text:
    Mellish-Hayward Company, Defendant in Error, v. R. Haas Electric & Manufacturing Company, Plaintiff in Error.
    Gen. No. 17,633.
    1. Appeals and errors—conflicting evidence. The court on appeal or writ of error will not disturb finding of trial court on conflicting evidence, unless manifestly against weight of evidence.
    2. Appeals and errors—statute of frauds. Question whether an oral promise to pay for work and materials after the same were furnished is void under the statute of frauds as being a promise to pay the debt of another, must be raised in trial court and cannot be raised for first time by writ of error or appeal.
    Error to the Municipal Court of Chicago, the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Alonzo Hopp and Bulkley, Gray & More, for plaintiff in error.
    Maddock & Jappe, for defendant in error.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

A suit was begun in the Municipal Court by defendant in error to recover $203.18 for work and materials furnished by it to plaintiff in error on a contract. Plaintiff in error, by its affidavit of merits, as to $111.97 of the claim, says it did not contract with defendant in error for the labor or materials in question or order the same from it. The case was tried by the court without a jury. The court found the issues for defendant in error, assessed its damages at the full amount of the claim and entered judgment therefor.

Plaintiff in error asks that this judgment be reversed and the cause remanded with directions to the Municipal Court to enter judgment for the excess of the claim over $111.97 for two reasons, first, because it did not contract for the work and materials composing that particular part of the claim before the same was furnished; and, second, because the promise testified to by the witnesses for defendant in error as having been made after the samé were furnished was and is void, under the statute of frauds, as being an oral promise to pay the debt of another.

As to the first contention, if the testimony of defendant in error is to be believed the items of work and labor composing the $111.97 were furnished at the instance and request of plaintiff in error and were charged to it when the same were furnished. While this testimony was contradicted, it was for the trial court to determine the weight of the evidence and the credibility of the witnesses, and this court will not disturb the finding, unless it was manifestly against the weight of the evidence. This we are not prepared to do in this case. Whether or not there was an original undertaking on the part of plaintiff in error to pay for these items, it is practically conceded in the argument that after the same were furnished, it did promise defendant to pay for the same. While this promise was not in writing, it is binding, unless the defense of the statute of frauds is interposed in the trial court.

The question whether this contract was void under the statute of frauds was in no way raised before, or submitted to the trial court and cannot be raised in this court for the first time hy writ of error or on appeal. Lanser v. Fidler, 158 Ill. App. 94; Niedner v. Friedrich, 69 Ill. App. 622; Hodges v. Bankers’ Surety Co., 152 Ill. App. 372; Berkowsky v. Viall, 66 Ill. App. 349; Chicago Attachment Co. v. Davis Sewing Machine Co., 142 Ill. 171.

The judgment of the Municipal Court is, therefore, affirmed.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Tony Perca, Plaintiff in Error.
    Gen. No. 19,132.
    1. Criminal law—when defects in information are waived. Defects in an information that do not go to the real merits of the case on the question of the guilt or innocence of the accused are considered waived after judgment, when the sufficiency of the information is not questioned in the trial court.
    2. Indictments and informations—when defects may be cured. Defects in an information which do not go to the merits of the question of guilt or innocence may be cured by amendment at the trial.
    3. Criminal law—where information is not verified. Where an information charging defendant with a misdemeanor is not verified and no objection is made at the trial, the defect is waived.
    4. Criminal law—failure to comply with section 27 of the Municipal Court Act. An irregularity in filing an information without complying with section 27 of the Municipal Court Act is held to be waived when raised after trial and judgment.
    Error to the Municipal Court of Chicago; the Hon. John A. Mahoney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 30, 1913.

      Benjamin E. Cohen and William A. Cunnea, for plaintiff in error; H. J. Rosenberg, of counsel.
    Maclay Hoynb, for defendant in error; Zach Hoeheimer, of counsel.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

The record in this case shows that on December 16, 1912, one Benjamin Cohen presented to one of the judges of the Municipal Court an information charging plaintiff in error with a misdemeanor; that such judge examined the information and the person presenting the same and heard evidence theron and being-satisfied that there was a probable cause for filing the same ordered that leave be granted to file it. The information so presented and to file which leave was granted was signed by Jeremiah Kennelly. The usual blank oath to be filled out and signed by the informant was not filled out or signed, but the jurat below it was filled out and signed by the judge who granted leave to file the information. A criminal capias was then issued and plaintiff in error was brought into court and entered into a recognizance in the usual form. The case was once postponed on the motion of plaintiff in error and once by his consent. Plaintiff in error pleaded not guilty and filed his written waiver of trial by jury and his consent that the cause be submitted to the court for trial without a jury. The cause was tried on December 31, 1912, resulting in a finding that plaintiff in error was- guilty as charged in the information. No motion to set aside the finding or for a new trial or in arrest of judgment was made and sentence was pronounced on the finding. The sufficiency or formality of the information was in no way challenged in the Municipal Court.

This cause is brought here by writ of error. The reasons urged why the judgment should be reversed are, first, that leave to file the information was not given to Kennelly who signed the information; and, second, that the information was not verified by any one. The defects pointed out do not go to the merits of the question of the guilt or innocence of plaintiff in error. If the same had been called to the attention of the court or the state before or at the trial the information could have been amended and the defects cured. Long v. People, 135 Ill. 435; Truitt v. People, 88 Ill. 518.

Defects in an information that do not go to the real merits of the case on the question of the guilt or innocence of the accused are considered waived after judgment, when the sufficiency of the information is not questioned in the trial court. People v. Greenberg, 172 Ill. App. 360; People v. Conboy, 178 Ill. App. 90; People v. Zlotincke, 152 Ill. App. 363; People v. England, 170 Ill. App. 587; U. S. v. Smith, 17 Fed. 510; Aderhold v. Mayor of Anniston, 99 Ala. 521; Commonwealth v. Gavin, 148 Mass. 449. The insufficiency of a complaint or information because not verified, as required by statute, has been held to be waived after judgment. U. S. v. Smith, supra; People v. Zlotincke, supra. The irregularity in filing the information without -first complying with that part of section 27 of the Municipal Court Act requiring that before an information by any person other than the Attorney General or State’s Attorney can be filed, one of the judges of the Municipal Court shall examine the same “and satisfy himself that there is probable cause for filing the same, and so endorse the same” has been held to be waived, when first raised after trial and judgment. People v. England, supra. Plaintiff in error can not he heard to complain in this court for the first time of the claimed irregularities in the information and the filing of the same. Not having in any way challenged, in the trial court the sufficiency of the information, the supposed defects are waived.

In the cases cited and relied on by plaintiff in error the defects were appropriately challenged in the trial court. Those cases are, therefore, not in point here.

The judgment is affirmed.

Judgment affirmed.


text:
    Samuel A. Corn, Appellee, v. Harry Greenberg et al., on Appeal of Harry Greenberg, Appellant.
    Gen. No. 19,530.
    1. Appeals and errors—right to appeal from interlocutory injunction. Where a creditor’s bill is filed against defendant, a judgment debtor, and an interlocutory injunction is granted restraining certain parties, joined as defendants, from paying over to anyone money due the principal defendant, the principal defendant may appeal from the order.
    2. Appeals and errors—section 133 of Practice Act. The right to appeal under section 123 of the Practice Act is not limited to any particular party.
    3. Appeals and errors—under section 91 of Practice Act. Under section 91 of the Practice Act all parties to the suit whose interests have been prejudicially affected by final judgment, order or decree have the right to appeal.
    4. Appeals and Errors—constitutionality of statutes. The question whether See. 123, Ch. 110, B. S. is constitutional cannot be determined by Appellate Court.
    5. Creditor’s suit—when lies. By statute and by common law a creditor’s bill will lie when a judgment has been obtained, an execution duly issued and returned nulla bona.

    6. Creditor’s suit—jurisdiction. A judgment in order to be the basis of a creditor’s bill must be one in the same jurisdiction as the court in which the creditor’s bill is filed.
    7. Creditor’s suit—in circuit court on judgment obtained in municipal court. A creditor’s bill may be filed in the circuit court on a judgment obtained in the municipal court.
    8. Creditor’s suit—adequate remedy at law. A creditor’s bill cannot be maintained where there is an adequate remedy at law.
    9. Creditor’s suit—presumption raised by return of execution. The return of an execution unsatisfied is sufficient to raise the presumption that all legal means for collection have been exhausted.

      10. Creditor’s suit—when execution need, not be issued to sheriff. Where a creditors’s bill is filed in the circuit court on a judgment of the municipal court and the bailiff of the municipal court has returned the execution unsatisfied, there being nothing to show that the debtor has property in Cook county outside of Chicago, the issuance of an execution to the sheriff of Cook county and return by him nulla bona is not necessary.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 30, 1913.
    Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell and Nathaniel Rubinkam, of counsel.
    Oscar M. Wolfe, for appellee.
   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court allowing an interlocutory injunction without notice on a verified creditor’s bill.

It is alleged in the bill that the complainant procured a judgment in the Municipal Court against Harry Greenberg, Ed L. Greenberg and Jacob C. Greenberg, as partners, for $450, on which had been paid $177.50; that there was still due thereon, including interest and costs, $330; that three executions had been issued on that judgment and delivered to the bailiff of the Municipal Court to execute; that two of such executions had been returned by that bailiff nulla bona as to the unpaid portion of the judgment, and that the third and last execution was then still in the hands' of the bailiff wholly unsatisfied; that the parties above named are no longer partners; that they are all residents of New York City and have no property in this state, known to the complainant, subject to execution, but that Samuel Lipshitz and William Turner, partners trading as Lipshitz & Turner, and Lundin & Company, a corporation, all of Chicago, are indebted to appellant, Harry Greenberg, in some amount not known. The relief prayed is that the amount due from Lipshitz & Turner and from Lundin & Co. to appellant be ascertained and that they be ordered to turn over to the bailiff of the Municipal Court of the amount so found due sufficient to pay the unpaid balance of the judgment, and that pending the final decree they be ordered to retain and be restrained from paying over to any one any money so found to be due appellant. Harry Greenberg, the appellant, and Ed L. Greenberg, Jacob C. Greenberg, his former partners, Samuel Lipshitz and William Turner, copartners, and Lundin & Co., a corporation, are all made parties. The injunction was ordered, as prayed for. Harry Greenberg alone appealed. A motion by appellee to dismiss the appeal was taken with the case.

Two grounds are urged in support of the motion to dismiss the appeal. First, that no injunction order was entered against appellant and, therefore, he has no right to appeal; and, second, that the statute under which the appeal is taken is unconstitutional.

Section 123 of the Practice Act provides that an appeal may be taken from an interlocutory order granting an injunction to the Appellate Court of the district wherein is situated the court granting such order. The terms of that section are general and the right to appeal is not limited to any particular class of partisans. In this respect this section is not distinguishable from section 91 of the same act, by which the right to have final judgments, orders, and decrees reviewed on appeal or writ of error, is given. So far as we are aware, it has never been denied that section 91 gives to all the parties to the suit, whose interests have been prejudicially affected by a final judgment, order or decree the right to appeal. On the contrary, the right of such persons to appeal has been recognized in Mundt v. Glos, 231 Ill. 158, where the court said on page 163: “A party against whom no judgment is rendered or who is not aggrieved thereby cannot appeal or prosecute error. ’ ’

In Henkleman v. Peterson, 40 Ill. App. 540, this court-had under consideration the right of appeal from an interlocutory order granting an injunction, and it was said: “The order granting an injunction restraining the sheriff from paying to the appellants the proceeds of property sold under executions upon their judgments, injuriously affected the appellants and they had the right to appeal, though in form the injunction was not against them, nor had they as yet appeared in the cause. ’ ’

Appellant is a party to this suit. His interests have been prejudicially affected by having his debtors prohibited from paying to him what they owe him. We have no doubt of his right, under the terms of the statute referred to, to bring the cause to this court for review by appeal.

The question whether section 123, chapter 110, R. S., is constitutional is, as to this court, coram non judice. The jurisdiction of this court is expressly limited by the law creating it to certain cases in which a franchise, a freehold or the validity of a statute is not involved. If the means now provided by law are inadequate for the determination of the constitutionality of the particular statute under consideration, it is a question to be taken up with the legislature and not the courts.

The motion of appellee to dismiss the appeal is, therefore, denied.

By statute and by the common law a creditor’s bill will lie when a judgment has been obtained and an execution has been duly issued thereon and returned milla bona. Chapter 22, section 49, R. S.; Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9.

A judgment in order to be the basis of a creditor’s bill must be one in the same jurisdiction as the court in which the creditor’s bill is filed. Ladd v. Judson, 174 Ill. 344. A judgment in a foreign state or in a federal court will not support a creditor’s bill in the courts of this state. Steere v. Hoagland, 39 Ill. 264; Winslow v. Leland, 128 Ill. 304; see also exhaustive note to Ziska v. Ziska, 23 L. R. A. (N. S.) 1, 20 Okla. 634.

It is urged by appellant tnat as the judgment here relied on was obtained in the Municipal Court, the territorial jurisdiction of which is limited to the city of Chicago, and the bill was filed in the circuit court which has jurisdiction not only in the city of Chicago, but in the balance of Cook county, the judgment is not in the same jurisdiction, and that the bill cannot be maintained in the circuit court, at least not until an execution has been issued on such judgment and placed in the hands of the sheriff of Cook county. We think this is a misconception of the rule. The circuit court has jurisdiction in the entire territory where the Municipal Court has jurisdiction, and the fact that it has also jurisdiction in more territory does not constitute the territory included in the jurisdiction of the Municipal Court a foreign jurisdiction. In Alkire Grocery Co. v. Baker, 91 Fed. 79; Feidler v. Bartleson, 88 C. C. A. 194, 161 Fed. 30, and Wilkinson v. Yale, 6 McLean 16, Fed. Cas. No. 17,678, it is held that a judgment creditor in a state court who had sued out an execution and obtained a nulla bona return mig’ht file a creditor’s bill based thereon in the Circuit Court of the United States for the district comprising the county in which the judgment in the state court was rendered, and in Bowman v. Wilson, 64 Ill. App. 73, the action of' the circuit court of Green county in entertaining a bill in the nature of a creditor’s bill based on a judgment in the Superior Court of Cook county was upheld, although the precise question here under consideration was not there mooted.

The right of a court of equity to entertain a creditor’s bill depends upon the same principles as general equity jurisdiction to the extent that, if there is ar. adequate remedy at law, relief in equity cannot bo afforded. If the rules of the common law and the provisions of our statute requiring the obtaining of a judgment, the issuance of an execution and its return nulla bona have been complied with, the presumption is indulged in that all legal means for the collection of the debt have been exhausted. An execution issued from the court where the judgment is rendered, and delivered to the regular officer of that court, authorized to execute the same, and returned unsatisfied is sufficient, unless from facts shown a legal presumption arises, or the truth known to the creditor is, that the debtor has property in some other county in the state that would be subject to an execution that might be issued on such judgment to the sheriff of that other county, Durand & Co. v. Gray, Kingman & Collins, 129 Ill. 9. It has been held in this- state that an execution so issued on a judgment of a justice of the peace and returned unsatisfied is a sufficient compliance with the requirements of the law to show that all legal means have been exhausted. Ballentine v. Beall, 4 Ill. (3 Scam.) 203; Steere v. Hoagland, 39 Ill. 264; Thompson v. Yates, 61 Ill. App. 262.

There is nothing in this record to show or raise a presumption that appellant had any property in the state outside of the city of Chicago, or any reason why an execution should issue to any one other than- the bailiff of the Municipal Court. On the contrary, the bill affirmatively shows that there is no such property in this state known to appellee. Counsel for appellant has called our attention to the last clause of section 326 of the Municipal Court Act, and insists that that clause requires the issuance of an execution to the sheriff of Cook county, and a return thereof by him nulla bona before it can be held that all legal means have been exhausted to collect the judgment. That clause reads: “Executions against the lands and tenements, goods and chattels of the defendants, outside of the City of Chicago, shall be directed to the Sheriff, or in case he is disqualified from acting, to the Coroner of the county in which such lands and tenements, goods and chattels are situated.”

That section merely provides to whom an execution shall be directed when it is desired to reach property anywhere in the state outside of the limits of the city of Chicago, and has no more application to the sheriff of Cook county than to the sheriff of any other county in the state. It is not a requirement that an execution shall be issued to the sheriff of any county, except where property in that county is sought to be reached, and it is not necessary that one should be so issued unless there is some reason to believe there is property of the judgment debtor in the state outside of the city of Chicago on which such execution might be levied. The bill in this case sufficiently shows that all legal means have been exhausted to collect the judgment and shows a state of facts warranting equitable relief.

The bill shows that Lipshitz & Turner and Lundin & Company had acknowledged their indebtedness to appellant and had expressed their desire and present intention of paying the same and that appellee fears that they will so pay appellant unless restrained by injunction. The fears of appellee without facts showing that they were well grounded would not be sufficient to warrant an order for an injunction, without notice, but we think the facts stated fully warranted the fear expressed.

The circuit court committed no error in entering the order for the interlocutory injunction.

The order appealed from is, therefore, affirmed.

Order affirmed.


author: Mr. Justice Baume

text:
    C. A. Zickert, Defendant in Error, v. Times Square Automobile Company, Plaintiff in Error.
    Gen. No. 17,176.
    1. Sales—fraud. In an action brought in municipal court against an automobile company by a purchaser of an automobile to recover back money paid and damages for breach of contract, held, that testimony of purchaser tending to establish fraud on part of company in inducing purchaser to sign contract should not be admitted when no reference to Buch fraud was contained in the statement of claim and that the evidence admitted was insufficient to establish such fraud.
    2. Sales—warranty. Where there is an express provision in a written contract of sale that no representations, warranties or conditions other than those appearing therein are binding on either party thereto, oral testimony tending to show warranty is inadmissible.
    3. Evidence—parol. When an instrument is partly a receipt and partly a contract, the^part constituting the contract cannot be contradicted or varied by parol evidence.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed with finding of facts.
    Opinion filed June 30, 1913.
    E. S. Hartman, for plaintiff in error.
    Burns & Longenecker, for defendant in error.
   Mr. Justice Baume

delivered. the opinion of the court.

This writ of error is prosecuted to reverse a judgment for $653.70 against plaintiff in error recovered upon the verdict of a jury in the Municipal Court.

The statement of claim is, first, for the recovery of $600 paid plaintiff in error June 15,1910, fór one automobile and certain accessories which plaintiff in error agreed to deliver to (jefendant in error at Beloit, Wis-cousin, without expense to defendant in error, within one day thereafter, which agreement plaintiff in error neglected and refused to perform and which agreement was one of the considerations for the payment of said $600; second, for breach of warranty in that said automobile was warranted to be in good working order and satisfactory working condition, and plaintiff in error agreed to return the purchase price thereof to defendant in error should said automobile fail in those respects, and that said automobile was not in good working order and was not satisfactory to defendant in error as warranted; third, for certain designated additional accessories purchased of plaintiff in error at its request on June 23,1910, amounting to $43, which were to be delivered to defendant in error at Beloit, at the time said automobile was to be delivered, and which such accessories were never delivered at Beloit; fourth, for legal interest on said $600 from June 15, 1910, and on said $43 from June 23, 1910, together with damages for loss of time and money expended and laid out while waiting for plaintiff in error to carry out its agreement, and other unliquidated damages sustained by reason of such breach of contract.

On June 15, 1910, defendant in error, accompanied by his son and brother, all residents of Beloit, Wisconsin, went to the establishment of plaintiff in error in Chicago for the purpose of inspecting its stock of second hand automobiles with a view to purchasing a machine. Defendant in error selected a second hand Winton touring ear with certain accessories and paid therefor to plaintiff in error the agreed price of $600. At the same time the cashier of plaintiff in error prepared a statement containing the name and address of defendant in error, a description of the articles purchased and the agreed price therefor, which statement was stamped, “Paid.” Following such statement and upon the same sheet of paper is printed the following: “This instrument indicates the property purchased from the Times Square Automobile Company, by the undersigned vendee. It is the complete and entire contract between the parties, and no representations, warranties or conditions other than those appearing hereon will be binding upon either party.

“Delivery of the property above described is heréby asknowledged to have been made to the undersigned vendee at the place of business of said Times Square Automobile Company, Number 1332-34 Michigan Avenue, Chicago.”

This printed instrument or contract was then signed by defendant in error and by the cashier of plaintiff in error in duplicate and copies were retained by each of the parties. Defendant in error and his son were unable to operate the automobile and plaintiff in error, at the request of defendant in error, procured one Murphy, who was temporarily unemployed, to drive the automobile to Beloit, and defendant in error agreed to pay Murphy $12 for his services. On June 22nd defendant in. error was notified by plaintiff in error that the automobile would be in condition to be removed on the day following, and defendant in error, accompanied by his son, arrived in Chicago in the forenoon of June 23rd for the purpose of taking the automobile to Beloit. Upon his- arrival at the establishment of plaintiff in error, defendant in error was informed that all of the equipments had not yet been quite fully installed, but would be very soon. While waiting for the equipments to be installed defendant in error purchased from plaintiff in error certain other accessories, for which he paid $43, and which were then placed in the automobile. Early in the afternoon of the same day defendant in error, accompanied by his son and Murphy, left the establishment of plaintiff in error in the automobile for the purpose of driving to Beloit. The automobile was driven north on Michigan avenue to Jackson boulevard and thence west to a point near Center avenue, where the automobile was placed in a garage. During the trip the automobile stopped several times, but there is no competent evidence tending to show whether the stops were occasioned by some defect in the mechanism of the automobile or for some other reason. So far as the record discloses the automobile is still in the garage where it was placed by defendant in error. Neither the automobile nor any of the accessories purchased by defendant in error were returned to plaintiff in error and defendant in error disclaims any knowledge of their whereabouts or any interest therein.

Over the repeated objections of plaintiff in error defendant in error was permitted to show certain oral statements made by one of the salesmen employed by plaintiff in error to the effect that the automobile was a first class machine and that plaintiff in error would deliver it to defendant in error in Beloit and would furnish a man to run it there, and such statements are relied upon by defendant in error as establishing a warranty by plaintiff in error that the automobile was in good working order, and that plaintiff in error agreed to deliver the same at Beloit.

It was and is insisted by defendant in error that the instrument which was signed by the parties at the time the automobile was purchased was merely a receipt, and that as a receipt it was open to explanation by oral testimony. A written instrument may constitute both a receipt and a contract and in so far as it constitutes a contract it is governed by the law relating to written contracts. Andrus v. Mann, 92 Ill. 40, is direcly in point. It was there said: “It is the settled doctrine of this court, that when an instrument is partly a receipt and partly a contract, the part constituting the agreement of the parties cannot be thus contradicted or varied.”

There is no pretense that defendant in error did not in fact receive the identical articles of property purchased by him, as the same are described in the written instrument, and. apart from the acknowledgment therein by defendant in error that delivery óf the property was made to him in Chicago, it is conclusively established by the evidence that it was so made and accepted by defendant in error. True, it was contemplated that the automobile and accessories would be taken to Beloit, but it is uncontroverted that defendant in error came to Chicago to accomplish that purpose and that he agreed to pay a chauffeur, not in the employ of plaintiff in error, to drive the automobile to Beloit.

In the face of the express provision in the written contract of sale and purchase that no representations, warranties or conditions other than those appearing therein were binding on either party thereto, oral testimony tending to show a warranty was improperly admitted.

Notwithstanding the statement of claim contained no suggestion that the signature of defendant in error to the written instrument was procured by fraud, the court permitted defendant in error to introduce evidence, which it was claimed tended to establish such fraud.

Defendant in error testified that when he was asked to sign the instrument, he inquired: “What is this? ”; that Fielding, the cashier, replied: “It is nothing only to show what you are getting, your machine and your repairs with it, that is all”; that he did not have his glasses at the time and so took Fielding’s word for it and signed it; that he could read and write and could read the written portion of the instrument' without his glasses, but could not read the printed portion; that nothing was said about the machine by Fielding or himself when the paper was signed. This evidence comes far short of establishing such fraud in procuring the signature of defendant in error to the instrument, as would invalidate it.

It is uncontroverted that after defendant in error arrived at Beloit on June 15th, he read the instrument in whole and fully comprehended its provisions, and that when he returned to Chicago on June 23rd he made no suggestion or complaint that it did not express the precise and entire contract with plaintiff in error with reference to the purchase of the automobile. The subsequent conduct of defendant in error is wholly inconsistent with his claim that his signature to the instrument was procured by fraud.

The rule applicable here is stated in Grymes v. Sanders, 93 U. S. 55, and approved in Naugle v. Yerkes, 187 Ill. 358, as follows: “Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose and adhere to it. If he be silent and continue to treat the property as his own he will be held to have waived the objection, and will he conclusively hound by the contract as if the mistake or fraud had not occurred. He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted.”

The peremptory instruction tendered to the court by plaintiff in error at the close of the evidence should have been given to the jury.

The judgment of the Municipal Court is reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed ivith finding of facts.

Finding of facts: We find as ultimate facts that plaintiff in error did not agree to deliver the property involved to defendant in error at Beloit, Wisconsin; that it was agreed that said property should be delivered to defendant in error in Chicago and the same was so delivered; that plaintiff in error did not warrant the automobile in question to he in good working order and did not agree to return the purchase price therefor to defendant in error if the same was not in good working order or was not satisfactory to defendant in error after trial; that the signature of defendant in error to the contract in evidence was not procured by fraud.


text:
    In re Petition of George W. Kitterman, etc., Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 17,330.
    1. Executions—arrest. A writ of capias ad satisfaciendum will issue without the filing of the affidavit required in section 62 of the act entitled “Judgments, Decrees and Executions’’ where the judgment is recovered in an action in which malice is the gist of the action and is properly issued upon the order of the court in which such judgment is leeovered.
    2. Executions—insolvent debtors. Malice is the gist of an action of trespass vi et armis for an assault and battery and a person imprisoned under an execution on such judgment is not entitled to a discharge under the insolvent Debtors' Act.
    3. Executions—res adjudicata. The fact that the defendant arrested upon a capias ad satisfaciendum was acquitted by a jury in a criminal prosecution for assault is not res adjudicata upon the question of malice in the civil action.
    4. Executions—insolvent debtors. Appeals from final orders and judgments of county court in proceedings for discharge under Insolvent Debtors’ Act lie to the Appellate Court, section 26 of the act relating to insolvent' debtors in so far as it provides for appeal to Circuit Court is repealed by implication by section 8 of Appellate Court Act.
    5. Appeals and errors—constitutional questions. Question whether statute is unconstitutional and void held waived by appeal.
    Appeal from the County Court of Cook county; the Hon. William L. Pond, Judge, presiding.
    Heard in the Branch Appellate. Court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    William A. Adams, for appellant.
    Eugene C. 0 ’Reilly,r for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from an order of the county court refusing to discharge the appellant, George W. Kitterman, from imprisonment upon his application therefor under the provisions of the act relating to Insolvent Debtors.

A motion made by the judgment creditor to dismiss the appeal upon the ground that an appeal from an order of the county court in such a proceeding should be prosecuted to the circuit court, as provided in section 26 of the act relating to Insolvent Debtors, wa'S reserved by another branch of this court to be determined upon the final hearing. This question was directly involved in Groszglass v. Von Bergen, 220 Ill. 340, where it was held that section 26 of the Insolvent Debtors’ Act was repealed by implication by section 8 of the Appellate Court Act, and that appeals from final orders and judgments of the county court in proceedings for discharge under the Insolvent Debtors’ Act were properly taken to the Appellate Court. The motion to dismiss the appeal is, therefore, denied.

The execution against the body of appellant was issued upon a judgment recovered against him by one Thomas O’Connor for $2,000 in an action of trespass vi et armis for an assault and battery.

It must be regarded as settled law in this state that malice is the gist of such an action, and by express provision of section 2 of the act relating to Insolvent Debtors the provisions of said act are not available to effect the discharge of a person from imprisonment under execution issued upon a judgment recovered in an action of which malice was the gist. In re Murphy, 109 Ill. 31; In re Mullin, 118 Ill. 551; Masterson v. Furman, 89 Ill. App. 291; Solomon v. Buechele, 127 Ill. App. 420; Drygalski v. Thiele, 163 Ill. App. 290; In re Hinson, 162 Ill. App. 121.

It is insisted by appellant that the writ of capias ad satisfaciendum should have been quashed, because it appears that the same was issued without any affidavit having been filed therefor with the clerk of the Superior Court in conformity with the provisions of section 62 of the act entitled “Judgments, Decrees and Executions.” The requirements of said section 62 with reference to the filing by the judgment creditor, his agent or attorney, upon the return of an execution unsatisfied, of an affidavit stating that a demand has been made upon the debtor for the surrender of his estate for the satisfaction of such execution, that he verily believes such debtor has estate, not exempt from execution, which he unjustly refuses to surrender, etc., is not a prerequisite to the issuance of a writ of capias ad satisfaciendum, where the judgment is recovered in an action of which malice is the gist, but such writ is properly issued upon an order of the court in which such judgment is recovered.

The record discloses that prior to the recovery of the judgment against appellant in the civil action for damages he was acquitted by a jury in the criminal court in a criminal prosecution for assault, and it is urged that such judgment of acquittal in the criminal prosecution is res judicata upon the question of malice in the civil action.

O’Connor, the judgment creditor and the plaintiff in the civil action for damages, was neither a party nor a privy to the criminal prosecution against appellant, and the judgment of acquittal in such criminal prosecution is not res judicata upon the question of malice in the civil action. Corbley v. Wilson, 71 Ill. 209; McDonald v. Stark, 176 Ill. 456.

It is finally urged that sections 5 and 65 of chapter 77 of the act entitled “Judgments, Decrees and Executions,” are unconstitutional and void.

Appellant lias waived this question hy prosecuting his appeal to this court.

• There is no error in the record and the order is affirmed.

Order affirmed.


text:
    Mueller Bros. Art & Manufacturing Company, Appellee, v. Fulton Street Wholesale Market Company, Appellant.
    Gen. No. 17,410.
    1. Negligence—issues, proof and variance. Under a declaration alleging that defendant so negligently used and operated an ammonia tank and appurtenances that it exploded and the ammonia therein set fire to a building to plaintiff’s damage, evidence that the fire was caused by ammonia gas in solution with gas formed by mineral lubricating oils used in connection with such appurtenances is admissible.
    2. Evidence—conditions after accident. Where an issue is raised as to the condition of a valve on a discharge pipe at the time of an explosion, in the absence of proof that there had been no change in the condition of the valve from the time it was discovered after the explosion until it was seen by a witness, his testimony with respect to its condition is incompetent.
    3. Evidence—prior condition of apparatus. Upon an issue as to whether a discharge-pipe valve was closed at the time of a fire, it is not permissible for an engineer to detail the particulars of a circumstance which occurred some time prior to the fire, relative to his efforts to ascertain whether the valve was open or closed.

      4. Negligence—instructions on burden of proof. An instruction that if the jury find that the damage to plaintiff was caused by the explosion of an apparatus and that such apparatus was in charge of and under the control of the defendant or his servants, then the law presumes that defendant was negligent in the operation or control thereof unless defendant shows by a preponderance of evidence that such explosion and damage did not occur through its negligence or the negligence of its servants,.is erroneous.
    5. Negligence—presumption created by doctrine of res ipsa loquitur.
      The presumption created by the doctrine of res ipsa loquitur merely serves to make a prima facie case for the plaintiff and make it incumbent on the defendant to produce evidence sufficient to meet such prima facie case, and to overcome the presumption upon which it is predicated.
    6. Trial—production of explosive in court and offer to submit it to tests. In an action for damages caused by a fire resulting from the explosion of an ammonia tank, where there was no claim that the fire was occasioned by ammonia in liquid form, production of liquid ammonia in court and an offer by counsel to subject it to certain tests is improper and harmful.
    7. Appeals and errors—admission of testimony of witness at former trial. A party who fails to insist upon his objection to the admission in evidence of testimony of a witness given at a former trial, where the witness testifies at a subsequent trial, is in no position to complain on appeal.
    8. Appeals and errors—improprieties m examination of witnesses. Where counsel for both parties indulge in like improper methods in examining witnesses a court of review will not seriously consider the complaints of the defeated party regarding the use of such methods.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    Richberg & Richbbrg, for appellant; R. D. Stevenson, of counsel.
    Adler & Ledere®, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Mueller Bros. Art. & Mfg. Co., a corporation, brought suit in the Superior Court against the Fulton St. Wholesale Market' Company to recover damages by fire alleged to have been occasioned by the negligence of the defendant. A trial of the case resulted in a verdict and judgment against the defendant for $10,000, to reverse which judgment it prosecutes this appeal.

In certain premises owned by appellant, the second floor of which was occupied by appellee as a tenant, appellant operated an ice refrigerating system in the basement. This system consisted of an engine, boiler, ammonia tank, and the usual and necessary pipes, coils and appliances for refrigeration. The declaration contains four counts. The first count alleges that appellant kept in its building a certain receptacle or tank containing ammonia, with appurtenances and appliances thereto, which the appellant used in its business in said building; and thereupon it became and was the duty of appellant to keep said receptacle or tank and its appurtenances and appliances thereto in a good and safe condition and not to allow said receptacle or tank and its appurtenances and appliances thereto to become defective so as to injure the premises and property of appellee in said building; yet appellant, not regarding its duty in that behalf, negligently allowed said receptacle or tank and its appurtenances and appliances thereto to become unsafe and to remain in a bad condition and to allow a defect to exist therein, which said defect was known or should have been known to appellant at the time and place aforesaid; so that by reason of said negligence of appellant on March 27, 1903, said receptacle or tank exploded, and the ammonia in said receptacle or tank set fire to the aforesaid building and the premises and property of the appellee therein, etc.

The second count alleges that it was the duty of appellant to operate said receptacle or tank, with its appurtenances and appliances thereto, in a careful and skilled manner, so as not to injure the property and premises of appellee; yet appellant, not regarding its duty in that behalf, by its agents and servants, so negligently used said receptacle or tank, with its appurtenances and appliances thereto, that said receptacle or tank, containing ammonia as aforesaid, exploded, and said ammonia in said tank set fire to the aforesaid building, etc.

The third count alleges the employment by appellant of a negligent servant who so negligently operated the said tank and its appurtenances that the same exploded and set fire, etc.

The fourth count alleges that appellant kept on said premises a certain receptacle or tank containing ammonia, with appurtenances and appliances thereto, which appellant used in its business in said building; that said receptacle or tank containing ammonia with its appurtenances and appliances thereto was highly dangerous and that thereupon it became the duty of appellant to keep said receptacle or tank, with its appurtenances and appliances as aforesaid, safe so as not to injure the property and premises of appellee; yet appellant, not regarding its duty in that behalf, negligently allowed said dangerous receptacle or tank, with its appurtenances and appliances thereto, to explode and said dangerous contents to flow out and set fire, etc.

On the night of March 27, 1903, the building owned by appellant was destroyed by fire. Appellee occupied the second floor of the building as a tenant, where it manufactured picture frames and mouldings and framed and mounted pictures. The first floor of the building was divided into market stalls which were provided with refrigeration by appellant by means of an ammonia refrigerating system located and operated in the basement. The system consisted of a tank, which contained liquid ammonia, pipes and coils, two • compressors and a condenser. At about midnight a cylinder-head of one of the compressors was blown out or exploded and the ammonia in the system was thereby liberated. The evidence tends to show that immediately following the explosion or coincident with it the fire in question developed. No question is raised as to the amount of the damages sustained by appellee as a result of the fire.

It is contended by appellee that the fire was occasioned by the igniting from a gas jet or the furnace fire of the gases formed by the liberation of the ammonia; that there is evidence tending to show that, when the system was started in operation immediately before the explosion, the valve upon the discharge pipe leading from the compressor was negligently permitted to remain closed, or was then negligently closed. It is conceded that if the valve in the discharge pipe was closed when the system was in operation the cylinder-head in the compressor would doubtless be blown out by the pressure. It is contended by appellant that there is no competent evidence tending to show negligence with respect to the operation of the valve on the discharge pipe, and further that the fire in question could not have been occasioned by the ignition of liberated gases, because ammonia gases are not inflammable, but rather have a decided tendency to quench flame. As regards the explosion and the consequent liberation of the ammonia gases, appellee relies upon the applicability of the doctrine of res ipsa loquitur, and appellant does not seriously contend to the contrary. The refrigerating system was wholly within the control of appellant and the explosion was such as in the ordinary course of things does not occur, if those having the management of the system exercise proper care.

While a preponderance of the evidence tends to show that gas formed by the liberation of ammonia alone is not inflammable, there is evidence tending to show that ammonia gas in solution with gas formed by mineral lubricating oils such as are ordinarily and necessarily used in the operation of a refrigerating system, and such as were used in the operation of the system in question, is highly inflammable.

It is, however, insisted by appellant that proof of the presence of other gases in solution with ammonia gas was improperly admitted as constituting a variance from the allegations of the declaration, which, it is claimed, predicate a right of recovery for damages from a fire occasioned solely by the ignition of ammonia or ammonia gas following the explosion. The evidence tends to show that the fluid ammonia which is used in a refrigerating system and which is thereby converted into gaseous form, is, when so converted necessarily intermingled with the gases formed by the accompanying lubricating oils, and the general designation of the gas so produced by combination, as ammonia or ammonia gas, is sufficiently descriptive of the substance in question to permit the admission of evidence which, it is claimed, constituted a variance. The primary and principle element of the substance in question was ammonia, and appellee was not required to designate each constituent element of the substance by its appropriate scientific name, but might properly designate the substance by the name by which it was commonly known.

As the judgment must be reversed and the cause remanded for errors of law in the admission of evidence and in the giving of an improper instruction, we shall not enter into an extended discussion of the evidence adduced, or of the probative force of the same.

Appellant is not in a position to complain of the admission in evidence of the testimony of appellee’s witness, Hetzer, given on the former trial of the case. Hetzer was a witness for appellee upon the last trial and the admission of his entire testimony upon the former trial can not be justified, except upon the ground that appellant tacitly consented thereto. If appellant had insisted upon its objection to the admission of such testimony as evidence, instead of acquiescing in its admission, upon the condition that the entire testimony of the witness upon the former trial was admitted, the trial court would, doubtless, have sustained such objection.

One of the vital questions in the case was whether or not the valve upon the discharge pipe whs closed immediately prior to and at the time of the explosion. A day or two after the fire, the valve in question was taken out of the basement where it was covered by about three feet of water, but the man who then took out the valve was not produced as a witness by either party. While the testimony of the witness, John McCart, leaves it doubtful whether or not he was present when the valve was taken out of the water, it was hot improperly admitted, and the weight to he given to his testimony was primarily a question for the jury. In the absence of proof that there had been no charge in the condition of the valve from the time it was taken out of the water until it was seen by the witness, Arthur McClure, his testimony relative to the condition of the valve when he saw it was incompetent and should have been excluded.

The witness, McCart, who was formerly employed by appellant as an engineer, was permitted over the objection of appellant to detail the particulars of a circumstance which occurred some time prior to the fire in question relative to his efforts to ascertain whether the valve in the discharge pipe was open or closed. This evidence was incompetent and prejudicial to appellant and the objection thereto should have been sustained.

Complaint is made of the conduct of counsel for appellee in assuming in his examination of witnesses that certain other fires had been caused by the explosion of ammonia. In some of the instances to which reference is made no objections were interposed to the form of the question and counsel for both parties made frequent allusion to the explosion of refrigerating systems in other buildings, and sought therefrom to deduce inferences favorable to their respective contentions. Where counsel for both parties indulge in like improper methods a court of review is not disposed to seriously consider the complaints of the defeated party regarding the use of such methods. Much of the evidence relating to other fires was hearsay and otherwise incompetent.

There was no claim by appellee that the fire in question was occasioned by ammonia in liquid form and the production by appellee of liquid ammonia in court, and the offer by counsel for appellee to subject it to certain tests and experiments was improper and harmful to appellant.

At the instance of appellee the court gave to the jury the following instruction: “1. The court instructs the jury that if they find from the evidence that the damage to the plaintiff complained of was caused by the explosion of an apparatus, and that such apparatus was in charge of and under the control of the defendant or its servants, then the law presumes that the defendant was negligent in the operation or control of said apparatus unless the defendant shows by a preponderance of the evidence that such explosion and damage did not occur through its negligence or the negligence of Its servants.”

This instruction which assumes to state the law relative to the burden of proof in respect to the doctrine of res ipsa loquitur, as here involved, is clearly and prejudicially erroneous.

The presumption created by the doctrine of res ipsa loquitur, where this doctrine is applicable, merely serves to make a prima facie case for the plaintiff and makes it incumbent upon the defendant to produce evidence sufficient to meet such prima facie case, and to overcome the presumption upon which it is predicated. In Vischer v. Northwestern El. R. Co., 256 Ill. 572, it is said: “If there is no evidence to meet a prima facie case, it becomes conclusive and justifies a verdict, but if evidence is produced, then, on the whole case, the burden of proof is on the plaintiff to establish the averments of the declaration by a preponderance of the evidence.”

In requiring appellant to overcome the prima facie case by a preponderance of the evidence showing that the explosion and damage did not occur through its negligence, the instruction imposed a greater burden upon appellant than it was required to bear. Field v. French, 80 Ill. App. 78; Chicago Union Traction Co. v. Leonard, 126 Ill. App. 189.

For the reasons indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Elizabeth B. Slaughter, Appellee, v. Eudora Johnson, Appellant.
    Gen. No. 17,448.
    1. Libel and slander—evidence of financial worth of defendant. In an action for slander evidence of the financial condition of the defendant is admissible.
    2. Libel and slander—improper evidence and statements of counsel. Where plaintiff in a slander ease was charged with having maintained illicit relations with defendant’s brother, it is improper to permit plaintiff to show, either by evidence or the opening statement of her counsel, the existence of a marriage engagement between plaintiff and such brother, the objection of defendant thereto, that prior to the death of such brother defendant was dependent upon him for support, and that defendant had inherited her property from such brother; since such showing would have a tendency to improperly influence the jury to award damages to plaintiff.
    3. Libel and slander—right of plaintiff to depart from innuendo laid. Where the words “whore” and “prostitute” are alleged to have been spoken no innuendo is necessary, but if plaintiff elects to follow them by innuendoes averring that defendant meant and intended thereby to charge that plaintiff was a lewd, immoral and unchaste person and had been guilty of fornication, she cannot on the trial reject such meaning and claim that such words were meant and intended to charge her with being a common whore or public prostitute whose lewdness was promiscuous and mercenary.
    4. Libel and slander—admissibility of testimony of midwife. In an action by a woman charged with having been guilty of fornication, evidence of a midwife that plaintiff sought seclusion at her place on two or more occasions is competent.
    5. Libel and slander—admissibility of indictment of midwife for procuring abortion. Where plaintiff in a slander suit was charged with having committed fornication, though there is evidence to show that she became pregnant and sought seclusion with a midwife on several occasions, an instrument purporting to be an indictment of such midwife for procuring an abortion is inadmissible.
    6. Libel and slander—presumption of continuance of illicit relations. Where plaintiff in an action for slander is shown to have maintained illicit relations with a man for a number of years and it is shown that thereafter occasion, opportunity and an apparent disposition for a continuance of such relations existed, it will be presumed that such relations continued.
    7., Libel and slander—amount of damages. Where a woman waa charged with having been guilty of fornication, judgment for $8,000 is held to be excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    MoArdle & McAbdle, for appellant.
    Edward H. Morris, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

In an action in case for slander, brought by Elizabeth B. Slaughter against Eudora Johnson, the plaintifT recovered a verdict and judgment against defendant in the circuit court for $8,000, and this appeal followed.

The declaration contains three counts, the first of which was dismissed by plaintiff. The second count alleges that on, to-wit: September 7, 1907, "at, to-wit: Atlantic City, New Jersey,' * * # the defendant contriving, etc., in the presence and hearing of certain persons falsely and maliciously spoke and published of and concerning the plaintiff these other false, scandalous, malicious and defamatory words following, that is to say: “She” (meaning the plaintiff) “is my brother’s” (meaning the defendant’s brother), “kept woman;” “she” (meaning the plaintiff) “is a dirty, low, vulgar woman;” “she” (meaning the plaintiff) “is a woman without principle or character;” “she” (meaning the plaintiff) “is nothing but a dirty little whore;” “she” (meaning the plaintiff) “is my brother’s” (meaning defendant’s brother) “mistress;” meaning and intending thereby to charge that the plaintiff was a lewd, immoral person and had been and was guilty of fornication. The third count alleges that on, to-wit: September 30,1907, at, to-wit: Cook county, the defendant further contriving, etc., in the presence and hearing of the same persons, falsely and maliciously spoke and published of and concerning the plaintiff: “Lizzie (meaning the plaintiff) “is nothing but a harlot;” “she” (meaning the plaintiff) “is a kept woman;” “she” (meaning the plaintiff) “is kept by my brother,” “she” (meaning the plaintiff) “is my brother’s kept woman;” “he” (meaning defendant’s brother) “has been intimate with her” (meaning the plaintiff) “for five years;” “she” (meaning the plaintiff) “has been sleeping with my brother;” “she” (meaning the plaintiff) “is not and never will be married to my brother” (meaning the defendant’s brother); “but she” (meaning the plaintiff) “has been intimate with him” (meaning the defendant’s brother); “she” (meaning the plaintiff) “is a prostitute;” “she” (meaning the plaintiff) “is a low woman;” “she” (meaning the plaintiff) is kept by my brother;” “she” (meaning the plaintiff) “is a dissipated woman, and has been kept by my brother;” “my brother” (meaning the defendant’s brother) “keeps her” (meaning the plaintiff); “she” (meaning the plaintiff) “has acted the ‘whore;’ ” “she” (meaning the plaintiff) “is my brother’s mistress;” “she” (meaning the plaintiff) “is a loose, low woman;” “she (meaning the plaintiff) “is a dissipated, low, vulgar woman;” “my brother has been keeping her ’ ’ (meaning plaintiff) ‘ ‘ for years; ” “ she ’ ’ (meaning the plaintiff) “is the cause of our family being ‘unhappy;’ ” “she” (meaning the plaintiff) “is my brother’s kept woman;” meaning and intending thereby to charge that the plaintiff was an unchaste woman and had been and was guilty of fornication, etc.

Defendant pleaded the general issue and a special plea of justification, which alleges that from 1902 to September, 1907, plaintiff was kept, maintained and supported by one John V. Johnson, and during said period at Chicago and elsewhere said Johnson and plaintiff committed fornication and were intimate with each other.

At the close of the evidence for plaintiff, after it became manifest that illicit relations had existed between the plaintiff and John Y. Johnson, counsel for plaintiff announced that he would rely solely upon the slanderous words alleged to have been spoken by defendant, to-wit: “She” (meaning the plaintiff) “is nothing but a dirty, little whore; and she (meaning the plaintiff) is a prostitute.”

All of the persons concerned belong to the Ethiopian race.

The evidence introduced at the trial tends to show that in 1901, the plaintiff, who was then about twenty-one years of age and resided in Lexington, Ky., formed the acquaintance of John Y. Johnson, a brother of the defendant, who resided in Chicago, where he conducted a saloon and gambling house, in which business he accumulated a fortune; that in 1902, the plaintiff removed to Louisville, Ky., and in 1903 she removed to Chicago, where she continued to reside up to the time of the trial; that beginning in 1902 or 1903, the relations between plaintiff and Johnson became illicit and .so continued until at or shortly prior to Johnson’s death in September, 1907; that upon at least two occasions in 1903 and 1904 the plaintiff’s relations with Johnson resulted in her becoming pregnant and her seeking seclusion in an establishment conducted by a midwife; that in July, 1907, while Johnson was a guest at a hotel in Atlantic City, N. J., he was taken ill and was visited there by the plaintiff; that in August, 1907, when the defendant and her mother went to Atlantic City to attend Johnson during his illness, they found the plaintiff occupying a room at the same hotel; that shortly after defendant and her mother arrived in Atlantic City the latter was taken ill; that when Johnson had apparently partially recovered from his illness he left Atlantic City for the purpose of arranging for the return of defendant and his mother to Chicago, but was again taken suddenly ill in New York City, where he died; that the alleged slanderous statements of and concerning the plaintiff were made by defendant to one Julia Whitted, a chambermaid in the hotel in Atlantic City when defendant and her mother arrived there and saw the plaintiff in attendance upon Johnson, and again immediately after the defendant had been notified of the death of Johnson ; that the first conversation between defendant and Julia Whitted was heard by the plaintiff.

Over the objection of defendant the plaintiff was permitted to show that a marriage engagement was entered into between Johnson and herself in 1902, and that a time for the performance of the marriage ceremony had been fixed in each of the years 1903, 1905 and 1907. Plaintiff was properly permitted to show the financial worth of the defendant, but she was further permitted to show, over the objection of the defendant, that the defendant had inherited her property from Johnson, her brother.

In his opening statement to the jury counsel for plaintiff was permitted to state that a marriage engagement existed between the plaintiff and Johnson; that the defendant and her mother objected to and sought to prevent their marriage; that during his lifetime Johnson, out of his abundant means, supported the defendant and her mother and provided them with all the necessities and luxuries of life; that up to the time Johnson became acquainted with and courted the plaintiff all of his property stood in the name of the defendant, and that thereafter when defendant and her mother objected to his marriage with the plaintiff, Johnson insisted that the defendant should turn over to him all the property belonging to him.

These facts, if true, were not responsive to any issue in the case and were manifestly impressed upon the jury for the purpose of improperly influencing them to award to the plaintiff a substantial portion of Johnson’s estate in reparation of the alleged wrong inflicted upon her by the defendant in opposing her marriage to Johnson.

The words “whore” and “prostitute,” applied to a single woman, are equivalent to charging her with having been guilty of fornication, and are actionable per se without colloquium or innuendo, and the innuendo may be rejected as surplusage. Schmisseur v. Kreilich, 92 Ill. 347.

True, where words actionable per se are alleged to have been spoken no innuendo is necessary, but where the plaintiff elects by innuendo to ascribe a certain meaning to the words, complained of such meaning becomes a part of the issue, and he cannot on the trial reject such meaning and resort to another. Strader v. Snyder, 67 Ill. 404; Stowell v. Beagle, 57 Ill. 97.

In the case at bar, the innuendo in the second count of the declaration is, “meaning and intending thereby to charge that the plaintiff was a lewd, immoral person and had been and was guilty of fornication; ’ ’ and the innuendo in the third count of the declaration is, “meaning and intending thereby to charge that the plaintiff was an unchaste woman and had been and was guilty of fornication.”

Proof tha,t the plaintiff had sustained illicit sexual relations with Johnson prior to the speaking by the defendant of the words charged and relied upon as being slanderous would constitute a justification within the issue made by the innuendoes, and plaintiff was and is not at liberty to enlarge the issue by claiming that the said words were meant and intended to charge her with being a common whore or public prostitute,—one whose lewdness was promiscuous and mercenary. The case was, however, tried by both parties upon the theory that whether or not the words spoken charged the plaintiff simply with being or having been guilty of fornication with Johnson, or charged her with committing or having committed fornication promiscuously, were questions of fact for the jury.

Evidence offered by defendant to show that Mrs. Strue conducted the business of a midwife at the several places where the plaintiff remained for a time on two or more occasions, was competent and was properly admitted by the court. Defendant was not unduly restricted in making such proof.

What purported to be an indictment by the grand jury charging Mrs. Grillis, formerly Mrs. Strue, with abortion was offered in evidence by defendant and properly excluded. The indictment was manifestly incompetent as evidence and the offer of it as such was improper.

There is no pretense that there was any change in the relations existing between plaintiff and Johnson from 1902 up to September, 1907, when the slanderous words are alleged to have been spoken, except such as was necessarily induced by the serious illness of Johnson in August and September, 1907, and defendant having shown that illicit relations existed between plaintiff and Johnson from 1902 to 1905, and that, thereafter, occasion, opportunity and an apparent disposition for a continuance of such relations existed, defendant was entitled to the presumption that such relations .com tinued. The slanderous words charged and relied upon by plaintiff involved the substantial imputation that she had theretofore committed fornication, and not merely that she was committing fornication in 1907, or in September of that year, or when the words were spoken. Stowell v. Beagle, 57 Ill. 97.

The 1st, 2nd, 3rd and 4th instructions, given at the instance of plaintiff, are subject to the criticisms that they practically restrict defendant’s proof in support of her plea of justification to the times above stated. If the record was otherwise free from error, the amount awarded by the jury as damages is so grossly excessive, as to necessitate a reversal of the judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Louis O’Neill, Appellee, v. Lindsay Light Company, Appellant.
    Gen. No. 17,467.
    1. Trover and conversion—necessity of demand and refusal. Where persons are guilty of a wrongful conversion of property of which the possession is rightfully acquired, such conversion does not occur until a demand therefor and a refusal.
    2. Evidence—admissions of president binding on corporation. In conversion against a corporation declarations and admissions made by its president, not a party to the suit, on a former trial, in hip capacity as agent, are not admissible in evidence, unless a part of the res gestee and hence such statements made four years after the' controversy arose are not admissible.
    3. Trover and conversion—measure of damages. In trover for the wrongful conversion of manufacturing appliances and machinery, the measure of damages is the value of the property at the time of its conversion.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windbs, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    Rehearing denied July 24, 1913.
    Denis E. Sullivan, for appellant.
    Henry S. Wilcox, for appellee; Charles C. Spencer and Jesse Wilcox, of counsel.
   Mr. Justice Baume

delivered the opinion of the

court.

This is an action in trover instituted in the circuit court by Louis O’Neill against the Lindsay Light Company, a corporation, and Charles P. Lindsay, Jr., and George P. Gilman, Jr., copartners as Lindsay & Company. The last named defendants were dismissed out of the case and a trial by jury resulted in a verdict and judgment against the remaining defendant, Lindsay Light Company, for $3,875, to reverse which judgment this appeal is prosecuted.

For about a year prior to May, 1903, appellee had been engaged in the manufacture of knit gloves in the city of Chicago. On the last named date appellee associated himself with one, Jacob I. Robin, in the business of manufacturing mantles for gas lighting, and all of the knitting machines and other machinery and apparatus which belonged to appellee and had been used by him in the manufacture of gloves, and which was available for use in the manufacture of mantles, was contributed by appellee to the new business, which was to be known as the Robin Manufacturing Company. Robin contributed nothing to the business except his experience and the right to use certain patents. Other machinery and apparatus peculiarly adapted for use in the manufacture of mantles was contributed to the business and paid for by appellee. Appellee’s association in the business with Eobin continued until April 14,' 1904, when appellee retired from the business and sold the stock on hand, together with certain machinery, apparatus and property, specifically mentioned in an inventory which was then made, to Charles R. Lindsay, George P. Gilman and E. A. Williams, partners, doing business as Lindsay & Company. None of the property here involved was mentioned in said inventory, but the possession and use of said property was retained by said Lindsay & Company with the consent of appellee. Thereafter, Robin was admitted into the partnership and the business was conducted until June 30,1904, under the firm name of Robin Manufacturing Company, when it was incorporated under the same name. This incorporated company ceased to do business in the fall of 1904. In June, 1904, the partners composing the firm of Lindsay & Company incorporated as the Lindsay Light Company, which corporation thereafter absorbed the business formerly conducted by the Robin Manufacturing Company, and took possession of some portion or all of the machinery and property here involved.

Appellant claims that the property in question was purchased by Lindsay, Gilman and Williams from Robin sometime after appellee! withdrew from the business conducted by himself and Robin under the name of the Robin Manufacturing Company; that appellee and Robin were copartners having a joint interest in the business of the copartnership and in the machinery and property which ivas used in the conduct of said business; that if appellee and Robin were not such copartners as between themselves, the conduct of appellee was such as to make them copartners as to third parties. The determination of the several issues involved in these contentions was for the jury upon competent evidence.

If it be assumed that the property in question belonged to appellee and that appellant was guilty of a wrongful conversion of such property, such wrongful conversion did not occur until a demand therefor by appellee and refusal by appellant, because the possession of the property by appellant and its immediate predecessors was rightful as having been consented to and acquiesced in by appellee. The required demand was made by appellee upon appellant on September 14, 1905.

It is clear from the evidence that all of the property in question was not in existence when the demand was made, but that some portions of it had theretofore been lost, worn out by use, or sold as junk. There is no competent evidence tending to show what portion of the property not then in existence was wrongfully converted or by whom it was so wrongfully converted, whether by appellant or by its predecessors, the Robin Manufacturing Company, a copartnership, the corporation bearing the same name, or Lindsay & Company, a copartnership.

Upon the trial appellant called as a witness F. B. Stephens, a court reporter, who, upon a former trial of the case in 1909, had taken the testimony of Charles R. Lindsay, the president of appellant corporation, and over the objection of appellant said witness was permitted to read from his notes and transcript the testimony then given by Lindsay relative to the use and disposition by appellant of some of the property in question. Lindsay had previously been called as a witness by appellee, but was not examined upon the subject. The propriety of admitting his testimony upon the former trial was sought to be justified upon the ground that it amounted to, and should be treated as, an admission by the corporation, through him as its president, of an existing fact against interest.

Lindsay was not a party to the suit and no declaration or admission made by him in his capacity as agent of appellant was admissible in evidence, unless it formed a part of the res gestae. Michigan Cent. R. Co. v. Gougar, 55 Ill. 503; Jenks v. Burr, 56 Ill. 450; Chicago & E. I. R. Co. v. Keegan, 112 Ill. App. 338.

The statements embodied in the evidence of Lindsay upon the former trial were made at least four years after this controversy arose and Were not binding upon appellant. The evidence was incompetent and its admission was necessarily harmful to appellant.

The greater part of the property in question was purchased by appellee in 1903 and substantially the only evidence of its value that was adduced by him was predicated upon the cost price of the property. The measure of damages is the value of the property at the time of its conversion and no reason exists why appellee may not make proper proof of that value as near as may be. We are not impressed with the reasonableness of appellee’s contention that property of the character here involved would be increased rather than decreased in value by the use to which it was put. Conceding the right of appellee to recover in this case, we are fully persuaded that the damages awarded are excessive.

If the record were otherwise free from error, we should not be disposed, upon a consideration of the instructions as a series, to reverse the judgment for the alleged erroneous action of the court in giving and refusing certain instructions, but the instructions given at the instance of appellee are subject to the criticism that in the main they state mere abstract propositions of law. Certain instructions tendered by appellant and refused by the court were properly refused.

For the errors indicated the judgment is reversed and the cause remanded.

Beversed and remanded.


text:
    Mary Hogue, Appellee, v. Charles Hogue, Appellant.
    Gen. No. 17,553.
    Appeals and errors—when decree on a hill of review is interlocutory. A decree on a bill of review setting aside a former decree for the purpose of reviewing the same upon a rehearing is interlocutory and is not the subject of appeal.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Dismissed.
    Opinion filed June 30, 1913.
    Lewis Edward Dickinson, for appellant.
    No appearance for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

Appellee, Mary Hogue, filed her bill of review in the circuit court against the appellant, Charles Hogue, to set aside and review a former decree of said court, upon the ground of fraud. Appellant demurred to the bill. The demurrer was overruled and appellant having elected to abide his demurrer, the bill was taken as confessed and a decree was entered setting aside said former decree for the purpose of reviewing the same upon a rehearing. Appellant now seeks to prosecute an appeal to this court from the decree setting aside said former decree. The decree sought to be appealed from is not final, but interlocutory merely, and is, therefore, not the subject of appeal. Adamski v. Wieczorek, 170 Ill. 373; affirming 66 Ill. App. 582; Rosenthal v. Board of Education, 239 Ill. 29.

The appeal is dismissed.

Appeal dismissed.


text:
    Joseph Kaminski, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 17,554.
    1. Street railroads—when verdict is sustained. In a personal injury action where plaintiff while driving a load of sand across the street car tracks is struck by a car the verdict for defendant is sustained as not being contrary to the greater weight of the evidence.
    2. Negligence—question of fact. In a personal injury action where plaintiff riding in a one horse wagon is struck by a street car while attempting, to cross the tracks the question whether he was in the exercise of due care for his own safety at and immediately prior to the injury is properly submitted to the jury.
    3. Instructions—where the word “ faculties” is used instead of the word “senses.” In a personal injury action an instruction which uses the word “faculties” instead of the word “senses” in directing the jury that it was the duty of plaintiff to have used his “faculties” with ordinary and reasonable diligence is not erroneous.
    4. Instructions—use of word “accident.” In a personal injury action where plaintiff while driving a wagon is struck by a street car, an instruction using the word “accident” to designate the collision is not improper.
    Error to the Superior Court of Cook county; the Hon. Parlin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    S. P. Douthabt and J. F. Tbiska, for plaintiff in error; Bernhardt Frank, of counsel.
    John E. Kehoe and Watson J. Ferry for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

In an action in case instituted in the Superior Court by plaintiff in error against defendant in error to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant in error; a trial by jury resulted in a verdict finding defendant in error not guilty and a judgment against plaintiff in error in bar of his action and for costs.

The declaration alleges that on October 13, 1908, plaintiff in error was riding in a wagon being drawn by a horse, which he was then driving westward upon and along West 33rd street; that while crossing .the railway of defendant in error at the intersection of said 33rd street and Wallace street, and while he was exercising due care for his own safety, defendant in error was operating one of its street cars northward upon said railway on Wallace street; that defendant in error then and there so carelessly and negligently drove, managed and propelled said street car that as a direct result thereof, said street car thereby then and there ran into and struck said wagon with great force and violence, whereby plaintiff in error was then and there thrown upon the ground and injured, etc.

A reversal of the judgment is sought upon twu grounds: (1) that the verdict is against the manifest weight of the evidence, and (2) that certain instructions given to the jury at the instance of defendant in error are prejudicially erroneous.

Wallace street runs north and south and is intersected at right angles by 33rd street. At the time in question defendant in error maintained two street car tracks on Wallace street, the easterly track being used by north-bound cars and the westerly track by southbound cars.

The evidence introduced on behalf of plaintiff in error tends to show that plaintiff in error accompanied by one, Weirioch, was riding west on 33rd street in a one horse wagon which was loaded with about a ton of sand; that when he reached Wallace street and before he attempted to cross the tracks he observed a street car at or about 34th street approaching from the south; that as he proceeded to cross the tracks the front wheels of his wagon went into a hole ten or twelve inches in depth immediately east of the east rail of the east track; that the horse was unable to draw the wheels of the wagon out of the hole, and that while plaintiff in error was attempting to urge the horse forward the wagon was struck by the street ear, and the injuries resulted; that no gong was sounded or other warning given of the approach of the car and that the car was being operated at a speed of from ten to twenty miles an hour. One of the witnesses for plaintiff in error testified that when the car was about twenty-five feet away from the wagon he heard the motorman call out.

The evidence introduced on behalf of defendant in error tends to show that as the car proceeded northward the motorman sounded the gong; that as the horse and wagon approached the crossing the horse was traveling at a slow gait; that plaintiff in error and Weirioch appeared to be engaged in earnest conversation and did not look in the direction of the approaching car or manifest any apprehension of its approach; that the speed of the car was reduced and the motorman shouted a warning to plaintiff in error; that the wagon was not stationary on the track when it was struck, but was being drawn by the horse at the same rate of speed as that at which it approached the crossing.

The respective contentions of the parties relative to their conduct upon the occasion in question and the manner in which the collision occurred are irreconcilably conflicting. The defense interposed by defendant in error is supported by the testimony of the greater number of witnesses whose apparent credibility and whose opportunity to observe the situation and conduct of the parties was fully equal to that of the witnesses who testified on behalf of plaintiff in error. Whether or not plaintiff in error was in the exercise of due care for his own safety at and immediately prior to his injury was a question of fact which was properly submitted to the jury, and upon the record as made we should be wholly unwarranted in holding that the verdict of the jury upon that issue was contrary to the greater weight of the evidence. Indeed, we are persuaded that the verdict was justified. *

The 6th, 7th, 8th, 10 th, 11th and 12th instructions given at the instance of defendant in error are criticised as unduly emphasizing by repetition the rules of law relating to the duty of plaintiff in error to exercise ordinary care for his own safety. Each of the several instructions indicated deals with a different phase of the same subject and none are attacked as erroneously stating the rule announced. While in one or two particulars the phraseology employed in some of the instructions might be improved upon, they contained nothing that upon this record was calculated to mislead the jury.

The 9th instruction given at the instance of defendant in error is criticised because it employs the word “faculties” instead of the word “senses” in directing the jury that it was the duty of the plaintiff in error to have used his “faculties” with ordinary and reasonable diligence, etc. It is said that the instruction required the jury to decide a psychological question with no evidence before them. The criticism does not merit extended discussion. The use of the word “faculties” did not contemplate the necessity on the part bf plaintiff in error of exercising his faculties of “music, worship, grandeur,” etc., any more than the use of the word “senses” would have contemplated the necessity on his part of exercising his senses of smelling, touching and tasting, in order to constitute ordinary care for his own safety in avoiding a collision with a street car.

It is urged that the 14th instruction given at the request of defendant in error improperly characterized the occurrence which caused the injuries complained of as an accident, happening without the fault of anybody. It clearly appears from a reading of the entire instruction that the word “accident” was used to designate the occurrence or happening in question, the collision, and must have been so understood by the jury.

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

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Morris Mansfield, Plaintiff in Error.
    Gen. No. 18,085.
    1. Pandering—when information charges. An information charging the offense of pandering in the language of the statute is sufficient.
    2. Pandering—when information insufficient. An information charging pandering which fails to designate the female person procured by defendant as an inmate for a house of prostitution is insufficient.
    3. Criminal law—name “Minnie” imports female. In an information for pandering the name “Minnie” imports a person of female sex.
    4'. Pandering—conviction sustained. A conviction upon a general finding for pandering is sustained where two of the three offenses defined in the statute are sufficiently charged though the third offense is insufficiently charged.
    Error to the Municipal Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 30, 1913.
    Louis Greenberg, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of conviction of plaintiff in error in the Municipal Court of the offense of pandering in manner and form as charged in the information. Plaintiff in error waived trial by jury, entered his plea of not guilty, and the trial was by the court. The record contains no bill of exceptions.

The only error assigned and argued is that the information fails to charge any offense upon which a judgment of conviction may be predicated.

The information charges that Morris Mansfield late of the said City of Chicago, heretofore, to-wit: on or about the 18th day of August, A. D. 1911, at the City of Chicago, aforesaid, did then and there procure a female inmate, for a house of prostitution and did then and there by promises and other devices and schemes, cause, induce, persuade and encourage one Minnie Schneider, a female to become an inmate of a house of prostitution, at the premises known as Mo. 815 W. Monroe Street, in said City of Chicago, and did then and there procure a place as inmate in a house of prostitution for the said Minnie Schneider, contrary to the form of the statute in such case made and provided, etc.

The statute defining the offense of pandering, so far as it is here pertinent, is as follows:

“Any person who shall procure a female inmate for a house of prostitution or who, by promises, threats, violence or by any device or scheme, shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a female person, or * * * , shall be guilty of pandering, and upon a first conviction for an offense under this act shall be punished by imprisonment in the county jail or house of correction for a period of not less than six months nor more than one year and by a fine of not less than three hundred dollars and not to exceed one thousand dollars, * * * .” Paragraph 57g, chap. 38, Hurd’s Stat. 1911.

It will be observed that each of several separate and distinct offenses is defined by the statute as “pandering.” The several offenses are of the same grade and subject the offender to the same punishment. By the information in question it was evidently purposed to charge plaintiff in error with three separate offenses, (1), procuring a female inmate for a house of prostitution, (2), by promises, threats, violence or by some device or scheme, causing, inducing, persuading and encouraging a female person to become an inmate of a house of prostitution, (3), procuring a place as inmate in a house of prostitution for a female person.

It may be conceded that the information is wholly insufficient to charge the first offense, because it fails to designate the female person procured by plaintiff in error as an inmate for a house of prostitution, but this fatal defect or omission does not exist in the information as to the second and third offenses charged. The second offense is charged in the language of the statute and embraces every essential element necessary to be established by the prosecution. With respect to "the third offense the information does not charge that Minnie Schneider is a female person, but the name “Minnie” imports a person of the female sex. People v. DeMas, 173 Ill. App. 130.

The conviction was upon a general finding and may be sustained, although the first offense is defectively charged, where the second offense is sufficiently charged. People v. Smith, 239 Ill. 91; People v. McCann, 247 Ill. 130.

The sufficiency of the information was not challenged in the court below. No bill of particulars was requested and no motion for a new trial or in arrest of judgment was interposed. Upon the present record the information is sufficient to sustain the conviction. People v. Greenberg, 172 Ill. App. 360; People v. Yon, 173 Ill. App. 651.

The judgment is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. Inez Jackson, Plaintiff in Error.
    Gen. No. 18,149.
    1. Pandering—insufficiency of information. Where an information for pandering fails to allege the means, as ‘ ‘ by promises, threats, violence, or by any device or scheme” in the language of the statute, whereby a female person became an inmate of a house of prostitution, and uses the word 1 ‘ unlawfully ” as a substitute or equivalent, on motion to quash the information will be held insufficient.
    2. Pandering—sufficiency of information. Where a pandering statute provides that any person who by certain means ‘1 shall cause, induce, persuade or encourage” a female person to enter a house of prostitution, etc., an information in such language using the word “or” after the “persuade” is rendered uncertain and vulnerable to attack on motion to quash; the word “and” should be used.
    3. Indictments and informations—disjunctives. Where the word “or” in a statute is used in the sense of “to-wit,” it may properly be adopted in framing an information or indictment, but where a statute forbids several things in the alternative, it is usually to be construed as creating but a single offense, and the defendant may be charged with committing all the acts, using the conjunction “and” where the statute uses the disjunctive “or.”
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    Louis Greenberg, for plaintiff in error.

      No appearance for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Upon a trial in the Municipal Court by the court without a jury plaintiff in error was convicted of the offense of pandering and sentenced to imprisonment in the house of correction for one year and to pay a fine of $300 and costs of prosecution.

It is urged that the information fails to charge any offense and that the court erred in overruling motions interposed by plaintiff in error to quash the same and in arrest of judgment.

There is no appearance by defendant in error in this court.

The information charges “that Inez Jackson late, of the said City of Chicago, heretofore, to-wit: on the 1st day of October, A. D. 1911, at the City of Chicago, aforesaid, did unlawfully cause, induce, persuade or encourage one Carmen Henkel, a female person to become an inmate of a house of prostitution at 3625 Ellis Park, contrary to the form of the statute,” etc.

The statute, in so far as- it is here pertinent, provides as follows:

“Any person who * * * by promises, threats, violence or by any device or scheme, shall cause, induce, persuade or encourage a female person to become an inmate of a house of prostitution * * * shall be guilty of pandering,” etc.

It will be observed that the information fails to allege the means, as “by promises, threats, violence or by any device or scheme, ’ ’ in the language of the statute, whereby plaintiff in error did cause, induce, persuade and encourage a female person to become an inmate of a house of prostitution. The word “unlawfully” employed in the information is not a substitute for or the equivalent of the words omitted, but merely asserts a conclusion of law, and upon the motion to quash, the information should have been held insufficient for a failure to allege the unlawful means employed in the language of the statute.

Furthermore, by the use of the disjunctive “or” preceding the word “encourage” the information was rendered uncertain and vulnerable to attack upon the motion to quash. 1 Bishop Grim. Proc., secs. 325, 585. Where the word “or” in a statute is used in the sense of “to-wit” it may properly be adopted in framing an information or indictment, but where a statute forbids several things in the alternative, it is usually to be construed as creating but a single offense, and the defendant may be charged with committing all the acts, using the conjunction “and,” where the statute uses the disjunctive “or.” Blemer v. People, 76 Ill. 265.

The motion to quash the information should have been sustained, and the judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.