text:
    The John Anisfield Company, Plaintiff in Error, v. Wallace J. Covey, Defendant in Error.
    Gen. No. 13,853.
    Landlord and tenant—what does not constitute eviction. Held, that the evidence in this case did not show that the defendant had been deprived by the act or authority of the landlord of the use of the demised premises or the appurtenances thereof, and that no constructive evidence was established.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed March 20, 1908.
    T. J. Crowley and Everett & McGonigle, for plaintiff in error; John C. Everett, of counsel.
    McKinley & Sample, for defendant in error; William McKinley, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff in error brought an action against defendant in error in the Municipal Court of Chicago to recover three hundred dollars, rent for the month of April, 1907, upon a lease in writing between the plaintiff in error and the defendant in error for a term expiring April 30, 1907. The premises leased was the third floor of the building Nos. 174 and 176 State street, Chicago, excepting the space reserved for halls, stairways, elevators, and appliances of the building.

The trial before the court and jury resulted in a verdict and judgment against the plaintiff in error for costs. This writ of error is prosecuted to reverse the judgment.

It was admitted on the trial that the rent for April, 1907, had not been paid, but the defendant in error claimed that he had been evicted by plaintiff in error from the premises, by which he was released from payment of the rent in question. Defendant in error also claimed that he had been damaged in his business by reason of the eviction and for this he claimed a recoupment.

It appears from the record that defendant in error covenanted in the lease that he had received the premises in good order and repair, and that he would keep them in good repair; also, that the lessor should not be liable for damages occasioned by failure to keep the premises in repair, nor for damages arising from acts or neglect of co-tenants or other occupants of adjacent or contiguous property; also that the use of the freight elevator was not included in the lease.

The evidence shows that some time in March, 1907, defendant in error made application for a renewal of his lease, and was informed that it would not be renewed. He, therefore, procured other premises, which, about April 1,1907, he fitted up with new furniture and appliances for the conduct of his business as a dentist, and began taking care of his patients in the new premises. He stationed a man in the hallway of the premises in question until April 30, 1907, to notify his customers where they could find him.

Defendant in error, on the trial, over the objection of counsel for plaintiff in error, and upon the promise of his counsel to connect plaintiff in error therewith by showing its authorization of the acts hereinafter stated, offered evidence tending to show that early in April defendant in error was troubled by noises caused by hammering and pounding on the north wall of the building. This pounding was done by employes of a contractor in the employ of the owner of the adjoining property who was constructing a theater therein. Small holes were dug through the wall from the outside for the purpose of attaching rods to support trusses. This work was done, it appears, without the knowledge or consent of plaintiff in error. As soon “as its agents were apprised of what was going on they stopped the work. The digging of the holes through the wall occasioned much dirt and dust in plaintiff in error’s building and interfered with the stairway in places.

In addition to the above it appears from the record that tenants on the top floor of the building commenced to move out of the building on April 1, 1907, and in the course of their moving left shelving and other materials in the hallway of the building for short periods of time. The passenger elevator was used sometimes by the tenants for carrying in and out packages or small boxes of stationery, but not to the extent of excluding passengers from the elevator. All this, it appears, was without the knowledge or consent of plaintiff in error.

The record shows no evidence which, in our opinion, tends to show that any of the noise, dirt, obstructions in the hallway or elevator or stairway, was occasioned by or under any authority from plaintiff in error.

It is very properly conceded in argument by counsel for defendant in error that they are not relying upon anything done by other tenants or other persons without the authority or connivance of plaintiff in error to show an eviction, and that, “in order to constitute a constructive eviction the acts of the landlord must clearly indicate an intention on the part of the landlord that the tenant shall no longer have the full beneficial enjoyment of the premises, and such acts must be of a grave and permanent character which, in their nature, do deprive the tenant of the full and beneficial enjoyment of the demised premises.” This statement of the law in substance is amply sustained by many decisions of our courts, among which are Barrett v. Boddie, 158 Ill. 479; Keating v. Springer, 146 id. 481; Smith v. Wise & Co., 58 id. 141; Dennick v. Ekdahl, 102 Ill. App. 199; and Kistler v. Wilson, 77 Ill. App. 149.

It is contended, however, on behalf of defendant in error, that both the consent and connivance of plaintiff in error, through its agents, H. O. Stone & Co., to the use of the passenger elevator for carrying freight to an extent that prevented defendant in error and his patrons from using such elevator for several hours during the day, and also to the making of holes through the walls and the noise and dirt accompanying that work, is proven by the evidence.

Upon a careful consideration of the evidence, we do not think it tends to show either that the plaintiff in error consented to or permitted the acts complained of, or that it intended to disturb defendant in error or deprive him of the use and enjoyment of the premises demised to him.

It is urged that the question of eviction is to be decided by the jury in all cases, and expressions to that effect are quoted from Barrett v. Boddie, supra, and other cases in this state. Without doubt the question of eviction, like any other question of fact in a case at law, must be determined by the jury, but the jury can only determine the fact from competent evidence, and under proper instructions. When the defendant in error failed to show the authority of plaintiff in error’s agents for the doing of the acts complained of, or the consent and authority of plaintiff in error therefor, the evidence was not competent against plaintiff in error, and its motion to exclude the evidence, and direct a verdict for plaintiff in error should have been sustained. Barrett v. Boddie, supra.

We do not think it necessary to discuss the errors assigned on the instructions to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Great Western Coal & Coke Company v. St. Louis & Big Muddy Coal Company.
    Gen. No. 13,793.
    1. Contracts—what acceptance of proposition. Held, that a letter set forth in the opinion was an unconditional acceptance of the offer in question in the case and effectuated a contract between the parties.
    2. Contracts—when made by proposal and acceptance. If a written acceptance of a proposition is ambiguous as to whether or -not it imposes conditions not assented to by the purchaser, the contract will be deemed to have been made where the parties have, by their conduct, treated the acceptance as unconditional and as completing the contract.
    3. Measure of damages—in action for breach of executory contract of sale. The measure of damages in an action for breach by the vendee of an executory contract of sale is the difference between the contract price and the market value at the time and place of the breach.

      Assumpsit. Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded.
    Opinion filed April 3, 1908.
    Rehearing denied April 17, 1908.
    Statement by the Court. In an action of assumpsit brought in the Superior Court by the defendant in error against the plaintiff in error, the declaration avers that the parties entered into the following contract in writing:
    “Chicago, February 19, 190
    St. Louis & Big Muddy Coal Co.
    Carbondale Illinois.
    Gentlemen : Confirming our conversation with Nat. J. Scott, wish to advise that we are prepared to accept ten cars daily of coal from you on the basis of $1.25 f. o. b. mines for % of this amount (mine run), and on the basis of $1.50 mines, for the remaining 50 per cent, of all equipment that we should furnish. It being understood that we agree to deliver cars to the Illinois Central Railroad Co. for the loading of this amount of coal upon their requisition, but that we are not to be held liable under this agreement for the failure of the Illinois Central to handle equipment offered them for their loading. This agreement to remain effective until April 1st, 1903.
    Very truly yours,
    Great Western Coal & Coke Co.
    Per W. S. Puffer, Pres.
    Accepted with understanding that all of the coal is to be mine run.
    St. Louis & Big Muddy Coal Co.
    Sam T. Brink, Prest.”
    —that although plaintiff was ready and willing, etc., to deliver ten cars of coal daily, yet the defendant did not order, furnish cars for, or accept said coal except seven carloads, but refused so to do, whereby plaintiff lost • divers gains and profits, to wit: $8,000 which would have accrued to it from the delivery of said coal. The defendant pleads non assumpsit. A trial resulted in a verdict and judgment thereon for the plaintiff for

      $5,172.91, to reverse which the defendant prosecutes this writ of error.
    B. H. Caney and A. W. Hope, for plaintiff in error.
    A. D. G-ash, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The plaintiff in error contends that the proposition, or offer, of the plaintiff must be held an offer to furnish coal one-half of which was to be “mine run,” and that therefore the words, “accepted with understanding that all of the coal is to be mine run,” preceding the signature of the defendant, must be held a modification of plaintiff’s offer or proposition, and not an acceptance thereof; that such modification was not assented to by the plaintiff, and that therefore the contract set up in the declaration was not proved.

We think that the words “mine run” in the sentence in the proposition, “we are prepared to accept ten cars daily of coal from you on the basis of $1.25 f. o. b. mines for of this amount (mine run) and on the basis of $1.50 mines for the remaining 50 per cent.” applies to all the coal mentioned, and not to one-half of it only, and that there is therefore no substantial difference between the proposition and the acceptance. But if it be assumed that the proposition is open to the construction that the words “mine run” apply to one-half of the coal only, it becomes material to inquire what was the construction placed upon the writing by the parties at the time. The evidence shows that the proposition of the plaintiff was in duplicate, and that both copies were delivered by plaintiff to Nathaniel J. Scott to be submitted to the defendant company; that he forwarded both copies to the defendant company at St. Louis; that one copy was returned to him with the acceptance thereof by the defendant above set forth; that he delivered the same to Mr. Puffer, the president of the plaintiff company, who retained the same without objection to -the form of the acceptance, and that both parties thereafter treated such proposition and acceptance as a contract.

We think that the contention that the contract was not proved cannot be sustained. The word “ton” is not in the contract, but we know that coal is usually sold by the ton, and we think that the contract must be held to be a contract for the purchase and sale of coal at $1.25 per ton for one half, and $1.50 per ton for the other half of the coal mentioned in the contract.

The defendant delivered to the Illinois Central Bail-road Company only seven cars to be loaded with coal by the plaintiff for the defendant, and the coal loaded into those seven cars was all the coal which the defendant accepted from the plaintiff under the contract. The plaintiff could have mined and delivered all the coal it was required to deliver by the contract, and offered to deliver the same if cars were furnished in accordance with the provisions of the contract. When the defendant failed to deliver cars, the plaintiff did not each day mine and, store up the coal the defendant was bound imder the contract to accept, but reduced its output each day to the extent of the amount of coal the defendant was under the contract required to accept. That is, the plaintiff between February 19th and April 1, 1903, sold all the coal that it mined, but if the defendant had furnished the ten cars per day it would have mined ten cars of coal more each day, and delivered the same to defendant under the contract.

The president of the plaintiff company testified that plaintiff sold mine run coal at the mine after April 1, 1903, at eighty-five cents per ton. He also testified, on cross-examination, that the average market price of mine run coal at the mines from February 17th to April 1, 1903, was about $1.30 per ton. The court refused to permit the defendant to prove the market price of coal at the mines on different days between February 19th and April 1, 1903, and also, on the objection of the plaintiff, excluded proof offered of the average market price of coal at the mines between those dates. The recovery is based upon a difference between the contract price and a price of about ninety-eight cents per ton. The evidence shows that a miners’ strike was settled March 26th, and that after that time the price of coal rapidly declined. There is no evidence that the market price of coal fell below $1.30 per ton until after March 26th, or that it was so low as ninety-eight cents per ton until after April 1st.

There is nothing in this case to take it out of the general rule for the recovery of damages for the breach of an executory contract of sale, that the measure of damages for such breach by the vendee is the difference between the contract price and the market price at the mine or times and place of the breach. The contract was not one for the manufacture and sale of a particular article or articles of a specified pattern, quality or kind, for which there is no general demand or market. The testimony of the president of the plaintiff was that the coal had a market value at the mines at the times when the coal was to be delivered. The defendant offered proof of such market value and the court excluded the proof.

In Consolidated Coal Co. v. Jones & Adams Co., 232 Ill. 326, which was an action by the vendee to recover damages of the vendor, damages for the breach of a contract by the latter to deliver certain specified quantities of coal daily for a period of seven months, it was held competent to prove" the market price of coal during each month covered by the contract.

We think that the trial court erred in excluding the evidence of the market value of the coal, offered by the defendant, and that for such error the judgment of the Superior Court must be reversed and the cause remanded.

Reversed and remanded.


text:
    O. L. Goodridge, Defendant in Error, v. William Alton, Jr., Plaintiff in Error.
    Gen. No. 13,843.
    1. Employment Act—section 13, pertaining to allowance of attorney’s fees, construed. The word “employ” as used in this section of the act comprehends and includes all persons employed to render continuous and exclusive services of the same general kind and nature that are due from a “mechanic, artisan, miner, laborer or servant.”
    2. Practice—when hill of particulars not essential to recovery. The allowance of attorney’s fees may be made under section 13 of the Employment Act, notwithstanding no claim therefor is contained in the bill of particulars.
    3. Judgment—when finding sufficiently shows entry based, on wage claim. A judgment which finds that the damages awarded the plaintiff were so much money “due and owing, earned as an employe of the defendant,” is sufficient to show that the recovery was for wages.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    Cunningham & Cunningham, for plaintiff in error.
    Charles Hudson, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This case presents the question whether a plaintiff who was employed by the defendant as a transit man and topographer at $100 per month is entitled, in a suit to recover the amount of such compensation due him, to be allowed attorneys’ fees under the Employment Act of 1889. That act is as follows:

“An Act providing for attorney’s fees when mechanic, artisan, miner, laborer or servant sues for wages.

13. Attorney’s pees when mechanic, etc., sues por WAGES.

Be it enacted by the People of the State of Illinois, represented in the General Assembly, That whenever a mechanic, artisan, miner, laborer, or servant, or employe, shall have canse to bring suit for his or her wages earned and dne, and owing according to the terms of the employment, and he or she shall establish by the decision of the court or jury that the amount for which he or she has brought suit is justly due and owing, and that a demand has been made in writing at least three days before suit is brought, for a sum not exceeding the amount so found due and owing, then it shall be the duty of the court before which the case shall be tried to allow to the plaintiff, when the foregoing facts appear, a reasonable attorney fee, in addition to the amount found due and owing for wages, and in justice court such attorney’s fee shall not be less than $5.00, and in the County or Circuit Court, not less than $10.00, to be taxed as costs of suit.” Hurd’s Stat., chap. 14, sec. 13; S. & C. Stat., chap. 48, sec. 1.

The contention of plaintiff in error is that the defendant in error was not an an “ employe, ’ ’ nor was his compensation “wages” within the meaning of the statute.

That the word “employe” was not used in the statute in its broadest sense must be conceded, for it is preceded by the words “mechanic, artisan, miner, laborer or servant,” and if the legislature intended to provide that all “employes,” using the word in its largest sense, should in judgments for wages or salary be allowed attorneys’ fees, then those words are superfluous. The use of those words in the statute preceding the word “ employe ’ ’ indicates that the word ‘ ‘ employe ’ ’ was used in a limited and restricted sense, and was not intended to include all persons who were in the service or employment of other persons, irrespective of the degree or nature of their service or employment. The word “employe” in the statute is a word of larger import than the words “mechanic, artisan, miner, laborer or servant” which precede it. When a general word follows a particular one, the rule is to construe it as applicable to persons ejusdem generis. Sandiman v. Beach, 7 B. & C., 96. The word “employe” in the statute, we think, must he held to comprehend and include all persons employed to render to another regular, continuous and exclusive services of the same general degree, kind and nature that are due from a “mechanic, artisan, miner, laborer or servant.” We are unable to see any substantial difference, in nature or degree, between the services of a transit man and topographer and those of an artisan or mechanic.

We think that the plaintiff was an “employe” within the meaning of the statute, and that the compensation due him under his contract of employment was ‘ wages, ’ ’ although payable monthly. Palmer v. Van Santvoord, 153 N. Y. 612; Moore v. Heaney, 14 Md. 558.

It was not necessary for the plaintiff to make a claim for attorney’s fees in his bill of particulars.

The finding contained in the judgment order that the damages awarded plaintiff were for so much money, “due and owing earned as an employe of defendant,” was a sufficient finding that the recovery was for wages.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    John Apczynski, Defendant in Error, v. Stafonas Butkiewicz, Plaintiff in Error
    Gen. No. 13,874.
    1. Bailments—duty of gratuitous bailee for his own benefit. A gratuitous bailee for bis own benefit is bound to. the exercise of extraordinary care and is liable for slight negligence.
    2. Bailments—when presumption of negligence arises. Upon proof of possession in a gratuitous bailee for his own benefit and an injury to the res, a presumption of negligence arises.
    Action on the case. Error to the Municipal Court of Chicago; the Hon. Fbank Cbowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed, with finding of facts.
    Opinion filed April 3, 1908.

      Statement by the Court. This is a writ of error sued out by the defendant in the Municipal Court to. reverse a judgment for $85 recovered by the plaintiff in that court against the defendant for the value of a horse, upon the alleged ground that defendant negligently injured said horse, by reason of which injuries it died. The horse was four years old, weighed about 800 pounds, and was not entirely gentle, although it had been driven for some time. Defendant borrowed the horse of the plaintiff to haul a few loads of coal. At the coal yard, before any coal was put in the wagon, the horse reared up and threw himself. The defendant used the. horse to haul three loads of coal a few blocks. The last load weighed about two tons, the other two loads were much lighter. The defendant sent the horse home by plaintiff’s father, at three o’clock in the afternoon, and the plaintiff saw the horse when it was brought home. There was no evidence tending to show that any indication that the horse had been injured was observed by anyone while it was away from plaintiff’s barn, or that anything unusual in its appearance was noticed until some time that night, when plaintiff found that the horse was sweating profusely and could not eat. He sent for a horse doctor, who came and treated the horse, but it died the next day.
    Lamborn & Guernsey, for plaintiff in error.
    Jambs J. O’Toole, for defendant in error.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

Defendant was a gratuitous bailee of the horse for his own benefit, and therefore bound to the use of extraordinary care, and liable for slight negligence. The plaintiff was only bound to show that the horse was injured while in the possession of the defendant, for if it was injured while in his possession the law presumes negligence and casts upon the defendant the burden to show that he exercised proper care. It is immaterial that the keeper of the coal yard and the father of the plaintiff drove the horse at defendant’s request, or that he sent the horse home by plaintiff’s father. The horse must be regarded as in the possession of the defendant from the time it was taken from plaintiff’s stable until it was returned, and when defendant permitted others to drive or take charge of the horse for him, he was bound to see that they exercised the same care that he was bound to exercise.

The precise question presented, then, is: Could the jury, from the fact that the horse fell sick some hours after it was returned to the plaintiff, and died shortly thereafter, properly find that the horse was injured while in defendant’s possession, and that such sickness and death was caused by, or was the result of such injury?

The fact that the horse threw itself must be disregarded, because it clearly appears that this occurred without any negligence on the part of its driver, who was on his seat with the lines in his hand when it occurred.

The only other fact relied upon to show that the horse was injured while in defendant’s possession was the hauling of two tons of coal at one load. If it be conceded that the jury might, without any evidence upon the subject, find that this was too heavy a load for a horse of the weight and age of the horse of the plaintiff, the question still remains whether from that fact, taken in connection with the other evidence in the record, they could properly find that by such overloading the horse was injured.

There is no evidence tending to show either the nature or the cause of the horse’s sickness, nor evidence that making him pull a load of two tons was competent to cause or would tend to cause or bring on such sickness. Horses fall sick and die of diseases brought on by other causes than injuries. From the fact that the horse was found to be sick some hours after its return to the plaintiff’s stable and shortly afterwards died, the jury could not, we think, find as a fact that it was injured while in the possession of the defendant.

We find in the record no evidence to warrant a finding that the sickness and death of plaintiff’s horse was caused by any negligence of the defendant, and the judgment will therefore be reversed with a finding of facts, but the cause will not be remanded.

Reversed, with finding of facts.


text:
    West End Athletic Association et al., Appellees, v. S. B. Geiger et al., Appellants.
    Gen. No. 14,383.
    1. Injunction—iohat essential to issuance of temporary. In order properly to issue a temporary injunction the bill of complaint must show by appropriate averments of facts that the plaintiff is entitled to the relief sought.
    2. Chancert pleading—what mere conclusions of pleader. To allege that a corporate election is void as contrary to the bylaws, etc., is merely to state a conclusion; such a conclusion does not justify the granting of relief by injunction.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed April 3, 1908.
    P. W. Sullivan and Willis Melville, for appellants.
    William A. Doyle, for appellees.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendants from an interlocutory order for a temporary injunction restraining them from holding a meeting of the board of directors of the said West End Athletic Association at a certain time and place, or at any other time or place, and from in any way representing said association or holding themselves ont as directors thereof, and from selling or disposing of five shares of the capital stock of said association styled in the bill “treasury stock,” and from acting or pretending to act as directors or officers of said association.

The bill alleges that said association is a corporation organized under the laws of this state to conduct athletic sports, and especially baseball, and that it is the lessees of a certain ball park in Chicago; that the capital stock of said corporation consists of twenty-five shares; that complainant Lyman is the holder of one share, and gives a list of the other stockholders and the number of shares held by each.

It then avers that “the defendants herein conspired and confederated together to get control of the association, and to that end pretended to elect themselves as officers and directors of the association, and have intruded themselves into the said offices and have been and are trying to control and manage the affairs of the association; but complainants charge that the said pretended election was wholly void and of no effect, as being contrary to the by-laws of said association and to the laws of the State of Illinois in such case made ' and provided, and complainants charge that the defendants never were elected directors and officers of said corporation.”

“It is the province of pleading to state facts and not conclusions.” To entitle the complainants to the temporary injunction prayed for in their bill, their bill must state facts from which the court can see and declare that they are entitled to such injunction. No by-law of the corporation is set out in the bill, no facts therein averred in relation to the election. The averments, “that the said pretended election was wholly void as being contrary to the by-laws of said association and to the laws of the state, and that said defendants were never elected directors and officers of the corporation,” are not averments of facts, but statements by the pleader of legal conclusions without stating the facts upon which the conclusions are predicated, and are clearly insufficient. Schuchert v. W. C. & W. R. R. Co., 10 Ill. App. 397; Thompson v. Moxey, 47 N. J. Eq. 538; Goldsby v. Goldsby, 67 Ala. 560.

The averments of the bill in relation to the proposed meeting of the board of directors are that the notice of such meeting is void, because contrary to the bylaws, but no by-law is set out in the bill; because the defendants are not officers or directors of the corporation, which, as has been said, is only a statement of a legal conclusion; and because the place of meeting stated in the notice is the ball park of which the bill alleges the association is lessee, and previous meetings had been held at another place, but no fact is stated to show that such meeting of the directors might not properly be called and held at the West End Ball Park.

A careful examination of the bill leads us to the conclusion that the facts alleged therein are clearly insufficient to entitle the complainants to the temporary injunction which was ordered to be issued, and the order appealed from will therefore be reversed.

Order reversed.


author: Mr. Justice Freeman

text:
    Aaron Garfinkel, Administrator, Defendant in Error, v. Alliance Life Insurance Company of Illinois, Plaintiff in Error.
    Gen. No. 13,787.
    1. Insurance—when forfeiture will not he enforced. An insurer cannot defend against a policy by setting up that the same is void for misstatements in the application where at the time of the application it had knowledge of the facts with respect to which the claim of misstatement is made.
    2. Insurance—to whom life policy may he made payable. A life insurance company organized under the laws of this state may lawfully issue a policy payable to the estate of the insured. .

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    J. Henry Kraft, for plaintiff in error.
    Simon LaGrou, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Defendant in error—hereinafter called plaintiff-recovered a judgment against plaintiff in error—hereinafter called defendant—upon a policy of life insurance issued by said defendant to Marcus Garfinkel, deceased. From that judgment this writ of error is prosecuted.

It is urged in behalf of the defendant, first, that “no insurance was ever effected”; second, that no premium was paid and therefore no contract exists; third, that the applicant, Marcus Garfinkel, falsely stated his age in the application upon which the policy issued; fourth, that upon the application purporting to be signed by the applicant there is a change in the designation of beneficiaries; and fifth, that the defendant could not lawfully issue a policy payable to the estate of the insured.

As to the first and second of the foregoing contentions it appears that the policy was delivered to the insured by one Louis Eosenberg, who is described in the application attached to and made a part of the policy as “agent.” The latter testifies that he received the policy from and paid the premium to the company, but that the insured never paid the premium to him. His statement is that after he delivered the policy to the insured he asked the latter “for the money” and that the insured “told me he still did not have the money and I loaned bim some of my own.” It appears therefore from the testimony of this witness in behalf of the defendant that the premium had been paid to the company at or before the time the policy was delivered to Rosenberg, the defendant’s agent or solicitor, for delivery to the insured. Notwithstanding the alleged non-payment of the money to him, Rosenberg delivered the policy to the insured and, according to his own statement, "trusted the insured for payment and loaned him some of his own money. If the insured owed the amount of the premium it was evidently not the company but Rosenberg who became his creditor. The defendant cannot be heard to say that the premium on the policy was not paid to it merely because it chose to refund—if it did so refund—to Rosenberg after the death of the insured the amount of the premium so paid. It was under no obligation to refund to Rosenberg and cannot so relieve itself from its obligations under its contract of insurance.

Defendant’s third contention that the statements made by the insured in the application for the policy as to his age were false, was held by the court below to be without foundation. The contention is apparently based on an alleged application to defendant for insurance said to have been made the day before the date of the application upon which the policy in controversy was issued. This application purports to be “witnessed by Louis Rosenberg, agent.” It contains the, statement that the applicant was born on the fourteenth day of February 1850, and gives his age at nearest birthday as “forty-seven years.” It is in the handwriting of Rosenberg and bears the signature “Mar-his cus X Tailor.” This alleged application was never mark even turned over to the home office. Rosenberg testifies that he talked with the insured in "Herman and English mixed.” The insured could neither read nor write English. He depended entirely on such translation of the alleged application as Rosenberg gave liim, and it is impossible to regard seriously an alleged application filled out by an agent who does not even ascertain the correct name of the applicant which he signs to it and who in 1907 describes the age of the alleged applicant at “forty-seven years,” while stating that such applicant was born in 1850. The court below was justified in its conclusion that the evidence fails to support the defendant’s contention that the insured did not state his age correctly when the application upon which the policy issued was written. The agent Bosenberg testifies that the last application, filled out by him, a copy of which is attached to and made a part of the policy, was not read over to the insured. Whatever criticisms this application may be open to, the defendant “cannot insist upon a forfeiture of a policy for a cause which was within the knowledge of its agent at the time the policy was issued.” Security Trust Company v. Tarpey, 182 Ill. 52-59. To the same effect are Royal Neighbors v. Boman, 177 Ill. 27-32; Metropolitan Accident Ass’n v. Clifton, 63 Ill. App. 197-199; Metropolitan Life Ins. Co. v. Larson, 85 Ill. App. 143-152. It has been held that issuing a policy on an application in which some of the questions are imperfectly or unsatisfactorily answered is a waiver of objection on that ground. Phœnix Life Ins. Co. v. Raddin, 120 U. S. 183-190.

It is urged that the defendant company could not lawfully issue a policy payable to the estate of the deceased. The defendant having been, it is said, organized under chapter 73 R. S., section 230 et seq., the contention is that the defendant was prohibited from issuing the policy in question by section 238, wherein it is provided that a corporation doing business under that act shall not issue a policy “upon a life in which the beneficiary named has no insurable interest. Any assignment of the policy or certificate to a person having no insurable interest in the insured life shall render such a policy or certificate void.” The copy of the application attached to and made a part of the policy in controversy states the beneficiary to be “my estate.” What is said to be the original of that application contains the same designation “to my estate,” but a line is drawn through these words and after them the names of the wife and two daughters of the insured are written in. The change does not purport to have been made by the insured, but was inserted by the agent Rosenberg, according to his statement, under the direction of the insured when told that the company would not issue a policy payable to his estate. It is singular if the change was made before the policy was issued that it does not appear in the policy itself nor in the copy of the application attached to the policy. However this may be, we are of opinion that the statute in question does not prohibit an issue of a policy payable as is the one in controversy. In Warnock v. Davis, 104 U. S. 799, an insurable interest is “stated generally * * * to be such an interest arising from the relations of the party obtaining the insurance either as creditor of or surety for the assured or from the ties of blood or marriage as will justify a reasonable expectation of advantage or benefit from the continuance of his life.” The policy in the case at bar is by its terms made payable “to my estate (or to such beneficiary as may hereafter be duly designated) if living, otherwise to the executors, administrators or assigns of the insured.” If the objection here made was well founded, and we do not so regard it, we are of opinion nevertheless that the contract being executed, the defendant when “called upon to perform its part of the contract cannot refuse and defeat a recovery by claiming that the contract is ultra vires.” Benefit Ass’n. v. Blue, 120 Ill. 121-128. If the designation “to my estate” were to be deemed invalid, recovery could still be had under the terms of the policy by the plaintiff as administrator. Shea v. Mass. Mut. Ben. Ass’n., 160 Mass. 290; Palmer v. Welch, 132 Ill. 141-148-9.

Finding no material error in the record the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Aaron Thomas et al., Defendants in Error, v. Joseph Olenick, Plaintiff in Error.
    Gen No. 13,864.
    1. Evidence—what not prima facie proof of heirship. The finding of the Probate Court that certain parties are the heirs of a particular decedent is not prima facie evidence of that fact in an action of forcible entry and detainer as long as an appeal from such finding of the Probate Court remains pending and undisposed of.
    2. Jurisdiction—when Municipal Court, without. The Municipal Court is without jurisdiction to determine collaterally in an action of forcible entry and detainer a disputed question of heir-ship where such question is directly in issue in an appeal pending in the Circuit Court.
    Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Brttggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed April 3, 1908.
    Ernest B. Cresap and Frank H. Graham, for plaintiff in error.
    John M. Humphrey and J. Marion Miller, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The defendants in error—hereinafter called plaintiffs—obtained a judgment in forcible entry and detainer against the plaintiff in error—hereinafter called defendant. The plaintiffs brought suit, claiming to be the only heirs at law of Jane Ottman, deceased. The cause was submitted to the Municipal Court upon an agreed statement of facts. From that statement it appears, among other things, that at the time of her death said Jane Ottman was seized in fee of the premises described in the complaint, and that she left an instrument purporting to be her last will and testament, in which one John T. Schofield was named as sole -devisee, legatee and as executor. The will itself is set forth at length in the said statement. The Probate Court has found that the decedent was not of sound mind at the time of the execution of said alleged will, and that it was not executed as by statute required. The will was therefore refused admission to probate. Thereafter Schofield perfected an appeal from that court to the Circuit Court of Cook county and upon the trial a jury found the instrument to be “the last will and testament of Jane Ottman, deceased.” Thereupon the Circuit Court ordered the alleged will to be admitted to probate. An appeal was allowed but never perfected and no writ of error was sued out. In accordance therefore with the judgment of the Circuit Court the Probate Court on September 21, 1903, admitted the will to probate.

Subsequently one of the plaintiffs, Aaron Thomas, filed in the Probate Court his petition to set aside the probate of the will, alleging among other things that he and the other persons named in his petition were heirs of Jane Ottman. The subsequent proceedings are set forth in the opinion of the Supreme Court in Schofield v. Thomas, 231 Ill. 114, and need not be here repeated. By the judgment of that court it was ordered that the judgment of the Circuit Court dismissing the petition of the defendant Thomas, which petition submitted the validity of the alleged will for adjudication, be reversed and the cause was remanded with directions to the Circuit Court to proceed (upon a certain condition stated) “to a trial de novo of the issue whether the instrument in question is the last will and testament of Jane Ottman, deceased.”

The question therefore is still pending as to whether the plaintiffs, claiming to be heirs at law of Jane Ottman, deceased, have any interest as such heirs in her estate. There is nothing in the agreed statement of facts tending to show that such question has been finally determined by a court having competent jurisdiction. The order of the Probate Court refusing probate of the alleged will having been appealed from is not a sufficient basis for the present suit by plaintiffs. It furnishes no evidence upon which plaintiffs claim of ownership or right to possession of the premises in question as alleged heirs at law of the deceased is or can be founded, pending the appeal to the only court having jurisdiction of the subject-matter and the parties.

It is urged in behalf of plaintiffs that the finding of the Probate Court to the effect that plaintiffs are the only heirs of Jane Ottman, deceased, is a sufficient prima facie showing of the alleged fact in the absence of proof to the contrary, to enable plaintiffs to maintain this suit; citing Ford v. Ford, 117 Ill. App., 502-508. The case is not in point. The alleged right of plaintiffs claiming as heirs of the deceased is in the case at bar directly attacked in the issue before the Circuit Court. In the Matter of Storey, 120 Ill. 244-253, it is said that when a party has properly perfected an appeal from an order of the Probate Court “he has done all that the law requires of him to divest the Probate Court of and invest the Circuit Court with jurisdiction of the matter appealed." In that “event the one court would lose and the other court acquire jurisdiction."

The Circuit Court having jurisdiction of the question whether the legatee Schofield or the plaintiffs are entitled to the premises in controversy, the Municipal Court had no authority to entertain the present suit and attempt to adjudicate collaterally the issue pending in the Circuit Court.

The judgment of the Municipal Court will therefore be reversed but the cause will not be remanded.

Reversed.


text:
    Aaron Thomas et al., Defendants in Error, v. Joseph Olenick, Plaintiff in Error.
    Gen. No. 13,865.
    This case is controlled by the decision in Thomas v. Oleniek, ante, p. 385.
    Forcible entry and detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bbuggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed.
    Opinion filed April 3, 1908.
    Ernest B. Cresap and Frank H. Graham, for plaintiff in error.
    John M. Humphrey, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

For the reasons stated in the opinion of this court filed in Gen. No. 13,864, ante, p. 385, the judgment of the Municipal Court in this case will be reversed and the cause not remanded.

Reversed.


text:
    Martin L. Benson, Appellee, v. William Fitzgerald, Appellant.
    Gen. No. 13,889.
    1. Transcript of becobd—5ill of exceptions; when will be stricken. A bill of exceptions not signed or filed within the time specified in the order providing therefor, will be stricken from the transcript.
    2. Transcript—what does not preclude objection that bill of exceptions .was filed in apt time. The execution of a stipulation authorizing the use of the original bill of exceptions in making up the transcript of the record does not estop the signer thereof from urging the failure to file such bill of exceptions within the time prescribed by the court where such execution of such stipulation preceded the expiration of such time.
    Trespass. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    William H. Fitzgerald, for appellant; John T. Murray, of counsel.
    Edward H. Morris, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

In this action appellee recovered damages for assault. The issues were submitted to a jury, who returned a verdict of $500 against appellant, and judgment was entered accordingly. Appellant urges that the verdict and judgment are against the evidence and that the damages are excessive.

Appellee has moved to strike the bill of exceptions from the record, upon the ground that it was not filed within the time allowed by the Circuit Court. It appears that defendant, appellant herein, prayed an appeal, which was allowed “upon filing herein an appeal bond in the penal sum of seven hundred and fifty dollars to be approved by the court, together with his bill of exceptions, within sixty days from this date.” The order was entered February 23, 1907. The bill of exceptions was filed May 7, 1907, and therefore not within the sixty days allowed. It is claimed in behalf of appellant that the bill of exceptions was “furnished” within the sixty days allowed, was then examined and approved by the opposing attorney, was signed and sealed by the court and was filed “a few days later.” It is contended that it became a part of the record notwithstanding the fact that it was not filed until after the expiration of the sixty days allowed. In Hill v. City of Chicago, 218 Ill. 178-180, it is said: “The same rule has been applied to the bond and the bill of exceptions and it has been held that the time allowed may be extended where the court has not lost jurisdiction ; but if the time fixed in the order as made or extended has expired, the jurisdiction is lost and the act of the court in approving the bond or settling and signing the bill of exceptions is a nullity.” See also Pieser v. Minkota Milling Co., 124 Ill. App. 280-282. In the case at bar the bill of exceptions, although approved by the plaintiff’s attorney April 22, 1907, and signed by the judge, was not filed until May 7th following, at which time the sixty days allowed for fifing had already expired several days before. The time allowed having expired, the subsequent filing of the bill of exceptions was a nullity. There is, therefore, no valid bill of exceptions in the record. In Hall v. Royal Neighbors, 231 Ill. 185-190-191, in the order allowing the appeal it was provided that appellant should file the bill of exceptions on or before the expiration of a fixed number of days, and the bill was signed and sealed by the judge of the court at least a week before the expiration of the time allowed, so that the failure to file it was not due to any neglect or delay of the judge in signing or sealing the bill. The court in that case declines to give its assent to a proposition so absurd as “that a bill of exceptions is filed when it is not filed,” merely because it has been signed and sealed in apt time. In the case before us, as in that case, it would make no difference “if a bill of exceptions becomes a part of the record without being filed, for the reason that the appeal was granted on condition that the bill of exceptions should be filed within the time limited.” But referring to the statute which provides that a bill of exceptions allowed, signed and sealed by the judge “shall thereupon become a part of the record of such cause,” the court says (p. 191): “It was never understood that a bill of exceptions, although signed and sealed in open court during the progress of the trial, became a part of the record without being left in the office of the clerk where the other papers and proceedings in the trial were deposited.”

It is, however, urged that appellee’s attorney is estopped to object that the bill of exceptions in this case was not filed in time. It was stipulated on the bill of exceptions as follows: “It is stipulated by and between the parties hereto, by their respective attorneys, that this original bill of exceptions may be incorporated in the transcript of the record hereof by the clerk, instead of a copy thereof.” This stipulation is signed by the attorneys of both parties to the suit, but it was apparently made before the expiration of the sixty days’ time allowed for filing. In Lederbrand v. Pickrell, 167 Ill. 624-625, it was held that where a like stipulation was made, "after the expiration of the sixty days ’ ’ the counsel moving to strike had recognized the validity of the certificate of evidence in spite of the fact that the clerk did not put his file mark upon it within sixty days; and that having afterward stipulated that the original certificate might go into the record in lieu of a copy, they were estopped from objecting that it was not filed in time. In Porter v. The People, 182 Ill. 516-520, cited by appellant’s attorney, there was no order of court fixing the time of filing, but thirty days were allowed in which “to present and settle a bill of exceptions.” This was done within the time fixed. Afterward there was a stipulation for filing it, signed by the opposing counsel on both sides, and it was filed within the time stipulated. The motion to strike was overruled. In Berz v. Mecartney, 115 Ill. App. 66-70, the facts were like those in Lederbrand v. Pickrell, supra—that is, the stipulation that the original bill of exceptions might be used in lieu of a copy, the bill itself having been signed and sealed, not within the time allowed, but subsequently, was made after the bill of exceptions had been so signed and sealed by the judge, and after the time for doing so had expired. Having so stipulated after the expiration of the time allowed, the presumption would be that the appellee intended to waive the default. In the case at bar we are of opinion that the stipulation to incorporate in the transcript the original bill of exceptions in lieu of a copy having been made before the expiration of the time allowed for filing it, should be deemed to have been made in the expectation that the bill of exceptions would be filed within the time fixed, was not a waiver of compliance by appellant with the order fixing the time within which it should be filed and does not estop appellee from moving to strike the bill from the record. The motion to strike must therefore be allowed.

There being no bill of exceptions in the record, the judgment of the Circuit Court must be affirmed.

Affirmed.


text:
    National Life Insurance Company of the United States, Appellee, v. Gustave Myers, Appellant.
    Gen. No. 14,356.
    1. Contracts—what sufficient consideration to support. A contract not to publish certain matters (alleged to be defamatory and false) is based upon a sufficient consideration where it appears that it was predicated upon the delivery of certain papers, the character or value of which does not appear.
    2. Chancery pleading—what not conclusions of pleader. To allege a conspiracy is not to state a mere conclusion. The facts constituting the conspiracy alleged need not be set up, as a conspiracy may exist independently of the performance of an overt act.
    3. Libel and slander—tohen chancery may relieve by injunction. Equity will restrain the publication of a libel if the threatened libelous publication is in violation of a valid contract; if it' is in furtherance of a wrongful conspiracy to destroy property rights and injure the business of the complainant, if the parties issuing the proposed libelous publication are insolvent, if no adequate' remedy at law exists, if it is calculated to inflict irreparable in-" jury, the extent of which cannot be definitely ascertained and for which there is no adequate remedy at law, and if all of this is done or sought to be done with malicious and wrongful intent.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed April 3, 1908.
    Statement Tby tlie Court. This is an appeal from an interlocutory order granting an injunction. The bill of complaint filed by appellee recites inter alia that appellee, a corporation organized under the laws of this state, is an old line life insurance company having its principal office in Chicago; that it is engaged in the business of life insurance; that in 1904 it contracted with appellant to become agent and solicit life insurance for appellee; that appellant continued to solicit life insurance and transact business as agent for appellee until in August, 1906, he was discharged “because your orator for the first time then learned that said Gustave Myers had been a criminal, had a criminal record and was still possessed of criminal tendencies, and said agency contract and all rights thereunder terminated”; that after such discharge appellant, wickedly and maliciously intending to destroy the good name, reputation, property and business of appellee, and for the purpose of attempting to levy blackmail, began threatening to communicate with appellee’s policy holders to endeavor to induce them to lapse their policies of insurance in the appellee company, to dissuade and prevent persons contemplating taking policies of insurance from appellee; to threaten to cause a notice to be published in divers newspapers of general circulation in every state where appellee was doing business, warning persons against taking insurance or otherwise transacting business with appellee; that for the purpose of executing such threats and of defrauding and injuring appellee, appellant communicated with divers policy holders of appellee and endeavored to induce them to lapse their policies of insurance with appellee, and caused notice to be inserted as an advertisement in a number of prominent papers published in various cities of this state (seven of which are named in the bill) and, as appellee is informed and believes, in other newspapers printed and circulating in other states, which notice was as follows: “Notice to the Public: All persons contemplating insuring their lives in a company calling itself The National Life Insurance Company of the U. S. A. of Chicago, Illinois, will do well by first making careful inquiry regarding them from any reputable life insurance office or agent or address Insurance 643, care of Journal,” intending in said notice and advertisement to charge that appellee was disreputable and an unsafe company; that by means of such publication appellee has been greatly injured in its good name, reputation and property, and suffered great loss of business.
    Appellee states that on or about September, 1906, it filed its bill of complaint against appellant, and that while said bill was pending and after an injunction issued against said appellant an agreement was made whereby, in consideration of the delivery by appellee to said Myers of certain papers in appellee’s possession and consenting to the dissolution of said injunction and dismissal of said bill, said appellant agreed to ever after refrain from publishing or causing to be published any notice of similar character or substance to those before published, from circulating any false or defamatory written statements or reports about the good name, business property or stability of appellee, or from interfering with appellee, directly or indirectly; that relying on such agreement appellee was induced to consent to the dissolution of said injunction and the dismissal of the said bill of complaint, which accordingly was done; that soon afterward said appellant, in total disregard of his promise and agreement, secretly, maliciously and wrongfully began contriving to injure and destroy the good name, property and reputation of your orator in its business, and to cause it to appear to the public as insolvent, unstable and dishonestly managed, which he did for the purpose of attempting to levy blackmail; that in furtherance of such purpose appellant prepared and caused to be typewritten and exhibited to divers persons and to officers and directors of appellee a certain document, a copy of which is attached to the bill.
    It is further alleged that for the sinister purpose of injuring appellee said appellant retained attorneys to present and file with the Insurance Department of this state certain statements, letters and documents and affidavits prepared or secured by appellant, or at his instance, concerning appellee; that at said appellant’s request such attorneys appeared before the Insurance Superintendent at Springfield, Ill., and on the basis of said documents objected to the approval.of appellee’s report to the Insurance Department of Illinois, and to the approval of the report of an examination of appellee made by said Insurance Department in 1907; that said statements, letters, documents and affidavits filed with the Insurance Department contained false, scandalous, malicious and libelous statements concerning appellee, its business, property and officers; and that the filing thereof and the objections and argu"ments based thereon were designed and intended to make it appear that the Department of Insurance of Illinois had been remiss and negligent of its duty in its examination of appellee’s affairs when it failed to report appellee as insolvent.
    Appellee further represents that the examination of appellee by the said Insurance Department was carefully, correctly and honestly made, and that in the report of said examination appellee is found to be solvent and to have assets of more than $1,300,000 in excess of its total contractual insurance liability and that its business is transacted according to law.
    It is further represented that said appellant Gustave Myers, one J. Edson McEldowney and others unknown conspired, combined, confederated and agreed among themselves wrongfully, fraudulently and maliciously to injure and destroy the good name, reputation, property and business of appellee and to cause a receiver to be appointed for appellee, by publishing in public newspapers and insurance journals false, defamatory and libelous statements and reports concerning appellee, its assets, its affairs, its history, property, reputation and its method of doing business, in order to destroy confidence in appellee, intimidate its policy holders, destroy its patronage, defraud and attempt to levy blackmail upon appellee and bring it into scandal and disgrace.
    It is further shown that in pursuance of such unlawful conspiracy said McEldowney wrongfully, falsely and maliciously wrote and published a certain false, scandalous, malicious and defamatory libel concerning appellee, a copy of which is attached to said bill, which contained the following: ‘‘Chicago, September 30.— Property owners in downtown Chicago by calling mass meetings to protest against increase in taxes, which they declare amounts in many instances to confiscation of their property, have incidentally stirred up serious trouble for the management of the National Life Insurance Company” (meaning your orator). “The savings of more than 35,000 policy holders” (meaning policy holders of your orator), “carrying $46,000,000 insurance, are held by some in their ranks to be in danger, and deep inquiry into the company’s” (meaning your orator’s) “affairs has begun. United States Senator Albert J. Hopkins ’ law firm is acting for the malcontents. ’ ’
    Appellee alleges that said statements are and were false in all respects, as well as other statements made in said published statement and libel; that said appellant Gustave Myers also wrote and published a false, scandalous, malicious, defamatory libel concerning appellee in the form of a printed pamphlet or document, a copy of which is attached to the bill, which pamphlet contained on its front cover false, scandalous, mali-cious, defamatory and libelous matter, as follows: “The Crime of a Life Insurance Company” (meaningappellee) “and the Methods of a Clique of Chicago Frenzied Financiers” (meaning E. A. Shedd, Charles B. Shedd and Albert M. Johnson of Chicago, Illinois, officers, directors and stockholders in your orator); that said pamphlet contained the following false, scandalous, malicious, defamatory and libelous matter:
    “The Crime oe the National Lies Insurance Company oe the United States oe America,
    of Chicago, Ills.
    No more shameless, heartless thievery could possibly be imagined than the persistent stealing of funds belonging to the future Widows and Orphans.”
    ‘‘ The Crime oe a Lies Insurance Co. (meaning your orator)
    How a clique of ‘Ruthless Financiers’ ‘composed of Messrs. E. A. and his brother Charles B. Shedd, both of Chicago Ice Trust fame, and a man by the name of A. M. Johnson, recently from Cleveland, 0., but now a resident of Chicago, have been manipulating the assets of The National Life Insurance Company of the United States of America, whose headquarters are at 159 LaSalle street, Chicago, which Company’ (meaning your orator) ‘they’ (meaning E. A. Shedd, Charles B. Shedd and A. M. Johnson) ‘control’.
    ‘The savings of almost 40,000 policy holders,’ (meaning policy holders in your orator) ‘carrying over $50,000,000 of life insurance, have been and are now being so ruthlessly handled, that unless some immediate steps are taken to check it, there is no telling what will become of the balance of these savings’.
    ‘Over $1,600,000, or over 25% of the entire assets of this Company’ (meaning your orator) ‘have disappeared as if by magic since Messrs. E. A. Shedd and A. M. Johnson got control of it’ (meaning your orator) ‘four years ago’.
    ‘The assets of this Company’ (meaning your orator) ‘have been so misused and manipulated, that should an honest examination be made to-day as to the value of these assets, it would not only disclose the Company’ (meaning your orator) ‘to be hopelessly insolvent, but it would further disclose a condition of ‘high finance’ unparalleled in the history of Life Insurance in this country’.”

      Appellee sets forth at length quotations from said pamphlet, which are specifically alleged to contain additional false, malicious and scandalous matter.
    Appellee further represents that by reason of recent disclosures concerning alleged dishonest methods of certain life insurance companies in certain respects public sentiment has become peculiarly susceptible to any attack upon any life insurance company, however frivolous or groundless such an attack might be and whether the same be false or otherwise; that notwithstanding the said charges emanate in a large measure from said appellant Gustave Myers, a man of criminal record and criminal tendencies, they do appellee irreparable damage; that the effect thereof is insidious and so difficult to trace and refute that it is impossible to trace and measure the damage done and that hereafter will be done on account of the miscellaneous circulation of said libelous matter. Appellee states that it has always borne a good reputation for integrity, fairness, stability and honesty, and that the directors, each and all, are possessed of a good reputation for honesty, integrity and stability, and are capable of managing and have always managed appellee’s affairs for the best interests of appellee’s policy holders, properly, economically, safely, honestly and conservatively, on approved life insurance principles, and that none of appellee’s officers has ever, in handling appellee’s affairs, been guilty of any of the defamatory charges in said publications made exhibits; that appellee has in excess of $8,000,000 in assets, more than $51,000,000 of insurance in force, more than 40,000 policy holders, and that its assets exceed its total liabilities by more than $1,400,000, and that appellee’s success in properly protecting and giving the best returns to its present policy holders depends upon the preservation of its good name and reputation and upon the trust thereby reposed in it by persons seeking life insurance.
    Appellee represents that the actions of said Myers and McEldowney as aforesaid have already done appellee and its policy holders great and lasting damage; that each of them is threatening to continue the course of conduct such as they are charged with, and will carry out such threats unless restrained by injunction; that to permit the further doing of such acts would be continuing the injury to and substantial interference with appellee’s business, the result of which in damages to appellee cannot be compensated by law; that said Gustave Myers and J. Edson McEldowney are utterly insolvent and unable to respond in damages to appellee, could appellee trace in money the damage done by the circulation of said libelous matter.
    Appellee prays that said appellant, Gustave Myers, be required to answer certain interrogatories which are set forth at length, and that said Myers and McEldowney and each of them be enjoined and restrained from writing, printing, publishing, circulating and distributing the documents, papers or writings set forth and attached to the bill or any other documents, papers or writings of like import, and that they be restrained and enjoined from conspiring among themselves or with others to write, print, publish, circulate, mail or distribute the documents or papers in said bill set forth, or any other documents of like import, or doing any other acts pursuant to the conspiracy in said bill set forth; that they be enjoined and restrained from persuading the policy holders of appellee to lapse their policies by using said libelous matter or other matter of like import, and from delivering to appellee’s agents any of the said libelous matter or other matter of like import or communicating with policy holders or agents of appellee by means of libelous matter of like import to that set forth; and that they be restrained and enjoined from interfering with appellee’s business, directly or indirectly, by means of said libelous matter or other matter of like import, and that upon final hearing such injunction be made permanent. Appellee further prays for general relief and the bill is verified by affidavits of appellee’s president and secretary.

      Notice was served, and upon hearing the Circuit Court granted a preliminary injunction against Gustave Myers substantially as prayed in the bill, upon bond of $2,500, which was given. • Appellant, Gustave Myers, appeals from the injunction order.
    Goldzier, Rodgers & Froehlich, for appellant.
    L. A. Stebbins and McKinley & Sample, for appellee; W. W. Wheelock, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant that the agreement set up in the bill wherein appellant, in consideration of the withdrawal of an injunction and dismissal by appellee of a bill of complaint then pending, is said to have agreed not to publish an alleged libel, is void; that “the bill does not properly set up a conspiracy”; that the injunction order is void for uncertainty; and that equity has no jurisdiction to enjoin a libel.

So far as they are well pleaded the averments of the bill, for the purposes of this interlocutory appeal, must be taken as admitted. It is urged, however, by appellant’s counsel that the correctness of some of the statements made in the publications referred to in the bill, and attached to and made a part thereof, are “nowhere denied. ’ ’ The bill alleges in the most emphatic manner that these publications contain false, scandalous and malicious statements and that they were prepared and circulated with the intent “to destroy the good name, reputation, property and business” of appellee; “for the purpose of attempting to levy blackmail,” and for the purpose of “defrauding and injuring” appellee; that the publications contain “divers false, scandalous, malicious and libelous statements concerning your orator, its business, its property and its officers.” A number of paragraphs from said publications are set forth in the bill, the statements of which are specifically charged to be false and to have been published with the intent and for the purpose of injuring appellee in its business. It is averred that by said publications it was intended to create a false impression that appellee’s affairs were under investigation by policy holders and others, that appellee had been guilty of crime and violated the penal laws in the management of its business and assets, that its officers are dishonest, have sworn falsely and have handled appellee’s assets with intent to convert the same to their own use, that appellee is insolvent and has reported fictitious assets, that in four years $1,600,000 of appellee’s assets have been converted to the personal use of officers and directors of appellee, all of which, as well as other like statements, the bill charges, are false and made for the purpose of destroying its business. It is charged that irreparable injury has been done and is being done by these publications for which no adequate remedy exists at law. In view, therefore, of the whole tenor of the averments of the bill, it is difficult to see what bearing the alleged failure to deny a specific statement in somé of these publications has upon the ques-' tion now before us as to the propriety of the interlocutory injunction of which appellant complains.

It is urged that the agreement was void which the bill states appellant entered into, not to publish or circulate thereafter “any false or defamatory written statements or reports about the good name, business, property or stability of” appellee,-in consideration of the delivery by appellee to appellant of certain papers in its possession, the dissolution of an injunction against appellant and the dismissal of the bill of complaint upon which such injunction had issued. The contention seems to be that the consideration of this agreement was to the effect that appellant would “not publish or divulge matters in which the public had an interest,” and that such agreement is void as against public policy; that “a promise not to do what the law prohibits” is an inadequate consideration for such agreement. We are not aware of any rightful or lawful interest the public can have in false or defamatory publications made with intent wrongfully to injure the property and business of anyone. Appellant’s contention seems to be to the effect that the contract referred to, which appellant is charged with having violated, was not and is not a valid subsisting contract, for want of a legal consideration, and therefore a court of equity will not and cannot interfere to restrain its breach. There was, however, other consideration than the agreement by appellant not to publish. Certain papers which appellant evidently deemed of some value were delivered to him as a part of the consideration for the promise. The promise not to publish, apparently therefore, was based on a valuable consideration to appellant. Whether or not, when the evidence is presented, the contract will be deemed one the violation of which should be restrained, is not now the question. We have here a promise based on an apparently valuable consideration. It is said in Pomeroy’s Equitable .Remedies, vol. 1, sec. 270: “Where an agreement stipulates that certain acts shall not be done, an injunction ^preventing the commission of those acts is evidently the only mode of enforcement.” (See also Idem, sec. 292.) The question as to whether the injunction should be “made permanent on that ground alone is not before us.

There are, however, other and unquestionable grounds for the relief prayed for, which are set forth in the bill. Appellant claims that the bill does not properly set up a conspiracy. The argument is that the charge of conspiracy between the two defendants named in the bill is not based upon facts alleged; that, as in cases of fraud, it is not sufficient to charge a conspiracy, but that the acts constituting it must be alleged. No authorities are referred to in support of this contention. A conspiracy may exist before it is carried into execution by the commission of acts in pursuance of the conspiracy. In the present case, however, the bill not only charges a conspiracy, but points out repeated and numerous acts alleged to have been done in pursuance of the conspiracy “to wrongfully, fraudulently and maliciously injure and destroy the good name, reputation, property and business of appellee.”

It is further argued that the injunction order is void for uncertainty, but it suffices to say that appellant’s counsel fails to substantiate the contention, or point out wherein such alleged uncertainty exists. See Hey v. Wilson, 128 Ill. App. 227-229.

It is further argued that equity has no jurisdiction to enjoin a libel and that the real scope of the bill is “to enjoin the publication and circulation of what is claimed to be a libel.” Much space is given by appellant’s counsel to discussion of the liberty of the press and to decisions in various jurisdictions to the effect that a “court of chancery will not restrain the publication of a libel because it is a libel.” Prudential Life Ins. Co. v. Knott, 10 L. R. Ch. App. 142. In the present case it is claimed in behalf of appellee that the injunction in this case does not merely restrain the publication of a libel, as to which there is an adequate remedy at law, but that the fact that the publications complained of are alleged to be libelous is but an incident; that the jurisdiction of equity invoked in the case rests upon other and unquestioned grounds. If a libelous publication is in violation of a valid contract, if it is in pursuance of a wrongful conspiracy to destroy property rights and injure the business of appellee, if the parties issuing the libelous publications are insolvent and no remedy at law exists, if it is inflicting irreparable injury the extent of which cannot be definitely ascertained and for which there is no adequate remedy at law, if the bill shows that not only by publications, but by letters to appellee’s agents and employes, appellant is interfering with appellee’s business, is seeking to cause policy holders to lapse their policies and to cause its business to'be so far ruined as to throw it into the hands of a receiver, and all this wrongfully and with malicious purpose, it is difficult to see why equity should withhold its preventive authority. In Barnes v. Chicago Typographical Union, 232 Ill. 424-429, an injunction was granted, in which, among other things, the said union was restrained “from sending any circular or other communications to customers or other persons who might deal or transact business with said complainants or either of them for the purpose of dissuading such persons from so doing.” The court said: “The union published weekly what was called a directory of union printing offices of Chicago containing the names of offices where the demands of the union were submitted to and a list of offices on strike, in which latter list were published the names of complainants. The purpose of this directory was to induce people not to deal with the complainants and to compel employes to leave their service.” In that case it was urged on the part of the appellants as ground for demurrer that the relief prayed for would deprive the defendants of rights secured to them by article 11, section 4 of the Constitution, which provides that “Every person may freely speak, write and publish on all subjects, being-responsible for the abuse of that liberty.” The injunction was, however, affirmed. In Loewe v. California Federation of Labor, 139 Fed. 71-86, an injunction was granted restraining the publishing or circulating of statements or representations advertising or calling attention of complainant’s customers, merchants, tradesmen or the public to any boycott against complainant and of representations that the product of complainant’s factory was “unfair.” That case is one of those cited in Barnes v. Typographical Union, supra. In Wilson v. Hey, 232 Ill. 389, in which the judgment of the Appellate Court in the same case (supra) is affirmed, the contention was made that it was not unlawful to refuse to deal with appellees nor to notify others of such refusal “and to try to induce them by peaceable means not to patronize appellees.” In those cases the injunctions were sustained. It is doubtless true, as stated in Covell v. Chadwick, 153 Mass. 263, cited by appellant’s counsel, that “so far as the bill alleges libel by the defendant on the plaintiff, unless he can show that they are somewhat more than mere false representations as to the character or reputation of Ms property or as to Ms title thereto, he is not entitled to a remedy by injunction.” In the case at bar the publications are, according to the bill, more than mere libels, and where, as here, the bill distinctly avers essential facts forming the basis of the prayer for relief so as clearly to apprise the appellant of what he has to meet, it is not necessary that it contain the evidence or recite the circumstances in detail which would support its general statement. The present bill is particularly full in tMs respect. It clearly shows an irreparable damage which would not be adequately compensated by action at law. The injunction does not attempt to restrain a mere libel. It restrains wilful, malicious and irreparable injury to appellee’s property rights, for which the bill shows there is no other adequate relief.

Finding no error in the record, the interlocutory order granting the injunction will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Frank R. Smythe, Defendant in Error, v. Charles P. Parish & Company, Plaintiff in Error.
    Gen. No. 13,484.
    Master anb servant—what sufficient to establish charge of failure to furnish suitable appliances. It is sufficient to show that the machinery supplied to a servant did not operate properly and that the defendant knew that fact—the particular flaw or cause of the improper operation need not he shown by the plaintifi.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed March 20, 1908, on first rehearing.
    Rehearing denied April 14, 1908.

      John Stuart Roberts, for plaintiff in error.
    Lee D. Mathias, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, Frank E. Smythe, was employed by the plaintiff in error in its factory in operating a die press. While at work at the machine on April 20, 1899, his right hand was caught between the upper-and lower dies and so injured that he lost the middle finger and the index finger. Defendant in error sued plaintiff in error in an action on the case to recover damages for alleged negligence of plaintiff in error in permitting the machine to become out of order and in such a condition that it was apt to repeat and inflict bodily harm upon any person working at the machine.

Plaintiff in error filed the general issue. On the trial the jury returned a verdict -finding plaintiff in error guilty and assessing damages at five thousand dollars.

The testimony in the record shows that the defendant in error, at the time of the injury, was engaged in trimming pump tops on the machine in question. This work consisted in placing a small pan-shaped piece of tin in the upper die of the machine with his hand, and then pressing the lever with his foot for an instant. The upper die would then come down with the pump top, and its edges would be trimmed into the proper shape, and it would fall through a hole in the lower die. The upper die would then be carried back by the machine to its highest position and remain there.

The evidence on the part of the defendant in error tended to show that sometimes the piece of tin would get caught in the lower die, and that it was necessary for defendant in error to reach his hand in and press it through the lower die. On the occasion of the injury in question, while defendant in error was pushing a piece of tin which had caught in this manner through the lower die, the upper die came down without any pressure upon the lever and crushed his fingers and remained down. He had worked on the machine or similar machines about six weeks, and it had never repeated before during that time; nor had anything occurred in the operation of the machine which suggested to defendant in error that it was likely to repeat. There is evidence in the record given by other employes of plaintiff in error that this same machine had repeated before the accident in question, and that it repeated after defendant in error was injured.

The evidence in behalf of defendant in error tends to show that the machine was out of order and defective in several particulars, and had repeated before the time in question and the plaintiff had notice of its action and condition; and that the peculiar action of the machine at the time of the injury in repeating the downward movement of the upper die would be occasioned by either one of the defects pointed out in the evidence on behalf of defendant in error. This evidence is contradicted by the evidence on behalf of plaintiff in error which tends to show that the machine was in good order and that the defects claimed did not exist in the machine, and if they had existed they would not have caused the machine to repeat as it did when the injury was inflicted.

It is conceded on both sides that if the machine was in good order, one pressure upon the lever for an instant would not cause the upper die to come down the second time and remain down, as it did at the time of the injury to defendant in error.

Upon a careful review of the evidence and the arguments of counsel, and upon a second consideration and review of the record upon a petition for a rehearing and the answer thereto, we are of the opinion that the conflict in the testimony makes the case a proper one for the jury, and that we ought not to set aside the verdict and judgment. By their verdict the jury found that the machine worked improperly. It was not necessary for defendant in error to prove what particular flaw or imperfection caused the improper working or operation of the machine. It was sufficient to prove that it did so improperly operate, and that plaintiff in error knew that it had so operated before the operation in question. Nat. Enameling & Stamping Co. v. Kinder, 126 Ill. App. 642. The fact, which is not controverted in the evidence, that the upper die descended without being caused to do so by the operator, and remained down, tends to show, irrespective of the cause, that the machine was out of order and defective. Maden v. Waldowski, 101 Ill. App., 367-372. It may be conceded that the expert evidence offered on behalf of plaintiff in error that the particular conditions and defects shown by the evidence on behalf of defendant in error, would not mechanically produce the peculiar action of the machine, was more satisfactory and persuasive than the evidence on that point offered by defendant in error, still the jury might properly have entertained an opinion from the evidence that it did not meet the fact of the peculiar action of the machine, or they might have held a different opinion from the experts as to the cause of that action. The jury believed the evidence on behalf of defendant in error as to what happened at the time of the injury, rather than the theory of the experts as to what could or would happen as results, mechanically, from the conditions or defects named.

We do not think the court erred in instructing the jury that they might consider “what, if any, effect such in juries may have upon him in the future in respect to pain and suffering.” The allegations of the declaration were sufficient, in our opinion, to entitle defendant in error to recover for future pain and suffering. West Chicago St. R. R. Co. v. McCallum, 169 Ill. 240-243; The Eagle Packet Co. v. Defries, 94 id. 598; City of Chicago v. McLean, 133 id. 148.

Complaint is made that the court refused to give two instructions requested by plaintiff in error. These instructions were fully covered by other instructions given at the request of plaintiff in error, and it was not error, therefore, to refuse them. We cannot hold that the verdict is excessive. No other questions are presented by the briefs. The judgment is affirmed.

Affirmed.