text:
    Barney Welty, Appellee, v. The Chicago, Rock Island & Pacific Railway Company, Appellant.
    Gen. No. 15,687.
    Passenger and carrier—what evidence competent in action for injuries. In an action of assumpsit for injuries sustained, held, that the conversation of the Pullman conductor who was participating in the running of the train was competent.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    M. L. Bell, for appellant.
    Edward Maher and James L. Bynum, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

On the evening of October 6, 1908, appellee, Dr. Welty, having purchased a ticket over appellant’s road to Chickasha, Oklahoma, together with his Pullman accommodations for the train leaving the La Salle station, Chicago, at 6 o’clock P. M., on that day at appellant’s office in Chicago, presented himself at appellant’s Englewood station before train No. 11 arrived there. His Pullman ticket called for lower berth 3, car 1, on this train; When the train stopped he met Pullman Conductor Bransford, whom he had known some time, who asked him where he was going. Appellee told him. Bransford said to him, “This is not your train. Your train follows this.” Appellee replied, “I am positive this is my train. ’ ’ After a few words Bransford asked to see his ticket, and appellee showed it to him, and after examining it Bransford said, “You’re all right, get on quick.” Bransford with appellee’s ticket in his hand grabbed appellee’s baggage'and stepped on the train. Appellee then attempted to get upon the - train and while so doing, with one foot on the step, the train suddenly started and appellee was thrown to the ground and received the injuries for which damages are claimed in this action.

The action is in assumpsit, and the declaration alleges that while appellee was with due care attempting to get on board the train, the defendant carelessly and negligently and violently started the train forward and wholly failed and neglected to keep the same standing still a sufficient length of time for appellee to boarc] the train whereby appellee was thrown with great force and violence upon the ground and injured.

On the trial the jury found for the plaintiff, and assessed his damages at $5,000. The trial court required the plaintiff to remit $1,500 and upon this being done, overruled the motion for a new trial, and entered judgment against the defendant for $3,500. The defendant prosecutes this appeal.

It is urged on behalf of appellant that there is no evidence of negligence in not giving appellee a reasonable opportunity to board the train, and that there is no evidence of negligence in the starting of the train.

The testimony of the plaintiff is supported substantially by that of Mrs. Hubbert, and in some particulars by witnesses for the defendant. The testimony for the defendant tends to show that the plaintiff supposed he was to take what was known as the homeseekers ’ train, which was running as the second section of train No. 11, and left the La Salle station about fifteen minutes later, and that on an examination of his tickets by the Pullman conductor just as the train was starting, the latter told the plaintiff that this was his train, and took plaintiff’s grip and boarded the train as it was starting, having also his tickets. We find, however, no warrant in the evidence for disagreeing with the finding of the jury in favor of the plaintiff on the issues joined and cannot disturb the verdict on the question of a breach of defendant’s contract.

It is contended' that the court committed error in admitting the testimony of Mrs. Hubbert as to the conversation between the plaintiff and the Pullman conductor, for the reason that she was unable to give the exact words used by the parties. The evidence in the case showed that the Pullman conductor participated in running the train to the extent at least of signalling to the conductor when everything was ready to start, and that he was in the discharge of his duties in his conversation with the plaintiff and in examining his tickets. We think the court did not err in admitting Mrs. Hubbert’s testimony.

Prom the testimony on the question of damages we cannot say that the judgment is excessive in amount. We are of the opinion that the verdict was not. the result of passion and prejudice. The judgment is, therefore, affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Oliver E. Carpenter et al., Defendants in Error, v. Robert H. Law, Plaintiff in Error.
    Gen. No. 15,707.
    Municipal Court—when judgment not disturbed. The judgment of the Municipal Court will not be disturbed if the Appellate Court is satisfied that substantial justice has been done thereby.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem mill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Dolph, Silsbee & Putnam, for plaintiff in error.
    Coleman S. Everett, for defendants in error; John C. Everett, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Defendants in error, who were proprietors of an automobile garage, sued plaintiff in error, Robert Law, in the Municipal Court for storing, washing, charging and making repairs on an electric automobile from August 1, 1904, until September 1,1908. The evidence in the record shows that in addition to the storage the plaintiffs also attended to washing and charging the machine. For these services a stipulated monthly charge was made. The plaintiffs below also made repairs upon the machine from time to time for which regular charges were made. During the time of year when the machine could not be used regularly, it was placed in dead storage for which a smaller sum was charged than during the months when the machine could be used regularly.

Regarding the regular charge made, the only question in dispute between the parties is as to the dead storage, plaintiff in error claiming the charge should be $6 per month instead of $8 as claimed by defendants, in error. Until November 1, 1907, bills were rendered by defendants in error to plaintiff, in error at the end of every month and were paid promptly. Between December 1, 1907, and May 1, 1908, while the machine was in the. care and custody of the defendants in error, some acid got upon the machine and injured it. As a result of this injury it became necessary to make certain repairs, and while they were being made at the expense of defendants in error, the plaintiff in error was deprived of the use of the machine. Against the claim of the defendants in error for $237.39 for these services and repairs the plaintiff in error seeks to set off the sum of $155, of which amount $80 is for painting and repairing the machine on account of the injury done to it by the acid, as it is claimed, and $75 is for the loss of the use of the machine while it was being repaired. These issues of fact together with the amount of the dead storage were submitted to the court without a jury, and the court found for the defendants in error for $237.39.

No propositions to be held as the law applicable to the facts were presented or submitted to the court, nor is there any controversy as to the law in this court. It is wholly one of fact. Upon an examination of the evidence we are of the opinion that no ground appears for interfering with the finding of the trial court. We think the conclusion of the court was correct and the judgment is, therefore, affirmed.

' Affirmed.


text:
    John Graham, Defendant in Error, v. Dr. Pratt Institute et al., Plaintiffs in Error.
    Gen. No. 15,732.
    1. Municipal Court—when election of causes of action not regwred. If the plaintiff in a bill of particulars sets up three separate causes of action, he is not required upon the trial to elect as to which one he will proceed upon.
    2. Torts—what does not remove imputation of malice. If a physician apply a treatment not sanctioned by medical science which resulted in injury and which such physician was bound to know would result in injury, the law imputes a malicious intent.
    Error to the Municipal Court of Chicago; the Hon. Fred L. Fake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    J. E. Ingram and William English, for plaintiffs in error.
    Benjamin Samuels, for defendant in error; H. J. Toner, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

John Graham, plaintiff below, defendant in error, a man of twenty-nine years of age, seeing an advertisement in a daily newspaper of Chicago of the Dr. Pratt Institute, that they could remove smallpox pittings, called at the office of the Institute, and had a talk with plaintiff in error Dr. Coates. Later on defendant in error returned and entered into an agreement whereby the Institute, through Dr. Coates, agreed to remove the smallpox pittings on the face of defendant in error for $125. Graham at these interviews particularly inquired as to the kind of treatment he was to receive, and it was explained to him that it was painless, and relying upon this statement he submitted to treatment by Dr. Coates. Thereupon Coates applied to Graham’s face a carbolic acid solution, the ingredients of which he did not know, but relied entirely upon what Dr. Pratt told him. As a result of two applications the skin was burned off Graham’s face, and the raw flesh was exposed. Graham suffered much pain in consequence of the treatment. After his face had healed up a black scar remained on his face. To remove this Dr. Coates supplied Graham with some bleaching fluid, stating that one bottle would be sufficient to remove the scar. Graham faithfully applied the preparation but with no effect.

The evidence tends to show that there is no treatment known to medical science for the cure or removal of small pox pits.

The jury returned a verdict in favor of defendant in error for $999.99; and after denying motions for new trial and in arrest, the court entered judgment on the verdict.

It is urged that the court erred in denying the motion of plaintiff in error to compel the defendant in error to elect upon which one of the three causes of action set out in the amended bill of particulars the defendant in error would proceed to trial, and Keokuk & Hamilton Bridge Co. v. Wetzel, 228 Ill. 253, is relied on to sustain the contention. We are of the opinion that this case does not sustain the position of plaintiff in error, and that the trial court did not err in denying the motion.

In our opinion the weight of evidence supports the verdict and judgment, and the court did not err in refusing at the close of all the evidence to direct a verdict in favor of plaintiffs in error.

We do not think the trial court erred in refusing to charge the jury, as requested by plaintiffs in error, that they must find the plaintiffs in error not guilty of any malicious injury to defendant in error. No proof of express malice was required or made in this case. But, if the plaintiffs in error by applying a solution of acid to defendant in error’s face, mutilated his face, when they knew or were hound in the eye of the law to know such treatment was not sanctioned by medical science and, therefore, they had no-legal right to perform the operation or to apply such treatment, although there was no malicious intent present, nevertheless, the treatment or act would not be relieved from the imputation of malice in its legal sense (Pratt v. Davis, 118 Ill. App. 161 and cases there cited).

We do not thi-tk there was reversible error in the rulings on evide.: se.

On an examination of the evidence we are of the opinion that the damages awarded by the jury are not excessive.

The judgment is affirmed.

Affirmed.


text:
    Harold Gillette, Appellant, v. Kramer Motor Car Company, Appellee.
    Gen. No. 15,775.

      Infants—when cannot disaffirm sale. If an infant converts to Ms own use money of Ms employer and with it acquires property which a court of equity would impress with a trust, he cannot after selling and delivering such property to his employer be allowed to disaffirm such sale and recover at'law the property so acquired and sold.

      Replevin. Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Spencer Ward, for appellant.
    Arnd & Arnd, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellant, Harold Gillette, by his mother and next friend, commenced this action of replevin against appellee, Kramer Motor Car Company, for an automobile. Appellee set up as a defense property in W. R. Holligan and J. W. Rodgers as Holligan & Co. The cause was tried before the court without a jury. The court found the issues in favor of defendant.

Appellant urges in substance two grounds for reversal of the judgment below: (1) that appellant sold the automobile to Holligan & Co. while a minor, and then disaffirmed the sale sometime afterwards on the ground of infancy; and (2) that the consideration for which the automobile was sold has wholly failed.

It appears from the evidence that appellant in July, 1907, entered the employment of W. R. Holligan & Co., who were engaged in the grain and stock brokerage business in New York and Chicago. Mr. Rodgers of that firm had charge of the Chicago office in which appellant was employed. Appellant was employed first as a board marker, placing market quotations on a blackboard. From this position he was advanced from time to time until he held the trusted position of bookkeeper, cashier, order clerk and margin clerk. His duties as order clerk and margin clerk consisted in receiving orders from customers for the purchase or sale of grain and stocks and entering them in the proper book, and in keeping track of the margins which customers had to their credit and ascertaining whether they were sufficient for the protection of the purchases and sales, and to report to Mr. Rodgers in case the margins were not sufficient, so that he might call on customers for further margins, if necessary.

In March, 1908, appellant informed Mr. Rodgers that his grandmother, Mrs. E. A. Loomis, desired to trade through Holligan & Co., and an account was opened in her name. She deposited $7128.30 to margin her trades, and this amdunt was placed to her credit. Up to August 8,1908, she had made several trades through Holligan & Co. in stocks and grain. At this time appellant opened another account of Mrs. Loomis in Holligan & Co’s books under the name of “E. A. Loom-is Special.” Several trades were thereafter made under each account. These trades were all conducted by appellant, who gave the orders therefor to the representative of the firm on the Chicago Board of Trade or the Stock Exchange. Of these trades the smaller ones were reported to Mr. Rodgers, but the larger ones were concealed from the firm.

In addition to the above accounts, appellant had opened an account on the firm books in the name of his mother, Mrs. Gillette, and appellant made several trades in her name.

The evidence tends to show that appellant kept the books and so manipulated these accounts that their true condition was not shown on the books. It appeared from the books as kept by him that his grandmother had standing to her credit a much larger sum than the actual fact, and that there was always a sufficient amount standing to her credit to margin her trades, while the fact was she had nothing to her credit, or debit balance against her. On many occasions when there was not sufficient money in the cash drawer, appellant went to Rodgers and stated that his grandmother wished to draw money on her account and asked him for a check. In each case Rodgers inquired as to the condition of the account, and whether the account would justify the proposed payment, and appellant handed to Mr. .Bodgers a margin sheet purporting to show the amount standing to her credit, and Bodgers then signed checks for the amounts requested. Ordinarily the amount of credit shown on the margin sheets ran from $5000 to $7000.

With the moneys received from Holligan & Co. by appellant in the manner above described, appellant opened an account in his own name with the Corn Exchange National Bank, and deposited in that account from time to time in the aggregate about $2500. With this money he purchased the automobile sought to he recovered in this action.

Later, and in the early part of October, 1908, it was discovered that the hooks kept by Gillette were wrong, and that several trades made by Gillette, some of which had been made several months previously, had not been closed. Mr. Bodgers, on learning of the condition of affairs, called appellant to account for his wrong doing. Appellant admitted the irregularities and the amounts of the losses he had made, and that he had purchased an automobile with a part of the money. After some negotiation as to what could be done to make good the shortage, appellant gave Bodgers a bill of sale for the automobile for $1800 and Bodgers placed it in the charge of appellee as custodian for Holligan & Co.

In our opinion the evidence shows that appellant while acting in a fiduciary relation to his employers, Holligan & Co., deceived them by concealing trades made by him and hv manipulating the books of the firm kept by him so as to make them show a larger balance to the credit’ of his grandmother, Mrs. Loomis, than the true state of the account showed, in order that he might draw money in her name to which she was not entitled; and further, that having thus fraudulently secured the money of Holligan & Co. he appropriated it to Ms own use and purchased the automobile in question. Upon the facts shown in evidence, appellant held the money, and the automobile purchased with the money, as trustee for his employers (Ellsworth v. Miner T. Ames Co., 125 Ill. 223; Weaver v. Fisher, 110 id. 146); and a court of equity would have compelled him to surrender the machine to Holligan & Co. He obtained the money by virtue of his relation of trust and confidence to Holligan & Co., and wrongfully converted it into the automobile. A court of equity would have followed the property and caused it to be restored to Holligan & Co. Stewart v. Duffy, 116 Ill. 47. When appellant transferred the automobile to his employers, he did only what a court of equity would have compelled him to do; for, though an infant, he was liable for his torts and wrong doing. Wilson v. Garrard, 59 Ill. 51; Prescott v. Norris, 32 N. H. 101. Under these circumstances the law will not permit him to disaffirm his conveyance on the ground of infancy. 16 Am. & Eng. Enc. of Law, (2nd ed.), p. 274.

In our opinion the evidence shows a good and valuable consideration for the transfer of the automobile.

The evidence in our opinion sustains the judgment of the trial court. No reversible error appears in the record and the judgment is therefore affirmed.

Affirmed.


text:
    Olaf Nelson, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 15,795.
    1. Instructions—approved form as to rights of public at street crossings, etc. An instruction upon this subject as follows, approved:

      ‘ ‘ The court further instructs you as law that it is lawful for individuals to walk and pass and repass upon public streets and highways, and in doing so to cross and recross street car tracks, exercising ordinary care in doing so, and that it is the duty of the servants of the street ear companies, operating cars upon public streets, to be on the lookout and take reasonable measure to avoid injuries to persons on the street. ’ ’

    2. Instructions—when upon exercise of ordinary eare erroneous. An instruction upon the exercise of ordinary care by the plaintiff is erroneous if it excludes the plaintiff from recovery if he " omitted to do anything for his own safety which an ordinarily careful, prudent and cautious person under like circumstances would have done. ’ ’

    3. Instructions—when upon preponderance of evidence erroneous. An instruction upon this subject is erroneous if it does not restrict the reference to the issues essential to the maintenance of the action.
    4. Instructions—when upon question of negligence erroneous. An instruction which exonerates the defendant from the charge of negligence is erroneous if it refers merely to the effort to avoid the accident when the situation which resulted therein had arisen; such an instruction should not ignore the question as to whether the defendant was guilty of negligence in creating such situation.
    5. Instructions—effect of repetition of words “not guilty.’’ It is improper to repeat the same proposition of law in many different terms. It is likewise improper to repeatedly and unnecessarily employ the words "not guilty.”
    Action in case for personal injuries. Error to the Circuit Court of Cook county, the Hon. Linus C. Ruth, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 3, 1911.
    Ashcraft & Ashcraft, for plaintiff in error; E. M. Ashcraft and Charles F. Bathbun, of counsel.

      Franklin B. Hussey and Watson J. Ferry, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

By this proceeding in error, it is sought to reverse a judgment of the Circuit Court in an action to recover damages .for personal injuries brought by plaintiff in error against defendant in error. The plaintiff in the action claimed that while exercising due care, the defendant by its servants so negligently drove and operated its motor car that plaintiff was run upon and injured while attempting to pass a public crossing of defendant’s tracks on Wentworth avenue in Chicago.

The trial of the case resulted in a verdict and judgment for defendant. The evidence tended to prove the cause of action as alleged but was conflicting. The questions presented in this proceeding in error arise upon the rulings of the court in giving and refusing to give instructions to the jury.

It is urged that the trial court erred in refusing to give instruction No. 9 requested by the plaintiff. That instruction reads as follows:

“The court further instructs you as law that it is lawful for individuals to walk and pass and repass upon public streets and highways, and in doing so to cross and recross street car tracks, exercising ordinary care in doing so, and that it is the duty of the servants of the street car companies, operating cars upon public streets, to he on the lookout and take reasonable measure to avoid injuries to persons on the street.”

The record shows that no instruction was given to the jury defining the rights of the public and the defendant’s duty to prevent accidents at public street crossings. This instruction was on this subject. It stated the law correctly; and where the evidence was conflicting, as it was in the case under review, it was not only proper but necessary that the jury should be instructed upon the rights of the plaintiff in passing upon and over the tracks of the defendant in the public streets, and the duty of the defendant and its servants to take reasonable measures to avoid injuring persons so rightfully using the street. It was error to refuse the instruction.

Instruction No. 25, given by the court at the request of the defendant in error, is as follows:

“The court instructs you that if you believe from the evidence under the instructions of the court that the plaintiff at the time and place in question omitted to do anything for his own safety, which an ordinarily careful, prudent and cautious person under like circumstances would have done, and that such omission proximately contributed to cause the accident and injury in question, then your verdict should be, ‘We, the jury, find the defendant not guilty.’ ”

This instruction is erroneous in that it denies to the plaintiff the right to recover if he “omitted to do anything for his own safety which an ordinarily careful, prudent and cautious person under like circumstances would have done,” and that such omission proximately contributed to cause the accident. The plaintiff was bound to exercise due care for his own safety, but he was not required to do what the instruction stated in order to be entitled to recover. The instruction is erroneous and misleading. Elwood v. Chicago City Ry. Co., 90 Ill. App. 397, 400.

Instruction No. 26, requested by the defendant, is as follows:

“The court instructs the jury that it is the law in this case, that if the evidence preponderates in favor of the- defendant,
Or, if the evidence fails to preponderate in favor of the plaintiff as against the defendant;
Or, if the evidence is evenly balanced as between the contention of the plaintiff and the defendant;
Then, in either case, the plaintiff cannot recover against the defendant, and yonr verdict should he: ‘We, the jury, find the defendant not guilty.’ ”

This instruction was condemned in Chicago West Division Ry. Co. v. Lambert, 119 Ill. 255, 258, because it did not restrict the evidence referred to, to the issues essential to the maintenance of the action. The jury might apply the instruction to evidence on points in dispute which were not essential and thus be misled by it. The instruction approved in Harvey v. C. & A. Ry. Co., 221 Ill. 242, confined the evidence referred to therein to points material to the plaintiff’s case.

The court gave the following instruction at the request of the defendant:

“28. You are instructed that the servants of the defendant in charge of the car in question were not required to exercise the highest degree of care to avoid injuring the plaintiff upon the occasion in question, but were only required to exercise ordinary care, and if you believe from the evidence in this case under the instructions of the court that the motorman of the car in question in the exercise of reasonable and ordinary care did all he could to avoid the accident in question as soon as it was apparent or ascertainable to him in the exercise of reasonable and ordinary care, that the plaintiff was crossing the track or getting upon or near the track in a position of danger, then the plaintiff cannot recover in this case, and your verdict should be: ‘We, the jury, find the defendant not guilty. ’ ”

This instruction does not state the law of the case, and is so framed as to mislead the jury. The defendant was not free from negligence if the motorman in the exercise of reasonable and ordinary care did all he could to avoid the accident as soon as it was apparent or ascertainable to him, in the exercise of reasonable and ordinary care, that the plaintiff was crossing the track or getting upon or near the track in a position of danger, regardless of the rate of speed at which he was running the car as he approached the place of the accident. If he was running the car at • such a speed that he could not control it, or was negligent in any other manner, causing the injury, as he approached the place of the accident and before it was apparent to him that the plaintiff was in a position of danger, the defendant would be guilty of negligence, notwithstanding the motorman did all he could to avoid the accident as soon as it was apparent to him that the plaintiff was getting upon or near the track in a position of danger. The question of liability for negligence in this case did not turn wholly upon the care exercised by the particular motorman after he saw the danger, if he had negligently created a situation which he could not control in time to avoid the accident, and such negligence contributed to the accident.

Our attention is called to the fact that the court gave twenty-nine instructions requested by defendant, and to their form and to the repetition of the direction to the jury in various ways to find the defendant not guilty; and it is urged that the instructions as given amount to a well prepared argument for the defendant.

In various forms the point that it was the duty of the jury to treat the defendant the same as if it was an individual and not a corporation, is repeated in the first, second and third instructions given at the instance of the defendant. This is argumentative, improper and unnecessary. In each instruction requested by the defendant, numbered respectively 21, 22, 23, 26, 28 and 29, the direction is given the jury to find the defendant not guilty, and in three of these instructions the form of the verdict is given. This is only another way of emphasizing the words “not guilty” and is as effective, if not more so, as printing the words in large type—a practice condemned in Elwood v. Chicago City Ry., 90 Ill. App. 397, 400.

Considering the great number of instructions, the character and number of the repetitions of the same idea in them, we think they were well calculated to impress the jury with the thought that the court was against the plaintiff on the question of fact and that they might readily be misled to believe .that in the opinion of the court they should find for the defendant. No legitimate reason appears for the repetition of the direction to find the defendant “not guilty” so frequently.

We think the criticism of the instructions'' in Wilmerton v. Sample, 39 Ill. App. 60, is applicable to the instructions now before us.

For the errors indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


text:
    Mary Luisi, Defendant in Error, v. Vito Jacobellis, Plaintiff in Error.
    Gen. No. 15,841.

      Attachments—when amendment does not set up new cause of action. Held, that the amended affidavit of attachment filed in this ease by leave of court did not state a new cause of action.

      Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Cairoli Gigliotti, for plaintiff in error; James T. Jarrell, of counsel.
    H. W. Kuetemeyer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An attachment suit was instituted in the Municipal Court of Chicago by Mary Luisi, defendant in error, to recover from plaintiff in error $29.30. On the trial of the cause before the court without a jury the court sustained the attachment and found the issues for defendant in error, and judgment was rendered for the above amount and costs.

The affidavit for attachment set out that the plaintiff in error was indebted to defendant in error upon two unpaid checks endorsed and delivered by plaintiff in error, giving the amount of both checks. An amended affidavit was subsequently filed by leave of court describing the checks more particularly.

We do not think there is any basis for the contention of plaintiff in error that the amended affidavit set up a new cause of action, and the court erred in allowing it to be filed.

In our opinion the evidence sustained the findings of the court on the issues. The judgment is affirmed.

Affirmed.


text:
    William C. Van Gilder, Appellee, v. E. F. Ringer, Appellant.
    Gen. No. 17,662.
    1. Injunctions—what essential to, restraining collection of judgment. A preliminary injunction should not be granted to restrain the collection of a judgment unless the bill sets up such facts, not conclusions, as show a ground for equitable relief.
    2. Injunctions—when do not lie to restrain collection of judgment. Courts of equity will not disturb a judgment of a court of law because some accident or some misfortune or a mistake as to the proper practice has prevented a party from taking an appeal and securing a review of the judgment; nor can a court of equity sit as a court for the correction of errors committed at law.
    Bill for injunction. Appeal from the Circuit Court of Cook county: the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    White, Mabie and Conkey, for appellant.
    Charles C. Spencer, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The Circuit Court on the face of the bill in this cause ordered that the defendant Ringer be restrained from issuing an execution upon the judgment described in the bill which Ringer had recovered in the Municipal Court of Chicago against Van Gilder, complainant, or from attempting to enforce or collect the judgment until the further order of court. From this order this appeal is prosecuted.

The bill sets forth the recovery of the judgment., the, general nature of the claim on which it was based, and that on the trial of the action divers errors intervened injurious to the complainant, and that the judgment is erroneous for twelve reasons; namely, that it is against the weight of the evidence, contrary to the law and the evidence, the failure of the court to direct a verdict, the admission of improper evidence, and exclusion of proper evidence, giving improper instructions and refusing proper instructions, excessive damages, and in overruling motions for new trial and in arrest. These grounds are stated generally in the language ordinarily used in a motion for new trial without attempting to state any particular facts.

The bill then shows that an appeal was allowed to this court and perfected, but that the hill of exceptions filed in the cause was by order of this court stricken from the transcript of record, and the judgment was affirmed, and that the Supreme Court refused to grant a writ of certiorari.

The bill prays leave to refer to the draft of the bill of exceptions and avers that it contained among other things a stenographic report of all the evidence offered and received in the cause, and of all the rulings of court during the trial, and of all motions made in the cause and makes the draft of the bill of exceptions a part of the bill of complaint. No copy thereof, how-ever, was attached to the bill of complaint or incorporated therein, and consequently it does not appear in the record before us.

The only question presented by the record is, does the bill state a cause entitling the complainant to the injunction ordered? The injunction having been ordered on the face of the bill, the cause stands as if appellant had demurred to the bill. It follows that whatever is well pleaded in the bill must be considered as true. Thus viewed the bill shows no ground -for equitable relief against the judgment. The bill does not allege facts which show that the judgment is unjust and inequitable. It alleges the conclusions of the pleader only. These conclusions are not admitted on the record by appellant, and cannot be taken as true. Martin v. McCall, 247 Ill. 484. No facts showing an equitable ground for relief are alleged, and courts of equity will not disturb a judgment of a court of law because súme accident or some misfortune or a mistake as to the proper practice, has prevented a party from taking an appeal and securing a review of the judgment (Excelsior Electric Co. v. Chicago Waifs Mission, 41 Ill. App. 111); nor can a court of equity sit as a court for the correction of errors committed at law. Chicago Waifs Mission v. Excelsior El. Co., 44 Ill. App. 425; Gibbons v. Bressler, 61 Ill. 110, 114. The bill does not show facts constituting a meritorious defense to the action, and equity will not interfere to prevent the collection of a judgment unless such facts are shown. Reed v. New York Exchange Bank, 230 Ill. 50.

The order for injunction is erroneous and is reversed.

Reversed.


author: Mr. Presiding Justice Baume

text:
    Pilade Giovaghino, Defendant in Error, v. W. W. Kimball Company, Plaintiff in Error.
    Gen. No. 15,704.
    1. Master and servant—effect of failure to observe instructions. If a servant is injured because of his failure to observe the instructions of his foreman as to the proper and safe method of doing his work, he cannot recover.
    2. Master and servant—when inexperience of servant precludes recovery. If a servant falsely represents to the master that he is experienced in a certain class of work and he is assigned to that work and injured therein, he cannot recover if his inexperience contributed to the injury.
    . 3. Negligence—what will not support recovery. It is not sufficient, in order to entitle the servant to recover, that the master may have been guilty of some negligence, but it must also appear that such negligence was the proximate cause of the injury, and that the servant was in the exercise of due care for his own safety.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed October 4, 1911.
    Winston, Payne, Strawn and Shaw, for plaintiff in error; Edward W. Everett, of counsel.
    Bernard P. Barasa, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendant in error recovered a verdict and judgment in the Municipal Court against plaintiff in error for $1,000 as damages for personal injuries alleged to have been occasioned by the negligence of plaintiff in error, and this writ of error is prosecuted to reverse such judgment.

Prior to August 23, 1907, defendant in error had been employed on several occasions by plaintiff in error in its factory as a common laborer, mainly in the wood working department, whére he removed the finished and refuse material which accumulated in the operation of a circular saw, and performed the duties of a helper. On the day above, named he sought employment from the foreman of plaintiff in error in the capacity of a sawyer, and to that end represented to the foreman that he had had considerable experience in the operation of circular saws. Defendant in error testified in substance that he did not have such experience, but told the foreman he had; that in his application for employment it was put down that he had experience working on a saw before; that he did so just to get the job, because he was out of work for awhile; that his statement was not true and as a matter of fact he had had no experience in working with a saw. The evidence discloses that defendant in error commenced to operate the saw on the day he was employed, and continued at that work until he was injured on August 30th following. The saw operated in a table or frame 6 feet long and 3 feet wide, upon which was a top of like size which was hinged at the rear end, so that it could be raised or lowered at the front end. The device usually in use for raising and lowering the top was a wooden screw in the front end and center of the frame, but the screw in the frame of the saw which was being operated by defendant in error had become broken, and in lieu of a screw the front end of the top was raised by placing pieces of wood between the frame and the top. The purpose in raising the top of the table was to accommodate the saw to the thickness of the wood which was being sawed, so that the saw would project about 3-16 of an inch above the surface of the wood, better results being obtained when that amount of projection was maintained. There is no evidence tending to show that the use of the saw was attended with greater danger when it projected more than 3-16 of an inch above the wood which was being fed to the saw. Notwithstanding his representation to the foreman of plaintiff in error that he was experienced in the use and operation of circular saws defendant in error admits that when he commenced to operate the saw the foreman gave him general directions as to the proper manner of its use and operation, and that he thereafter knew how to use the saw.

There is some controversy in the evidence regarding the character and size of the wood defendant in error was sawing when he was injured. He admits that immediately prior to that time he had been sawing gum wood which was of the thickness of three inches, but insists that at the time he was injured he was sawing an oak panel 37 inches long, about 7 inches wide and % inch thick. A clear preponderance of the evidence, however, tends to show that at that time he was sawing gum wood. The several statements made by the defendant in error as to the precise manner in which the injury was occasioned are somewhat conflicting. Upon his direct examination he testified that as he put the piece of wood through it split five or six inches from the end, when the wood slipped and the saw cut his finger off. Upon his cross-examination he testified that when he cut the board a certain distance (indicating), it jumped and broke a piece off and his finger slipped and went into the saw; that the' saw would not cut the board very good, it was tearing the board; that his left hand was on the left side of the saw; that the piece that broke off went to the left and his hand went to the right; that he put his strength on the board to shove it through and his hand slipped over toward the saw.

John Williamson, a witness called by plaintiff in error, testified that defendant in error told him upon the day of the accident that at the time he was injured he was ripping a gum panel and it rose up, not having sufficient hold on it, that is pressure to hold the panel down, it rose up and in trying to press it down he used his left hand and put it over across the saw. When called in rebuttal defendant in erpor testified that he told Williamson what fingers were injured but gave Tiim no satisfaction as to how it happened. It will be observed, however, that the statement made by defendant in error upon cross-examination substantially accords with the statement which Williamson testified that defendant in error made to him.

Duncan Beaton, the shop foreman for plaintiff in error, testified that in the forenoon of the day defendant in error was injured, witness observed the way in which the defendant in error was working; that the defendant in error kept his left hand on the board until it passed through the saw; that the witness then cautioned defendant in error not to do it in that way; that it was not necessary to hold his hand there; that he should hold his hand on the board when it started, then when well started to take his left hand away and shove it with his right hand, and then reach over and take the waste with his left hand. There is no denial of the testimony of this witness by defendant in error and it stands uncontradicted in the record.

It is manifest that the injury was directly occasioned by the failure of the defendant in error to observe the instructions of his foreman as to the proper and safe method of doing the work. Defendant in error falsely represented to plaintiff in error that he was experienced in the use of circular saws, and if his inexperience contributed to his injury he cannot recover. It is not sufficient in order to entitle defendant in error to recover that plaintiff in error may have been guilty of some negligence, but it must also appear that such negligence was the proximate cause of the injury, and that defendant in error was in the exercise of due care for his own safety.

We are compelled to the conclusion that the judgment must be reversed with a finding of fact to be incorporated in the judgment of this court, that the injury complained of was occasioned by the failure of defendant in error to exercise reasonable care for his own safety.

Reversed with finding of fact.


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    Richard S. Folsom, Defendant in Error, v. N. M. Kaufman, Plaintiff in Error.
    Gen. No. 15,712.
    Attorney and client—when former entitled to fees; If parties voluntarily avail themselves of the fruits of services rendered by an attorney, they having full knowledge of the facts, they become jointly and severally liable for the value of such services.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Frederick H. Wickett, George J. Meier and Andrew A. Bruce, for plaintiff in error.
    Frank Johnston Jr., for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendant in error brought suit in the Municipal Court against 1ST. M. Kaufman, A. B. MacCaughey, H. L. Kaufman, S. R. Kaufman and D. W. Kaufman to recover for legal services rendered in connection with the incorporation of the De Luxe Motor Sales Company. Service of process was had on the plaintiff in error, N. M. Kanfman, only, and the trial of the cause by the court resulted in a finding and judgment against plaintiff in error for $300, to reverse which judgment he prosecutes this writ of error.

It is urged that the trial court erred in admitting and necessarily considering incompetent evidence, and that the finding is contrary to the manifest weight of the evidence.

The uncontroverted evidence discloses that about June 1, 1907, plaintiff in error and his co-defendants entered into a joint enterprise to be known and incorporated under the laws of Illinois as the De Luxe Motor Sales Company; that all of said parties were to become subscribers to the capital stock of said corporation ; that A. B. MacCaughey, acting for himself and the other proposed stockholders in said company, and with the knowledge and consent of plaintiff in error and his co-defendants, assumed the active duty of procuring the incorporation of the company and transacting the necessary business incident thereto; that to this end MacCaughey advised with defendant in error, a practicing attorney, relative to the proper steps to be taken to procure the incorporation of said company and its proposed business, and with reference to procuring a lease of certain premises on Michigan avenue for the use of the company; that acting under the instructions of MacCaughey, defendant in error procured the necessary license from the Secretary of State to be issued to himself and two employes in his office as commissioners, to open books of subscription to the capital stock of said company; that plaintiff in error and his co-defendants became subscribers to the capital stock of said company; that on June 29, 1907, defendant in error in his capacity as legal adviser of the company attended a meeting of its stockholders, at which meeting plaintiff in error was present and presided, and he together with his co-defendants were elected directors; that upon that occasion defendant in error made a detailed statement of the services performed by him with reference to the incorporation of the company and its proposed lease of a building for its use, and further explained what was still necessary to be done regarding the incorporation; that, thereafter, defendant in error drafted the by-laws of the company and also drafted a contract between the company and MacCaughey for the employment of the latter by the company.

Defendant in error testified that upon the occasion of said stockholders ’ meeting, MacCaughey stated that he desired witness to act as attorney for the company, and that plaintiff in error said, that it would be all right, and further told witness to advise MacCaughey whenever the latter needed advice. Plaintiff in error denied 'having made this statement attributed to him by defendant in error, but we do not deem it material to the issue to determine where the truth in that particular lies. The fact that defendant in error thereafter drafted the by-laws and the contract above mentioned is a circumstance which tends to corroborate the testimony of defendant in error.

While the testimony of defendant in error regarding his conference with MacCaughey and the services performed by him in pursuance of such conference was incompetent in the first instance to charge plaintiff in error with any liability therefor, it became competent to be considered for that purpose when the uncontroverted facts heretofore recited were fully disclosed. It is practically conceded by plaintiff in error that he is liable for any services rendered by defendant in error on and after June 27, 1907, but he insists that for the services rendered prior to that time MacCaughey, or the commissioners designated to open books of subscription to the capital,stock of the company, are liable to defendant in error. MacCaughey was the accredited representative of plaintiff in error and his co-defendants for the purpose of doing the business in hand, and the character of the business to be done necessarily involved the employment and services of an attorney in its proper performance-. Plaintiff in error together with his co-defendants voluntarily availed themselves of the fruits of the services rendered by defendant in error, with full knowledge of all the facts, and are jointly and severally liable for the value of such services.

It is not complained that the judgment is excessive if a liability exists.

There is no error in the record and the judgment is affirmed.

Judgment A’ffirfied.


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    The People of the State of Illinois, Defendant in Error, v. Chene Cohen, Plaintiff in Error. The People of the State of Illinois, Defendant in Error, v. Chene Cohen et al., Plaintiffs in Error.
    Gen. No. 15,720.
    Gen. No. 15,917.
    Consolidated for Hearing.
    1. Municipal Court—in what cases writ of error lies. A writ of error lies to review proceedings supplemental to a judgment, including an order committing for contempt.
    2. Municipal Court—what without jurisdiction. It is not within the jurisdiction of the Municipal Court to set aside a conveyance as in fraud of creditors.
    3. Municipal Court—what without jurisdiction. It is not within the jurisdiction of the Municipal Court in supplemental proceedings to order the defendant in a judgment to pay money not shown to be in his possession or control.
    4. Municipal Court—extent of power in supplemental proceedings. The power of the Municipal Court in supplemental proceedings is limited to personal property.
    5. Appeals and errors—what subject to review in contempt proceeding. A writ of error to review a judgment of commitment brings up as well the order for the disobedience of which the commitment was made as the order of commitment itself.

      6. Constitutional law—when questions waived. As the Appellate Court has no jurisdiction to determine constitutional questions, all such questions are waived by prosecuting an appeal to the Appellate Court which involves by the assignments of errors other questions than those of constitutional law.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed October 4, 1911.
    B. M. Shaffner, for plaintiffs in error.
    Arthur C. Bachrach and Sydney Lyon, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In No. 15720 plaintiff in error, Chene Cohen, prosecutes her writ of error to reverse a judgment of the Municipal Court entered against her for contempt in a proceeding supplemental to a judgment in said court by confession in favor of one Poliak against P. Cohen and Charles Cohen for $171 and costs. Execution was issued March 17, 1909, and the judgment debtors filed their sworn schedules, wherein it appeared that neither possessed personal property subject to execution and thereupon the execution was returned nulla bona June 16, 1909. Upon the petition and affidavit of the attorney for the judgment creditor, the judgment debtors and plaintiff in error, the wife of P. Cohen, one of said judgment debtors, were cited to appear in court and be examined under oath concerning the property belonging to said judgment debtors. At the conclusion of the examination of P. Cohen and his wife had in pursuance of such citation on April 30, 1909, the court entered a finding and order substantially as follows: That on December 16, 1908, P. Cohen held the legal title to certain premises known as No. 482 Colorado avenue in the city of Chicago, and then conveyed the same to a third party, who then immediately conveyed the same to plaintiff in error; that plaintiff in error neither parted with nor paid any consideration for said premises, and that her husband P. Cohen received no consideration for the conveyance of said premises; that said premises were so conveyed to plaintiff in error with the intention of defrauding defendant in error, and that as to the defendant in error such conveyance was null and void; that said premises were not a homestead and consisted of a flat building having three flats, all of which were rented and were bringing in an income to P. Cohen of approximately $90 per month; that plaintiff in error pay to the bailiff of the court the sum of $30 before 2 o’clock p. m. on May 7, 1909, and the bailiff apply said $30 in part satisfaction of the judgment.

On May 7,1909, the court entered an order requiring plaintiff in error to show cause, if any she had, on May 14, 1909, why she should not be attached and punished for contempt for her failure to comply with the order of April 30th, preceding. Plaintiff in error having failed to appear on the day named, she was brought into court by virtue of a writ of attachment then ordered to be issued, and plaintiff in error then having shown no cause why she should not be adjudged to be in contempt of court for her failure to comply with the order theretofore entered, was by the court so adjudged to be in contempt, and was ordered to be committed to the common jail of the county, there to remain until she should comply with the order of the court by paying the sum of $30 to the bailiff, providing said term of imprisonment should not exceed six months, or until she should be otherwise discharged by due process of law.

Defendant in error has moved the court to dismiss the writ of error upon the ground that no right of review by writ of error of a final judgment of the Municipal Court in proceedings supplemental to judgment exists. In support of such contention it is urged that the right of review by writ of error is not expressly authorized by the statute; that a writ of error unless authorized by statute only lies in cases in which the jurisdiction of the lower court is exercised according to the course of the common law, whereas the jurisdiction of the Municipal Court in proceedings supplemental to judgment is not so exercised.

Section 64 of the Municipal Court Act prescribes the mode of proceedings supplemental to judgment, and section 23 of the same act provides that the final orders and judgments of the Municipal Court in cases of the fourth class shall be reviewed by writ of error only.

It is not asserted by defendant in error that the order for commitment for contempt here involved is not a final order, and it must be conceded that such order was entered in a case of the fourth class for the purpose of enabling the judgment creditor to realize upon his judgment recovered therein. The proceeding supplemental to the judgment is summary in its character and the jurisdiction of the Municipal Court to enter anv order and judgment therein is referable solely to its jurisdiction to enter judgment in the principal case.

If the right to sue out a writ of error to review a final order and judgment of the Municipal Court in such a proceeding required statutory authority therefor, we should not be disposed to adopt a construction of the statute which, as contended by defendant in error, would necessarily preclude any review upon the merits of such final order and judgment. Furthermore, as the power to punish for contempt is inherent in a court of justice, according to the common law, independent of a statute (The People v. Wilson, 64 Ill. 195; Dahnke v. The People, 168 Ill. 102) the jurisdiction of the Municipal Court to enter the judgment in the case at bar was exercised according to the course of the common law, and the judgment so entered is reviewable by writ of error.

The motion to dismiss the writ of error will be denied.

It is urged by defendant in error that inasmuch as plaintiff in error did not seek to have the order of April 30, 1909, directing her to pay the money to the bailiff reviewed by writ of error the propriety of such order is not reviewable upon this writ of error, and the case of Berkson v. The People, 51 Ill. App. 102, is cited in support of that position. It will suffice to say that there was a holding to the contrary by the Supreme Court in the same case on appeal. 154 Ill. 81.

Plaintiff in error insists in the first instance that so much of section 64 of the Municipal Court Act as provides for proceedings supplemental to the judgment is unconstitutional and void. This court has no jurisdiction to consider and determine the question sought to be raised, but as the assignment of errors upon the record presents questions which this court has jurisdiction to consider and determine, plaintiff in error must be held to have waived the constitutional question by prosecuting this writ of error here. Luken v. L. S. & M. S. Ry. Co., 248 Ill. 377.

The order of the Municipal Court entered April 30, 1909, must be justified, if at all, by the provisions of the second paragraph of section 64 of the Municipal Court Act, which paragraph is as follows:

“Second. Where it appears from the examination or testimony taken pursuant to the provisions of this section that the judgment debtor has in his possion (possession) or under his control money or other property belonging to him and not exempt from execution, or that money, choses in action, or one or more articles of personal property capable of delivery, and the right of possession of which in said judgment debtor is not substantially disputed, and which are not exempt by law from execution or garnishment, are in the possession or under the control of such other person or corporation, the court may, in its discretion, make an order directing the judgment debtor, or such other person or corporation, immediately to pay the money, assign the chose in action or deliver the articles of personal property to the bailiff of the Municipal Court to be by him collected or sold at public sale and the proceeds thereof applie'd towards the satisfaction of said execution and if the amount of money, or the proceeds of such collection or sale shall exceed the amount due upon such execution and the costs accrued thereon, the overplus shall be paid to the said judgment debtor.”

So far as authority is thereby conferred upon the court to require any person or corporation to turn over property in his or its possession belonging to the judgment debtor, to the bailiff for the use of the judgment creditor, it is limited in its application to personal property, viz: “Money, choses in action, or any one or more articles of personal property capable of delivery.”

It cannot be pretended that section 64 empowers the Municipal Court to set aside a conveyance of real estate and to declare the same null and void as to the judgment creditor, even though such conveyance was either in fact or in law fraudulent as to creditors. No such power is vested in the Municipal Court by the act creating it, and the order was unauthorized and void. The order of the court entered April 30, 1909, directing plaintiff in error to pay to the bailiff $30 to be applied upon the judgment was also unauthorized for the reason that it was necessarily predicated upon the extrajudicial order of the court setting aside the conveyance, and for the further reason that it does not appear plaintiff in error had the $30 in her possession or under her control at the time the order was entered.

In No. 15917 Chene Cohen and Pesach Cohen prosecute their writ of error to reverse a judgment of the Municipal Court whereby each of said plaintiffs in error was adjudged to be in contempt of court for having conveyed the real estate involved in the preceding case to one Isador Cohen, in violation of an order of said court enjoining a conveyance of the same, and were each further adjudged to pay a fine of $70 and to be committed to the common jail of Cook county until they should pay said fine, or be otherwise discharged by due process of law.

What we have heretofore said in the preceding case relative to the jurisdiction of the Municipal Court in proceedings supplemental to judgment as being limited to personal property, renders it unnecessary to further discuss the question involved in the writ of error in this case.

For the reasons stated the judgments of the Municipal Court in both cases will be reversed.

Reversed.


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    Max Stein, Defendant in Error, v. Schwartz-Durkin Company, Plaintiff in Error.
    Gen. No. 15,731.

      Evidence—effect of number of witnesses upon question of preponderance. The number of witnesses testifying to a certain fact or state of facts is a factor not to be lightly regarded in the effort to arrive at a correct conclusion, but such factor is not conclusive.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Moses, Rosenthal & Kennedy, for plaintiff in error; Walter Bachrach, of counsel.
    D ’Ancona & Pflaum, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment entered in the Municipal Court in a case of the fourth class, upon a verdict against plaintiff in error for $154.69. The statement of claim filed by defendant in error, and upon which a recovery was sought, is for wages as a salesman for two weeks commencing June 29, 1908, at $30 per week under the terms of a verbal agreement, also for 3% commission, under the terms of a like agreement, on all sales made from April 15, 1908, to July 8, 1908, and on all goods sold by plaintiff in error from April 15, 1908, to December 1, 1908, to customers furnished by defendant in error to plaintiff in error while defendant in error was employed by plaintiff in error, the total amount of said sales' being estimated at about $5,000, the total amount claimed for wages and commissions being $210.

Plaintiff in error seeks a reversal of the judgment mainly upon the ground that the verdict is against the clear preponderance of the evidence, the same being predicated solely upon the testimony of defendant in error, who it is claimed is positively contradicted by two unimpeached witnesses, without the presence of any elements of probability to turn the scale in favor of defendant in error.

Defendant in error testified that on April 15, 1908, he had a conversation with Simon Schwartz, the president of plaintiff in error, and proposed to accept $30 per week salary, which was to be paid weekly to his wife, and his traveling expenses, not to exceed $50 a week, ánd 3% commission on all goods sold and delivered; that Schwartz said to him, “All right, you can start in next Monday;” that the term of his employment was until December 1, 1908; that the regular season for the sale of ladies’ cloaks, suits and skirts did not begin until June 1st, but he made a trip in May, when he was on the road one week; that he was out in the territory assigned to him during all of June and the first week of July; that upon his return on the 6th or 7th of July, Schwartz complained because his traveling expenses for one week were $15 in excess of the $50 agreed upon; that he had borrowed the $15 from one Zukerman, whom Schwartz had repaid; that he had some words with Schwartz and demanded his wages for the week commencing June 28th, which Schwartz did not pay; that he requested Schwartz to furnish him with a statement of the account between them as the same appeared upon the books of plaintiff in error, which statement was made out by the bookkeeper of plaintiff in error under date of July 8, 1908; that upon that day he was discharged by Schwartz. The statement referred to was offered in evidence by defendant in error, and it appears therefrom that the total amount of sales made by defendant in error was $3656.43; that defendant in error was therein charged as follows:

On Drawing Account:
Currency..........................$300.00
Check sent to Zukerman............. 15.00
Merchandise ....................... 17.34
On Traveling Account:
Expressage........................ 1.25
Traveling expense less $2 returned.. . 298.00
Total ...........................$631.59
The statement then credits defendant in error with.....................$365.65.
being 10% commission on sales amounting to $3656.43, and states the amount overdrawn and due plaintiff in error to be.............$265.94
$631.59

Edith Simmons, employed by plaintiff in error as bookkeeper, testified that she was present during a conversation in April, 1908, between defendant in error and Schwartz; that they came into the office for the purpose of going over the arrangement between them so that she would know how much defendant in error was to receive; that defendant in error said he was to receive $30 a week drawing account for his home and $50 a week for traveling expenses, and would “guarantee” that his sales would not cost over ten per cent; that defendant in error estimated, and so stated, that his traveling and drawing account would amount to seven or seven and one-half per cent, of his sales and the 3% commission on sales of goods after shipment would make the total about 10%. On cross examination the witness stated she would not testify that defendant in error used the word “guarantee,” but she thought that was what he said.

Simon Schwartz testified to substantially the same facts as did the witness Edith Simmons, and further that nothing was said by himself or defendant in error about paying any salary. Defendant in error when called as a witness in rebuttal denied that he had guaranteed that the total cost of the sales made by him should not exceed 10% of the amount of such sales, and further testified that no guarantee was asked or given, although there may have been a casual remark relating to that subject during the time the negotiations for his services were pending.

The record discloses that notwithstanding defendant in error made but one trip through any portion of the territory assigned to him prior to June 1st, the regular weekly 'payment of $30 was made by plaintiff in error to defendant in error or to his wife, by his direction, up to June 21,1908, and that during all that time plaintiff in error made no objection or protest to the payment by it of money which defendant in error was not earning as commissions on sales. The only complaint made by plaintiff in error related to the one instance in which the traveling expenses of defendant in error had been $15 in excess of the weekly allowance of $50 for that purpose.

It is somewhat of a straih upon our credulity to ° believe that plaintiff in error paid $30 a week for ten weeks upon a mere contingent liability to pay defendant in error ten per cent, commission upon the net amount of sales made by him, and this during a considerable period before the season had opened and when it was not expected that defendant in error would be calling upon customers and selling goods.

Doubtless something was said during the negotiations preceding the actual hiring of defendant in error with reference to the relative cost of selling goods, and defendant in error may have casually boasted of his ability to limit such cost to ten per cent, of the net amount realized for the goods sold, or expressed his opinion that the expense of selling goods would not exceed ten per cent, of the net amount realized from his sales, but we are not fully persuaded that a stipulation or guaranty, such as is claimed by plaintiff in error, was actually incorporated in the contract of hiring.

The number of witnesses testifying to a certain fact or state of facts is a factor not to be lightly regarded in the effort to arrive at a correct conclusion, but such factor is not conclusive. ‘ ‘ Testimony is to be weighed, not counted.” C. B. & Q. Ry. Co. v. Presbrey, 98 Ill. App. 303. We are at a disadvantage in determining the credibility of the witnesses as compared with the jury and trial court, who saw the witnesses and observed their demeanor while testifying. We cannot say in this case that the finding of the jury approved by the trial judge was palpably wrong.

The verdict was arrived at by allowing defendant in error a commission of 3% on the amount realized for the goods sold by him and delivered together with his salary for two weeks, and deducting therefrom the sum of $15 overdrawn on traveling expense account. It is not claimed that the verdict is not consistent with the claim and theory of defendant in error.

It is finally urged on behalf of plaintiff in error that the statement of account furnished by it to defendant in error, at his request, constituted an account stated which defendant in error is estopped to controvert. Defendant in error did not acquiesce in the correctness of the account as stated, save as to the.net amount realized by plaintiff in error for goods sold by defendant in error and delivered. Whether or not the goods sold by defendant in error had been delivered, and whether or not the purchasers had taken advantage of the usual trade discount, were facts peculiarly within the knowledge of the plaintiff in error, and it is evident that defendant in error requested the statement for information in that regard. The other claims of plaintiff in error as embodied in the statement were at the time it was furnished in violent and angry dispute. The doctrine of account stated is not applicable to the facts of the case.

. For the reasons stated the judgment is affirmed.

Judgment affirmed.


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    Jonas Kuppenheimer et al., Appellees, v. Chicago Title and Trust Company, Appellant, and Christiana Brachvogel et al., Appellees.
    Gen. No. 15,743.
    1. Mortgages—order of Men on notes secured by deed of trust. Where several notes payable at different dates are secured by the same mortgage or trust deed, such notes, in the absence of any special provision in the mortgage or trust deed to the contrary, are entitled to payment from the proceeds of the mortgaged property in the order of their maturity; and this rule applies even though the mortgage or trust deed provides an option to declare the entire principal due upon default in payment of one, or the interest upon one, note, or recites that it is given for a balance of the purchase money. -Further, the fact that the notes are made payable on or before their respective dates of maturity is not material.
    2. Mortgages—when assignee entitled to preference as against mortgagee. When the mortgagee assigns one or more of the notes, and retains the remainder of the series, it is generally held that the assignee is entitled to priority of lien as against the mortgagee, with respect to the note or notes so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature.
    3. Master in chancery—when findings conclusive. If a party fails to object and except to a master’s report and such master fails to find the facts necessary to the consideration of the claim of such party, the report is conclusive against such party as to the findings of fact.

      Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed October 4, 1911.
    Charles L. Bartlett and Sherman C. Spitzer, for appellant.
    Lackner, Butz & Miller, for Christiana Brachvogel, appellee, and Judah, Willard, Wolf & Reichmann, for Jonas Kuppenheimer, et al., appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the opinion of the court.

On May 8, 1890, Bernard Kuppenheimer sold and conveyed to Emil Dickmann 308.654 acres of land in Cook county for $308,654, of which one-fourth was paid in cash and the payment of the remaining three-fourths was evidenced by divers notes payable in one, two and three years after date, secured by trust deeds upon several portions of the land. The trust deed here involved, covered forty acres of the tract sold, and was given to secure the payment of nine of the said deferred purchase money notes, as follows: Two for $4,000 each, and one for $3,491.72, payable on or before one year after date; two for $4,000 each, and one for $3,491.72, payable on or before two years after date; two for $4,000 each, and one for $3,491.71, payable on or before three years after date. The notes were executed by Dickmann payable to the order of himself and by him endorsed and delivered to the vendor, Kuppenheimer. All of the notes for $4,000 each and the note for $3,491.72, which matured one year after date, were retained by Kuppenheimer, and the notes maturing one year after date were paid to him. The note for $3,491.72, payable two years after date, was transferred by Kuppenheimer, without endorsement and by delivery merely, to the Chicago Title and Trust Company, and the note for $3,491.71, payable three years after date, was transferred in like manner to Christiana Brachvogel. Subsequently Bernard Kuppenheimer died testate, and was at the time of his death the owner of an undivided two-fifths interest in the four notes for $4,000 each, two being payable on or before two years after date and two on or before three years after date. The trust deed given to secure the several notes recited that it was given to secure the balance payments of purchase money for the property therein described, and also contained the usual provisions respecting default and the distribution of the proceeds in the event of the sale of the property, as follows:

“If default be made in the payment of said promissory notes, or of any part thereof, * * * or of a breach of any of the covenants or agreements herein contained, then in such case the whole of said principal sum and interest secured by said promissory notes, shall thereupon, at the option of the legal holder or holders thereof, become immediately due and.payable; and on application of the legal holder of said promissory notes, or either of them, it shall be lawful for said grantee * * * to enter into and upon and take possession of the premises herein granted * * * and out of the proceeds of any such sale to first pay the cost of such suit, all costs of advertising, sale and conveyance, including all the reasonable fees and commissions of said party of the second part, or persons wiio may be appointed to execute this trust and reasonable attorneys’ and solicitors’ fees and also all other expenses of this trust including all moneys advanced for insurance, taxes and other liens, or assessments, with interest thereon at eight per cent, per annum, then to pay the principal of said notes whether due and payable by the terms thereof, or the option of the legal holder thereof, and interest due on said notes, up to the time of such sale, rendering the overplus, if any, unto the said party of the first part * *

On November 5, 1904, Jonas, Louis B. and Albert B. Kuppenheimer as executors of the last will of Bernard Kuppenheimer, deceased, and Jonas and Louis B. Kuppenheimer in their own right, and Samuel Nathan, filed their bill, which was thereafter amended to foreclose said trust deed, and on September 29,1906, said complainants filed their supplemental bill wherein they alleged that the estate of said Bernard Kuppenheimer, deceased, had been closed up and the said executors discharged, and that said Jonas, Louis B. and Albert B. Kuppenheimer had become in their own right the owners of all the title and interest which said Bernard Kuppenheimer had at his death in the notes described in the original bill. The Chicago Title and Trust Company and Christiana Brachvogel, together with certain other persons whose rights and interests are not here involved, were made parties defendant to said original bill as amended and to said supplemental bill. The answer of the defendant, Chicago Title and Trust Company, avers that it is and for a long time has been the owner of the principal note for $3,-491.72 which matured two years after date; that said note matured May 8,1892; that there is now due thereon $3,491.72 with interest from May 8, 1897, at 8 per cent, per annum; that said note matured at an earlier date, to-wit: one year earlier than two of the notes for $4,000 each, which are alleged to be owned by the complainants, and which by their terms became due three years after date; and that its said note likewise matured one year earlier than the note for $3,491.71, alleged to be owned and held by the defendant Christiana Brachvogel; that by reason of the premises the lien of the said defendant, Chicago Title and Trust Company, under said trust deed, upon the premises therein described is superior to the lien thereon of the 'complainants by virtue of their said notes, and is also superior to the lien thereon of the defendant, Christiana Brachvogel, by virtue of her said note'; and that in any decree in said cause said defendant, Chicago Title and Trust Company, is entitled to have the amount due upon its said note paid in full out of the proceeds of any sale by virtue of said decree, before the application of any of the proceeds of said sale to the payment of the indebtedness. The defendant, Chicago Title and Trust Company, also filed its cross bill wherein it claimed affirmative relief upon the grounds averred in its answer. Upon the issues joined the cause was referred to the master to take the evidence and report the same with his conclusions of law and fact.

The master stated the account between the respective parties, showing the. total amount due to each of them, as follows:

To the complainants, ..................$32,457.00

To the defendant, Christiana Brachvogel, 6,657.37

To the defendant, Chicago Title and Trust Company, .................... 6,787.32

No objection is interposed to the account as stated. The master further found that where several notes were secured by a mortgage or trust deed they were, in the absence of any special provision to the contrary, entitled to payment from the proceeds of the real estate in the order of their maturity; that the trust deed in question did not contain any special provision that the notes thereby secured should not be so paid; and that the order of the payment out of the proceeds of a sale of the property should be as follows:

1. The costs of the suit including solicitor’s fees of the complainants and cross complainant.

2. The amounts due for taxes and tax redemptions, together with the interest thereon.

3. The amount of the notes due two years after-date, being two notes for $4,000 each, held by the complainants, and one note for $3,491.72, held by cross complainant, Chicago Title and Trust Company, with interest on said notes.

4. The amount of the notes due three years after date, being two notes for $4,000 each held by the complainants and one note for $3,491.71 held by the defendant, Christiana Brachvogel, with interest on said notes.

The complainants filed their objections to said report of the master, which objections, for the purpose of brevity, may be formulated, as follows:

That the master found that the several notes involved should be paid out of the proceeds of any sale, in the order of their respective maturities; that the master found that the lien of said notes which matured two years after date was superior to the lien of the said notes which matured three years after date; and that the master had failed to find that the notes secured by the trust deed were all equally secured thereby and should be paid pro rata out of the proceeds of any sale. The defendant, Christiana Brachvogel, also filed objections to the report of the master upon the ground, in substance, that the master did not find that said defendant was entitled to a preference or priority over the complainants in the payment of her note out of the proceeds of any sale, by reason of the transfer to her of said note by Bernard Kuppenheimer, the original holder thereof.

All of the said objections to his report were overruled by the master, and the cause was then heard by the chancellor upon said objections standing as exceptions to said report. Upon the hearing the chancellor entered a decree sustaining the exceptions of the complainants, and overruling the exceptions of the defendant, Christiana Brachvogel, and directing the payment of the proceeds of any sale pro rata among the respective parties, in accordance with the account as stated by the master. To reverse this decree the cross complainant, Chicago Title and Trust Company, has appealed to this court, and the defendant, Christiana Brachvogel, has assigned cross-errors upon the record.

It is conceded by the appellees that the general rule in this state is that where several notes, payable at different dates, are secured by the same mortgage or trust deed, such notes, in the absence of any special provision in the mortgage or trust deed to the contrary, are entitled to payment from the proceeds of the mortgaged property in the order of their maturity. Gardner v. Diederichs, 41 Ill. 158; Walker v. Dement, 42 Ill. 272; Humphreys v. Morton, 100 Ill. 592.

Appellees insist however that the trust deed here involved contains certain special provisions which are operative to prevent the application of the pro tanto rule, and which require the application of the pro rata rule in the payment of the notes from the proceeds of the mortgaged premises, and counsel in support of such insistence direct our attention to the clauses or provisions of the trust deed:

First, The clause providing that if default be made in the payment of the notes, or any part thereof, or the interest thereon, or any part thereof, at the time and in the manner specified for the payment thereof, then, in such case the whole of the principal sum and interest shall, at the option of the legal holder or holders of said notes, become immediately due and payable, and that upon a sale of the premises the court shall out of the proceeds direct the payment of the principal of said notes, whether due and payable by the terms thereof or the option of the legal holder thereof, and interest due on said notes up to the time of such sale.

Second, The clause reciting that said trust deed was given for the balance payments of purchase money described therein, and

Third, The provisions whereby the principal debt was payable in installments and the notes were made payable on or before their respective dates of maturity.

The default clause in the trust deed is not operative automatically upon the failure of the maker of the notes to pay the same or the interest thereon, but is merely permissive, and requires the affirmative action of the holder or holders of all the notes, not due by their terms, to make it available and operative. Barbour v. White, 37 Ill. 164; Brokaw v. Field, 33 Ill. App. 138; Marine Bank v. International Bank, 9 Wis. 47; 2 Jones on Mortgages, sec. 1182.

The rule that in the absence of an agréement to the contrary, notes are payable from the proceeds of the sale of mortgaged property in the order of their maturity, is predicated upon the fact that the holder of the note first maturing may foreclose upon non-payment without waiting for the succeeding notes to mature. Sargent v. Howe, 21 Ill. 148; Gardner v. Deiderichs, 41 Ill. 158. In the case last cited it was said: “The power to do this implies a priority of lien in the notes first falling due.”

When the notes and trust deeds here involved were executed it may reasonably be presumed that the parties intended that the several notes would be paid at maturity. This was the contract, and we perceive nothing in the default clause which evidences a contrary intention. The provision whereby the holders of the notes were authorized to declare the notes to be due before their maturity by their terms only became operative in the event that the mortgagor and maker of the notes failed to comply with his contract.

Nothwithstanding the fact that the mortgages involved contained default clauses, some of which were operative automatically without any election by the holders of the notes, the pro tanto rule was announced and adhered to in the following cases: Gardner v. Diederichs, supra; Koester v. Burke, 81 Ill. 436; Hurck v. Erskine, 45 Mo. 484; Marine Bank v. International Bank, supra; Leavitt v. Reynolds, 79 Iowa, 348; Horn v. Bennett, 135 Ind. 158. In 2 Jones on Mortgages, sec. 1699, it is said: “This rule of priority according to maturity is not affected by a provision in the mortgage whereby all the notes become due upon any default.” See also 27 Cyc. 1306, and 20 Am. & Eng. Enc. of Law, 1049.

The clause in the mortgage providing for the distribution of the proceeds of a sale of the premises contains no intimation that such distribution shall be made otherwise than the law directs in the absence of a special agreement to the contrary. The case of Humphreys v. Morton, 100 Ill. 592, cited by appellees, is not in point. In that case the court adhered to the pro tanto rule; but held it to be inapplicable because the bonds there involved matured simultaneously.

The fact that the trust deed was given to secure the unpaid balance of purchase money furnishes no reason for the application of the pro rata rule against the appellant which holds one of the notes, the transfer of which carried the mortgage security as an incident and vested in appellant the right to foreclose the same for non-payment of its note at maturity without waiting for the notes, payable three years after date, to mature, which consideration forms the basis of the enforcement of this pro tanto rule. The pro tanto rule was enforced in Vansant v. Allmon, 23 Ill. 30, and Flower v. Elwood, 66 Ill. 438, where purchase money mortgages were involved.

The exceptions filed by the appellees to the master’s report finding that appellant, Chicago Title and Trust Company, was entitled to priority of payment of its note maturing two years after date as against the notes held by appellees maturing three years after date, were improperly sustained by the chancellor. The other question raised by appellant is involved in the cross errors assigned by appellee Brachvogel, and will be disposed of in that connection.

The cross errors assigned by appellee, Christiana Brachvogel, present the question of her right, by virtue of the transfer to her by Bernard Kuppenheimer of the note for $3,491.71 payable three years after date, to preference or priority as against the two-fifths interest in the two notes, maturing three years after date, which appellees acquired as legatees of Bernard Kuppenheimer.

We are of the opinion that both upon reason and authority the cross errors are well assigned.

In Pomeroy’s Eq. Juris., sec. 1203, the rule is stated as follows:

“When the mortgagee assigns one or more of the notes, and retains the remainder of the series, it is generally held that the assignee is entitled to priority of lien as against the mortgagee, with respect to the note or notes so transferred; and this rule operates without regard to the order in which the notes held by the two parties mature. ’ ’

The reason for the rule is there stated thus:

‘‘The mortgagee having transferred the note and received the consideration therefor,, it would be inequitable in him to deprive the assignee of any part of its value, by insisting upon a priority or even an equality of right in sharing the insufficient proceeds.”

See also 27 Cyc. 1304; 20 Am. & Eng. Enc. of Law, 1039; 2 Jones on Mortgages, sec. 1701.

In Knight v. Ray, 75 Ala. 383, Knight, the mortgagee, held three notes secured by mortgage, and transferred one of the notes to Mrs. Ray, retaining the other two. The court said:

“While the notes remained the property of Knight, the mortgaged lands were equally bound for the payment of egieh. When, however, Knight traded and transferred one of the notes to Mrs. Ray, retaining the others, although the transfer was by mere delivery, he clothed her with the right to be first paid out of the mortgaged property. ’ ’

Substantially the same conclusion was arrived at in Stevenson v. Black, 1 N. J. Eq. 338; McClintic v. Wise’s Admrs., 25 Grat. (Va.) 448; Parkhurst v. Watertown Steam Eng. Co., 107 Ind. 594; Salzman v. His Creditors, 2 Robinson, (La.) 241; Brewer v. Atkeison, 121 Ala. 410; Barkdull v. Herwig, 30 La. Ann. 618; Anderson v. Sharp, 44 Ohio St. 260.

The precise question here involved does not appear to have been heretofore presented for determination to the courts of review in this state.

In Walker v. Dement, 42 Ill. 272, it was said:

"We regard the proposition as fully settled and firmly established, that, as between the parties, the mortgagee may assign any of a series of notes, secured by mortgage, and by agreement give a prior equity or lien on the mortgaged premises for their payment out of the fund, in preference to those he retains. And we regard the rule as equally well established that all persons .taking the notes thus retained, with notice of the agreement for the priority of lien given to the others, are as fully bound by that preference as are the parties to the contract. It is a matter about which parties may legally contract, and when they do so, it will be upheld and enforced precisely like other lawful agreements.”

Counsel for appellees rely upon the language quoted as indicating an assumption by the court that an express agreement between the mortgagee and his assignee that the latter should have a prior lien was necessary to bring about that result. In the Walker case the contest was between different assignees of the mortgagee, and the court was not called upon to consider and determine the question here involved between a mortgagee and a transferee for value of one of the notes secured by the mortgage. The equitable principle invoked in this case was not there considered. Humphreys v. Morton, 100 Ill. 592, also involved a contest between the assignees of certain bonds secured by a mortgage, and is not in point.

While the master in his report found that appellant was entitled to priority of payment of its note maturing two years after date as against notes held by appellees maturing three years after date, under the pro tanto rule, he made no specific finding as to the claim of appellant to a preference against the two-fifths interest in the notes maturing two years after date held by appellees as legatees of Bernard Kuppenheimer, by virtue of the fact that said note was transferred to appellant by said Bernard Kuppenheimer. The report of the master, however, finds and designates the order of the liens of the several claims and the order in which the proceeds of a sale of the property should be applied in payment of such liens, which finding in so far as it relates to the note held by appellant is, in effect/ that it should share pro rata with the notes maturing two years after date. This finding necessarily operated to disallow the claim of appellant for a preference upon the ground stated. Appellant filed no objections and exceptions to said report of the master, and his failure to find therein the facts necessary to the consideration and determination of the claim of appellant to a preference upon that ground, and such report must be held conclusive against it as to the findings of fact. Matthews v. Whitethorn, 220 Ill. 36.

The decree of the Circuit Court will be reversed and the cause remanded with directions to enter a decree overruling the exceptions filed by appellees to the master’s report and sustaining the second exception filed by Christiana Braehvogel to said report, and also directing the master to make payment out of the proceeds of a sale of said property in the order, as follows :

First, the costs of suit, including solicitor’s fees of the complainants and the cross complainants; second, the amount advanced by the respective parties for taxes and tax sale redemptions, with interest thereon; third, to pay the amount due upon the notes maturing •two years after date with interest thereon; fourth, to pay to the defendant Christiana Brachvogel the amount due on her note, with interest thereon, and to the complainants three-fifths of the amount due on their notes maturing three years after date, with interest thereon, and in case the proceeds of sale are insufficient to pay the same in full to apply said proceeds in satisfaction of the same pro rata, and fifth, to pay to complainants the balance (two-fifths) of their notes maturing three years after date with interest.

Reversed and remanded with directions.


text:
    T. Buettner & Co., Defendant in Error, v. Moses Samuels, Plaintiff in Error.
    Gen. No. 15,786.

      Sales—what justifies rescission. If an entire contract be made to purchase and sell a lot of merchandise, a rescission is justified if the delivery made does not conform to the articles purchased.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed October 4, 1911.
    Benjamin Samuels, for plaintiff in error.

      Hiner, Bunch & Latimer, for defendant in error; Harry F. Hamlin, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff in error prosecutes this writ of error to reverse a judgment against him in favor of defendant in error for $112.35 entered in the Municipal Court upon a finding by the court.

The certified statement of the evidence discloses that in July, 1908, plaintiff in error observed in the place of business of defendant in error a number of discarded samples of goods heaped upon a table; that in response to an inquiry by plaintiff in error as to the price of the entire lot the agent of defendant in error offered to sell the same for $100, and at the same time stated to plaintiff in error that all the goods were not on the table, but there were some in boxes; that plaintiff in error said he did not desire to buy the goods in bulk for a lump price and requested defendant in error to inventory the same; that thereafter the greater part of the goods were inventoried in lots according to kind and price, and plaintiff in error again examined the same together with the inventory; that the inventory disclosed the number and price of goods in each lot, save lot 22, as to which the agent of defendant in error said it would not run in quantity much beyond the other lots, and further that there were still some goods in the original boxes, which when finally checked over might run a few more or less than was stated in the inventory memorandum; that plaintiff in error said that would he satisfactory, as he would only be paying for what he received, and directed the goods to he sent to him; that the price of the goods contained in lots 22, 47 and 49 as shipped considerably exceeded in quantity the quantity indicated in the inventory memorandum; that plaintiff in error refused to accept the goods and returned them to defendant in error, who refused to receive the same; that defendant in error would not have sold to plaintiff in error a portion only of the goods invoiced.

The only question presented for our determination is whether under the evidence the contract for the purchase of the goods was entire as to all the goods involved, or whether the transaction constituted separate contracts for the purchase and sale of each of the 52 lots into which the goods were divided. If the transaction be held to constitute an entire contract, as is contended by plaintiff in error, the judgment must be reversed, because of the much more than trifling variation between the quantity of the goods in the inventory memorandum, which was the basis of the purchase and sale, and the quantity of goods actually shipped as per invoice. Tilden v. Rosenthal, 41 Ill. 385; City of Chicago v. Galpin, 183 Ill. 399.

In Morris v. Wibaux, 159 Ill. 627, it was held that the entirety of a contract depends upon the intention of the parties and not upon the divisibility of the subject-matter. It was evidently the intention of the plaintiff in error to purchase all of the goods designated as discarded samples, and the agent of the defendant in error testified that he would not have sold to plaintiff in error a portion only of the goods. The contract of purchase and sale must be held to have been entire.

In Rothchild v. Wise, 81 Ill. App. 95, relied upon by defendant in error, a contract for the purchase and sale of certain “lots” of hats was held to be divisible, but it was there expressly found, that there was nothing to indicate that the price of the hats in any one “lot” was in any way influenced by the price of the hats in any other “lot,” or that their sale depended upon the sale of hats from other “lots.”

The judgment of the Municipal Court will be reversed with findings of fact, that the contract was entire and not divisible, and that plaintiff in error was justified in rescinding the contract in whole.

Judgment reversed with findings of fact.