text:
    Elevator Safety Device Company, Plaintiff in Error, v. Brown-Ketcham Iron Works, Defendant in Error.
    Gen. No. 14,918.
    1. Warranty—when implied contract of fitness does not arise. In contracting for the purchase of a specific article under its patent or trade name, there is no implied contract as to its fitness for any particular purpose; also, when a known, described and definite article is ordered of the manufacturer there is no implied warranty that it would answer the particular purpose of the buyer, although the purpose is stated when the order is given.
    2. Evidence—when question calls for conclusion. A conclusion is calléd for by a question which asks a witness whether or not he had any conversation with “any representative” of a party designated.
    3. Agency—how may not he established. The fact of agency cannot be established by the declaration of the alleged agent.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed March 18, 1910.
    Bulkley, Gray & More, for plaintiff in error; C. Paul Talmadge, of counsel.
    Hay & Brown, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiff in error was the plaintiff below and brought this action of assumpsit to recover judgment against the defendant for the price of certain automatic optional freight elevator gate operating devices, the' expenses of a man sent from Chicago to Pittsburg, Penn., in connection with installing the devices, and a small amount for freight charges. A jury was waived, the court rendered judgment for the defendant and from that judgment plaintiff prosecutes this writ.

A building called the Oliver building was being erected in Pittsburg and the defendant, BrownKetcham Iron Works, had contracted to do certain iron work in that building. The defendant sent a letter to the plaintiff, Elevator Safety Device Company, on November 10,1903, as follows:

“Brown-Ketcham Iron Works.

Structural and Ornamental Iron and Steel.

Indianapolis, Indiana.

Oliver Building.

Indianapolis, Ind., Nov. 10, 1903.

Elevator Safety Device Compány, 32 Market Street,

Chicago, 111.

Gentlemen: We are now preparing to furnish the doors for the freight elevator openings in the Oliver building, Pittsburg, so we herewith accept your price of twenty ($20) dollars per opening for the twenty-six (26) openings for the Optional Freight Gate Operating Device, same being delivered at the building as required, and subject to approval of the architect; payments to be made in full thirty days after complete delivery and acceptance by the architects.

Kindly send us at your earliest convenience drawings showing your device, so that we may put the necessary holes, etc., in the doors to receive the same.

Also kindly furnish us with a drawing showing the attachment of your device to the elevator Cab, so that we can instruct the elevator people what holes to put in their work.

An early compliance with our request will greatly oblige,

Tour very truly,

Browst-Ketcham Irost Works,

P. Bomstree, Mgr. Contract Dept.”

In replying to- that letter plaintiff, while otherwise accepting the proposition made, changed the place of delivery. The reply is as follows:

“James H. Chaunou,

President.

W. H. Hilaxds,

Vice-President.

Harry Chakkok,

Sec. and Treas.

Elevator Safety Device Co.

Manufacturers of

Safety Appliance for

Elevators,

32 Market St.

Chicago, Nov. 14, 1903.

Brown-Ketcham Iron Works,

Indianapolis, Ind.

Gentlemen: We are pleased to acknowledege receipt of your favor of the 10th inst., in which you order 26 sets of Optional Freight Gate Devices for the Oliver Building at Pittsburgh.

Order has been entered at price quoted, viz.: $20.00 per set F. O. B. Chicago.

We will call at the office of the D. H. Burnham Co. on Monday to get data & etc., and after which we will send yon drawing showing attachments & etc.

Thanking yon for the order, we remain,

Tours truly,

Elevator Safety Device Co.,

James H. Channon, President.

Sub-Contract

No. 440

B. K. I. W.

Elevator Devices.”

After receiving that reply defendant responded with a letter as follows:

“Brown-Ketcham Iron Works.

Structural and Ornamental Iron and Steel,

Indianapolis, Ind.

Nov. 17th, 1903.

Shipping Directions.

Elevator Safety Device Company, 32 Market street, Chicago, 111.

Gentlemen: Referring to our order for 26 sets Optional Freight Gate devices please ship via P. F. W.

& C. By. as follows:

Brown-Ketcham Iron Works.

Care James McKibben,

Grant Street Station, Pittsburg, Pa.

Send bill of lading to this office same date shipment is made,

Tours truly,

Brown-Ketcham Iron Works,

E. B. Folsom, Traffic Manager.”

The question is raised whether by these letters there was a contract of an absolute sale and purchase or a sale subject to the approval of the architect of the building. The architect, after a trial thereof, disapproved of the devices. The devices were finally shipped back to plaintiff, but plaintiff refused to receive them. Plaintiff contends that because the subject of the sale was a patented article, therefore the sale was absolute. It is undoubtedly true, as contended, that in contracting for the purchase of a specific article under its patent or trade name there is no implied contract as to its fitness for any particular purpose (Peoria Grape Sugar Co. v. Turney, 175 Ill. 631, 633) and that when a known, described and definite article is ordered of the manufacturer there is no implied warranty that it shall answer the particular purpose of the buyer, although the purpose is stated when the order is given (Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510). But there is no room for the application of any such rule in this case. There is no implication so strong, in that connection, that parties may not avoid it by an express contract to the contrary. Furthermore, there is no question of applicability for a particular purpose involved in this case. Defendant was in the position of a sub-contractor for the iron work in the construction of a building and in what he furnished he was apparently dependent upon the approval of the architect. The purchase of this device was expressly conditioned upon the approval of the architect. Such being the contract there can be no recovery thereupon without evidence of the architect’s approval. This disposes of the plaintiff’s claim for recovery as far as the 26 operating devices which were sent to Pittsburg under the contract evidenced by these letters are concerned.

Plaintiff’s demand includes a claim for six devices at $18 each, which devices were shipped to Pittsburg subsequently to the twenty-six. There is no evidence in the record showing any contract, express or implied, for the purchase of these six devices.

The record shows that a man was sent to Pittsburg by plaintiff upon defendant’s request. Some difficulty had arisen in the installing of the devices. The man was sent upon the arrangement that if the difficulty was due to some cause for which plaintiff was responsible then the expense of this man was to be borne by plaintiff, while if not the expense was to be borne by the defendant. The evidence fails to show who was responsible for the difficulty that had arisen. Indeed it does not clearly appear what the particular difficulty was. Upon this state of the record the plaintiff cannot recover the expense.

It is not made clear whether the $6.98 paid for freight is for freight upon the twenty-six devices, upon tlie six devices or upon both the six and the twenty-six. Neither does it appear whether the item is a proper freight charge. We cannot, therefore, say that the court erred in refusing recovery of that amount.

The trial court did not err in sustaining an objection asked by plaintiff’s attorney of one of plaintiff’s witnesses whether he had had any conversation with “any representative” of the Brown-Ketcham Iron Works. Such questions leave it to the witness to determine what may involve questions both of law and of fact, namely, that some person talked with was a representative of the party mentioned, and are exceedingly pernicious and objectionable. It later appeared that the person the witness had talked with had come to the witness and himself stated that he represented the Brown-Ketcham Iron Works. This statement by him would not make a conversation with hi in competent for it was not competent evidence that he was such representative. Had defendant’s attorney at that time stated to the court, as he now asserts he did state that letters he would introduce referred to this conversation and would show that “the acts of Brown were ratified,” the court’s ruling would nevertheless not have been erroneous. But we find no statement in the record such as defendant’s attorney in argument to us asserts he made.

Complaint is also made that the trial judge did not accord plaintiff a fair trial and that he was not impartial and unbiased but biased and prejudiced, as shown by the record, in his rulings. This charge made of record is too serious for us to pass it by in silence. It is true that some impatience on the part of the trial judge, which should not have existed, is disclosed by the record occasioned, doubtless, by the persistence with which plaintiff’s attorneys pressed such questions as the one we have just considered. But there is absolutely nothing in the record to indicate bias, passion or prejudice on the part of the trial judge. The rulings he made were eminently fair and correct.

The record discloses no error upon which the judgment can be reversed and it is therefore affirmed.

Affirmed.-


source: Caselaw Access Project

author: Mr. Justice Mack

license: Public Domain

text:
    William H. Burn, Plaintiff in Error, v. The Chicago, Burlington & Quincy Railway Company, Defendant in Error.
    Gen. No. 14,790.
    1. Common cabbiebs—what part of contract to carry passenger. The statutory obligation to redeem a ticket at its full price if not used, enters into the contract of carriage made by the carrier with a passenger.
    2. Common caebiees—validity of provision requiring use of ticket upon particular day. A notice on a ticket issued by a carrier to a passenger to the effect that it shall he used on a particular day, is proper, and such a regulation is reasonable and valid.
    3. Common cabbiebs—what not waiver of valid regulation printed upon ticket. If a ticket issued to a passenger providing for its use upon the day of its date is punched by several successive conductors, but not retained, a succeeding conductor may properly refuse to accept the same upon the ground that it was being used on a day other than its date.
    4. Passengeb and cabbiee—-when nominal damages only can Be recovered upon expulsion. Nominal damages only can he recovered for an expulsion of a passenger upon the ground of the invalidity of his ticket, if, at the time of such expulsion, he had in his possession sufficient money to pay his fare.
    Action for damages. Error to the Municipal Court of Chicago; the Hon. Henby C. Bbitleb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed March 18, 1910.
    Statement by the Court. On January 2, 1908, the plaintiff bought a ticket of defendant from Chicago to Ottawa, Illinois, for the maximum fare allowed by law. Before the train started he was called away. On January 8, 1908, he resumed his journey. The conductor at Chicago punched the ticket and handed it back to plaintiff. At Aurora another conductor replaced the first one. He also punched the ticket, but later came back and on being told in answer to his inquiry that the ticket was bought January 2, said he could not accept it and demanded that plaintiff either pay his fare or get off. On his refusal, he was ejected at a station six miles beyond Aurora. He reached Ottawa that night instead of at 11 a. m. “ Continuous passage within one day of date of sale” was stamped on the ticket.
    The trial judge directed a verdict for defendant.
    Bulkley, Gray & More, for plaintiff in error.
    Chester M. Dawes and Herbert Haase, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The grounds relied upon to reverse the judgment are, first, that as the ticket was sold for the maximum legal fare any limitation of the obligation to carry was void, and, second, that the company having through the acts of the first conductor accepted plaintiff as a passenger and cancelled the ticket, it had no right subsequently to eject him.

By statute of April 19, 1875, section 5, (Hurd 1908, p. 1681) the company was bound to redeem an unused ticket at its full price. This statutory obligation became a part of the contract entered into between the parties. The contract therefore was either to carry plaintiff from Chicago to Ottawa or to redeem the ticket purchased as to the whole or any unused part thereof.

Inasmuch as plaintiff paid the maximum fare, it is conceded that any limitation of defendant’s liability would be void. If the ticket had read or if the printed words fairly construed could be held to mean that unless the ticket were used as indicated, it would become a nullity for all purposes—if, in other words, defendant, by this clause, had attempted to override the statutory obligation to redeem, then plaintiff’s contention that the clause in question was an attempt to impose a limitation which was void and which could therefore be disregarded, would be sound.

We cannot, however, give this interpretation to the language used. The fair construction of the words is that the specific ticket would .be good only for the time fixed, not that defendant would refuse to redeem it or would refuse after redemption to issue another ticket. In no way did defendant indicate a purpose to abridge plaintiff’s statutory rights. It was under no obligation, however, to give plaintiff notice of his legal right to redeem. The statute, giving the right, made no such requirement.

If then the printed clause is not an attempted limitation of liability but notice of a regulation, it must be determined, first, whether such a regulation is .reasonable, and, second, whether the notice thereof was a proper one.

That such a' regulation is reasonable and perhaps necessary to enable the railroad company to provide the necessary facilities to carry its prospective passengers, has been held in Elmore v. Sands, 54 N. Y. 512; Coburn v. Morgan’s Louisiana & Texas R. R. Co., 105 La. 398, and numerous other cases. While the contrary conclusion is reached in L. & N. R. R. Co. v. Turner, 100 Tenn. 213; Norman v. Southern Ry. Co., 44 S. E. 83, and Dagnell v. Southern Ry. Co., 48 S. E. 97, we believe that the weight of reason as well as of authority is in favor of the reasonableness and validity of such a regulation. By it the purchaser is deprived of no right and put to no loss. The ticket bought by him, even if not used within the time, remains good for redemption purposes. The prospective passenger, if notified of the reasonable regulation, should comply therewith.

"Whether a general notice posted in the waiting rooms or at the ticket office would suffice need not here be determined.- The question here involved is whether printing the words on these tickets is a proper notice.

The case of Pennington v. I. C. R. R., 69 Ill. App. 628, far from supporting plaintiff on this point, leads rather to the contrary conclusion. In that case-there was printed on the face of the ticket, “if presented on date of sale shown on back.”

The court says, “The ticket was perforated by a stamp cutting little round holes in it, and when held up to the light with the back of the ticket to the observer, the holes were so arranged as to form the figures 331:3. Whether such figures meant anything, and, if anything, what, would be to the general run of uninstructed passengers an unsolvable riddle".

“ ‘Date of sale shown on back,’ might be indicated to the employes of the company by any cipher of which they had the key. The restriction was not to date of sale simply, but to such date ‘shown on back.’ The appellant did not understand the effect of these hieroglyphics and went to the agent for guidance, who answered him by turning him to the cars.”

That is, the notice was not intelligible to the average man, and therefore did not bind plaintiff. If the court had been of the opinion that an intelligible notice so given would have been void, there would have been no need to consider the character of the notice in that case.

Nor are the cases holding that a limitation of liability is not obtained by a notice on a ticket or bill of lading unless the traveler or shipper not merely saw it but expressly assented to it, in point here, for a mere regulation, unlike a limitation of liability, need not be assented to. It suffices if it be brought to the notice of the passenger. In our judgment, this is accomplished by printing the words in question on the ticket. These were not unintelligible or hidden away in fine print in a mass of regulations and limitations; they were clearly observable by the plaintiff.

But even if the statement printed on the ticket were deemed an illegal limitation, even if plaintiff on payment of his fare had been entitled to receive a ticket without such a limitation, nevertheless just as in the case of a mistake by the selling agent in handing out the wrong ticket, the only right of action against the company would be for breach of the obligation to deliver a proper ticket and the damages that result therefrom. R. R. v. Turner, 100 Tenn. 213.

This is clearly stated in Shelton v. Erie R. Co., 73 N. J. L. 558, in which case the court did hold that the company should have given plaintiff an unrestricted ticket. Nevertheless they denied him a recovery in tort for wrongful expulsion from the train. The New Jersey court said, at page 561: “These corporations possess, therefore, a dual nature, having in trust on the one hand the financial interests of their stock: holders, and, on the other, the convenience and safety of the traveling public. The two agents of these corporations with which alone the public comes in contact, the ticket ag’ent and the train conductor, represent roughly these two corporate capacities.

“Hence the transaction by which a traveler purchases a ticket from one of these agents for presentation to the other is likewise of this same dual nature, and involves an observance on the part of the passenger of all reasonable regulations established for the conduct of each of these departments. These regulations are simple, uniform and well understood by the public. The ticket agent sells tickets for cash. He cannot give credit. His authority over the business of his company is limited to the issuance of such tickets as have been placed in his hands for that purpose, as incidental to which he may .hand out time tables and give such information to prospective passengers as may aid them in the selection of the tickets they require ; i e., tickets that will pay the fare between the points they designate. The obligation of the company with respect to the acts of this agent is that he shall deliver to passengers the tickets for which they ask and pay. If this is not done, whether the fault he that of the agent or the company, this obligation is broken and the company is liable for the damages that result therefrom. The case before us is an illustration of such a breach.

“The agency of the train conductor is even more limited, for it is all comprised in his duty to collect a fare from every passenger, or to eject him from the train.

“The fare thus to be collected by the conductor may be a cash sum, or it may be a ticket; that is for the passenger to determine. If the passenger proposes to pay in cash, he must be provided with and tender to the conductor a sum that, under the established rules of the company, is sufficient to pay his fare. If he proposes to pay by ticket, he must be provided with and tender a ticket that, under the established rules of the company, has the intrinsic effect of paying such fare.

“# * # in the determination of right to travel under a railroad ticket tendered as fare, conclusive force is to be given to the intrinsic effect of such ticket as expressed on its face.

“ * * * that the face of a railway ticket, when it speaks upon the subject, is conclusive upon its sufficiency as a railroad fare, should be clear.

“* * # The fundamental fallacy of the contrary position is that it assumes the authority of ticket agents to make contracts for railroad companies. The authority of such agents is notoriously limited to the sale of tickets, and to the doing of acts that are ancillary thereto. By no rule of the law of agency or of evidence can the acts or statements of a ticket agent beyond the scope of his limited authority be erected into a contract binding upon the railroad company. What has been mistaken for this authority to make contracts is the ability of these agents to make trouble for their companies by their negligence in the delivery of tickets, or their mistakes in giving information. For injury resulting from these acts of the ticket agents their principal may, as we have already seen, be held liable in an appropriate action.”

And so, too, our own Supreme Court has frequently held, even where the company was at fault and liable to some extent because of giving the wrong ticket or transfer, that a conductor might act exclusively on the evidence of the ticket presented to him; that if this ticket were not such as to authorize him under the rules of the company to receive it, he might reject it and expel the passenger who refused to pay his fare. Kiley v. C. C. Ry. Co., 189 Ill. 384.

As the court said in Pennsylvania R. R. Co. v. Connell, 112 Ill. 295, at pp. 305 and 306: “When the conductor demanded that appellee should pay fare or leave the train, he would have been justified in refusing to pay fare, and in leaving the train on the command of the conductor, and had he done so he would have received no personal injuries, and might then have brought his action and recovered, as before stated; but when he refused to leave the train, and thus compelled the conductor to resort to force, he cannot recover for an injury which he voluntarily brought upon himself. The conductor was ordered by his superior not to receive a ticket like the one presented. This order he was bound to obey, and so far as appears he acted in good faith, and when appellee was notified by the conductor that his ticket was not good and would not be received, it was his duty to leave the train in a peaceable manner and hold the company responsible for the consequences rather than resist or undertake to retain his place on the train by force. A train crowded with passengers—often women and children—is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise, and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train, and seek redress in the courts, where he will find a complete remedy for every indignity offered, and for all damages sustained.”

The plaintiff, however, urges that even if the regulation were proper, nevertheless the waiver by the first conductor bound the company inasmuch as this was a single, not a coupon ticket, over a single, not several, lines and handed to the first conductor in payment of the trip not to Aurora, but to Ottawa, and so accepted by him. We cannot assent to this interpretation of the transaction. The first conductor, while he punched the ticket, did not retain it and issue a trip ticket in lieu thereof; he handed it back to plaintiff for further use. It was plaintiff’s duty to show it or to deliver it up to any subsequent conductor. The second conductor had exactly the same right to rely exclusively upon the evidence of the ticket itself as had the first conductor; the second was not bound to institute an inquiry and to determine either from plaintiff’s statements or those of his fellow passengers that the passage had been a continuous one from Chicago, and that his claim as to a waiver was true. Nay more. Even though the first conductor himself had advised the second conductor as to the waiver, the latter was not bound to follow his conduct, which was contrary to the company’s rules, and to accept a ticket after the time fixed for its use had expired.

In Pouilin v. Canadian Pacific Ry. Co., 52 Fed. 197, a case cited with approval in the ICiley case supra, in which two coupons from Detroit to Quebec were sold by mistake for a round trip ticket and the second was accepted on the return trip between Quebec and Montreal but rejected between Montreal and Detroit, the U. S. Circuit Court of Appeals, speaking by Taft, J., said at p. 202: having to leave the train before reaching Montreal. Even if the conductor did thereby mislead the plaintiff as to what subsequent conductors would do with the ticket, it was not to the plaintiff’s disadvantage. As the conduct of the plaintiff in attempting to ride on a ticket which he knew did not purport to give him a right to do so, was, in our view, negligence, as matter of law, the fact that a conductor was negligent could not affect the proper standard of due care-on the part of the passenger. Dietrich v. Railroad Co., 71 Pa. St. 432. It follows that there was no error in the charge of the court directing a verdict for the defendant, and that the judgment thereon must be affirmed.”

“The circumstance that one of defendant’s conduct-tors allowed the ticket to be used for passage from Quebec to Montreal does not aid plaintiff. The conductor simply did not follow the rules of the company, and thus saved the plaintiff the greater inconvenience of

Inasmuch as in this case plaintiff had sufficient money to have paid his cash fare, and as such payment would have averted the expulsion and the consequent loss of time, his damages would be merely nominal even if the time regulatioti. were deemed an illegal limitation.

In our opinion, however, the time .limitation was a reasonable regulation, known to plaintiff, not waived by defendant, and the expulsion was not unlawful. While the plaintiff will be entitled to redemption of the unused part of his ticket, the court properly directed a verdict for defendant in this case.

Affirmed.


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    Many, Blanc & Company, Appellant, v. Eugene Krueger et al., Appellees.
    Gen. No. 14,838.
    1. Negotiable instruments—how want of consideration pleaded. By section 9 of chapter 98, which was not repealed hy the Negotiable Instrument Act of 1907, the defense of want of consideration must he specially pleaded in an action of special assumpsit on a note.
    2. Negotiable instruments—when want. of consideration no defense. Want of consideration is no defense to an action upon a demand promissory note which was executed by the defendant as accommodation paper and delivered to the payee, the co-maker’s creditor, to secure a matured debt, even though the maturity of the debt was not extended and the payee had knowledge of all the facts.
    3. Suretyship—what consideration will not support undertaking. ' An indefinite uncertain undertaking not amounting to a binding enforceable contract, is not sufficient consideration to support a contract of suretyship to extend the maturity of a debt.
    4. Practice—when refusal to submit proper special interrogatories will not reverse. If from the whole case it appears that a just result has been reached, a refusal to submit proper special interrogatories will not reverse.
    5. Instructions—effect as to suggestion of doubt upon undisputed issue. If the evidence upon a material issue is undisputed, it is prejudicial error for the court to suggest a doubt as to how such issue should be determined.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 18, 1910.
    Steele & Thompson, for appellant.
    William M. Lawton, for appellees.
   Mr. Justice Mack

delivered the opinion of the court.

On a note executed by the defendants, Eugene Krueger and Sophia, his wife, to plaintiff for the amount of his matured indebtedness, a judgment was rendered in the Municipal Court against the husband and in favor of the wife, from which plaintiff appealed.

Mrs. Krueger, who concededly is only a surety, pleaded, among other pleas, non assumpsit and fraud and circumvention in the execution of the instrument, but she did not plead want of consideration.

By chapter 98, section 9 of the Revised Statutes of 1874 (Hurd’s Rev. St. 1908, p. 1462, section 9) which section was not repealed by the Negotiable Instruments Act of 1907, the defense of want of consideration must be specially pleaded in an action of special assumpsit on a note. Tueber v. Schumacher, 44 Ill. App. 577; Wilson v. King, 83 Ill. 232. Hardy v. Ross, 4 Ill. App. 501, holds only that the statute refers to actions on promissory notes and not to bills of exchange. In the absence of a special plea the evidence of want of consideration offered on her behalf was therefore inadmissible.

Moreover, under the facts proven, such a plea could not have been sustained. The consideration, it is true, was not an agreement to extend the maturity of the debt, for while the note is dated September 18, it was executed according to the testimony of plaintiff’s witnesses, not, as it asserts in its brief, on its date but several days later. If it had been executed on the day of its date, an agreement to extend the maturity of the indebtedness one day, which would clearly be a sufficient consideration for the surety’s obligation, could be implied inasmuch as it was payable on demand after date, but under the facts in this case no such agreement can be implied. Suit could have been brought thereon immediately after and on the day of the delivery of the note.

But plaintiff claims as the consideration, first, an agreement to extend credit on new purchases, acted upon by both parties; second, that it was given as security for a pre-existing obligation of one of the makers. The alleged agreement, however, is too indefinite in every respect. No amount or time of credit is specified. If Eugene Krueger on the day after the delivery of the note had requested any credit on new purchases for any. amount, and plaintiff had refused to extend it, it could not have been held liable for breach of the agreement. This alleged agreement, therefore, involving no obligation on the part of plaintiff, cannot be deemed a new consideration. That plaintiff did in fact . give credit on some subsequent purchases is just as immaterial in the absence of a binding obligation so to do, as is the actual forbearance to sue on the matured claim in the absence of a binding agreement to extend the time of payment.

It remains therefore to determine whether the defense of want of consideration is maintainable by one executing a demand note jointly with á debtor, for the latter’s accommodation, payable to a creditor on a matured claim and delivered to him as collateral security for his claim, when the creditor has knowledge of all the facts and has given no new consideration either to the debtor or to his co-maker.

It was the settled law in most jurisdictions before the enactment of the uniform Negotiable Instruments Act and it is clearly the law under section 25 of the act, as adopted in Illinois, the language of which differs from the language adopted in the corresponding section in other states, under which some conflict in the authorities has arisen (Brannan Neg. Inst. Law, p. 207) that “a pre-existing debt constitutes value where an instrument is taken as secnrity therefor whether the instrument is payable on demand or at a future time.”

Moreover not only the endorsee but even the payee of an instrument may be a holder in due course. Boston Steel & Iron Co. v. Steuer, 183 Mass. 140; Lloyd’s Bank v. Cooke 1907, 1 K. B. 794, at 805, 809.

Both prior to the Negotiable Instruments Act of 1907 (Naef v. Potter, 226 Ill. 628), and by the express provisions of section 29 of the act, an accommodation party is not rélieved of liability because the holder knew him to be only an accommodation party. In giving the note to plaintiff there was no violation of any restrictions placed upon its use. Therefore the defense of want of consideration even if properly pleaded could not have availed the defendant in this case. Harrell v. Tenant, 30 Ark. 684.

There is nothing contrary to this in the case of Martin v. Stubbings, 126 Ill. 387, although some slight doubts are suggested on the point in Martin v. Stubbings, 20 Ill. App. 381, at p. 392.

The judgment of the court could not therefore be sustained if this were the only defense or if the verdict had been rendered because of this defense. The important defense, however, and that to which most of the evidence was directed, was fraud and circumvention in the execution of the instrument. The evidence on this point was directly conflicting. If the testimony of plaintiff’s agent was true there was absolutely no basis for defendant’s contention; on the other hand Mrs. Krueger’s testimony, if true, amply supported the defense. Her claim was that, ignorant of English, she signed the paper, relying on the statement of plaintiff’s agent that she was signing the paper merely as a witness to her husband’s signature.

Under these circumstances, it was of the utmost importance that the instructions to the jury be correct and clear and introduce no irrelevant issues.

The refusal to submit proper special interrogatories to the jury would not of itself be a ground of reversal if we could say from the whole case that a just result had been reached. We cannot, however, in view of the clear conflict in the testimony say either that justice has or has not been done. If the instructions had been limited to the defense of fraud and circumvention, we should on this record have upheld a verdict rendered in favor of either party, accepting the jury’s view as to the relative credibility of the witnesses. But after giving careful and proper instructions and refusing to give erroneous instructions on this point, the court, of its own motion, instead of further instructing the jury that the defense of want of consideration had not been sustained, gave them the following additional instruction:

“The court instructs you that if you believe from the evidence that the note in question was taken in satisfaction of the open account due the plaintiff from the defendant, Eugene Krueger, or that it was taken as security for said indebtedness, and if you so find from the evidence, then you are instructed that on the question of consideration for the signature of the defendant, Sophia Krueger, there is sufficient consideration in law to constitute value. The court instructs you that if you believe from the evidence that the note in question was not taken by the plaintiff in satisfaction of the indebtedness due to the plaintiff from the defendant, Eugene Krueger, or that it was not taken as security as such for the same, then you are instructed as a matter of law that there was no consideration moving from the plaintiff to the defendant, Sophia Krueger, for the signing of said note, and unless you further find from the evidence that the plaintiff has altered his position and has been damaged thereby, you will find the issues on this point for the defendant, Sophia Krueger.”

We cannot understand the application of the latter half of the instruction to this case. While it is true that defendant contended and still contends that, as a question of law, this defense was established, there was no dispute whatsoever as to the fact that the note itself was taken by plaintiff either in satisfaction or as' security for her husband’s debt. To suggest a doubt on this point to the jury is serious error; to go further, and to instruct them that if they find that the note was not so taken (something they could not do without disregarding the undisputed evidence) then they should find the issues on this point for the defendant, is both confusing and so seriously erroneous as to require a reversal—the more so inasmuch as the special interrogatories had been refused and the words “issues on this point,” especially in view of the absence of any plea of want of consideration, amounted to a direction under the circumstances for the defendant.

Reversed and remanded.


text:
    Title Guaranty & Surety Company, Appellee, v. Standard Construction Company, Appellant.
    Gen. No. 14,909.
    1. Parties—when objection to identity of plaintiff with party named in contract comes too late. In an action upon a contract an objection to the identity of the plaintiff with one of the parties to such contract, held, under the circumstances Qf this case, to come too late when first raised on appeal.

      2. Contracts—when previous dealings incompetent to aid construction. Previous dealings are not competent to aid the construction of a contract if the contract upon which the previous dealings were predicated was not identical with the one under construction.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. "William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed March 18, 1910.
    Statement fey the Court. The defendant, appellant herein, gave a $130,000 bond, with the Title Guaranty & Trust Company as surety, to a railroad company, conditioned on the faithful performance of a construction contract. In connection with its application for the bond it gave the Trust Company a so-called indemnity agreement consisting of a printed form with blanks, some of which were filled in. The agreement begins as follows:
    “In consideration of the Title Guaranty & Trust Company of Scranton, Penna., becoming surety on the bond of the...................................................................; herein applied for, it hereby covenants and agrees to pay in advance the premium or fees hereafter agreed upon, namely, 25c per $100 on contract for bid bond. (The same to be credited on the premium for the contract bond.) One-fourth of 1 per cent on the $636.00 amount of the contract bond for the first year thereof and................per cent annually thereafter until it shall serve upon said company at its Home Office, in the City of Scranton, Pennsylvania, competent written evidence of its discharge from such suretyship and all liability by reason thereof.”
    In this action, brought to recover the premium alleged to be due under this agreement, for the second and third years, at the rate of $636 annually, judgment was rendered on the findings of the court for $1272 in accordance with plaintiff’s claims.
    Stein, Mayer & Stein, for appellant.

      Winston, Payne, Strawn & Shaw, for appellee; Walter H. Jacobs, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

The principal errors assigned by appellant in connection with the findings and judgment raise the following questions:

1st. Can plaintiff, The Title Guaranty & Surety Company, recover under the evidence in this case on a contract made with the Title Guaranty & Trust Company?

2nd. Does the contract contemplate a single premium or annual premiums?

3rd. If annual premiums, was the plaintiff discharged from liability on the bond before the end of the second year and if so is the recovery to be limited to the second year’s premium?

Suit was begun in the name of “ Title Guaranty & Surety Company, formerly known as Title Guaranty & Trust Company.” Plaintiff attempted to prove the identity of the corporation by asking a witness whether they were the same company, and after defendant’s general objection to the question was sustained the question was withdrawn. While no other direct evidence of the identity was offered, no finding in favor of the defendant was requested at the close of the testimony and in no way, so far as the record shows, did the defendant raise the point in the trial court, upon which it now insists, that the identity of the Title Guaranty & Surety Company with the Title Guaranty & Trust Company had not been proven and that therefore no cause of action had been established in favor of this plaintiff.

■In our judgment, under the circumstances of this case, the objection is made too late, for after the unsuccessful attempt to make the proof, both parties assumed the identity in the questions put to the witnesses and in the findings requested of the court. One of plaintiff’s witnesses was asked without objection whether he “had been in the employ of the plaintiff in this suit, the Title Guaranty & Surety Company, formerly known as the Title Guaranty & Trust Company of Scranton.” The court held at defendant’s request that the contract in question was a printed form prepared by this plaintiff. Defendant also requested a finding that this plaintiff was released as surety on the bond given to the railroad. In this and other ways, the identity of the two companies was assumed ; it cannot now be questioned.

There was a conflict in the testimony of the witnesses as to the interlineations and expert testimony was offered thereon. Defendant claims that the quoted portion of the agreement should read “one-fourth of 1 per cent on the amount of the contract for the first year and blank per cent annually thereafter. ’ ’ This is based on the theory that, while one line appears to be drawn through the per cent mark and through “an” in the word annually, the other was not drawn through either of them and the latter should control. It contends further that if the former controls, then the word “annually” reduced to “nually” is meaningless and if this be not so, nevertheless without the insertion of some phrase as “one-fourth of 1 per cent” or “the same” before the word annually, no premium beyond that paid for the first year could be claimed.

In the agent’s statement, which was on the same page as and under the indemnity agreement sued on in this case, there appears, after the printed words “premium agreed upon,” the written words “one-fourth of 1 per cent on amount of contract.” Defendant contends that this statement corroborates its construction of the contract, viz.: that there was to be only a single premium paid.

Defendant complains also of the rejection of evidence offered by it that in former similar contracts between the same parties the words “the same” were inserted in the blank before the word “annually.”

We cannot, however, agree with these contentions. The contract as offered showed the per cent mark crossed out; it is not at all clear from the photographic copy whether the letters “an” are also similarly erased. If they are, nevertheless the characters that remain “nually” taken in connection with the rest of the sentence can mean only “annually.” We cannot assume that there was any intention to take out the whole word. Therefore whether what remains is to be read “per cent annually” or “annually” the interpretation of it seems entirely clear without the insertion of any words. The agent’s statement does not purport to describe the premium as single or annual and therefore throws no light on the question. The offered proof of previous dealings was, in our judgment, properly rejected but even if admitted it would not fairly lead to the inference that, because in former contracts and not in this one the words “the same” were inserted in the blank, therefore the omission is equivalent to the insertion of the word “no.”

That the parties did not discuss the question of payment of premiums after the first year is equally immaterial.

We cannot say that the finding of the court that there had been no alteration subsequent to the execution of the instrument is against the preponderance of the evidence, and we concur in the interpretation given to the instrument in its form as offered, that it obligated defendant to pay annual premiums.

Whether the premiums continue until written notice of discharge should be served on plaintiff or only until it is in fact discharged from further liability need not be here determined because, in our judgment, the so-called settlement agreement between defendant and the railroad was in no sense such an alteration of the original contract as would discharge a surety, but only a statement of the balances due to - defendant with provisions for their payment. Defendant still remained liable to the railroad to protect it against mechanic’s liens and plaintiff’s liability on the bond therefore remained unaffected. Moreover the bond itself was conditioned not merely on defendant’s fulfillment of its obligations to the railroad under the original contract but also under “any alterations and additions to said contract.”

Affirmed.


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    Marianna Penkala, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 14,915.
    This case is controlled by the decision in Walters v. City of Ottawa, 240 Ill. 259.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Theodore Brentaho, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed March 18, 1910.
    F. W. Jaros, for plaintiff in error.
    Edward J. Brundage and John R. Caverly, for defendant in error; Edward C. Fitch of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

Since this case was submitted, the Supreme Court has held in Walters v. City of Ottawa, 240 Ill. 259, that the plea of the statute of limitations is a good defense to a declaration in a cause of action for negligence against a city, amended after the statutory period had run by reciting that the statutory notice was duly .given.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Alois Kresmar, Appellee, v. Omaha Packing Company, Appellant.
    Gen. No. 14,911.
    1. Master and servant—when doctrine of assumed rish precludes recovery. If the danger or risk was apparent and obvious to the servant, was incident to his employment, it is deemed to have been assumed, and if it resulted in the injury complained of, vfill bar a recovery.
    2. Master and servant—when minor subject to doctrine of assumed rislc. If the servant is of sufficient age and discretion to understand and appreciate the risk to which he is exposed, he is held to have assumed the ordinary hazards of his employment.
    3. Contributory negligence—what conduct in use of machine com stitutes. Held, that it was contributory negligence which barred a recovery for the servant to attempt to grab and pull off a piece of string or cloth from a roller revolving 300 times a minute.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed March 18, 1910.
    Frank M. Cox and R. J. Fellingham, for appellant.
    Charles D. Lusk and De Witt C. Jones, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by Alois Kresmar against the Omaha Packing Company to recover damages for personal injuries sustained by him February 20, 1906, while working for the defendant in its packing house, Chicago. The fingers of plaintiff’s left hand were caught between two rollers of a machine at which he was working. The question of defendant’s liability is the principal question in the ease and the one upon which the case must turn.

The original declaration is not relied on by the plaintiff. His case is set forth in the three additional counts according to his brief. The negligence averred in the first additional count was that plaintiff was employed and put at work by the defendant on a machine which was out of repair and adjustment, and the rollers of which did not revolve upon each other as closely as they should when in operation; and to remedy that defect defendant caused cloths or rags to be wound upon the rollers. The cloths or rags became worn and torn, so that pieces or strips became loosened and partly detached from the rollers and caused intestines to 'be carried back and wound around rollers and thereby spoiled. At the time of the accident a piece of said cloth became loosened and partly detached from the rollers, and plaintiff, with all due care, attempted to remove and pull the same off, and in doing so a strip became wrapped around one of the fingers of plaintiff’s left hand, and carried his hand between the rollers, whereby three fingers were crushed and injured.

The second additional count is substantially the same as the first, and in addition it avers defendant had notice of the condition of the machine; that plaintiff was a minor with little experience in running said machine, which was known to the defendant; that defendant failed in its duty to instruct plaintiff what to do in case pieces of cloth became loosened and detached from the rollers, and left plaintiff to exercise his own judgment as to how best to remove such loose pieces of cloth.

The third additional count avers the matters set up in the first and second additional counts, and in addition avers that the foreman of defendant negligently ordered plaintiff to remove said strips with his hands whenever he should see the same partly detached, and that the danger and hazard of so doing was known to defendant and not to plaintiff, and that by reason of the order and direction of the foreman, plaintiff with due care, attempted to remove said strip of cloth with his left hand and was injured.

The plaintiff himself was the only witness offered to sustain his case. He testified in substance that defendant had two machines for scraping and cleaning intestines. These two machines stood three or four feet apart. They were built and run exactly alike. Each machine stood on four legs and consisted of a set of knives and large drum on the side of the machine farthest from where plaintiff worked, and of two rollers on the side where plaintiff worked. The tops of the rollers were about four feet above the floor. The plaintiff had nothing to do with the knives on the opposite side of the machine. The rollers were side by side, and close enough together to make the proper pressure to press the water out of the intestines as they were run through them. They revolved toward each other at the top. The intestines were put in at the top and dropped down underneath the machine. Plaintiff testified that the rollers revolved about three hundred times a minute. As the plaintiff was at work he stood about one foot.from the nearest roller. The rollers were first covered with rubber and then with canvas. Cloths or burlap were then put on the canvas, thus forming soft surfaces between which the intestines were pressed. The rollers were in plain view all the time.

The evidence shows that each machine was equipped with a simple device for stopping it. The device consisted of a horizontal rod used as a lever, and this rod shoved in or out to start or stop the machine. The end or handle of the rod was at the operator’s left side and between him and the rollers. It was easily shoved back and forth.

At the time of the accident plaintiff was about eighteen years old. He had worked on the other machine about two months. During that time he testifies be saw the machine on which he was injured operated every day; that the men changed the cloths on the roller every day or two, and washed it many times a day; and when at the end of the two months he was placed at work on the second machine (on which he was hurt) he knew that the cloths had to be changed every day or two. Mike Moritz, the man who ran the intestines through the knives on the opposite side of the machine, put the cloths on the rollers, tacking the cloths to the rollers.

The cleaning of the rollers was done by using a brush with soap and water, while the rollers were in motion. At times during the working of the machine, plaintiff testified that pieces or strips of the cloth became loose and hung down from the roller, and it was necessary to remove them.

The plaintiff testified that Beggy, the foreman, put him at work on the second machine and told him to clean it. Mike Moritz was then working on the other side of the machine. Plaintiff also testified that Beggy at that time said to Moritz, but not to plaintiff, that he—Moritz—was plaintiff’s boss. This is disputed in the evidence.

Plaintiff worked about a month on the second machine before the accident. He cleaned the machine every day, and took off the strips and pieces of cloth which he found loose and hanging from time to time. Plaintiff testifies that just before the accident, Moritz said to him that he (Moritz) was going to get some more intestines, and that plaintiff should clean the machine and take off the rags. While Moritz was away, and while plaintiff was cleaning the rollers with a brush in his right hand, he says he observed a piece of rag hanging down from the roller. In attempting to take it off plaintiff says he reached down under the roller with his left hand, and the string wrapped around his finger and pulled his hand over between the rollers.

Plaintiff does not disclose by his evidence how or by whom he was informed of what Beggy said to Moritz at the time he was put to work on the second machine. His testimony on this point is flatly contradicted by both Beggy and Moritz. The decided preponderance of the evidence is that Beggy was the foreman and that Moritz had no authority over the plaintiff. Moritz testifies that prior to the accident and before leaving the machine, he did not give the plaintiff any orders or directions; that he said nothing to him. Moritz also says that he had noticed the wrappings aronnd the rollers before the accident, and he saw no pieces hanging down. The preponderance of the evidence seems to support Moritz’ testimony on this point, and that no string or strip was wrapped around plaintiff’s fingers when his fingers were taken from between the rollers. On the other hand the evidence shows, we think, that plaintiff, at the time of the accident, was putting salt on the rollers with his left hand, contrary to orders, and while so doing his left hand was caught.

But aside from the preponderance of the evidence being strongly against the plaintiff’s theory of the accident on essential points of the case, the judgment must be reversed because it clearly appears from the plaintiff’s own testimony that he was fully conversant with the working of the rollers, and thoroughly appreciated whatever risk and danger there might be in getting his hands between them, or where they might be drawn between them. This danger and risk was apparent and obvious to plaintiff, and was incident to his employment, and according to the general rule was therefore assumed by him, as one of the ordinary risks of the service. Jones v. Roberts, 57 Ill. App. 56; Swift & Co. v. Arent (No. 1122 this court, not reported).

The plaintiff did not attempt to prove that he did not know of and appreciate the alleged defective condition of the machine, or the danger of getting his fingers caught between the rollers while attempting to grab and pull short strings or strips of cloth from swiftly revolving rollers; or that he did not have equal opportunity with the defendant of knowing the danger complained of. Plaintiff proved the machine and rollers which he was at work on were very simple, and that he thoroughly understood them and the work which he was doing. According to his evidence, grabbing hold of the strings and pulling them off the rollers was a part of his regular work and that he did it every day for a month before he was injured. He does not complain of any latent defect or danger. He did not plead or attempt to prove that he made any objection to, or complaint about, the machine or his work, or that defendant made to him any promise with regard to the machine or any part of it, or his work upon the machine. If plaintiff, as he testifies, was ordered, at the time of his injury, to take the strings off the revolving roller, he was not misled by the order as it was a part of his regular work. Under this state of the proof the plaintiff must' be held to have assumed the risks of his employment, and the recovery and judgment cannot be sustained. Howe v. Medaris, 183 Ill. 288; Galloway v. C., R. I. & P. Ry. Co., 234 id. 474; Lake E. & W. R. R. Co. v. Wilson, 189 id. 89; Armour v. Brazeau, 191 id. 117; Christiansen v. Graver Tank Works, 223 id. 150; E., J. & E. Ry. Co. v. Myers, 226 id. 365.

The plaintiff had passed beyond the stage of thoughtless childhood and was not entitled to special care by the defendant, as Ms employer, on account of Ms age. Whatever danger there was in his employment was not hidden but was open and obvious. Ryan v. Armour et al., 166 Ill. 568. He was of sufficient age and discretion to understand and appreciate the risk to which he was exposed, and must be held to have assumed the ordinary hazards and perils of his employment. Pressed Brick Co. v. Reinneiger, 140 Ill. 334.

The imminent and obvious danger to plaintiff in attempting to grab and pull off a piece of string or cloth from a roller revolving three hundred times a minute, as testified to by him, was such contributory negligence on his part as to bar his recovery, in our opinion.

In view of what we have said it is unnecessary, we think, to discuss the errors assigned and argued in regard to rulings on evidence, and the refusal of an instruction asked by defendant.

The trial court should have instructed the jury at the close of the evidence to find the defendant not guilty, as requested by the defendant.

The judgment is reversed with a finding of facts.

Reversed.