text:
    John F. Devine, Administrator, Appellee, v. National Safe Deposit Company, Appellant.
    Gen. No. 14,099.
    1. Presumptions—against suicide. With respect to a man well-conditioned in life, the presumption is against his having committed suicide.
    2. Ordinary care—what evidence of, in absence of eye witness. Where there was no eye witness to an accident resulting in death, the testimony of those who had known the deceased, to the effect that he was careful, steady and industrious, is evidence tending to prove the exercise of ordinary care by such deceased at the time of his death.
    3. Contributory negligence—effect of proof of knowledge of danger. Prior knowledge of a defect, as in this case that a door to a platform was open and the opening unguarded, is not, as a matter of law, conclusive that a person having such knowledge was not in the exercise of ordinary care.

      4. Licensees—who not mere. A person in the employ of another to whom a portion of premises has been demised, in going upon such premises in connection with the performance of his duties as such an employe, is not a mere licensee to whom the person in control of such premises owes no duty.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Horton, Brown & Miller, for appellant.
    James C. McShane, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

Appellee, claiming that the death of his intestate, William Thomas Daly, was caused by the negligence of the appellant, sued appellant in case. The jury rendered a verdict finding the defendant guilty and assessed the plaintiff’s damages at the sum of $6,000. The court overruled the motions by the defendant for a new trial and in arrest of judgment, and rendered judgment on the verdict.

The defendant, the National Safe Deposit Company, owns and controls an office building, known as the First National Bank building, situated at the northwest corner of Monroe and Dearborn streets, in the city of Chicago. The building is eighteen stories in height, and extends along Monroe street, an east and west street, 232 feet, and north along Dearborn street, a north and south street, 191 feet to an alley. The alley extends west from the west line of Dearborn street and-next to and adjoining the north wall of the building. The east 83 feet of the west end of the alley is 13 feet wide, and the part of it west of said 83 feet is 28 feet wide. The south 1-0 feet and 10 inches of the alley abuts on a cement platform, the surface of which is about two feet above the surface of the alley, and is level and smooth. The platform is 23 feet, 9 inches long from east to west, and 10 feet, 10 inches wide from south to north. About 14 feet, 6 inches (as appears from the scale of a plat in evidence) from the east line of the platform, there is an opening in it. The south line of this opening is next to the north wall of the building, and the opening is 6 feet, 3 inches from south to north and 4 feet, 5 inches from east to west. The opening has a double iron door, one side of which is hinged on the north and one on the south side of the opening. When the door is open its south side leans against the north wall of the building and its north side against a garbage box, which is on the platform. The door when closed is on a level with the surface of the platform and forms, substantially, a part of it. Defendant had provided a wooden bar 2 by 4 inches in dimensions, to protect the east side of the opening when the door is open. The bar is fastened to the north wall and rests, when up, on a garbage box at the north side of the opening, where a 2 by 6 is nailed, and is about 2 feet above the platform floor. For an hour before the accident the door of the space was open and the space unguarded. The opening is for the operation of an elevator, from the platform down to the basement, where the engine room is and vice versa. About 3 feet, 2 inches east of the east side of the opening there is a steel rolling door in the north wall of the building, 8 feet, 9 inches wide, and 9 feet, 2 inches high, which opens into a corridor 10 feet wide, which extends south into the building about 114 feet, 6 inches, at the south end of which there is a freight elevator, used for the purpose of hoisting articles to the floors above and vice versa. The door to the corridor is the only entrance to the building at its rear or north side. The platform, door, corridor and freight elevator are used by the tenants' of the building in removing things to and from the building. The number of tenants in the building runs up into the thousands. The defendant leased to the Amberg File & Index Co. a room on the 14th floor of the building, for a term commencing May 1, 1905, and ending April 30, 1906. This room the Amberg Co. used as a show room for its letter-file goods. The company had a factory or plant at 435 Fulton street, in the city of Chicago, about 2 1/2 miles from defendant’s building.

Plaintiff’s intestate had been in the employ of the Amberg Co. about two years. His business in the winter was to run the heating plant at the factory, and during the remainder of the year he acted as outside janitor. He locked up the company’s building at night, and, in the summer, he looked after the company’s yards and lawns at its plant. The company paid him ten dollars per week and house rent, and furnished him a flat and heat and light. He was thirty-seven years of age at the time of his death, and left surviving him his widow and three children, who, at the time of his death, were aged, respectively, one, eight and eleven years.

On the morning of May 9, 1905, the Amberg Co. sent from its factory, by wagon, a load of goods to the defendant’s building, to be placed in its show room. Daly, plaintiff's intestate, Elmer E. Sisson, in the employ of the company, and Daly’s little boy, Johnnie, then about eight years old, accompanied the driver of the wagon, August Axelman. When the wagon was driven into the alley there was a team standing in the narrow part of the alley and several grocery wagons further west, and a large wagon was backed against the platform, from which a safe was being unloaded, so that the Amberg Company’s men were prevented from reaching the platform for about an hour. When the men who were unloading the safe got it off the wagon, they took it south through the corridor to the freight elevator, leaving their team at the platform, and then Sisson directed Axelman, the teamster, to get on the wagon, saying that he, Sisson, would lead the team, attached to the wagon, from which the safe had been unloaded, out of the way. At that time Daly and Sisson were on the platform, and there was a plank 2 by 10 or 12 inches and 12 or 14 feet long, the west end of which rested on the platform and the east end on the alley. This plank was in such a position that the wagon could not, unless it should be removed, be placed alongside the platform, where it was desired to place it for unloading. Sisson walked down this plank to lead the team at the platform out of the way, and as he was walking down the plank, Daly, who was on the platform, said, "I will pull in the plank”. Sisson led the other team east, out of the way, and then the wagon driven by Axelman was backed in alongside the platform, and when Sisson went onto the platform to help unload, he discovered that Daly and the plank had disappeared. The other men then unloaded the wagon and took the load up to their employer’s room, and Daly was subsequently discovered on the basement floor, to which he had fallen, and when brought up he was dead.

The defendant introduced no evidence. The contentions of its counsel are (1) that Daly, at the time of the accident, was not exercising ordinary care; (2) that the accident resulted from an obvious defect, known to the deceased; and (3) that the deceased was a mere licensee, and the law does not impose on the owner of premises the duty of providing a safe place to work, for persons going on the premises for their own purposes. There was no witness of the accident. Defendant’s counsel claim that Daly’s little eight-year-old boy, Johnnie, saw it; but this claim is not sustained by the evidence. The presumption is against suicide, and especially so in the case of the deceased. He was only thirty-seven years old at the time of his death; he had a good place, good wages, was well taken care of by his employer, and had a wife and three young children dependent on him. That he was attached to his children is evident from the fact that he took his little boy along with him to the building. Mr. Patterson, superintendent of the Amberg File & Index Co., who hired Daly, and Sisson, Daly’s fellow workman, who had known him for two years, both testified that he was a careful, steady and industrious man. Mr. Patterson also testified that Daly was trusted to lock the factory building every night. This is evidence that the deceased was exercising ordinary care at and about the time of the accident. C. & E. I. R. R. Co. v. Beaver, Adm’r., 199 Ill. 34; C. & A. By. Co. v. Wilson, Adm’r., 225 ib. 50. In the last case the court say: “Due care may be shown by circumstances as well as by direct testimony, and the fact that the deceased, at the time of the accident, was not guilty of negligence may be shown by her habits, and by what are known to be the instincts of self-preservation, in persons possessed of their natural faculties, and who are ordinarily sober and careful of their personal safety”. Numerous other cases are to the same effect. -

The evidence that the deceased was careful, steady and industrious was proof, prima facie, that he was exercising ordinary care at the time of the accident, and, in the absence of evidence to the contrary, is sufficient to warrant a finding that he was exercising ordinary care.

Defendant’s counsel, however, contend that the deceased knew, before the accident, that the doors of the space in the platform were open and the open space unguarded. The evidence shows that during the hour before the accident the door of the space was open and the space unguarded by the bar. Daly was there on the 8th day of May, the day next before the day of the accident, with Sisson, and saw that the door in the platform was open, and the bar not up, and Sisson said to him, that “it would be a fine place for a fellow to fall down and break his neck”, and Daly said, “Yes, it would be”. Also, on the day of the accident, and before the accident, while the men were waiting for an opportunity to unload the wagon, Daly was on and around the platform, and could not, as we think, have failed to observe that the space in the platform was open and unguarded. Counsel for defendant rely on this prior knowledge of the deceased as overcoming the evidence that he was a careful, steady and industrious man. There are numerous authorities that prior knowledge of a defect, which caused an injury, is not, as matter of law, conclusive that the person injured was guilty of contributory negligence, or did not exercise ordinary care; but that the question is one of fact, to be passed on by the jury. Bond v. Smith, 44 Hun 219, 223; Atkinson v. Abraham, 45 Hun 238; Cassidy v. Angell, 12 R. I. 447; Bassett v. Fish, 75 N. Y. 303; City of Streator v. Chrisman, 182 Ill. 215, 217; Weed v. Village of Ballston Spa, 76 N. Y. 329; Looney v. McLean, 129 Mass. 33; Udwin v. Sperkel, 136 Ill. App. 155, 159; and cases cited.

Defendant’s counsel rely on E. St. L. etc. Co. v. Crow, 155 Ill. 74, in support of the proposition that the deceased did not exercise ordinary care. But that case is clearly distinguishable from the present, in respect to the question of ordinary care. In that case there was absolutely no evidence that the plaintiff, Crow, was exercising care at the time of the accident, as the court in the opinion say, using this language: “Appellant insists that there was no evidence before the jury fairly tending to prove due care, on the part of the plaintiff, to avoid the injury for which he sues, and for that reason its request to instruct them to find for the defendant should have been given. We have carefully examined all the evidence in this record, and are unable to deduce from it a satisfactory answer to this contention”.

In the present case there is evidence proving prima facie the exercise of ordinary care by the deceased.

The 2nd and 3rd propositions of defendant’s counsel, which we can hardly think are advanced seriously, that the deceased was a mere licensee, and there was no duty incumbent on the defendant to keep the place where the accident occurred in a reasonably safe condition, we will consider briefly and together. The defendant leased to the employer of the deceased, the Amberg File & Index Co., a room on the fourteenth floor of its building; the only way in which that company could take its goods to that room was by unloading them on the platform, taking them through the corridor, south to the freight elevator, and hoisting them by means of the elevator. Therefore, the defendant, in executing the lease to the Amberg Co., authorized the use by the company of that way. Had the defendant prevented such use, it would have been to prevent the enjoyment of the premises by the Am-berg Co., and an eviction. The defendant had the direct and exclusive control of the platform, corridor and freight elevator, and, therefore, it was its duty to exercise reasonable care to keep them in reasonably safe condition for the purpose for which they were intended. If the owner of a building leases different apartments in the second story of the building to different tenants, for residence purposes, the sole means of approach to which is by a flight of stairs, in the sole control of the owner, can it be said that the tenants are mere licensees, that the owner owes no duty to keep the stairs in a reasonably safe condition, and that if, by reason of a dangerous defect in the stairs, one of the tenants is injured, while using ordinary care, there can be no recovery? The law is otherwise. Shoninger Co. v. Mann, 219 Ill. 242, 245, and cases cited. Counsel for defendant do not, in their argument, contend that the defendant was not guilty of negligence, and it is plain from the evidence that it was negligent in not guarding the space in the platform, when the door was open, by means of the bar provided for that purpose, or otherwise.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Adams

license: Public Domain

text:
    Arthur W. McGovney, Appellee, v. Village of Melrose Park, Appellant.
    Gen. No. 14,105.
    Fees and salaries—what not within power of village. A village appointing an attorney must definitely fix his salary; such village has no power to authorize the rendition of services upon the basis of the usual and customary charges.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed.
    Opinion filed December 21, 1908.
    Thatcher, Griffen & Wright, for appellant.
    Johr H. Batten, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment rendered in a suit by appellee against appellant, to recover compensation for services performed by him as attorney for appellant. The declaration consists of the common counts, to which appellee pleaded the general issue. The appellant, at the close of the evidence, moved the court to instruct the jury to find for the defendant, and presented an instruction to that effect, but the court denied the motion. The jury found for appellee and assessed his damages at $600, and the court overruled appellant’s motion for a new trial and rendered judgment on the verdict.

Appellee was appointed village attorney, at a meeting of the trustees of the village, held May 9, 1904. At a meeting of the trustees held April 27, 1905, appellee’s resignation, to take effect May 1, 1905, was presented and accepted.

The board of trustees, June 11, 1900, passed and the president of the board approved an ordinance creating the office of village attorney, providing for the appointment of such officer annually and prescribing his duties. Section 8 of the ordinance is as follows :

“Section 8. The compensation of such village attorney shall be and is hereby fixed at the sum of four hundred fifty dollars per annum, Provided, that in all special tax or assessment cases, carried into courts of record and in all cases in the state courts of record and the courts of the United States in which the village may be a party plaintiff or defendant, such village attorney shall be allowed the usual and customary fees of attorneys practicing in such courts over and above and besides such sum herein fixed and determined as and for his salary”.

Appellee’s claim is for services performed by him for the village by special agreement, while he was village attorney, all of which services pertain to the official duties of such attorney. He testified that, at a regular meeting of the village board of trustees, held in the latter part of June, 1.904, it was moved and carried that he should take charge of special assessments numbers 58, 64, 65 and 66, and do the legal work, and that he be paid what the same is reasonably worth, and that he performed the necessary work, in accordance with the motion.

It appears from appellant’s testimony that all the assessments above mentioned had been confirmed at the time of said motion, and the main work for which he claims compensation was drafting contracts for the making of the improvements for which the assessments were levied and drafting the contractor’s bonds. The drafting .these contracts and bonds, and doing-other work in relation to the assessments, after they had been confirmed, are not within the meaning of the provision in section 8, quoted supra; but this, in our view, is not necessary to the decision of the cause. The village of Melrose Park is incorporated under the general law for the incorporation of cities and villages. Section 11 of article 11 of that act is as follows :

‘‘ Sec. 11. The president and board of trustees may appoint a clerk pro te'inpore, and whenever necessary to fill vacancies; and also may appoint a treasurer, one or more street commissioners, a village marshal, and such other officers as may be necessary to carry into effect the powers conferred upon villages, to prescribe their duties and fees, and require such officers to execute bonds as may be prescribed by ordinance”. Hurd’s Rev. Stat. 1905, p. 315.

The section is the same as originally passed, with the exception that the words “village marshal” are substituted for “village constable”.

Section 15 of article 6 of the act is as follows:

“Sec. 15. All other officers may receive a salary, fees or other compensation to be fixed by ordinance, and after the same has been once fixed, such fees or compensation shall not be increased or diminished, to take effect during the term for which any such officer was elected or appointed; and every such officer shall make and return to the mayor, or president of the board of trustees, a semi-annual report, verified by affidavit, of all such fees and emoluments received by him”. Hurd’s Rev. Stat. 1905, p. 307.

By this section the board of trustees is limited to fixing the salary of the village attorney by ordinance. “Fixing”, as used in the section, can only mean making definite and certain. This is apparent from the words following, “such fees or compensation shall not be increased or diminished, to take effect during the term' for which any such officer was elected or appointed”. Manifestly, unless the compensation be a sum certain, it cannot be told whether it has been increased or diminished.

By section 8 of the village ordinance, appellee’s compensation or salary was fixed at $450 per annum. By section 15 of article 6 of appellant’s charter, quoted supra, that salary could not be increased so as to take effect during appellee’s official term; but, by the provision of section 8 of the ordinance, it is provided that the compensation may be increased an indefinite amount. In other words, section 8 of the ordinance provides for the doing of that which appellant’s charter expressly prohibits. The provision is illegal and void. The charter provision prohibiting increase of an officer’s compensation, to take effect during his official term, is so important that it is incorporated in the constitution in respect to the compensation of state and county officers. The salary of the village attorney, fixed at the sum of $450 per annum by the ordinance, includes compensation for the performance of all said attorney’s official duties, and appellee rendered no services for the village not within the sphere of his duties as village attorney. No claim is made by appellee that his salary has not' been paid in full.

The court erred in denying appellant’s motion to instruct for the defendant. There are other reversible errors in the record, which, in view of our conclusion that there can be no recovery, it is not necessary to refer to.

The judgment will be reversed.

Reversed.


text:
    George A. Winn, Appellee, v. Edwin C. Walker, Appellant.
    Gen. No. 14,112.
    1. Instructions-when should be particularly accurate. Where a case is close upon the evidence the instructions should be drawn with special accuracy.
    2. Instructions-when inaccurate, not subject to cure. An instruction which authorizes a verdict if certain facts are believed, which facts do not in law justify such a verdict, is not susceptible of being cured by another correct instruction.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding. Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed December 21, 1908.
    A. Binswanger, for appellant.
    Adams & Froehlich, for appellee.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This cause was tried in the Circuit Court, on appeal from a judgment recovered before a justice of the peace. The jury found for appellee and assessed his damages at the sum of $200, and judgment was rendered on the verdict. The appellant is a stock broker, and, about February 1, 1906, appellant, by appellee's order, purchased for appellee 100 shares of the stock of the United States Steel Company, at $44 5/8 per share. The stock was sold by appellant August 17, 1906, for $43 1/2 per share, and appellant sent a check for the purchase money less appellant's commissions, to appellee, which appellee received and cashed, Appellee's contention is that the shares were sold contrary to his instructions to appellant's manager, Mr. Joseph M. Horine, and appellant contends the contrary. Appellee testified, in substance, that after the purchase of the stock for him, the market price of shares fell as low as $32 per share, and that he kept putting up margins with appellant, until he had put up $1,900; that just before August 1, 1906, he went to appellant’s office, and told Mr. Horine that he was going to Capitol Island, Maine, where he would probably remain during the month of August, and that, in case steel should go down more, he, appellee, would take it up and pay the difference between the margin of $1,900 and $3,300 or $3,400, and take the stock and put it in his vaults, and that he left nothing to appellant’s discretion; that he, appellee, went east to the State of Maine about August 1, 1906, and remained there till about the 25th or 26th of that month, and while there he watched the market every day, and that, about August 10th, the market price of the stock was increasing, and that, about August 27th, the market price was $48 per share. Appellee further testified as follows: August 27th he telegraphed to appellant from Boston, Massachusetts, to sell the stock if it should go back to 45 1/2. August 28th or 29th he received, in New York, the following telegram from appellant:

“Chicago, August 17/06.

George A. Winn, City.

Dear Sir:—We have this day sold for your account and risk, subject in all respects to the rules, by-laws and customs of the New York Stock Exchange, where executed, 100 shares of steel at 43%.

Respectfully yours,

Walker & Company”.

In answer he sent this letter:

“Hotel Victoria, August 29, 06.

Joe: Received here a notice from your house stating that they had sold my steel at 43 1/2. Why?

George Winn.”

He received the following letter, dated Chicago, August 31st, addressed to him, at Philadelphia, in reply to his of August 29th:

Horene.”

Enclosed in that letter was the following:

“Private Wire. Walker & Co., August 17, 1906.

If you have any friends in steel, get them out. The ore deal will cause more trouble than Northern Securities, and the stock will have a good break. J. B. Walker”.

Appellee, September 5th, wrote to Mr. Horine, from Cleveland, Ohio, this letter:

“Your letter received. I consider it only just for you to put me back at the point you sold me out, or credit my account at figures I authorized you to sell, 45 1/2.

George Wnrar.”

Subsequently appellee saw Mr. Horine and renewed the request made in the last letter, which Horine refused.

Mr. Horine, appellant’s manager, with whom appellee dealt, testified, in substance, as follows: When the market went down in the neighborhood of 32 5/8, appellee had a number of conversations with him; that he wanted to get out of the market, and he, Horine, advised him to take the stock and pay for it, which appellee declined to do, saying that he did not want to tie up any more money, and he said, “If it goes up near where I bought it, and starts down, I want you to get it out of the market. I don’t want to stand for it”. Appellant claims that this was an instruction from appellee to sell the stock if it went down nearly to the price at which it was purchased, and says that on the day the stock was sold the price had begun to decline.

The case is exceedingly close on thé evidence, and, therefore, the instructions should be accurate and not likely to mislead the jury. Swan v. The People, 196 Ill. 610. The court gave to the jury this instruction, at appellee’s request:

“The jury are instructed that it is the duty of a broker to obey his client’s instructions, and in- this case, if the jury believe from the evidence that no authority was given to the defendant to sell or cause to be sold the 100 shares of stock in question for $43.50 per share; and if the jury further believe from the evidence that such sale by said defendant was not thereafter ratified by the plaintiff, then the jury are instructed that the defendant is liable to the plaintiff for any losses, if you believe any has been shown by the evidence to have. been sustained by the plaintiff by reason of such sale”.

The appellant did not claim, nor did Mr. Horine testify, that appellee gave instruction-to sell the stock at $43.50 per share. Horine’s testimony is that appellee’s instruction to him was that if the market went up nearly to the price at which the shares were purchased, and started down, to get him out of the market; in other words, to sell. The instruction authorizes a finding for appellee, if the jury does not believe that appellant was specifically authorized by the plaintiff to sell the stock for $43.50 per share. The instruction was calculated to mislead the jury, and we cannot know that it did not mislead them. It is insusceptible of cure by any other instruction, because it authorizes a finding for appellee “if the jury believe”, etc., and the jury may have been guided solely by the instruction, without considering any other instruction given. There is no evidence that appellant was specifically authorized by appellant to sell at $43.50 per share, or at any fixed price, and, as before stated, this was not claimed by appellant. Therefore there is no basis in the evidence for the instruction.

The judgment will be reversed and the cause will be remanded.

Reversed and remanded.


author: Mr. Justice Brown

text:
    Louis D. H. Spikings, Appellee, v. Martin Fox et al., Appellants.
    Gen. No. 14,078.
    1. Landlord and tenant—what not defense to action for rent. A bad condition of sewerage etc. in demised premises does not constitute an eviction and is not a defense to an action for the recovery of rent where the lease recites that the lessee has “received the demised premises in good repair and condition and will keep them in good repair.”
    2. Landlord and tenant—what not acceptance of surrender. Merely retaking possession of demised premises after abandonment by the tenant and re-renting the same without notice to or consent by the tenant, is not by itself an acceptance of surrender even though the terms of the demise did not specifically authorize such action by the landlord.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Statement by the Court. This is an appeal from a judgment of the Circuit Court in favor of the appellee, Spikings, for $1,060,29. It was rendered March 20, 1907. The action was in assumpsit for rent of certain premises leased by Spikings to the appellants. The lease was in writing and leased for five years from the first day of May, 1898, at the rental of $1,500, to be paid in monthly instalments of twenty-five dollars each, the following property: “The store and basement and yard and part of barn at 2463 Lincoln avenue and the six room flat situated at No. 2461 Lincoln avenue”. The following clause follows this description of the property: “The basement to have floor and sink and two gaslight and one often to be 12 ft. X 14 ft. inside. Store to have one sink; barn to have three stalls and to make driveway into the yard from Carmen ave. or the alley, the often to be the same as the one at No. 317 W. 12th street”.
    The defendant pleaded the general issue and also a plea that the words above quoted constituted a condition precedent which the plaintiff had promised to perform, but which he never did perform, “wherefore the consideration of the lease has wholly failed”. To this plea the plaintiff replied, traversing it.
    The cause was submitted to the court without a jury, and it found for the plaintiff and gave judgment for the sum above mentioned. It was computed as follows: From the full sum of the rent reserved— $1,500—was deducted $75 paid by the appellants when they took the lease, and $534 collected by the plaintiff for occupation before April 30, 1903, from other tenants to whom he rented the premises after their abandonment by the defendants three months after taking possession of them. This sum of $534 was, the plaintiff says, the amount he received, “trying to rent it to whomever he could”.
    The balance left due on the lease, according to plaintiff’s claim, was $891, which, with interest to the date of the judgment at 5 per cent., made up the sum designated—$1,060.29.
    Plotke & Kaufman, for appellants.
    Eben F. Runyan, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The defense made in this case was threefold:

First. That the lease contained “conditions precedent” to the covenant of the lessees to pay rent, which conditions precedent were not performed by the lessor. Waiving any question whether the words which appear in the lease after the description of the property constitute “conditions precedent”, the evidence is quite clear that the promises were performed. The only testimony of any definiteness on the subject tended to prove that the work promised was all done, and, moreover, was done under the suggestions and actual supervision of the appellant, Martin Fox. It tended to prove further that an improvement or addition to what was required by the lease was made at his suggestion, partly at the expense of the lessor. There was therefore no merit in this defense.

The second ground of defense was that there had practically been an “eviction” by the act or neglect of the landlord, releasing the defendants from the payment of rent.

This rested on various offers made by the defendants (which were rejected by the court) to show a bad condition of the sewerage connections on the property and a bad condition of the furnace therein. But the lease recites that the defendants covenant that “the party of the second part received the demised premises in good order and condition and will keep them in good repair”, and that all plumbing, water pipes and sewerage shall be at the risk of said party of the second part. The offers were properly refused on that account. There was evidence of the bursting of a supply pipe at the sidewalk outside the building, which made some temporary trouble in the basement, but that could constitute no eviction. The second ground of defense therefore also failed.

The third ground is the one most vigorously insisted on. It is thus stated in the argument of appellants :

“Appellants’ contentions in this case are that after they vacated and abandoned the premises, appellee took possession of the same and re-rented the premises for the balance of the term to others, without notice to appellants and without their consent”.

As the lease did not contain an express provision giving the lessor the right of re-entry and re-renting for the benefit of the lessees in case of abandonment of the premises by the latter—the appellants say:

“Appellee, having taken possession and without notice to and consent of the appellants re-rented the premises to others for the remainder of the term, thereby accepted the surrender and released appellants from any further obligations on this lease”.

Again it is said: “The evidence * * * shows a clear intention upon the part of appellee, the landlord, to accept the surrender and to release the tenant as inferred from his acts and conduct in the matter. For more than four years appellee was silent, and at no time during that period did he ever demand any rents of appellants, nor ever notified them or communicated with them in reference to the premises in question”.

To sustain these propositions counsel for appellants cite some text-book authorities and adjudications in other states. They also quote the head note of the report of a decision by the Appellate Court of the Third District—Palmer v. Myers, 79 Ill. App. 409—to the effect that “A surrender of demised premises may be inferred from the fact that the landlord, after the vacation of the premises by the tenant, rented them to another”.

If the meaning of this head note must be taken to be that the acceptance of a “surrender” may be inferred from the fact of re-renting alone, it does not properly epitomize the opinion of the court, which treats of a very different condition of things.

The law of Illinois has been explicitly declared to be adverse to the appellants’ contention. The opinion of this court in Humiston, Keeling & Co. v. Wheeler, 70 Ill. App. 349, “Nor is a tenant who has abandoned premises and refused to pay rent relieved from liability by the action of his landlord in renting the premises to another party, save to the extent of the rent so received by the landlord from another”, was justified by the decision of the Supreme Court in the same case, when it reached that tribunal. The Supreme Court said: “In case of an abandonment without fault of the landlord or as the result of his acts, he may re-enter and again rent the premises, and credit the lessee with the proceeds, and his so taking possession does not relieve from the payment of rent”. Humiston, Keeling & Co. v. Wheeler, 175 Ill. 514.

We think the rulings on the propositions of law tendered by the appellants to the court below, and that court’s findings in the cause, were in accordance with the law as we have stated it to be on each of the points involved, and its judgment is therefore affirmed.

Affirmed.


text:
    Frank Staar, Appellee, v. Moy Tong Koon, Appellant.
    Gen. No. 14,084.
    1. Receiverships—when appointment improvident. It is improper to appoint a receiver pendente lite for a partnership at the instance of a creditor who has levied an execution upon the interest of an individual partner—no showing of peculiar necessity-being made.
    2. Receiverships—what essential to valid appointment. Before a receiver is appointed it is essential that the complainant should either give bond or upon good cause shown should be exempted from so doing, as provided by the act of May 15, 1903, “concerning the appointment and discharge of receivers.” And the finding of such good cause should be incorporated in the order of appointment.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1907.
    Reversed.
    Opinion filed December 21, 1908.
    Bulkley, Gray & More, for appellant.
    Louis Greenberg, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal from an interlocutory order in a chancery proceeding appointing a receiver for the property and business of the firm of Hip Lung, Ting Kee & Co. The bill was brought by the appellee, Staar, against two Chinese: (1) Moy Tong Hoi and (2) Moy Tong Gee, alias Moy Tong Koon. It was filed May 10, 1907. It was entitled ‘ ‘Bill for Dissolution of Partnership”. It set up:

A. That three persons (1) Moy Chene alias Hip Lung, alias Mong Tong Chew, (2) Moy Tong Hoi, and (3) Moy Tong Gee, alias, Moy Tong Koon—were co-partners up to May 7, 1907, in conducting a general merchandise store and a hotel at 323 South Clark street, under the name of Hip Lung, Ting Kee and Company.

B. That April 23, 1907, the said Staar had recovered a judgment against Moy Chene, alias Blip Lung, alias Mong Tong Chew, for $4,671 in the Municipal Court of Chicago, and had placed an execution on the same in the hands of the bailiff of the Municipal Court.

C. That the said bailiff levied on all the right, title and interest of Moy Chene, alias Hip Lung, alias Mong Tong Chew, in the partnership effects of the firm of Hip Lung, Ting Kee & Company, and sold the same at execution sale to said Staar on May 7, 1907.

D. That the business of the Hip Lung, Ting Kee & Co. is conducted and its books are kept in Chinese, which language Staar cannot read or speak.

Wherefore the bill prays: (a) That (1) Moy Tong Hoi, and (2) Moy Tong Gee, alias Moy Tong Koon, may be required to answer the bill; (b) that the said copartnership may be declared void; (c) that an account be taken of all dealings and transactions of said copartnership from the time of the commencement thereof; (d) that some proper person may, in the meantime, be appointed by the court as receiver to take charge of the said partnership effects and collect whatever money or property may belong or be due to the said firm; (e) that the complainant may have general relief; and (f) that a writ of summons issue against (1) Moy Tong Hoi and (2) Moy Tong Gee, alias Moy Tong Koon, to answer the bill, and a writ of injunction issue against the same persons restraining them from collecting or receiving any debts owing to the said firm, and from using and applying any of the copartnership funds to their own use until the further order of the court.

There is no service shown on either of the defendants, but on May 11, 1907, Messrs. Bulkley, Gray & More, entered an appearance “of the defendant, Moy Tong Koon, sued as Moy Tong Hoi”. This seems to have been a mistake, for Moy Tong Hoi in the bill is given no alias, while Moy Tong Koon is given as the alias of Moy Tong Gee, and we find that on May 15, 1907, Bulkley, Gray & More filed the answer of “Moy Tong Koon sued as Moy Tong Gee”. No other appearance or pleading for either defendant appears in the record.

The answer (A) denies that (1) Moy Ghene, alias Hip Lung, alias Moy Tong Chew and (2) Moy Tong Hoi and (3) Moy Tong Gee, alias Moy Tong Koon, were copartners up to May 7, 1907, in the business mentioned in the bill. (B) Neither admits nor denies the judgment charged in the bill against Moy Ghene and the issuance of an execution on the same. (C) Neither admits nor denies the levy of such an execution on the right, title and interest of Moy Ghene in the partnership effects of the firm of Hip Lung, Ying Kee and Company, and the sale of the same to Staar. (D) Alleges, that said Moy Chene did not on said May 7, 1907, have, nor for a number of years prior thereto have, any interest whatever of any kind or nature in said business, conducted under the name of Hip Lung, Ting Kee & Company, at 323 South Clark street, Chicago, and that the answering defendant, Moy Tong Koon, was not as a partner of Moy Chene, alias Hip Lung, alias Mong Tong Chew, engaged in any business at any place in said city on said 7th day of May, 1907, nor for several years prior thereto.

On motion of the complainant the cause was referred to a master to take evidence and report (1) whether a receiver should be appointed pendente lite and (2) on the merits of the whole case. The master took a considerable amount of evidence and reported it to the court with his conclusions on June 29, 1907.

His material conclusions were:

First. That the levy and sale alleged in the bill took place and were valid to vest the partnership interest of Hip Lung in the complainant Staar, if there was such a firm as charged in the bill and Hip Lung was a partner' in it at the time of the levy, and the execution was on a valid judgment.

Second. That there was enough evidence in the rec-cord to show that Hip Lung was a partner in the firm of Hip Lung, Ting Kee & Co., doing business at 323 South Clark street, and was such partner on May 7, 1907.

Third. That there was no definite showing as to who the present partners were, or of the proportionate interest owned by Hip Lung in the firm.

Fourth. That because no valid evidence of a judgment was shown, the bill should be dismissed.

Nothing was said in the report concerning a receiver. The recommendation was merely that the bill be dismissed. Exceptions were filed to the master’s report by the solicitors for the defendant, Moy Tong Koon, but they were not acted on. The following order, however, was on August 26, 1907, entered by a chancellor of the Circuit Court:

“This cause coming on to be heard upon the report of the master to whom this cause was heretofore referred to take testimony and report upon law and fact as to the motion of said complainant for a receiver of the goods, chattels, credits and effects of said copartnership of Hip Lung, Ting Kee and Company, and the court having inspected said report and heard arguments of counsel for the respective parties, and being fully advised in the premises, doth find that it is fit and proper that a receiver should be forthwith appointed in the premises. It is therefore ordered by the court that the American Trust and Savings Bank be and is hereby appointed receiver of all and singular the rights, credits, property and assets of said corporation upon his giving a bond herein with surety and conditions to be approved by the court in the penal sum of $10,000, and that he be thereupon invested with all the powers, rights, and duties of receivers in such behalf, and that said defendants and each of them deliver to said receiver all property of said copartnership in their joint and several possessions and that the exceptions to the report of said master to said report be reserved for future action by the court”.

It is from this order that the present appeal was taken. The record shows that on the day following its entry another order was entered appointing Bern-hard Loeff receiver in the place of the American Trust & Savings Bank “upon the same conditions and terms as per order entered the 20th day of August, 1907, and to give bond in the sum of $10,000 with a Surety Company bond.” The appeal bond signed by Moy Tong Koon as principal and by a surety recites the order appealed from as one “appointing a receiver for the property of the above bounden Moy Tong Koon”.

The bond of the receiver, Bernhard Loeff, is shown in the record, and recites that he has been appointed “receiver of all the property, equitable interests, things in action and effects of the defendant Moy Tong Hoi et al.”

It is unnecessary to discuss most of the matters found in the transcript of the record, the abstract and briefs in this case. That it is an appeal from an interlocutory order appointing a receiver pendente, lite seems almost lost sight of in the arguments. The receiver was improvidently appointed and the order must be reversed.

There is no sufficient reason even suggested for the appointment of a receiver anywhere in the record. Assuming that Hip Lung, alias Mong Tong Chew, was a partner in an unknown proportion in the firm of Hip Lung, Ting Kee & Company, and that his interest passed under an execution sale to- Staar—assuming even that the appellee’s position is correct that as the master found there was no sufficient evidence to show the amount of Hip Lung’s interest, it must be presumed to be one-third—all of them propositions open to question at least—there is nothing in all that of itself to entitle the complainant Staar to a receiver of the copartnership assets pendente lite. There was no showing of such a necessity in the allegations of the bill nor did the master find from the testimony and report any such necessity. The right of Staar in such a case, on a final decree even, was for an accounting and the collection and distribution of the assets perhaps, but not necessarily a receiver even then. The' suggestion that because the business is a Chinese one, and the books and papers of it are kept in the Chinese language, a receiver who, presumably, does not know Chinese should be appointed to seize the Chinese goods, books and papers pending the suit, because the complainant also is ignorant of Chinese, seems to us at least a non-sequitur. A surer way to ruin the business hardly seems conceivable. The only argument put forward to show the necessity of a receiver is, that in dealing with Chinese the complainant will never be sure of receiving his money from his individual debtor, Hip Lung, unless the entire assets and all the effects and the business of a copartnership, in which persons other than Hip Lung are also interested in an unknown proportion, are ruthlessly taken pending the accounting from their hands and put into those of a stranger, necessarily ignorant of the business, under the direction of a court presumably and necessarily equally so. That is not a sufficient reason. The rights of the other partners of Hip Lung, Ting Kee & Co. are as valuable in the eyes of the law and as much to be respected and preserved as those of the complainant.

That the order appointing a receiver was drafted in haste seems evident from its wording, as' shown by the words we have italicized. The actual words of appointment call Hip Lung, Ting Kee & Co. a “corporation”, for example.

Nor did the court proceed according to our construction at least of the Act of May 15, 1903, “concerning the appointment and discharge of receivers”.

That Act, recognizing the danger of damages from summary and often times improvident proceedings in the appointment of receivers, provides: “That before any receiver shall be appointed, the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages, including reasonable attorney’s fees, sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; Provided, that bond need not be required when for good cause shown and upon notice and full hearing the court is of the opinion that a receiver ought to be appointed without such bond”.

In construing this statute in Watson v. Cudney, 144 Ill. App. 624, we said: “To entitle appellee to the appointment of a receiver, he must, as a sine qua non to the enforcement of that right, give the bond required by the statute, unless it is the opinion of the court that a receiver ought to be appointed without bond, and then the court’s opinion must affirmatively appear in the order making the appointment. The statutory requirement in this regard cannot be dispensed with. It was evidently enacted for - the purpose of making liable the moving party in a receivership proceeding for such damages as might result from the improvidence of his act in bringing about a receivership where none should have been asked”.

There was no bond of the complainant required and none given in this case, although we think it most markedly a case where such a bond should have been furnished if a receiver was to be appointed. If the chancellor thought otherwise, he should have incorporated his finding to that effect in his order.

The emphasis of appellee’s argument seems’to be placed on the theory that Moy Tong Koon, who prayed the appeal from this order, had no right to do so because, as appellee claims, he was neither a party to the suit nor shown by the records to be prejudiced by the judgment. Persons not falling within one or the other of these classes, he cites authority to show, are not entitled to an appeal.

It is unnecessary to consider whether the testimony of Moy Tong Koon, given before the master through an interpreter, overcomes the implications of his answer in the cause, that the bill was not incorrect in charging him with being a partner in the business conducted under the name of Hip Lung, Ting Kee & Co., because, whether or not a partner and damaged by the order, he was “a party to the suit”.

Appellee says in his brief that Moy Tong Koon “butted in”, that the bill describes the defendants as brothers, and while “it is true that one of the brothers was named Moy Tong Gee alias Moy Tong Koon, that does not furnish an excuse for an outsider, who bears that name, to make himself a party, when he has no interest in the litigation”.

Certainly not, but the position that Moy Tong Koon, the appellant here, is “an outsider who bears that name”, is entirely unsustained and unsustainable. The only jurisdiction, shown in this case of any body as a defendant is derived from the answer filed in it for the appellant, “Moy Tong Koon sued as Moy Tong Gee”. It is true that a prior appearance by the same solicitors had been entered, which spoke of Moy Tong Koon “sued as Moy Tong Hoi”—an evident mistake, considering the pleadings together— but no ground for any pretense exists in the case that the appearance and answer were not for the same persons, and that person the second of the defendants named in the bill.

We think that before a receiver should have been appointed in any possible event, Hip Lung and Moy Tong Hoi should have been brought into court. The first was not made a party and no attempt to serve the second seems to have been made. If the Moy Tong Koon who answered and who appeals was not the Moy Tong Koon who was made a defendant, as counsel for appellee now contends, then the complainant has brought no defendant to his bill into court, nor attempted to do so, and yet has procured a receiver pendente lite to take possession of a large business.

The order of the Circuit Court appointing the receiver in this cause is reversed.

Reversed.


text:
    Andrew Burek, Appellee, v. Western Electric Company, Appellant.
    Gen. No. 14,092.
    1. Assignments of error—what waiver of action of court in denying new trial. Where the brief of counsel for appellant calls upon the Appellate Court either to reverse without remandment or to affirm, the Appellate Court will so affirm, notwithstanding it may be of opinion that the verdict is contrary to the weight of the evidence but not so as to justify reversal without remandment, the request being treated as a waiver of the assignment of error on the refusal of the lower court to grant a new trial.
    2. Appeals and errors—power to reverse without remandment. The Appellate Court when called upon may weigh the evidence and if there be a clear preponderance against the verdict and judgment, may reverse without remanding.
    3. Appeals and errors—when power to reverse without remanding exercised. It is only in extreme cases in the exercise of great care, that the Appellate Court will exercise its power to reverse without remanding.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Holt, Wheeler & Sidley, for appellant.
    L. A. Kapsa and Charles C. Spencer, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in this cause unfortunately lost the first joints of the two middle fingers of his left hand while working for the defendant running a drill press. He sued the defendant in the Circuit Court, alleging himself to be a youth of nineteen years (the evidence showed him to be even younger) at the time of the accident, and in one count of the declaration that the defendant, after setting him to work on the drill press, with which he was unacquainted, gave him improper and neglected to give him proper instructions in regard thereto, and in the second count that the defendant negligently permitted said drills and pulleys connected therewith “to be out of repair and carelessly furnished the plaintiff with a certain wire with which to clean a certain countersink drill which the plaintiff was then and there using, which wire was unsafe and improper for such use”.

On the trial the jury returned a verdict for $700 in favor of the plaintiff. The defendant moved for a new trial and in arrest of judgment, but its motions were overruled and judgment was entered on the verdict. From that judgment this appeal has been taken by the defendant. In giving the case to the jury the court instructed them that the plaintiff was not entitled to recover on the first count of his declaration.

In this court it has been assigned by the appellant for error that the court erred in rulings on evidence and in giving and refusing instructions, in overruling the defendant’s motion for a new trial and in arrest of judgment; that the evidence was variant from the declaration, and that the declaration did not support the judgment; that the verdict was contrary to the weight of the evidence, to all the evidence, and to the instructions, and, finally, that the court erred in refusing at the close of the plaintiff’s evidence, and again at the close of all the evidence, a peremptory instruction for the defendant.

At the conclusion of their argument in chief the counsel for appellant, however, say: “We submit that the evidence wholly failing to sustain' a single one of the charges of negligence brought against defendant, but on the contrary showing conclusively that the proximate cause of plaintiff’s injury was his own rash and voluntary act in looping the wire around his fingers, the trial court should have instructed the jury at the close of all the evidence as requested by the defendant, to find the defendant not guilty, and that this court should correct a manifest miscarriage of justice by reversing the judgment herein without remandment. Unless such order is entered we prefer to submit to one of affirmance

Of this the appellee argues that it is a practical waiver of all the assigned errors except that of refusing the peremptory instruction, and that all that therefore we have to consider is whether the plaintiff’s evidence, taken by itself, is sufficient to sustain a recovery.

This construction of their language appellant’s counsel repudiate, pointing out that the Supreme Court in many cases has held and that it is the firmly established law of the state, that an appellate court, when it determines that the facts were not correctly found by the lower court, may reverse a judgment of that court in favor of the plaintiff without remanding the case for another trial. In other words, the Appellate Court, even in cases tried by a jury, must weigh the evidence if requested to do so; and if there be a clear and manifest preponderance against the verdict and judgment, may reverse without remanding.

This is undoubtedly a correct statement of the law as laid down in Borg v. R. R. Co., 162 Ill. 348, and cases before and since, and the power and duty thus confided to the Appellate Court has been often exercised. The Supreme Court has-held too that such reversal without remandment is a bar to. a subsequent suit in the court of original jurisdiction on the same cause of action—a point for a long time in dispute. Larkins v. Terminal R. R. Assn., 221 Ill. 428.

Nevertheless, we must hold the language of the defendant’s argument in this cause, and the request implied in it, a waiver of that assignment of error which attacked the denial of the Circuit Court of a motion for a new trial. Otherwise we could give it no effect at all —a consummation obviously not to be wished. Questions on instructions, variance, and rulings on evidence, are thus brushed out of the way. Under the peculiar powers given us by the state of the law, however, in that regard, an assignment of error in this court that the verdict is against the weight of the evidence, is logically something more than a corollary or. subsidiary proposition to the assignment of error that a new trial was improperly refused below. To decide that a new trial should have been given leads naturally to the exercise of our power to give it. To reverse without remanding—as we may and must in' the exercise of our duty sometimes do—is not to give a new trial, but to cancel the results of the old one and forever bar the plaintiff from pursuing his supposed cause of action. This power is properly invoked when the record warrants it under the assignment of error that the verdict is contrary to the weight of the evidence. Therefore, as we have said, we are obliged to give to this assignment of error in the present case a wider effect than that of questioning the ruling of the court on the motion for a new trial.

But although the power and duty of the Appellate Court under the law thus to deny to a litigant both the result and the right of a jury trial of his cause (which is the effect of a reversal without remandment of a judgment based on the verdict of a jury) is unquestionable, the responsibility assumed in doing it is always carefully weighed by us.

When by the submission of a cause to the court without a jury, a jury has been waived in the court of primary jurisdiction, the statute is plain and the usage of the court accords therewith. We regard the waiver as made for this court as well as for the trial court, and give final judgment as we deem the law and facts require.

But when no waiver of a jury has been made, either express or implied, we are reluctant unless moved by strong considerations, finally to deprive a litigant of the opportunity to secure the judgment of a jury. Thus, although as pointed out by counsel for appellant in this case, we have been given the power to pass even on the credibility of witnesses, it is very unusual for us, when the evidence is conflicting and its weight depends on the relative credibility of witnesses who have appeared before a jury, to imply by reversal without remandment that we can judge better, by reading the printed report of the words of witnesses, of their veracity, that can the jurymen who have'seen them and heard them testify.

In the case at bar we have studied the testimony as it appears in the record carefully. It would be useless—a mere waste of time—to discuss it, considering the conclusions to which we have arrived, which are that the preponderance of the evidence is with the defendant, and that had we not been expressly requested not to do it, by what must be considered a waiver of the errors assigned so far as they would require that result, we should reverse the judgment and remand the case for another trial; but that it is not a case in which the judgment should be reversed without remandment.

While to us it seems improbable that this accident happened as the plaintiff says it did—without his having previously looped the wire around his fingers —yet we are unwilling to say as a matter of law that it was impossible. We are unwilling, as a matter of law, to say that a defective condition of the machine had nothing to do with the catching of the plaintiff’s fingers, although we think it improbable that it did. We are unwilling to say, as a matter of law, that the wire furnished the plaintiff, considering its size, his age and experience and the exceedingly rapid motions of the machine, was a safe and proper instrument, although we are inclined to think it was. In fine, we are unwilling in this case to take forever from the plaintiff the opportunity to present his contentions on his alleged contributory negligence and assumption of risk, to a jury.

Therefore the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    H. W. Kessler et al., Appellees, v. Mills Novelty Company, Appellant.
    Gen. No. 14,097.

      Verdict—when not disturbed. A verdict not clearly against the preponderance of the' evidence and which appears to have been rendered without the intervention of substantial error, will not be reversed upon review.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Statement by the Court. This is an appeal from a judgment in assumpsit in favor of the appellees, plaintiffs below, against the appellant, defendant below, for $3,899.25. The judgment was based on the verdict of a jury, to which the claim of the plaintiff had been submitted under full instructions of • the court after a motion had been denied for a peremptory instruction for the defendant. After the verdict a motion for a new trial and a motion in arrest of judgment made by the defendant were denied. This appeal followed a judgment on the verdict. In this court the assignments of error made and argued are, that the verdict is against the weight of the evidence; that the trial judge erred in refusing certain instructions requested by the defendant, and in modifying others so requested; that he also erred in his rulings on the admission of evidence, and in making in the presence of the jury certain remarks and asking certain questions of a witness.
    Adler & Lederer, for appellant.
    Whitman & Horner, for appellees.
   Mr. Justice Brown

delivered the opinion of the court.

This suit was brought by Kessler and Salomon, the appellees, who do business under the name of Boyal Metal Manufacturing Company, against the Mills Novelty Company, a corporation, the appellant, for a breach of this contract:

‘ ‘ Chicago, Illinois, April, 24, 1901.

We hereby agree to furnish and deliver to their factory, Mills Novelty Company, 23 So. Jefferson St., Chicago, Ills., Five Thousand (5,000) Iron Stands, 40 ins. high, made from 3/16 x 5/8 and 1/8 x 5/8 iron, style and shape as per sample submitted, at $1.50 each (No. 1).

Five Thousand (5,000) Iron Stands, 36 ins. high, made from 3/16 x 5/8 and 1/8 x 5/8 iron, style and shape as per sample submitted, the size of the stand to be made to fit base casting for our Orbit Jr. Peanut Machine, furnish by the Mills Novelty Co. at $1.25 each (No. 2).

We agree to deliver to said Company, Mills Novelty Co., one thousand (1,000) stands per week. (The above prices are net.)

Royal Metal Mfg. Co., Jos. Salomon.

We accept above price, and agree to receive all stands which are satisfactory in the above contract.

Mills Novelty Co., per Kellogg.”

The breach complained of in the declaration- of the plaintiff was that defendant, after accepting and paying for 3794 of the stands, made according to the shape and style of sample No. 1, and 1007 of said stands made according to the shape and style of sample No. 2, and although the plaintiffs were at all times ready and willing to make, furnish and deliver to defendant the balance of said stands, to-wit: 1206 of No. 1 and 3993 of No. 2, according to said contract, and had offered to perform said contract, by its acts prevented and delayed the manufacture and delivery of the balanee of said stands, according to the terms of said contract, and notified plaintiffs that it would not accept or receive any of the balance of said stands.

The defendant corporation pleaded (1) the general issue; (2) that the iron stands in plaintiff’s declaration as mentioned as delivered to this defendant were not made according to the shape and style of said samples 1 and 2, and were not suited for the uses for which the plaintiffs knew the defendant intended them, nor for any use whatever, and were not satisfactory to the defendant; and that the said stands so delivered to the defendant and paid for by it, were delivered to the defendant boxed up and ready for shipment, and the defendant assumed that said stands so delivered were of the make and style of the samples, etc., and shipped them out to customers; that many of them have been returned as totally unfitted for use, and have become a total loss to the defendant, as the customers refused to pay for the same and the defendant has been unable to sell or use them; and (3) a plea of set-off based substantially on the same matters and averments as are made in the second plea, particularly averring, however, that the stands received by the defendant were not made to fit the base castings for Orbit Jr. Peanut machine; by reason of all which, the defendant alleges itself to have been damaged to the extent of $10,000, which it offers to set off against the claim of the plaintiffs.

The plaintiffs replied, joining issue, and the jury found the issues for the plaintiff and rendered a verdict for the full amount claimed, which was the difference, as appeared by the evidence, between the cost to the plaintiffs of 5199 stands and the contract price which defendant agreed to pay for them.

As it is urged that the verdict is against the weight of the evidence and should be set aside for that reason, we think it well to set out the documentary evidence which is not in dispute in connection with the dates of the transactions involved.

The contract was made April 24, 1901. Before that time the Royal Metal Manufacturing Company had made 1000 stands for the Mills Novelty Co., of like style as those mentioned in the contract for $10,000. They had been accepted and paid for. Immediately after the execution of the contract the plaintiffs began to manufacture the stands provided for therein. Plaintiffs from time to time delivered 3794 of stands No. 1 and 1007 of stands No. 2 to defendant, and received payment therefor, according to the terms of the contract; the stands, in an unassembled or “knockdown” condition being received by the stock-keeper of the Mills Novelty Company and receipted for. These deliveries occurred in May, June, July, August and September, 1901. In October, 1901, the plaintiffs received the two following letters from the Mills Novelty Company:

“Oct. 9, 1901.

Royal Metal Mfg. Co., City:

Gentlemen: Please do not deliver more Peanut Machine stands to us until further advised, as we have all we can take care of at the present time.. Mr. Kellogg, our purchasing agent, is sick today, and we will ask him to take the matter of further deliveries up with you upon his return to the office.

Very truly yours,

Mills Novelty Co.,

F. M. Tracey,

Gen. Mgr.”

“Oct. 17th, 1901.

Royal Metal Works,

32 W. Washington St., Chicago, Ill.

Gentlemen:—Owing to an overstock in metal stands which you have made for us on contract, we are desirous of canceling balance' of same. We would like very much to have your Mr. Salomon call at his earliest convenience to settle this matter up.

Trusting that you will thoroughly understand our position in this matter; and that satisfactory arrangements will he made, we remain,

Very truly yours Mills Novelty Co.,

N. P. Kellogg.”

Evidently after further correspondence on the matter, in August, 1903, about two months before this suit was brought, the plaintiffs received the following letter:

“Aug. 14, 1903.

Royal Metal Mfg. Co.,

34 W. Washington St., City:

Gentlemen : Tour favor of the 14th at hand and contents noted. In reply will say we do not understand what you mean when you say we have never disputed your claim that we gave you ah order for ten thousand stands. The writer personally knows that the order was never for more than five thousand, and has always doubted that it was for even that many, as it would take us five years or more to g’et rid of them. If you can show us an order on our stationery, upon which all orders are made, signed by the purchasing-agent and acknowledged by the manager, (all orders for that amount of goods must be signed by the manager as per our letter to you of June 22, 1901), you will have no trouble in getting whatever is coming to you. We think it will not be necessary for us to say anything further in regard to this matter.

Very truly yours,

Mills Novelty Co.,

H. S. Mills, Prest.”

We do not know that the plaintiffs did or could show the defendant an order on the Mills Co.’s “stationery”, nor one “acknowledged by the manager” —whatever that may mean—but they certainly were able to show a contract to receive and pay for 10,000 stands, signed by the purchasing agent, and the binding force and validity of which is not denied by the defendant.

It would seem therefore that in October, 1901, and August, 1903, the Mills Novelty Company, took different ground, in their attempt to avoid payment and escape liability, from, that which they occupied in the pleadings and in the trial of this cause.

It is not strange, therefore, that the trial judge asked, apparently in some surprise, when a witness upon the stand testified as to dissatisfaction with the stands which were received and paid for, whether there could be found anything in these letters hinting at any such ground of escape from the contract. These questions are vigorously objected to by the appellant as “prejudicial remarks of the judge” which ought to reverse the judgment. We do not think so. Perhaps it would have been as well not to make them, but it is rather hard to expect a judge to exhibit no surprise when things really surprising transpire in the evidence.

With this background, as it were, of letters from the principal officers of the company which, to the ordinary mind, cannot but seem strikingly inconsistent with the theory that the defendant had found the stands received and paid for by them imperfect, and for that reason had declined to take the remainder, it is not strange that the conflicting testimony of the witnesses was not viewed by the jury as counsel for appellant view it. It is needless for us to discuss it.

The testimony for the plaintiff was amply sufficient to support the verdict, and the jury heard and saw those witnesses who contradicted each other. The jury also saw sample stands, which are not before us. There were ten selected at random and set up in the presence of the jury. They were explained by the witness by indications which we have no means of following. We have therefore no justification whatever for disturbing the results arrived at by the jury. Indeed we can say, after a reading of the evidence as it appears in print, that we should have been astonished had the verdict been different. As we so hold, the rule of practice relied on by the defendant’s counsel, that in a close case, even slight errors of the trial court should reverse, loses in this case its supposed force.

We do not think this case a close one, nor do we think that the rulings on evidence or on instructions by the learned trial judge affected the result. We find in them no reversible error. Some of the rulings on evidence may have been in themselves doubtful, but not every error of this sort will reverse.

We do not think the instructions as asked or as modified were applicable to this case. The stands which were delivered were received, paid for and appropriated to the use of the defendant. We do not think the evidence about them in the record is any more applicable to the refusal of the defendant to go on and complete its contract, than it would have been to a refusal to pay the purchase price. America Theatre Co. v. Siegel, Cooper & Co., 221 Ill. 145.

The modified instructions as correctly stated the law as applicable to this case as the ones tendered did. But we doubt if they had any proper application to the issues of this case.

We are convinced, on the whole record, that there was no substantial meritorious defense to this suit, and that the verdict of the jury was correct, and the judgment based on it without error. It is accordingly affirmed.

Affirmed.