text:
    Frederick Fleck, Administrator, Appellee, v. Joseph Weipert, Appellant.
    Gen. No. 20,801.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by Frederick Fleck, administrator de bonis non of the estate of Marie Weipert, deceased, against Joseph Weipert to recover the proceeds of a sale of a certain saloon business located at 628 Wells street, Chicago. The defendant was the reputed husband of said Marie Weipert, and they lived together as husband and wife for a number of years, and upon the death of the said Marie Weipert, October 7, 1912, the defendant “as surviving husband of the deceased” was appointed administrator of her estate. The defendant operated a saloon and restaurant at 628 Wells street, Chicago; also a saloon at Lincoln and Wright-wood avenues, Chicago. The defendant resigned as administrator of the estate of said Marie Weipert, deceased, November 27,1912, and the plaintiff, a brother of the deceased, was appointed administrator de bonis non of said estate on December 2, 1912. During the time that the defendant was acting as administrator of the said estate, he sold the business at 628 Wells street for $4,200. The case was tried before the court and a jury, and the issues were found for the plaintiff and the damages were assessed at $4,200. Judgment was entered on the finding and this appeal followed.
    Michael Koch, for appellant; Delbert A. Clithero, of counsel.
    Bradley, Harper & Eheim, for appellee.

      Abstract of the Decision.
    1. Instructions, § 93

      —when instruction as to credibility of witnesses erroneous. An instruction which in effect authorizes the impeachment of a witness as to an immaterial matter in his testimony, in reference to which he has made different and contradicting statements in former occasions, is erroneous.
    2. Witnesses, § 275

      —what is effect of contradictory statements of witness. Proof of different and contradictory statements of a witness as to a material matter made on former occasions is merely evidence tending to impeach such witness, to be considered by the jury in estimating the weight of the testimony.
    3. Witnesses, § 282

      —when testimony of witness may be disregarded. If a jury believe that a witness has wilfully sworn falsely to a material matter, or that he has been successfully impeached, they may disregard his entire uncorroborated testimony—otherwise not.

      4. Husband and wife, § 210

      —when instruction as to effect of separation erroneous. An instruction stating in effect that if a woman married a man in good faith and afterwards learned that he had another wife living, and they agreed to separate, such agreement was sufficient consideration to support a transfer of property from such man to the woman, is erroneous, since it was the duty of the woman on learning of the former marriage to cease living in adultery, and the agreement to separate did not extinguish any claim or right which the woman might have against the man.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Scanlan

license: Public Domain

text:
    Thomas Kennedy by Peter Koenen, Appellee, v. City of Chicago, Appellant.
    Gen. No. 20,849.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 1396

      —when verdict will not be set aside on appeal. A verdict based on conflicting evidence will not be set aside on appeal unless clearly and manifestly against the weight of the evidence.
    2. Negligence, § 189

      —when question of contributory negligence is for court. The question as to whether or not a person is guilty of contributory negligence is generally one of fact for the jury, and it only becomes a question of law when the evidence so clearly fails to establish due care that all reasonable minds would reach the conclusion that the person was guilty of contributory negligence.

      Statement of the Case.
    Action on the case, brought in the Superior Court of Cook county by Thomas Kennedy, a minor, by his next friend, Peter Koenen, against the City of Chicago, to recover damages alleged to have been sustained by .the plaintiff by reason of a certain accident to the plaintiff on August 26, 1915. The accident occurred at a point where Larrabee street crosses the Chicago, Milwaukee & St. Paul Railroad tracks in the city of Chicago. The plaintiff, a boy nine years old, was run over by a train passing along said tracks, and one ■ of his legs was so badly injured that- it became necessary to amputate the same.
    The case was tried before the court and a jury, and a verdict was returned finding the defendant guilty and assessing the plaintiff’s damages at $7,500. Upon the plaintiff’s entering a remittitur for $2,500, the court entered judgment for $5,000, and this appeal followed.
    John W. Beckwith and N. L. Piotrowski, for appellant; David R. Levy, of counsel.
    James V. Cunningham, for appellee; John T. Murray, of counsel.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

3. Municipal corporations, § 1100 —when instruction sufficient though incomplete. In an action for injuries caused by the defective condition of a sidewalk, an instruction allowing the jury to consider the condition of such sidewalk, and ignoring the question of notice to the city of such condition, is not erroneous when the question of notice is fully covered by other instructions given.

4. Appeal and error, § 438 —when question of variance will not be considered on appeal. The question of alleged variance between the allegations and proof cannot be raised for the first time on appeal.


text:
    Magdeline Terrault, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 20,867.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.
    Statement of the Case.
    Action on the case by Magdaline Terrault against the Chicago City Railway Company, in the Superior Court of Cook county, to recover damages for personal injuries claimed to have been sustained by the plaintiff through the negligence of the defendant. The action was originally brought against the Chicago Railways Company. Afterwards the Chicago City Railway Company was made an additional defendant to the suit. The plaintiff, in her declaration, alleged that while she was in the act of boarding one of the cars of the defendants for the purpose of becoming a passenger, and while 'she was in the exercise of ordinary care for her own safety, the defendants, through their servants, carelessly and negligently caused the car to be suddenly and violently started, and she was thereby thrown with great force and violence from and off the car to the ground, and that she suffered a miscarriage and was otherwise greatly bruised and injured. Both defendants pleaded the general issue. The case was tried before a court and a jury, and during the progress of the trial the action was discontinued as to the Chicago Railways Company. A verdict was returned by the jury finding the defendant guilty and assessing the plaintiff’s damages at $3,500. A motion for a new trial was overruled, judgment was entered on the verdict and this appeal followed.
    Abstract of the Decision.
    1. Witnesses, § 210

      —what cross-examination is improper. Cross-examination of a witness which has the purpose of degrading and humiliating such witness, and prejudicing the jury against her testimony, is improper.
    2. Appeal and error, § 1772

      —when judgment will Be reversed for improper cross-examination. On appeal in an action for personal injuries, where it appears that the case is a close one on the merits, and the record shows that improper cross-examination of a witness tended to prejudice the defendant’s rights, the judgment for the plaintiff will be reversed and a new trial ordered.
    John E. Kehoe and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    E. Leslie Cole and C. Helmer Johnson, for appellee; Guerin & Barrett, of counsel.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Philip Karcher, Appellant, v. Dudley A. Tyng & Company et al., Appellees.
    Gen. No. 20,887.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action on the case to recover damages for alleged fraud and deceit by Philip Karcher against Dudley A. Tyng & Company, a corporation, C. W. George and William C. Jacklin. The declaration consisted of two counts. The first count, in substance, charged the defendants with falsely, fraudulently and knowingly making certain false and fraudulent representations to the plaintiff as to the condition of the La Touriste Manufacturing Company; that the plaintiff relied upon such representations and as a result thereof suffered a loss. The second count was substantially the same as the first, save that it also charged that the defendants entered into a wilful and malicious conspiracy, agreement and undertaking to cheat and defraud the plaintiff. To the declaration, all the defendants filed pleas of the general issue.
    The case was tried before the court and a jury, and when the plaintiff rested, the trial court, of his own motion, directed a verdict for the defendants. This appeal followed.
    Fred W. Reinhardt, for appellant.
    Charles A. Nowak and W. R. Hauze, for appellees.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

Abstract of the Decision.

Trial, § 195 —when peremptory instruction erroneous. A peremptory instruction should not be given when there is evidence introduced by the plaintiff tending to prove the material allegations of the declaration.


text:
    Charles Dressler, Administrator, Appellant, v. James H. Van Vlissingen, Appellee.
    Gen. No. 20,932.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action in assumpsit in the Superior Court of Cook county by Charles Dressier, administrator of the estate of Fredericka Dressier, deceased, against James H. Van Vlissingen to recover on a promissory note executed by the defendant at Chicago, dated December 1, 1903, to the order of Fredericka Dressier, for the sum of $1,000, with interest at six per cent, per annum. It appeared that the defendant had been discharged in bankruptcy, but the plaintiff claimed that he had expressly promised to pay the debt after such discharge, and there was evidence that the defendant had paid $50 on the note.
    The case was tried by the court without a jury, and the issues were found in favor of the defendant. Judgment was entered upon the finding and this appeal followed.
    Ossiah Cameron and Fred C. Churchill, for appellant.

      Abstract of the Decision.
    1. Bankruptcy, § 81

      —what promise is necessary to revive a debt discharged in bankruptcy. A discharge in bankruptcy releases a debt of the bankrupt arising out of a note, and to revive the same the promise of the debtor to pay the note must be clear, distinct and unequivocal, and without such clear and express promise neither pay-ment of interest, part payment of principal, nor declaration of intention to pay will suffice to revive the same.
    2. Bankruptcy, '§ 85

      —when proof of new promise to pay debt discharged in bankruptcy is insufficient. Evidence held not to show a clear and unequivocal promise to pay a note discharged in bankruptcy.
    Frederick R. De Young, for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Sara G. Huggins, Appellee, v. Lilly Gottschalk et al. Albert Wesley Gottschalk, Appellant.
    Gen. No. 20,942.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. Connor, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Bill to foreclose a trust deed covering certain real estate in Cook county, filed in the Superior Court by Sara G. Huggins. The trust deed was executed by Lilly Gottschalk, and was given to secure the payment of certain promissory notes. All of the notes were signed by said Lilly Gottschalk and were made payable to herself, and were indorsed by her and Albert Wesley Gottschalk. At the time of the filing of the bill, some of the notes were owned by the complainant. A decree was entered finding, inter alia, that there was due to the complainant the sum of $641.47, with interest thereon from December 27, 1912, and also the sum of $75 as reasonable solicitor’s fees, and a sale of the real estate was ordered, unless such sums, together with the costs of the suit, yrere paid within ten days. The decree further provided that “after the coming in and the confirmation of the master’s report of sale in case any deficiency is shown in the amount due to the complainant, Sara G. Huggins, she shall be entitled to execution against the defendant, Lilly Gottschalk and Albert Wesley Gottschalk, personally liable therefor.” This appeal is prosecuted to reverse said decree, and the sole appellant is Albert Wesley Gottschalk.
    Abstract of the Decision.
    Appeal and error, § 308

      —what decision not reviewaMe on appeal. A conditional deficiency decree not being final nor appealable, the propriety of entering such a decree against the indorser of mortgage notes is not reviewable.
    Albert Wesley Gottschalk, pro se.

    Sonnenschein, Berkson & Fishell, for appellee.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    John F. Doran et al., Appellees, v. Beatrice M. Graham, Appellant.
    Gen. Nos. 21,217, 21,442.
    1. Dedication, § 25*—when plat sufficient. A plat containing building line restrictions held to substantially comply with the statutes (Rev. Stat., ch. 109, and ch. 115, sec. 13, J. & A. ¶¶ 8517-8526, 9110).

      2. Dedication, § 33

      —when common-law dedication exists. Where property is subdivided and a plat made thereof which does not comply in every respect with the statute, but which is recorded, there is a common-law dedication, and if the owrier of lots designated on such plat conveys according to the description contained in the plat and by reference thereto, he adopts the plat with all its dedications, and he and those who succeed to his title are estopped to deny such dedication.
    3. Deeds, § 140

      —when restriction as to use of property is created. Where a deed refers to a plat or subdivision, such plat and all the particulars shown thereon are as much a part of the deed as though they were recited in it.
    4. Frauds, Statute of, §29

      —when statute does not apply. The Statute of Frauds (Rev. Stat., ch. 59, sec. 2, J. & A. If 5868), does not apply where a grantee of property seeks to avoid building restrictions contained in the plat of the property purchased, on the ground that such plat was not signed by the grantee.
    5. Deeds, § 144

      —when restrictions in deed are binding. If a deed refers to a plat that contains building line restrictions, .such restrictions are binding on the grantee, though the latter does not sign the plat or the deed, and when the owner of land sells the same, he may insert in the deed of conveyance such terms and conditions as he pleases touching the mode of enjoyment and use of the land, and if they are not objectionable in law, they will be binding on the grantee who accepts such deed, although the latter does not sign the deed.
    6. Dedication, § 78

      —what building restrictions may be inserted in plat. The owner of property platting the same may insert in the plat binding restrictions as to the character of structures which may be erected on the property.
    7. Deeds, § 145

      —what is effect of deed containing restrictions. Where a deed refers to a recorded plat containing building line restrictions, such restrictions, if they are not objectionable in law, are binding on the grantee who accepts the deed.
    8. Injunction, § 202

      —when demurrer necessary. In the absence of a demurrer, defendant has the right to challenge a bill for an injunction in matters of substance only.
    9. Injunction, § 192

      —when writ will issue. A writ of injunction preventing the erection of a flat or apartment building, held warranted by a bill showing that such building was prohibited by the plat; which was binding on defendants as grantees of property contained in such plat.
    10. Injunction, § 206

      —what evidence is inadmissible. In a suit to enjoin the erection of flat buildings contrary to restrictions imposed upon the grantee of the land, certain building ordinances of the city, defining “flat buildings” and “apartment buildings,” did not apply.
    11. Injunction, § 205

      —when finding of chancellor is justified by evidence. In a suit to enjoin the erection of flat buildings contrary to the restrictions imposed upon a grantee of land, a finding of the chancellor that the buildings to be erected were flats or apartments was justified by the evidence, although the plans were designed to conceal the real character of the structure to be erected.
    12. Injunction, § 251

      —when enjoined party cannot complain of subsequent order broader in scope. Where a grantee of land, enjoined from erecting a flat or apartment building thereon, proceeded with the erection of such building in accordance with plans substantially the same as those mentioned in the writ of injunction, she could not complain of a subsequent order of the chancellor enjoining the defendant from using the partial structure as the basis for any work of construction, since such order was necessary to protect the rights of complainants and was brought about by the defendant’s conduct.
    13. Building restrictions and regulations, § 3

      —when restriction not waived. Evidence held not to show waiver of building restrictions prohibiting the erection of flat buildings in a certain subdivision.
    Appeals from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding.
    Heard in the Branch Appellate Court at the December term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Hebel & Haft, for appellant.
    Hugh O’Neill, P. H. O’Donnell and Thomas J. Lawless, for appellees.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

These two appeals have been consolidated for hearing in this court by written stipulation of the parties.

On November 24, 1914, the appellees, hereinafter called the complainants, filed a bill for an injunction in the Superior Court of Cook county against the appellant, hereinafter called the defendant, to enforce certain alleged building restrictions, contained in a certain plat of real estate located in Cook county, Illinois, and known as Albion Subdivision. The bill and the amendment thereto, filed December 1, 1914, alleged, inter alia, that each of the complainants was the owner of one or more lots in the said subdivision and that the defendant, Beatrice M. Graham, was the owner of Lot 7 in said subdivision; that Bernard F. Weber, the owner of the said land, afterwards known as Albion Subdivision, caused the same to be surveyed, platted and subdivided, and afterwards, on October 19, 1906, caused said plat to be placed of record under the name and style of Albion Subdivision; that the certificate of the owner on said plat is in words and figures as follows :

“I, Bernard F. Weber, owner, * * * do hereby certify that I have caused the said premises to be platted and resubdivided as shown by the above plat into lots with building lines and restrictions as shown thereon and that all the deeds or other conveyances of any part of said lands and premises hereafter to be made, referring to any map or plat of the premises above platted or any part thereof, shall have reference to the above plat or map and to the future subdivision of the same, that all the spaces between the front lines of said lots -and the building line twenty-five (25) feet distant from such front line shall be kept free from buildings of any kind or nature and no buildings of any kind or description or appurtenances thereto shall ever be erected between said building line and the front line of each and every lot heretofore mentioned. That no flat buildings or apartment buildings shall be erected on any of the aforesaid lots within the limits of the above described subdivision; thpt only one residence building shall be erected on every thirty-three and one-third (33-1/3) front feet of ground and no residence shall be erected on any part of said premises of a less value or cost than five thousand dollars ($5,000),, but this restriction shall not bar the erection of a barn or outhouse in the rear of any residence.
“Given under my hand and seal this 12th day of October, A. D. 1906.
“Bernard F. Weber, Owner.”

That thereafter the complainants and the defendant, Beatrice M. Graham, derived fee-simple title by deed from Bernard F. Weber, the owner; that complainants and the defendant took title to said lots subject to the covenants, conditions and restrictions appearing in said plat and the certificate thereto; that the lots in said subdivision were intended to be and were put on the market and sold as residence lots; that the lots of the complainants and the defendant were afterwards conveyed to the complainants and the defendant with the intention and purpose that the same should be and remain residence lots, upon which no flat buildings or apartment buildings should be erected; that twenty of the lots affected by the restrictions appearing in the certificate of the plat have been purchased and improved by the owners; that in each and every instance all the restrictions, covenants and conditions mentioned in said plat and the certificate thereto have been observed and adhered to; that relying on the validity of the said restrictions, eleven of the complainants have erected private homes upon their respective lots; that in violation of the said restrictions the defendant intends to construct a flat building or apartment building on Lot 7 in said subdivision, and with that end in view is now engaged in excavating for the footings and foundations of the said building; that the said proposed building, when finished, would be unsightly and would spoil the appearance of said subdivision and utterly defeat the purpose for which it was made; that if said building were erected as proposed, it would greatly depreciate the market value of the property of the complainants, and would entail irreparable loss and damage to the complainants. The bill prayed that the defendant be enjoined and restrained from erecting the flat or apartment building, or a building or structure which is apparently designed like a residence but is intended to be used as a flat building or an apartment building. On motion of the complainants, the chancellor granted a writ of injunction against the defendant in accordance with the prayer of the bill. The defendant appealed from this order, entered December 1, 1914, to this court, General Number 21, 217.

On December 5, 1914, the complainants filed a petition alleging that the defendant was violating the order of December 1, 1914, and praying for a rule on the defendant and one Strobehn to show cause why they should not be attached for contempt of court, for violating the said order. The defendant filed an answer to the petition, and thereafter testimony was taken by the chancellor in the matter of the said petition, and the chancellor thereupon entered an order enjoining and restraining the defendant from erecting a flat or apartment building on said Lot 7, “and from using that portion of the building which has been erected by the said defendant, Beatrice M. Graham, in violation of the injunction of this court as aforesaid in the erection or as a basis for the erection of any building upon said premises, until this court in chancery sitting shall make other order to the contrary.” The defendant appealed from this order to this court, General Number 21,442.

The defendant contends that in many essential particulars the plat in question does not comply with the law (chapter 109, Hurd’s Rev. Stat., J. & A. ¶¶ 8517-8526, and section 13, ch. 115, Hurd’s Rev. Stat., J. & A. ¶9110) and that it is therefore without any binding effect on her. Many of the objections made to the plat by counsel are of the most technical and hypercritical kind. After a careful consideration of all of them we are satisfied that the plat is in substantial compliance with the statutes. But, even if it be conceded that it does not comply in every respect with the statutes, the defendant, under the facts of this case, is estopped to deny that the plat is binding/upon her. “Where property is subdivided and a plat made thereof which does not comply in every respect with the statute, but which is recorded, there is a common-law dedication, and if the owner of lots designated on such plat conveys according to the description contained in the plat, and by reference thereto, he adopts the plat with all its dedications, and he, and those who succeed to his title, are estopped to deny such dedication.” Marshall v. Lynch, 256 Ill. 522-526; Ingraham v. Brown, 231 Ill. 256. Many other cases to the same effect might be cited. It is clear that the facts of the present case bring it within the above rule. It must be also noted that not only did Weber convey the lots on the plat according to the descriptions contained in the plat, and by reference thereto, but in the deed from Weber to the defendant the following is found: “Subject to taxes and special assessments subsequent to the year A. D. 1913, also to bmldings and building line restrictions of record.” It is the law in this State that where a deed refers to a plat or subdivision, the plat and all the particulars shown thereon are as much a part of the deed as though they were recited in it. But in the present case, however, we find express reference made in the deed to restrictions appearing of record. The alleged building restrictions that the defendant now seeks to avoid were, at the time she accepted the deed from Weber, of record, and were a part of the plat that formed a link in the chain of defendant’s title, and it would be highly inequitable, under all the facts of this case, to permit the defendant to assert that the plat was without any binding effect upon her.

The defendant contends that “the alleged restrictions are in violation of the Statute of Frauds (section 2, ch. 59, Hurd’s Rev. Stat., J. & A. ¶ 5868), and is therefore void.” The defendant argues that the declaration of restrictions, made by Weber in the plat, is in violation of the Statute of Frauds because she did not sign the same. We fail to see what possible bearing the Statute of Frauds has upon the question as to whether or not the alleged restrictions are binding upon the defendant. This is not an action brought to charge any person upon "any contract for the sale of lands, etc. Moreover, if a deed refers to a plat that contains building line restrictions, the restrictions are binding on the grantee, although the latter does not sign the plat, or the deed, and, when the owner of land sells the same, he may insert in the deed of conveyance such terms and conditions as he pleases, touching the mode of enjoyment and use of the- land, and if they are not objectionable in law, they will be binding on the grantee, who accepts such deed, although the latter does not sign the deed. It is unnecessary to cite authorities in support of these well-known propositions of law. It would seem to be clear that there is no merit in the present contention of the defendant.

The defendant contends that Weber had no right, under the statute, to insert the alleged restrictions in the plat, and that they are, therefore, not binding upon the defendant. No authority is cited that sustains this contention. It must be conceded, however, that there is apparently but little law, pro or con, on the subject. In the well-known case of Moulton v. Perry, 2 Ill. Cir. Ct. 510, Judge Tuley, a very able and experienced chancellor, held contrary to the present contention of the defendant. Where a deed refers to a recorded plat that contains building line restrictions, the restrictions, if they are not objectionable in law, are binding on the grantee, who accepts the deed, and there would, therefore, seem to be no good reason, in principle, why the owner cannot create binding building restrictions of the kind in question in this case by making such restrictions a part of the plat, as was done by Weber in the present instance. The plat was made and recorded by the owner of the property and all the lots designated thereon were sold and conveyed by reference to the plat, and the defendant’s deed, in addition, contained the express provision that the property was sold “subject to taxes * * * also to buildings and building line restrictions of record.” In a court of equity, at least, Weber would not be allowed to escape the effect of the restrictions by asserting that he had no right to insert them in the plat, nor should the defendant, under the facts of this case, in a court of equity, be heard to say that the said restrictions are not binding upon her because Weber had no right to insert them in the plat.

The defendant contends that “the bill and alleged amendment thereto do not state sufficient facts to warrant the order of December 1, 1914.” In the absence of a demurrer, the defendant has the right to challenge the bill in matters of substance only. We have carefully read the bill and the amendment to the same, and we think that it did state sufficient facts to warrant the said order. In this connection it must be remembered that the defendant has, by stipulation, waived “the point that the injunction order entered in case Mo. 21,217 is invalid because perpetual in form.”

Over the objection of the complainants, the chancellor admitted in evidence, on motion of the defendant, certain building ordinances of the city of Chicago, and the defendant contends that the trial court, on the hearing upon the petition of the complainants, erred in not holding that the said ordinances controlled the meaning of the terms, “flat buildings” and “apartment buildings,” and that the trial court further erred in not holding, because of the said ordinances, that the building planned by the defendant, and of which the complainants were complaining, was the plan of a private residence and not a plan of a flat building or an apartment building. We have read the ordinances in question and we do not think that they have any application to the present case.

The defendant contends that the evidence clearly shows that the proposed building of the defendant is not a flat or apartment building. The chancellor decided the issue of fact, as to the character of the proposed building, against the defendant, and after a very careful examination of all the evidence bearing upon the question, we are satisfied that the chancellor was clearly justified in his finding. The building plans of the defendant were designed to conceal the real character of the structure to be erected, but a careful inspection and study of the said plans show that the proposed building is a flat or apartment building.

The defendant contends that it was error for the chancellor, in the order of January ,14th, “to enjoin the defendant from using the partial structure on the lot in question for the erection of a private residence.” The language of the order complained of is: “And from using that portion of the building which has been erected by the said defendant, Beatrice M. Graham, in violation of the injunction of this court as aforesaid, in the erection, or as the basis for the erection. of any building upon said premises, until this court in chancery sitting shall make other order to the contrary.” The chancellor also found in the said order that after the entry of the order of December 1, 1914, and after the defendant had knowledge of the same, and after service upon her of a writ of injunction, issued pursuant to said order, the defendant, through her agents, servants and employees, proceeded with the erection of the building in question, in accordance with plans that were substantially the same as were mentioned in the said writ of injunction, and the chancellor further found that the portion of the building, erected by the defendant, after notice and service of said injunction order of December 1,1914, was erected in violation of the said order, and in violation of the rights of the complainants. It therefore appears that the chancellor was obliged to enter the order in question to protect the rights of the complainants. The defendant may have no right to use that portion of the building which was erected in violation of the injunction and in disregard of the rights of the complainants, and the chancellor may, on a final hearing of the case, decree that equity requires the tearing down of the portion of the building that has been thus erected. The defendant, by her conduct, brought about the order she now so seriously excepts to, and she is in no position, under the present state of facts, to complain of it. The order is a temporary one and can be modified if the situation in the future warrants such action.

The defendant next contends that if it be held that the building restrictions in question were valid, nevertheless, it appears from the record that the said restrictions have been waived by the complainants and Weber. We find this contention to be without merit.

Other contentions than those specifically referred to in this opinion have been raised by the defendant. These have all been carefully considered and found without merit.

The orders of the Superior Court of Cook county will therefore be affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    A. M. Forbes Cartage Company, Defendant in Error, v. Frankfort Marine, Accident and Plate Glass Insurance Company of Frankfort-on-the-Main, Germany, Plaintiff in Error.
    Gen. No. 20,471.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by A. M. Forbes Cartage Company, in the Municipal Court to recover from the Frankfort Marine, Accident and Plate Glass Insurance Company of Frankfort-on-the-Main, Germany, the amount of a judgment for personal injuries, with costs and attorney’s fees, which the plaintiff was obliged to pay and which, it claimed, was covered by an insurance policy issued by the defendant. The plaintiff recovered a judgment for $875.20, and this writ of error was sued out by the insurance company.
    Abstract of the Decision.
    1. Insurance, § 436

      —-what is purpose of provision in indemnity insurance as to notice of accident. The purpose of a provision in an insurance policy, insuring against loss or damage caused by vehicles of the assured, which requires the insured to give written notice to the insurer “immediately upon the occurrence of an accident * * , * with the fullest information obtainable at the time,” is to enable the insurer to ascertain all the facts and circumstances surrounding the accident while such facts are fresh in the memory of witnesses, so that such insurer may be prepared either to defend or to make settlement if any claim is thereafter made or suit brought for damages resulting from personal injuries.
    2. Insurance, § 436

      —what is effect of failure to give notice as required by indemnity insurance policy. Under an insurance policy insuring against loss or damage caused by vehicles of the assured, where an accident occurs and the insured as a result of its own investigation is satisfied that no claims for personal injuries can be successfully made, and such insured does not immediately notify the insurer of the accident as required by the policy, it elects to carry the risk itself and absolves the insurer from liability.
    Willis G. Shockey and Mills & Holly, for plaintiff in error.
    Mather & Hutson, for defendant in error; William A. Sheehan, of counsel.

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

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    L. S. Friedman, trading as L. S. Friedman & Company, Defendant in Error, v. Western Union Telegraph Company, Plaintiff in Error.
    Gen. No. 20,499.
    1. Telegraphs and telephones, § 20

      —what is duty of sender of telegram altered in transmission. If an altered telegram is received and acted upon by the addressee before the discovery of the mistake, the sender of the telegram is thereafter only bound to take such steps to avoid loss as a reasonably prudent man would take to save himself, had the mistake or error been his own, and if he does this and a loss nevertheless ensues, the telegraph company is liable therefor.
    2. Telegraphs and telephones, § 31

      —when judgment for damages supported by evidence. Where a sender of a telegram, as a result of a mistake in such message, was compelled to purchase a dozen suits and was able to sell only six of them, a -judgment representing the difference in what he paid for the suits and what he was able to receive for them was supported by the evidence, which was uncontradicted.'
    3. Appeal and error, § 1709

      —when remittitur is proper. In an action for damages caused by a mistake in a telegram, whereby the sender of the message was compelled to purchase a dozen suits, and he testified that he was only able to sell six of such suits, and that the remainder in his possession were worth about $1 each, a judgment in his favor failing to allow credit for the value of such suits would be cured by a remittitur of six dollars.
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 6, 1915.
    Rehearing denied October 15, 1915.
    West & Eckhart, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; Hamilton Moses and Sigmund W. David, of counsel.

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

   Mr. Justice Fitch

delivered the opinion of the court.

The plaintiff, L. S. Friedman, recovered a judgment against the Western Union Telegraph Company, in a tort action brought in the Municipal Court, to recover damages for the negligence of defendant in transmitting a telegraphic message from the plaintiff to J. M. Baruch of New York City. The defendant sued out this writ of error, and claims here that its negligence was not the proximate cause of the plaintiff’s loss, and that, in any event, the damages awarded are excessive.

It appears from the evidence that the plaintiff is in the cloak and suit business in Chicago; that in October, 1912, he had purchased from Baruch, whose letter heads state that he is a “specialist in costumes and dresses, ’ ’ certain dresses, made of velvet and trimmed with fur, for $20 each and had sold them for $29.75 each; that on November 12, 1912, he wrote to Baruch that he would take a dozen more of the same kind of dresses if he could get them at the same price. To this letter Baruch replied, on November 13th, as follows:

“In regard to style No. 530 we note that you would like to have one dozen of these dresses if you would purchase them at $20.00; this is out of the question as the regular priceL of this dress was $35.00, but as it is late we will make you up this amount of dresses, delivery in one week at the special price of $23.50, ‘net,’ made of a combination of Velvet and Eponge. If this meets with your approval, kindly wire us day letter-gram, which will make a difference of two days in delivery, also mention color and sizes.” .

On November 14th, the plaintiff sent a “night-letter” to Baruch, in which, among other things, the plaintiff said: “Cannot use dresses at twenty-three fifty.” When the message was delivered to the defendant in New York, it read as follows: “Can use dresses at twenty-three fifty.” Upon the faith of this altered telegram, Baruch shipped twelve dresses of the style mentioned to the plaintiff in Chicago. The plaintiff sent them back, saying that he had not ordered them. Baruch returned them to the plaintiff. It is a fair inference from the evidence that the plaintiff first learned of the mistake in the telegram when he received the dresses from Baruch the second time. He testified that he then went to see the defendant and talked to “a man up there in the office” who said defendant “would take care of the matter.” Some correspondence followed between the plaintiff and Baruch, who insisted on payment according to the message delivered to him, and finally on December 21,1912, the plaintiff put the dresses on sale after notice to the defendant. Six of the dresses were thus sold for $19.75 each, and according to the plaintiff’s evidence, he was unable to sell the remainder at any price because the season for such dresses had passed. The amount of the judgment represents the difference between the amount paid to Baruch and the amount received by the plaintiff for the six dresses sold.

It is contended that the plaintiff was not bound to accept and pay for the goods shipped upon the strength of the altered telegram, and therefore, it is urged, if the plaintiff sustained any loss, such loss was proximately caused by his own voluntary act in paying for the dresses and not by the defendant’s negligence in transmitting the telegram. This contention is based upon the theory that a telegraph company is not, as a matter of law, the agent of the sender of a telegram, but is an independent contractor, or “independent principal,” for whose negligence the sender is not responsible.

Upon this question, there is a decided conflict of authority. One line of cases holds, without qualification, that a telegraph company is the agent of the party who employs it, and that the employer is bound by its acts, even though the message, as delivered, is different from the one sent. Among such cases are the following: Western U. Tel. Co. v. Shotter, 71 Ga. 760; Sherrerd v. Western U. Tel. Co., 146 Wis. 197; Ayer v. Western U. Tel. Co., 79 Mo. 493; and Younker v. Western U. Tel. Co., 146 Iowa 499.

Another line of cases, possibly greater in number than the first, holds that a telegraph company is not the agent of either the sender or addressee of a telegram, but is a public carrier whose relation to the par-, ties is that of an independent contractor. Of these, the following may be cited: Pepper v. Western U. Tel. Co., 87 Tenn. 554; Strong v. Western U. Tel. Co., 18 Idaho 389; Shingleur v. Western U. Tel. Co., 72 Miss. 1030; Postal Tel. Cable Co. v. Schaefer, 110 Ky. 907; Eureka Cotton Mills v. Western U. Tel., Co., 88 S. C. 498.

No case in Illinois has been cited, arid we know of none, in which the precise question involved in this contention has been squarely decided. There are several cases in Illinois which hold that a telegraph company is, to some extent and for some purposes, the agent of the party who employs it to transmit a telegraphic message. Morgan v. People, 59 Ill. 58; Western U. Tel. Co. v. Harris, 19 Ill. App. 347; Anheuser-Busch Brewing Ass’n v. Hutmacher, 127 Ill. 652. In the case last cited, however, the court expressly státed, with reference to the facts of that case, that: “It should be observed that there is no suggestion that any of these messages were erroneously transmitted, and the case therefore does not present the question, upon which there is some conflict in the authorities, whether the sender of a telegram makes the telegraph company its general agent so as to become responsible for the acts of such agent where there is a departure from the authority actually given, by transmitting the message incorrectly.”

It would be interesting, and possibly instructive, to • analyze the eases in which this question has been discussed, for the purpose of arriving at some satisfactory conclusion, if that be possible, as to which of the various reasons given in such cases seems to be the best supported in principle. We do not find it necessary to do so in this case, however, for the reason that many of the cases which follow the independent contractor theory, as well as those which follow the agency theory, hold that if an altered telegram is received and acted upon by the addressee, before the discovery of the mistake, the sender of the telegram is thereafter only bound to take such steps to avoid loss “as a reasonably prudent man would take to save himself, had the mistake or error been his own,” and that if he does this, and a loss nevertheless ensues, the telegraph company is liable therefor. Pepper v. Western U. Tel. Co., supra; Strong v. Western U. Tel. Co., supra; Eureka Cotton Mills v. Western U. Tel. Co., supra; Postal Tel. Cable Co. v. Schaefer, supra; Fisher v. Western U. Tel. Co., 119 Ky. 885; Western U. Tel. Co. v. Shotter, supra.

Upon this question, the ease of Pepper v. Western U. Tel. Co. supra, while holding that a telegraph company is not the agent of the party employing it, says, as to the question of damages in such cases, where the goods have been shipped before the mistake is discovered:

“In such cases the courts will not be over nice, on behalf of the negligent company, in adjusting the scales to the wisdom of the' several means open to the party injured, and undertake to weigh carefully the question as to what was bes.t as then appeared, and certainly not as to what was best as seen in the light of subsequent events, but will merely require the victim of the negligence to act in good faith, in the exercise of ordinary prudence, in the effort to extricate himself from the situation in which he has been placed. Where this has been done, the loss resulting will be the measure of damages which he will be entitled to recover, upon the doctrine of compensation.”

The same view, in another form, is expressed in the case of Western U. Tel. Co. v. Shotter, supra, which holds that a telegraph company is the agent of its employer. The court there said:

“Whether the telegraphic operator be the agent of the sender of a dispatch, so as to bind him, is a debatable question in the courts, the English authorities being to the effect that he is not; and the American mainly that he is. We agree with the Xmerican doctrine, at least to the extent that commercial transactions being now conducted to so great an extent through the telegraph, a merchant would lose búsiness and credit if he did not settle in accordance with the offer actually made, though, by mistake of the agency he used to convey it, and when he does so settle in good faith, and is induced to do so by the negligence of the telegraphic company, through its servants, that company should respond to him in damages, whether absolutely bound by his contract or not.”

• We think these quotations are peculiarly applicable to the facts of this case, and are decisive of the present contention, ^regardless of the question whether the defendant was the agent of the plaintiff,, or an independent contractor. The record shows that when the plaintiff was on the witness stand, he gave as his reason for not returning the dresses a second time to Baruch, that he “was compelled to keep them.” The trial judge interrupted by asking the witness what he meant by this, and the witness replied that Baruch wrote him several letters in regard to the claim, threatening that if he did not keep and pay for the dresses, the bill would be handed over to a commercial agency, which was a consequence he “tried to avoid, as a bad thing in business.” It is true that this statement was stricken out on motion, but whether it was competent or not as evidence, it expresses the same view, in effect, that was expressed by the Georgia Supreme Court in the above quotation. It seems to us that this view of the matter is certainly more in accord with principles of justice and fair dealing than- any view which would require the sender of a telegram in a similar ease to refuse to be bound by the telegram, as delivered and acted upon, and take the consequences of a doubtful lawsuit.

It is urged by defendant’s counsel that this rule as to damages has only been applied where the goods shipped before the discovery of the mistake were perishable goods. An examination of the cases above cited, however, will show that the rule is not limited to perishable goods, but has been applied to such commodities as lumber (Fisher v. Western U. Tel. Co., supra) and cotton yarn (Eureka Cotton Mills v. Western U. Tel. Co., supra).

We may also add that the cases which hold that a telegraph company is not an agent of the person employing it, but is purely an independent contractor, seem to us to be strangely illogical in applying the above rule of damages, upon which nearly all of them agree. On the other hand, the cases which hold that a telegraph company is an agent of the party employing it, for the purpose at least of transmitting a message which completes a contract, are entirely consistent in applying the rule of damages above stated. We conclude, therefore, upon this branch of the case, that the defendant was liable to the plaintiff for any loss sustained by him as shown by the facts in this.case.

As to the question of the amount of damages, it is urged that the finding and judgment are not supported by the evidence. The plaintiff testified that he did his best to dispose of the dresses after they were sent to him the second time; that he sold six of them, and that he was unable to sell the remainder. On cross-examination, he said these remaining dresses were worth $1 each. While the evidence on this point is, in some respects, unsatisfactory and inconclusive, it is, nevertheless, the only evidence in the record, and is uncontradicted. The amount of the judgment, however, does not give credit for the value of the six dresses which remained in the plaintiff’s possession, viz., $6. In this respect, the judgment is erroneous, but this error can be cured by a remittitur. If, therefore, the plaintiff, within ten days from the date of filing this opinion, will remit the sum of $6, the judgment for the remainder of $157.60 will be affirmed; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur; otherwise reversed and remanded.


text:
    Abraham Slimmer and Lane J. Thomas, trading as Slimmer & Thomas, Plaintiffs in Error, v. Dolliver Savings Bank and Continental & Commercial National Bank of Chicago, Defendants in Error.
    Gen. No. 20,554.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Attachment suit by Abraham Slimmer and Lane J. Thomas, trading as Slimmer & Thomas, in the Municipal Court against the Dolliver Savings Bank, a nonresident corporation, to recover an alleged indebtedness of $912.50. The Continental and Commercial National Bank of Chicago was served as garnishee, and answered, admitting that the savings bank had $4,384.31 on deposit with the garnishee. It appeared that plaintiffs were mortgagees of certain cattle and that all the cattle of the mortgagor were- to be sold by a bank which, together with its cashier, held mortgages on other cattle and property of the mortgagor. The parties agreed to prorate any "shortage that might result. After the sale the cashier reported a sale for $15,913.50, and the amount due on the mortgages as $16,657.33, leaving a shortage of $743.83, not taking into account the expense of the sale. The same statement placed the expense of the sale at $250.43. Later a different statement was rendered, placing the expense of sale at $476.58, and the shortage at $1,253.76, and a draft of $3,592.30 was delivered. Subsequent negotiations followed by letter, and the defendants later offered to pay $119.24 of money collected if they would take an unsold hay press at a fair price and “let it go toward your bill.”
    Abstract of the Decision.
    1. Accord and satisfaction, § 1

      —what constitutes. To constitute an accord and satisfaction, there must be an honest difference between the parties as to the amount due, and the check or draft must be offered under such circumstances as amount to a condition that it is to be received in full payment of the demand.
    , 2. Contracts, § 32

      —when provisions of contract are not binding on party. Where a mortgagee and a bank agreed to prorate the shortage resulting from a sale of mortgaged cattle, and the bank stated that such shortage was a certain sum, not including the expense of the sale, held that the other mortgagee was not liable for an item of expense whereby the bank was to receive a discount or fee for handling papers without recourse, there being no evidence that such mortgagee was party to such an agreement between the bank and the mortgagor.
    This offer was refused and this suit commenced. Upon a trial before the court without a jury, the court found that there was due the plaintiffs from the saving bank the sum of $119.24, and judgment was rendered accordingly. The plaintiffs then sued out this writ of error.
    Rudolph Wolfner, for plaintiffs in error.
    Mayer, Meyer, Austrian & Platt, for defendants in error.

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

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Nellie A. Cross, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 20,638.
    1. Municipal Court of Chicago, g 13

      —what is nature of affidavit of merits. An affidavit of merits is analogous to a statutory notice of defense under the general issue.
    2. Municipal corporations, g 1233

      —what declaration for personal injuries must aver. Under Hurd’s Rev. Stat. 1912, p. 1290, Sec. 2 (J. & A. ¶ 6190), as to notice to a city of an accident resulting in personal injuries, a declaration which fails to aver such notice states no cause of action. '
    3. Municipal corporations, g 1224

      —what is effect of pleading as to waiving notice of injuries. A city cannot waive the statutory requirement as to notice of an accident resulting in personal injuries (Hurd’s Rev. Stat. 1912, p. 1290, sec. 2, J. & A. ¶ 6190) and no pleading filed by it can have the effect of a waiver or an admission of such notice on the part of the city.
    4. Municipal corporations, g 1233

      —what is effect of doctrine of “express aider” as to pleading notice of injury. In an action against a city for damages for personal injuries, where the statement of claim failed to aver statutory notice of the accident (Hurd’s Rev. Stat. 1912, p. 1290, sec. 2, J. & A. ¶ 6190), and the city filed an affidavit of merits more than a year after the accident stating, in addition to denials, that the city was not notified of the accident as required by statute, held that the doctrine of express aider could not be applied to cure the defect of the statement of claim.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Edward H. Stearns, for plaintiff in error.
    John W. Beckwith and N. L. Piotrowski, for defendant in error; David R. Levy, of counsel.

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

   Mr. Justice Fitch

delivered the opinion of the court.

By this writ of error it is sought to reverse a judgment of the Municipal Court, wherein the suit of the plaintiff, Nellie A. Cross, was dismissed, at plaintiff’s costs, upon the ground that the statement of claim does not state a cause of action.

The suit was a fourth-class case in tort brought to recover damages for personal injuries, and was begun on August 8, 1913. The plaintiff’s statement of claim avers, in substance, that the city negligently permitted a sidewalk on one of the city streets to be and remain in unsafe repair and condition, and to be obstructed by a section of bent iron pipe, a portion of which protruded above the sidewalk; that on August 11, 1912, in passing over said sidewalk, the plaintiff unavoidably tripped over said iron pipe and was thrown to the sidewalk, breaking her left wrist and wrenching her right ankle; and that in consequence thereof, she suffered great pain and was prevented from performing her usual duties and was obliged to pay put divers sums of money in endeavoring to be cured, to her damage in the sum of $1,000. There is no averment in the statement of claim that any notice of the accident was given to the city, as required by section 2 of “An act concerning suits at law for personal injuries and against cities, villages and towns,” in force July 1, 1905. (Hurd’s Rev. Stat. 1912, p. 1290, J. & A. ¶ 6190.)

The city was served with summons, returnable August 23, 1913, and on August 21, 1913 (more than a year after the date of the alleged accident), the city entered its appearance and filed an affidavit of a meritorious defense, containing a categorical denial of each of the averments of the statement of claim, and also the following: “That there is no liability on the part of the defendant, City of Chicago, for such condition as that described in the plaintiff’s statement of claim * * * in that the City is not notified of the alleged accident as required by Statute. ’ ’

The case was placed upon the jury calendar, and when reached was dismissed for want of prosecution. A few days later, however, the order of dismissal was vacated, and the cause set for hearing on the 8th day of June, 1914. On June 5, 1914, the defendant, by its attorney, moved to strike the statement of claim from the files and dismiss the suit, upon the ground that the statement of claim fails to allege that the statutory notice was given to the city. The “statement of facts,” as certified by the trial judge, states that the plaintiff’s attorney appeared in opposition to this motion, and argued (1) that the statement of claim was sufficient to reasonably inform the defendant of the nature of the case it was called upon to defend, without alleging the additional fact of notice, as required by statute; and (2) that the omission of any allegation of notice was cured by the defendant’s denial in its affidavit of merits that any such notice had been given, which (it was argued) “made an issue of fact as to whether the statutory notice was given,” the plaintiff’s attorney stating that he was prepared to prove at the trial that notice was, in fact, given as required by statute; that after argument upon the motion, the court held that the statement of claim failed to allege a cause of action against the city, and granted the motion to dismiss.

The same contentions, in substance, are repeated in this court, and the question is thus presented, whether the absence of any averment of notice to the city in the plaintiff’s statement of claim can be cured by an assertion in the city’s affidavit of merits that no such notice was given. Both parties have treated the affidavit of merits as a pleading, though in fact it is more nearly analogous (when filed pursuant to some rule of the Municipal Court, as it probably was in this case) to a statutory notice of defense under the general issue. For the purposes of this opinion, we shall treat it as a plea. In the recent case of Gilman v. Chicago Rys. Co., 268 Ill. 305, it was held that a statement of claim in the Municipal Court must state a cause of action, although it is not necessary to state it with the particularity of a common-law declaration.

In Walters v. City of Ottawa, 240 Ill. 259, it was held that since the enactment of the statute above mentioned, a declaration in a personal injury case against a city, which, fails to aver that a notice was given, as required by section 2 of that Act, states no cause of action. It was also held that “ the city has no power to waive the notice and is under no liability until it is given.” The plaintiff insists, however, that notwithstanding the decision in the Walters case, supra, the absence of any averment in the statement of claim that the statutory notice was given may be cured by a plea .which avers that no notice was given; that this result follows from a proper application of what is known, in pleading, as the doctrine of ‘ ‘ express aider: ’ ’ This doctrine is defined as follows in 1 Chitty on Pleadings, 671: “A defect in pleading is aided, if the adverse party plead over to, or answer the defective pleading, in such a manner that an omission or informality thereon is expressly or impliedly supplied, or rendered formal or intelligible.” Following this quotation, the author gives several instances of “express aider,” from which it would appear that a defect in a pleading may be expressly aided by the pleading of an adverse party in cases where the adverse party, instead of objecting to the defective pleading, answers it in such a way that the answer amounts to an admission of the fact omitted, or a waiver of any objection founded upon such omission. Obviously, if a city cannot waive the statutory requirement, as held in Walters v. City of Ottawa, supra, no pleading filed by it can have the effect of a waiver or an admission on the part of the city.

In support of his contention, the plaintiff’s counsel cites the case of Wallace v. Curtiss, 36 Ill. 156. That was an action of covenant upon a contract for the sale of lumber, which provided that the lumber should be inspected and measured by a person to be selected by the parties, and the declaration contained no averment that the lumber had been so inspected and measured. Instead of demurring to the declaration, the defendant filed special pleas alleging that no inspector was chosen, as provided by the contract. Issue was joined upon these pleas. Upon the trial, the plaintiff was permitted to prove that the lumber was inspected and measured by an inspector chosen by the parties, although there was no allegation to that effect in the declaration. This ruling was assigned as error, but the court held that as the defendants had tendered an issue upon that question of fact by their pleas, the plaintiff had a right to accept the issue so tendered and go to trial upon it, and that “the pleas cured the omission.” Upon this point, the court said: “The issues were not alone on the facts stated in the declaration, but upon the agreement stated in the special pleas, and they may be taken as amendatory of the declaration, of the issue and verdict, in order to favor the justice of the case.” (Italics ours.) There is nothing in the opinion to indicate that there was any good reason why the defendants in that case might not thus supply the omitted fact in their pleadings, if they chose to do so, by expressly setting up the alleged failure to inspect as provided by the contract, and relying thereon. Nor does it appear that the omitted fact thus supplied was a statutory prerequisite to any right of action, as is the fact in the present case. Furthermore, in the case cited, the plaintiff accepted the issue tendered by the defendants ’ plea, and went to trial upon that issue. In this case, before any trial was had, or issue joined upon the affidavit of merits, the defendant made a motion to dismiss the suit upon the express ground that the statement of claim was wholly insufficient as a statement of a cause of action, in view of the statute .above mentioned, and the motion was then and there sustained.

Plaintiff also cites several decisions of other States, notably Missouri and Kentucky, in which the doctrine of express aider seems to have been applied where the defendant’s answer denied the existence of some essential fact not referred to in the plaintiff’s petition, and issue was joined upon such denial and a trial had upon the issues so framed. These cases, in principle, are like that of Wallace v. Curtiss, supra. In none of such cases does it appear that the fact omitted from the plaintiff’s declaration or petition was a statutory prerequisite to a right of action, nor does it appear in any of such cases that there was any good reason why the defendant might not thus supply the omitted fact, either by waiver or express admission in his plea or answer. If, as is stated in Wallace v. Curtiss, supra, the underlying principle in such cases is that a plea which thus supplies an omitted fact “may be taken as améndatory of the declaration, in order to favor the justice of the case,” that principle can have no application to the facts of this case. The affidavit of merits filed in this case, which is the only pleading—if it can be considered a pleading—filed by the city, was filed more than a year after the alleged date of the accident to the plaintiff. If, then, the affidavit of merits may be taken as amendatory of the statement of claim, then the plaintiff’s cause of action was first stated when the affidavit of merits was filed, and at that time the cause of action was barred by limitation. It would be carrying the doctrine of express aider to an unheard of length to hold, under such circumstances, that a city had given life to a defunct cause of action, merely by asserting in its plea or affidavit of merits that plaintiff never had a cause of action because of her failure to give the statutory notice. No case has been cited which goes to that length and we believe none can be found. We are of the opinion that there is no merit in the plaintiff’s contentions, and that the trial court did not err in dismissing the suit upon the motion of the city.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Evangelos Meras and Gust Rovokianes, Defendants in Error, v. Peter G. Adinamis and George Angelus, Plaintiffs in Error.
    Gen. No. 20,653.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Action by Evangelos Meras and Gust Eovokianes against Peter G. Adinamis and George Angelus. The declaration consisted of an indebitatus assumpsit count for goods, wares and merchandise sold and delivered, a quantum valebant count, and five common counts in assumpsit, for money lent and advanced, for money had arid received, for interest, for value of work done and material furnished, and upon an account stated. To this declaration was attached an affidavit of claim stating that the demand of the plaintiffs is “for money obtained from the plaintiffs by the defendants,” amounting to four hundred dollars. Appended was a copy of written contract for the sale of the defendant’s confectionery store in Chicago to the plaintiffs, which states that the purchasers have deposited with the sellers two hundred dollars to be applied on the purchase price, “in case the above mentioned deal shall be consummated” within five days; that if the “deal” is not so consummated, “through the fault of” the purchasers, said deposit shall be retained by the sellers as liquidated damages, but if the sellers refuse to execute a bill of sale, then they shall return the deposit and pay two hundred dollars in addition thereto as liquidated damages. The defendants filed their written appearance and a plea of the general issue, accompanied by an affidavit of merits, made by the defendants’ attorney, as to the whole of the plaintiff’s demand. When the case was called for trial neither the defendants nor their attorneys responded, and a judgment for four hundred dollars, together with costs, in favor of the plaintiffs was entered. Subsequently the defendants sued out this writ of error.
    Abstract of the Decision.
    1. Judgment, § 100

      —when default erroneously entered. It is error to render a judgment against a defendant by default while a plea to the merits remains on file.
    2. Judgment, § 100—what is necessary ' before default can be entered. When there is a plea on file, a default does not exist merely because the defendant does not appear at the time the case is called for trial, but the plea must be stricken from the files upon due notice before there can be a default, or the issue joined must be tried.
    3. Pleading, § 1

      —when pleading need not be signed. It is not necessary that a plea of the general issue should be signed by anybody.
    Pantelis & Resa, for plaintiffs in error.
    Thompson, Clark & Stevenson, for defendants in error.

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

   Mr. Justice Fitch

delivered the opinion of the court.


text:
    Henry Schwartz, Defendant in Error, v. Chicago State Pawners Society, Plaintiff in Error.
    Gen. No. 20,667.
    1. Pledges, § 42

      —when refusal to return pledged property is conversion. Where a defendant refuses to surrender pledged property upon proper demand and a proper tender of the amount due, there is a wrongful act amounting to a conversion, and a statement of claim alleging such facts states, in substance, a cause of action in trover.
    2. Municipal Court of Chicago, § 13

      —what are essentials of statement of claim. It is immaterial what name a plaintiff in the Municipal Court may give to his action, and if the statement of claim shows a cause of action in tort, it will be treated as such.

      3. Pawnbrokers and secondhand dealers, § 3

      —when pawn tickets ore prima fade evidence. In a suit to recover the value of pledged property which the pledgee refused to surrender, where the pawn tickets recited that the pledged property was to be delivered to any person presenting the tickets, the production of such tickets was prima facie evidence of the plaintiff’s title, and when the plaintiff testified that he was the owner of the pledged property it was immaterial whetherr the pawn tickets were negotiable.
    4. Pledges, § 22

      —when effect of tender cannot be avoided. Where a pledgor of property offered to pay the amount of money loaned with interest, and the pledgee refused such amount on the ground that interest for another month was due, such pledgee could not subsequently avoid the effect of the pledgor’s tender on the ground that one day’s interest should have been included, and the tender was therefore insufficient.
    5. Pledges, § 22

      —what is effect of tender. Where a pledgor of property tendered the amount due to redeem the pledge and demanded the property, the pledgee’s lien upon such property was extinguished and its retention of the same thereafter was unauthorized and unlawful, amounting to a conversion, and such result was not affected by the pledgor’s failure to keep his tender good.
    6. Pawnbrokers and secondhand dealers, § 3

      —what is effect of restriction of liability printed on pawn ticket, A provision of a contract printed on a pawn ticket, limiting the pledgee’s liability for loss or damage to twenty-five per cent, more than the loan, does not apply to a case of conversion, but to loss occurring from negligence or accident.
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Litzinger, McGurn & Reid, for plaintiff in error.
    Bernard J. Brown, for defendant in error.

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

   Mr. Justice Fitch

delivered the opinion of the court.

This suit was brought in the Municipal Court to recover the value of three diamonds upon which, the defendant company had made a loan, and which defendant refused to deliver to the plaintiff upon demand and a, tender of the amount due.

It appears from the evidence that on November 25, 1912, one Miller deposited a diamond with the defendant as security for a loan of one hundred dollars, and on the same day, one Neiss also pledged a diamond ring and a loose diamond as security for a loan of two hundred and fifty dollars. Defendant issued its pawn tickets to the borrowers by name. Each of these tickets describes the property pawned and the amount loaned thereon, states that the interest is “one and one-half per cent, per month, can be paid monthly,” that the loans are due in one month, with a privilege of renewal on payment of accrued interest within one year thereafter, that the property so pledged “may be delivered to any person presenting this pawn ticket,” and that the Pawners Society ‘ shall not be liable for loss or damage in any event for more than twenty-five per cent, in addition to the amount loaned.” It further appears that the diamonds were the property of the plaintiff and that he held the pawn tickets; that on May 26, 1913, after the loans had run six months and one day, plaintiff presented the tickets to defendant at its office, and tendered it in cash the amount of the loans with interest thereon for six months. The president of the defendant company refused the tender upon the ground that defendant was entitled to another month’s interest because the loans had run one day more than six months. The plaintiff refused to pay the additional month’s interest demanded and this suit followed. Upon a trial before the court without a jury, a judgment was rendered in favor of thé plaintiff for $449.92, being the value of the diamonds less the amount tendered, together with interest on the re- . mainder at five per cent. The defendant sued out this writ of error.

The defendant contends, first, that as this action was brought as a fourth-class case “in contract” the plaintiff is not entitled to recover in his own name because, it is said, the pawn tickets are the only evidence of the contract and are not negotiable instruments; second, the alleged tender was insufficient, because it was not for the exact amount due, was not kept good, and was not unconditional; third, the judgment exceeds the limit of the liability of defendant as expressed in the contract. We think none of these contentions is well founded.

The plaintiff’s statement of claim states, in substance, a cause of action in trover. The refusal of defendant to surrender the pledged property upon a proper demand and a proper tender of the amount due was a wrongful act amounting to a conversion. It is immaterial what name a plaintiff in the Municipal Court may give to his action. If the statement of claim shows a cause of action in tort, it will be treated as such (Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311). The pawn tickets in this case recite upon, their face that the pledged property may be delivered to any person presenting the tickets. The production of the tickets was therefore prima facie evidence of the plaintiff’s title, and there is no evidence to overcome this presumption. Moreover, the plaintiff testified that he was the owner of the diamonds as well as the tickets. Whether such tickets are or are not negotiable, therefore, is an immaterial question in this case.

As to the question of tender, while it is true that the amount tendered on May 26, 1913, was seventeen and one-half cents less than the actual amount due at that time, yet the defendant did not place its refusal upon that ground. It refused upon the ground that because one day of another month had elapsed, it was entitled to a full month’s additional interest. Having placed its refusal upon that ground, which was clearly unauthorized, we think it could not afterwards avoid the effect of such tender merely on the ground that it was seventeen and one-half cents less than it should have been.

This tender and refusal instantly extinguished the defendant’s lien upon the property, and its retention of the same thereafter was unauthorized and unlawful, and amounted to a conversion; and this result was not affected by the plaintiff’s failure (if he did fail) to keep his tender good. McPherson v. James, 69 Ill. App. 337; Norton v. Baxter, 41 Minn. 146; Mitchell v. Roberts, 17 Fed. 776; Loughborough v. McNevin, 74 Cal. 250; 31 Cyc. 852. There were no conditions attached to the tender. The purpose of the tender was to redeem the pledge, and a demand for the return of the pledged property did not make the tender conditional.

As to the third contention, we are of the opinion that the provision of the contracts limiting the pledgee’s liability to twenty-five per cent, .more than the loan was not intended to apply to a case of conversion, but was intended to cover loss or damage to the property occurring from the defendant’s negligence or by accident.

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

Affirmed.


text:
    Oscar E. Shaffer and Edith Shaffer, Defendants in Error, v. Natoma Farm, Plaintiff in Error.
    Gen. No. 20,690.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 6, 1915.
    Statement of the Case.
    Suit by Oscar E. Shaffer and Edith Shaffer, in the Municipal Court, against the Natoma Farm, a corporation, to recover damages for breach of a contract of employment. Upon a trial before the court without a jury, plaintiffs recovered a judgment for two hundred and twenty dollars, and defendant sued out this writ of error.
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —when finding of court will not be disturbed. Evidence, though conflicting, held to support a finding of the existence of a contract of employment for one year.,
    2. Appeal and error,' § 1258

      —when party cannot complain of amount of recovery. A defendant cannot complain on appeal merely because the amount of damages allowed the plaintiffs was less than a sum which would have been justified under the evidence.
    3. Appeal and error, § 1414

      —when finding of court not justified by evidence. Evidence fyeld not to justify a finding of default under a contract of employment, for while the employees did not appear on a certain date as required by the contract, it appeared that they were prepared' and ready to go but did not because defendant’s agent telegraphed them not to do so.
    4. Frauds, Statute of, § 118

      —when statute must be pleaded. If the Statute of Frauds is relied upon as a defense it must be pleaded, unless the plaintiffs’ pleadings are in such form as to advise the defendant of the precise nature of the claim.
    5. Municipal Court of Chicago, § 13

      —what is nature of affidavit of merits. An affidavit of merits filed in the Municipal Court is not technically a pleading.
    6. Pleading, § 262

      —when amended or additional pleading is necessary. Where a statement of claim sought recovery for damages for breach of a contract of employment, and the defendant filed an affidavit of merits denying such contract, the defendant could not defend upon a different theory without asking leave to file, and filing, an amended or additional affidavit.
    7. Appeal, and error, § 425

      —when defense cannot be raised on appeal. In an action for damages for breach of a contract of employment, where it appeared that the defendant at the trial orally urged the Statute of Frauds as a defense, but did not plead such defense by filing an amended affidavit of merits, a contention that the contract was void under the Statute of Frauds could not be urged on appeal, not being brought properly before the trial court for decision.

      Alden, Latham & Young and Asa Q. Reynolds, for plaintiff in error.
    William A. Jennings, for defendants in error.

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

   Mr. Justice Fitch

delivered the opinion of the court.