author: Mr. Presiding Justice O’Connor Mr. Justice Taylor

text:
    Pittsburgh Steel Company, Appellant, v. Hollingshead & Blei, Appellee.
    Gen. No. 21,324.
    1. Payment, § 44

      —when money paid under duress may he recovered. Where one is compelled to pay money to another, who has no legal right to demand it, in order to prevent injury to his person, business or property, such payment is in law made under duress and may be recovered from the party receiving it, and it makes no difference that the payment was made with full knowledge of all the facts.
    2. Bills and notes, § 272*—what is necessary to charge prior indorser. Presentment for payment at maturity by an indorsee of a draft is necessary to hold a prior indorser.

      3. Payment, § 44

      —what constitutes duress of property. Duress of property, or moral duress, consists in imposition, oppression, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another, whereby his free agency is overcome.
    4. Payment, § 44*—when evidence sufficient to entitle payor to set off money as paid under duress. In an action for goods sold and delivered, where the defendant sought to set ofi money paid to the plaintifl which the latter claimed was paid in compromise of an indebtedness already created under a continuing contract of shipment, but which the defendant claimed was paid under duress in order to induce the plaintifi to continue shipments under the contract, evidence held to show that such payment was made under duress of property and was properly allowed as a set-ofi.
    Taylor, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Culver, Andrews, King & Cook, for appellant.
    Albert Martin, for appellee.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The appellant, hereinafter called the plaintiff, sued the appellee, hereinafter called defendant, in the Municipal Court of Chicago to recover for goods sold and delivered under a written contract. The amount of plaintiff’s claim was $2,587.46. The defendant filed an affidavit of merits admitting that there was due the plaintiff $1,689.67. Judgment was entered in favor of the plaintiff for this amount, and it was ordered that the suit proceed as to the balance. By agreement, the defendant filed a statement of set-off in the sum of $850, with interest at five per cent, per a.nnnm from November 4, 1912. The plaintiff filed an affidavit of merits to the set-off and a trial was had on the issues thus formed, before the court and a jury. A verdict was returned finding the issues against the plaintiff, judgment was entered thereon, and the plaintiff prosecutes this appeal.

On November 24, 1911, the defendant entered into a written contract with the plaintiff for the purchase of 500 tons of hoop and band steel, and later on August 24, 1912, a second contract for 350 tons. The plaintiff made shipments from time to time under these contracts. On December 30, 1911, the defendant sent to the plaintiff, in settlement of invoices from October 3rd to December 6, 1911, amounting to $2,149.39, two drafts on the National Cooperage Company of Brooklyn, one for $900 dated December 2, 1911, and the other for $1,242 dated December 23,1911, both of which had been accepted by the National Cooperage Company, and indorsed by the defendant. Both drafts were due sixty days from date. The defendant also inclosed its check for $7.39 to cover the difference between the amount of the invoices and the two drafts. The plaintiff cashed the check, entered the drafts in its bill book and turned them over to its treasurer. Neither of the drafts was presented for payment to the National Cooperage Company at maturity, and the defendant was not notified that the Jiame had not been paid until February 28, 1912. Subsequently the National Cooperage Company went into bankruptcy and the plaintiff presented its claim based on the drafts against the bankrupt estate and received a dividend of twenty per cent. On September 13, 1912, the plaintiff brought suit against the defendant in the Municipal Court of Chicago to recover the balance alleged to be due on the invoices covered by the two drafts. The defendant filed an affidavit of merits, claiming that the amount had been paid by the drafts, which the plaintiff accepted in payment of the same. The plaintiff refused to make any further deliveries until its claim was paid. After a conference between the parties, the defendant paid to the plaintiff $850, and thereupon the suit was dismissed by stipulation and shipments were resumed. The suit in the present case was brought to recover for a balance due on invoices from May 5th to July 2, 1913, with accrued interest. .The defendant did not deny the amount of plaintiff’s claim but sought to set off the $850 above mentioned, which it claims was paid to the plaintiff under duress.

The plaintiff contends that the payment of $850 was made after considerable correspondence had passed between the parties; that defendant had full knowledge of the facts and was fully advised as to its rights; that said payment was made in full settlement of the account then claimed to be due and an agreement was entered into that the suit then pending should be dismissed ; that said suit was dismissed upon the payment of said sum, and in consideration thereof.

The defendant contends that the payment of $850' was not made in settlement of any account between the parties; that there was no debt due the plaintiff at that time; that the plaintiff took an undue advantage of the business distress of the defendant; that the defendant was compelled to make the payment in order to induce the plaintiff to resume shipments under the contracts, and that this was the sole reason for which the payment was made.

It is a well-settled rule of law in this State that where one is compelled to pay money to another, who has no legal right to demand it, in order to prevent injury to his person, business or property, such payment is, in law, made under duress, and may be recovered back from the party receiving it, and it makes no difference that the payment was made with full knowledge. City of Chicago v. Northwestern Mut. Life Ins. Co., 218 Ill. 40; Rees v. Schmits, 164 Ill. App. 250; Pemberton v. Williams, 87 Ill. 15; Illinois Glass Co. v. Chicago Tel. Co., 234 Ill. 535; County of La Salle v. Simmons, 10 Ill. (5 Gilm.) 513.

It is admitted by the plaintiff that the two drafts on the National Cooperage Company were mislaid and were not presented for payment at maturity. No excuse is offered by the plaintiff for its failure to present these drafts for payment, and it is not claimed that they would not have been paid if presented at maturity. Plaintiff was clearly negligent in failing to present the drafts for payment, and it would be unjust to hold that the defendant must suffer the consequences of plaintiff’s negligence. Presentment for payment was necessary in order to hold the defendant as an indorser. Illinois Rev. St. ch. 98, sec. 70 (J. & A. ¶ 7710). Under these circumstances, the account was paid and the plaintiff had no legal right to again demand payment.

The only question left for us to determine is whether or not the payment of $850 was made under duress. The duress complained of by the defendant is what*"' is known as duress of property, or moral duress. This kind of duress consists in imposition, oppression, undue influence, or the taking of undue advantage of the business or financial stress or extreme necessities or weakness of another, whereby his free agency overcome. Rees v. Schmits, supra; Chicago & A. R. Co. v. Chicago, V. & W. Coal Co., 79 Ill. 121; County of La Salle v. Simmons, supra; City of Chicago v. Northwestern Mut. Life Ins. Co., supra.

The evidence in the case at bar tends to show that the defendant had placed with the plaintiff several orders for hoop and band steel which had not been filled; that defendant had resold these orders to its customers and was under urgent necessity of securing prompt shipment of the same; that, owing to the unusual demand for steel at that time, it was difficult, if not wholly impossible, for the defendant to obtain the steel elsewhere. The plaintiff admits that it refused to make any further shipments under the contracts until the defendant paid for the invoices covered by the drafts. Mr. Blei, president of the defendant company, testified emphatically that the payment of $850 was not made in settlement of any account, but was made for the sole purpose of inducing the plaintiff to resume the shipments of steel, of which it stood greatly in need.

The theory upon which plaintiff attacks the judgment is that it had a claim against the defendant, about which there was a bona fide controversy, and upon which it had admittedly brought suit, and that as it believed the defendant to be in arrears, they had the right under its contract to withhold shipments, and that as there was a bona fide dispute in regard to the question of whether the defendant was or was not liable, that was sufficient to support a compromise. Defendant’s theory of the case, however, was that the facts disclosed and known to the plaintiff show, beyond all dispute, that there was no liability on its part for the item claimed, and that by its claim, the plaintiff was attempting to compel the repayment of a matter already settled, and that it took advantage of the situation in which defendant found itself to compel defendant to pay a sum of money which it was not, in any way, obligated to pay, and that the means employed by the plaintiff was its unlawful refusal to perform its contract with the defendant unless defendant complied with its unlawful demands when it knew that such an unlawful refusal to comply with its contractual duty would result in intolerable financial distress to defendant. If the facts contended for by the defendant were true, the action of the plaintiff, under the authorities cited, clearly amounted to moral duress. Every intendment must be in favor of the verdict, and it must be assumed that the jury found the facts to be as contended for by the defendant. As such findings could not be said to be manifestly contrary to the weight of the evidence, the judgment must be affirmed.

Affirmed.

Mr. Justice Taylor

dissenting.

Being unable to perceive that a compromise agreement (such as exists in this case) voluntarily made between two business corporations as the result of protracted conferences and negotiations, each party thereto having admittedly at the time a full and complete knowledge of all material facts and the law, should be allowed thereafter to be broken by the court on the sole ground that the complaining party now claims in stultification of its promise it was subjected to property or moral duress, I am constrained to dissent.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Gratz B. Smith, Defendant in Error, v. Dominick Marubio, sued as Dominick Marubio Transfer Company, Plaintiff in Error.
    Gen. No. 21,458.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Keabns, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by Gratz B. Smith, plaintiff, against Dominick Marubio, sued as Dominick Marubio Transfer Company, a corporation, defendant, to recover for personal injuries sustained by the plaintiff as the result of a collision between the plaintiff’s wagon and defendant’s truck. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    D. K. Cochrane, for plaintiff in error.
    John J. Lupe, for defendant in error; Rudolph Frankenstein, of counsel.
    Abstract of the Decision.
    1. Roads and bridges, § 239

      —when evidence shows collision caused by defendant’s negligence. In an action to recover for personal injuries resulting from a collision between the plaintiff’s wagon and a truck belonging to the defendant, alleged to have been caused by the negligence of the defendant’s driver, evidence held not to justify a reversal of a judgment for the plaintiff.
    2. Damages, § 167*—^when variance is cured by amendment. In an action for personal injuries, held that the contention of the defendant that testimony of physicians, who had attended the plaintiff, as to the reasonable value of their services was improperly admitted because the plaintiff’s statement of claim averred that he had expended certain sums of money while the evidence showed that he had not paid the physician but had become liable to do so, was untenable, since, after the evidence was introduced, the court permitted the plaintiff to amend the statement of claim to correspond with the proof.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


text:
    Frederick S. McClory, Defendant in Error, v. Sara Johnson Towne, Plaintiff in Error.
    Gen. No. 21,471.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Chakles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action on a promissory note by Frederick S. McClory, plaintiff, against Sara Johnston Towne, defendant. To review a judgment for plaintiff for $479.47, the defendant prosecutes a writ of error.
    The note was executed by the defendant August 16, 1901, due three months after date, to the order of herself and by her indorsed. Defendant’s husband testified that he and defendant resided in Chicago; that Manie B. Ayres lived with them; that he was a practicing attorney and represented said Manie B. Ayres in certain business transactions; that in 1901 defendant moved to New York where she was to be joined by him and that he was in need of funds and wrote the defendant to execute certain notes and send them to him so that he could have them discounted and obtain the necessary funds; that the defendant executed the notes as requested, including the one in suit, and mailed them to him; that upon receipt of them he placed the note in question in a safe deposit box in Chicago where he kept other papers; that Manie B. Ayres also had a safe deposit box with the same company; that she requested him to permit her to put some of her papers in his box, stating that the one she had was too small; that the request was granted and Manie B. Ayres was given access to his box; that afterwards he removed some of the papers from the box; that he did not recall anything further about the note until about the time of the institution of this suit, October 7, 1907; that he never delivered the note to Manie B. Ayres nor to any other person nor authorized any one else to do so. The evidence tends to show that Manie B. Ayres died intestate October 3, 1902, and letters of administration were issued by the County Court of Coles county, Illinois, October 6, 1902, to James F. Bell; that the note in question was found by the administrator among the ejects of Mrs. Ayres in her safe deposit box in Chicago, and was inventoried in her estate as “bad”; that the administrator, after investigation, doubted the advisability of bringing suit thereon on account of the then financial condition of the defendant, and on January 9, 1905, the County Court of Coles county ordered the note filed; that it was later ordered to be turned over to Iona Bourne Bell as heir of said Manie B. Ayres. Subsequently, the administrator and his wife, Iona-Bourne Bell, moved to Chicago, and the note in suit was given by the latter to the plaintiff in payment of legal services rendered.
    Frank 1ST. Reed, for plaintiff in error.
    A. W. Martin and Edward H. S. Martin, for defendant in error.
    Abstract of the Decision.
    1. Bills and notes, .§ 377

      —When no presumption arises that possession of note was acquired illegally. Where a note payable to the maker and indorsed by her was found among the papers of a deceased party and ordered by the Probate Court to be filed and was later turned over by the administrator to one of the heirs and suit brought thereon by one to whom it had been given by the heir in payment for legal services, held that though the maker’s husband, to whom the note had been given by the maker, testified that he had never parted with possession of it but that the last time he saw it it was in his safe deposit box to which the deceased had access, no presumption would be indulged that the deceased had obtained possession of the note unlawfully.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section Humber.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Exectjtobs and administbatobs, § 357 —what assets may be distributed in Jcind. Promissory notes belonging to an estate of a deceased person may be distributed in kind by the administrator.

3. Bills and notes, § 377*—what is prima facie evidence of legal title. Mere possession of a promissory note is prima facie evidence of legal title and right to sue thereon.

4. Bills and notes, § 391*—when presumption arises that holder of note is an innocent holder for value. In an action on a promissory note found among the papers of a deceased person, held that the presumption was that she had purchased it before maturity for value in due course of business and was an innocent holder thereof.

5. Bills and notes, § 410*—when burden of proving plaintiff not a holder in due course is on defendant. In an action by the holder of a promissory note, found among the papers of a deceased person, against the maker, held that the burden of proof that the deceased had not acquired title thereto in due course for value before maturity was upon the defendant.

6. Bills and notes, § 446*—when evidence shows plaintiff a holder in due course. In an action by the holder of a promissory note, found among the papers of a deceased person, against the maker, held that a finding that the deceased had acquired title thereto in due course of value before maturity was not manifestly against the weight of the evidence.

7. Limitation of actions, § 58*—when demurrer to plea of statute of limitations properly overruled. In an action on a promissory note where an additional count, filed after the running of the statute of limitations, declared on the same note as the original declaration had declared on, held that a demurrer to the defendant’s plea of the statute of limitations to the additional counts was properly overruled.


text:
    C. N. Cole, trading as Western Loan Company, Defendant in Error, v. E. E. Fulton Company, Plaintiff in Error.
    Gen. No. 21,507.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fey, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Rehearing denied December 27, 1916.
    Statement of the Case.
    Action by C. N. Cole, trading as Western Loan Company, plaintiff, against the E. E. Fulton Company, a corporation, defendant, on an assignment of wages. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Fred A. Bangs, for plaintiff in error; Biohard H. Colby, of counsel.
    No appearance for defendant in error.
    Abstract of the Decision.
    1. Appeal and error, § 457

      —when admissibility of evidence not considered on appeal. In an action on a written assignment of wages by the assignee against the employer, held that the defendant’s objection, that the plaintiff’s testimony on the trial that he mailed a notice of assignment to the defendant was a mere conclusion of the witness and that the contents of the notice were not shown, was not available to the defendant on appeal since he had not raised the objection in the trial court.
    2. Assignment, § 36*—when evidence shows authority to receive notice of assignment of wages. In an action on an assignment of wages against the employer, by the assignee, evidence tending to show that the party to whom the plaintiff gave notice by mail of the assignment was the vice president and secretary of the defendant company, and testimony of its president that in his absence such party opened all the mail addressed to the company, was sufficient to establish the agency of such party to receive the notice.

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

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same (oyic and section number.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

3. Aepeai and error, § 1679 —where variance between summons and statement of claim is waived. Where it was contended on appeal by a defendant that its motion in arrest of judgment should have been sustained for the reason that there was a variance between the summons, naming as defendant certain individuals doing business as a company, and the amended statement of claim, designating the defendant as a corporation, held that inasmuch as the defendant entered its appearance as a corporation to the original summons and statement of claim and subsequently the plaintiff filed the amended statement of claim, designating the defendant as a corporation, to which the defendant filed an affidavit of merits, the defendant’s contention was without merit.


author: Mr. Justice Goodwin

text:
    Frank Kieshkowski, Appellee, v. Harry Bostrom, Appellant.
    Gen. No. 21,371.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by Frank Kieshkowski, plaintiff, against Harry Bostrom, defendant, on an appeal bond. From a judgment for plaintiff, defendant appeals.
    O. D. Olsoh, for appellant.

      John W. Sutton, for appellee; Martin L. Wilborn, of counsel.
    Abstract of the Decision.
    1. Appeal and error, § 1870

      —what constitutes a discharge of obligor in appeal bond. In an action on an appeal bond, held that the plaintiff’s demurrers to defendant’s plea, setting out that while the appeal was pending the plaintiff agreed to and did discharge the obligation in consideration' of the defendant’s paying him a less amount than that of the judgment, were improperly sustained inasmuch as the defendant was not obliged to pay the plaintiff in any event until the appeal was disposed of, so that the immediate payment of a lesser sum than that of the judgment was a sufficient consideration for the release thereof.
    2. Appeal and error, § 1881*—when plea of discharge of obligor sufficient on demurrer. In an action on an appeal bond, obligating the defendant to pay the judgment with interest and costs in the Appellate Court if it should be affirmed, held that demurrers to the defendant’s plea, setting out a satisfaction and discharge of the judgment pending appeal, were improperly sustained on the ground that the plea did not answer the entire declaration, since the plea fully answered the alleged breach in failing to pay the judgment, which was in reality the substance of the action.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr- Justice Taylor

text:
    Frank A. Hobbs for use of Julius Limbach, Defendant in Error, v. Oscar C. Junge, Plaintiff in Error.
    Gen. No. 21,050.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sthxivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by Frank A. Hobbs for use of Julius Limbach, plaintiff, against Oscar C. Junge, defendant, to recover a real estate commission. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    The written agreement sued upon entered into by the parties was as follows:
    “April 14, 1914.
    “Article of agreement by and between O. C. Junge and F. A. Hobbs & Company. It is hereby agreed by F. A. Hobbs & Company that they are to receive a commission for consummating the sale of property known and described by #1133 North Shore Avenue, of five hundred dollars ($500.00). It is further agreed and understood that O. C. Junge is to receive a sale price of twenty-five thousand dollars ($25,000.00) net to him. Deal to be consummated on or before May 1, 1914.
    Signed O. C. Junge.”
    D. M. Ball and E. W. AtkInson, for plaintiff in error.
    Julius Limbach, for defendant in error.

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

   Mr- Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Bbokebs, § 77 —when variance between alleged contract for commission and proof immaterial. In an action by a broker to recover a commission for the sale of the defendant’s real estate, held that there was no variance between the evidence offered, consisting of a written contract whereby the defendant agreed to pay the plaintiff $500 as commission for negotiating the sale, and the statement of claim alleging the defendant’s promise to pay the sum of $500 “which is the reasonable, usual and customary commission for such services so performed by plaintiff and as established by the rules of the Chicago Real Estate Board of which plaintiff was then and there a member,” since after putting in evidence the written contract it became unnecessary for the plaintiff to prove that $500 was a reasonable, usual and customary commission.

2. Bbokebs, § 36*—what constitutes performance by broker. In an action by a real estate broker for a commission for the sale of defendant’s property, on a contract providing for the payment of a certain amount as commission “for consummating the sale” of the property on or before a certain date at a price to net the defendant a certain sum, held that the plaintiff was entitled to recover on proof showing that before the date mentioned he obtained from a prospective purchaser a binding contract for the purchase of the property at the price named by the defendant plus the amount of the plaintiff’s commission and secured a deposit of earnest money, it not being contended that the prospective purchaser was not ready and willing to carry out the terms of the contract.


author: Mr. Justice Taylor

text:
    Pooley-Hercz Company, Defendant in Error, v. Greene’s Limited, Plaintiff in Error.
    Gen. No. 21,243.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Wobk, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Rehearing denied December 27, 1916.

      Statement of the Case.
    Action by Pooley-Hercz Company, a corporation, against Greene’s Limited, a corporation, defendant, to recover compensation for the preparation of architect’s "drawings. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    M. E. Gallion, for plaintiff in error.
    No appearance for defendant in error.
    Abstract of the Decision.
    Architects and engineers, § 16

      —when evidence shows a contract to pay for architect’s drawings. In an action for compensation for the preparation of architect’s drawings, plans and specifications by the plaintiff for the defendant at the latter’s request, evidence held to show an agreement by the defendant to pay therefor and to justify a judgment for the plaintiff.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Patrick Garrity, Appellee, v. W. J. Newman & Company et al., on appeal of Thompson Starrett Company, Appellant.
    Gen. No. 21,393.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodors Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by Patrick Garrity, plaintiff, against W. J. Newman & Company et al., defendants. From a judgment for plaintiff for $2,500, defendant Thompson Starrett Company appeals.
    The plaintiff was engaged in emptying buckets used in digging wells for concrete piers in the basement of a building under the course of construction. While on duty in the nighttime he started to cross the basement, which was poorly lighted, to a toilet, the location of which, he, being a new employee, did not exactly know, and fell into an open well which had been dug by his employer, who after finishing it had properly covered it but which had been uncovered and so left by the servants of the defendant, the Thompson Starrett Company, another contractor engaged in erecting steel frame work on the concrete piers.
    F. J. Canty and P. L: McArdle, for appellant.
    B. J. Wellman and Bichard J. Finn, for appellee.

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

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 537 —what declaration need not set forth. In an action by an employee for personal injuries sustained because of the negligence of a contractor, other than the plaintiff’s employer, who was engaged in construction work on the same structure on which the plaintiff was employed, held that it was not necessary that the plaintiff set forth in his declaration in express words the particular principles of law which gave rise to the obligation of the defendant, but that it was enough if sufficient facts were stated from which the law would imply a duty.

2. Master and servant, § 537*—when declaration states cause of action against contractor other than plaintiff’s employer. In an action by an employee for personal injuries” sustained because of the negligence of a contractor, other than the plaintiff’s employer, who was engaged in construction work on the same structure on which the plaintiff was employed, the negligence consisting in the defendant’s leaving uncovered wells dug in the ground, in the course of construction of concrete piers, into which the plaintiff fell, the declaration held to state a sufficient cause of action.

3. Master and servant, § 101*—what care is owed by a contract- or to employees of another contractor. A contractor, whose servants are engaged upon work about which the servants of another are also engaged, owes the servants of such other contractor the duty of ordinary care in prosecuting its work.

4. Master and servant, § 450*—when employee not guilty of contributory negligence. In an action for personal injuries sustained by an employee as the result of his falling into an uncovered well in the basement of a building in which he was working, which well had been left uncovered by a contractor other than the plaintiff’s employer, held that the plaintiff was not guilty of contributory negligence where the evidence showed that it was customary to cover such wells and that the basement was poorly lighted at the time of the accident.

5. Master and servant, § 799*—when instruction as to care of contractor towards servants of another contractor is proper. In an action for personal injuries sustained by an employee because of the alleged negligence of a contractor, other than the plaintiff’s employer, who was engaged in construction work on the same building on which the plaintiff was employed, the words in an instruction, “the servants of one contractor owe to the servants of the other contractor the duty of exercising ordinary care,” held just as applicable where the negligence consists of the omission of an act as they are when the negligence consists of the commission of an act.

6. Damages, § 124 —when verdict for personal injuries not excessive. Where a laborer suffered a serious and permanent injury involving a fracture of the right leg, as the result of which he was compelled to remain in bed six months and to use crutches for six months longer, held that a verdict for $2,500 was not excessive.


text:
    David Braverman, Defendant in Error, v. Morris Bordacov, Plaintiff in Error.
    Gen. No. 21,467.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed December 13, 1916.
    Statement of the Case.
    Action by David Braverman, plaintiff, against Morris Bordacov, defendant, for work, labor and materials furnished the defendant by the plaintiff. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    Blum & Blum, for plaintiff in error.
    H. J. Finder, for defendant in error.

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

   Mr. Justice Taylor

delivered the opinion of the court.

Abstract of the Decision.

1. Assumpsit, Action of, § 89 —vihen evidence shows contract for worlc, labor and materials. In an action for work, labor and materials alleged to have been furnished the defendant by the plaintiff, in which the defendant denied that he had contracted therefor with the plaintiff, evidence held to justify a judgment for the plaintiff.

2. Assumpsit, Action of, § 88*—when memoranda of worlc done under contract admissible. In an action by a contractor for labor, work and materials furnished the defendant, held that the plaintiff’s “job tickets,” consisting of copies made by the plaintiff after the completion of the work from memoranda made by him on slips of paper as the work was being done, were admissible in evidence, the slips having been destroyed, on the ground that the original memoranda were not available and that the “job tickets” were his books.

3. Judgment, § 247*—when entry after remittitur proper. The action of a trial court in setting aside a judgment for the plaintiff and, after a remittitur had been made, entering judgment for the amount remaining, held unobjectionable.


author: Mr. Presiding Justice McSurely

text:
    A. C. Jackson, Defendant in Error, v. Browning, King & Company, Plaintiff in Error.
    Gen. No. 22,088.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habby P. 'Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by A. C. Jackson, plaintiff, against Browning, King & Company, a corporation, defendant, for commissions on sales 'of merchandise by plaintiff as a department manager of defendant’s store. From a judgment for plaintiff for the amount claimed $138.79, defendant brings error.
    In 1909 defendant made a contract with plaintiff that he should be paid a commission of two per cent, on all sales in the hoys’ and children’s department over $75,000 a year. This agreement was renewed verbally each year thereafter and the commissions were paid to plaintiff for the years 1910 and 1911. Defendant’s books of account showed that the total sales in plaintiff’s department for the year 1912 were $92,448.59, of which $6,939.93 were sales to customers having charge accounts.
    Bentley, Burling & Swan, for plaintiff in error; Willard Brooks, of counsel.
    O ’Shaughnessy & O’Shaughnessy, for defendant in error; Joseph L. Toohey, of counsel.
    Abstract of the Decision.
    1. Master and servant, § 84

      -—when evidence sufficient to show that charge items are correct. In an action by a department store manager for commissions on charge sales, evidence held sufficient to show that the charge items did not include charge sales made prior to the year for which plaintiff was claiming commissions.
    2. Master and servant—when master cannot change contract for commissions. A department store cannot change a contract for the payment of commissions to one of its managers by a change in its method of bookkeeping whereby such manager is credited with charge sales at the time they are made instead of at the time they are paid.
    3. Estopped, § 47*—when defendant estopped to raise defense. A defendant will not be permitted to raise a defense upon a theory inconsistent with its own line of conduct.
    4. Master and servant, § 84*—when evidence insufficient to

      show that commissions were not earned. In an action by a department store manager for commissions on charge sales for a specified year, evidence held insufficient to establish the defense that plaintiff did not earn the commissions and that the commissions earned had been paid.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSurelt

text:
    M. C. Conrad, Defendant in Error, v. Frank Hess, Plaintiff in Error.
    Gen. No. 22,164.
    (Hot to The reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and judgment here.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by M. C. Conrad, plaintiff, against Frank Hess, defendant, before a justice of the peace for rent of a farm occupied under a written lease. From a judgment for $190 against the defendant, after trial by the court upon appeal to the Circuit Court, defendant brings error.
    The lease was dated January 1, 1913, and ran for three years. By it the defendant agreed to pay $150 rental-for the first year, $200 for the second year, and $225 for the third year. He entered into possession and cultivated the farm. In the fall of 1913 he had a conversation with plaintiff concerning the rent for that year, which he had not then paid, and the defendant gave plaintiff his note for $150 in payment of the first year’s rent.
    George E. Brahhah, for plaintiff in error.

      Julius H. Gewbke and John E. Conrad, for defendant in error.
    Abstract of the Decision.
    1. Bills and notes, § 313

      —when suit not prematurely brought on note. In an action for rent of a farm occupied under a written lease, part of the claim being based upon a note given for the rent for the first year of the term, evidence held sufficient to show that the note was due and that suit thereon was not prematurely brought.
    2. Landlord and tenant, § 330*—when judgment on note in action for rent proper. In an action for rent of a farm occupied under a written lease, a judgment based in part on a past due note given for the rent for one year of the term, held proper.
    3. Landlord and tenant, § 302*—when evidence sufficient to show payment of rent. In an action for rent of a farm occupied under a written lease, evidence held sufficient to show payment of the second year’s rent of the term, where it appeared that defendant had made a certain payment and that in the fall of such year plaintiff agreed with defendant that in consideration of defendant giving up immediate possession of the farm and leaving all crops on the ground for the use of the new tenant the lease would ho canceled and the balance he considered as paid in full; that defendant accordingly left his crops as they stood planted and that the new tenants who took possession used them under the direction of the landowner.

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

   Mr. Presiding Justice McSurelt

delivered the opinion of the court.


text:
    David W. Mankowitz, Defendant in Error, v. Kersten Company, Plaintiff in Error.
    Gen. No. 22,233.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by David W. Mankowitz, plaintiff, against the Kersten Company, a corporation, defendant, to recover damages alleged to have been sustained by the failure of the defendant to deliver certain metal purchased by plaintiff. From a judgment for plaintiff for $67.75, upon trial by the court, defendant brings error.
    Otto C. Rentner, for plaintiff in error. ■
    Fred F. Weinman and Jacob Kaplan, for defendant in error.
    Abstract of the Decision.
    Sales, § 373

      —when evidence sufficient to sustain verdict in action for damages for nondelivery of goods. In an action by the purchaser of merchandise to recover damages alleged to have been sustained by the failure of the seller to make delivery, evidence held sufficient to show that plaintiff had proved his case by a preponderance of the evidence, and that he had .sustained damage for the amount claimed.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    A. J. Bates Company, Plaintiff in Error, v. Isaac Jacobs, Defendant in Error.
    Gen. No. 22,276.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action in attachment by A. J. Bates Company, plaintiff, against Isaac Jacobs, defendant, alleging that the defendant had within two years last past fraudulently conveyed or assigned his effects so as to hinder and delay his creditors, and concealed and disposed of his property, etc. From an order dissolving the attachment, plaintiff brings error.
    The attachment writ was levied on certain goods in the store of defendant. By the affidavit of defense the indebtedness was admitted, but defendant claimed that the property levied upon was exempt from execution or levy under a writ of attachment by virtue of the statute on exemptions, and that defendant had filed the necessary schedule claiming such exemptions.
    Upon trial by the court plaintiff sought to introduce evidence tending to sustain its allegations of fraud on the part of the defendant, but the court declined to hear such evidence, holding it to be incompetent, and entered an order dissolving the attachment.
    J. J. Moser, for plaintiff in error..
    No appearance for defendant in error.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Attachment, § 43 —when evidence of fraud by debtor in making conveyance improperly excluded. Where an action in attachment is brought alleging that the defendant has made a fraudulent conveyance or assignment of his property to hinder and delay his creditors, and the defendant files a schedule claiming all of such property as exempt from execution, it is improper for the court, although it determined that all the property levied upon by the writ was included and named in the schedule of exemption, to exclude evidence tending to show fraud and to dissolve the attachment, as the proper procedure is for the court to admit such evidence and if of the opinion that the fraud alleged has been proven, enter a judgment sustaining the attachment.


author: Mr. Presiding Justice MoSurely

text:
    Albert O. Fried, Plaintiff in Error, v. Overland Motor Company, Defendant in Error.
    Gen. No. 22,445.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Albert O. Fried, plaintiff, against Overland Motor Company, defendant, to recover the purchase price paid by plaintiff for an automobile bought while plaintiff was a minor. From a judgment for defendant on a directed verdict, plaintiff brings error.
    The automobile was purchased June 14, 1913, with money which plaintiff received from his grandmother as a gift. The automobile at this time was delivered to plaintiff. On June 1, 1914, plaintiff wrote a letter to defendant stating that he had elected to disaffirm his contract, and on or about September 12, 1914, appeared at the office of defendant and tendered the car, stating that at the time of its purchase he was a minor. He claimed that he became of age on August 13, 1914. Defendant refused to accept the car, and thereupon plaintiff resumed possession of it and has kept it in his possession since that time. Plaintiff testified that during the spring and summer of 1915 he used the car and drove it upon the streets.
    Marcus J. Golden and Arthur J. Shutan, for plaintiff in error.
    Underwood & Smyser, for defendant in error; Charles E. Young, of counsel.
    Abstract of the Decision.
    1. Infants, § 23

      —when minor may not repudiate contract after reaching majority. Where a minor after becoming of age does any act clearly showing an intention to affirm a contract made by him during his minority, he cannot afterwards repudiate it.
    2. Infants, § 23*—when minor deemed to have ratified purchase made during minority. One who purchases an automobile during his minority and uses it for nearly a month after he becomes of age before he tenders it to the seller, and continues to retain possession of it and use it for nearly a year after arriving at legal age and after refusal of the seller to accept the machine, must be deemed to have ratified the purchase.

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

   Mr. Presiding Justice MoSurely

delivered the opinion of the court.


author: "Mr. Presiding Justice McSurely

text:
    Lake View Hospital Association & Training School for Nurses, Defendant in Error, v. Dr. J. M. Nicholson, Plaintiff in Error.
    Gen. No. 22,453.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Lake View Hospital Association & Training School for Nnrses, a corporation, plaintiff, against Dr. J. M. Nicholson, defendant, for the price of room, medicine, etc., furnished to one Violet H. Dixon at the special instance and request of the defendant. From a judgment for plaintiff, defendant brings error.
    Lee & Lee, for plaintiff in error.
    H. E. Wynekoop, for defendant in error.
    Abstract of the Decision.
    I. Frauds, Statute of, § 3

      —When promise to pay debt of another is void. The promise to pay the debt of another after the same is incurred is void unless made upon a consideration and reduced to writing.
    2. Frauds, Statute of, § 12*—when undertaking is original. Where goods, money or services are furnished to a third person at the request and upon the credit of the promisor, the undertaking is original and the Statute of Frauds is inapplicable.
    3. Frauds, Statute of, § 15*—when undertaking is original. WRere hospital services were furnished to a person at the special instance and request of a physician who had run over such person with his automobile and had brought her to the hospital in an unconscious condition, and such physician at the time agreed to be responsible for the bill, and statements of account, were made out to the physician and mailed to him, and no statements were ever mailed to the patient or sent to her, and she was never asked to pay the bill, the promise of the physician must be deemed an original undertaking so as to render the Statute of Frauds inapplicable.

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

   "Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    J. Austin Dunn Specialty Company for use of Thomas P. Baird, Plaintiff in Error, v. Alice L. Dunn, Administratrix, Defendant in Error.
    Gen. No. 22,472.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Haery C. Moran, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Proceeding in the Probate Court by J. Austin Dunn Specialty Company, a corporation, for the use of Thomas P. Baird, claimant, against Alice L. Dunn, administratrix of the estate of J. Austin Dunn, deceased, respondent, to establish a claim against the estate of a deceased person and for an accounting for funds alleged to belong to the claimant corporation of which the deceased had been president and who had mingled his own funds with those of the corporation. To review a judgment after trial in the Circuit Court disallowing the claim, the respondent prosecutes a writ of error.
    Abram L. Myers and Richard P. Garrett, for plaintiff in error.

      Theodore S. Chapman, for defendant in error; William E. Freer and Woodruff J. Parker, of counsel.
    Abstract of the Decision.
    1. Corporations, § 259

      —what is effect of officer mingling his funds with those of corporation. Where a president of a corporation had mingled his own funds with those of the corporation, but the books of the latter were so kept that its funds could be ascertained and separated from those of the president, held that such mingling would not entitle the corporation to claim the entire fund.
    2. Accord and satisfaction, § 6*—when settlement between corporation and officer is bar to action. Where the president of a corporation had mingled his own funds with those of the corporation and after an account stated had been made between the parties and a settlement had by the corporation paying the president the amount owing him, held that such settlement was a bar to a proceeding for an accounting between the corporation and the deceased president’s personal representative based on the theory that such mingling of funds entitled the corporation to the entire fund.
    3. Appeal and error, § 1466*—when admission of improper evidence will not justify reversal. The admission of improper evidence will not justify a reversal where the same result would have been reached had such evidence not been admitted.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. Nellie Markowski, Defendant in Error, v. Joseph Wojczekowski, Plaintiif in Error.
    Gen. No. 22,490.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Bastardy proceeding by the People of the State of Illinois on the relation of Nellie Markowski against Joseph Wojczekowski, defendant. To review a judgment against him, the defendant prosecutes a writ of error.
    E. M. Seymour, for plaintiif in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.
    Abstract of the Decision.
    1. Bastards, § 22

      —when evidence justifies judgment against the defendant. In a bastardy proceeding, evidence held to justify a judgment against the .defendant.
    2. Bastards, § 22*—when evidence sufficiently shows that child was horn alive. In a bastardy proceeding, held that the defendant’s contention that there was. no proof that the child was born alive was without merit where the child was present in court and the jury saw it.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice McSubelt

text:
    Robert R. Engels and George J. Reece, trading as Engels & Reece, Defendants in Error, v. Agnes Manning, Plaintiff in Error.
    Gen. No. 22,497.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Dennis W. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Robert R. Engels and George J. Reece, trading as Engels & Reece, plaintiffs, against Agnes Manning, defendant, for a commission for the sale of defendant’s real estate. To review a judgment for plaintiffs, the defendant prosecutes a writ of error.
    Elbert C. Ferguson, for plaintiff in error.
    Leo J. Broderick, for defendants in error.
    Abstract of the Decision.
    Bbokebs, § 90

      —when evidence shows broker was the procuring cause of sale. Where the defendant listed her property for sale with the plaintiffs who advertised it and later one of them showed it to a purchaser, who had been referred to them by another real estate agent to whom the purchaser had applied for information as to places for rent, and suggested that the purchaser buy the place and gave him the price and notified the defendant that the property had been submitted to the purchaser, and the latter returned to the office of the other agent where a sale was negotiated, held that the plaintiffs were the procuring cause of the sale and entitled to the commission.

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

   Mr. Presiding Justice McSubelt

delivered the opinion of the court.


text:
    Old Rose Distilling Company, Appellee, v. Harry Feuer, Appellant.
    Gen. No. 22,997.
    Injunction, § 80

      —when proper to enforce contract not to engage in business. Where a saloon keeper entered into a contract with a saloon proprietor to work for him for a certain number of years and not to engage in the saloon business within a certain territory, for a specified number of years thereafter, the contract being terminable by either party on written notice to the other, and, Ipefore the expiration of the agreed period' of employment, the saloon keeper terminated the contract and opened a saloon in the restricted territory, held that he was properly enjoined from conducting the saloon, the proprietor not having exercised his option to terminate the contract.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court.
    Affirmed.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Earl H. Carr, for appellant.
    Charles W. Stiefel and John B. Heinemann, for appellee.

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

   Mr. Presiding Justice McSurely

delivered the opinion of the court.

By this appeal defendant seeks to have reversed an interlocutory order which enjoined him from engaging in the saloon business within certain described territory in Chicago.

The bill alleges a contract between the complainant and defendant, made October 8, 1915, in and by which complainant agreed to employ defendant as the manager of a branch saloon at 6310 Cottage Grove avenue, Chicago, the employment to continue for a period of five years from January 1, 1916. The defendant was to receive as compensation for his services $150 a month, and an increase if the business was satisfactory. ^ As additional compensation he was to receive ten per cent, of the net profits. The defendant agreed to give his entire time to this employment and not to engage in any other business during the term of employment. He also agreed in consideration of this employment and the payment of compensation that he would not engage in the saloon business in certain specified territory in the blocks surrounding No. 6310 Cottage Grove avenue for a period of three years after the expiration or termination of the contract or any renewal thereof. It was further agreed that the contract might be terminated by either of the parties on two weeks’ written notice to the other. The bill alleges that the defendant managed said business and continued to do so until about April 5, 1916, when he terminated the contract and ceased his employment with the complainant. The bill represents that on or about April 17th he began to conduct a saloon and liquor business at the building next adjoining the branch saloon of complainant at 6310 Cottage Grove avenue, which was in the prohibited territory described in the contract and contrary to his agreement, and has since such time continued to conduct a saloon at that place. Upon this bill the injunctional order was entered.

In the opinions in some cases in this State it has been said that a suit to enjoin the breach of a negative covenant is governed by the same rules as a suit for specific performance. Ulrey v. Keith, 237 Ill. 284; Cincinnati Exhibition Co. v. Johnson, 190 Ill. App. 630; Bartholomae & Roesing Brewing & Malting Co. v. Modzelewski, 269 Ill. 539. As opposed to these, see reasoning in the opinion in Guffey v. Smith, 237 U. S. 101, 115. In these cases the option to terminate was reserved to one of the parties only. In the contract before us either party had the right to terminate.

Based upon the decisions in this State, the defendant argues that complainant cannot enforce the covenant in question because there is lack of mutuality in the enforcibility of the obligations of the contract. Is the covenant of defendant not to open another saloon near by nonenforcible at the instance of complainant because complainant may avoid performance of its covenants by exercising its option to terminate?

While recognizing the rule stated in Ulrey v. Keith, supra, we do not think this is a case for the application of it. We have here a trusted employee given peculiar opportunities to acquire a position of importance to his principal and of advantage to himself, who, as a condition of being so placed, agrees to refrain from doing that which would harm his principal, and subsequently violates that agreement. Courts will go to extreme lengths to prevent agents or those occupying fiduciary capacities from tailing advantage of their position to benefit themselves at the expense or disadvantage of their principal. Here, as manager of complainant’s business, the defendant was in a position to make the patronage largely a matter of personal following which he probably could take with him to another place in the neighborhood. Realizing this, it was entirely fair that he should contract not to use this position to the harm or disadvantage of the complainant, his principal. He has violated his agreement by opening a saloon next door to that of complainant. It comes with ill grace for him to say that he ought not to be restrained because perchance complainant might at some time exercise its option to terminate the contract. This option, which has not been exercised, is not an obstacle to the relief sought.

For the reasons above indicated the injunctional order is affirmed.

Affirmed.


author: Mr. Justice Dever

text:
    Emilio Longhi, trading as Italian & Greek Products Company, Plaintiff in Error, v. Frederick Sabatini, Defendant in Error.
    Gen. No. 21,451.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard In this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    • Action by Emilio Longhi, trading as Italian & Greek Products Company, plaintiff, against Frederick Sabatini, defendant, to recover money alleged to have been collected by the defendant while acting as agent for the plaintiff. To review a judgment for defendant, plaintiff prosecutes a writ of error.
    Caxroli Gigliotti, for plaintiff in error.
    No appearance for defendant in error.
    Abstract of the Decision.
    1. Appeal and error, § 1034

      —what Appellate Court will not take judicial notice of. The Appellate Court cannot take judicial notice of the rules of the Municipal Court of Chicago.
    2. Appeal and error, § 1319*—when ruling on motion in trial court presumed correct. Where a reversal was sought on behalf of a defendant on the ground that the trial court had erroneously refused to grant a postponement of the trial because the defendant’s attorney was actually engaged in the trial of a case in another court, held that as no affidavit was presented to the trial court at the time the motion was made, the Appellate Court had no means of determining on the record whether the action of the trial court was or was not an abuse of discretion, the presumption being that the court acted legally and fairly.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Julian U. Malmin, Defendant in Error, v. Julius Sternheim, Plaintiff in Error.
    Gen. No. 22,150.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Julian IT. Malmin, plaintiff, against Julius Sternheim, defendant, to recover for personal injuries sustained by the plaintiff’s being struck, while bathing at a public bathing beach, by a motor boat operated by the defendant. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    The testimony of plaintiff and his witnesses tends to prove that between three and four o’clock on the afternoon of Saturday, July 17, 1915, the plaintiff, in company with two friends, was bathing in Lake Michir gan at Wilson Beach in Chicago; that at the time of the accident he was about one hundred feet east of the shore line; that a large number of people were bathing at the beach at the time; that just before being struck plaintiff had dived, and as he came to the surface of the water a motor boat driven by the defendant struck him.
    Defendant testified that he was driving the motor boat along the beach in a northerly direction; that when he reached the beach he saw 4 or 5 people in the water about one hundred feet ahead of him and eight feet west of the line upon which his boat was moving; that he blew his signal horn and went “right along on my right of way. ’ ’
    The evidence shows that there was a diving stand built out in the water at a point from twenty-five to fifty feet south of the place where plaintiff was struck. In testifying, the defendant said that in his course north he ran about one hundred feet east of this stand, and that he was going to the beach to go in bathing. Other witnesses testified that there were about 2,000 people bathing in the water in the immediate vicinity of the place where this accident happened.
    Soboroee & Newman, for plaintiff in error; Hyman Soborofe, of counsel.
    Lucius J. M. Malmin, for defendant in error.
    Abstract of the Decision.
    1. Navigable waters, § 11

      —when evidence justifies judgment for bather injured by motor boat. In an action for personal injuries sustained by .the plaintiff while bathing at a public bathing beach as the result of being struck by the defendant’s motor boat, evidence held to justify a judgment for the plaintiff.
    2. Navigable waters, § 11*—what degree of care required in operating motor boat at bathing beach. Even if a person has a legal right to operate a motor boat at a crowded bathing beach, he must be held to the care which an ordinarily prudent person would exercise under such circumstances.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Deter

text:
    Emily Goldschmied, Defendant in Error, v. National Council, Knights and Ladies of Security, Plaintiff in Error.
    Gen. No. 22,199.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. New-combs, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Emily Goldschmied, plaintiff, against National Council, Knights and Ladies of Security, defendant, on a benefit certificate issued by defendant upon the life of plaintiff’s husband. From a judgment for plaintiff, defendant brings error.
    The defendant was a fraternal benefit society, having its principal place of business at St. Louis, Missouri. On February 27, 1906, it issued, through Future Great Council No. 1367, a subordinate lodge, a benefit certificate to Arthur Goldschmied, and the plaintiff, his wife, was named therein as the beneficiary. Goldschmied died on March 16,1914. The defense to the action brought by his widow on the benefit certificate was that Goldschmied at the time he became a member of the defendant society was engaged in business as a saloon keeper, and that saloon keepers, as a class, were prohibited from membership in this society, that in his application for membership Goldschmied had falsely stated that he was by occupation a restaurant keeper, and that he had warranted this statement to be true.
    It was provided in the benefit certificate admitted in evidence that if the representations made in the application for the certificate were not true in every respect, then the certificate should be considered null and void, and that if the applicant was at the time he signed such application or thereafter became engaged in a prohibited employment, such certificate also was to be held void. The by-laws of the defendant were to -the same effect. Section 120(a) of defendant’s bylaws in force at the time of Goldschmied’s death was as follows:
    “National Council not bound by knowledge of or NOTICE TO OFFICERS OR MEMBERS OF LOCAL COUNCILS. No officer of this society nor any local council officer, nor member thereof, is authorized or permitted to waive any provisions of the by-laws of this society, which relate to the contract between the member and the society, whether the same be now in force or hereafter enacted. Neither shall any knowledge or information obtained by or notice to any subordinate council or officer or member thereof, or by or to any other person be held or construed to be the knowledge or notice to the National Council or the officers thereof, until after said information or notice be given in writing to the National Secretary of the Order.”
    Section 169 of the by-laws is in part as follows:
    “The National Council shall not be liable for any negligence in any of these matters, nor be bound by any irregularity, neglect or illegal action by a subordinate council or by any of its officers.”
    The by-laws introduced in evidence on the trial indicated that from the time Goldschmied became a member of this organization up to the time of his death there was a provision in the by-laws that prohibited saloon keepers from membership in the order. Plaintiff testified that she was present at the time of the examination of deceased; that there were also present Mr. Grenzebach, who was acting as assistant deputy to Mr. Biby, the district manager for defendant society at St. Louis, and two other men; that the examination of deceased was had in the saloon; that Dr. Becker asked questions of the deceased and that the doctor and Mrs. Grenzebach, financier of Future Council No. 1367, wrote down deceased’s answers; that the deceased at the time could speak only a few words of English, and that Dr. Becker talked to him in German; that she, plaintiff, could remember all the conversation had during the examination; that the doctor did not ask her husband “what was his business”; that before her husband signed the application the doctor read it over to her and her husband in the presence of all who were there, and that after that her husband signed it; that the doctor did not read that her husband’s occupation was that of restaurant keeper; that every one present talked in German; that the doctor read the application in English and explained it in German.
    The different local lodges of which deceased was a member for nine years received the dues and assessments paid by him, and on several occasions the. officers went to his saloon and made collections from the deceased and also from the plaintiff, who became a member of the society at the same time as her husband. The doctor who examined deceased at the time the application was signed was also the president of the local lodge. On that occasion he drank two glasses of beer that were served to him by deceased, and he testified that at the time he examined deceased he supposed that deceased had some authority in the saloon, whether as bartender or otherwise. On one occasion, at a meeting of a local lodge of defendant in Chicago, deceased informed the members, certain officers being present, that he had bought a saloon at 158 North Green street, and he invited everybody present to call on him. It further appeared that J. N. Bair, district manager for the defendant in Chicago, was notified about a month before the death of Goldschmied that he was a saloon keeper, and that he, Bair, had made some inquiry at the city hall to determine whether Goldschmied had been granted a license.
    A. W. Fulton, for plaintiff in error.

      Anderson, Anderson & Anderson, for defendant in error.
    Abstract of the Decision.
    1. Insurance, § 726

      —what is status of subordinate lodge. The local lodges of a fraternal benefit society are the agents of the supreme lodge, and knowledge which comes to these agents within the scope of their employment is chargeable to the principal.
    2. Insurance, § 904*—when evidence insufficient to show fraud and collusion. In an action on a benefit certificate, evidence held insufficient to show fraud and collusion between the insured and the officers of the local lodge.
    3. Insurance, § 761*—when applicant not bound by false answers inserted by examining physician. Where one makes answer to the questions in an application for insurance, the validity of the insurance is not affected by the falsity of the answers inserted by the examining physician as agent of the company.
    4. Insurance, § 727*—when local lodge of fraternal benefit society may waive by-laws of supreme lodge. The local lodge of a fraternal benefit society may waive by-laws of the supreme lodge relative to forfeiture for engaging in a prohibited occupation.
    5. Insurance, § 761*—when right to forfeit benefit certificate is waived. A local lodge of a fraternal benefit society must be deemed to have waived the right to forfeit a member’s benefit certificate upon the ground of a misrepresentation as to being engaged in a prohibited occupation, that of saloon keeper, so as to bind the supreme lodge, where the examination of deceased was had in a saloon operated by the deceased by a physician who was also president of the local lodge, and the different local lodges of which deceased was a member for nine years received the dues and assessments paid by him, and on several occasions the officers went to his saloon and made collection from deceased and also from the plaintiff, who had become a member of the society at the same time as her husband, and where it also appeared that the district manager for defendant was present at the time of such examination and that another district manager for the defendant, upon notification about one month before the death ‘bf the insured that he was a saloon keeper, made inquiry to determine whether the insured had been granted a license.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same Copio and section number.

   Mr. Justice Deter

delivered the opinion of the court.


text:
    Joseph Marks, Plaintiff in Error, v. Chicago City Railway Company and Chicago Railways Company, Defendants in Error.
    Gen. No. 22,247.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by Joseph Marks, plaintiff, against the Chicago City Railway Company and Chicago Railways Company, defendants, to recover damages for personal injuries as the result of being struck by a street car of the defendant Chicago City Railway Company. From a judgment for defendants upon a directed verdict, plaintiff brings error.
    Sass & Hood, for plaintiff in error.
    Warren D. Bartholomew and Frank L. Kriete, for defendants in error; W. W. Gurley and J. R. Guilliams, of counsel.
    Abstract of the Decision.
    1. Street railroads, § 100

      —when person working near track not guilty of contributory negligence. One who is standing at the side of a wagon near a street car track with his back towards an approaching street car and is engaged with another person in tying on the load, and does not look to see whether a car is approaching and does not have any notice of the approach of the car by the ringing of the bell, or otherwise, until warned by his coemployee, is not guilty of contributory negligence as a matter of law.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Stbebt batlboads, § 133 —when negligence in operation is question for jury. It is a question for the jury whether a street railroad company is guilty of negligence in the operation of its car resulting in the striking of a person who is standing at the side of the wagon near the track with his back towards the approaching car and is engaged with another person in tying on the load, where it appears that the accident occurred near a street intersection, that the car was moving fast at the time such person was struck and that the day was clear; that there were no obstructions that in any way limited the power and opportunity of the motorman to see such person where he was engaged at his work about the wagon, and that no bell was rung or warning given by the motorman or other persons in charge of the car of its approach to such street intersection.


text:
    William C. Miller and Alfred Hall, copartners, trading as Miller & Hall, Defendants in Error, v. Joseph Burns, Plaintiff in Error.
    Gen. No. 22,317.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Samuel H. Trude, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by William O. Miller and Alfred Hall, co-partners, trading as Miller & Hall, plaintiffs, against Joseph Bums, defendant, to recover for services as architects in making plans, drawings and specifications and taking cost estimates for making certain alterations in defendant’s store premises. From a judgment for plaintiff for $110, defendant brings error.

      Albert H. Fry, for plaintiff in error.
    Arthur A. Basse, for defendants in error.
    Abstract of the Decision.
    Architects and engineers, § 16

      —when evidence sufficient to sustain judgment for plaintiffs in action to recover for services. In an action by architects to recover for services in making plans, drawings and specifications and in taking cost estimates for making certain alterations in defendant’s store premises, evidence held sufficient to sustain a judgment for plaintiffs.

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

   Mr. Justice Deter

delivered the opinion of the court.


text:
    W. A. L. Schaefer, Appellant, v. Benjamin G. Elser et al., Appellees.
    Gen. No. 22,446.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded with directions.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Bill by W. A. L. Schaefer, a corporation, complainant, against Benjamin Gr. Elser et al., defendants, to foreclose a mechanic’s lien against certain real estate of defendant Elser. From a decree modifying the master’s report in which the complainant was allowed the full amount of its claim, complainant appeals, and defendant Elser assigns cross error.

      Albert Goetz, for appellant.
    Francis J. Sullivan and Thurecan, Hume & Kennedy, for appellee Benjamin G. Elser.
    Abstract of the Decision.
    1. Building and construction contracts, § 65

      —When decision of engineer may be impeached. The decision of an engineer pursuant to a contract providing that any controversy or dispute arising under it should be settled by the engineer, whose decision was to be binding upon the parties, may be impeached for fraud or mistake.
    2. Building and construction contracts, § 65*—what are not final certificates. Certificates issued by an engineer before all the requirements of a building contract are met are not final certificates so as to be conclusive upon the parties under a contract providing that in case of controversy or dispute the engineer’s decision in case of final certificates shall be binding upon the parties.
    3. Building and construction contracts, § 52*—what amount owner may deduct from contract price where building contract not substantially performed. Where a building contract is not executed in substantial compliance with its terms, the owner has the right to deduct from the contract price what it would cost him to make the building conform to the plans and specifications agreed upon.
    4. Damages, § 14*—what is basis for rules of assessment. The rules for the assessment of damages are based, in general, upon the principle of compensation.

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

   Mr. Justice Dever

delivered the opinion of the court.


text:
    Annie Quinlivan, Administratrix, Plaintiff in Error, v. Ready & Callaghan Coal Company, Defendant in Error.
    Gen. No. 22,455.
    (Not to be reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in this court at the October term, 1916.
    Reversed and remanded.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Annie Quinlivan, administratrix of the estate of James Quinlivan, deceased, plaintiff, against Ready & Callaghan Coal Company, defendant, to recover for the death of James Quinlivan, a child four years old, resulting from being run over by a dump wagon which was attached to a sprinkling wagon operated by one of defendant’s teamsters. From a judgment for defendant upon a directed verdict, plaintiff brings error.
    C. S. Q ’Meara, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; Edward W. Everett, of counsel.
    Abstract of the Decision.
    1. Negligence, § 162

      —when evidence as to conduct of child at and after accident is admissible. In an action for the death of a child four years old which was run over by a dump wagon which was attached to a sprinkling wagon, held that, although it was admitted that the death of deceased was caused by his being run over by the dump wagon, evidence as to his conduct and actions at and just before the occurrence of the accident was admissible.

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

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

   Mr. Justice Dever

delivered the opinion of the court.

2. Negligence, § 191 —when negligence of driver of wagon in injuring child is question for jury. In an action for the death of a child four years old which was run over by a dump wagon which was attached to a sprinkling wagon, where it appeared that the driver of the sprinkling wagon was seated upon a high seat in such a position that he might have seen, had he looked, what a crowd of children were doing at the time of and just before the accident; that the horses were walking, and that the driver did in fact see these children as he approached them, held that it was a question for the jury to determine whether the driver might have anticipated that any one of these children would, under the circumstances, do as deceased did and by the exercise of reasonable care could have avoided the accident.


text:
    Abraham Cohn, Defendant in Error, v. I. Wolf, Plaintiff in Error.
    Gen. No. 22,491.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd T. Wade, Judge, presiding. Heard in this court at the October term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by Abraham Cohn, plaintiff, against I. Wolf, defendant, to recover damages to the premises of plaintiff, which had been rented to defendant, as the result of chopping wood therein, tearing off wall paper, knocking holes in the plastering and breaking the woodwork. From a judgment for plaintiff for $56, defendant brings error.
    George B. Cohen, for plaintiff in error.
    No appearance for defendant in error.

      Abstract of the Decision.
    1. Landlord and tenant, § 197

      —when evidence sufficient to sustain verdict for damage to premises. In an action by a landlord against a tenant for damage to the premises sustained as the result of the tenant chopping wood in the premises, tearing off wall paper, knocking holes in the plastering and breaking the woodwork, evidence held sufficient to sustain a verdict for plaintiff.
    2. Appeal and error, § 1411*—when verdict on conflicting evidence will not be disturbed. Where there is a sharp and apparently irreconcilable conflict in the testimony, the Appellate Court will not disturb the conclusion reached by the jury.

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

   Mr. Justice Dever

delivered the opinion of the court.


author: Mr. Justice Holdom

text:
    The People of the State of Illinois, Defendant in Error, v. Clyde Travis, Plaintiff in Error.
    Gen. No. 22,083.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph H. Hopkins, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Proceeding by information by the People of the State of Illinois against Clyde Travis, defendant, charging him with knowingly causing, aiding and encouraging the delinquency of a female child under the age of eighteen years. To review a conviction, the defendant prosecutes a writ of error.
    Beauregard F. Moseley, for plaintiff in error.

      Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.
    Abstract of the Decision.
    1. Infants, § 5a

      —token indictment sufficiently charges defendant with causing delinquency of child. In a proceeding by information charging the defendant with causing the delinquency of a female child under the age of eighteen years, held that, lacking a motion to quash before the conclusion of the State case, the information was sufficiently certain in its language to charge the offense.
    2. Infants, § 5a*—when evidence justifies conviction on charge of causing delinquency of child. A conviction under an information charging the defendant with causing the delinquency of a female child under the age of eighteen years in the City of Chicago, held justified where the evidence showed that the defendant met the girl out of the State, that she came to Chicago at the instigation of the defendant, that he paid her expenses and had sexual intercourse with her in Chicago.
    3. Witnesses, § 296*—what does not discredit testimony. In a proceeding by information charging the defendant with causing the delinquency of a female child under the age of eighteen years, held that the contention of the defendant’s counsel that the delinquent girl, being admittedly unchaste, was not worthy of belief, and that therefore her evidence was discredited and should have no weight, was untenable.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    John Forrest, Executor, Defendant in Error, v. John F. Delaney, Plaintiff in Error.
    Gen. No. 22,161.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry- Olson, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Statement of the Case.
    Action by John Forrest, executor of the estate of Francis Forrest, deceased, plaintiff, against John F. Delaney, defendant, on a promissory note. To review a judgment for plaintiff, defendant prosecutes a writ of error.
    The defense was want of title in plaintiff to the note in suit. The maker of the note was the defendant. The payee was Mrs. Annie Forrest. It was dated May 6, 1914, payable five months after date, and indorsed as follows:
    “Pay to the order of John Forrest. F. A. Forrest, husband of Annie Forrest, now deceased. John Forrest, Executor of the Estate of Francis A. Forrest, deceased. John Forrest.”
    Annie Forrest predeceased her husband, Francis Forrest. Administration was granted upon her estate by the Probate Court of Cook county. On June 17, 1915, an order was entered in her estate finding inter alia that said deceased left her surviving her husband, Francis Forrest, and no children her surviving; that said Francis Forrest has since died; that his estate is in course of administration in said court; that all of the assets of the estate were in the possession of the executor of the estate of Francis Forrest, deceased; that the best interests of both estates can be conserved by and through the administration of the estate of Francis Forrest; and ordering that the administratrix of the wife’s estate be excused from filing an inventory, making publication for claims, and discharging the administratrix from further duty. Proof of grant of letters testamentary to John Forrest upon the estate of Francis Forrest was also made.
    B. Gr. Neville, for plaintiff in error.
    Frank H. Bowen, for defendant in error.
    Abstract of the Decision.
    Bills and notes, § 319

      —when evidence shows title to note in plaintiff. Where, in an action on a promissory note made by the defendant, the evidence showed that the payee thereof had died intestate leaving her husband but no children surviving, that the note was indorsed by her husband to the plaintiff, who, on the husband’s death, became his executor, that an order in the administration of the payee’s estate had been made discharging her administratrix and ordering that her estate be administered by the plaintiff, in whose hands all the assets of such estate had come, held that the defendant’s contention that the plaintiff had not shown such title to the notes as would entitle him to maintain suit was untenable.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
      L. J. Anshen Company, Defendant in Error, v. Sol. A. Iglowitz, Plaintiff in Error.
    Gen. No. 22,220.
    Bills and notes, § 86

      —When one signing name on hack of note not a guarantor. One, not otherwise a party to a negotiable promissory note, who had placed his name on the back thereof, held not a guarantor but an indorser, so that notice to him of presentment for payment and dishonor was necessary to hold him liable thereon.
    Error to the Municipal Court of Chicago; the Hon. Habry Olson, Judge, presiding. Heard in this court at the March term, 1916.
    Reversed and judgment of nil capiat here.
    Opinion filed December 18, 1916.
    Bernard J. Brown, for plaintiff in error.
    Franklin N. Wood and William Gr. Lesemann, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error presents for review the proceedings which cnlminated in a judgment for $153.12 entered on the verdict of a jury instructed by the trial judge.

The action is based upon a note for $150, in which one S. Myers was the maker, plaintiff the payee, and on the back of which note defendant placed his name.

The real question presented for our decision is whether the'liability of defendant is that of guarantor or indorser. The learned trial judge instructed a verdict upon the legal theory that defendant was a guarantor and primarily liable and was not entitled to notice of nonpayment by the maker. By the law merchant such was the liability of defendant, but the liability of defendant is controlled and environed, as we think, by the Negotiable Instruments Act in force July 1, 1907, and embodied in the statutes of this State as chapter 98 (J. & A. ¶ 7618 et seq.). The precise question here presented has not so far been decided by our Supreme Court; at least we have not been referred to any such decision, and an independent search on our part has failed to disclose any.

Plaintiff introduced in evidence a protest of the note for nonpayment after a demand made for payment at the Continental and Commercial National Bank at Chicago, and as the note was by its terms payable at any bank in Chicago, such demand was sufficient. Protest by section 135 (J. & A. ¶ 7757) of the Negotiable Instruments'Act, supra, is required only of foreign bills. There is no proof in the record that either a written or verbal notice of nonpayment by the maker was at any time given to defendant.

By section 81, ch. 98, supra (J. & A. ¶ 7702), defendant is an indorser of the note in suit. This section reads: “A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless he clearly indicated, by appropriate words, his intention to be bound in some other capacity”; and by the succeeding section (J. & A. ¶ 7703) it is provided that, “Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as an indorser * * *.” And by section 88 (J. & A. ¶ 7710) presentment for payment is necessary in order to charge an indorser. By section 106 (J. & A. ¶ 7728) it is provided that “* * * when a negotiable instrument has been dishonored by nonacceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.” It is also provided in the act that such notice may be waived by a stipulation in the instrument sued on, which will bind all parties, but where such waiver is written above the signature of an indorser, it binds only such indorser. A waiver may be either expressed or implied. By section 209 (J. & A. ¶ 7831) it is provided that, “The person ‘primarily’ liable on an instrument is the person who, by the terms of the instrument, is absolutely required to pay the same. All other parties are ‘secondarily’ liable.”

We are of the opinion that under the Negotiable Instruments Act, supra, defendant is an indorser of the note in suit and secondarily liable thereon as such. The sections of the Negotiable Instruments Act, supra, are the same as those contained in the code of the State of New York, and there being no decisions of our own Supreme Court construing the several sections here involved, we will have recourse to the decisions of the courts of New York which appeal to us as correct interpretations of the effect to be given in law to such sections.

In J. W. O’Bannon Co. v. Curran, 129 N. Y. App. Div. 90, 113 N. Y. Supp. 359, the court say in regard to an irregular indorsement by a party not otherwise liable on the note: •

“Prior to the enactment of the negotiable instrument law * * * it was held that an indorser, of a note * * * was not discharged by an omission to demand payment and to give notice of nonpayment, where such omission could not possibly operate to his injury. * * * The negotiable instruments law, however, provides that due presentment and notice of dishonor are necessary to charge an indorser.” First Nat. Bank of Binghamton v. Baker, 163 N. Y. App. Div. 72, 148 N. Y. Supp. 373; Carroll v. Sweet, 128 N. Y. 19; Kelly v. Theiss, 65 N. Y. App. Div. 146, 72 N. Y. Supp. 467.

We therefore hold that defendant, under the law of this State as it now exists, was an indorser of the note in suit, and that, to hold him liable as such indorser, notice to bim of presentment for payment and dishonor was necessary; that the failure to give such notice discharged him from all liability as such indorser.

As no cause of action exists against defendant as an indorser of the note in- suit, the judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs entered in this court.

Reversed and judgment of nil capiat here.


text:
    James J. Edwards, Appellee, v. Prest-O-Lite Company, Appellant.
    Gen. No. 22,308.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the March term, 1916.
    Affirmed.
    Opinion filed December 18, 1916.
    Rehearing denied December 29, 1916.
    Statement of the Case.
    Action by James J. Edwards, plaintiff, against Prest-O-Lite Company, a corporation, defendant, for personal injuries sustained by the plaintiff as the result of the defendant’s running into an automobile truck which the plaintiff was repairing in an alley. From a judgment for plaintiff for $2,250, defendant appeals.
    WilliS G. Shockey, Wiley W. Mills and Henrietta Krighel, for appellant.
    James V. Cuuniugham, for appellee; Charles A. Scott, of counsel.

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

   Mr. Justice Holdom

delivered the opinion of the court.

Abstract of the Decision.

1. Trial, § 215 —when refusal to direct verdict not erroneous. It is not erroneous for the trial court to refuse to direct a verdict for the defendant where the evidence presents a question for the jury as to the negligence of the defendant.

2. Automobiles and gabages, § 3*—when evidence shows negligent operation of defendant’s auto truck. In an action for personal injuries sustained by the plaintiff while repairing his automobile truck in an alley twenty-one feet wide, as the result of the truck’s being struck by the defendant’s automobile truck, which was seven feet wide, evidence held to show that the defendant was negligent in the operation of his truck and that such negligence was the proximate cause of the injury.

3. Appeal and ebbob, § 1420*—when error in trial court will not reverse. When the Appellate Court can see from the record that an error committed by the trial court in progress of the case was a harmless one, or that its injurious effect of a harmless character was obviated, so as not to affect injuriously, in the final judgment, the rights of the party against whom the error was committed, it should not be allowed to work a reversal.