offer to sell or keep for sale any flesh of any diseased animal or other corrupt or unwholesome provision”; and a count of a declaration, in a suit for damages against a restaurant keeper for death of a patron from the sale of unwholesome food, which was based upon a violation of such statute, set up a good cause of action and the court erred in sustaining a demurrer thereto.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded with directions.
    Opinion filed March 12, 1919.
    Samuel Gr. Hamblen, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee.

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

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

   Mr. Justice Thomson

delivered the opinion of the court.

This is an action on the ease brought by Arthur B. Greenwood as administrator of the estate of Clarence E. Greenwood, deceased, under section 1, ch. 70, Illinois Statutes (J. & A. ¶ 6184), by which he seeks to recover damages resulting from the death of the deceased, which is alleged to have been caused by the wrongful act of the defendant, John R. Thompson Company. The plaintiff filed a declaration consisting of three counts. To the first count, defendant pleaded the general issue and certain special pleas and to the second and third counts, pleas in abatement. The latter pleas were sustained and plaintiff had leave to file amended second and third counts, which he did. General demurrers were filed to these new counts and these were sustained and plaintiff excepted. Later defendant withdrew its pleas to the first count and filed a general and special demurrer thereto which was also sustained. Plaintiff elected to stand by the count and the trial court dismissed the suit. On this appeal by the plaintiff there is therefore involved, the question of the sufficiency of the three counts to which the trial court sustained demurrers.

In the first count of his declaration, the plaintiff alleges that the defendant was a restaurant keeper and that the deceased purchased certain food from him for immediate consumption in said restaurant,

“Whereby the said defendant then and there warranted that the said food so sold and delivered by it to the deceased was then and there good and wholesome food and safe to be eaten; but the said defendant, by its said agents and servants, then and there so carelessly, improperly and wrongfully served and sold the said food aforesaid to the said deceased when the said food was not then and there good and wholesome food, but * * * Was, in fact, unwholesome, poisonous, dangerous and unfit to be eaten, * * * that by reason thereof, the said deceased,' without knowledge or notice of any kind as to the condition of said food, and relying on said warranty of the defendant that the said food was then and there good, pure and wholesome food and fit to be eaten, did then and there eat and partake of the said food * * * and by reason of the said deceased so eating such food aforesaid, he then and there became” poisoned and died.

This is clearly a count in case for an alleged breach of an implied warranty, and not in assumpsit as defendant contends. The warranty is not set up as a part of any alleged express promise made by defendant but the count, after setting forth the relation of restaurant keeper and patron, as existing between defendant and plaintiff’s intestate, proceeds by saying, “Whereby the said defendant then and there warranted,” etc.

Where one is damaged by a breach of warranty, he has a choice of two remedies. He may bring an action on the case, based upon the alleged wrongful act of the defendant in committing the breach, or he may bring an action in assumpsit based upon the contractual relation existing and the defendant’s failure to fulfil his express or implied promise of warranty. 1 Chitty on Pleading, star pages 153, 154, 16th Am. Ed. p. 198; 35 Cyc. 444; 1 C. J. 1021; Nevin v. Pullman Palace Car Co., 106 Ill. 222, 236.

' The ancient remedy for a false warranty was an action on the case sounding in tort. The remedy by assumpsit was adopted later and apparently to enable the pleader to be in a position to add the money counts. Schuchardt v. Allen, 1 Wall. (U. S.) 359, 368; Vanleer v. Earle, 26 Pa. St. 277, 279.

Where an action on the case is brought for breach of warranty, the gravamen of the action is not fraud and deceit but merely lies in the wrongful act of the defendant in making a false warranty and therefore scienter need not be alleged nor must it be proven. The defendant may even have made the false warranty in perfect good faith and believing it to be true, but nevertheless he will be liable if the warranty proves false, for in undertaking to warrant, whether that undertaking be in the form of his express promise, or a burden imposed upon him by the law as an incident to his occupation, he takes all the consequence of the falsity of the warranty, if it proves such, irrespective of whether or not he knew it to be false. 1 Chitty on Pleading, star page 403, 16th Am. Ed. p. 507; 1 C. J. 1021; Schuchardt v. Allen, 1 Wall. (U. S.) 359; Williamson v. Allison, 2 East 446; 2nd Am. Ed. vol. 1, p. 537, 539; Trice v. Cockram, 8 Gratt. (Va.) 442, 450; Carter v. Glass, 44 Mich. 154; Arnold v. White, 153 Mich. 607, 610; Norton v. Doherty, 3 Gray (Mass.) 372, 373; Wallace v. Tanner, 118 Ill. App. 639, 641.

In discussing this subject, in his work on the Common Law, Justice Holmes says:

“The question is, what known circumstances are enough to throw the risk of a statement upon him who makes it, if it induces another man to act, and it turns out untrue. Now, it is evident that a man may take the risk of his statement by express agreement, or by an implied one which the law reads into his bargain. He may in legal language warrant the truth of it, and if it is not true, the law treats it as a fraud, just as much when he makes it fully believing it, as when he knows that it is untrue, and means to deceive. If, in selling a horse, the seller warranted him to be only five years old, and in fact he was thirteen, the seller could be sued for a deceit at common law, although he thought the horse was only five. The common-law liability for the truth of statements is, therefore, more extensive than the sphere of actual moral fraud” (p. 135).

We therefore hold that it is not the law, as defendant contends, that an action on the case will lie for breach of warranty, only when the warranty is knowingly and deliberately false.

In further support of its demurrer to the first count the defendant contends that no implied warranty that the food it serves is good and wholesome is imposed upon the keeper of a restaurant by the law, but that one so engaged is liable for damages caused by the eating of unwholesome or poisonous food only when it can be shown that the serving of such food is the result of negligence on the part of the keeper of the restaurant, and that the first count is demurrable inasmuch as it makes no charge of negligence.

It has been held repeatedly in this State that a retail dealer in foodstuffs, selling the same for domestic use and consumption, impliedly warrants that such" food stuffs are sound and wholesome and fit to be eaten, and he is liable in damages if they prove to be otherwise, whether he was aware of their condition or not. These cases make an exception to the ordinary rule of caveat emptor, squarely upon the ground'of public policy. Wiedeman v. Keller, 171 Ill. 99; Sloan v. F. W. Woolworth Co., 193 Ill. App. 620; Chapman v. Roggenkamp, 182 Ill. App. 117. In the last two cases cited the rule is extended to apply to cases involving the sale of food in sealed cans.

The only authority in Illinois on the question of the liability of the keeper of a restaurant as distinguished from a so-called retail dealer is found in the case of Sheffer v. Willoughby, 163 Ill. 518., In that case the plaintiff brought an action of trespass on the case, alleging that she had been made ill by eating unwholesome food in the restaurant of the defendant. The action was based solely on the alleged negligence of the defendant, in preparing and serving the food in question. The court held that the negligence alleged was not proven by the evidence. The plaintiff claimed that having proven that she ate the oyster broth at defendant’s restaurant, and in consequence became sick, her case is made out. The court, as to this contention says: “If this rule were adopted plaintiff would be relieved from proving the most important element of her declaration,—the negligence of defendants,—which is really the foundation of the action. This would, in effect, make the restaurant keeper an insurer. Such a rule is not correct on principle, nor has it been sustained, so far as we are advised, by any respectable authority.”

At the time of this decision by our Supreme Court, the Appellate Court had rendered a decision in the case of Wiedeman v. Keller (58 Ill. App. 382), to the effect that,—when a vendor of provisions has no notice, and cannot, by the exercise of reasonable or ordinary care, ascertain its unwholesome or unsound condition, there is no implied warranty of the soundness of the provisions not prepared or manufactured by the vendor. The Supreme Court, in the opinion in the case of Sheffer v. Willoughby, supra, refers to the decision of the Appellate Court in Wiedeman v. Keller, supra, and says, “under the rule laid down in the case cited, there could be no liability” (in Sheffer v. Willoughby). After the decision of Sheffer v. Willoughby by the Supreme Court, that court decided the appeal from the Appellate Court in the case of Wiedeman v. Keller, and reversed this court, holding that there is an implied warranty as to the wholesomeness of the food sold by a retail dealer, the same Justice of the Supreme Court writing both opinions. In the opinion last referred to, the previous decision in Sheffer v. Willoughby is referred to, and the court says that it has no bearing on the case of Wiedeman v. Keller, as it “was predicated by the plaintiff upon the sole ground of the negligence of the defendant.”

The only point before the court in Sheffer v. Willoughby was the question of whether the charge of negligence brought by the plaintiff was made out by the proof, and the reference to this decision which is made by the court in deciding Wiedeman v. Keller would seem to indicate that the court did not wish to be understood as passing upon any question beyond that, in deciding Sheffer v. Willoughby.

The authorities which bear directly on the question of whether the keeper of a restaurant is liable under ’an implied warranty that the food he furnishes patrons is wholesome and fit to be eaten are not in accord. Those which hold that he is not so liable, but is merely liable for such damages as may be shown to be the result of his negligence, take the position that in serving a patron with food the innkeeper or restaurant keeper does not sell him the food but, adopting a quaint phrase found in Parker v. Flint, 12 Mod. 254, decided in 1701, they say that the restaurant keeper, “does not sell but utters his provision.” Thus holding that food furnished by a victualer is not a sale, they say it is idle to seek analogies derived from implied warranties in sales of food by retail dealers. Beale on Innkeepers and Hotels, sec. 169; Valeri v. Pullman Co., 218 Fed. 519; Merrill v. Hodson, 88 Conn. 314; Friend v. Child’s Dining Hall Co. (Mass.), see dissenting opinion, 120 N. E. 407, 411.

On the other hand, the authorities which hold the restaurant keeper liable as an insurer under an implied warranty take the position that the transaction between the keeper of the restaurant and his patron does involve a sale of the food ordered and served. Among the authorities supporting the latter proposition are: Commonwealth v. Worcester, 126 Mass. 256; Commonwealth v. Warren, 160 Mass. 533; State v. Lotti, 72 Vt. 115; People v. Clair, 221 N. Y. 108; Commonwealth v. Phœnix Hotel Co., 157 Ky. 180; Commonwealth v. Miller, 131 Pa. St. 118.

Among the cases that hold that inasmuch as the transaction of the restaurant keeper and his. patron amounts to a sale, the former is in the same position as a retail dealer in food, and must be held to impliedly warrant that the food he serves and sells his patron is fit and wholesome, are Leahy v. Essex Co., 164 N. Y. App. Div. 903, 148 N. Y. Supp. 1063; Barrington v. Hotel Astor, 171 N. Y. Supp. 840; Friend v. Childs Dining Hall Co. (Mass.), 120 N. E. 407.

In our opinion, this must be held to be the rule of law applying to restaurant keepers. Any other rule, as applied to modem restaurants, would be inconsistent with the decisions of our Supreme Court involving the liability of retail dealers. No reason can be advanced for holding, with reference to many keepers of restaurants who conduct the business both of supplying food to patrons for immediate consumption by them on the premises and also to customers who carry it away and consume it elsewhere (such as we know the business of this defendant to be), that in the former situation the liability of the proprietor of the restaurant shall be limited to such damages as may be shown to result from his negligence, while in the latter situation he shall be liable under an implied warranty that the food he supplies the customers is wholesome and fit to be eaten and shall thus be liable for damages if the food proves otherwise, whether he was negligent or not.

The patron of the restaurant keeper who consumes his food on the premises is quite as helpless to protect himself against deleterious food as is the customer who takes the food he buys away from the premises and consumes it elsewhere. The opportunity for the restaurant keeper, who prepares and furnishes the food in both cases, to discover and provide against deleterious food is as ample in one case as in the other. Friend v. Childs Dining Hall Co., supra. And, in either of those eases involving the restaurant keeper,. his opportunity would seem to be more ample than the case of the dealer who has nothing whatever to do with the preparation of the food.

That this rule should apply, where the food involved is in air-tight casings, such as frankfurter sausages, which in part made up the food served in the case at bar, follows from the decisions of our Supreme Court, applying the rule to dealers where the food involved was in sealed tin cans.

Our conclusion is that the first count of plaintiff’s declaration set forth a good cause of action and that the demurrer interposed thereto by the defendant should have been overruled.

In the amended second count, the plaintiff alleged that the defendant was “engaged in the business of running, operating and conducting a restaurant * * * wherein it sold, vended and served to customers for an agreed price then and there paid, foods and viands for immediate consumption in its said restaurant, whereby it became and was the duty of the defendant to sell, vend and serve to customers so purchasing for immediate consumption therein, only good, safe, pure and wholesome food, and not poisonous or destructive to human life.” It is therein further alleged that the plaintiff’s intestate purchased and paid for certain food in the defendant’s restaurant and that “the said food was not good, safe, pure, sound, healthful and wholesome food and fit for human consumption, but was in fact unwholesome, impure, poisonous and destructive to human life,” and that as a direct result of the consumption thereof by said intestate he became sick and died.

It will be seen that this count is not based upon the alleged breach of an implied contract but upon the alleged wrongful act of the defendant in its failure to fulfil the duty imposed upon it by law as to plaintiff’s intestate as one of its patrons. The selling and serving of wholesome food is alleged in the count as a duty imposed on the defendant by law. The failure of the defendant to; fulfil that legal duty is the wrongful act complained of. The action is therefore within the provisions of chapter 70, sec. 1, of our statutes (J. & A. ¶ 6184) and the count set forth a good cause of action and the demurrer interposed by the defendant should have been overruled.

The amended third count, after the opening allegations, states, “that there was then and there in full force and effect a certain law of the State of Illinois providing that no one should sell any flesh of any .diseased animal, or other corrupt or unwholesome food or provision, but that disregarding the rights of the deceased and the said statute the said defendant did then and there sell, vend and serve to said deceased such food aforesaid, which was then and there, unknown to said deceased, unwholesome, impure, poisoned and unfit for human consumption, and that the deceased partook thereof, and then and there, as a direct result of such wrongful act and default of defendant, became and was sick,” and so on.

In support of this count, plaintiff says he is relying on the provisions of section 7, of the Criminal Code (J. & A. ¶ 3445) and also the Pure Food Law of 1907. The statute first referred to has to do, among other things, with those who “sell or offer to sell or keep for sale any flesh of any diseased animal or other corrupt or unwholesome provision.” If one acts contrary to the provisions of such a statute as this, it gives rise to an action at law for damages on the part of any person injured thereby. United States Brewing Co. v. Stoltenberg, 211 Ill. 531; H. Channon Co. v. Hahn, 189 Ill. 28; Cada v. The Fair, 187 Ill. App. 111; Sloan v. F. W. Woolworth Co., 193 Ill. App. 620; Wistafka v. Grotowski, 205 Ill. App. 529.

In our opinion, the language of the statute referred to must be held to apply to the keeper of a restaurant as well as to one who merely sells the articles referred to. While the restaurant keeper performs a service in the preparation and serving of the food ordered by his patrons, under the authority of the cases we have heretofore referred to, we hold that he also sells to him the food which the latter consumes. Commonwealth v. Worcester, supra; Commonwealth v. Warren, supra; State v. Lotti, supra; People v. Clair, supra; Commonwealth v. Phœnix, supra; Commonwealth v. Miller, supra.

It follows that this count set up a good cause of action and the trial court erred in sustaining the demurrer thereto.

For the reasons stated the judgment of the Superior Court is reversed and the cause remanded to that court with directions to overrule the demurrers to the first and the amended second and third counts of the declaration filed herein.

Reversed and remanded with directions.