author: Me. Justice BbowN

text:
    Catherine Murtha, Defendant in Error, v. John J. O’Heron, Plaintiff in Error.
    Gen. No. 17,280.
    1. Adjoining landowners — water. One adjoining owner is liable to another for damage caused by waste water flowing from his barn upon the premises of the other.
    2. Easements — when not created by contract. A contract for the sale of land providing that the purchaser shall have the right to connect with sewer pipes through an adjacent lot does not create an easement where it does not appear that vendor is the owner of the adjacent lot.
    3. Deeds — construction. A provision in a deed that it is given “in fulfillment” of a contract means in satisfaction of the contract and that the deed expresses the final and entire contract between the parties.
    4. Easements — where deed is “in fulfillment” of contract. Where a contract for the sale of. a lot provides that the purchaser shall have the right to use sewer pipes across an adjacent lot, a deed which provides that it is given “in fulfillment” of the contract does not include or grant an easement for such user.
    5. Easements — where user is invisible. No prescriptive title arises from the use of an invisible and unknown drain.
    6. Easements — duties of dominant owner. Where defendant has an easement to maintain a sewer pipe across plaintiff’s lot, it is his duty at his own risk, regardless of negligence or knowledge of any defect, to keep it in repair, and to keep sewage from passing otherwise than along the accustomed channel.
    7. Damages — when reasonable. A judgment for $100 for damage to plaintiff’s premises by fiowage is not unreasonable where there is evidence that $39.14 was expended in determining the cause of flooding, that two months rent at $12 a month was lost and that undermining of plaintiff’s house made it drop several inches.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed March 24, 1913.
    O ’DoNNell & O ’DoNNell, for plaintiff in error.
    Benjamin F. J. O’Dell, for defendant in error; Fbanois Stanley Rickcobds, of counsel.
   Me. Justice BbowN

delivered tlie opinion of the court.

This writ of error is brought to reverse a judgment of the Municipal Court of the date of December 17, 1910, for $100 and costs, rendered in favor of Catherine Murtha, plaintiff below, and defendant in error here, against John J. O’Heron, defendant below and plaintiff in error here.

The suit in which the judgment was obtained was based on the following facts: The defendant, 0 ’Heron, is the owner of Lot 18 in Cochran’s Subdivision of Block 15 in the Canal Trustee’s Subdivision of the S. E. ^4 of Section 17, T. 39 North, Range 14 East of the Third Principal Meridian in Chicago. This lot fronts west on Norton street and is 24 feet wide and 106.5 feet deep. Its rear is adjacent to and coterminous with the rear of Lot 15 in the same subdivision, which is of the same width and 100 feet long and which fronts east on South May street, which runs north and south parallel to Norton street. Catherine Murtha, the plaintiff, is the owner of said lot.

On lot 18 fronting west on Norton street is a barn in which the defendant has, or had at the time of the matters involved in this case, twenty or more horses.

A sewer from the barn carries off the urine from the barn and other sewage to a sewer on Norton street, but the water which overflows from the horses drinking trough in the bam flows through another sewer which runs from the barn through the rear end of the lot and connects with a catch basin in Lot 15 and through that with a sewer in May street.

Lot 15, when this case was begun and tried, was improved by a frame cottage built on wooden posts.

O ’Heron became the owner of Lot 18, together with Lots 17 and 19 (lying respectively south and north of Lot 18) on July 13, 1908, by warranty deed from one Lynch, who apparently secured his undivided title through some release from or partition with one Dexter, who with Lynch was the grantee in a warranty deed of Lots 18 and 19 by Valentine Partenheimer and wife to Dexter and Lynch jointly, March 24, 1886. This deed includes no express statement of any easement over Lot 15, bnt contains this clause:

“This deed is given in fulfillment of an agreement of sale recorded in the Recorder’s Office of Cook County in Book 1776, page 94.”

The agreement of sale thus identified was between Partenheimer and wife on the one hand and Dexter and Lynch on the other, for the conveyance of said Lots 18 and 19. It is dated March 9, 1886, and contains the following addendum to the description of those lots:

“Hereby giving said party of the second part the right to connect with the sewer and water pipes through Lot 15 of same subdivision.”

The only evidence concerning the devolution of the title of Lot 15 to Catherine Murtha, who testified that she was the owner of it at the time of the suit and of the injury complained of in it, was that of O’Heron, who is reported by the statement of facts as saying that

“At the time the said Valentine Partenheimer and Eliza, his wife, entered into the said agreement with said Lynch and Dexter for the purchase of Lots 18 and 19 or within a few months afterwards, they were also the owners of said Lot 15 now owned by the plaintiff, Catherine Murtha.”

O’Heron also testified that he was informed by Lynch and by the attorney who examined the title to Lots 17, 18 and 19, when he purchased them, that he had an easement over Lot 15, for the purpose of running the sewer and water pipes which led from his barn to the main sewer in South May street, and that the sewer and water pipes were laid in Lot 15 and were in use then and for some time previous, and that before he purchased said Lots 17,18 and 19, he entered upon Lot 15 and saw the catch basin upon the said lot to which the sewer pipe ran from bis barn, there being no leak at that time, he says, that he could see.

December 21,1909, 0’Heron found tbe water snpply pipes in bis barn were frozen and discovered that tbe basement or cellar under tbe barn was filled with water and ice. Investigating further through plumbers and sewer builders be discovered that tbe sewer pipe running from bis barn bad been cut off on Lot 15 by tbe plaintiff and tbe end bricked up. O’Heron testified that thereupon be directed bis plumber and sewer builder to open tbe said sewer and again connect it with the catch basin in tbe yard of tbe plaintiff, which connected with tbe sewer on May street. Apparently this new or renewed connection was made, for tbe “Statement of Facts” represents that tbe defendant as testifying that be employed competent plumbers and sewer builders to do this sewer and plumbing work and to make tbe necessary connections; but it does not appear from tbe record whether tbe unobstructed connection now exists or not. In January, 1910, Mrs. Mur-tha wrote O’Heron at least two letters complaining of tbe presence of tbe sewer and water pipes from Lot 18 in her lot, tbe last one ordering him to remove them. Whether this was done or not does not appear. Tbe defendant testified “that at no time prior to tbe bringing of this suit did tbe plaintiff claim any damages because tbe sewer pipes leaked or that she paid out any money to carpenters for raising tbe bouse, or that she lost any money because her cottage was not rented, but that she told him that she hired a plumber to stop up tbe pipes in her lot because she thought that be bad no right to have bis pipes in her lot.”

However on March 17, 1910, she began suit against O’Heron in tbe Municipal Court, declaring in her Statement of Claim that her claim was for damages sustained, money expended for plumbing and use of yard, sewer pipes and catch basin.

Ordered to file a more specific statement tbe plaintiff filed tbe affidavit of her attorney that:

“the nature of plaintiff’s demands is for money expended by her for plumbing services in tbe repair and construction of certain broken, defective and leaking sewer and pipes leading to tbe catch basin on her premises at No. 341 South May street, Chicago, during the spring, summer and fall of 1909, from the barn of the defendant of the adjoining property, and for the use of plaintiff’s yard and pipes by the defendant extending from her catch basin and through her yard to the defendant’s barn, and further for damages sustained by said plaintiff as a result of water leaking in her basement from said broken pipes, for the vacancy of her premises caused by said leak, and the consequent .loss of rent and damage to said property, its foundation, walls, etc., and for the opening up and resultant damaging condition of plaintiff’s yard;” all, as the statement says, amounting to $150.

Ordered again to file a more specific Statement of Claim, the plaintiff thus tabulated it in a document filed May 10, 1910:

“Money expended by plaintiff for plumbing services, etc., as alleged in affidavit of claim,
$ 39.14
Loss of rent for plaintiff’s premises as alleged in said affidavit of claim for the months of towit: November and December, 1905, and January, February, March, April, May,
June, July and August, 1905,
72.00
(Note: The dates seem to be plainly clerical errors for 1909 and 1910 respectively.)
Incidental expenses incurred, inconvenience caused and unliquidated damages sustained and claimed,
38.86 $150.00”

"When the case came on for trial the plaintiff Murtha testified that in November, 1909, she ascertained that the yard and basement or first floor of the cottage on her Lot 15 were flooded with water and sewage, which caused the earth to give way in the rear of her house, washed away the dirt from the rear of the basement around the wooden posts, and made the rear of the house drop several inches. Thereupon she employed a plumber, one McNamara, who testified at the trial. On his digging np the ground and investigating he ascertained that the sewer pipe running from the barn on Lot 18 was broken and leaking. He cut off the pipe and stopped it up. There was nothing in the testimony of the plaintiff about the restoration of the pipe and flow of water in December or January by the defendant, as sworn to by the latter.

It seems quite clear to us, from the statements of claim by the plaintiff and by the report of her testimony and that of the witnesses produced by her, that the damage for which the plaintiff sued was that which, as she alleged, was done to her and her property by the leak or break in November before she had the pipe stopped up.

The attitude of the defendant, however, below and in this court, makes it doubtful whether he did not consider himself as defending chiefly at least against a claim for damages resulting from his removing in December or January the obstructions to the flow of water which had caused the flooding of his barn.

We do not deem it very material, however. In either case the water and sewage which did the damage flowed through Lot 15 from Lot 18 with the knowledge and consent of the defendant, as shown by his own testimony and under a claim by him that he had an easement for such a sewer or drain pipe.

That he had such an easement is denied by the plaintiff.

Whether he did or not, we think that he was liable for any damage done by a break or leak in the sewer pipe.

If he did not have an easement, he was liable on primary principles for, without right, so disposing of the waste water and sewage from his barn as to injure his neighbor.

We do not think on the record in this case it can be said that the defendant, on whom the burden rested, established his right to the easement which he claimed.

In the first place, although the claim of the easement depends entirely on the provision heretofore quoted from the contract between Partenheimer and Lynch & Dexter, Partenheimer is not proven by the evidence to have had any title to Lot 15 when he made that contract. The testimony of O’Heron, previously given, was only that then or within a few months afterwards, Partenheimer and his wife were owners of Lot 15, and this is all that appears on this subject. This is manifestly a very inconclusive method of proving a common source of title at the time the easement was created. Whether an estoppel could be worked against the subsequent purchaser of a subsequent owner because, without right, that owner had once attempted to create an easement over the land thus subsequently owned by him, is a question we need not discuss, for there are other reasons for holding the easement unproven. The stipulation for it was contained in the contract of March 9,1886. It does not appear nor does any reference to it appear in the warranty deed of March 24, 1886. The defendant contends that as this deed is declared on its face to be given in fulfillment of the said contract, the stipulation must be read into it. But the plaintiff, with as much reason and more authority, maintains that “in fulfillment” of the contract means in satisfaction of the contract, and that the deed expressed the final and entire contract between the parties, and as it did not include the easement, the easement was never granted. This would cer-

tainly seem to be the effect of the reasoning in the utterances of the courts cited by the claintiff. Williams v. Hathaway, 19 Pick. (Mass.) 387; Slocum v. Bracy, 55 Minn. 249; Clifton v. Jackson Iron Co., 74 Mich. 183; Carter v. Beck, 40 Ala. 599; Close v. Burlington, C. R. & N. R. Co., 64 Iowa, 149.

The defendant (plaintiff in error) says in his Brief and Argument in this court that there was a “user by himself and his grantor of the right for over twenty-five years,” and there would seem to have been such a user for over twenty years, although there is no proof of it for twenty-five.

But the drain was underground and there is no proof that the user was adverse or visible, open or notorious to the plaintiff or her immediate predecessors in title. The authorities declare that in such a case, of an invisible and unknown drain, no prescriptive title arises. Treadwell v. Inslee, 120 N. Y. 458; Munson v. Reid, 46 Hun, 399; Zirngibl v. Calumet & C. Canal & Dock Co., 157 in. 430.

But if we are wrong in holding that the easement was not proved in this case, it does not follow that the defendant is not liable for the damage which resulted to the plaintiff.

The authorities show that in the case of a dominant and servient estate in the matter of a drain and of sewage, it is the duty of the owner of the dominant estate and easement at his own risk and without regard to his actual negligence or to his knowledge of any defect in the sewer or drain, to keep it in repair,. and as Lord Denman said in one of the cases below cited, to keep the sewage from passing from his own premises to the plaintiff’s premises otherwise than along the accustomed channel. Humphries v. Cousins, L. R. 2 C. P. Div. 239; Richardson v. Kier, 34 Cal. 63; Joseph v. Ager, 108 Cal. 517.

To the same effect are the standard text books— Jones on Easements, sec. 821; Washburn on Easements (4th ed.) p. 733; 10 American & Eng. Ency. of Law, “Drains and Sewers,” p. 236.

We do not think the liability of defendant can be open to serious question.

The defendant, however, also maintains that there is no sufficient proof that the damages suffered by the plaintiff amounted to the sum — one hundred dollars— assessed by the court.

But there was evidence that $39.14 was expended by the plaintiff in ascertaining the cause of the flooding; that her cottage, which was rented for $12 a month, was vacant two months on account of it, and that the undermining of the house and the posts on which it stood made it drop several inches. We do not think the' allowance, under the evidence, unreasonable, nor that there was substantial error shown in the rulings or findings of the court.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Brown

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Edward Jackson, Plaintiff in Error.
    Gen. No. 18,624.
    1. Ihtobmation — defective date. Failure of an information to charge upon its face the commission of an offense at a time within the period of the statute of limitations affects the “real merits” of the offense charged and is fatal.
    2. Information — defective date. An information charging larceny “on the 2nd day of , A. D. 191 ,” is fatally defective, even after conviction, hut, as it may he amended, the court will remand on reversal of the conviction.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed and remanded.
    Opinion filed March 24, 1913.
    Day & Guenther, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

The defendant and appellant on June 4, 1912, was convicted in the Municipal Court of Chicago of larceny, an information by one Leonhard Stoll having been filed in said court against him on May 3, 1912. That information charged the said Edward Jackson with having “on the 2nd day of-A. D. 191 at the City of Chicago” unlawfully and wilfully stolen, taken and carried away eleven dollars in lawful money of the United States, property of Leonhard Stoll, the informant.

There are several reasons urged by the plaintiff in error why this conviction should he reversed, some of which might he sufficient to compel a reversal even without the fatal objection to the information on which we place our decision.

The information charges the stealing to be on the 2nd day of the year one hundred and ninety-one — an impossible date. We may well suppose, however, that the 2nd day of-A. D. 191 means the 2nd day of some month in a year between 1909 and 1920, the possibilities being still further limited by the fact that the information was filed May 3, 1912, to one of three years — 1910, 1911 or 1912. But when this point has been reached we must stop. The 2nd day of any month in the year 1910 up to and including November, would be more than eighteen months before the filing of this information, and under section 4 of division 4 of our Criminal Code, the statute of limitations would protect the offender.

According to the decision of a Branch Appellate Court of this District, voiced in a well reasoned opinion by Mr. Justice Gridley, this failure of the information to charge upon its face the commission of an offense at a time within the period of the statute of limitations affects the “real merits” of the offense charged and is fatal. People v. Weiss, 168 Ill. App. 502.

We see no reason for departing from this doctrine, which compels the reversal of the judgment and, as the information may be amended, the remandment of the cause.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. John Sumwalt, Plaintiff in Error.
    Gen. No. 18,731.
    1. Automobiles — excessive speed. In a prosecution for violation of the Motor Vehicle Act, § 10, the question whether defendant drove a car “at a speed greater than was reasonable and proper, having regard to the traffic,” etc., or exceeded the rates of speed specified in the statute, is for the jury, or the trial judge when there is no jury.
    2. Automobiles — speed. If the rate of speed is found greater than fifteen miles an hour for more than an eighth of a mile in the residence portion of a city, the defendant must he held prima facie to have been running at a speed greater than was reasonable or proper.
    3. Automobiles — excessive speed. Where a prima facie case of violating the Motor Vehicle Act, § 10, is made out, the defendant must overcome the 'same by evidence or he adjudged guilty.
    4. Coktinuance — absence of witnesses. Where counsel makes affidavit for continuance because of absence of a material witness, and it appears from a letter of witness that he had left on the day before the trial, there is no such showing of diligence to secure his attendance as is necessary to require a continuance.
    Error to the Municipal Court of Chicago; the Hon. Rufus P. Robinson, Judge, presiding. Heard in this court at the October term, 1912.
    Affirmed.
    Opinion filed March 24, 1913.
    CalhouN, Lyeord & SheeaN, for plaintiff in error; "William WaeeeN DixoN, of counsel.
    Maclay HoyNe, for defendant in error; Malcolm B. Sterrett, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The defendant was on July 21,1912, adjudged guilty "by the Municipal Court of Chicago of violating section 10 of the Act of the Legislature of June 10, 1911, regulating the use of motor vehicles.

The question whether he did violate the law by driving the motor vehicle of which he was the conductor or chauffeur “at a speed greater than was reasonable and proper, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person, ’’was a question of fact for the Judge by whom the cáuse was tried without a jury. So, also, was the question whether the rate of speed was greater than fifteen miles an hour for more than an eighth of a mile. If the court found the speed was greater than this in the residence portion of the city in which this violation of law was charged, he was obliged to hold that prima, facie the defendant was “running at a speed greater than was reasonable and proper,” etc. It then became a question for the court to decide whether the defendant overcame by evidence this prima facie case.

We do not see any reason from the evidence to overrule the decision of the court below on these questions.

The principal proposition argued here by the defendant is that the cause should have been continued on the affidavit of counsel for defendant that a material witness was unable to attend, who would have sworn to certain matters set out in a letter appended to the affidavit.

The witness, according to the affidavit made on July 25, 1912, the date of the trial, had left this country on his vacation. But the letter of the witness is dated Chicago, July 24, 1912, and he probably did not leave until that date. There was no such showing of diligence to secure the attendance of the witness as was necessary to make it sufficient to require a continuance, and it failed in other particulars as well to meet the statutory requirement.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    John Gleason, Appellee, v. M. P. Byrne Construction Company, Appellant.
    Gen. No. 17,065.
    1. Damages — new trial. Plaintiff, while laying brick in a sewer for defendants, was struck by a plank falling from a defective scaffold, and later by another plank falling by reason of negligence of a fellow-servant. The trial court ordered a remittitur of two-thirds from a verdict for $10,000 damages on the ground that the “jury had been confused” as to liability for injuries from the first plank and nonliability for those due to the second plank. Held, a new trial should be granted.
    2. Vekdict — against weight of evidence. Where the verdict is so manifestly against the evidence as to require a reduction of two-thirds in amount by the trial court, a new trial should be granted.
    3. Damages — court cannot fix. A trial court, on the assumption that the jury has not followed instructions of the court in arriving at their verdict, cannot itself in effect fix the damages to which plaintiff is entitled.
    ,4. Instbuctions — assumed that fury understood. It must be assumed that the jury understood the instructions of the court.
    5. Damages — when remittitur will not cure error. Where an error has been committed as to some substantive fact which bears upon the right of recovery or the measure of damages in respect to some matter which is not susceptible of computation, a remit-titur will not cure such error.
    6. Negligence — variance. Where the gravamen of the negligence charged is the failure of defendant to use reasonable care to provide .reasonably safe appliances, admission of evidence that an improper order of a vice principal caused the accident and the bringing of this question into the case by modified instructions, mislead the jury as to the ground of liability originally charged.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 25, 1913.
    Thomas B. Lahtry, for appellant.
    J. W. Suttost and Frank Mack, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This appeal brings up for review a judgment for damages for personal injuries alleged to have been sustained by the appellee (plaintiff) through the negligence of his employer, the appellant (defendant). There was a verdict of $10,000. A remittitur was filed and judgment entered for $3,333.33.

The counts of the declaration, upon which the case was finally submitted to the jury, are based upon the alleged neglect of duty of the defendant in failing to provide a safe place in which to work. The plaintiff was a brick mason and was engaged in the work of laying brick in a sewer being constructed by the defendant. Seven other bricklayers were working with him. Over the place where they were working a scaffold had been built, which was used in getting the brick from a pile on the bank to the bricklayers below. For certain reasons an uneven surface had been created for the scaffold planks to rest upon, as often happened, and in order to overcome this short pieces of wood, known as “shoes,” were laid. It would appear that at the time of the accident a “shoe” had been thus placed diagonally from a stringer to a brace, and a plank rested thereon. The trench was about 17 feet deep, and the plaintiff estimated that at the time of the accident he was about 12 feet below the surface of the ground. While the plaintiff was at work a plank fell upon him, and the alleged injury received by him in consequence thereof is the basis of the present suit. Whether the plank was caused to fall because of the negligent construction of the scaffold, or because a man named Martini, who was a fellow-workman with the plaintiff, jumped down upon the scaffold, loosened the “shoe” and thus caused the plank to come down upon the plaintiff, is largely the disputed question of fact in the case.

It appears that a second plank was caused to fall after the first one had come down, and that this second plank also struck the plaintiff, — just how soon after he was struck by the first plank is not made clear in the record.

Because of the view we entertain as to the proper disposition of this appeal, it is unnecessary for us to consider many of the questions raised in the briefs, and we shall confine ourselves to those points which we regard as controlling in the matter.

In the first place it is apparent that the verdict of the jury was against the manifest weight of the evidence on the question as to the amount of damages, as the trial court required a remittitur of two-thirds. In the case of Lauth v. Chicago Union Traction Co., 214 Ill. 244, the trial court required a remittitur of $7,500 from a verdict of $20,000. The court in passing upon the case said: “The action of the trial court in requiring the remittitur is conclusive that the verdict was far in excess of the actual damages. Where an error has been committed as to some substantive .fact which bears upon the right of recovery or the méasure of damages in respect to some matter which is not susceptible of computation, a remittitur will not cure it.” See also Lyons v. Chicago City R. Co., 258 Ill. 75.

In the present case it is urged by the defendant that the verdict must have been the result of passion and prejudice. The bill of exceptions shows that the reason assigned by the trial judge upon the refusal to grant the motion for a new trial was “that it.was almost impossible for anyone to tell what portion of the injuries was caused by the first plank and what portion was caused by the second plank, and that in the opinion of the court the jury had been confused on this question to the injury of the defendant, who was not liable for any injuries caused by the falling of the second plank.” The court further announced it as his opinion that the damages had not been fixed too high by the jury because of passion and prejudice.

In the declaration in the ease before us, as heretofore stated, the negligence charged, was the. furnishing of an unsafe place to work. In the trial of the case this fact seems to have been disregarded, and evidence was introduced and in part, at least, allowed to remain in the record, upon the proposition that an improper order was given by a vice-principal of the defendant to certain fellow-servants of the plaintiff, and that this improper order was the cause of the accident. Instructions tendered by the defendant were modified by the court in a way which also brought into the case the question as to whether or not an improper order of a vice-principal had been given.

The case is similar to that of Still v. McGuire-Cummings Mfg. Co., 145 Ill. App. 448. The gravamen of the negligence charged was the failure of the defendant to use reasonable care to provide reasonably safe appliances, and the testimony admitted into the case and the instructions referred to were, therefore, inapplicable to the pleadings, and directed the attention of the jury to a ground of liability other than that charged in the declaration. The jury was thus misled, and it is impossible to determine whether or not the defendant was prejudiced thereby.

In quoting the language used by the trial judge in passing upon the motion for a new trial, we do not ’wish to be understood as holding that it has any place in the bill of exceptions. It is, however, suggestive in the consideration of the point now under discussion. The court at the request of the defendant charged the jury that no recovery could be had by plaintiff by reason of injuries, if any, sustained by him, caused by the falling upon him of the second plank, on the ground, apparently, that the second plank was caused to fall by reason of the negligent act of a fellow-servant. The question therefore arises whether a trial court may, on the assumption that the jury has not followed the instructions of the court in arriving at its verdict, itself in effect fix the damages to which the plaintiff is entitled. Must it not be assumed that the jury' understood the instructions of the court? Where the verdict is so manifestly against the weight of the evidence as to demand a reduction of two-thirds in the amount, is it not the duty of the court to grant a new trial and thus leave to another jury the task of fixing the amount of damages, if any, to which the plaintiff is entitled? Our attention has not been called to any adjudicated ease in which a reduction of so large a portion of the verdict has been required. We think the motion for a new trial should have been granted.

It is clear also that the judgment must be reversed because of error in rulings on the admission of evidence and in giving the modified instructions heretofore referred to. Inasmuch as there may be a retrial of the case, we refrain from discussing the evidence more in detail.

The judgment will be reversed and the cause remanded.

Reversed and remanded. ■


text:
    August C. Wehrhahn et al., Appellants, v. Stern Ullman Company, Appellee.
    Gen. No. 17,101.
    1. Master and servant^ — patent defects. Plaintiff’s intestate, a boy 15 years old, bad been in defendant’s employ a year and a balf, during which time he had used a defective stairway over fifty times a day. The only eyewitness to the accident testified that deceased had not reached the stairs when he fell, but slipped on the level floor. Held, that even if the fall was due to a defect in the stairway deceased must have known of such condition, and there can be no recovery.
    2. Master and servant — defects known to servant. However gross the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises and appliances, yet where the servant knows the defects and dangers and still knowingly and without protest consents to incur the risk to which he is exposed, he is deemed to assume such risk and to waive any claim for damages in case of injury.
    3. Master and servant — knowledge of defects. A servant, in a suit against his master for injuries caused hy an unsafe place of work or defective appliances, must establish the existence of the defect, that the master had notice thereof, or in the exercise of ordinary care would have had knowledge of it, and that the servant did not know of the defect and had not equal means of knowing with the master.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 25, 1913.
    WinstoN, Lowy & McGinn and J. J. Coburn, for appellant; David T. Alexander and Emory J. Smith, of eonnsel.
    Bulkley, Gray & More, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion, of the court.

This is an action on the case brought by the appellants (plaintiffs) against the appellee (defendant) for damages caused by the death of plaintiffs’ intestate by the alleged wrongful act of the defendant. It appears that the deceased, Henry Wehrhahn, was a boy upwards of fifteen years of age, and had been employed as an assistant window trimmer in the store of the defendant for about a year and a half prior to the date of his death; that in the building there was a stairway leading from the second to the main floor. The evidence tends to show that the steps were worn in the' center more than.at the sides, and one witness testified that .there were nails sticking up about one-quarter of an inch. It was further shown that where the stairway curved there was no railing, that the condition of the stairway had been the same during the whole time that the boy had worked in the store, and it is stated by the plaintiffs to be the fact that the condition had existed for four and a half years prior to the accident. It further appears that the hoy had used the stairway constantly during’ the time of his employment, sometimes as often as fifty or sixty times in one day.

The only eyewitness to the accident testified as follows: “I saw Wehrhahn fall; I was just coming out of the tailor shop when I saw him going down stairs; he slipped and leaped off his feet; when he got down to sixth or seventh step he made a leap forward, then I saw him crash through glass door; I don’t remember of any one else ever falling through; I never fell there; I testified at coroner’s inquest; I never slipped myself on the stairway, not that I remember of, but I never fell downstairs. My memory is not defective. I never fell down or even slipped. This young man worked under me; I was the window trimmer, and he was my assistant; this stairway was used by both of us. When he started to fall he was on the first tread. He had not reached a stair yet; he was on the flat floor; he started feet first; he made a leap when he reached the sixth or seventh step; it was 5:30. I worked on the second floor; used stairway from twenty-five to fifty times per day; used it seven years before accident. Never saw nails protrude. About one-half hour after accident I went up stairway; I found a mark where he scraped his heel; that was on top of floor; level of the floor; not on stairs, seven or eight inches near first step. I am still working for defendant; I have continuously since the accident; I saw the mark from a heel; it was level with the floor, about seven or eight inches from front of step.” Another witness for the plaintiffs testified that a short time after the accident he found a heel of a shoe at the top of the stairway.

In falling through a glass entrance door a few feet from the lower step of the stairway, the boy received cuts which resulted in his death.

The declaration in all of the five counts bases the right to recover upon the alleged maintenance by the defendant of a defective stairway, and the alleged fact that this condition was known to the defendant but unknown to plaintiffs’ intestate. At the close of the plaintiffs’ case the court directed a verdict for the defendant. After a careful study of the record we are satisfied that no other course could properly have been pursued by the trial judge.

In Lake Erie & W. R. Co. v. Wilson, 189 Ill. 89, a clear statement of the rule is made: “The duty and liability are the same with regard to the place of work and the appliances with which the work is done, and the rule is that the servant, in order to recover, must establish three propositions: First, the existence of the defect; second, that the master had notice thereof or in the exercise of ordinary care would have had knowledge of it; and third, that the servant did not know of the defect and had not equal means of knowing with the master. (Goldie v. Werner, 151 Ill. 551; Howe v. Medaris, 183 llI. 288.)”

In Klofski v. Railroad Supply Co., 235 Ill. 146, the rule as stated in Cooley on Torts is cited and approved: “However gross the fault of the master in subjecting the servant to the risk of injury from defective buildings, premises and appliances, yet where the servant knows the defects and dangers and still knowingly and without protest consents to incur the risk to which he is exposed thereby, he is deemed to assume such risk and to waive any claim for damages against his master in case of injury. ’ ’

If, as stated by the only eyewitness to the accident, the deceased had not reached the stairs when he started to fall then the faulty condition of the stairs, if they were defective, could not have been the cause of the accident. If, as admitted by plaintiffs in their brief, he had used the stairs frequently, “often as many as fifty to sixty times per day,” he must have known of their condition. Under these circumstances there can be no recovery. We are controlled by many adjudications. Geo. B. Swift Co. v. Gaylord, 229 Ill. 330; Montgomery Coal Co. v. Barringer, 218 Ill. 327; Pinkley v. Chicago & E. I R. Co., 246 Ill. 370.

The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Peesidihg Justice Clark

text:
    James E. Stark, trading as Jas. E. Stark & Co., Defendant in Error, v. Boynton & Company, Plaintiff in Error.
    Gen. No. 18,053.
    1. Trover Aisro conversion — nonacceptance of goods. Plaintiff contracted to sell a car of red oak to a commission firm, which turned the car over to defendant. The latter, as well as the commission firm, refused acceptance because the timber was not up to grade. Plaintiff then offered to take the property hack and defendant refused to surrender it on the alleged ground that he had applied the timber on a claim against the commission firm. Held, there was no acceptance or passing of title.
    2. Trover — nonaooeptance of goods. Where property is delivered under a contract to a party who takes the attitude that he will not accept it because not up to grade, title does not pass and trover lies for its conversion.
    Error to the Municipal Court of Chicago; the Hon. Max Eber-hardt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Rehearing denied April 8, 1913.
    Boyle, Mott & Haight, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease and Charles 0. Loucks, for defendant in error; Burrell J. Cramer, of counsel.
   Mr. Peesidihg Justice Clark

delivered the opinion of the court.

Judgment was obtained by plaintiff (defendant in error) for the value of certain property converted to its own use by the defendant (plaintiff in error), Boyn-ton & Company, a corporation. The plaintiff had contracted with the firm of Gustorf & Company to sell it a “sample” car of “4/4 No. 1 Common Bed Oak.” The car was received in Chicago and turned over by Gustorf & Company to the defendant corporation, the latter being engaged in the retail business, and Gustorf & Company in the commission and wholesale business. Upon its being unloaded, the defendant claimed that the oak was not up to grade and refused to accept it from Gustorf <& Company. After considerable correspondence, a representative of the plaintiff called upon Boynton & Company and also endeavored to arrange an acceptance. Previous to that time Gustorf had written to plaintiff that he would, not accept it, and asked for instructions as to what to do with it. The testimony of the representative of plaintiff was to the effect that Boynton told him that it was not what he had bought, and that he wanted it moved away; that he would not take it at any price. The representative claims to have seen the lumber in Boynton & Company’s yard at that time.

Before suit was brought a letter was written to the palintiff by attorneys for defendant, to the effect that defendant had taken the lumber to apply upon a claim it had against Gustorf & Company. This was in answer to a letter from the plaintiff to Boynton, the substance of which was that he would take back the property, and asking Boynton & Company not to recognize any other order it might receive for it. Thereafter a replevin suit was brought. There was evidence tending to show that the defendant refused to deliver the property to the bailiff. Upon the hearing of the case, before the court without a jury, there was a finding for the plaintiff in trover. From the judgment entered on such finding this writ of error has been prosecuted.

The contention of the defendant is that title to the property passed from plaintiff to Gnstorf & Company and from Gnstorf & Company to the defendant. We think that the preponderance of the testimony is with the plaintiff on this proposition. We find no proof in the record that there ever was an acceptance of the oak by Boynton & Company from Gnstorf & Company, or any acceptance by Gnstorf & Company from the plaintiff. On the other hand, np to the time at least that the letter was written by the defendant’s attorneys, the attitude of Boynton & Company was that it had not accepted the lumber and would not accept it. We do not find in the record either, any proof of any valid claim the defendant had against Gnstorf & Company on which it would have the right to retain the lumber, if title thereto had become vested in Gus-torf & Company, as in our opinion it had not. The president of the defendant corporation testified that the lumber was in the yard of defendant and was there at the time demand was made by the bailiff.

• There was a dispute as to the value of the property. In the finding and judgment its value was fixed at a less amount than that claimed by the plaintiff.

We find no error in the record, and the judgment is affirmed.

Affirmed.


author: Mr. PresidiNg Justice Clark

text:
    Walter Woodley, Defendant in Error, v. Leopold Zeman, Plaintiff in Error.
    Gen. No. 18,133.
    1. Licenses — mason contractor. The question whether plaintiff had a license to do business as a mason contractor is a collateral one in an action on a contract for mason wort, and the issuance of such license will he presumed unless the contrary fact is specially relied on as a defense and proved in the trial court.
    2. Building and construction contbacts — fire wall. Where work is done in the construction of a building in accordance with the plans upon winch the license to build was issued, the contractor has no part in a violation of a city ordinance relating to fire walls.
    3. Building AND constRuction contracts — mason work. Finding of a jury that a contract for mason work had been completed according to specifications, affirmed.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Rehearing denied April 1, 1913.
    E. C. Mapledoran, for plaintiff in error.
    Isadore Wolfsohn, for defendant in error.
   Mr. PresidiNg Justice Clark

delivered the opinion of the court.

In this case recovery was had, after a trial before the court and a jury, for the balance due under a contract between the parties for the mason work upon a building, the amount being fixed by the final certificate of the architect. The case has had one review in this court, — "Woodley v. Zeman, 159 Ill. App. 412.

The first point urged for reversal is based on the claim that the plaintiff did not perform his contract. The contract provided for the furnishing of materials and performing all the mason work for a “three-story and basement store and flat building;” that the building should be constructed according to drawings and specifications prepared by one Ohrenstein, an architect. There is a dispute in the testimony as to whether or not the drawings introduced at the trial by the defendant were those upon which the work was done by the plaintiff. It seems that a license was issued for the construction of a three-story and basement store and flat building, and that afterwards changes were made whereby the upper floors were divided into two apartments or flats each, and it is the contention of the plaintiff that he performed the work by agreement made before such changes were made in the plans. We have carefully read the record in the case and are unable to say that the finding of the jury as expressed in the verdict that the contract had been completed is erroneous. Nor are we able to say that any fraud was perpetrated by the plaintiff upon the defendant which should bar a recovery, as is claimed by defendant.

The principal question of fact in dispute is as to whether or not there should be any fire wall in the building’. If the testimony of the architect is to be believed, the plans did not call for a fire wall, and it would seem that no fire wall was required in the specifications under which the work of the plaintiff was done. In other words, the work seemed to have been done in accordance with the plans upon which the license to build was issued. If this is so the plaintiff had no part in the violation of the city ordinance.

The fourth and last objection raised is that the record does not show that at the time the contract in question was made the plaintiff had a license from the city of Chicago authorizing him to do business as a mason contractor. In the affidavit filed by the defendant this was not relied upon as a defense. The question of a license is one collateral to the suit, and it has many times been held that in such circumstances the issuance of a license will be presumed unless proof to the contrary is presented by the other party to the litigation. Williams v. People, 20 Ill. App. 92; City of Chicago v. Wood, 24 id. 40; Shendorf v. Dorman, 86 id. 276; Good v. Lasher, 99 id. 653; County of Jo Daviess v. Staples, 108 id. 539; Brunswick v. Hurley, 131 id. 235. Even if the rule were to the contrary, the point should have been raised in the trial court.

The judgment will be affirmed.

Affirmed.


author: Mr. Presidhstg Justice Clark

text:
    Huntley Dairy Company, Defendant in Error, v. Joseph Short and Mollie Short, Plaintiffs in Error.
    Gen. No. 18,169.
    1. Account stated — directing verdict on. Where plaintiff's proof tends to show that statements of account were rendered to defendant, no objection was made thereto, and that defendant promised to pay, and defendant offers no testimony in opposition, the court may direct a verdict upon an account stated.
    2. Practice — prima facie case not overcome. "Where the plaintiff makes out a prima facie case and no testimony is introduced by defendant, the court is justified in directing a verdict for plaintiff.
    3. Constitutional law — due process. Where defendant files an affidavit of merits which is not stricken from the files, but offers no testimony after plaintiff has made out a prima facie case, a directed verdict for plaintiff is not a violation of defendant’s constitutional right to “due process of law.”
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmiel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Michael P. Morrissey, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Presidhstg Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error as plaintiff against the plaintiffs in error, Joseph Short and Mollie Short, as defendants, for an alleged balance due for milk. Prom the amended statement of claim it would appear that the plaintiff relied upon an account stated. There was proof on the part of the plaintiff tending to show that statements had been rendered; that no objection had been made to the same, and that the defendants had promised to pay. The case was tried before the court and a jury. No testimony was offered by the defendants. Thereupon the court directed a verdict for tlie plaintiff. An affidavit of defense was filed, sworn to by Joseph Short for both defendants. It was to the effect that plaintiff did not sell and deliver to the defendants at defendants’ re quest the milk and cream as set out in an exhibit attached to the original statement of claim, and that the plaintiff never at any time “stated an account with defendants for $85.80 or any other sum, and defendants never at any time promised to pay plaintiff $85.80 or any other sum.”

The reasons urged as grounds for a reversal of'the case seem to be based upon the proposition that a default was entered against the defendants, and that the affidavit of defense not having been stricken from the files, the defendants were denied the “constitutional guaranty of due process of law.” We do not so understand the situation. No default was entered. The record shows a trial before a jury, the testimony of one witness for the.plaintiff, and no conflicting testimony. We think the plaintiff made out a prima facie case, and no testimony having been introduced by the defendants the court was justified in directing a verdict for the plaintiff. The case is entirely different from that of Walter Cabinet Co. v. Russell, 250 Ill. 416, cited by the defei dants.

The judgment will be affirmed.

Affirmed


text:
    Monarch Lumber Company, Plaintiff in Error, v. Haskell & Barker Car Company, Defendant in Error.
    Gen. No. 18,179.
    1. Sales — portion not up to grade. Where defendant in an order for timber warned plaintiff to ship only stock coming up to grade, and where, under a previous contract, allowance had been made for stock not up to grade, plaintiff may require defendant to accept so much of a carload as is up to grade if plaintiff has unloaded the car and separated the good from the bad and tendered the former to defendant.
    2. Sales — portion not up to grade. Where defendant offered to accept such portion of a ear load of timber as was up to grade ordered if plaintiff would unload the stock and separate the good from the bad, and plaintiff refused the offer and ordered the ear back for sale in open market, no acceptance by defendant is shown.
    3. Sales — no recovery for goods not accepted. Where a portion of a car load of timber was not up to the grade ordered, and plaintiff, on the buyer’s refusal to unload the car, took the same back, he will not be allowed to recover for such portion as was up to grade where he claims the full contract price.
    Error to the Municipal Court of Chicago; the Hon. Perry L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Benson Landon, for plaintiff in error.
    Eastman & White, for defendant in error; Balph B. Hawxhurst, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit was brought by the Lumber Company against the Car Company for the value of a carload of lumber alleged to have been sold and delivered. It seems that the carload was one of a number shipped by the plaintiff to the defendant, the other cars having been paid for. It also appeared that allowances were made on other shipments because of the claim of the defendant that the lumber or timber was not of the kind called for by the contract, more or less of it being “cull.” Defendant refused to accept the car sued upon, on the same ground, and refused to unload the portion of the car that did come up to grade, but offered if the plaintiff would unload the car in the railroad yard at its own expense, that it, the defendant, would send its inspector there and accept that portion which was up to grade at the regular price. This offer was refused by the plaintiff, and thereafter the car which had been consigned at the mill to the plaintiff at Michigan City, was ordered by the plaintiff to be forwarded to Chicago. This was done after a letter had been sent by the plaintiff tó the defendant, in which it was stated that the plaintiff would endeavor to sell the material in the open market on account of the defendant, and if successful in disposing of it would credit the account of the defendant with the sale price and hold defendant for the difference; that if it was unable to sell the material it would then hold defendant for the invoice price. The president of the plaintiff company testified that he endeavored to dispose of the material but was not successful in selling any portion of it. What became of the lumber the record does not disclose.

There was a trial before the court and a finding for the defendant. The judgment entered upon such finding this writ of error brings up for review. The points relied upon for reversal have to do entirely with questions of fact. It is insisted that the evidence shows that at least one-half of the timber was conceded to be up to the specifications, and that therefore the finding of the trial court is contrary to all the evidence; second, that by the preponderance of the evidence nine-tenths of the timber was shown to be up to specifications, and that therefore the plaintiff was entitled to judgment.

It is clear there was no acceptance by the defendant. On the other hand the material was refused, and was taken possession of by the plaintiff. We find nothing in the contract between the parties requiring the defendants to take any timber which did not come up to the specifications. It is true the contract contemplated that there might be timber shipped which was not up to grade, and it was provided that such material would be held thirty days and if not removed within that time, allowance made by the purchaser was to be accepted and in full settlement for the same. It also appears that in a letter enclosing the order the plaintiff was warned to ship only stock that comes up to grade and to be especially careful that' it was not undersized or underlength. It was also stated in the letter that the defendant had “no requirement for cull oak.” Under the contract, as we construe it, the plaintiff might have required the defendant to accept so much of the carload as was up to grade if the plaintiff itself had separated the good from the bad and tendered the former to the defendant. It could not, however, require the defendant to unload the car and pay for such portion of it as came up to grade.

The claim of the plaintiff as set forth in the statement was for the full contract price of the whole carload. We agree with the trial court that there should be no recovery for this amount, and in view of the fact that the plaintiff elected to retake the lumber, and the other circumstances, we see no basis for the allowance to the plaintiff of payment for such portion as met the requirements of the contract. The record does not show indeed that the plaintiff asked from the trial court any such finding.

The judgment will be affirmed.

Affirmed.


author: Mr.. Presiding Justice Clark

text:
    Andrew Goyt, Defendant in Error, v. The National Council, Knights and Ladies of Security, Plaintiff in Error.
    Gen. No. 18,269.
    1. Fraternal benefit societies — change of beneficiary by insane person. Where a member of a benefit society attempts to change beneficiaries after she has been adjudged insane by the county court, there is not a new contract and R. S. ch. 86, § 14, does not apply.
    2. Insurance — interest of beneficiary. A beneficiary in a benefit certificate has such an interest as entitles him to raise the question as to the mental incapacity of the assured at the time of an attempted change in beneficiaries.
    3. Insurance — attempt to change beneficiaries. Where an attempt to change beneficiaries fails because of mental incapacity of the assured, the original designation remains in force.
    4. Insurance — inchoate interest of beneficiary. The inchoate interest of a beneficiary in a benefit certificate, upon the death of assured, becomes a contract right on which there may be a recovery.
    5. Insurance — society not estopped to deny sanity of member. In an action by a beneficiary on a benefit certificate, the society is not estopped to deny the sanity of the assured at the time a change was made in beneficiaries.
    6. Evidence — burden of proof as to sanity. In an action by a beneficiary on a benefit certificate, where the defendant society has made a prima facie case that assured was insane at the time she changed beneficiaries, the plaintiff who claims the change was made during a lucid interval has the burden of proof.
    Error to the Municipal Court of Chicago; the Hon. J. J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed March 25, 1913.
    A. W. Fulton, for plaintiff in error.
    Charles E. Napier and Charles S. McIlvaine, for defendant in error.
   Mr.. Presiding Justice Clark

delivered the opinion of the court..

The claim of defendant in error (plaintiff), as shown by the statement filed, is based upon a certificate issued by plaintiff in error (defendant), dated December 19,1900, and issued to Hattie Goyt, in which, her husband, Andrew Goyt, was made the sole beneficiary. The defendant agreed to pay to Andrew Goyt the sum of $1,000 on the death of Hattie Goyt, provided the by-laws of the Order and other conditions of the contract were fulfilled, and subject to a provision that upon the death of a member the defendant should retain $50 of the amount of the certificate, less one dollar per thousand for each year the certificate should remain in force, for the purpose of creating and maintaining a reserve fund.

The affidavit of defense sets out as a defense to a part of the plaintiff’s demand, that the original-benefit certificate issued to Hattie Goyt on January 22, 1901, made as beneficiaries her husband, Andrew Goyt, to the extent of $700, and her mother, Elizabeth Spring, to the extent of $300, less the amount to be retained by the Society for the reserve fund; that on August 27, 1908, the said Hattie Goyt had directed the defendant Society to issue a new benefit certificate to her, making Andrew Goyt, her husband, the sole beneficiary; that the said Hattie Goyt, at the time the alleged change was made, was insane, and that she was induced to cause a change to be made in the certificate by the undue influence and persuasions of certain persons unknown to the defendant. The defendant admitted indebtedness of $672 to the plaintiff, but alleged that the balance of the policy was due to Elizabeth Spring, and set forth the fact that Elizabeth Spring had served notice and made a demand on the defendant for such sum of $288. •

Hpon the trial of the case before the court and a jury the second certificate was offered in evidence by the plaintiff, and was found to bear upon it an acknowledgment by the plaintiff of the receipt from the defendant of $672, in which receipt it was certified that the benefit certificate was canceled and surrendered to the extent of $672 and that the balance due was in litigation. It further set forth that “the above payment is made and received without prejudice to the rights of any interested party.” The court then permitted in evidence the application for the original benefit certificate and also the benefit certificate itself, in which the beneficiaries were named as set forth in the affidavit of defense, namely, Andrew Goyt to the extent of $700 and Elizabeth Spring to the extent of $300, the two respectively bearing relation to Mrs. Goyt of husband.and mother.

From proofs of death introduced in evidence it would appear that Mrs. Goyt was an inmate of the Hospital for the Insane at Dunning, Illinois, for one and one-half years prior to her death; that the cause of her death was “General Paralysis of the Insane, Progressive for past 18 mos.” These proofs correspond with the certificate issued by Dr. Eea, of Dunning, which was also introduced in evidence, excepting that in the latter it was stated that the contributory or secondary cause of death was “lobar pneumonia,” which had existed for two days. The verdict of the jury of the County Court of Cook county finding Mrs. Goyt insane, and rendered April 21, 1908, also appears in evidence.

At the close of all the testimony, at the request of the plaintiff, the court charged the jury to find a verdict in favor of the plaintiff for the sum of $288. To reverse a judgment entered upon such verdict this writ of error has been prosecuted.

The argument of counsel for the plaintiff and the theory on which the instruction evidently was given, is that by the issuing of the second certificate a new contract between the parties was made, and that so being a new contract the provisions of section 14, chapter 86 of the revised statutes apply, namely, that every contract by an idiot, lunatic, distracted person or spendthrift, made after the. finding of the jury, as provided by section 1 of the act, shall be void as against the idiot, lunatic, distracted person, drunkard or spendthrift, and Ms estate; but that the other party to the contract is hound thereby. We cannot concur in the assumption that the second certificate was a new contract and that the oM contract created by the application and the first certificate was abrogated. If suit were brought by the mother as one of the beneficiaries under the first certificate, we do not think that the defendant could plead in defense that it had entered into a new contract with its member, Mrs. Goyt, if the mother showed that at the time the application for a change of beneficiaries was made by Mrs. Goyt the latter was insane. Under the terms of the original contract the right was retained in Mrs. Goyt, as a member of the defendant Society, to change her beneficiaries, restricted to the extent that the new beneficiary must belong to a class designated as eligible under the by-laws of the Society. It has many times been held that where an attempt is made to change a beneficiary, and fails because of the want of mental capacity on the part of the assured, the original designation remains in force. Elsey v. Odd Fellows’ Mut. Belief Ass’n, 142 Mass. 224; Smith v. Bailroad Association, 168 Mass. 213; Ownby v. Supreme Lodge Knights of Honor, 101 Tenn. 16. It also has been held, and we tMnk it the rule, that a beneficiary named in a certificate has such an interest as entitles him to raise the question as to the mentál incapacity of the member at the time of the attempted change in beneficiaries. Grand Lodge A. O. U. W. v. McGrath, 133 Mich. 626. . It would therefore seem to follow that if suit were brought by Mrs. Spring, the mother, and it appeared that Mrs. Goyt, the member, was insane at the time of the attempted change in beneficiaries, she could recover by reason of the interest she had in the original certificate. TMs interest, while inchoate at the time the certificate was issued, ripened into a contract right upon wMch recovery could be had upon the death of Mrs. Goyt, the member.

It is insisted by the plaintiff that the defendant is estopped now from making the defense that Mrs. Goyt was insane at the time of the attempted change in beneficiaries. It wonld he inequitable that it should he held liable in the present suit and also in one brought by the mother. It is urged that it might protect itself by a bill of interpleader, but it appears that there is no jurisdiction in which both defendants may be made parties to a bill of interpleader. Our attention has not been called to any decisions in which it has been held that the question as to the insanity of the member could not be raised by the Society. On the other hand in many cases the right so to raise the question has been assumed.

It is said in the brief of the plaintiff that the change in beneficiaries may have been requested by Mrs. Goyt during a lucid interval. We think that the evidence introduced by the defendant, heretofore referred to, made at least a prima facie case that at the time the change was made she was not sane, and that the burden was thus shifted to the plaintiff to show that the change was made during a lucid interval. No testimony with respect to this matter was offered by the plaintiff. ,

From what has been said it follows that the trial court erred in directing a verdict for the plaintiff, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    Israel B. Perlman, Plaintiff in Error, v. Adolph N. Perlman and Annie Perlman, Defendants in Error.
    Gen. No. 18,282.
    1. CosmtACTS — when one does not become a party by signing. Where a husband signs a contract as agent for his wife and also alone, he cannot he held liable either severally or jointly when his name is not mentioned in the body of the contract and he does not agree to do anything or pay any amount.
    2. Appeals and errors — when ñidgment not sustained by the record is affirmed. Where plaintiff sues out a writ of error on a judgment in his favor, and alleges as error that it should have been for a larger amount, it will be affirmed though not sustained by the record where defendants do not complain and file no cross-errors.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitusb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    Perlman & RoseNbeeg, for plaintiff in error.
    Friedman & Ader, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit, as appears from the statement of claim was brought for $750 as liquidated damages, alleged to have accrued to the plaintiff by reason of the breach of a certain contract for the exchange of real estate, alleged to have been entered into between the plaintiff and the two defendants. There was a trial before the court without a jury, and a finding in favor of the plaintiff for $100. The case is brought to this court by the plaintiff for review, the error alleged being that the finding and judgment should have been for $750.

As shown by the affidavit of merits the defense is based upon two propositions: First, that the defendants did not refuse to carry out the contract sued upon, but that by agreement it was abrogated and canceled; second, that there was no joint liability inasmuch as the defendant Adolph N. Perlman acted as agent for his wife, the other defendant, Annie Perlman. The contract introduced in evidence recites that it is made between Annie Perlman, as party of the first part, and Israel B. Perlman, as party of the second part. In the body of the contract the name of the defendant Adolph N. Perlman is not mentioned. The contract was signed “Annie Perlman, by A. N. Perlman,” and beneath those names appears the signature “A. N. Perl-man, ’ ’ to which a seal is affixed. The contract contains a provision as follows: “Upon failure of either party to carry out this agreement the party in default shall pay to the other the sum of $750 as liquidated damages, out of which sum, when recovered by either party, shall be paid the broker’s commission.”

In this state of the record we see no warrant for a joint judgment against the defendants or a several judgment against Adolph N. Perlman, in any amount. By the terms of the contract nothing was to be done by Adolph N. Perlman, and he did not agree to pay any amount as liquidated damages if the contract should not be carried out by his wife, Annie Perlman. This being so, it is unnecessary to consider the points discussed in the briefs, which relate solely to the question of fact as to whether or not the contract was annulled by the parties, and the legal question as to whether the contract is of such a character as that it might be abrogated or rescinded by a subsequent parol agreement.

As heretofore stated, the record does not sustain the judgment, but as the defendants are not complaining and have filed no cross-errors the judgment will be affirmed.

Affirmed.


author: Mr. PresediNG Justice Clare

text:
      Mrs. Ada Duke, Defendant in Error, v. Fred Schlegel, Plaintiff in Error.
    Gen. No. 18,305.
    1. Witnesses — competency of wife. The testimony of defendant’s wife as to a conversation held previous to her marriage, in which plaintiff claims defendant agreed to pay her hoard, is not incompetent under R. S. ch. 51, § 55.
    2. Appeals and eeeoks — harmless error. Where the testimony of a witness that she “did not hear” defendant make a promise is erroneously excluded, and there is conflicting testimony as to her having been present during the conversation, the error in rejecting such testimony is not ground for reversal, the judgment for plaintiff not being against the manifest weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. C. E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed March 25, 1913.
    JohN J. Poulton, for plaintiff in error.
    No appearance for defendant in error.
   Mr. PresediNG Justice Clare

delivered the opinion of the court.

Suit was brought by plaintiff in the Municipal Court against the defendant for $40, claimed to he due for the board of Adeline Ke'noeke alleged to have been furnished her at the request of the defendant and upon his promise to pay for same. Prior to the time of the trial Miss Kenoeke had become the wife of the defendant. The only question of law involved is the ruling by which her testimony was excluded at the trial. We agree with the defendant that she was a competent witness. Mueller v. Rebhan, 94 Ill. 142. Her testimony was not made incompetent by section 55 of chapter 51 of the revised statutes. However, we find incorporated in the record a statement of what it is claimed by the defendant she would have sworn to had she been allowed to testify. The substance of this was that sbe did not bear tbe defendant make tbe promise to pay for ber board. From tbe testimony of one of tbe witnesses for tbe plaintiff it would appear that sbe was not present when tbe conversation was bad. Another witness stated that sbe was present.

On a review of tbe record we are of tbe opinion that tbe judgment should not be reversed as being against tbe manifest weight of tbe evidence. We are further of tbe opinion that if tbe testimony offered bad been received tbe finding and judgment should properly have been for tbe plaintiff. It follows therefore that tbe error in tbe rejection of tbe testimony should not cause a reversal of tbe case, and tbe judgment will be affirmed.

Affirmed.


text:
    Edward E. Wilson, Defendant in Error, v. Elijah H. Johnson, Plaintiff in Error.
    Gen. No. 19,022.
    1. Municipal court — stenographic report. The municipal court has no power, even by agreement or stipulation of parties, to enlarge the time for filing the stenographic report on an application made more than thirty days after the rendition of judgment.
    2. Practice — recovery against one joint defendant. Where a statement of claim recites “for services rendered” to defendants “and each of them at their request,” and that “said defendants and each of them promised” to pay plaintiff a certain amount, recovery may he had against one defendant individually.
    Error to the Municipal Court of Chicago; the Hon. Euros T. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 25, 1913.
    Edward I. Alexander, for plaintiff in error.
    Edward E. WilsoN, pro se.

   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case a motion has been made by the defendant in error to strike from the record the stenographic report and affirm judgment, the case being on a writ of error from the Municipal Court. The judgment was entered October 5, 1912. Under the statute the time for filing a stenographic report expired November 4th of that year. On November 2nd application was made for an extension of time to November 12, 1912, and granted. On November 11th a further extension of 30 days was applied for and granted, and on November 29, 1912, the stenographic report was signed and filed.

The case of Haines v. Knowlton Danderine Co., 248 Ill. 259, is controlling upon us. The court had no power, even by agreement or stipulation of the parties, to enlarge the time for filing the report on an application made more than 30 days after the' rendition of judgment. The motion to strike the stenographic report from the record is granted.

This leaves before us for consideration only the common-law record.

It is argued by the plaintiff in error that as the statement of claim shows a joint demand against Johnson and Edward H. Morris, the judgment against Johnson alone should not be allowed to stand. Before the case was submitted to the jury the suit as against Morris was dismissed. The statement of claim recites: “Plaintiff’s claim is for services rendered to Elijah H. Johnson and Edward H. Morris and each of them at their request,” and that “said defendants and each of them promised the plaintiff herein $750. ’ ’ We think the statement sufficient to warrant a recovery against Johnson individually.

The judgment is affirmed.

Affirmed.


text:
    August J. Schoenecke, Appellee, v. Chicago Title & Trust Company, Trustee, et al., on appeal of George McCaffery and John C. McCaffery, Appellants.
    Gen. No. 19,388.
    1. MORTGAGES — receiver in foreclosure. In foreclosure, appointment of a receiver can be made only on giving bond as provided by ft. S. ch. 22, § 53, or upon notice and full hearing as required in the proviso.
    2. Mortgages — receiver in foreclosure. In foreclosure, an ord.er appointing a receiver without bond should in its terms dispense with the requirements of R. S. ch. 22, § 53 for bond.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 25, 1913.
    Frank & Lurie, for appellants.
    No appearance for appellee.
   Mr. PresidiNg Justice Clark

delivered the opinion of the court.

In this case an interlocutory decree was entered appointing a receiver of property covered by a trust deed sought to be foreclosed. The provisions of section 53 of chapter 22 of the Bevised Statutes were not complied with. By this section before any receiver may be appointed the party making the application is required to give bond to the adverse party, the amount to be fixed and the security to be approved by the court or judge, and bond conditioned to pay all damages, including attorney’s fees, sustained by reason of the appointment and acts of such receiver. There is a proviso that a bond need not be given when, for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver should be appointed without such bond. In the present case the appointment was made without notice, and the order does not in its terms dispense with, the requirement of the statute in the respect mentioned. It must therefore he reversed. "Watson v. Cudney, 144 Ill. App. 624; Starr v. Moy Tong Koon, 145 id. 341; Ayres v. Steamship Co., 150 id. 137; Aevermann v. Rizek, 160 id. 648; Mason v. Hooper, 166 id. 537.

Order reversed.


author: Mr. Justice Barres

text:
    Peter Valley, Appellee, v. Illinois Tunnel Company et al., Appellants.
    Gen. No. 16,979.
    1. Elevatoks — ordinance regulating. While plaintiff was lowering an elevator to admit a mail car, the latter was pushed against and struck the elevator platform, throwing plaintiff hack from the hoisting cable and preventing him from stopping the elevator. The canopy struck the ear, causing the elevator to tilt and plaintiff to plunge to the bottom. The elevator had been duly inspected and a certificate of compliance with section 659 of Ordinances of the City of Chicago duly issued. Held, that such certificate was conclusive as against counts based on non-compliance with such ordinance in failing to provide safety devices.
    2. Officers — certificate conclusive. A certificate of compliance with a penal statute or ordinance, having been duly issued by the proper official, where his determination involves the exercise of discretion and judgment, is conclusive evidence of compliance with such law.
    3. Officers — acts not subject to review. The official determination of facts within the scope of authority delegated to an administrative official is binding and conclusive on every one and not subject to collateral attack nor to judicial review except for fraud or where otherwise provided.
    4. Officers — determination final. Where the Constitution or the legislative branch of the government has delegated to an executive or administrative branch a duty which involves as an incident to its performance the exercise of judgment or discretion, as distinguished from judicial power, in determining the suitability or fitness of certain matters or things, such exercise is not subject to review by the judicial branch.
    5. Officers — exceeding authority. Where a public official is charged with the exercise of discretion in the performance of his duty, the only questions that can be raised in court by any person denying the validity of his act are the power of the official and fraud of the party claiming rights under his act.
    6. Officers — abusing power. Where there is an abuse of power by an administrative public official, the court on application will compel him to perform his duty.
    7. Appeals and errors — joint judgment. Where a judgment against two joint defendants is found erroneous as to one, it must be reversed and remanded as to both.
    8. Elevators — proximate cause. Condition of an elevator not provided with a device to prevent tilting held not the proximate cause of injury.
    Appeal from the Superior Court of Cook county; the Hon. Robert W. Wright, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 25, 1913.
    Rehearing denied and opinion modified and refiled April 8, 1913.
    JohN A. BloomiNGstoN, for Illinois Tunnel Co.
    Sears, Meaghee & Whithey, for Chicago & Western Indiana R. Co.; N. C. Sears, ÉdwiN Hedeick, Jr., and. Silas M. Wiley, of counsel.
    O’Shaughressy & 0 ’ShaughNessy, for appellee.
   Mr. Justice Barres

delivered the opinion of the court.

This is an appeal from a judgment for $5,000 against defendants for personal injuries.

Plaintiff was an employe of the Tunnel Company and ran an elevator which carried mail cars up and down a shaft leading from the floor of the Railroad Company’s depot to the tunnel about 50 feet below.

The construction was such that when the platform of the elevator was in apposition to the floor, the cars would readily run along rails from one upon the other.

On the occasion in question, while the platform was about three or four inches above the floor, an attempt was made by employes of the Railroad Company to push the car into the elevator. It struck the platform and rebounded about three feet. While in a second attempt they were in the act of pushing the car into the elevator the plaintiff was lowering it, and as the front wheels of the car struck its platform the car became stuck, Valley was thrown back away from the hoisting cable so as to be unable to stop the elevator, and it continued downward, its canopy striking a projecting part of the mail car, thus causing the elevator to tilt, some parts to give way and break, and plaintiff to plunge to the bottom.

The liability of the Tunnel Company was predicated mainly upon an alleged violation of a city ordinance reading as follows:

“Section 659. Every passenger or freight elevator hereafter constructed * * * in any building within the city, shall be provided with some efficient device to secure the safe operation of such passenger or freight elevator in its running up or down, and such device shall be subjected to such practical test as may be determined by the commissioner of buildings to ascertain the efficiency of such safety device to properly perform the service for which it is intended; and it shall be the duty of the commissioner of buildings to cause to be made such test of each and every device upon any such elevator hereafter constructed, and no such elevator hereafter constructed shall be permitted to run until the inspection herein provided for has been made and a certificate issued by the commissioner of buildings or such inspector that the same has been inspected, and the certificate shall be posted in a conspicuous place in such elevator. Every passenger or freight elevator now in operation within the city shall be provided with some efficient device to procure the safe operation of such passenger or freight elevator in its running up and down, and such device shall be subjected to the same test as is herein provided for elevators to be hereafter constructed, and a certificate of such inspection issued as provided for elevators to be hereafter constructed, and every such elevator now in operation within the city, or which may hereafter be constructed and operated in the city, shall be inspected under and by authority of the commissioner of buildings at least once every sis months. Every owner or ag’ent of any building who fails to comply with any provision of this section shall be fined not less than fifty dollars nor more than two hundred dollars for each offense, * * V’

The specific proof relied upon to show violation of such ordinance consisted of evidence showing that there were two devices, known as a “governor” and a “slack cable stop,” employed to secure the safe operation of elevators in running up and down. Ah elevator inspector for the city of Chicago, called by plaintiff, testified that the elevator had two safety devices, — an automatic and a limit stop, the former to stop the car at the ordinary limit of travel both ways, and the latter to stop it when it went beyond that limit; that, however, they performed no function while the elevator was running up and down within such limits, and that the devices in general use for such purpose were the “governor” and “slack cable stop.” On cross-examination, however, he testified that at the time of this accident (February 21, 1908), there was no slack cable stop device in use on elevators of that construction, that none was invented until May, 1908, that a “governor” could not be employed upon an elevator of that type, and, therefore, as a factor of safety, ah additional cable had been put at each corner of the elevator in question. While these cables would not prevent the tilting of the elevator, it appears that there was no other device that would until the invention of the slack cable device aforesaid.

Whether or not such evidence was sufficient to 'show a violation of the ordinance, it appears that the chief elevator inspector for the city of Chicago made an inspection of the elevator and a report thereof to the commissioner of buildings, who issued a certificate of inspection, which was duly posted, stating that the condition of the elevator machinery was good, and that “said elevator complied with the requirements of the ordinance.” It is urged, and we think the authorities require us to hold, that said certificate constituted a complete defense to the counts based upon the violation of said ordinance.

This precise question was presented and decided in Bonbright v. Schoettler, 127 Fed. 320, which was also an action for personal injuries, based upon a violation of a statute. The court said:

“The controlling question in the case is whether the official certificate approving the fire escape, which was granted under the act of 1879, protected the defendant against the plaintiff’s demand. In considering this question, we note at the outstart that the plaintiff’s demand”is founded on a statute which is of a penal nature. Upon the facts appearing, the defendant was under no common-law liability to the plaintiff. * * * What effect is to be given to a certificate approving an external fire escape, granted by the fire marshal and fire commissioners under the provisions of that act? The act does not in express terms declare the effect of the certificate, but it seems to us that, upon well-settled principles, such certificate, when properly issued in accordance with the terms of .the act, must be taken as conclusive evidence of compliance with the law. It is .an indisputable proposition that where power or jurisdiction over a subject matter, involving the exercise of discretion and judgment, is vested by law in a public official or a special tribunal, the determination of such officer or tribunal as to such matter, when regularly made and within the scope of the delegated authority, is valid and binding, and cannot be questioned collaterally.”

The court cites United States v. Arredondo, 6 Pet. 691, where it is said:

“It is a universal principle where power or jurisdiction is delegated to any public officer or tribunal oyer a subject matter, and its exercise is confined to his or their discretion, the acts so done are binding and valid as to the subject matter, and individual rights will not' be disturbed collaterally for anything done in the exercise of that discretion within the authority and power conferred. The only questions which can arise between an individual claiming a right under the acts done, and the public, or any person denying its validity, are power in the officer and fraud in the party.”

It was also said in the Bonbright case, supra, that “if the statutory certificate is not conclusive evidence of compliance with the law, there is no certain criterion available.”

The principle has been applied particularly in cases where the legislative branch of government has delegated to an executive branch a duty involving as an incident to its performance the exercise of judgment or discretion in determining the suitability or fitness of certain matters or things, such as identifying the character of lands (French v. Ryan, 93 U. S. 169; Ehrhardt v. Hogaboom, 115 U. S. 67; Burfenning v. Chicago, St. P., M. & O. Ry. Co., 163 U. S. 321; Rogers Locomotive Machine Works v. American Emigrant Co., 164 U. S. 559); ascertaining the existence of facts justifying exclusion of aliens (Japanese Immigrant Case, 189 U. S. 86; Nishimura Case, 142 U. S. 651; Tang Tun v. Edsell, 223 U. S. 673); determining to which class mail matter properly belongs (Bates & Guild Co. v. Payne, 194 U. S. 106); passing upon the sufficiency of plans and specifications to authorize á building permit. Hawke v. Brown, 28 App. Div. (N. Y.) 37.

While we are unable to find any case in this state in which this precise point has been decided, yet the Supreme Court, in discussing the distinction between the exercise of judicial power and of judgment and discretion in the performance of administrative and ministerial functions, has frequently recognized that the latter were not subject to review. As stated in People v. Thompson, 155 Ill. 451, 476:

“Full power and final authority to perform the different governmental functions must be lodged somewhere. * * * It would be a new doctrine, and one fraught with much danger, to hold that the courts may reverse or annul acts of the other departments in matters committed by the constitution to the judgment and determination of such other departments, or in matters where it is a question of serious doubt whether they are so committed or not, even although the courts might be satisfied that in the determination of the question by the department to which it is committed the constitution has not been properly observed. ’ ’

It has been held that an administrative body charged by statute with ascertaining and determining the qualifications to practice medicine, may grant, refuse or revoke a license as the circumstances may require (People v. Apfelbaum, 251 Ill. 18, 26); that an act is not invalid because it gives discretion to an inspector as to the number, location, material and construction of fire escapes (Arms v. Ayer, 192 Ill. 601); nor an ordinance because it gives a commissioner of public works the authority to approve a device to prevent the spilling of oil on streets (Spiegler v. City of Chicago, 216 Ill. 114); nor one which leaves to the chief of police the power to determine whether pictures or scenes are immoral (Block v. City of Chicago, 239 Ill. 251).

In the last cited case the court said that “government could not be carried on if nothing could be left to the judgment and discretion of administrative officers, ” and that if there should be an abuse of power by the chief of police, the court on application would compel him to perform his duty. In the Thompson case, supra, the court said: “The only remedy for dereliction of duty in such cases lies in the frequency of elections, by which the people may choose others to serve them, and in the impeachment and removal from office of those made subject to that punishment.” If, as these cases hold or clearly intimate, the official determination of facts within the scope of authority thus delegated be so far conclusive as not to be subject to judicial review except for fraud or where otherwise provided, it cannot be subject to collateral attack and must be binding and conclusive upon everybody.

Inasmuch, as tbe ordinance in question provided for an official inspection to determine whether the elevator met the requirements thereof, and the issuance of an official certificate if it met them, and a penalty against the owner if the elevator was run without compliance with such requirements, the certificate, when so issued, afforded the owner of the elevator complete protection against any action based upon a claim of noncompliance with its provisions.

But it is urged that the record supports the judgment under the first count, which, so far as it relates to the Tunnel Company, charges a failure on its part to maintain and keep the elevator in a reasonably safe condition and ¡repair and to provide necessary and proper machinery, appliances and safeguards for its operation.

In other words, we are asked to hold that where an elevator has been officially inspected for the express purpose of finding whether it contains such safety devices as are deemed necessary to render it reasonably safe for operation, and a license has been issued giving official assurance of that fact to the public, nevertheless without any claim or proof of fraud or incompetency on the part of the public officials, a jury is justified in finding it not reasonably safe merely because some sort of a device might have been adjusted that would have prevented the elevator from tilting.

To this contention it is enough to say that while the case was apparently tried on the theory of liability under the other counts already considered, the evidence was not sufficient to show that the elevator was not reasonably safe. It was manifestly not within the purposes for which it was designed and used that it should be in motion while a car was running into it. Plaintiff’s theory is that had there been a device adjusted thereto to prevent “tilting,” the accident would not have occurred, although the record clearly shows that up to that time there was no device of that character, invented or used, that was applicable to that type of elevator. But it is plain that the elevator would not have tilted on the occasion in question had its canopy not struck the end of the car; and that had it not been moving, its canopy would not have hit the car. The proximate cause of the injury was not the condition of the elevator. Whether at that juncture plaintiff was negligent in moving the elevator or the railroad company’s employes in attempting to push the car into it, or both, we need not here consider, for, whichever way the fact may be, the negligence could not be attributed to the Tunnel Company.

It was error, therefore, to deny the motion of the Tunnel Company to direct a verdict in its favor.

If the Tunnel Company were the only defendant, we would be required to enter judgment here in its favor; but as the record does not warrant our finding the facts necessary to enter judgment for both defendants, and as the judgment was a unit as to both defendants, being erroneous as to one, it must be reversed and remanded as to both. Supreme Lodge Knights of Honor v. Goldberger, 175 Ill. 19; Jansen v. Varnum, 89 Ill. 100; Claflin v. Dunne, 129 Ill. 241; West Chicago St. R. Co. v. Morrison, Adams & Allen Co., 160 Ill. 288.

A reversal being necessary for the reasons stated, it is needless to consider the other grounds urged therefor.

Reversed and remanded.


text:
    Charles Haas, Appellee, v. Andrew T. Juul et al., Appellants.
    Gen. No. 17,096.
    1. Foeoible detainee — when possession does not give rights. In an action of forcible detainer, where defendant, foster mother of tbe wife of plaintiffs grantor, lived in tbe bouse as a member of tbe family after tbe grantor bad conveyed tbe premises to plaintiff, and continued in possession under a lease from plaintiff, ber possession is not distinct and hostile to that of plaintiff.
    2'. Evidence — what properly excluded in forcible detainer. In forcible detainer, evidence that defendant advanced one-half of tbe purchase price when plaintiffs grantor purchased tbe premises and one-balf of tbe cost of improvements, and that tbe grantor made a declaration of trust in ber favor, is properly excluded because it does not tend to show a possessory right and defendant cannot raise question of title.
    3. Teusts — when one claiming under a secret trust permits conveyance. Where one claiming an interest in certain property through a declaration of trust permits a conveyance without giving notice to tbe grantee of ber interest, she is estopped from asserting ber claim.
    Appeal from tbe Superior Court of Cook county; tbe Hon. Marcus Kavanaoh, Judge, presiding. Heard in tbe Branch Appellate Court at tbe October term, 1910.
    Affirmed.
    Opinion filed March 25, 1913.
    Rehearing denied April 1, 1913.
    Ray & Pease, for appellants.
    Michael D. Dolar, for appellee.
   Mr. Justice Barres

delivered the opinion of the court.

. This was an action of forcible detainer brought by appellee, Haas, against Andrew T. Juul, his wife and Ellen M. Magnusen, resulting in a judgment for Haas from which Magnusen alone appealed. Upon the suggestion of her death a substitution of parties has been made.

In support of his right to possession, Haas made proof of the following conveyances of the premises in question, to-wit, a trust deed executed by said Juul in 1904; a master’s deed to Haas, dated May 12, 1907, obtained through foreclosure of said trust deed; a quitclaim deed to Haas from Juul and wife, dated May 12, 1908; and a lease from Haas to Juul, dated May 18, 1908. Juul defaulted in the payment of rent, and the proceedings were commenced in August, 1909, after due service of a five-day notice on said defendants..

The only evidence received in support of Magua-sen’s right of possession was that she had lived for thirty years in the house in question and that it was moved on the land in question prior to the date of said trust deed.

In view of the fact that she was the foster mother of Juul’s wife and continued to live in the family with them without giving notice or making assertion of any claim to the premises on her part, and shared their occupancy with knowledge, actual or constructive, that Juul during that time had, after asserting title to the premises, parted with it to appellee and later had leased the premises from him, her possession, being thus used and enjoyed in common with Juul, could not be said to be distinct and hostile to that of appellee. Truesdale v. Ford, 37 Ill. 210.

She offered to show that she advanced one-half of the purchase price of the premises when purchased by Haas, and one-half of the cost of the improvements subsequently made thereon; and also offered in evidence a declaration of trust by Juul in her favor, dated April 30,1909, and recorded May 5, 1909, setting forth her interest as aforesaid.

The evidence so offered was properly excluded. So far as it attempted to raise a question of title it could not, of course, be permitted in this form of action; and so far as it tended to show a possessory right, it was properly rejected. If such agreement with Juul was the result of an intrigue to take possession from the landlord, then she stood in the tenant’s shoes. Thomasson v. Wilson, 146 Ill. 384. If not, then it was a secret trust which, under the circumstances, she was bound to disclose, and after standing by without giving notice thereof and permitting her trustee thus to deal with appellee she was estopped from asserting her claim. Pratt v. Stone, 80 Ill. 440; Clark v. Morris, 22 Ill. 434.

Affirmed.