text:
    H. E. Steinweg, Defendant in Error, v. Antiseptol Liquid Soap Company, Plaintiff in Error.
    Gen. No. 16,151.

      Corporation's — how by-laws cannot be amended. Stockholders of a corporation have no power to amend its by-laws adopted by its board of directors.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed March 14, 1912.
    Chatty Bros. & Jarvis, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court for thirty-five dollars against the defendant. Plaintiff- stated his claims as follows: “Plaintiff’s claim is for director’s fees at $5 per month”.

Material facts are: Defendant is a corporation. There is evidence tending to show that at a regular annual meeting of the stockholders of said corporation held January 9,1908, a resolution was adopted by said stockholders purporting to amend article 5, section 8 of its by-laws, said amendment reading as follows: “Each director except secretary and treasurer shall receive an attendance fee of $5 per month at its regular meeting.” The by-law thus sought to be amended by the stockholders had been adopted at a meeting of the board of directors April 9, 1906, and was as follows :

“Sec. 8. Directors (as such) shall not receive any stated or fixed salary for their services, but may receive compensation for work actually done by resolution passed by a majority vote by ballot at any regular or special meeting of stockholders, such compensation to depend upon the directors being present at the opening of such regular or called meeting of directors and continuing present until adjournment.”

The plaintiff testified that in the year 1908 he was a director of the corporation, and as such attended the regular meetings of the board of directors for the months of January, February and April of that year. He was not present at any March meeting apparently, but states that he was paid the fee for attendance in January, February and March. For the other nine monthly meetings of the board he received nothing and claims that there is due him $45, being $5 per month for each of nine monthly meetings of the board which he did not attend. He says he attempted to attend the meetings held in May, June and Jnly of that year, but was not permitted to do so. There is other evidence to the effect that he did not attend or try to attend any but the June meeting. It appears further that at an adjourned special meeting of the stockholders of the corporation held May 1, 1908, resolutions had been adopted by said stockholders removing plaintiff from office as vice-president and also as a director. There is evidence tending to show that each of the other directors of the corporation who attended regular monthly meetings of the board of directors during the year 1908 claimed and was paid the sum of $5 for each of such regular meetings they attended.

It appears to be undisputed that tbe plaintiff had been paid $5 for attendance at each of the meetings of the directors which he actually attended. Section 8 of the by-laws of the Company regularly adopted by the board' of directors and above quoted provided that directors should not receive any stated or fixed salary, but might receive compensation from the stockholders for work actually done, at meetings of the directors, when they were present at the opening of any such meeting and continued present until adjournment. Such compensation however could ouly be paid when so directed by resolution adopted at a regular or special meeting of stockholders, and no such resolution appears to have been adopted authorizing such payment to plaintiff nor could any under the by-laws properly be so adopted for any meetings which plaintiff did not attend at the opening' and remain at until the close. There were no meetings which he attended other than the three for which it is admitted plaintiff has been fully paid.

It is true the stockholders seem to have undertaken to amend the by-laws and to provide by resolution of the stockholders that “each director shall receive an attendance fee of $5 per month at” regular meetings. This however was not such resolution as said section 8 of the by-laws provided for, and the stockholders had no authority to amend the by-laws in the manner they seem to have tried to do. The Manufacturers & Exhibition Building Co. v. Landay, 219 Ill. 168-177; Independent Brewing Association v. Klein, 135 Ill. App. 234-248. In the first of the two cases cited, the Landay case, the statute in reference to corporations is quoted (p. 173), wherein it is provided (Hurd’s Stat. 1903, Sec. 6, p. 473) that “The corporate powers shall be exercised by a board of directors or managers * * * and the directors or managers may adopt bylaws for the government of the officers and affairs of the Company;” and it is said (p. 177): “If the stockholders have no right to make by-laws why should they have any voice in amending them? The law charges the board of managers or directors with the duty of making the by-laws necessary for the proper conduct of the business of the corporation.” In the second— the Klein case — it is said (p. 148): “The duties and powers of enacting by-laws of a corporation are entrusted by the statute to the directors. The concurrence of the stockholders is not needed and if procured adds no weight to their validity.”

Whether the stockholders had the power to remove plaintiff from the office of director, as they undertook to do, we have no occasion to consider at this time in view of the conclusion that under the by-laws plaintiff is not entitled in any event to recover for the nine meetings he failed to attend at their beginning and to remain at to their end. We are of opinion that the Municipal Court erred in entering judgment in plaintiff’s behalf, and deem it unnecessary therefore to consider in detail other alleged errors to which plaintiff’s counsel have called our attention.

Inasmuch as the plaintiff is not entitled to recover under the evidence, the judgment of the Municipal Court will be reversed with finding of facts.

Reversed with finding of facts.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    Independent Packing Company, Plaintiff in Error, v. J. E. Burns, Defendant in Error.
    Gen. No. 15,902.
    1. Costs — statute as to mileage of witnesses construed. If a witness attend a trial for more than one day he is entitled to mileage for each day, if his daily travel claimed for is necessary.
    2. Costs — what affidavit of witness claiming fees need not set forth. It is not required in his affidavit that the witness shall state the particular term of court at which he attended as a witness.

      3. Costs — propriety of counter affidavits upon motion to retax. It is not improper for the court to permit the amendment of witnesses’ affidavits, nor is it improper for the courts to consider counter affidavits upon a motion to retax predicated upon affidavits.
    4. Costs — What not essential to taxation of witness’ fees. Fees of witnesses not actually called in a case may be taxed if they attended for the purpose of testifying and their attendance was reasonably required.
    Error to the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 14, 1912.
    D. J. Normoyle, for plaintiff in error.
    William A. Doyle, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is a writ of error to the Circuit Court of Cook county, in which the order of that court, in taxing as costs certain witness’ fees and mileage, is claimed to be erroneous.

The case was before said Circuit Court on an appeal from a justice of the peace. On the trial plaintiff, after introducing its evidence, took a non-suit, and the court entered judgment against it for costs. The clerk of the court made up a fee bill, in which, as is stated in the brief of plaintiff in error, costs were taxed at the total sum of $60.05. It appears that of this sum $16.80 was for witness’ fees and mileage of six witnesses for the defendant, Burns, based on the respective affidavits of said witnesses, who each swore to having attended said court as a witness, at the instance of said defendant, for six days at the October term, to residing three miles from the court house, and to having necessarily traveled thirty-six miles in going to and returning from said court house. It further appears that the clerk fixed the attendance fee at $6, and the mileage at $1.80 (being at the rate of five cents per mile for each, day’s travel), making a total for each, witness of $7.80. On December 18,1908, plaintiff entered its motion to re-tax tbe costs, supported by tbe affidavit of D. J. Normoyle, tbe attorney for plaintiff at tbe trial, to tbe effect tbat tbe trial commenced on October 19, 1908, and continued for .about two hours, when plaintiff took a non-suit, tbat said day was tbe first day of tbe October term of said court, and tbat witnesses by affidavits claim attendance upon tbe trial for six days during tbe October term, and to have traveled six miles each day for six days, making a total of 36 miles traveled during said term. On January 2, 1909, said Normoyle filed a further affidavit to tbe effect tbat none of said persons claiming fees as witnesses were sworn or gave testimony upon said trial, and tbat there is no record of any subpoena having been issued or served to compel tbe attendance of said persons as witnesses; and tbe motion to re-tax was continued, and defendant entered bis motion to amend tbe affidavits as to witness’ fees and mileage, which motion was allowed and plaintiff excepted. On January 16,1909, tbe amended affidavits of three of said six witnesses were allowed to be filed by tbe court, as well as the affidavit of tbe defendant, Burns, over tbe objection of plaintiff, but tbe affidavits of tbe other three witnesses were in no way amended. Tbe sole change in tbe amended affidavits of said three witnesses consisted in tbe allegation of attendance “5 days at tbe September term and one day at tbe October term,” instead of “six days at tbe October term,” as in tbe former affidavits, tbe other statements being tbe same. Tbe affidavit of Burns stated in effect tbat be was acquainted with all tbe facts of tbe attendance of tbe witnesses, and tbat all six witnesses bad each attended tbe court, at tbe instance of defendant, for 5 days at tbe September term and one day at tbe October term and bad each necessarily traveled 36 miles. Thereupon tbe court entered an order taxing tbe costs of each of said six witnesses at $7.80, — $6.00 for attendance and $1.80 for mileage, — making a total of $46.80, to the entry of which order plaintiff excepted.

Plaintiff in error contends that the trial court erred in taxing as costs the witness’ fees and mileage of the three witnesses, whose affidavits were not amended; in allowing mileage to all six witnesses for daily travel to and from the court house; in admitting the affidavit of the defendant, Burns, and the amended affidavits of three of the witnesses; and in taxing as costs fees of witnesses who were not sworn to testify, and who did not testify.

Section 47 of Chapter 53 of our statutes provides: “Every witness attending in his own county upon trials in the courts of record shall be entitled to receive the sum of one dollar for each day’s attendance and five cents per mile each way for necessary travel. * # * Provided, no allowance or charge shall be made for the attendance of witnesses aforesaid unless the witness shall make affidavit of the number of days he or she actually attended, and that such attendance was at the instance of one or both of the parties or his attorney. ’ ’

According to the provisions of this statute, a witness attending upon a trial in a court of record in his own county is entitled to receive the sum of one dollar for each day’s attendance and five cents per mile each way for necessary travel. Plaintiff in error argues that while by this statute a witness, who is compelled by the court to attend upon a trial for more than one day, is entitled to a fee each day, still he is not entitled to.mileage for more than one trip to and from the court house, and he cites in support of his argument the case of Chicago City Ry. Co. v. Burke, 102 Ill. App. 661, wherein this court said “We do not think that a witness is entitled to mileage going and returning for each day.” We do not agree with the argument, because, we think, the words of the statute, “each day’s,” just preceding the word “attendance,” is intended to refer to the travel each way of the witness as well as to his attendance, provided that travel was “necessary,” which fact is to he determined by the clerk in the first instance, and, on motion to re-tax, by the court. (Secs. 25-26, Chap. 33, Rev. Stat.) And we do not think that the language of the court above quoted in the Burke ease was necessary to the decision, for in that case the court held that the trial court properly refused to tax any mileage for any of the four witnesses mentioned because in none of their affidavits was it set forth that the witnesses had necessarily traveled any distance. In the case before us each of the witnesses made affidavit to having “necessarily traveled a total of 36 miles. ”

Referring again to the statute, it appears that it is a condition to any witness obtaining any fee for mileage that he make affidavit (1) of the number of days he actually attended, and (2) that such attendance was at the instance of one or both of the parties or his attorney. It is not required that in said affidavit the witness shall state the particular term of court at which he attended as a witness. In the case before us each of the six witnesses", on October 19, 1908, the first day of the October term of the court, made affidavit before the clerk on a printed form of affidavit furnished by the clerk, in which form the blank spaces were appropriately filled in with writing, and each witness swore to'having “attended said court as a witness six days at the October term,” that he attended the court as a witness ‘ ‘ at the instance of the defendant,” and that he “necessarily traveled a total of 36 miles:” Each witness by his affidavit, therefore, complied with the requirements of the statute, and each witness, probably inadvertently and because of the use of the printed blank, swore that the six days’ attendance was “at the October term,” which, of course, could not be so. Counsel for plaintiff, on the motion to re-tax the costs, offered in evidence the said affidavits of the six witnesses, and also the two Normoyle affidavits above mentioned, and rested his case; and then defendant obtained leave to amend said affidavits, and did so in the case of three of said six witnesses in the manner described, and also filed the affidavit of the defendant, Burns. This was all the evidence before the court. Counsel for plaintiff did not controvert the affidavits of the six witnesses, nor the affidavit of Burns, that each witness had attended court for six days at the instance of the defendant and had necessarily traveled 36 miles. He here contends that the six original affidavits were void because each affiant swore to being in attendance six days at the October term, which was impossible, and that only three of said witnesses amended their affidavits, and hence the court erred in allowing any fees to those witnesses who did not file amended affidavits, notwithstanding the affidavit of Bums as to those witnesses, and for the reason that the statute requires the witness to make the affidavit. While it is true that the statute requires an affidavit of the witness, we think the statute was sufficiently complied with when the original affidavits .were filed, and that the words therein “at the October term” may be treated as surplusage, as the statute does not require the term to be mentioned.

And we do not think that the court erred in allowing the amended affidavits of three of the witnesses, and the affidavit of Burns, to be filed. Plaintiff in the trial court made out its case, on the motion to re-tax, by introducing affidavits, and it was proper to allow defendant to also file affidavits. “By general practice, affidavits are allowable to present evidence upon the hearing of a motion, although the motion may involve the very merits of the action; but they are not allowable to present evidence on the trial of an issue raised by the pleadings.” 1 Bouvier’s Diet. Rawle’s Rev., p. 111.

Nor do we think that the court erred in taxing as costs the fees and mileage of the witnesses, because those witnesses were not sworn and did not actually testify. “It does not necessarily follow that witness fees should not he allowed, because the offered evidence of a witness is excluded, nor because he is not examined. A witness may properly be summoned to meet some anticipated evidence, which is not offered because the witness is. present, when it would be if he were absent. Smith v. Kinkaid, 1 Ill. App. 620, 624; See also, Highway Commissioners v. Hamilton, 21 Ill. App. 199; Fish v. Farwell, 33 Ill. App. 242; Leigh v. Hodges, 4 Ill. 15.

For the reasons indicated, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.


text:
    John D. Casey, Administrator, Appellee, v. William Grace Company, Appellant.
    Gen. No. 16,132.
    1. Pleading — what general issue does not deny. Supervision and control is not denied by the plea of the general issue. A special plea is required for that purpose.
    2. Ordinance — providing for protection of employes construed. Held, that the ordinance in question in this case, which provided for the construction of a temporary floor when certain buildings were being remodeled, was applicable to the evidence in this case and was properly admitted.
    3. Negligence — when violation of ordinance constitutes. A violation of a protective ordinance is prima facie evidence of negligence if such violation contributed to the injury.
    4. Master and servant — liability for injury occasioned hy fall of scaffold. While there is some difference of opinion in the reported cases as to whether or not a master is liable for a servant’s injuries occasioned by the fall of a scaffold because of some latent defect, where the master directs the servant to make use of such scaffold and which scaffold the servant had no part in constructing and which had been abandoned by those who erected it, still the current of authority seems to be that the master having adopted the scaffold as his own is consequently liable under the rule that it is the duty of the master to furnish the servant with a reasonably safe place in which to work.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlajn, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed March 14, 1912.
    Rehearing denied March 28, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    F. J. Canty, P. L. McArdle and B. J. Folonie, for appellant.
    Charles M. Foell and Earl J. Walker, for appellee ; Morse Ives, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county for ten thousand dollars in an action for personal injuries, resulting in the death of William Frost, brought by the administrator of the estate of said Frost against William Grace Company. The accident occurred on February 24, 1905, and the judgment was rendered on April 17, 1909.

On the trial before a jury the defendant, introduced no evidence. From the evidence of the plaintiff it appears that the deceased was a structural iron worker of about fourteen years’ experience and a servant of the defendant corporation, which, by certain of its employes, was engaged in making additions to the building, known as “The Fair,” located on the northwest corner of State and Adams streets, in the city of Chicago; that deceased was foreman of one of the “raising” or derrick gangs, engaged at the time of the accident in raising the iron, that is, when another gang known as the “bull” gang assembled the iron, the raising gang, with the aid of a derrick, put the columns, beams and girders into place, and this gang was in turn followed by the “riveting” gang, which riveted the irons and removed the temporary holts inserted by the raising gang"; that the building originally consisted of nine stories, and the new construction work was the erection of two additional stories — the tenth and eleventh — ‘between the old ninth floor and the old roof; that, to accomplish this, the roof and the old columns above the ninth floor, which supported the roof, were lifted up together by means of cribbings and jacks, and that when the roof with the old columns hanging therefrom was lifted sufficiently high, the new columns above the ninth floor were inserted, and after-wards the beams and girders of the tenth floor were placed and fastened in position, and that when this work was completed the old roof was similarly lifted and the columns above the new tenth floor inserted; that this work of lifting the roof was performed by another gang, known as “house movers,” or “Freistadt’s men;” that the building was made up of a large number of so called “panels” — that is, the spaces between four columns, which panels were about twenty feet square, and the distance between the floors from twelve to fifteen feet; that at the time of the accident the laying of all of the beams and girders of the tenth floor had been completed, and the several “raising” gangs were engaged in different panels of the building in placing iron in position above the tenth floor, most of the columns above the tenth floor were in, and, as one witness stated, the girders of three panels on the eleventh floor had been laid.

In order the better to understand the circumstances surrounding the accident, it is proper to describe more fully the particular construction of the building, and the methods employed in erecting the two additional stories. The four columns in each panel were connected by iron beams, the beams running north and south being known as “column beams,” and those running east and west as “girders.” At equi-distant intervals, running north and south, were two beams, known as “intermediate” beams, wbicb divided tbe panel into three rectangular divisions. The arrangement of the building was such that, for instance, the south girder of one panel was the north girder of the panel immediately south of it, and west column beam of one panel was the east column beam of the panel immediately west of it. On each side of each column beam, and about one foot from the beam, there were laid above the girders, from north to south, two long-timbers, each separated from the other by a small space, which were called “16"xl6" timbers.” These timbers were of such length that they extended from north to south over two panels, or more than one panel. But while these timbers were supported by the girders, they did not rest immediately upon them; they were “blocked up,” that is, blocking about three inches in thickness being laid on the girder, the bottom of the timbers was about three inches higher than the level of the top of the girder beam and the other beams. At the four comers of each column, and resting on said 16"xl6" timbers, the gang of “house movers,” or “Freistadt’s men,” placed the piles of cribbing, consisting- of 6"x6" timbers, about four feet long, which were used in the work of raising- the roof. There were four piles of cribbing surrounding each column. In order to have a convenient staging or scaffold to walk upon while doing this work, Freistadt’s men placed two 2" planks underneath and outside of each cribbing, running east and west about parallel with the girders. These planks were laid underneath the 16"xl6" timbers, which, as above mentioned, ran about parallel with the column beams, and were three inches above the level of the beams. These planks were about sixteen feet long, and extended over the column beam and the two intermediate beams, so that one end of the plank rested on the column beam, and the other end rested on the intermediate beam farthest away from the column beam, and the middle of the plank rested on the other intermediate beam. There being this three inch space between the bottom of the 16"xl6" timbers and the level of.the top of the beams, it is apparent that a two inch plank, placed on top of the column beam and intermediate beams, and underneath said timbers, would not be fastened, and would be liable to be moved out of position from one cause or another, and the evidence tends to show that “Freistadt’s men” endeavored to, and generally did throughout the building, securely fasten these planks by means of wedges, when they erected these scaffolds. The evidence also shows that, when the accident occurred, deceased and his gang of workmen were engaged in raising iron in a panel adjoining State street and the third panel south of the alley on the tenth floor, and that deceased, having occasion to get some blue print plans, which were deposited in a cribbing, located in the fourth panel south of said alley and immediately southeast of the southwest column of said third panel, stepped upon one of these planks, which was underneath said cribbing and about fifteen inches south of the south girder of said third panel, and the plank gave way under his weight, and tipped, and he fell to the floor below, and sustained injuries, from the effects of which he subsequently died. The evidence also shows that the plank had been in place for eight or nine days, and had been used continuously by “Freistadt’s men” while putting up said cribbing, and, after they had completed their work at that particular point, by other workmen of the several iron gangs, that there had been no previous indications that said plank was unsafe, and that said plank, just prior to, or at the time of, the accident, may have slipped at its westerly end off of the column beam, permitting the deceased to fall, and that said plank was probably not fastened by any wedges above mentioned.

The evidence further shows that shortly before the accident the deceased, and his gang, had built a scaffold for their derrick to stand npon, and runways thereabouts for the men to walk and stand upon while operating the derrick, and for the additional purpose of conveying iron to said derrick, and that the derrick was located about in the center of said third panel, north and south, but near the west column beam of said panel, and was supported by said column beam, the nearest intermediate beam, and the 16"xl6" timbers east of said column beam, above mentioned; and that, at the time of the accident, there was no temporary flooring of any kind on said tenth floor, except said runways about said derrick, and other similar runways in other panels, the 16"xl6" timbers, and said 2" planks about the cribbings in the various panels.

The evidence further shows that one E. J. McDowell was the superintendent for the defendant corporation in the work on the building, and that he was the man in charge of the various iron gangs at work on the building, and that about two days before the accident, and after “Freistadt’s men” had raised the roof to a height sufficient to allow the raising of the iron above the tenth floor, and while at least some of the raising gangs had commenced that work on said floor, a conversation was had, relative to the use of said 2" planks near the cribbings, between said McDowell, Frost, the deceased, one Seanlin, foreman of another raising gang, and other workmen, to which conversations three witnesses testified. Joseph Seanlin testified that at the time he went upon the tenth floor McDowell “was superintendent there; he gave us instructions; told us to go ahead and do our work, and do it as quick as possible.”

“Q. When you went up there, did you hear McDowell say anything with reference to what should be done with the hoards laying there, or planks?”

“A. He told me to go ahead and use any board I got hold of.”

Richard Edwards, a workman in the gang of which the deceased was the foreman, testified that after he went to work on the tenth floor a conversation was had with McDowell with reference to the 2" planks, and that Joseph Scanlin, and the' deceased, Frost, were present.

<£Q. Now, at that time, did you have any conversation with McDowell with reference to the planks?”

££A. Tes, sir. He told us to use these planks as they were. He says: ‘Go ahead and use these planks as they lay. Go ahead and use Freistadt’s planks around the cribbing.’ ”

The witness further testified on cross-examination:

££Q. Well, you were compelled to use them, anyhow, were you not?”

“A. We had to use them; we had to walk on them.” John Dugan, also a workman in Frost’s gang, testified: “Joe Scanlin got one of the derricks, and he started to raising beams, and I heard Scanlin say — ”

££Q. State what McDowell said?”

“A. Tou will have to use them planks. He told us that we would have to use these planks; that there were no others there, and that we would have to get around on them.”

It also appeared from the testimony of at least one of the witnesses that it was the usual custom of structural iron workers to build their own scaffolds, but there was no evidence that the deceased’s contract of employment was made with reference to such custom.

It also appears from the testimony of some of the witnesses that, because of certain actions and movements of Shirley’s gang in said fourth panel just prior to the accident, and because of certain actions and movements of deceased’s gang in the third panel just prior to the accident, possibly the particular planking in fourth panel, where the deceased fell, may have been moved out of place, or the wedges there loosened, if any wedges at any time were there, but there is no positive testimony of any disturbance of said planking immediately prior to the accident.

The declaration consisted of two counts. The first count charged that defendant negligently failed to provide as safe a place for the said Frost to do the work required of him as the nature of the work would permit, in that he, the said Frost, while exercising due care for his own safety, “stepped upon an improperly supported plank upon the girders and joists of said tenth floor, which gave way with him, and he was precipitated to and upon the floor beneath, sustaining mortal injuries,” etc. The second count proceeded upon an alleged violation of an ordinance of the city of Chicago, a portion of which is as follows:

“It shall be the duty of all owners, contractors and builders, and all persons who shall have the supervision or control of the construction or remodeling of any building more than thirty feet high, to put in and lay upon the upper side of the joists or girders of each story in any building, as soon as the joists or girders are laid, a good and substantial temporary or permanent floor for the protection of employes and all persons engaged in or upon the construction of said building wherein no unprotected opening shall be left; and it shall be unlawful to place or put up the joists or girders of another story until each lower floor is thus laid.”

The second count, after setting out said ordinance, charged that the said building, which defendant was engaged in remodeling and adding additional stories to, “was more than thirty feet high,” and that defendant, not regarding its duty as required by said ordinance, negligently “failed to lay upon the upper side of the joists and girders of the tenth story, before putting up the joists or girders of the story next above, * * * a good'and substantial floor,” by reason whereof said Frost, while exercising due care for his own safety, fell and was mortally injured, etc.

During the trial the court admitted in evidence, over objection, that portion of said ordinance which was set out in the declaration, and, at the conclusion of plaintiff’s evidence, overruled defendant’s motion to take the case from the jury, whereupon defendant rested and did not introduce any evidence, and the court again denied defendant’s motion to take the case from the jury, and subsequently the jury, after the court had given fifteen instructions offered by defendant, returned a verdict in favor of the plaintiff for ten thousand dollars, and the judgment followed.

Counsel for appellant, in urging this court to reverse the judgment, makes the following points: The trial court erred, (a) in admitting said ordinance in evidence, (b) in refusing to direct a verdict for the defendant on each count of the declaration, (c) in admitting improper and incompetent evidence over objection, and (d) in refusing certain instructions offered by defendant; (e) that the verdict is excessive, and (f) that counsel for plaintiff, in his argument to the jury, made improper remarks prejudicial to defendant.

On the question of the admission in evidence of said ordinance counsel for appellant argues that it should not have been admitted because, (1) the evidence failed to disclose that defendant had the supervision or control of the construction or remodeling of said building, (2), the two new stories which were being added to said building were not over thirty feet high, and (3), the evidence failed to disclose any breach of the ordinance, in that the laying of joists and girders of “another story,” to wit, the eleventh story, had not been commenced, and, therefore, it was not then necessary to have the flooring in on the tenth floor required by the ordinance.

While we think it may be properly inferred from the evidence that the defendant did have the supervision and control of the construction and remodeling of said building, still, even if this were not so, appellant is in no position to raise the point, it not having filed a special plea alleging this fact, but only the general issue. Morris v. Williams, 143 Ill. App. 140; Pennsylvania Co. v. Chapman, 220 Ill. 428; Chicago, etc. Co. v. Jerka, 227 Ill. 95; Brunhild v. Chicago, etc. Co., 239 Ill. 621.

As to counsel’s contention that the ordinance is not applicable because the stories to be added to the building were not over thirty feet high, we think that, even if the evidence disclosed that such additions were not of that height, which we are not prepared to say is so, still the ordinance, as we construe it, is applicable to any owner, contractor or builder who is engaged in the remodeling of any “building more than thirty feet high,” and the evidence shows that said building was about 150 feet in height.

As to counsel’s third contention that the evidence failed to disclose any breach of the ordinance, in that the laying of the joists and girders of “another story” had not been commenced, suffice it to say that the witness Seanlin testified that, on the day of the accident, the girders of three panels were in place on the eleventh floor.

We are therefore of the opinion that the trial court properly admitted said ordinance in evidence.

Counsel for appellant also urges that the trial court erred in not directing a verdict for his client on the second count of the declaration — the ordinance count, for the reason that no breach of the ordinance was shown. Prom what has already been said it sufficiently appears, we think, that the evidence disclosed a violation of said ordinance, and we are of the opinion that the trial court did not err. A violation of subh an ordinance is prima facie evidence of negligence, if such violation contributed to the injury, which we think it did. O’Donnell v. Riter-Conley Company, 124 Ill. App. 544; H. Channon Co. v. Hahn, 189 Ill. 28; True & True Co. v. Woda, 201 Ill. 315.

Counsel for appellant states that the gist of the first count of the declaration is that deceased “stepped upon an improperly supported plank upon the girders and joists of .said tenth floor, which gave way with him,” and argnes that the trial court erred in not directing a verdict on that count, because: (1) deceased assumed the risk of just such an accident as this in a building in the course of construction, (2) that before plaintiff can recover he must establish that defendant had superior means of' knowledge over deceased of discovering the dangerous condition of the particular planking, which plaintiff did not do, (3) that the position of deceased as a foreman imposed upon him, rather than upon defendant, the duty of making the necessary inspections of the particular planking, and (4) that the evidence showed that the condition of the particular planking was reasonably safe in that it had been used for several days prior to the accident, and that there is no evidence tending to show any notice to defendant of changed conditions, or any want of ordinary care on the part of defendant in affording to deceased a safe place in which to work.

To which contention counsel for appellee replies, (1) that the doctrine of assumption of risk, as applied in this state to certain accidents happening in buildings in the course of construction, does not. apply to the facts in this case, where the evidence tends to show that deceased was directed by defendant’s superintendent to make use of the particular planking, (2) that it makes no difference in this case whether or not defendant had superior means of knowledge over deceased of discovering the dangerous condition of the planking, and that, where a master furnishes a servant with a staging upon which to work and directs that servant to use it, as in this case, the law imposes upon the master the duty of providing a secure and safe staging, although another person may have constructed it, (3) that this duty of the master towards the servant is a continuing duty, requiring the master, rather than the servant, to exercise reasonable diligence in making frequent and careful inspections, and that it was for the jury to determine in this case, under all the evidence, whether or not the defendant had exercised such reasonable diligence in making such inspections, and (4) that under the law the servant does not assume the risks arising from latent dangers or defects, of which the master could have had knowledge by the exercise of reasonable care, and that in this case, under the particular arrangement of the planking, and the evidence tending to show the absence of the wedges at the place of the accident, in connection with all the other facts proved on the trial, it was for the jury to say whether or not the defendant was guilty of negligence, and whether or not at the time of the accident the deceased was exercising due care for his own safety.

After a careful review of the evidence in this case, and of many pertinent decisions, we are of the opinion that the trial court did not err in refusing to direct a verdict for the defendant on the first count of plaintiff’s declaration.

While there is some difference of opinion in the reported cases as to whether or not the master is liable for a servant’s injuries occasioned by the fall of a scaffold, because of some latent defect, where the master directs the servant to make use of such scaffold, and which scaffold the servant had no part in constructing, and which had been abandoned by those who erected it, still the current of authority seems to be that the master, having adopted the scaffold as his own, is consequently liable, under the rule that it is the duty of the master to furnish the servant with a reasonably safe place in which to work. In Bourbonnais v. West Boylston Mfg. Co., 184 Mass. 250, actions were instituted by two carpenters for injuries alleged to have been caused by their being set to work by defendant’s superintendent upon an unsafe temporary staging. There was evidence that one upright of the staging was fastened insecurely, that two braces, which at first fiad been used to keep it in place, bad been removed before tfie accident, tfiat tfie staging was bnilt by a superintendent of tfie defendant for another job for which it had been used successfully, as tfie plaintiffs knew, tfiat another superintendent of tfie defendant in effect told plaintiffs to use tfie staging in doing their work, and knew tfiat plaintiffs were using it, tfiat plaintiffs fiad no part in building tfie staging, tfiat neither of said superintendents had inspected tfie staging at any time since its completion, and tfiat tfie staging fell while plaintiffs were at work upon it and they were injured. It was held tfiat whether or not defendant was negligent in furnishing tfie staging, and in directing or allowing plaintiffs to use tfie same, and whether or not plaintiffs were in tfie exercise of due care, were questions of fact for tfie jury.

In Chicago and Alton R. R. Co. v. Maroney, 170 Ill. 520, where one of a gang of bricklayers was injured by the fall of a defectively constructed scaffold which had been erected by tfie foreman and workmen of another gang, and where it appeared from tfie evidence tfiat certain braces, intended to be used in tfie construction of tfie scaffold and necessary to be used to properly strengthen it, were not used, it was held tfiat tfie master was liable, notwithstanding tfie fact' tfiat plaintiff had not affirmatively proved (a) tfiat tfie master had notice of tfie defect, and (b) tfiat plaintiff had not had equal opportunity with tfie master of knowing of said defect; and tfiat plaintiff fiad a right to assume tfiat tfie master had discharged fiis duty, and to act upon tfiat assumption, and tfiat, even if it be conceded tfiat tfie men who constructed tfie scaffold were fellow servants of plaintiff, still tfie master was liable, and on tfie ground of fiis duty to furnish to plaintiff a reasonably safe place and appliances in which and with which to work, which duty fie could not divest himself of by any delegation to others.

In McBeath v. Rawle, 93 Ill. App. 212, a scaffold, upon which plaintiff’s intestate was working at setting stone upon a building, and which had been previously constructed by the brick-mason gang, gave way and fell. The cause of the accident was an unsound scant-ling used as one of the supports of the scaffold. This scantling was weakened by a knot in it, which was open to observation and could have been detected by inspection. It was urged that because of these facts there could be no recovery, and upon the rule of law as enunciated in the cases of Goldie v. Werner, 151 Ill. 551, Howe v. Medaris, 183 Ill. 288, and many similar cases. But the Appellate Court held that said rule “does not apply to defeat a recovery upon facts which disclose that the defect in a scaffold was one which the master should have discovered by such inspection as the exercise of ordinary care would require, and where the servant does not appear to have had knowledge of the defect, and is so employed that he has the right to rely upon the duty of the master having been performed, without himself inspecting the scaffold. ’ ’ The case was affirmed in McBeath v. Rawle, 192 Ill. 626, where it was also decided that knowledge by a stone-setter of a well recognized custom, in the erection of stone veneer buildings, for the brick-masons to erect the scaffolding, upon which the stone-setters worked, does not waive the stone-setter’s right to have his master provide him a reasonably safe place to work, in the absence of proof that his contract of employment was made with reference to such custom.

But we think the further analysis of the many reported cases, pertinent to the issues involved here, is unnecessary to disclose that the trial court did not err in refusing to direct a verdict for the defendant. Reference, however, is made to the following “scaffold” cases: Hinchliff v. Robinson, 118 Ill. App. 450; Lafayette Bridge Co. v. Olsen, 108 Fed. Rep. (C. C. A.) 335; Chambers v. American Tin Plate Co., 129 Fed. Rep. (C. C. A.) 561; Edward Hines Lumber Co. v. Ligas, 172 Ill. 315; Metcalf Co. v. Nystedt, 203 Ill. 333; Ehlen v. O'Donnell, 205 Ill. 38; Shillinger Bros. Co. v. Smith, 225 Ill. 74; Dickson v. Swift Co., 238 Ill. 62.

No good purpose will be served in discussing the other points raised by counsel for appellant. Suffice it to say that we have considered each and all of them and are of the opinion that the verdict is not excessive, that the remarks of counsel for plaintiff in his argument to the jury, which are complained of, were not so prejudicial to appellant as to warrant a reversal of this case, that the trial court did not err in refusing to give the instructions mentioned, and that tbe admission by the trial court of certain evidence complained of was not prejudicial error.

For the reasons indicated the judgment of the Superior Court is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Alfred Weiss, Plaintiff in Error.
    Gen. No. 16,170.
    1. PLEADiNce-witaf definiteness required of information. The information, must have the same definiteness in respect to its-allegations as is required of an indictment.
    2. Pleading — when information fatally defective. An information is fatally defective which fails to show upon its face that the offense charged was committed within the statutory period of limitation, and this notwithstanding no objection was raised in the lower court and a plea, of guilty entered.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 14, 1912.

      Louis Greenberg, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Otto B. Schram, of counsel.
   Mr. Justice Gridley

delivered the opinion of the court.

On August 19, 1909, the plaintiff in error was arrested by virtue of a capias issued by the Municipal Court of Chicago, and founded upon an information, duly signed and sworn to and filed in said court on said day, as follows:

“Edward S. McGuire, a resident of the City of Chicago, in the State aforesaid, in his own proper person, comes now here into Court, and, in the name and by the authority of The People of the State of Illinois, gives the Court to be informed and understand that Alfred Weiss, late of said City of Chicago, heretofore, to-wit: on the 4th day of August, A. D. 190 , at the City of Chicago, aforesaid, unlawfully, designedly and with intent to cheat and defraud Rothchild Company, a corporation organized and existing by virtue of the laws of the State of Illinois, falsely represented and pretended that a certain bank-check, then and there produced by him to be a good and valid bank-check, for the payment of $15, by means of which said false pretenses, did then and there unlawfully obtain from said corporation fifteen dollars of the value of $15, in lawful money of the United States of America, The property of said corporation, The said Alfred Weiss then and there well knowing the said false pretenses to be false, with the intent to cheat and defraud said corporation, whereas in truth and in fact the said bank-check, was not a good and valid bank-cheek, for the payment of the aforesaid money, contrary to the form of the Statute in such case made and provided, and against the Peace and Dignity of The People of the State of Illinois.”

It will be noticed that in said information the date of the commission of the offense is alleged to be “heretofore, to-wit: on the 4th day of August, A. D. 190 , at” etc., and that this is the only allegation as to the time of the commission of said offense. Of course, the year “190 ” is an impossible year, and it is quite evident that the last figure of the year was inadvertently omitted, but what that figure was intended to be, whether an “0”, or any figure from “1” to “9” inclusive, cannot be inferred with any certainty.

To this charge plaintiff in, error, upon being arraigned on said August 19, 1909, pleaded guilty, and the court sentenced him to the House of Correction ■for a period of nine months. On October 19, 1909, a writ of error from this court was filed in said Municipal Court, and the bond of plaintiff in error, with surety, was there filed and approved, conditioned that plaintiff in error would prosecute his writ of error with effect, and in case the judgment of said Municipal Court was affirmed that he would surrender himself to the bailiff, etc.

Counsel for plaintiff in error urges that the judgment of the trial court should be reversed because, (1) the information failed to charge an offense, and (2) the information failed to show upon its face that the offense was committed within the period of eighteen months prescribed by section 316 of our criminal code.

To these contentions, counsel for the People replies that the information charged the offense of obtaining money by false pretenses under section 96 of our criminal code, that plaintiff in error pleaded guilty to the information, that no objections were made to the information in the trial court, and no rulings of that court were made thereon, and that the question of the applicability of the statute of limitations was not in any way preserved in the record for review.

Eliminating for the moment the question of the date, and assuming that the information definitely fixed the date of the commission of the offense' within the period of the statute, we think that the information does sufficiently charge an offense under section 96 of the criminal code.

But, when the allegation as to the time is considered, as well as the fact that plaintiff in error pleaded guilty to the information and made no motion in arrest of judgment, two questions are presented, namely: Does the information sufficiently charge an offense? And if not, has plaintiff in error waived that insufficiency by his plea of guilty and by not appropriately raising the question in the trial court?

It is seemingly the law of this State that an information must have the same definiteness in respect to its allegations as is required of an indictment. Parris v. People, 76 Ill. 274; Gould v. People, 89 Ill. 216. And as to indictments it is provided by section 411 of our Criminal Code that

“All exceptions which go merely to the form of the indictment, shall be made before trial, and no motion in arrest of judgment, or writ of error, shall be sustained, for any matters not affecting the real merits of the offense charged in the indictment.”

Does, therefore, the failure of the information to charge upon its face the commission of an offense at a time within the period of the statute of limitations, affect the “real merits” of the offense charged? We think it does.

“When the time becomes material, either as constituting an element of the crime, or as affording to the accused a bar to the proceeding, it must be accurately stated.” (22 Cye., 314.) “And where the time within which an offense may be prosecuted is limited by statute, the time of the act averred in the indictment should appear to be within such limit. ” (22 Cyc., 316.)

In Garrison v. People, 87 Ill. 96, a count of the indictment, found in September, 1876, charged a larceny to have been committed in January, 1866, without showing that the accused had, at any time, been a “person fleeing from justice,” It was held that the count was clearly bad and should have been quashed.

In Church v. People, 10 Ill. App. 222, the defendant was convicted by a jury of petit larceny, upon an indictment for grand larceny found more than eighteen months after the commission of the offense, and which did not allege that during said time the defendant was out of the State, etc., and it was held that the offense was barred and that the indictment was bad.

In Dreyer v. People, 176 Ill. 590, it was held that the rule that the proof need not show the commission of the offense at the time alleged in the indictment, would not aid an indictment against a municipal officer for failure to account for funds, where, according to the date alleged, it did not appear on the face of the indictment that he was under any duty then to account, and that, “in determining the sufficiency of the indictment, the court is to take the date alleged as the true one,” and that where the time is so alleged as to disclose no crime, it must be held bad.

In Lamkin v. People, 94 Ill. 501, an indictment was returned on March 22, 1879, in which plaintiffs in error were charged with conspiring together on July 7, 1877, to cheat and defraud certain parties named therein of their goods, chattels, etc. A motion to quash the indictment was made and overruled, and the defendants were tried, and the jury returned a verdict of guilty, whereupon motions for a new trial and in arrest of judgment were made and overruled, and the court entered judgment on the verdict. Upon writ of error, said judgment was reversed and the cause remanded on the ground that where an indictment for a misdemeanor shows upon its face that the offense was committed more than eighteen months before the filing of the same, without bringing the case within any of the exceptions under which an indictment may be returned after the expiration of that time, said indictment is bad and should be quashed. The court, in speaking of the construction of statutes of limitation, quotes from a well known writer on Criminal Law, as follows, (p. 504):

“The statute is not a statute of process, to he scantily and grudgingly applied, but an amnesty, declaring that after a certain time oblivion shall be cast over the offense; that the offender shall be at liberty to return to his country and resume his immunities as a citizen, and that from henceforth he.may cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Hence it is that statutes of limitation are to be liberally construed in favor of the defendant.”

In State v. Sammons, 95 Ind. 22, an indictment was returned charging the accused with having sold intoxicating liquors without a license “on the 15th day of March, A. D. 188-. ’ ’ The indictment was quashed on the ground that while the day and the month were stated in the indictment, the year was not stated, unless it be the year A. D. 188 . The state appealed, and the action of the lower court in quashing the indictment was reversed, and on the ground that, while by the common law and by the decisions of many states of the United States such an indictment would be bad, it was provided by statute of Indiana that a failure to state in the indictment a time when the offense was committed, or an' imperfect statement of such time, unless time be of the essence of the offense, would not render such indictment faulty, and that it was apparent that the statement of time in the indictment in question was an imperfect statement, in that the figures, and the dash following, clearly indicated that an additional figure was, by oversight, omitted.

We are aware of no such similar statute in Hlinois upon which a like decision herein might be predicated. And even the Supreme Court of Indiana in a later case, referring to and explaining the Sammons case, decided that an indictment which charged the commission of the offense on an impossible date, such as “the 16th day of August 18184,” was bad. Murphy v. State, 106 Ind. 96.

In Blake v. State, 3 Tex. App. 149, where it appeared that by statute of Texas one of the requisites of an information was “that the time of the commission of the offense be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation,” it was decided that where the information charg’ed that the offense was committed “on August 18, A. D. one thousand eight and seventy-five,” such information was not sufficient, because “it can hardly be said that this charges any date at all. Certainly it does not appear therefrom that the offense was not barred by limitation at the time it was filed.”

In State v. O’Donnell, 81 Maine 271, an indictment, which was found on the first Tuesday of May, 1888, charged the offense to have been committed “on May 15, 1807,” and the court held the indictment to be fatally defective, as it fixed a date thirteen years before Maine became a sovereign state, and was practically an impossible date, and hence no date.

In State v. Shaw, 113 Tenn. 536, the indictment was found in January, 1904, charging the offense to have been committed “on the-day of March, 1904,” —a date subsequent to the finding of the indictment. The offense was one to which a statute of limitation of one year applied. The court held that where there is a statute of limitation, which bars the offense after a certain period, there should be a sufficiently definite averment of the time in the indictment to show that the offense was committed within the statutory limit; that where an- impossible date is given, as in the indictment in question, it will be disregarded if the offense is one as to which there is no statute of limitation, or as to which the date itself is not important, and that, if the date in the indictment in question should be disregarded as an impossible one, still the indictment would be bad, because it would not appear therefrom that the offense was committed within the statutory limitation.

In State v. Bruce, 26 W. Va. 153, where it appeared that by statute of West Virginia it was provided that “no indictment or other accusation shall be quashed or deemed invalid * * * for omitting to state, or stating imperfectly, the time at which the offense was committed, where time is not of the essence of the offense,” and that it was further provided that “no exception shall be allowed for any defect or want of form in any presentment or indictment, * * * but the court shall give judgment thereon according to the very right of the case,” an indictment was found for a misdemeanor which was barred within a certain period by a statute of limitation, but such indictment did not allege any date of the commission of the offense. It was held that by the common law every indictment should allege the time the offense was committed; that this rule has been modified by the statute first above mentioned, but that in misdemeanors it is essential that it should appear from the indictment that the offense was not barred by the. statute of limitation at the time the indictment was found, for otherwise it would not show that the offense was subsisting and therefore indictable ; and that the statute secondly above mentioned did not cure the defect of the lack of any date of the commission of the offense in the indictment because the indictment on its face did not disclose that the accused was guilty of a subsisting offense.

We are, therefore, of the opinion that the information in this case is defective in that it fails to show upon its face that the offense charged was committed within the statutory period of limitation. We are also of the opinion that the plea of guilty did not waive the defect.

“A plea of guilty has been held to have the same effect as a verdict of guilty with regard to defective averments; but if no crime is charged in the indictment or information, a plea of guilty does not prevent defendant from raising an objection on that ground. Defects of substance are not cured by a plea of guilty. ’ ’ (22 Cyc., 484.)

In Klawanski v. People, 218 Ill. 481, where the sufficiency of an indictment for forging a theater pass was questioned after the defendants had pleaded guilty, and where after the sentence they moved in arrest of judgment, which motion was overruled, and a writ of error was sued out to review the record of the proceedings, it is said (p. 483):

“As to the second proposition, that the sufficiency of the indictment cannot be urged after a plea of guilty, we see no good reason why advantage cannot be taken of a bad indictment upon writ of error after judgment of the court, the same as could advantage be taken of a bad declaration or faulty bill in equity; and while in suits at law a verdict will aid a defective statement of a good cause of action, yet the verdict will not aid a statement of a defective cause of action. And judgments at law or decrees in equity can be taken advantage of, after a judgment or decree, if a defective cause of action is stated, and is not sufficient to sustain a judgment or decree. The indictment is the foundation for the judgment of the court in a criminal proceeding, the same as a declaration or bill in equity in a civil action. Besides, as is said in 1 Bishop’s New Criminal Procedure, (Sec. 795): ‘The effect of a plea of guilty is a record admission of whatever is well alleged in the indictment. If the latter is insufficient it confesses nothing. ’ By a plea of guilty the accused simply confesses that he is guilty in manner and form as charged in the indictment, and if the indictment charges no criminal offense, or is otherwise fatally defective, it may be .subsequently attacked on that ground. (12 Cyc., 353.)”

We are also of the opinion that the question of the sufficiency of the information can be raised in this court, notwithstanding no objections were made thereto in the trial court.

Where the indictment is insufficient to sustain the judgment, such grounds of objection may be availed of on writ of error, notwithstanding no motion in arrest of judgment was interposed in the trial court. Moore v. People, 26 Ill. App. 137. And where there are errors of law which appear upon the face of the record, no exception to the judgment is necessary to be preserved. Randolph v. Emerick, 13 Ill. 345; Wiggins Ferry Co. v. People, 101 Ill. 446; People v. Dragstran, 100 Ill. 286; People v. C. & N. W. Ry. Co., 200 Ill. 289; People v. Manns, 146 Ill. App. 571, 574.

For the reasons indicated the judgment of the Municipal Court is reversed, and the cause remanded.

Reversed and remanded.


text:
    Albert Piepho, Defendant in Error, v. The Merchants Loan & Trust Company et al., Plaintiffs in Error.
    Gen. No. 16,179.
    1. Master and servant — when obligation to furnish safe place suspended. Held, that where the evidence discloses that a building was in course of reconstruction and remodeling, that there were no tenants or owners in it, that for some considerable period of time prior to the accident it had been occupied solely by workmen employed by the various contractors and that the conditions of the work were changing from day to day, that the master was relieved from his usual obligation of furnishing to his servant a reasonably safe place in which to work.
    2. Master and servant — when doctrine of assumed risk applies. Where a hole is open and obvious, and the servant had full opportunity of observing it — the room being light, the entire floor clear and no obstructions to prevent observation — the risk of injury therefrom was assumed.
    3. Contributory negligence — falling through hole. Held, under the evidence, that the plaintiff who was injured by falling through the hole of a floor was guilty of such contributory negligence as barred recovery.
    Error to the Municipal Court of Chicago; the Hon. F. L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed March 14, 1912.

      Winston, Payne, Strawn & Shaw, for plaintiffs in error; Balph M. Shaw and Edward W. Everett, of counsel.
    Bulkley, Gray & More, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is a writ of error to the Municipal Court of Chicago to review a judgment of that court for $750 against plaintiffs in error (hereinafter referred to as defendants), for personal injuries sustained by defendant in error (hereinafter referred to as plaintiff), in falling through a hole in the fifth floor of a building to the floor below.

Defendants, as trustees of the estate of Marshall Field, deceased, were remodeling a six-story building on the northeast corner of Franklin and Monroe streets, in the City of Chicago. The work was being done by various contractors, — their respective employes working on the building at the same time. Thomas Nicholson, employed by defendants to make the proposed changes in the building, supervised the work of all contractors. J. C. McFarland & Go. were doing the sheet metal work on the building, by virtue of certain written proposals made by them and accepted by the defendants, and also were doing certain extra work, as suggested by Nicholson from time to time, on the basis of labor expended and materials used. Plaintiff was the foreman for McFarland & Co. on the building, was thirty years of age, and had had fourteen years ’ experience in sheet metal work on both new and remodeled buildings. About two weeks before the accident he had worked on said fifth floor installing sheet metal fire-proofing on the ceiling of a toilet room, and he testified that when he completed his work there he noticed that the steamfitters were cutting a hole in the ceiling at another point and that he knew it would he necessary for him later on to do some patching at that point. He testified as to his relations with Nicholson during the progress of the work substantially as follows:

“Nicholson would tell me what he wanted done, and I would notify our superintendent, if the work requested to be done was not in the specifications. The specifications were at the office. I had the details. What was to be done besides that the shop would give me. If Nicholson requested me to do certain work, I would have to call up my foreman, and he would look up the specifications and see whether it was covered or not, and, if it was determined that it was not an extra, I would go ahead and direct my men what to do. Nicholson would not do that. All he did was to point out what he wanted done and where he wanted it done. Then he would go away. I was hired and paid by the McFarland people. They had the power to discharge me. Christ Clausen was superintendent for McFarland & Co.; he came to the building once a day; he gave directions to me and I would see that they were carried out. Nicholson had a carpenter foreman under him, who kept the time of all day work, and who kept my time on day work. I did not get orders from him. There was day work and contract work.”

The fifth floor of the building was a large room about ninety feet square, with sixteen windows. It was very light. Three rows of wooden pillars, running east and west, supported the floor above. At the east end of the main room was a stairway, which was so enclosed by a partition, extending from floor to ceiling, that to the west of the stairway, and east of the west partition wall there was a passage-way on said fifth floor, running north and south, about six feet in width and thirty feet in length, at the south end of which there was a door, facing south, affording access to and from the main room. The passage-way at its north end was lighted by a window facing west, and at its south end by a transom over said door, which window and transsom “borrowed” light from the main room. The passage-way, however, was dark by comparison with the abundant light in the main room. About three feet from said door, and in a southwesterly direction from it, stood one of the supporting- pillars above mentioned in the main room. About two feet distant from this pillar, and in a northwesterly direction from it, was the uncovered and unguarded hole in the floor of the main room through which plaintiff fell. This hole was two feet and nine inches west óf said stairway partition, and was about four feet square. It was an opening for a chute for the purpose of conveying goods from floor to floor. The work on said chute was not completed at the time of the accident, that is, the boards connecting the fourth and fifth floors and certain material for fire protection had not been put in. The hole had been there about one month. The witnesses differ as to whether or not at any time during that month boards had been nailed across the hole, but, be that as it may, at the time of the accident it was not boarded over, was not guarded, and was not a hidden hole. At this time, also, there were three other and larger uncovered and unguarded holes on said floor, one where another stairway was to be built and two where elevators were to be run, the work on which was in progress.

On the morning of the accident, plaintiff was given directions as to his work that day by his superintendent, and, with an assistant, went to work on the roof, on a skylight over one of said elevators. Later in the morning Nicholson went to the roof and told plaintiff he had some work for him on the ceiling over said fifth floor. They left the roof together, went down the stairway to said fifth floor, passed along said passage-way, and entered the main room on said floor through said door at the south end of said passage-way, Nicholson being in the lead. They then walked in a southwesterly direction, passing south of said pillar, then in a northwesterly direction and then in a northerly direction, passing to the south and west of said hole, and within two feet from it, and, after walking about twenty feet in said northerly direction, Nicholson stopped and pointed out to plaintiff the place in the ceiling, in the northeast corner of said room, where the steamfitters had cut the hole in said ceiling, and which then necessitated some patching in the sheet metal work. Plaintiff thereupon told Nicholson that he knew what the work to be done was, and that he remembered leaving that work unfinished until the steamfitters had put their pipes through the ceiling. Nicholson then pointed out to plaintiff certain iron which was standing against a wall, and said: “There is the iron, if you can use it.” Nicholson gave no directions to plaintiff as to how or in what maimer he wanted the work done, but merely told him to go ahead and do it; and plaintiff testified that he then knew what to do, and that he was to select his own material, get his own helper and do the work in his own way. Plaintiff and Nicholson then separated. Nicholson at no time showed plaintiff where the holes in the floor were, nor did he suggest what routes plaintiff should .take while walking over the floor. Plaintiff did not then examine said iron to ascertain if it could be used in said patching work, but immediately retraced his steps, and went up stairs to the sixth floor, taking the same route in return that he had used while in the company .of Nicholson, passing to the west and south of the hole in question, — in other words, going around the-hole a second time, and passing within two feet from it, passing to the south of said pillar, and through said passageway to the foot of the stairs.

Arriving on the sixth floor plaintiff, recalling the words of Nicholson regarding the possible use of said iron in said patching work, decided to return to the fifth floor, and examine the iron, and see-“whether it could be put on or whether I would have to send to the shop for new stuff.” Thereupon plaintiff a second time descended the stairs, walked through said passageway, and entered the main room through said door, but evidently turning more to the north than on the former trip with Nicholson, stepped into said hole, fell and was injured.

Plaintiff testified that after he entered the main room through said door on his second trip he turned the corner and that is all he remembers; that the passage-way was dark; that when he came through the door there was such a strong light that his eyesight was “kind of blurred,” but that he “kept walking',” and that he did not look for the hole, “did not look down, ’ ’ or take any notice of where he was walking.

In urging this court to reverse the judgment, counsel for the defendants argues that there should be no recoveiy in this case because plaintiff was a servant of McFarland & Co., which firm was an independent contractor ; that where one contracts to do work on a building, furnishes his own assistants, executes the work in accordance with a plan previously given him by the persons for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, such relation is clearly that of a contractor, and not of a master and servant, and if one is injured by the contractor ’s negligence, he has no right of action against the persons for whom the work is done (Hale v. Johnson, 80 Ill. 185; Foster v. City of Chicago, 197 Ill. 264; Linquist v. Hodges, 248 Ill. 491); and that if there was any obligation on tire part of any one to warn plaintiff of the dangers of the holes in the floor that obligation rested upon McFarland & Co., and not upon the defendants. Counsel for plaintiff concedes it to be the law of this State as laid down in the cases above cited, but says that this case is not within the -rule because plaintiff at the time he received his mjaries was obeying an order of Nicholson, defendants’ representative, in relation to certain work which Nicholson wanted done, in other words, that plaintiff at the time was a servant of the defendants, “borrowed” from McFarland & Co. for the particular work.

“It is well settled that one who is a general servant of another may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired.” Consolidated Fireworks Co. v. Koehl, 190 Ill. 145; Harding v. St. Louis Stock Yards, 242 Ill. 444.

Applying the above test to the facts of this ease, as above outlined, we are of the opinion that at the time plaintiff was injured he was a servant of McFarland & Co., and not of the defendants, and that he was then engaged in arranging for the doing of certain work which McFarland & Co. were required to perform under their arrangement as to extra work with the defendants.

The evidence in this case clearly discloses that the building was in the course of reconstruction and remodeling, that there were no tenants of the owners in it, that for some considerable period of time prior to the accident it had been occupied solely by workmen, employed by the various contractors, and that the conditions of the work were changing from day to day. Under such a state of affairs it is seemingly the law that a master is relieved from his usual obligation of furnishing to his servant a reasonably safe place in which to work. Richardson v. Anglo-American Provision Co., 72 Ill. App. 77; Falkeneau Construction Co. v. Ginley, 131 Ill. App. 399; Wells Bros. Co. v. Manion, 140 Ill. App. 527. If this action had been brought against McFarland & Co., as master, plaintiff could not, in our opinion, have maintained a judgment for damages for the injuries sustained, and no reason is perceived why any different rule, under the facts of this case, should he applied to the defendants, the owners of the building.

Plaintiff, not being the servant of the defendants at the time of the accident, if the theory for recovery be that plaintiff was rightfully upon the premises as a licensee at the invitation of the defendant, still defendants are not liable, because the danger of falling through the hole was not a hidden danger. The hole was open and obvious, and plaintiff had full oppor-' tunity of observing its location. The room was very light, the entire floor was cleared and there were no obstructions to prevent that observation.

“The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises.” Calvert v. Springfield Light Co., 231 Ill. 290.

In this Calvert case the owner of a building made a contract with one Drake to remove two smokestacks located'upon the roof. Calvert’s intestate, in the employ of Drake, was sent with other workmen to remove the stacks. One of the stacks had fallen and broken an irregular hole through the boards and tar paper on the sloping roof, which hole was plainly visible to the workmen. Immediately adjoining the hole, while the tar paper remained intact, the boards underneath were broken, which condition was not visible to persons upon the roof. The deceased, while engaged in removing one of said stacks, stepped upon the roof near said hole, and broke through the tar paper and fell and was killed. The court held that the owner of the building was liable, but said, (p. 292):

“The evidence shows that the hole .in the sloping roof was visible to the workmen upon the roof, and if it appeared from the evidence that the deceased fell through the hole in the roof we should not hesitate to hold that there could be no recovery on account of the assumption of the risk by appellee’s intestate.”

We are also of the opinion that plaintiff was himself guilty of negligence. The hole was in plain sight. Plaintiff a few moments before the accident had twice passed around the hole and within two feet from it. When he entered the main room through the stairway partition door, he should have looked where he was going. He himself says he did not look. If his eyes were “kind of blurred,” as he says, upon entering the brilliantly lighted room from the darkened passage-way, he should have waited a moment, and not “kept walking.” Chicago Edison Co. v. Davis, 93 Ill. App. 284; Falkeneau Const. Co. v. Ginley, 131 Ill. App. 399.

For the reasons indicated the judgment of the Municipal Court is reversed, and we find as facts that the defendants were not guilty of negligence, that the plaintiff assumed the risk and was himself guilty of negligence.

Reversed with findings of fact.


text:
    Albert Schwill & Company, Plaintiff in Error, v. George M. Moulton, Defendant in Error.
    Gen. No. 16,229.
    1. Verdicts — effect of inconsistency with evidence. If the verdict is inconsistent witli any legitimate theory of the evidence and cannot be accounted for except as the result of prejudice or bias it will be set aside on review.
    2. Costs — when attorney’s fees may be included in judgment.
      If attorney’s fees are provided to be taxed as costs in an action on a contract, if recovery be obtained tbe amount of sucb attorney’s fees may be included in tbe judgment rendered.
    Error to tbe Municipal Court of Cbieago; tbe Hon. Oscab M. Toe-bison. Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 14, 1912.
    Stein, Mater & Stein, for plaintiff in error.
    Richard S. Folsom, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.

This is an action commenced in the Municipal Court of Chicago by Albert Schwill & Company, a corporation, hereinafter referred to as plaintiff, against George M. Moulton and Arthur G. Moulton, co-partners, doing business as George M. Moulton & Co., hereinafter referred to as defendants, to recover moneys expended by it for labor and materials upon a malt house plant, which defendants by written contract had agreed to erect for plaintiff, and which moneys were used to repair certain alleged defects in the construction of said plant. George M. Moulton was alone served with summons, and he demanded a jury trial, which was had on October 15, 1909, the jury finding the issues for plaintiff and assessing plaintiff’s damages at $300. Motions for a new trial were made by both plaintiff and defendant in error, but subsequently the latter withdrew his motion. The court overruled plaintiff’s motion for a new trial, and entered judgment on the verdict, to reverse which plaintiff sued out this writ of error.

The facts are substantially as follows: Plaintiff, engaged in the business of brewing malt, in January, 1903, entered into a written contract with defendants, then in the contracting business, whereby defendants agreed to erect for plaintiff a malt house elevator and storage plant of the most modern design, having a net storage bin capacity of 1,000,000 bushels of barley, for the sum of $232,000. The defendants warranted that the manner of construction and the materials used, together with the machinery and equipment, should be in every detail of sufficient strength, quality and kind for the proper operation of a grain elevator of the size mentioned, and in every regard ready and fit for the purposes for which it was intended, that all work and materials should be of the highest grade and of the best and most modern style of workmanship, and that this warranty should extend to latent defects and should continue after the entire acceptance of the completed work and materials by the plaintiff. The defendants also guaranteed the complete and faithful performance of all the terms and provisions of the contract, and also sufficient strength and stability of all the construction features of said elevator plant, and that said elevator plant should show no signs of any structural weakness for two years from date of acceptance. The contract provided that the elevator plant, and all machinery and equipment thereof, should be erected and completely installed ready for operation on or before September 1, 1903, and that, for every day thereafter during which the same should remain uncompleted, hindering the operation thereof, unless the delay was unavoidably caused by labor strikes, the defendants would pay plaintiff $100 per day, as liquidated damages. The contract further provided for the giving by defendants of a surety bond of $100,000, conditioned upon and guaranteeing the faithful performance of the contract and all of its obligations by the defendants, which bond was duly signed. The plant was not completed on said date, and on April 21, 1904, a supplemental contract was signed by both parties, wherein it was stated that it was their desire to fix a date at which the said elevator should be accepted, and that a sum of money be retained by plaintiff and the balance of the contract price be paid over to defendants and certain of their creditors, and April 1, 1904, was therein fixed as the date upon which said elevator should be held to have been completed and tendered to plaintiff. ’On December 19, 1904, plaintiff made a final payment to defendants on said contract, and took a receipt from them, in which defendants acknowledged that said payment was in full settlement of all moneys due them, in any way arising out of said contract, or for work done by them, or any subcontractor, and in which defendants further stated that “this payment and settlement shall not operate to release us from our obligations: 1st, to make water tight any leaks in said elevator within six weeks after notice # * *; 2nd, to remedy any defect in the original construction, the repair of which is covered in an existing contract bond.”

It appears from the evidence that shortly after plaintiff took possession of the elevator plant it began to show signs of structural weakness. On June 29, 1904, plaintiff notified defendants of certain defects in the ladders in the bins and in certain shafting, but these defects were not fully remedied by defendants. Further complaint as to mortar joints, roofing and shafting was subsequently, and from time to time, made in writing by plaintiff to defendants, and finally, after considerable correspondence had passed between the parties, and certain unsuccessful efforts had been made by defendants to remedy the matters complained of, defendants. wrote to plaintiff, on February 10, 1905, in part as follows: “We regret to announce that the losses incurred in construction of your elevator have forced us to compromise with our creditors and retire from business. We, therefore, have neither men nor money at our disposal with which to comply with your request.” Thereupon, plaintiff employed an outside party to install a new shaft at a cost of $290, another party to repair the roofing at an expense of $180, and a third party to repair the ladders, at an expense for labor and materials of $295.29,— making a total outlay of $765.29. This suit was brought to recover the moneys expended for these repairs. On the trial, the defendant in error offered no testimony tending to contradict the evidence of plaintiff, showing the actual expenditure of said sum of money, nor any testimony tending to show that the prices paid for the labor and materials in making said repairs were not the usual and market prices therefor, nor any testimony that said repairs were not necessary. The theory of the defense seemingly was that the signing of said supplemental contract of April 21, 1904, operated as a full settlement between the parties, and as a final discharge of the defendants from their guaranties and warranties finder the contract. To this effect was the testimony of the witness, George M. Moulton, as were the statements made by counsel for defendant in error, while said witness was on the stand. But this theory, in our opinion, is not substantiated by the record, arid is directly negatived by the statement of defendants contained in the said receipt given on December 19, 1904. Furthermore, it is evident that the jury were not impressed with this defense, nor with the testimony of said witness, for had they been their verdict would have been for the defendant in error. And we think that it is manifest from a reading of the record that the repairs made were necessary repairs, and that the necessity therefor was the result of faulty construction and structural weakness at the time of installation.

Counsel for plaintiff urges a reversal of the judgment on the ground that the verdict of the jury, for the sum of $300 in favor of plaintiff, is inconsistent with any legitimate theory of the evidence, and cannot be accounted for except as the result of compromise or bias. We are of the opinion that for this reason the judgment of the court should be reversed and tlie canse remanded. Conrad Seipp Brewing Co. v. Peck, 85 Ill. App. 637; Dewes Brewing Co. v. Kerkin, 107 Ill. App. 620-621; Manhattan Brewing Co. v. Riordan, 157 Ill. App. 234; Dunlap v. Smith, 25 Ill. App. 288-291; Chicago & Alton R. R. Co. v. Gretzner, 46 Ill. 74-81; Larson v. Glos, 235 Ill. 584-587.

Shortly after the entry of said judgment plaintiff’s counsel made a motion to re-tax the costs, so as to include his attorney’s fee for services in the prosecution of said suit, and upon the ground that it was provided in said contract that “in case of the violation of or non-compliance with any of the terms or provisions of this agreement” by either party, such party agrees “to pay and discharge all costs, expenses and reasonable attorneys ’ fees that may be incurred by the other party on account of such violation or non-compliance, or in enforcing the obligations or covenants hereof, and such expenses and fees may he included in the judgment or decree, or taxed as costs, in any suit on this contract.’’ Upon a hearing by the court, at which it .was shown by uncontradicted testimony that the sum of $150 was a reasonable fee for such services, objection was made by counsel for defendant in error to the allowance of such sum, as costs, and for the reason, as he contended, that in this state, notwithstanding the agreement of the parties, nothing can be allowed as costs, either by the clerk or the court, hut those items which are directed by statute to be allowed. The court denied the motion to re-tax and such action is assigned as error.

Inasmuch as we have determined that the judgment of the trial court should be reversed, and the cause remanded for a new trial, it is unnecessary for ns to pass upon this question. We may, however, say that in our opinion, under the provisions of the contract in question, in a suit for damages for violation of any of the obligations of said contract in which the complaining party would be entitled to a judgment, an attorney’s .fee, properly proven and reasonable, could be included in tbe judgment. Clawson v. Munson, 55 Ill. 394, 397; Barton v. Farmers’ etc. Bank, 122 Ill. 352; Campbell v. Goddard, 117 Ill. 251; Weigley v. Matson, 125 Ill. 64, 67; Henke v. Gunzenhauser, 195 Ill. 130, 135.

Reversed and remanded.


author: Mr. Justice McSurely

text:
    Dominick F. Curley, Trustee, Defendant in Error, v. Ella R. Ford et al., Defendants in Error, and John Kause et al., Plaintiffs in Error.
    Gen. No. 15,672.
    1. Decrees — upon what must he predicated. Relief cannot be granted against a defendant in the absence of allegations contained in the bill -which show that such defendant had interest in the subject-matter of the controversy or was under an obligation with respect thereto.
    -2. Trust deeds — effect of payment of deht. If the debt secured by a trust dee'd is paid in full it discharges the lien of such trust deed whether the party paying the same so intended or not and an agreement between the parties to the transaction to the effect that the lien of the trust deed should subsist will not be enforced as against a stranger to the transaction.
    Foreclosure. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 14, 1912.
    Statement by tbe Court. On February 3,1908, Ella R. Ford and Charles C. Ford, ber husband, being indebted to Dominick F. Curley in tbe sum of $800, made and delivered to him their promissory note of that date payable to tbe order of themselves, due on or before one year after date; to secure said note Ella Ford and ber husband executed and delivered their deed of trust conveying to Curley as trustee lots 23, 24, 25, 26 and 27, in Bissell’s subdivision, etc., in Cook county, Illinois; October 17, 1908, a bill was filed to foreclose tbis trust deed as to lots 25 and 26, and after reference to a master and a bearing, a decree was entered which is now before this court for review.
    At the time said note and trust deed were executed and delivered, Ella Ford held title to the aforesaid lots for the benefit of herself and one John Kause, who, with Anna F. Kause, his wife, are the plaintiffs in error in this court.
    Pursuant to a partition decree entered in the Circuit Court on October 14, 1908, Ella Ford became the owner of lots 23, 24 and 27s and John Kause the owner of lots 25 and 26, all subject to the lien of the aforesaid trust deed. Subsequently Ella Ford paid Curley $620 and interest on the note, and received a release from the lien of the trust deed of the lots decreed to her,in the partition proceedings; she also paid to Curley the balance due on said note with interest and received from him the note and trust deed. The allegation in the bill as to this transaction is: “that said Ella R. Ford, to protect her interest in said lots 25 and 26, purchased said note and trust deed from orator and is now the legal holder and owner of same.” Thereafter, at her instance, this bill to foreclose was filed by - Curley, trustee, as the complainant, the bill alleging that Ella R. Ford is the holder and owner of said note, and that there is due her the, balance of the principal of said note with interest, and solicitor’s fee for the foreclosure proceedings and certain amounts which were liens and assessments on said lots 25 and 26 by her paid while held in trust, as aforesaid. The bill further alleges that the John Kause aforesaid, Anna F. Kause, his wife, and Dominick F. Curley “have or claim to have some interest in said mortgaged premises,” and makes Ella R. Ford, Charles C. Ford, John Kause, Anna F. Kause and Dominick F. Curley parties defendant; asks that an account may be taken, and that said defendants, or some one of them, be decreed to pay whatever snm shall appear to be dne, together with solicitor’s fees and costs; that in default of such payment, the mortgaged premises may be sold to satisfy the amount due Ella R. Ford for principal, interest, solicitor’s fees and other liens, while said lots were held in trust, and costs of this proceeding.
    Summons was served on John Kause and wife and their appearance filed. Upon their failure to plead within the time fixed by order of court, they were defaulted and the cause ordered referred to a master in chancery. A few days thereafter another solicitor for Kause was substituted, who sought to have the order of default set aside and for leave to file an answer instanter, which motion was denied.
    The master found that -Ella R. Ford, “to protect her interests in said lots 25 and 26, purchased said note and trust deed from Dominick F. Curley, and is now the legal holder and owner of same;” also that there was due from John Kause to Ella R. Ford the balance due on the principal note, with interest; also certain sums, with interest thereon, found to have been paid by Ella R. Ford on account of “prior liens on lots 25 and 26;” also certain sums paid for taxes and special assessments on said lots, and also the further sum of $100 solicitor’s fees. On March 16, 1909, a decree was entered sustaining the findings of the master and finding John Kause personally -liable for the amounts above described, and in default of his paying-same said premises were ordered sold.
    John W. Burdette, for plaintiffs in error.
    E. A. Aborn, for-defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

This decree must be reversed for the following reasons: There are no allegations in the bill which can support any decree against John Kause; there are no allegations that he had any beneficial interest in the fund procured by the loan from Curley, or that he ever authorized any advances to be made for him, or assumed or promised to pay any of the indebtedness secured by the deed of trust. There are neither any allegations that Kause assumed any obligation, nor tha,t anything was done which could impose any obligation upon him.

“It is a fundamental rule of equity pleading that the allegations of a bill, the proof and the decree must correspond, and that the decree cannot give relief that facts disclosed by the evidence would warrant, where there are no averments- in the bill to which the evidence can apply.” Dorn v. Gueder, 171 Ill. 362 (369), and cases there cited.

The rule is the same in a decree pro confesso. “A decree pro confesso concludes the defendant only as to matters alleged in the bill.” Curlett v. Curlett, 106 Ill. App. 81; Armstrong v. Building Ass’n, 176 Ill. 298.

It should also be noted that Kause claims in argument that the premises were encumbered originally by his trustee, Ella B. Ford, without his authority or knowledge and in violation of the trust, to secure her individual debt and the debt of a stranger. A search of the entire evidence discloses nothing which tends to negative these claims.

It is not necessary to dispose of this cause for us to pass upon other assignments • of error, however valid such assignments of error may be. One point is sufficient to dispose of the entire matter. It appears from the bill and the evidence that Ella B. Ford, one of the makers of the note, paid the same in full, thus extinguishing the debt — certainly so far as Kause was concerned, — and the lien of the trust deed upon the premises in question. “.When the debt is extinguished by one, it discharges all, whether the parties intended it or not.” Gillett v. Sweat, 6 Ill. (1 Gil.) 475.

We have considered those cases which hold that the intention of the parties sometimes determines whether or not the debt is extinguished upon payment of the note evidencing indebtedness. These are cases where there was some agreement or understanding between the maker, endorser or payee of a note as to the effect of payment, and it is there held that the intention of the parties controls.

In the case before us there is no evidence of any understanding of the parties other than that the note was paid by Ella E. Ford. The allegations in the bill and the finding of the master that she did this “to protect her interests in said lots 25 and 26” disclose nothing which could alter the legal effect of such payment. “Before the payment every presumption is in favor of the holder; after payment the natural presumption is otherwise. * * * The burden of proof must consequently be on the party who asserts an unusual transaction to introduce evidence sufficient to prove it.” Hopkins v. Farwell, 32 N. H. 425.

Even if there were any evidence as to any understanding between Ella E. Ford, the maker of the note, and Curley, the holder thereof, such understanding could not affect Kause, a stranger to the transaction, and could not avoid the legal effect thereof as to him.

In Moore v. Hamilton, 48 Barbour (N.Y.) 120, where the mortgage debt was assigned to the debtor who assigned to another, the court said: “The legal effect of an assignment of the debt to the debtor himself for a valuable consideration would be to extinguish the obligation. If there is any equitable ground upon which the lien of a mortgage in such a case can be preserved for the benefit of the assignee of the mortgagor, it does not appear in this case. ’ ’

The rule so stated must control here. No equitable grounds appear upon which the lien of said trust.deed on the lots in question was preserved after the payment to Curley, the owner and holder of the note, by Ella Ford, the debtor, of the full amount of the note.

The order of this court therefore is that the decree is reversed and the cause remanded with instructions to dismiss the bill for want of equity.

Reversed and remanded.