text:
    Lincoln Electric Heating Appliances, Incorporated, Defendant in Error, v. Richard A. Schultz, Plaintiff in Error.
    Gen. No. 21,683.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arthur J. Gray, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Lincoln Electric Heating Appliances, incorporated, a corporation, plaintiff, against Richard A. Schultz, defendant, to recover $1,000 damages because of materials furnished to defendant with which to construct certain parts of electric lanterns for plaintiff. From a judgment for plaintiff for the amount claimed, defendant brings error.
    Vincent D. Wyman, Otto W. Jurgens and Charles E. Carpenter, for plaintiff in error.
    Howard Ames, for defendant in error.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 329 —when party accepting and paying for worlc is estopped to recover damages for defects. Where a party experienced in a particular line of business accepted and paid for work done in that line, held that such party was estopped from recovering damages because of such work.

2. Payment, § 48 —when money paid is recoverahle. Money paid upon false bills or upon bills already paid is recoverable.

3. Damages, § 61 —when judgment for loss of profits on contract is erroneous. Where a judgment for claimed loss of profits on a contract was not based upon any evidence of how much profit, if any, the plaintiff would have made on such contract or that the loss of such contract was by reason of the defendant’s failure, held that such judgment was erroneous.

4. Damages, § 190 —when evidence is insufficient to authoriserecovery for depreciation in value of returned materials furnished manufacturer. Where materials belonging to the plaintiff were furnished to the defendant, a manufacturer, with which he was to manufacture certain articles for the plaintiff, and were returned to the plaintiff five or six days later'in large part in the same condition as when delivered to the defendant, and no reason for depreciation in value or evidence thereof appeared in an action against the defendant for damages, held that a judgment for the plaintiff for damages was erroneous.

5. Damages, § 190 —when evidence is insufficient to justify recovery for expenditures due to failure of manufacturer to return demanded materials. Evidence held insufficient to justify recovery for certain expenditures by plaintiff claimed as damages while its factory was idle, in an action to recover damages for failure to return materials furnished defendant with which to construct for plaintiff parts of certain lanterns.


source: Caselaw Access Project

author: Mr. Presiding Justice O’Connor

license: Public Domain

text:
    Max Nickol, Plaintiff in Error, v. Dwight M. Clark and John E. Traeger, Sheriff, Defendants in Error.
    Gen. No. 21,722.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 179

      —when title does not pass from mortgagee to creditor. Where the plaintiff sold and delivered an automobile, and the purchaser, being unable to pay a chattel mortgage given for the balance due on the machine, at its maturity, returned the machine with a bill of sale thereof by him to the plaintiff, who thereupon canceled the mortgage, which had been unrecorded, and the indebtedness, and turned hack the machine to such purchaser with a written agreement between them loaning the machine to the purchaser for eight months, when he was to pay either a certain amount and retain the machine or a certain other amount as damages and return it, held that the transaction at the maturity of the mortgage was a mere subterfuge and no title passed from such purchaser to the plaintiff.

      Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Max Nickol, plaintiff, against Dwight M. Clark and John E. Traeger, sheriff of Cook county, Illinois, defendants, for trial of the right of property in an automobile taken by the sheriff on an execution issued upon a judgment in favor of the codefendant. From a judgment for defendants, plaintiff brings error.
    Aaron and Hirsoh E. Sable, for plaintiff in error.
    Fulton, G-arey & Deutschman, for defendants in error.

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

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

2. Execution, § 121 —when proceedings for trial of right of property may not he maintained. In proceedings for trial of the right of property in an automobile taken on execution upon a judgment against the party in whose possession it was at the time of levy, where it was shown such party held it under an agreement with the plaintiff to pay a certain amount at a certain time, subsequent to the levy and to retain the machine, or to return it to the plaintiff at that time and pay a certain other amount as damages, held that the plaintiff could not maintain such proceedings against the execution creditor and the officer making the levy.


text:
    Ravenswood Hospital, Appellant, v. Maryland Casualty Company, Appellee.
    Gen. No. 21,736.
    1. Indemnity—when part payment of judgment against insured is made hy casualty company under contract of indemnity. In an action against a casualty company upon its policy of indemnity agreeing to indemnify the insured to the extent of a certain sum on a single liability for damages on account of injury or death, where judgment was recovered against the insured in a certain case for more than the face of the policy in which appeal was taken, and the surety company on the appeal bond required the insured to give collateral security covering the excess over the face of the policy of the recovery in the case and the casualty company to give indemnity to it to the extent of the face of the policy, and upon such judgment becoming final and the surety company paying the same and taking an assignment thereof the casualty company paid the amount of the policy and the insured the excess over that amount to the surety company, held that the insured’s contention that the payment by the insurer of the amount of the policy was not made under its policy of indemnity to the insured but under its independent contract with the surety company was without merit.

      2. Indemnity, § 26

      —how much interest insured may recover from casualty company where judgment is rendered for more than face of policy. Under a policy of indemnity issued by a casualty company agreeing to indemnify the plaintiff, in an action on the policy, to a certain amount on a single liability for damages on account of injury or death, and to defend at its own cost any action for the recovery of such damages, such company is liable for Interest .on a judgment recovered against the plaintiff to that amount from the date of the judgment, and the plaintiff who has paid the same may recover it from the defendant, but not interest paid by plaintiff on an excess of the judgment over the face of the policy.
    3. Indemnity, § 25

      —when casualty company is not liable for money paid to husband of injured patient of insured. Under a policy of indemnity issued by a casualty company agreeing to indemnify a hospital against loss from liability on account of injuries or death suffered by its patients under treatment in consequence of alleged error, mistake or malpractice in such treatment, such company is not liable for money paid to the husband of a patient for damages suffered by him in consequence of injuries or death of such patient.
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed February 7, 1917.
    Charles C. Spencer, for appellant.
    J. F. Dammann, Jr., for appellee.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

The Ravenswood Hospital brought suit against the Maryland Casualty Company to recover $4,095.19 upon a policy of insurance issued by the defendant. The case was tried before the court without a jury, and judgment was entered in favor of the plaintiff for $92.25. Plaintiff prosecutes this appeal, and def,end-ant has assigned cross error.

The facts in the case were stipulated, and so far as material are as follows: Plaintiff was- conducting a hospital in Chicago, and on July 9, 1907, the defendant issued a policy of insurance to the plaintiff in and by which it agreed to indemnify the plaintiff for a period of one year “against loss from the liability imposed by law upon the assured for damages on account of bodily injuries or death suffered by any patient or patients under treatment by the assured, * * * in consequence of any alleged error or mistake or malpractice occurring in the course of said treatment.” . The policy further provided that the defendant company “will defend, at its own cost, in the name and on behalf of the assured, any civil suit or suits for the recovery of damages for such alleged error or mistake or malpractice, subject to the following conditions:” (a) The defendant’s liability for such damages on account of injury or death to one person is limited to $5,000, and the total liability on account of injuries to or death of any number of persons is limited to $10,000; (c) the assured shall give immediate written notice to the defendant of any claim for damages; (d) that if suit is brought to enforce a claim for damages against the assured, it shall immediately notify the defendant, and the defendant will at its own cost defend the suit, in the name and on behalf of the assured, unless it shall elect to pay the claim; (e) the assured shall not without the written consent of the defendant incur any expense or settle any claim, except at its own cost, nor interfere in any negotiations for settlement, nor in any legal proceedings, without the written consent of the defendant.

It further appears that while the policy was in force, a patient was injured while in plaintiff’s hospital, for which suit was brought. There was a verdict in the case for $10,000 in favor of the patient. The court required a remittitur of $2,500, and judgment was entered for $7,500. An appeal was prosecuted to this court, where the judgment was affirmed (Appell v. Ravenswood Hospital, 167 Ill. App. 187), and a writ of certiorari was later denied by the Supreme Court. In that case, the Circuit Court, in allowing the appeal, fixed the bond at $9,000. After the judgment had become final, July 29,1912, the surety on the appeal bond paid the same and took an assignment of the judgment, the amount paid being $8,642.25. This amount was made up of $7,500 principal, $1,125 interest and $17.25 court costs. The surety company, before signing the bond, required the plaintiff to deposit with it collateral security for $3,000, and required the defendant to indemnify the surety company to the extent of $5,000. Upon assignment of the judgment to it, the surety company threatened to issue execution, and demanded that the defendant pay it $5,000 and the plaintiff $3,642.25, which payments were made. The plaintiff paid $2,500 of the judgment, $1,125 interest on the entire judgment pending the appeal, and $17.25 court costs. These are the items plaintiff seeks to recover in this suit, and in addition $75 which it paid the husband of the patient to settle his claim for damages on account of injuries to his wife. The court allowed the plaintiff this $75 and $17.25 court costs, making $92.25 for which judgment was entered, but disallowed the balance of plaintiff’s claim.

Plaintiff first contends that it is entitled to recover the entire amount it paid the surety company, $3,642.24, together with interest thereon from the time of such payment, for the reason that this was the loss sustained by the plaintiff, and was covered by the contract of insurance; that the payment of the $5,000 by the defendant to the surety company was not paid under the policy, but under the provisions of an independent contract between defendant and the surety company while the policy provided that payment should be made to the hospital. It appears that both parties desired to prosecute the appeal, and it was therefore necessary to secure a surety. When the judgment was assigned to the surety company, it could then have enforced it in its entirety against the hospital. Under these circumstances, the defendant paid the $5,000 under the policy, and thereby relieved the hospital to that extent. The contention of the plaintiff is clearly without merit.

Plaintiff next contends that the defendant is liable for interest on the whole of the judgment against the plaintiff from the date of the entry thereof, or at least for the interest paid by the plaintiff on the $5,000, the portion of the judgment paid by the defendant.

In support of this contention it is argued that, by the terms of the policy, the defendant agreed to indemnify the plaintiff against loss from the liability imposed by law on account of bodily injuries to patients, and agreed to defend any litigation arising out of any matters covered by the policy at its own costs, and that the interest which accumulated on the judgment pending the appeal is a part of such costs. To sustain its position in this regard plaintiff cites Aetna Life Ins. Co. v. Bowling Green Gas Light Co., 150 Ky. 732, and Century Realty Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 179 Mo. App. 123, 161 S. W. 624. In these cases it was held that interest which accumulated on judgments pending appeal could be recovered under policies similar to the one before us, as being part of the costs of the suit.

On the other side, defendant contends that it is not liable under the policy for such interest; that the policy insures “against loss from liability as contra-distinguished to insurance against liabilitythat under such a policy nothing is due until the loss has been paid, and that at or about the time the plaintiff paid its portion of the judgment the defendant paid $5,000 of such judgment and therefore nothing can be recovered in this case. In support of this contention many authorities are cited, among them being the following: Davison v. Maryland Casualty Co., 197 Mass. 167, 83 N. E. 407; Coast Lumber Co. v. Aetna Life Ins. Co., 22 Idaho 264, 125 Pac. 185; Puget Sound Imp. Co. v. Frankfort Marine, Accident & Plate Glass Ins. Co., 52 Wash. 124, 100 Pac. 190; Munro v. Maryland Casualty Co., 48 N. Y. Misc. 183, 96 N. Y. Supp. 705; Maryland Casualty Co. v. Omaha Electric Light & Power Co., 157 Fed. 514; Conqueror Zinc & Lead Co. v. Aetna Life Ins. Co., 152 Mo. App. 332; United States Fidelity & Guaranty Co. v. Maryland Casualty Co., 182 Ill. App. 438; Campbell v. Maryland Casualty Co., 52 Ind. App. 228; Connolly v. Bolster, 187 Mass. 266; Cushman v. Carbondale Fuel Co., 122 Iowa 656; Carter v. Aetna Life Ins. Co., 76 Kan. 275, 91 Pac. 178; Frye v. Bath Gas & Electric Co., 97 Me. 241. In each of these cases the policy contained a provision similar to the provision in the policy in this case, and, in addition, a condition that no action should lie against the company for any loss, unless brought to reimburse the assured “for loss actually sustained and paid by him in satisfaction of a judgment, after trial of the issues.” The Davison case, supra, is typical of all the authorities cited by the defendant. In that case it was held that the casualty company was not liable for interest which had accrued on the judgment pending the appeal, in addition to the face of the policy of $5,000. The court there said: “The contract here sued on is one to ‘indemnify’ the plaintiff ‘against loss from common-law or statutory liability for damages on account of bodily injuries * * * caused through the negligence of the assured,” etc. What is meant by the words ‘against loss’ is described in article.8 of the conditions precedent to which the insurance is stated to be subject: Article 8 provides that no action shall lie for ‘any loss,’ unless brought ‘to reimburse’ the assured ‘for loss actually sustained and paid by him in satisfaction of a judgment after trial of the issue. ’ * * # The result of these provisions is that the plaintiff was to be reimbursed for sums paid by him, not exceeding $5,000, on judgments recovered after a trial founded on accidents described in the policy. See Connolly v. Bolster, 187 Mass. 266, and cases there cited.”

It will be noted that the defendant in that case is the same as the defendant here, and, further, that the policy in the case at bar contains no provision such as that mentioned in article 8 above quoted. The distinction between a policy such as the one before us and one containing the two provisions as in the Davison case, supra, is clearly pointed out by the Missouri Court of Appeals in the Century Realty Co. case, supra. In that case the Realty Company was insured in the Frankfort Company and Travelers Liability Company, a policy being issued by each company. An employee of the Realty Company recovered a judgment against it on account of injuries sustained in the sum of $5,000, which judgment was to draw six per cent, interest. The Frankfort Company by the terms of its policy agreed to indemnify the Century Company against loss arising from legal liability for damages on account of bodily injuries, etc. The liability on account of injury or death of any one person was limited to $5,000, and for any one accident resulting in the death of several persons, to $10,000. It also contained provisions with reference to notice, and that the company should defend any suit at its own cost, and that it should have charge of all suits growing out of any accident covered by the policy. Similar provisions were contained in the policy issued by the Travelers Company, and in addition the following: “No action shall lie against the company as respects any loss under this policy, unless it shall be brought by the assured himself to reimburse him for loss actually sustained and paid by him in satisfaction of a judgment, after trial of the issue.” The court held that the Travelers Company was not liable for interest which had accrued on the judgment pending an appeal on account of the provision in the policy just quoted. The court, however, held that the Frankfort Company was liable for such interest, in addition to the face of its policy, under the provisions with reference to costs. The court there analyzed most of the cases cited by counsel here. In the case at bar, the provisions in the policy were substantially the same as those contained in. the policy of the Frankfort Company. We, however, are of the opinion that in and by the terms of the policy, the defendant agreed that it would indemnify the plaintiff for damages- sustained on account of any patient being injured by reasons of mistake or malpractice while in the plaintiff’s hospital to the extent of $5,000. Therefore the damages to the extent of that amount must be taken care of by the defendant, and when that item is increased by the postponement of payment, the interest is merely an accumulation to the principal sum, which the company has agreed to take care of, and in so doing the defendant pays no more than it agreed to, for it has had the use of the $5,000 from the time the judgment was entered in the trial court until it was paid. Moreover, under the terms of the policy, the defendant had entire charge of the litigation, and as it did not see fit to pay the judgment when it was rendered, nor permit the plaintiff to do so, it cannot be heard to say that its liability has been increased by the accumulation of interest. The conclusion reached not only gives effect to the terms of the contract but is in accord with every principle of justice, since by the postponement of the day of payment each party retains the use of the amount upon which it is obliged to pay interest. If defendant were not liable for its share of the interest, it could by the postponement of the day of payment reduce the amount of its burden and increase that of the assured. We, however, are of the opinion that this is the extent of defendant’s liability, and that it should not be required to pay interest on the entire judgment.

Plaintiff next contends that the defendant is liable for the $75 which it paid to the husband of the patient who obtained the judgment against it, on account of injuries sustained by such husband by reason of the injuries to his wife. In support of this contention, it is argued that the injury to the husband arose out of the same accident as did the injury to his wife, but that it was a separate injury to him; that the defendant agreed to indemnify it against loss from liability for damages on account of bodily injuries suffered. The policy provides that the Casualty Company agrees to indemnify the hospital against loss from liability “on account of bodily injuries or death suffered by any patient or patients under treatment by the assured or at the assured’s hospital, in consequence of any alleged error or mistake or malpractice occurring in the course of said treatment.” We think it clear from this provision that defendant’s liability was limited to claims made by the patient for bodily injuries and did not cover a claim made by the patient’s husband, who may have suffered damages as a consequence of such injuries.

For the reasons stated, the plaintiff is entitled to the interest on $5,000 from the date judgment in favor of the patient was entered, July 20, 1909, until it was paid, July 29, 1912, at five per cent., $756.25, plus $17.25 court costs which is conceded, making a total of $773.50, less the $75 claimed in defendant’s set-off which it paid on account of the claim made by the husband of the patient, leaving a balance due the plaintiff in this case of $698.50.

The judgment of the Municipal Court of Chicago is therefore reversed and judgment will be entered in this court in favor of the plaintiff and against the defendant for $698.50.

Judgment reversed and judgment here.


text:
    James L. Marino for use of Frank Surianello, Plaintiff in Error, v. Antonio Parisi and Nicola Monaco, Defendants in Error.
    Gen. No. 21,748.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Garnishment proceedings by James L. Marino for use of Frank Surianello, plaintiff, against Antonio Parisi and Nicola Monaco, defendants, based upon a judgment in favor of Surianello against Marino for $97.10 and $3 costs. From a judgment for defendants, plaintiff brings error.
    Ernest Saunders and Frank A. Ramsey, for plaintiff in error.
    No appearance for defendants in error.

      See Illinois Notes • ¡Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section nu’mber.

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.

Abstract of the Decision.

1. Garnishment, § 15 —when cogarnishee furnishing funds to contractor may not be garnisheed. In garnishment .proceedings, where it was shown that one of the defendants had a contract with the other to furnish him the funds for constructing a certain building which the nominal plaintiff had contracted with the latter to construct for an agreed price, held that there was no claim or demand by the nominal plaintiff against the cogarnishee furnishing the funds so as to authorize garnishment.

2. Mechanics’ liens, § 62 —when right of subcontractor to lien is waived by contractor. Where a building contractor by his contract expressly waives any and all liens for himself and all subcontractors, the subcontractors have no enforceable lien.

3. Garnishment, § 69 —when garnishee paying debt after garnishment is wrongfully discharged. Where the evidence showed that a garnishee had a building contract with the nominal plaintiff in the garnishment proceedings at the time of service of process and was indebted to such plaintiff and thereafter paid him a certain sum under such contract, held that it was error for the court to discharge such garnishee.

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


text:
    American Hard Rubber Company, Defendant in Error, v. Thad H. Howe, Plaintiff in Error.
    Gen. No. 21,776.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action on a contract of guaranty by American Hard Rubber Company, a corporation, plaintiff, against Thad H. Howe, defendant, to recover $2,000 and interest thereon and $10.50 court costs. From a judgment for plaintiff for $2,000, defendant brings error.

      The statement of claim alleged a debt due to plaintiff from the Swiss American Yaporator Company of $2,000 balance for merchandise sold and delivered “to the defendant”; that the defendant guaranteed payment for such merchandise, that an action for that amount was brought against that company and, on admission of $1,040 due, judgment was entered for such amount, on which execution issued' and was returned “no part satisfied”; that that company was insolvent and delay in reducing the balance of the $2,000 claimed to be due to plaintiff from that company which was disputed would endanger plaintiff’s claim against the defendant. Defendant’s affidavit of merits was as follows:
    “That said plaintiff did not furnish and deliver the goods, wares and merchandise mentioned in said order and guarantees; that there was no balance of $2,000 due on December 3, 1914; that Swiss American Yaporator Company has paid $100 on account of said judgment of $1,040 mentioned in said statement of claim; that defendant is not liable for costs and interest on said claim; that plaintiff on, to wit, March, 1915, in consideration of A. H. Freeman agreeing to pay $100 on said judgment and $100 each and every week thereafter until same was paid, agreed to extend the time of payment of plaintiff’s claim so that same should be paid $100 cash on, to wit, March 1,1915, and $100 each and every week thereafter, and that A. H. Freeman paid said plaintiff $100 on account of said agreement and agreed to pay plaintiff $100 each and every week thereafter. ’ ’
    This affidavit of merits was stricken from the files, and defendant ordered to file an amended affidavit in five days. He elected to stand by this affidavit, and was defaulted and judgment entered.
    Harry A. Biossat, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error; Edward L. England, of counsel.

      Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —what constitutes a clerical error in a statement of claim. Where a statement of claim against a guarantor of payment for goods sold to a corporation set up that the goods were delivered “to the defendant” and that suit had been brought against the corporation for the debt, held that the words “to the defendant” were a clerical error and were shown by the entire statement to have referred to the corporation.
    2. Pleading, § 267

      —when clerical error may he corrected. Where the context in a pleading affords the means of correction of a clerical error, the proper word will be deemed substituted.
    3. Guaranty, § 21

      —when guarantor is discharged. Where an extension of time is given the principal for the payment of money due by him by a valid and binding agreement without his guarantor’s consent, the latter is discharged.
    4. Pleading, § 153

      —when affidavit of merits filed hy guarantor in action on guaranty is fatally defective. An affidavit of merits filed by the guarantor of a debt when sued upon his guaranty which seeks to set up an extension of the time of payment as a defense is fatally defective in not alleging that such extension was without his consent.
    5. Pleading, § 153

      —when affidavit of merits may he declared insufficient in its entirety. A court is not called upon to point out the particular parts of an affidavit of merits which are insufficient, and is warranted in holding it insufficient in its entirety.

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

   Mr. Presiding Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    Bridget O’Brien, Defendant in Error, v. Peter P. Salerno, Plaintiff in Error.
    Gen. No. 21,066.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebror, § 1303

      —when presumed that there was evidence sufficient to sustain finding of court. Where a bill of exceptions recited that it contained “as much evidence as recollected by counsel and court and introduced on the trial,” held that as the bill did not purport to contain allN the evidence the law conclusively presumed that there was evidence sufficient to sustain the finding of the court.
    2. Appeal and error, § 1488

      —when judgment on trial By court will not he reversed for improper admission of evidence. A judgment on trial by the court without a jury will not be reversed on account of the court’s improper admission of evidence where there is sufficient competent evidence to sustain the judgment, as the court is presumed to have disregarded evidence improperly admitted.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.»
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Bridget O’Brien, plaintiff, against Peter P. Salerno, defendant, to recover damages for personal injuries caused by defendant carelessly and negligently leaving a horse hitched to a wagon untied in the street. From a judgment for plaintiff for six hundred dollars, on trial by the court without a jury, defendant brings error.
    Cantwell & Smith, for plaintiff in error.
    Farrell & Thompson, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


author: Mr. Justice G-oodwih

text:
    Julia Farrell, Defendant in Error, v. James W. Stafford, Plaintiff in Error.
    Gen. No. 21,204.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pledges—when pledged articles may not le sold without disclosing their nature. A pledgee of goods contained in a barrel, held under an agreement as security for a debt with authority to sell the goods if the debt is not paid at the time specified, is not justified in selling the barrel and its contents at auction without opening it and disclosing what its contents are.
    2. Tboveb and convebsion, § 39

      —when evidence is sufficient to sustain finding as to value of goods. Evidence held to sustain the finding of the court as to the value of goods, in an action for their conversion.
    3. Tboveb and convebsion, § 28

      —when tender of delt ly pledgor of goods is not condition precedent to maintenance of action for

      conversion. An action for the conversion of goods held by the defendant in pledge for a debt and improperly sold by him will lie without the plaintiff tendering in court the amount of the debt.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. J abecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Rehearing denied February 26, 1917.
    Statement of the Case.
    Action by Julia Farrell, plaintiff, against James W. Stafford, defendant, to recover damages for conversion of certain goods belonging to plaintiff. From a judgment for plaintiff for $153.50, defendant brings error.
    C. Yah Aleh Smith, for plaintiff in error.
    Leo S. Le Bosky, for defendant in error.

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

   Mr. Justice G-oodwih

delivered the opinion of the court.

4. Tboveb and convebsion, § 42 —when finding for plaintiff on trial by court does not imply that punitive damages were allowed. The inclusion in the finding of the court for the plaintiff in an action for conversion that the defendant “maliciously, wilfully and intentionally, and with intent to injure and defraud the plaintiff” converted the goods does not imply that punitive damages were allowed.

5. Tboveb and convebsion, § 51 —when tender of goods considered in mitigation of damages. The defendant to an action for conversion has the right to tender in open court the goods which have been converted and have such tender considered in mitigation of damages, but no such question arises where they were tendered as a full settlement of plaintiff’s claim.

6. Appeal and ebbob, § 1325 —when presumed that court gave defendant credit for set-off in its finding. In the’ absence of any contrary showing, it must be assumed that the defendant was duly credited with a set-off claimed in the finding of the court in an action for damages for the conversion of goods.


text:
    C. A. Samuel, Plaintiff in Error, v. I. S. Coles, trading as Rush City Express Company, Defendant in Error.
    Gen. No. 21,303.
    1. Assiqnments, § 25

      —what is assignee's interest in xoages assigned as security for debt. Where a debtor assigns his wages as security for his debt, the assignee’s interest in such wages is limited to the amount of the debt.
    2. Usuby, § 25

      —what is effect of inclusion of in note. The inclusion of usury in a note defeats a claim for lawful interest even when expressly stipulated for.
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Raffebty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.

      Woodbury & Woodbury, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Plaintiff in error sued out this writ to reverse a judgment in his favor for $16, and to secure the entry of a, judgment here for $96. The plaintiff brought suit to recover on an assignment made by one Webster of wages due and to become due from the defendant. It appears from the evidence that Webster borrowed $35 from the Fidelity Loan Company, August 19, 1910, and had paid $15.20 by August, 1912, and that there was still due, at that time, $19.80. Plaintiff, who was the then owner of this claim, obtained a note from Webster. It appears from plaintiff’s own testimony that at the time he became the owner of the note he knew that the Fidelity Loan Company was engaged in lending money at usurious rates of interest. No consideration for the giving of the note for $30, beyond the legal claim of $19.80, appeared except usury. The note taken included power of attorney to confess judgment for amount named and $15 as attorney’s fees, and also an agreement to pay $15 if suit was begun on the note. To secure payment, plaintiff made an assignment of the wages due and to become due from the defendant, “up to and including the last day of -.” It appeared that $2 were paid on the note September 6,1912, and $2 September 21, 1912. Notice of the assignment was given the defendant in November, and suit was brought April 8, 1913. It appears that there was nothing due from the defendant to Webster at the time this suit was brought, but plaintiff contended, and contends here, that he was entitled to have a judgment for the full amount of Webster’s wages from the time notice of the assignment was given to the date when suit was begun, less the $4 paid.

While no briefs have been filed on behalf of defendant in error, we think that the case is governed by certain fundamental principles of law, so well established as to require few citations to support them. It will be noted that the assignee of the unearned wages brings this suit in his own name for the amount due his assignor. Originally, at common law, no suit could be maintained by an assignee, either in his own name or in the name of his assignor, but gradually, for equitable reasons, this rule was relaxed, and the assignee was first permitted to maintain a suit in the name of the assignor, and, more recently, in his own name against the assignor’s debtor. Had suit been begun by Woodbury for his own benefit, the payment to him would, of course, have been an absolute defense, and it would be a good defense at law to a suit brought for the benefit of the assignee, if the courts did not, for equitable reasons, estop the defendant from availing himself of it to the injury of the assignee, where payment is made with notice of the assignment. But this equitable principle cannot be invoked to estop the debtor any further than is necessary to protect the actual interest of the assignee in the chose in action. If, therefore, the interest of the assignee is not absolute, but qualified, payment to the assignor will protect the debtor except as to the actual interest of the assignee. The question, therefore, is, what was the interest of the plaintiff here in Webster’s wages! ' The assignment itself shows that it was given to secure Webster’s indebtedness to the plaintiff, and it therefore could not extend beyond the amount actually due. We are therefore of the opinion that a judgment in such a case should be limited to the amount of the assignor’s actual indebtedness to the assignee, which the assignment is given to secure. This is directly supported by Sanders v. Soutter, 136 N. Y. 97, where the Duchesse D’Auxy, who had assigned her interest in an estate to secure an obligation of $2,250, after-wards executed a release to the executors which was in fraud of the rights of the assignee. The court there held that the amount which the latter was entitled to recover was limited to $2,250, although the assignor’s interest in the estate exceeded that amount. To the same effect, see Blackman v. Town of Dunkirk, 21 Wis. 36.

The sole question before the court, therefore, was as to the amount due from Webster to plaintiff. The undisputed evidence showed that amount to be $15.80. Plaintiff claimed in addition that there was due $15 under the power of attorney and agreement in regard to attorney’s fees, but the evidence fails to disclose that suit had been brought on the note, or a confession of judgment entered. The question of whether such an agreement to pay attorney’s fees in connection with the enforcement of a note in a large part usurious, could be enforced is, therefore, not before us.

There is no validity in the claim that interest should have been allowed, since the inclusion of usury in a note defeats a claim for lawful interest, even when expressly stipulated for.

For the reasons given, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    National Surety Company, Plaintiff in Error, v. Goldenberg Furniture Company, Defendant in Error.
    Gen. No. 21,535.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A, Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by National Surety Company, a corporation, plaintiff, against G-oldenberg Furniture Company, a corporation, defendant, to recover under a contract of indemnity for any moneys paid to' the Peoples Gas Light & Coke Company under the terms of a bond which plaintiff signed as surety. From a judgment for defendant, plaintiff brings error.
    Th'e defendant was collector, without compensation, of bills of the Peoples Gas Light & Coke Company, agreeing in its contract to account for and turn over each day all moneys collected. • It gave bond to secure performance of' such agreement, with the plaintiff as surety thereon, and by contract with plaintiff it was to indemnify plaintiff for any moneys paid by it as such surety. Collections to the amount of $538.26 were made December 6, 1913, the money placed in the defendant’s vault, and its check for the amount mailed to the Peoples Gas Light & Coke Company the same day. That night persons unknown to defendant and without its fault or negligence broke into the vault and stole the identical money collected. The defendant stopped payment on its check. The plaintiff on January 8, 1914, believing in good faith, that it was liable, paid the full amount to the gas company, demanded reimbursement of defendant,- and on refusal brought suit,

      Abstract of the Decision.
    1. Trusts, § 3

      —when trust created in money collected by agent. Under a contract whereby a collector agreed to account for and turn over each day all money collected during the preceding twenty-four hours, held that such money was in the possession of the collector as a trustee and not as a debtor of the party for "whom it was collected, and the fact that the collector sent his personal check for the amount to such party does not alter their relation into one of debtor and creditor.
    2. Trusts, § 272

      —when trust fund may be followed. Money held in trust, for the amount of which the trustee sends his personal check in payment to the owner, remains the property of the owner until the check is cashed, and the owner would have been entitled to follow and recover it even if not deposited in a bank to the general credit of the trustee.
    3. Trusts, § 140

      —when custodian of money is discharged from liability to owner by theft of money. Where a collector holding the money collected by him for immediate payment to the owner placed the money in his vault and sent his personal check for the amount to the owner, and without his fault the money was stolen, held that he would be discharged from his liability to the owner by reason of such theft and might properly stop payment on the check, distinguishing the case of Geist v. Pollock, 58 Ill. App. 429.
    Charles H. Burras, for plaintiff in error.
    Eben F. Runyan, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Eugene A. Pfeiffer, Defendant in Error, v. Hudson Manufacturing Company, Plaintiff in Error.
    Gen. No. 21,603.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Master and servant, § 84

      —when evidence sufficient to sustain finding that no deduction from salary of servant should he made for absences. In an action by an employee against his employer, a corporation, to recover wages, where it appeared that plaintiff was in defendant’s employ for seven or eight years and had been paid up to the time of leaving the employment without any question being raised as to certain absences from work, which were known to the employer and were in part with consent of the employer’s president, and more than a year after his last absence the employer rendered him a statement of account which included the periods of absence, but without any deduction from his wages because thereof, and no objection on account of such absences was raised until after he had left the employment, evidence held sufficient to sustain the finding of the jury in favor of the plaintiff that no deductions from his salary for his periods of absence should be made.

      Error to the Municipal Court of Chicago^ the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Engene A. Pfeiffer, plaintiff, against the Hudson Manufacturing Company, defendant, to recover wages. Prom a judgment for plaintiff for $601.03, defendant brings error.
    Lannen & Hickey, for plaintiff in error.
    Lee J. Prank and Mary Lee Colbert, for defendant in error.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Costs, § 67 —when statutory damages for prosecuting appeal for delay will he assessed. Statutory damages should be assessed where the grounds presented for reversal are so clearly without merit as to force the conclusion that they were brought for the purpose of delay.


text:
    Louis Waldschmidt et al., copartners, trading as Dunbar Mill & Lumber Company, Defendants in Error, v. The Marsh & Bingham Company, Plaintiff in Error.
    Gen. No. 21,660.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Louis Waldschmidt, Jesse W. Rule and Samuel B. Brown, copartners, trading as Dunbar Mill & Lumber Company, plaintiffs, against the Marsh & Bingham Company, defendant, to recover a balance due for lumber shipped under a written contract which called for a much larger shipment, to which a set-off was filed claiming damages for failure to ship the balance oí the lumber. From a judgment for plaintiff, defendant brings error.
    Adams, Crews, Bobb & Wescott, for plaintiff in error; George B. McKibbih, of counsel.

      Abstract of the Decision.
    1. Sales, § 320

      —when defendant may not recover on set-off for failure to deliver remainder of lumber on contract. Where the sellers of a quantity of lumber refused to make further shipments under the contract with the purchaser on the ground that the purchaser had improperly rejected a large part of past shipments, and brought an action for deliveries already made, and defendant interposed a claim of set-off for damages for failure to deliver the remainder of the lumber under the contract, held that plaintiffs were entitled to recover although they may have been first in default for failing to make timely shipments, even if time were of the essence of the contract, where the purchaser had made no objection on that ground and insisted on further shipments.
    2. Sales, § 309

      —when immaterial whether contract is severable or entire. Under a contract for shipment of a quantity of lumber purchased, where the purchaser was guilty of a breach of the contract which entitled the seller to refuse to make further shipments, held that the seller would be entitled to recover for past deliveries and no question would arise as to whether the contract was severable or entire.
    Samuel Friedlander, for defendants in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Harry Simmons, a minor, by Walter C. Simmons, Appellee, v. Commonwealth Edison Company, Appellant.
    Gen. No. 21,686.
    1. Electricity, § 24

      —when declaration in action for injuries by electric light wire is sufficient after verdict. In an action for damages for personal injuries sustained from coming into contact with a live electric wire of an electric light company, where the declaration charged that the defendant carelessly and negligently suffered the wire to be and remain in a bad and unsafe repair and condition and to be and remain lying upon the sidewalk for a long space of time, held that either charge was sufficient to sustain a judgment after verdict for plaintiff.
    2. Electricity, § 25

      —when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur applies to a live electric wire extending over a public street, particularly when such wire is in charge of one having particular or peculiar knowledge of such wires, as an electric light company.
    3. Negligence, § 120

      —necessity of pleading res ipsa loquitur. The doctrine of res ipsa loquitur is not a matter of pleading but of proof, and a declaration alleging negligence in general terms, to which no objection is made, is sufficient where proof is offered of circumstances from which an imputation of negligence necessarily arises.
    4. Electricity, § 27

      —when evidence insufficient to rebut prima facie case of res ipsa loquitur. In an action against an electric light company for damages for personal injuries sustained from a live electric wire, where the doctrine of res ipsa loquitur applied, and the defendant’s evidence was to the effect merely that defendant used the usual and modern methods in regard to the wire, that it was in good condition, was a standard wire in similar use in the locality, that its ordinary life was twenty years and that this wire was in use for only five or six years, held that a finding by the jury that the prima facie case made out for the plaintiff had not been met, was not against the manifest weight of the evidence.
    5. Electricity, § 26

      —when evidence as to manner that live electric wire passes through a tree is admissible in action for injuries therefrom. In an action against an electric light company to recover damages for personal injuries from a live electric wire strung through a tree, evidence as to the manlier it passed through the tree held admissible under a charge that the defendant negligently and carelessly suffered the wire to be and remain in unsafe repair and condition, although the manner in which the wire passed through the tree was not relied upon as a ground of recovery.
    6. Electricity, § 27

      —when evidence is sufficient to show negligence of electric light company in leaving charged wire on sidewalk. In an action against an electric light company to recover damages for injuries received from a charged electric wire which was lying on the sidewalk, evidence held sufficient to sustain a finding that defendant had been negligent in leaving the wire on the sidewalk for a long time.
    7. Appeal and error, § 1410

      —what is province of Appellate Court in determining sitfficiency of evidence to sustain a finding. It is not the province of the Appellate Court to weigh the testimony further than necessary to determine whether a finding is against the manifest weight of the evidence.
    8. Appeal and error, § 1514

      —when improper remarks of counsel are not ground for reversal. Where argument of counsel to the jury was objected to on the trial, objection sustained, and counsel abandoned that line of argument, held that no error was shown by reason of such argument.
    9. Damages, § 112

      —when verdict for injury to hoy is not excessive. In an action to recover damages for personal injuries sustained by a boy eight or nine years old from a live electric wire, held, considering the nature and severity or the shock, pain and suffering, resultant less satisfactory work at school, and lowered tone of nervous system, and jury’s observation of the boy in court, and evidence which, if true, would have justified the jury in believing the boy’s perceptions and capabilities had been materially lessened, that a verdict of $8,000 was not excessive.
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Goodrich, Vincent & Bradley, for appellant; ~R.at.-ptt B. Bradley, of counsel.
    Brundage, Sanders & Holt, for appellee.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

By this appeal the appellant, which is hereafter referred to as defendant, seeks the reversal of a judgment against it in favor of the appellee, who is hereafter referred to as plaintiff, for $8,000 for- damages caused by a broken electric service wire. The declaration charged, in substance, that the defendant was engaged in distributing electricity in the City of Chicago; that it was using the wire in question for that purpose, and that it was its duty to keep and maintain it in good and safe repair and condition, arid to prevent it from breaking and falling upon the street; that it carelessly and negligently suffered this wire, while charged with electricity, to be and remain in a bad and unsafe repair and condition, so that it broke and fell upon the sidewalk, and carelessly and negligently permitted it to remain there for a long space of time charged with electricity, exposed, unprotected, and unguarded, without any warning of its dangerous character, and the plaintiff was injured by the wire while in the exercise of due care and caution for his own safety.

The testimony of one Mary E. Hubbard shows that she saw the wire in question lying on the sidewalk between seven and eight o’clock on the morning of the accident; that she told her son to watch it, and she called the police on the telephone, and afterwards notified the telephone company; that shortly thereafter a man came from the telephone company and told her it was an Edison wire; that she then called the Edison company about seven-thirty, getting their number from the telephone book, and told them the wire was down; that about three-quarters of an hour afterwards she sent her boy on an errand, and while he was away the plaintiff was injured. On cross-examination she said she would not say that she had not told one Pilkington that she did not call the Edison company; that she did call the Edison company about eight o’clock or half past seven; that it might have been later, but not much, and that she just called the Edison company’s general number. She also testified that the wire in question ran through the alley to the south, and then through private property to the street; that right at the entrance of the alley there was a large tree, and that the wire ran through the branches. The son of this witness testified that this tree stood on the parkway of the house next to theirs; that the wire ran through the tree, which was a good sized one, and as high as the house.

Plaintiff, who was between eight and nine years of age, saw the wire about eight forty-five o’clock, picked it up, and was injured. After the injury, he was out of school a month. He testified that his writing was worse than it was before; that he could not throw as far, nor run as fast; that he had a scar on his hand and leg; that if he carried a heavy basket “the scar gets real raw and burns.” The evidence showed that up to the time of the accident his health had been good.

A physician was called, who testified that the plaintiff had been under his medical care since the accident; that he treated him about six weeks; that he examined him about a week before the trial; that the effect of the passage of a strong charge of electricity through the body was to cause burns and shock, and that the severity of the shock depended upon the amount of the current. On cross-examination he said that the extension of the ring and middle fingers of the injured hand was somewhat limited, and that the headaches complained of by the plaintiff might be the result of the shock, and might be the result of a great many other things.

Plaintiff’s mother testified that since the accident he had been very nervous and restless at night; that his nerves had been unstrung, and that he had headaches a great deal. The father testified that the plaintiff’s light hand was badly burned.

One Ethel H. Walker, a public school teacher, testified that plaintiff was in her school; that before the time of the accident he was perfectly normal, but after his return to school after the accident he was thin, pale, and did not sit erect, as before; that he did not recover his former position during the year; that there was a marked difference in his writing; that he applied himself in his other work, but did not seem to get the same result; that before the accident he had ranked among the highest in his class, but after the injury he ranked among the lowest—about fortieth in his class; that she did not see him after June, 1912, until about a year before the trial.

The testimony on behalf of the defendant was to the effect that it never received notice of the accident from the witness Mary E. Hubbard, but that its trouble man was notified by a mail collector, and that he immediately came to the scene of the accident and cut down the wire. A witness testified that Mrs. Hubbard told him on two occasions that she did not notify defendant. Its testimony was also to the effect that the wire had been in' use about six years; that the morning was damp, and the wire would therefore make a ground circuit. The wire, which was received in evidence, was burned at one end; this was the end that lay on the street.

One of defendant’s ¿engineers testified that he was familiar with the electrical equipment used throughout the country, and that the circuit in question was equipped at the time with all the devices which are customary and in common practice and use on such a circuit for the purpose of safeguarding the plant, equipment, and the public; that he did not mean to say that he was familiar with the situation in that particular location, but that he was familiar with the type of construction and the general method of construction.

A physician, called on behalf of the defendant, testified that the plaintiff was a normal sized boy for his age; that he was not a large boy, but was practically a normal boy, and was likely to start growing at any time, and would grow rapidly; that his bones were naturally small.

The defendant claims that the negligence charged in the declaration was not proved as claimed. The negligence charged, however, was that defendant carelessly and negligently suffered the wire to be and remain in a bad and unsafe repair and condition, and to be and remain lying upon said sidewalk for a long space of time. Either one of these charges was sufficient to sustain a judgment after verdict. The only proof offered was as to the ownership of the wire, its position over the street, and the fact that it broke without the intervention of any third party and in circumstances which, to say the least, could not be said to be abnormal or unusual. This record shows, and it is a matter of common knowledge of which the court might properly take notice, that an electric service wire is highly dangerous, and its presence over a public street, therefore, casts upon its owners a duty to use a high degree of care to protect the public. ’Moreover, the tensile strength of the wire, the manner in which it is constructed, the way it is secured, and the precautions that are taken for the protection of the public, are, as between the plaintiff and the defendant, within the peculiar knowledge of the latter. When, therefore, an accident of the kind in question happens—an accident which in the ordinary course of things would not happen if those who had the management used proper care—it permits a reasonable inference, in the absence of explanation by the defendant, that the accident arose from a want of care. In such a case, the duty of explanation is thrown upon those having charge of the thing, particularly when, as here, information concerning the thing itself is within the particular or peculiar knowledge of the defendant. (Bolger v. City of Chicago, 198 Ill. App. 123.) It would seem that there are few cases to which the application of the doctrine of res ipsa loquitur is more directly applicable than such a one as the case at bar. We are therefore of the opinion that proof that a charged wire broke and fell upon the sidewalk, and in no unusual circumstances, threw the burden of explanation upon the defendant. Did the evidence offered overcome the prima facie case thus made out? Defendant’s evidence on this point was very meager; it consisted of a general statement that the usual and most modem methods were used by the company; that the condition of the wire was good; that it was the standard wire in similar use in Chicago; that its life was ordinarily twenty years, and that this had been used but five or six years. • It may at least be said with confidence that when the fullest effect is given to all the testimony offered on behalf of the defendant, it is not sufficient to justify this court in saying that a finding by the jury that the prima facie case made out by the plaintiff had not been met, would be contrary to the manifest weight of the evidence.

Counsel contend, however, that the pleadings in the declaration, in the absence of a count in res ipsa loquitur, makes it impossible to sustain the judgment. The answer to this contention is that res ipsa loquitur is not and cannot be a matter of pleading, but is a matter of proof. The negligence was laid in general terms to which no objection was taken, and, in support. of those general allegations, proof was offered of circumstances from which an imputation of negligence necessarily arose. This was a matter of evidence, and therefore plaintiff was not required to plead it. Defendant’s counsel further contend that the court improperly admitted evidence in regard to the manner in which the wire passed through the tree. As the negligence charged was that defendant carelessly and negligently suffered one of said wires to he and remain in a bad and unsafe repair and condition, testimony in regard to any surrounding circumstances which might establish that condition was obviously proper. The argument of counsel for plaintiff was that the chafed condition of the wire proved that defendant had permitted it to get out of repair, and contended that this was corroborated by the fact that’the wire passed through the branches of the tree. In determining whether or not the Avire was out of repair, and whether or not defendant had permitted it to remain in that condition, the plaintiff had a right to show every surrounding circumstance which had a bearing on the cas.e. An examination of the argument of counsel as it appears in the abstract of record shows that the manner in which the wire was passed through the tree was not relied upon as a ground of recovery, but, as indicated already, a fact tending to corroborate plaintiff’s contention in regard to the condition of the wire.

Upon the question of the other negligence relied upon in the declaration, namely, that defendant negligently permitted the wire to lie and remain upon the sidewalk for a long time, it is enough to say that the evidence upon this point is conflicting. Mrs. H-ubbard swore positively that she notified the defendant shortly after seven forty-five; the testimony on this point on behalf of the defendant is necessarily negative, and is supported by the statement of an investigator, who said that Mrs. Hubbard told him that she never notified the defendant, and she, herself, says that she might have told him that, but at the. same time, she insisted that she did notify defendant. The testimony on behalf of defendant on this point was that none of the load distributors were notified. This might, of course, have been true even if Mrs. Hubbard called up the general telephone number of defendant company, and reported the accident. Her testimony in regard to her talk with defendant’s investigator was as follows: Q. “Didn’t you tell Mr. Pilkington at that time that you called up the police and the Telephone Company and did not call up the Edison Company?” A. “I don’t remember that I told him that; I know I called everybody that day.” Q. “You would not say that you did not tell him that, that you did not call the Edison Company?” A. “No sir, I would not.”

It is not the province of this court to weigh the testimony except in so far as it is necessary in determining whether the verdict is contrary to the manifest weight of the evidence. The jury saw and heard the witnesses, and observed their demeanor on the stand, and we, therefore, do not feel that we would be justified in saying that a conclusion by the jury that Mrs. Hubbard gave the defendant timely notice of the broken wire would be contrary to the manifest weight of the evidence.

The argument objected to in regard to what the jury had a right to consider in weighing the testimony of the witnesses was, in the main, as applicable to the witnesses for one party as the other, and it was not objected to on the trial. The only other portion objected to was a statement that if the jury believed from the evidence that the defendant allowed this wire to dangle over the fence and took a chance and were negligent, he could ask on this evidence, “exemplary damages as a punishment to teach them they should not do that sort of thing.” When that was objected to on the ground that it was not counted on in the declaration, counsel said: “I placed the amount in my declaration at $25,000.” That remark was not objected to, and the objection to the former remark was sustained. Counsel thereupon proceeded with an argument strictly confined to actual damages and the jury were afterwards fully and accurately instructed on that subject. Counsel for plaintiff contend that under the declaration plaintiff was entitled to recover exemplary damages if the evidence justified such an. allowance, and, apparently in good faith, he stated to the jury on the trial that if they believed certain things from the evidence, he could ask for such damages. The question of whether such damages would have been recoverable is not,-we think, before us, in view of the fact that the court sustained the objection and counsel abandoned that line of evidence. In view of all the circumstances, the conduct of counsel for plaintiff cannot be said to have been in any way improper, and in view of the repeated decisions of our Supreme Court, the situation shown cannot be said to have brought error into the record. (City of Chicago v. Leseth, 142 Ill. 642; Quincy Gas & Electric Co. v. Baumann, 203 Ill. 295.) :

Counsel for defendant further contend that the verdict is excessive. The measure of damages in such a case is a matter of extreme difficulty, and is purely a question of fact for the jury. In view of the testimony in regard to the nature and severity of the shock, of the pain and suffering which must have resulted from it, or the effect upon his capacity to do satisfactory work at school, of the lowered tone of his nervous system, and in view of the fact that the jury had ample opportunity during the trial to judge of the plaintiff’s physical condition, we do not feel justified in saying that its verdict was excessive. There was evidence which, if believed, would have justified the jury in believing that plaintiff’s perceptions and capabilities had been materially lessened by the accident, and we are not prepared to say that such an injury to a boy of his years would be more than compensated for by the judgment, especially when it is remembered how small an income it would produce, either at interest or in the form of an annuity.

As there appears to be no error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    H. P. Hudson, Appellant, v. Grand Rapids & Indiana Railway Company, Appellee.
    Gen. No. 21,732.
    1. Carriers, § 241

      —when failure of shipper of interstate car of live stock to present claim for damages within time limited is bar to recovery. Where a contract for interstate shipment of live stock provided that no claim for damages should be allowed or sued for unless the shipper should make and deliver same to i,he railroad company’s general agent within five days after removal of the stock from the car, held that a failure to give such notice or to show a waiver thereof barred an action on such claim.
    2. Evidence, § 304

      —when sufficient to show mailing and receipt of letter. Evidence that a letter was mailed in a government chute with a two-cent stamp on the envelope addressed to a certain party, and that such party acknowledged its receipt, held sufficient to warrant a finding that such letter was mailed and received by such party, although the testimony that the letter was “mailed”- may have been a statement of a conclusion, no objection being made thereto.
    3. Carriers—what law governs rights and duties of interstate carriers. The rights and duties of interstate carriers are governed by the common law except in so far as they may have been changed or modified by an act of Congress or by acts of the Interstate Commerce Commission within the scope of the authority delegated to It in regard to interstate commerce.
    4. Carriers, § 33a

      —what does not constitute an approval of clause limiting liability for loss in bill of lading by Interstate Qom

      merce Commission. The filing with the Interstate Commerce Commission of a tariff schedule and the publication of the rates in accordance with its regulations do not constitute an approval by that Commission of a clause in a bill of lading attempting to limit the carrier’s liability for a loss.
    5. Carriers, § 113

      —what is extent of liability of carriers for loss or damage to goods at common law. At common law carriers in addition to their liability for negligence were absolutely liable for loss of or damage to goods intrusted to them unless it occurred as the result of an act of God or the public enemies.
    6. Carriers, § 243

      —when provision in bill of lading for interstate shipment of live stock limiting liability for negligent delay is invalid. The rule of public policy which prevents a carrier from securing a release from liability for its own negligence equally prevents it from obtaining a stipulation for its release from liability as to any part of the damage, and a stipulation in a bill of lading for an interstate shipment of live stock, that in event of unusual delay or detention due to the negligence of the carrier or its employees, or otherwise, the shipper will accept as full compensation for all loss or damages sustained thereby the amount actually expended by the shipper in the purchase of food and water for the stock while so detained, is invalid.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and remanded.
    Opinion filed February 7, 1917.
    Rehearing denied February 20, 1917.
    Charles A. Butler, for appellant.
    Winston, Payne, Strawn & Shaw and Loesch, Scofield & Loesch, for appellee.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

The appellant, who will be referred to as the plaintiff, seeks to reverse a judgment against him in favor of the appellee, who will be referred to as the defendant. The evidence shows that the plaintiff made two shipments of cattle to be carried from Wayland, Michigan, to the stockyards at Chicago, Illinois; there was a delay in each shipment which caused a shrinkage in the weight of the cattle and a further loss by reason of a falling market. There was no evidence that any claim was made in connection with the first shipment within five days, in accordance with the provisions in the bill of lading “that no claim for damages which may accrue to the said shipper under this contract shall be allowed or paid by the said carrier, or sued for in any court by the said shipper, unless a claim for such loss or damage shall be made in writing, verified by the affidavit of the said shipper or his agent, and delivered to the Gr. T. freight agent of the said carrier at his office in Chicago, Ill., within five days from the time said stock is removed from said car or cars, and that if any loss or damage occurs upon the line of a connecting carrier, then such carrier shall not be liable unless a claim shall be made in like manner, and delivered in like time, to some proper officer or agent of the carrier on whose line the loss or injury occurs.” Nor was there any evidence tending to show a waiver of such notice. There was, however, evidence that notice of claim was mailed to the freight agent of the connecting carrier in apt time, and also a stipulation that witnesses called and sworn on behalf of the plaintiff would testify that on January 26, 1914, a letter was addressed and mailed in a government chute, with a two-cent stamp on the envelope, addressed to F. C. Nicholas, local freight agent of the Michigan Central Bailroad, Chicago, Illinois, in which a claim was filed in connection with the shipment of January 24, 1914, and that he acknowledged it in due course of mail, January 29, 1914. This stipulation obviously refers to the shipment of January 20, which was unloaded January 21st, at five-thirty .p. m. The bill of lading or livestock contract also, in addition to the usual stipulations in regard to the value of the cattle, provided “that in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employees, or its connecting carriers, or their employees, or otherwise, the said shipper agrees to accept as full compensation for all loss or damage sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock, while so detained.” It was further stipulated that the defendant had published and filed with the Interstate Commerce Commission its classifications, tariffs, and schedules of freight rates from Wayland, Michigan, to Chicago, Illinois, wherein were promulgated two rates of freight—one of which applied only where the live-stock contract in evidence here was used, and the other, or higher rate, where it was not used, and that plaintiff paid the lower rate. At the close of the evidence, the court instructed the jury to find for the defendant, and entered judgment on the verdict so directed. This action of the court is relied upon as error.

We are clearly of the opinion that as the evidence fails to show notice or waiver of notice of any, claim in connection with the first shipment, plaintiff is, under the uniform rulings of the State and Federal courts, debarred from recovering any damages in connection with that shipment. We think it is clear, however, that the evidence and the stipulation were sufficient to entitle a jury to conclude that proper notice had been mailed and received in regard to the claim made in connection with the second shipment. Plaintiff expressly testified that he mailed the letter in question January 23rd. To say that one mailed a letter may be a conclusion, but, if so, it was not objected to. As there was no, evidence showing any expenditure in feeding and watering the stock, the question squarely arises as to whether the stipulation in the contract in regard to the measure of damages growing out of negligence or delay debars other recovery therefor; in other words, as to whether that provision in the livestock contract is valid and binding. As this question has not been passed upon by any Federal court of review, it is one of first impression, except in so far as the decisions of other State courts may be persuasive.

In the first place, it is apparent that the rights and duties of interstate carriers are governed by the common law, except in so far as they may have been changed or modified by act of Congress or by acts of the Interstate Commerce Commission, within the scope of authority delegated to' it in regard to interstate commerce. We are of the opinion that the filing of the schedules with the Interstate Commerce Commission, and the publication of the rates in accordance with its regulations, as shown by the stipulation, did not constitute an approval by the Interstate Commerce Commission of the clauses in the bill of lading attempting to limit the carrier’s liability. No act of Congress or other act of the Commission is cited which in any way touches upon the validity of the stipulation. Common carriers, under the common law, in addition to their liability for negligence, were absolutely liable for loss of, or damage to, the goods intrusted to them, unless it occurred as the result of an act of Cod or the public enemies. They could, however, by contract relieve themselves of this absolute liability, but it is well settled “that it is not just and reasonable in the eye of .the law for a common carrier to stipulate for exemption from responsibility for the negligence of himself or his servants.” (New York Cent. R. Co. v. Lockwood, 17 Wall. (U. S.) 357, at page 384.) But as the carrier’s reasonable compensation depended, in a measure, upon the value of the goods shipped, it was held that where a shipper obtained a lower rate by representing that the value of Ihe goods did not exceed a certain amount, he was thereafter estopped from claiming a right to recover a sum larger than the value declared. (Hart v. Pennsylvania R. Co., 112 U. S. 331.) The case at bar, however, in no way falls within that principle, for here, the stipulation in the uniform shipping contract is plainly to the effect that the carrier shall not be liable for a part, at least, of the damages which flow from its own negligence. We are of the opinion that the rule of public policy which prevents a carrier from securing a release from liability for damages growing out of its own negligence equally prevents it from obtaining a stipulation for its release from liability as to any part of those damages. If it could lawfully stipulate against any damages arising out of its negligent delay, except for feed and water, it could, in the same manner, stipulate that it should be liable only for the cost of watering the stock, or that it should not be liable for any sum exceeding $1. If it is contrary to public policy to permit a carrier to relieve itself of its liability for its negligence, it is equally contrary to public policy to permit it to relieve itself of its liability for any part of the damages arising therefrom. The identical point was passed upon by the Supreme Court of Vermont, in Piper v. Boston & M. R. R., 97 Atl. 508, where the court said, at page 511:

“But it is not now, any more than formerly, possible for a carrier to make a binding agreement, stipulating against its own negligence or that of its servants. Such agreements are prohibited by section 20 of the so-called Carmack Amendment. * * * And an agreement to release a carrier from a part of the loss due to such negligence is no more valid than one making the exemption complete.”

The same question was before the Supreme Court of. Appeals of Virginia, in Norfolk & W. Ry. Co. v. A. J. Steele & Son, 86 S. E. 124, where the court, after quoting the clause in the bill of lading in question here, said, page 126:

“The extra feed and water bill in this case amounted to about $20, and furnishes a very good illustration of how completely this clause might operaté to exempt carriers from liability, if its validity can be sustained.”

We are therefore of the opinion that the stipulation limiting the defendant’s liability for negligent delay to the cost of feeding and watering the stock is invalid, and that, consequently the action of the court in directing a verdict was erroneous. The judgment is reversed and the cause remanded to the County Court.

Reversed and remanded.


author: Mr. Justice Taylor

text:
    Perfection Pulverizing Mills, Plaintiff in Error, v. George E. Keiser, Defendant in Error.
    Gen. No. 21,504.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Rehearing denied February 26, 1917.
    Statement of the Case.
    Action by Perfection Pulverizing Mills, a corporation, plaintiff, against George E. Keiser, defendant, to recover $113.51 for work done, to which defendant claimed a set-off for $681.13 for loss of his goods by fire while in plaintiff’s possession. From a judgment for defendant for $495.95, plaintiff brings error.
    The defendant delivered to the plaintiff fifty barrels of sugar to be ground in plaintiff’s mill into powdered sugar under an oral contract. The defendant claimed the sugar was tp remain in the original packages in the mill until ordered by him to be ground. The plaintiff, without having such special order, removed the contents of forty-four or more of the packages and dumped them into its hoppers, bins and other parts of its machinery for the purpose of grinding them. That night a fire, not claimed to have been caused by plaintiff’s negligence, destroyed all but six barrels of the sugar.
    Abstract of the Decision.
    1. Contracts, § 387

      —when evidence sufficient to show that sugar was to he taken out of original packages for grinding only on order of .owner. In an action to recover for grinding of sugar to which defendant claimed a set-off for sugar lost hy fire, evidence held sufficient to sustain a finding that the contract for the grinding of defendant’s sugar by plaintiff required that the plaintiff should not take the sugar out of the original packages for grinding after the packages had been delivered to plaintiff’s mill until defendant had given an order so to do.
    2. Set-off and recoupment, § 10

      —when unliquidated damages may he set off. Damages for a breach of the same contract sued on may he set off, although unliquidated.
    3. Contracts, § 297

      —when demand is unnecessary as basis for recovery for loss of sugar destroyed hy fire. Demand before bringing an action to recover for the loss of sugar destroyed by fire and due to a breach of contract in grinding it without authority for the return of such sugar, would he a useless act and is unnecessary.

      Webster & Nicholson, for plaintiff in error; Daniel Webster and Arthur A. Sherrard, of counsel.
    Jones, Addington, Am:es & Seibold, for defendant in error; Keene H. Addington and Walter Hamilton, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

4. Skr-osF and recoupment, § 13 —when undisclosed agent may claim set-off available to principal. An undisclosed agent sued upon a contract made by him with reference to his principal’s business has as much right to claim set-off in such action as his principal.

5. Judgment, § 475 —when judgment on set-off by agent is res adjudícala as to principal. Recovery on set-off made by an undisclosed agent when sued for a debt of the principal is res adjudicata as to both him and his principal. "

6. Appeal and error, § 1256 —when party may not complain of instruction. A party cannot complain of an alleged erroneous instruction which is favorable to him.


text:
    Eugene Wendnagel and William Wendnagel, trading as Wendnagel & Company, Defendants in Error, v. M. F. Schiavone, Plaintiff in Error.
    Gen. No. 21,526.
    1. Frauds, Statute of, § 74

      —what constitutes a sufficient memorandum. Where a written contract for the furnishing of material and labor by one and payment for same by the other party thereto was indorsed by a third party “O. K.,” with his name and the date of such indorsement, held that the indorsement was a sufficient memorandum under the Statute of Frauds.
    2. Evidence, § 322

      -—when parol evidence is admissible to explain terms of guaranty on contract. In an action brought on an alleged guaranty of a written contract for the furnishing of material and labor by one and payment for same by another party thereto, held that parol evidence was admissible to show that defendant, who had written the words “O. K.,” his name and the date of indorsement on the contract, intended thereby to guarantee payment under the contract.
    Error to the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.

      I. B. Perlman, for plaintiff in error.
    Adams, Crews, Bobb & Wescott, for defendants in error; George B. McKibbin, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is a writ of error to review a judgment rendered in the Municipal Court of Chicago for the sum of $629.24 in a suit by Eugene Wendnagel and William Wendnagel, doing business as Wendnagel & Company (hereinafter called plaintiffs) against M. F. Schiavone (hereinafter called defendant) brought upon an alleged contract of guaranty. The statement of claim of the plaintiffs recites that they furnished and delivered to M. F. Schiavone at his special instance and request certain materials for which there is a balance due of $757.54. The defendant in his affidavit of merits admitted his liability for one item amounting to $150 and as to the remaining items pleaded the general issue and the Statute of Frauds.

The evidence for the plaintiff shows that on August 7, 1914, the plaintiff and Peter Nasiopulos and John Ahamnos entered into a written contract whereby the plaintiffs were to' furnish and set certain structural iron, for which Nasiopulos and Ahamnos were to pay the sum of $560; that owing to Nasiopulos and Ahamnos being behind in their payments on a prior contract, plaintiffs refused to go on with the contract of August 7, 1914; that the defendant thereupon telephoned to the plaintiffs and said that he was taking a lease of the building and wanted to know why the plaintiffs did not go ahead with the work; that plaintiffs told him they could not go ahead until they got some money on the original contract; that the defendant said they should go ahead and that he would guarantee it; that the plaintiffs still held up the matter; that a few days later Nasiopulos and the defendant went to the office of the plaintiffs and the defendant wrote his O. K. on the contract of said August 7, 1914, and said he would stand good for the money; that afterwards the goods were accordingly delivered.

The only material evidence introduced by the defendant was the testimony of the defendant himself which was, in general, a denial of the testimony of the plaintiff’s witness in regard to what was said at the time the O. K. was written on the contract in question. That denial, however, does not seem to have been positive but to have been in part qualified. The contract .which was offered in evidence by the plaintiff, and upon which is written the “O. K.” of the defendant, is as follows:

“Contract, Made and concluded the 7th day of August one thousand nine hundred fourteen by and between Wendnagel & Company, 22nd and Jefferson Sts., of the City of Chicago, County of Cook and State of Illinois, party of the first part, and John Ahamnos and P. Nasapoulos, of the City of Chicago, County of Cook and State of Illinois, party of the second part, in these words: The said party of the second part covenants and agrees to and with the said party of the first part, to furnish and set the structural iron for the two new balconies for the Apollo Theatre, 40th Ave. near North Ave., including cutting of holes but not patching of same.

“And the said party of the first part covenants and agrees to pay unto the said party of the second part, for the same, the sum of Five hundred sixty ($560.00) Dollars, lawful money of the United States.

“This price includes only structural material as shown on Plan which we made and submitted to Archt. Wm. A. Bennett. Any material added to be charged as an extra.

“Terms: 85% as the work progresses, and the balance 15 days after completion of contract.

“In Witness Whereof, the parties to these present have hereunto set their hands and seals the day and year first above written.

“Sealed and delivered in the presence of

Wendnagel & Co.

By James Magnusen

Peter Nasiopulos

John Ahamnos.

“O. K.

M. P. Schiavone,

September 3/14.”

At the trial the defendant made certain objections to the evidence to the effect that the indorsement on the above-mentioned contract of August 7, 1914, could not be varied by parol testimony. The court overruled the objections and entered judgment in favor of the plaintiff in the sum of $697.24.

It is contended by the defendant that the words, “O. K. M. P. Schiavone, Sept. 3/14” do not constitute a sufficient memorandum to comply with the Statute of Frauds and that oral testimony was not admissible to explain and amplify them. There seems to be no doubt but that parol testimony is admissible for the purpose of explaining or removing any uncertainty or ambiguity in a written contract, and that it was proper for the plaintiff in this case 'to éxplain and interpret, by competent testimony, the meaning of the words in question. Wigmore on Evidence, sec. 2463.

The danger in such cases is that in explaining and interpreting, something may be added, and the latter, of course, is not allowed. Commonly, of course, the law allows all abbreviations to be explained by oral testimony. The words, “O. K. M. P. Schiavone, Sept. 3/14” as they stood at the foot of the contract were ambiguous and uncertain and the plaintiffs were entitled to offer appropriate evidence to explain and interpret them. The witness for the' plaintiff testified as follows:

“He (the defendant) says he would stand good for the money and so he wrote his O. K.

(Q) And upon that he put his O. K. there 1

(A) Tes sir.”

The trial judge, we assume, concluded that the testimony of the witness for the plaintiffs, which testimony purported to recount what actually was said at the time the letters “0. K.” were written by the defendant, explained and interpreted the meaning of those letters as a written promise that he, the defendant, would pay that which was provided for in the written contract itself.

In the case of Popper v. Spelz, 184 Ill. App. 35, cited by the defendant, the court held, and according to the law, that the defendant having proved that the one who wrote the “0. K.” on a certain order had refused to write it as a guaranty, there was, therefore, no liability.

In Penn Tobacco Co. v. Leman (Ga.), 34 S. E. 679, p. 680, the court said:

“The contract relied on by the plaintiff, evidenced by the letters ‘0. K. ’ and the signature of the defendants, was ambiguous, and therefore parol evidence will be heard to explain the patent ambiguity appearing upon the paper. If the parties agreed among themselves, as alleged, that this signature and these letters should have a definite meaning as between themselves, then the signature and the letters so entered upon the order would constitute a contract between them, and the defendants would be liable to the plaintiff if the contract thus entered into was of the character alleged in the declaration.”

Inasmuch as the meaning of words is always relative, it is only reasonable that parol testimony should be admitted for the purpose of eliciting the truth, whenever upon the face of the document there arises obvious doubt. The need of the court is to discover the special, sense in which the parties mutually have used the words; and in discovering that sense, to require sufficient and allow only appropriate proof; for in that way only may the true meaning of the writing be understood and enforced. -

We are of the opinion that the trial judge was justified in admitting the evidence objected to by the defendant and was also justified in his conclusion that the indorsement on the contract constituted a written guaranty.

Finding no errors in the record which justify a re-. versal, the judgment will be affirmed.

Affirmed.


text:
    William & Vashti College for use of Robert L. Watson, Defendant in Error, v. Jefferson D. Shatford, Plaintiff in Error.
    Gen. No. 21,571.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Rehearing denied February 26, 1917.
    Statement of the Case.
    Action by William & Vashti College, a corporation, for use of Robert L. Watson, plaintiff, against Jefferson D. Shatford, defendant, to recover. $303.35 principal and interest on account stated for board, lodging, tuition and school books furnished defendant’s minor son. From a judgment for plaintiff, defendant brings error.
    Hoag & Ullmann, for plaintiff in error.
    A. W. Martin and Edward H. S. Martin, for defendant in error.

      Abstract of the Decision.
    1. Parent and child, .§ 51

      —when evidence sufficient to show that father authorized minor son to contract college expenses. .In an action by a college to recover on an account stated for tuition, board and lodging furnished defendant’s minor son, evidence held sufficient to show that defendant authorized his minor son to receive tuition, board and lodging from the plaintiff on defendant’s, account for one year.
    2. Witnesses, § 6

      —when witness fees and mileage are properly charged. Witness fees and mileage are properly chargeable against a party who fails to give notice to the opposite party to an action that certain depositions, of which notice had been given, would not be taken in time to prevent such opposite party making the trip to take the depositions.

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

   Mr. Justice Taylor

delivered the opinion of the court.