text:
    Michael Kitza, Appellant, v. Oregon Short Line Railroad Company, Appellee.
    Gen. No. 16,602.
    Common carriers—effect of failure to produce contract. If a written contract is shown to have been entered into between the shipper and the carrier the shipper cannot maintain an action against the carrier with respect to any matter touching the transaction if he fails to introduce the contract in evidence.
    Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Charles A. Butler, for appellant.
    Davis & Rankin, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought by appellant, Michael Kitza, against the Oregon Short Line Railroad Company in the Municipal Court of Chicago, to recover damages caused by the negligence of the railroad company in failing to safely carry sheep from Ketchum, Idaho, to Chicago, Illinois. The declaration consists of six counts. All the counts, except the fourth, declare on a verbal or common law contract of shipment. The fourth count declares upon a written agreement between the plaintiff and defendant.

At the close of the evidence the trial court instructed the jury to return a verdict in favor of the defendant, and judgment was entered upon the verdict so returned. Appellant, plaintiff below, prosecutes this appeal to reverse the judgment.

Several grounds are urged for the reversal of the judgment. We deem it necessary to the decision of the case, as presented by the record, to consider and discuss only one feature of the case; namely that the contract between the parties was a written contract and it was not put in evidence, but recovery was sought upon an alleged agreement shown not to be the final contract which was entered into between the parties.

From the testimony of the appellant himself it appears that he told the agent at Ketchum, Idaho, after the sheep had been delivered to the carrier at that point: “Well, we are shipping to Chicago. ‘Well, all right, ’ he says. He made a contract out. He handed it to me and I signed it. * * * Yes, I looked it over. Q.' Did you read it? A. Yes.” The plaintiff further testifies that he kept his contract until he reached Omaha, where he exchanged it for a return ticket. The question is thus presented by the record whether a plaintiff may recover upon an oral or common law contract, consisting of words spoken at the time of shipment, when a written contract was entered into between the parties at the time of the shipment and before the freight started upon its route. In our opinion there can be no such recovery. The law is well settled that where oral negotiations or conversations are subsequently embodied in a written contract, the written contract supersedes the oral one, and is the contract, and the only contract. There cannot be an oral contract and a written contract subsisting between the parties where, subsequent to the conversation or negotiations, the contract is embodied in writing. This is the ordinary rule, and it applies in cases of shippers and carriers as well as between other parties. Hutchinson, Carriers, 3 Ed., Secs. 167, 168, 171; 6 Cyc., pp. 416, 420, 427; Richmond & D. R. R. Co. v. Shomo, 90 Ga. 496.

The burden of proof was upon appellant to prove the contract upon which the shipment was made. This he failed to do, and he cannot recover upon a contract which did not exist. The plaintiff availed himself of the benefits of the written contract, which he says was entered into, and yet he occupied the attitude in the trial court of seeking to avoid its terms and conditions by basing his case upon an oral contract of shipment.

It is urged that there is no evidence of a written contract,—whether the paper which the plaintiff signed was a contract or otherwise,—and that the court cannot assume that the paper signed by the plaintiff was a contract. The answer to that contention is that the court was not required and this court is not required to make any such assumption. The plaintiff himself proved by his testimony that a written contract was entered into; that he read the contract and signed it. For the purpose of this case, therefore, it is shown without controversy that a written contract was entered into for the shipment of the sheep in question at the initial point of shipment and before the actual transit of the shipment was commenced. It appears from the evidence of the plaintiff that he had been engaged in the sheep business in Idaho for twenty-seven years, during which time he had shipped mainly to the Chicago market; and that he accompanied one or two shipments a year to Chicago over the route of the defendant company; and the plain inference is that he knew clearly the terms and conditions of the contract. He states positively that he read it. There is, therefore, no question in the case as to any illegal provisions in the contract of shipment for the contract is not before the court. The record is silent as to its terms and provisions. We think the evidence shows clearly the knowledge and assent of the plaintiff to this written contract, and whatever right of recovery he may have, if any, must be based, so far as this case is concerned, upon the terms and provisions of the contract which subsisted between the parties for the shipment of the stock in question.

We are of the opinion that under the facts and circumstances disclosed by the evidence in this ease, a common carrier may require a contract of shipment to he in writing. It appears that the stock was to be transported beyond the terminus of the defendant company, and required the stock to be delivered to a connecting line of transportation, and we see no reason why it would not be perfectly proper and legal for the defendant to require the contract of shipment to be in writing, especially in view of the fact that the Interstate Commerce law requires the carrier to issue a bill of lading or receipt. It has been expressly held that a carrier may require a written contract. Texas Mexican Ry. Co. v. Gallagher, 70 S. W. 97; Ft. Worth & D. C. Ry. Co. v. Wright, 58 S. W. 846; Chicago, Rock Island & Pacific Ry. Co. v. Colby, 69 Neb. 572.

The evidence in this case shows that it was customary for the defendant company to require a written contract in every instance, and this custom was of long standing and was well known to plaintiff.

The evidence shows very clearly, as we have stated above, that the contract between the parties was not offered in evidence. Plaintiff could not recover upon a contract which did not exist; and the court did not err in directing a verdict for the defendant. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    John Pfeifer, Defendant in Error, v. Eastern Metal Works, Plaintiff in Error.
    Gen. No. 16,630.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Matthew J. Huss, for plaintiff in error.
    Henry Rathbone, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Defendant in error, John Pfeifer, sued the Eastern Metal Works, plaintiff in error, in the Superior Court of Cook county to recover damages for negligence whereby the plaintiff’s left eye was injured and the sight thereof destroyed. The trial in the court below resulted in a verdict awarding the defendant in error damages in the sum of $1,500 and judgment was entered upon the verdict.

There is no substantial controversy as to the facts in the case. It appears from the record that the defendant in error had been employed by the plaintiff in error-for upwards of two years prior to May 29, 1908, as a helper and afterwards on outside work. The declaration alleges that the defendant in error was a structural iron worker and blacksmith. The defendant was engaged in constructing, erecting and in adjusting iron appliances. On May 28, 1908, a foreman of the plaintiff in error directed the defendant in error to go with a man named Petrowsky to a building under construction at Sixty-third street and Center avenue, Chicago, to finish some fire escapes. The defendant in error, as above stated, was a blacksmith or machinist, and Petrowsky was a painter and also a helper to blacksmiths and machinists in plaintiff in error’s shop. At the time of giving the order above mentioned the foreman gave the defendant in error five or six chisels which he put in a satchel along with other tools of his own. Taking these tools with him, defendant in error worked on the fire escape for a day and a half before he was injured. On May 29, 1908, at about one o’clock, while the plaintiff was at work upon the fire escape in compliance with the orders of the foreman a chisel, which the foreman had given him, broke and a particle of steel or iron flew into defendant in error’s eye and destroyed it: At the time of the accident the defendant in error was on the second platform of the fire escape. The defendant in error testified, that just before he got injured he took up a new chisel and used it,—a chisel which he had not used before the accident,—and at the very first stroke upon the chisel it broke somewhere about an inch or an inch and a half from the point, and the piece of steel entered the eye of the defendant in error.

It is urged on behalf of the plaintiff in error that there is no evidence in the record justifying the verdict and judgment, and the court should therefore have directed a verdict for the defendant, plaintiff in error. We cannot agree with the contention. We think the jury were warranted from the evidence in finding that a particle from the chisel flew into defendant in error’s eye. The jury so found in their answers to the special interrogatories submitted to them, and we see no recognized legal ground for disturbing the verdict.

It is also urged that the court erred in admitting the testimony of the witness Prevail. The testimony of this witness was simply to the effect that when metal fuses completely it meets together leaving no separation. The opinion of the witness was asked as to the cause of the breaking of the chisel, assuming that it broke an inch or so, more or less, from the point and that the break, immediately after it occurred showed that it was of a glassy or scaly or smooth appearance, and he testified that the break was caused by improper forging; that it was a poor piece of workmanship; that it was improperly forged. The evidence in the case showed that the chisel in question was manufactured by the plaintiff in error. We are of the opinion that there was no material error in admitting the testimony of the witness.

In our opinion the facts shown in evidence required the case to be submitted to the jury, and we cannot say that the verdict is contrary to the weight of the evidence. Illinois Central Railroad Co. v. Sporleder, 199 Ill. 184. The judgment is affirmed.

Affirmed.


text:
    B. A. Railton Company, Plaintiff in Error, v. Louis B. Huntington et al., Defendants in Error.
    Gen. No. 16,665.

      Partnership—when not established. Held, under the evidence, that the partnership alleged in this ease was not established.
    Assumpsit. Error to the Municipal Court of Chicagothe Hon. Stephen A. Poster, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Harris, Dodds & Brown, for plaintiff in error.
    McCabe, Cloyes & Kull, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, B. A. Railton Company, a corporation, brought an action in assumpsit in the Municipal Court of Chicago, against defendants in error, Louis B. Huntington and Louis Matsen, as co-partners, doing-business as Huntington & Matsen, for goods sold and delivered to them, amounting- to the sum of $160.87. Louis Matsen filed a plea of non-joint liability. There was no controversy on the trial as to the amount due the plaintiff. The cause was tried before the court without a jury, and resulted in a finding- and judgment in favor of the defendants in error. This writ of error is prosecuted to reverse the judgment.

It appears from the evidence of Louis B. Huntington, one of the defendants in error, who was called as a witness for the plaintiff in error, under section 33 of the Municipal Court act, that Louis Matsen told the witness that he wished to get his brother, Anton J. Matsen, started in some other business than the one in which he was engaged. Anton J. Matsen, it appears, was a moulder by trade and his brother, Louis Matsen, defendant in error, wished to help him to get established in a business which did not involve the heavy and hard work that his brother was compelled to do; and it was agreed that if Huntington would take the brother into partnership with him Louis Matsen would advance money to enable him to get started with plaintiff in the bakery business. It was accordingly arranged that Huntington was to proceed and manage the business, and the defendant in error, Matsen, was to advance money to the firm for his brother. The business was accordingly started, and the defendant in error advanced money and subsequently took a chattel mortgage and note for the money which he advanced.

The question presented is whether the evidence established a joint liability of the defendants in error as partners for the goods sold by the plaintiff in error. In our opinion the evidence does not show any co-partnership between Louis B. Huntington and Louis Mat-sen, the defendant in error; nor does it show any joint liability for the claim to the plaintiff in error for the goods sold by the plaintiff in error. The evidence in the record is perfectly consistent with the theory of the relation of the parties shown by the testimony of the defendants in error. We are of the opinion that the finding of the Municipal Court is in accordance with the facts shown by the record, and expressed the only legal conclusion that can be drawn from the evidence in the case. The judgment is, therefore, affirmed.

Affirmed.


text:
    Buyers Index Publishing Company, Plaintiff in Error, v. American Shoe Polish Company, Defendant in Error.
    Gen. No. 16,692.
    1. Municipal court—when bill of exceptions not stricken. If the bill of exceptions and stenographic transcript is tendered in apt time and is subsequently signed by the Court and ordered filed nunc pro tunc as of the date when it was tendered the act is substantially complied with.
    2. Contracts—when conversations prior to execution incompetent. Where the parties have deliberately put their engagements in writing in such terms as to import a legal obligation without uncertainty it is conclusively presumed that the whole engagement was reduced to writing.
    3. Contracts—what not representation authorising rescission. A mere promise to do something in the future is not a representation of fact such as will permit the cancellation of a contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. H. Hinebaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 19, 1912.
    Cratty Bros. and Jarvis & Hudson, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error instituted a fourth class case in the Municipal Court of Chicago in the nature of a suit in assumpsit. No formal pleadings were filed, but the statement of claim stated that it was for moneys due for advertising in “The Buyers Index” for one year commencing January, 1907, in accordance with a contract entered into October 3, 1906, and accepted by the plaintiff on October 10, 1906. A copy of the contract was appended to the additional statement of claim filed October 1, 1908, and reads as follows:

“Chicago, Ill., Date, October 3d, 1906.

Buyers Index Publishing Company, 59 Pearl Street, New York.

G-entlemen:

Please insert our illustration, descriptions, etc., to occupy in advertising section only of the Buyers Index (copyrighted) (published monthly in alternate English and Spanish editions) 1-3 page 6, 1-6 page for six issues, English and Spanish editions, for full year, commencing Jan., 1907—1-6 page 6 issues.

1. We will within ten days furnish to your order, matter, cuts, etc., subject to your approval, for printing same.

2. It is understood that we will, within 5 days from date of receipt thereof, return to you corrected the proof which you are to submit to us before issue. If proof is not returned you are to conclude that it is satisfactory to us.' Copies of Index containing our advertisement to -be mailed to us free of expense.

3. It is clearly understood that the conditions above and herein set forth embody all agreements and understandings concerning this present contract, as made or had with said Buyers Index Publishing Company, its agents or employes acting in its behalf, either written or verbal.

4. In consideration of the above we agree to pay to your order $325.00 Three Hundred and Twenty-five Dollars, payable one quarter said amount cash at date of first issue in which our advertisement appears, balance quarterly thereafter.

Full amount, $325.00.

The American Shoe Polish Co.,

Per Chas. L. J. Swain,

Secy. & Manager.

Erwin De Montpelier,

Representative Buyers Index.

This contract shall not be valid until accepted by Buyers Index Publishing Co.

The services of the Bureau of Trade Intelligence are at the disposal of the advertiser during the term of this contract. ’ ’

Endorsed. “Accepted Oct. 10th, 1906, Buyers Index Publishing Co., L. McMillen, Treas.”

And also endorsed: “Manufacturers are expected to furnish matter, electros, etc., for printing at least 15 days in advance of pending issue. The Index is published the 15th of every month. ’ ’

It appears from the record that the foregoing written order or contract was on October 3, 1906, after negotiations with the plaintiff in error’s agent, signed by the defendant at Chicago, and sent to plaintiff in error at New York where it was signed by the plaintiff" in error.

The defendant in error’s advertisement was not prepared in time for the January issue of “The Buyers Index,” but was sent on by the defendant in error in February, 1907, with the following letter:

"Chicago, Feby. 16,1907.

Buyers Index,

59 Pearl St., New York.

Gentlemen:—We return herewith ad. which evidently will appear in the February issue. We cannot understand why it was not attended to so we could get it in the January issue as originally contracted for.

We should also be pleased to hear from Mr. Montpelier along .those lines suggested by him in reference to names, etc., of live dealers and handlers in our line in foreign countries.

Very truly yours,

The American Shoe Polish Co.”

On February 18th, plaintiff in error acknowledged the receipt of the proof, and enclosed to the defendant in error lists of dealers in Cuba, San Domingo, Mexico, Germany and the West Indies, and promised more lists, which were sent later. The advertisement was inserted in the February issue.

On March 5, 1906, defendant in error wrote plaintiff in error again, enclosing corrected proof of the advertisement, stating it had no objection to running the enclosed advertisement in the March issue. It called attention to the fact that it had not yet seen the publication containing the advertisement, and asked the plaintiff in error to insert the advertisement and cancel the balance of the contract. The missing publication had in fact been sent to the defendant in error, but duplicates were at once mailed to it and the advertisement was inserted in the March issue.

Plaintiff in error declined to cancel the contract and asked for reasons for the request, and inserted the advertisement in alternate English and Spanish for a full year, and has been paid nothing whatever. The plaintiff in error also repeatedly sent lists of names of foreign dealers and all the numbers of the Index containing the advertisement of the defendant in error, and fully performed the contract.

The court upon hearing of the case, before the court without a jury, found in favor of the plaintiff in error for the amount of $50 and costs. Motion for a new trial was overruled, and judgment was entered in favor of plaintiff in error on the finding. Plaintiff in error, being dissatisfied with the judgment, seeks by this writ of error to reverse the same.

A motion was interposed in this court and reserved to the decision of the case, to strike the bill of exceptions and stenographic transcript of evidence from the record, and to affirm the judgment of the Municipal Court. It appears from the record that the bill of exceptions and stenographic report was tendered to the judge for signature June 20, 1910, within the extension of time made for that purpose by an order of the court entered within thirty days after the judgment was rendered. The judge, before whom the case was tried, noted upon the document which was tendered to him the date, and on July 5,1910, it was signed and ordered filed nunc pro tunc as of the date, when it was tendered to the judge. This was a substantial compliance with the terms of the Municipal Court Act as construed by our Supreme Court, and the motion to strike is denied.

Upon the hearing it appeared that the contract was read by the manager of the defendant in error before he signed it. He testified: “I recall signing that contract. There is no question about it. That is my signature. * * * I read this contract before I signed it.” It clearly appears therefore that the contract of the parties was reduced to writing and was signed by the defendant in error, after it had been read by its manager.

The court, however, permitted testimony as to what transpired between the parties before the signing of the contract. Mr. Swain, the manager of the defendant in error, was permitted to and testified over objections as follows:

“ Q. At the time you met Mr. Montpelier in October, 1906, and before the signing of the- contract, did you have any conversation with him? A. I did.

Q. What did he say? A. He went into details as to what he would do for us. He promised to secure a list of names of good live dealers who handled our line of shoe polish in the various countries. I asked for the South American countries in particular. * * * They would furnish us with the necessary information to prepare the advertisement. * * * That he would supply us with the necessary information and lists. He did not come to see us after the signing of the contract.

Q. Did you rely for the value of the advertisement on the circulation that Mr. Montpelier represented his paper had in South America? A. We did.

Q. Was the matter of change of advertisement each month discussed with Mr. Montpelier? A. It was extensively. * * * He took our catalogue, and suggested that he would submit at different times whatever matter would go with the different cuts.”

In our opinion the admission of this testimony was erroneous. Where the parties have deliberately put their engagements in writing in such terms as to import a legal obligation without uncertainty, it is conclusively presumed that the whole engagement was reduced to writing. Weaver v. Fries, 85 Ill. 356; Union Special Sewing Machine Company v. Lockwood, 110 Ill. App. 387; Seitz v. Brewers Refrigerating Mach. Co., 141 U. S. 510.

The preliminary negotiations are merged in a later written contract. If they are not embodied in the written contract, they are conclusively presumed to have been abandoned. Boylan v. Cameron, 126 Ill. App. 432.

It appears from the record that oral promises were made by the agent of the plaintiff in error, after the first two issues of the publication had been made. On June 20th, plaintiff in error wrote the defendant in error, stating that it knew nothing of the oral promises alluded to, and had repeatedly asked for a detailed statement of such promises with a view to granting anything within reason, though it was not named in the contract. These oral promises were no part of the contract,, and the failure to fulfill them, under the circumstances disclosed in the record, constitute no defense to the action. A mere promise to do something in the future is not a representation of fact, such as will permit the cancellation of a contract. The promises or representations not contained in the written contract were not admissible, and should not have been admitted in evidence.

As above indicated, the advertisement was to commence with the January issue, but the matter for such advertisement was not furnished by the defendant in error in time for that issue; and the failure to publish the advertisement in January was expressly waived by the defendant. Where a party to a contract permits and directs the other party to proceed with the work, and accepts performance after the day when it was strictly due under the terms of the contract, he thereby waives the delay. In our opinion the record shows that the plaintiff in error fulfilled the provisions of the contract on its part to be performed, and there is no ground shown in the record for the judgment entered by the court. The admission of evidence of negotiations between the parties prior to the signing of the contract, and of subsequent promises by the agent was erroneous as indicated above; and there is no basis in the evidence for the finding. The contract was an entire contract and called for the payment of $325 for the advertising; one fourth of which was to be paid at the date of the first issue in which the defendant in error’s advertisement appeared, and the balance quarterly thereafter during the year.

We think the finding of the court is contrary to the evidence. It must have been based on a misconception of the law applicable to the case. The court erred in not granting a new trial, and the judgment is erroneous. Judgment is reversed, and the cause is remanded for a new trial.

Reversed and remanded.


text:
    J. C. Harlow et al., Plaintiffs in Error, v. Jacob Kulik, Defendant in Error.
    Gen. No. 16,720.
    1. Landlord and tenant—when promise to repair nudum pactum. If the lease between the landlord and tenant relieves the landlord from all obligation to repair, a promise to repair by the landlord without consideration is of no force and effect.
    2. Landlord and tenant—when damage resulting from disrepair of roof cannot he recovered. A tenant cannot recover of his landlord if injury to his property results from the disrepair of the roof of the premises demised, such roof being a part of such premises, and the lease between the parties recites that the tenant had received the premises in good repair, and releases the landlord from any such damage occurring from the cause in question.
    3. Landlord and tenant—when occupant under lease acquires not rights. The assignee of a lessee who is in possession without the consent of the landlord and whom the landlord has in no way recognized is in no position successfully to maintain an action against the landlord for damages resulting to his property through the defective condition of the demised premises.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    George M. Stevens, for plaintiffs in error.
    Royal W. Irwin and Frank W. Koraleski, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

J. C. Harlow and Bobert Stockmar, co-partners, plaintiffs in error, brought a suit in the Municipal Court of Chicago, against Jacob Kulik, defendant in error, to recover damages caused by the negligence of the defendant in error in failing to repair and keep in repair premises which he owned in the city of Chicago, and by reason of the want of repair rain and water from the roof of the premises came through the rear part of the premises occupied by plaintiffs in error, and damaged a piano and fixtures, the property of the plaintiffs in error.

Oh the trial of the action the court ruled out all the evidence offered by the plaintiffs to prove their cause of action, and directed the jury to find a verdict for the defendant. A judgment was entered upon the directed verdict. This writ of error is prosecuted by the plaintiffs in error to reverse the judgment.

It appears from the record that during the summer of 1909 plaintiffs in error owned and operated a theatre in a bililding known as No. 196 and 198 Sheffield avenue, Chicago, which premises were owned by the defendant in error. The premises consisted of a building extending from the street in front back to an alley. The front of the building, from the street running back about half the length of the building, was three stories high, the first floor being used as a theatre by the plaintiffs in error, and the second and third floors being used as flats and rented by the owner to private families. The rear part of the building is only two stories in height, and is used as a part of the theatre, the entire first floor in front under the flats together with the rear half of the building being fitted up for that purpose.

It appeared that on the 12th day of November, 1908, the defendant in error leased the theatre by written lease to the Double Whirl Manufacturing Company for the term of five years and one month from December 1, 1908, and that plaintiffs in error were occupying the theatre under and by virtue of an assignment of the lease to them, the defendant in error having never assented to the .assignment.

In the month of August, 1909, the roof over the rear part of the theatre and back of the flats was out of repair, and rain and water from the roof of the front flats came through the roof over the rear part of the theatre and destroyed the decorations therein and ruined the piano and other furniture. It is claimed that the property of the plaintiffs in error was damaged to the amount of $90 or $100, and that the business of the plaintiffs was damaged to the amount of about $43 a week.

The contention of the plaintiffs in error in the trial court was that the defendant in error had possession and control of the roof, and that it was Ms duty to keep it in repair. They further contend that he promised the plaintiffs in error that he would repair the roof and did attempt to repair it, but that the repairs were done in such a negligent manner that the leak was made worse instead of being repaired.

In answer to this contention of plaintiffs in error on the trial the defendant in error showed that by his lease to the Double Whirl Manufacturing Company, under which these plaintiffs in error claimed to have possession of the theatre, the premises described in the lease were all the first floor store from street to alley and all space in rear flats above said first floor of the building situate and known as No. 196-198 Sheffield avenue. As to the first charge of negligence made in the complaint, namely that the defendant in error-was negligent in the use of the roof, there was no evidence to support it, for the roof was a part of the premises described in the lease, and there was no evidence in the record showing that the defendant in error used the roof at all; the only evidence as to the use of the roof was that certain tenants used the roof over the theatre for the purpose of drying clothes and as a place to dump thing’s. It is clear that the roof was a part of the demised premises, and that the defendant in error had no control over it. As to the second charge of negligence,—that the defendant promised to make certain repairs on the roof and failed to perform his agreements in that respect, and that in making the repairs the repairs were carelessly done,-—• turning again to the lease under which the plaintiffs in error occupied the premises we find a clause to the effect that the lessee covenanted that he had examined the premises and knew the condition of the same, and that he received the same in good order and repair; and a further clause provides that the owner should not be liable for any damages occasioned by any failure to keep the premises in repair, nor for damages occasioned by water, snow or ice being upon or coming through the roof, nor for the neglect of co-tenants. It appears, therefore, that by the very terms of the lease under which the plaintiffs in error occupied the theatre, the plaintiffs in error knew the condition of the premises and received the same in good order and repair, and that they covenanted that the owner was not liable for any damages occasioned by failure to keep the premises in repair, nor for damages occasioned by water, snow or ice being upon or coming through the roof. If, with a subsisting lease of this kind between the parties, the defendant in error promised the plaintiffs in error to make repairs on the roof that promise was a mere nudum pactum and of no force and effect. Blake v. Ranous, 25 Ill. App. 486.

The case then presents a situation where a roof which had been included in the lease was out of repair, and by reason of its being out of repair damage was done to plaintiffs’ property; but by the very covenants in the lease the plaintiffs in error had received the premises in good order and repair and had released the defendant in error from the damages claimed. We are of the opinion that no recovery can be had by the plaintiffs in error against the defendant in error for the damages sued for, upon the facts shown in the record.

A further contention is made by the defendant in error,—that the plaintiffs in error had no right in the premises at all, for the reason that the lease was made by the defendant in error to the Double Whirl Manufacturing Company, and by clause four of the lease it was provided that the lessee should not assign the lease without the written consent of the lessor. No consent of the lessor to the assignment of the lease to plaintiffs in error was shown, and no right was shown in plaintiffs in error to the possession of the theatre under the lease,—except that the plaintiffs in error were the assignees of the Double Whirl Manufacturing Company, which had no right to make an assignment without the written consent of the defendant in error. The testimony bearing upon this feature of the case is that the defendant in error never recognized the plaintiffs in error in any wise as his tenants, but always made his receipts for rent run to the Double Whirl Manufacturing Company. We think that the plaintiffs in error could obtain no rights under the lease without first obtaining the written consent of the defendant in error, and inasmuch as they had not obtained such consent, they had no rights under the lease.

In our opinion, the finding and judgment of the Municipal Court was correct and the judgment is affirmed. '

Affirmed.


text:
    S. T. Fish, Defendant in Error, v. Pere Marquette Railroad Company, Plaintiff in Error.
    Gen. No. 16,734.
    Common carriers—when liability ceases. If a carrier delivers the property at the point of destination to another carrier at the direction of the consignee its liability is terminated.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed April 19, 1912.
    Charles T. Schwarz, for plaintiff in error; T. R. Beman and M. L. Bell, of counsel.
    Charles A. Butler, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, the Pere Marquette Eailroad Company, prosecutes this writ of error against S. T. Fish, defendant in error, to reverse a judgment of the Municipal Court of Chicago, recovered in an action on contract in that court by the defendant in error against the plaintiff in error for the loss of a carload of grapes shipped by the Scottdale Fruit Association, on October 5, 1907, from St. Joseph, Michigan, to the defendant in error as S. T. Fish & Co., Chicago, Illinois.

It appears that the car containing’ the fruit arrived at Chicago on October 7, 1907, and the consignee, defendant in error, upon being notified by the plaintiff in error of the arrival of the car, gave directions by telephone and by letter dated October 8., 1907, as follows:

“Local Freight Agent,

Pere Marquette B. B. Co., Chicago.

Dear Sir:

Attention Diversion Order Clerk.

This is to confirm our ’phone conversation to you.

‘Divert to S. T. Fish & Co., Wichita, Kans., notify Lampl Produce Co., routed c|o Bock Island F. G-. E. car Ño. 18205, grapes; your team track expensing on connecting line free of charge to them, presenting us with expense bill for accrued freight to Chicago.’

Pardon our not having confirmed this yesterday.

Bespectfully,

(Signed) S. T. Fish & Co.

G-ray.

We countermanded these instructions so far as ex-pensing on C. B. I. & P. is concerned and authorized you to let charges follow.

(Signed) S. T. Fish & Co.

Gray. ’ ’

In accordance with these instructions the plaintiff in error delivered the car of grapes to the Chicago, Bock Island & Pacific Bailway Company at Chicago, and the. latter company carried said car to its destination, where the grapes were delivered by the latter company to the Lampl Produce Co. The plaintiff in error had given directions to the Chicago, Bock Island & Pacific Bailway Co., consigning the car in question to S, T, Fish & Company, Wichita, Kansas, notify Lampl Produce Company, and had allowed its charges to follow in accordance with instructions of defendant in error.

It was agreed between counsel that the Chicago, Bock Island & Pacific Bailway Company paid to the Pere Marquette Bailroad Company on its expense bill furnished at the time shipment moved, charges of the Pere Marquette B. B. Co., up to and including the movement to Chicago from Michigan, and that the reconsigning orders were furnished by the Pere Marquette to the Chicago, Bock Island & Pacific By. Co., as ordered in plaintiff’s letter of October 8th; also that the car in question in this case was delivered by the Pere Marquette Bailroad Company to the Chicago, Bock Island & Pacific By. Co. under the reconsigning ordérs contained in the letter of October 8th of S. T. Fish & Company. ■

The Pere Marquette Bailroad Company did not issue any bill of lading for the shipment from Chicago to Wichita; nor did S. T. Fish & Company ever request from the Pere Marquette Bailroad Company any such bill of lading.

Subsequent to the transportation of the car to Wichita, and at the request of S. T. Fish & Company, the Chicago, Bock Island & Pacific By. Co. issued its bill of lading, dated October 15, 1907, covering the shipment in question from Chicago to Wichita, consigned to S. T. Fish & Company, notify Lampl Produce Co. This bill of lading was offered in evidence by the defendant in the court below but was ruled out by the court.

The defendant in error’s statement of claim made in the court below was as follows:

“Plaintiff’s claim is for money damages incurred to, to-wit: 3211 baskets of, to-wit: grapes, the property of said plaintiff, shipped from, to-wit: Chicago, Illinois, to, to-wit: Wichita, Kansas, on, to-wit: October 7, 1907, in car, to-wit: F. G. E. 18205; incurred by reason of the failure of said defendant to deliver said, to-wit: grapes at said destination, as follows:

Value of said, to-wit: grapes at the time of arrival at said destination.........,.....$931.19

Less freight to said transit................. 216.13

Total money damages................. 715.06”

The defendant in error amended his statement of claim in the court helow so that his claim for damages was based upon the failure of the plaintiff in error to deliver the grapes at Wichita, Kansas, in accordance with directions, the grapes having been delivered without authority, permission or consent of the plaintiff below, by the defendant at Wichita, Kansas, to the Lampl Grocery Company on October 15,1907, and that damages were claimed for the value of the grapes at destination at the time of arrival,—$931.19, with interest thereon from October 15, 1907.

It appeared that the defendant in error wrote the Chicago, Bock Island & Pacific Bailway Company on November 18, 1907, making claim for the value of the grapes, and concluding as follows:

“We, therefore, look to you for reimbursal and ask for immediate payment.”

On the trial in the Municipal Court, plaintiff in error requested the court to instruct the jury on the evidence produced, directing a verdict for the defendant; and error is assigned upon the refusal of the court to so instruct the jury.

We think it is clear upon the evidence that the instruction should have been given. The plaintiff in error contracted to carry the car of grapes from St. Joseph, Michigan, to Chicago, Illinois, and deliver them to the defendant in error. Upon the arrival of the grapes in Chicago, plaintiff in error was directed by defendant in error to deliver them to the Chicago, Bock Island '& Pacific Bailway Company for. reshipment to Wichita, Kansas, It obeyed these instructions, and was under no liability of any nature or kind for the property after its delivery to the Bock Island Bailway Co., in accordance with these instructions.

The evidence shows that the plaintiff in error carried out and discharged its duty with regard to the shipment in question and delivered the grapes at Chicago, according to its contract. The case of Michigan Southern & Northern Indiana R. R. Co. v. Day, 20 Ill. 375, is precisely in point. Many other cases might be cited in support of the position that the plaintiff in error is not liable for damage to property after the delivery of the same 'to the Chicago, Rock Island & Pacific Railway Company, but we think the law is so fundamental and so clear that it is unnecessary to take the time and space.

In our opinion there was no liability of the plaintiff in error to the defendant in error shown by the evidence in the case, and the judgment is accordingly reversed, but the case is not remanded.

Reversed.


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    The Northern Produce Exchange, Plaintiff in Error, v. Ben Ablon, Defendant in Error.
    Gen. No. 16,760.
    1. Contracts—when established. Held, that the telegrams set forth in this opinion constituted a contract between the parties for the sale and delivery of eggs, and that the direction of the vendee to the vendor to hold such eggs at the point of delivery for purposes of inspection did not operate to affect the binding character of the contract.
    2. Contracts—when customs enter into. Customs and usages of the trade enter into a contract and form a part thereof and the contract should be construed with relation to such customs and usages.
    3. Sales—right of inspection. A purchaser of goods having no opportunity for inspection at the time of purchase must be given a reasonable opportunity for inspection before acceptance.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Good-now, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of fact and judgment.
    Opinion filed April 19, 1912.
    Harold L. Ickes, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff in error, the Northern Produce Exchange, brought an attachment in the Municipal Court of Chicago against the defendant in error, Ben Ablon, to recover damages for a breach of contract.

The controversy arose out of the following telegrams :

“Dallas, Tex., March 28, 1910.

3:37 P. M.

Northern Produce Exchange, Chicago:

Wire best offer two cars storage packed eggs shipment tomorrow and Thursday.

Ben Ablon.”

“Chicago, March 29, 1910.

11:10 A. M.

To Ben Ablon, Dallas, Texas.

Answering yesterday’s telegram, if storage packed are in new whitewood cases well selected Texas stock will take two cars specified six twenty delivered immediate answer.”

“Dallas, Tex., March 29, 1910.

Northern Produce Exchange, Chicago.

Accept your offer six twenty delivered two cars storage packed eggs wire shipping instructions. * * *

3:06 P. M. Ben Ablon.”

“March 29, 1910.

5:15 P.M.

To Ben Ablon, Dallas, Texas.

Bill both cars New York care Merchants Despatch at Chicago hold on Western roads track at Chicago for inspection. Notify us 34 Clark St.” * * *

“Dallas, Texas, March 30, 1910.

Northern Produce Exchange, Chicago, Ill.

Stopping cars in Chicago not satisfactory have made other arrangements.

12:17 P. M. Ben Ablon.”

“March 30,1910.

2:16 P. M.

To Ben Ablon, Dallas, Texas.

Very well what route did you ship? Answer.”

“Dallas, Tex., March 30,1910.

9:08 P. M.

Northern Produce Exchange, Chicago, Ill.

Answering wire of even date another party was interested in the two cars offered you who would not consent to routing via Chicago. Consequently sold to another firm. I’m sure can get you two cars at same price for next week’s shipment. If can use wire answer.

Ben Ablon.”

“March 31,1910.

10:17 P. M.

To Ben Ablon, Dallas, Texas.

Your night letter thirtieth surprises us as we did not cancel two cars purchased 29th and next week’s shipment not satisfactory. Have been compelled to buy to cover orders. ’ ’

The evidence shows that upon the receipt of the last telegram from the defendant in error, Ablon, dated March 30, 1910, the plaintiff in error purchased eggs to cover the amount of eggs named in the telegram, and that it was compelled to pay $6.52% per case for eggs which it bought on the market, making a difference of 32%c per case or $260 for the two carloads.

We are not favored by an argument on behalf of the defendant in error, but we gather from the abstract that the contention of defendant in error upon the trial was that no contract was entered into between the plaintiff in error and the defendant in error, as a result of the telegrams which passed between the parties. The defendant in error’s contention was that by the telegram dated March 29, 1910, in which the plaintiff in error gave shipping directions, it added a new condition to the contract made in the preceding telegram-by directing the eggs to be held on Western roads track at Chicago for inspection.

The proof in the record showed that where eggs were purchased as contemplated in the telegrams shown to be delivered at Chicago it is quite customary and usual to order the eggs shipped to other places than Chicago, where the railroad tariff provides for saving in freight by shipping through to an ulterior destination. Where, as in this case, shipment was directed to be made through to an ulterior destination the purchaser gets the benefit of the lowest tariff rate from the point of shipment to the point of ulterior destination.

In our opinion the telegrams above set forth constitute a contract for two cars of eggs to be delivered at Chicago. A purchaser is entitled to an opportunity of inspection at the point of delivery before accepting the eggs. The telegram directing the cars to be held at Chicago for inspection, therefore, constituted no variation from the contract which had been made. If the ultimate destination of the eggs had been Chicago the condition would have been the same as that set forth in the telegram of plaintiff in error dated March 29, 1910. The plaintiff in error would have the right and privilege to inspect the eggs before accepting them, and that was the effect of the shipping directions given. The eggs were to be delivered according to the contract in Chicago; and it constituted no variation of the contract to direct them to be held at Chicago for inspection. That a purchaser of goods, without opportunity for inspection at the time of purchase, must be given a reasonable opportunity for inspection before acceptance of them cannot be legally disputed. 2 Mechem on Sales, sections 1375-1376; Doane v. Dunham, 79 Ill. 131. In 2 Mechem on Sales, Sec. 1377, it is said:

“The place of inspection, in the absence of contrary intention, must ordinarily be the place at which acceptance is due—as distinguished from the place of receipt, where they are separate—the place at which the buyer is finally bound to accept or reject the goods.”

The rule above stated by Mechem is supported by Pierson v. Crooks, 115 N. Y. 539, where it is held that the right of inspection continues until the goods are received and accepted at their ultimate destination, thus implying that the right exists to inspect at any time during the transit. That rule, however, it is not necessary to invoke in this case, for the contract was to be fulfilled by shipment through Chicago and Chicago was the place of acceptance and the plaintiff in error had the right to inspect the goods at Chicago.

The testimony in the record shows that it was the custom and usage of the trade to afford an opportunity of inspection before delivery. Customs and usages of the trade enter into contracts and form a part thereof, and the contract should be construed with relation to such customs and usages. Doane v. Dunham, supra; Off v. Inderrieden Co., 74 Ill. App. 105.

In Steidtmann v. Joseph Lay Co., 234 Ill. 84, at page 88 of the opinion the court say:

“A person entering into a contract in the ordinary course of business is presumed to have done so in reference to any existing general usage or custom relating to such business. And this is so whether he knew of the custom or not.”

To the same effect is Montgomery v. Ricker, 43 Vt. 165.

We are of the opinion that the plaintiff in error, by the terms of the contract, had the right of inspection at Chicago in the absence of any specific directions made in the telegram of March 29, 1910; and that' telegram constituted no departure from the contract which had been made, added no new condition thereto, and was within the request of the telegram of defendant in error of the same date asking for shipping instructions.

Aside from that consideration, however, the direction to hold cars on Western roads track at Chicago for inspection, was not such a demand as would in any way affect the plaintiff’s right to make a proper demand afterwards, nor was it such a breach of the contract as would justify its abandonment or rescission. Weintz v. Hafner, 78 Ill. 27.

The telegram of defendant in error, dated March 30, 1910, saying, “Stopping cars in Chicago not satisfactory have made other arrangements,”—was acquiesced in by the plaintiff in error by a telegram of the same date,—“Very well, what route did you ship? Answer.” The effect of this latter telegram was to waive the order to hold on track at Chicago for inspection. Upon receipt of this telegram the defendant in error was bound to ship the eggs to Chicago, and the part of the shipping directions to which the defendant in error objected having been waived, no excuse was left for the defendant in error for not fulfilling his contract.

There was no dispute as to the measure of damages on the trial. In our opinion, the trial court should have entered a judgment for $260, with interest from March 30, 1910, the date of the default. The judgment, for the error indicated, will be reversed with a finding of fact in favor of the plaintiff in error, and judgment will be entered here on such finding of fact for $286 in favor of the plaintiff in error and against the defendant in error.

Reversed with finding of fact and judgment.


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    Bernard Baumgarden, Plaintiff in Error, v. George L. Bradshaw, Defendant in Error.
    Gen. No. 16,761.
    1. Landlord and tenant—lease providing for payment of increased insurance rates construed. Held, that by the terms of the covenant that the parties contemplated insurance only of the building and not insurance upon rents.
    2. Contracts—how to he construed. The words and phrases of an instrument are to be given their plain and ordinary meaning and sense with respect to the particular subject-matter contemplated by the contract unless the context shows that the parties used the words in question in some peculiar and unusual sense.
    Error to the Municipal Court of Chicago; the Hon. J. D. Türnbaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Pines & Newman, for plaintiff in error.
    Frank Wentworth Swett, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff in error, Bernard Baumgarden, hereinafter called plaintiff, brought an action of the fourth class in the Municipal Court of Chicago against defendant in error, George L. Bradshaw, hereinafter called defendant, based upon covenants contained in two written leases by virtue of which covenants the defendant obligated himself that in the event the rate of insurance on the buildings described in the lease was increased because of certain contingencies, to pay to the plaintiff such additional rate of insurance, and further, to pay to the plaintiff all costs and expenses of whatever nature incurred in enforcing the covenants of the leases.

The facts shown in evidence on the trial and the holdings of law were stipulated to by the parties, and approved by the trial judge, and made a part of the record as follows:

"This was a suit for the recovery of certain moneys in the sum of $986.59 claimed to be due by the plaintiff from the defendant by virtue of the terms of two certain leases entered into by and between the parties to this suit, said leases having been introduced and admitted in evidence as Plaintiff’s Exhibits ‘1’ and ‘2.’

Plaintiff’s statement of claim recites that by virtue of the covenants of these two leases, the defendant obligated himself that in the event the rate of insurance was increased on the buildings in which the premises demised were contained, by reason of certain contingencies, that .the defendant undertook to pay such additional insurance, and further, to pay to the plaintiff all costs and expenses of whatever nature incurred in enforcing the covenants of said leases. The statement further recites that by reason of the said contingencies the rate of insurance upon said buildings had been materially increased and that the defendant thereby became liable to pay the sum of $986.59. The aEdavit of claim is attached to the statement, of which the foregoing is the substance. Subsequently under rule of court plaintiff filed an amended statement setting forth specifically on what policies the increase was claimed. Subsequently to this, on May 24, 1910, .being the first day of the trial of the case, plaintiff filed an amendment to the amended statement of claim setting forth the amounts and dates of ten additional policies, the increased rate on which went to make up the total of $986.59 claimed by the plaintiff. All of the policies of insurance are insurance policies on rent except the second one mentioned in the said amended statement of claim, which is for $58,000.00 in the London and Liverpool Globe.

Upon the filing of the amendment to the amended statement of claim, the court ruled, on the motion of the parties, that the aEdavit of merits or of defense already on file stand as the aEdavit of defense to the last amended bill of particulars. In his affidavit of defense the defendant admitted liability on the increase of insurance on the buildings and paid into the clerk of the court upon the filing of said affidavit, the sum of $345.37, but as to the amounts claimed under the remaining policies the defendant denied all liability thereunder, stating that such additional insurance was insurance on rents as distinguished from insurance on buildings, and that it was the latter only which the defendant undertook to pay in and by said lease or leases.

The issue presented for the consideration and determination of the court is the interpretation of those clauses of the lease or leases which covenant with reference to insurance, and whether or not these clauses should be so interpreted together with the entire instrument so as to include insurance on rents as well as insurance on buildings.

On March 29, 1909, defendant in error, George L. Bradshaw, entered into a lease of the premises known as 166, 168 and 170 State street, Chicago, Illinois, the lease running from the date thereof to April 30, 1922. Subsequently on September 14, 1909, plaintiff in error entered into another lease with said Bradshaw in and by which he leased the premises known as the fourth and fifth floors of the building at 172 State street, and immediately adjoining and to the south of the premises first demised on March 29th.

The object of defendant in error of leasing the two upper floors of 172 State street was to connect them with the premises already occupied and under lease by him from the plaintiff in error; and immediately after the second lease was entered into the alterations provided for in the lease by way of connecting up the two buildings, etc., were made in accordance with the provisions of the second lease and with the approval of the landlord. The alterations so made were those contemplated by both parties at the time of entering into the second lease.

It is admitted that the specific question of insurance on rents as distinguished from insurance on buildings or any other kind of insurance, was not mentioned between the parties at any time. The evidence shows that the defendant in error had no knowledge that any insurance on rents was carried by the plaintiff in error. The rate of insurance on the buildings had increased from the time of the writing of $58,000.00 policy on the building from 67c per hundred dollars at 91c per hundred dollars for causes occasioned other than by the making of the alterations referred to and for causes for which the defendant in error was not responsible. The evidence further shows that the increase from 91c per hundred to $1.19 per hundred on the insurance on the building was occasioned by defendant in error in making the alterations mentioned in the second lease.

The sum of $345.37 claimed by the plaintiff as increased insurance on the building was tendered by plaintiff to the defendant some months before the beginning of this suit and the tender was kept good.

The evidence shows that insurance on rents is insurance on another and different subject than insurance on buildings; also that under the rules of the Chicago Board of Underwriters insurance on rents and insurance on buildings are separate subjects of insurance and must be insured separately in different policies.

The evidence shows that whatever may be the subject of fire insurance, whether buildings or chattels of any kind or rents or income, the Standard fire insurance policy is used and the particular nature of the tiling or chattels or buildings insured is shown by the rider which is affixed or pasted on the Standard policy as in the case of the $58,000.00 policy in evidence which is on the building, and the $84,000.00 policy in evidence which is on the rents.

The evidence shows that the rate, of insurance on rents is arrived at by using the rate of insurance on buildings as a unit. That is to say, the rate of insurance on rents is always a certain percentage of the insurance upon the buildings.

The ten policies of insurance on rents which are described in plaintiff’s second amended bill of particulars as the last ten items thereof, and which include all of the policies sued on except the two policies in the Liverpool and London and Globe for $84,000.00 and $58,000.00, respectively,—contain the name of Bernard Baumgarden as the assured. The two larger policies last mentioned in the Liverpool and London and Globe contain the name of Frederick Ayer as the assured. Frederick Ayer was the landlord of Bernard Baum-garden, who in turn, leased to defendant Bradshaw.

All of the ten policies mentioned insuring the rents of Bernard Baumgarden were issued and procured in January, 1910. All of the policies were introduced in evidence over the objections of the defendant, and at the conclusion of the testimony the defendant moved the court to strike out of the evidence said insurance policies. This motion was denied.

The policy of insurance for $5,000 in the New Hampshire Fire Insurance Company, described as the third item in the second amended bill of particulars,—which was introduced in evidence as Plaintiff’s Exhibit 5, is a fair sample of all of the remaining policies shown in said second amended bill of particulars, and for the sake of brevity is the only one included in making up the record.

The evidence shows that the connecting up of the building, as provided for in the lease of September 14, 1909, necessarily, of itself, caused an increase in the rate of insurance on the building.

Counsel for plaintiff asked the court to hold as a proposition of law that the leases and particularly the clauses which refer to insurance should be interpreted so as to include rental insurance or insurance on rents, which proposition however, the court refused to hold.

But the court did hold the following proposition to be the law of the case on motion of defendant:

“The court holds as a proposition of law applicable to the facts in this case that the defendant contracted in and by said leases to pay the increased rate of insurance upon the buildings only; and that all of the insurance policies introduced in evidence, except a $58,000.-00 policy, upon the building, are policies covering another and different subject matter than the building, namely: the rents accruing from the buildings.”

The lease dated September 14, 1909, between Baum-garden as lessor and Bradshaw as lessee, after various covenants as to alterations in the premises, provided as follows, in clause 12:

‘‘If any such alterations, additions or improvements shall of themselves increase the rate of insurance on any of the said buildings, by reason of any of said additions, improvements or alterations, or by reason of the increased area, the said lessee hereby agrees to pay such additional cost of insurance as may be charged against said buildings for and during the life of this lease, such additional insurance to be determined and passed upon by the Board of Underwriters, and the lessor shall have the right to pay the same, which additional insurance is hereby declared to be so much additional rent, and shall be due and payable with the next installment of rent due and payable under this lease; provided, however, that if the increased rate of insurance shall arise from causes other than those above set forth, the lessee shall hot be liable to pay the same.”

In our opinion the holdings of law and the finding and judgment of the trial court were based upon a correct construction of the covenants of the lease, and are correct upon the facts and the law of the case. It seems clear to us from the terms of the covenant that 'the parties contemplated insurance only on the building at the time of the drawing of the lease. This appears from the language of the paragraph of the lease in question; and also from the facts shown by the evidence, that Bradshaw did not know at the time that Baumgarden carried any rent insurance; and that rent insurance was not only not mentioned in the lease or leases, but Baumgarden never at any time mentioned rent insurance to Bradshaw, verbally or otherwise. In our opinion there is really no question of construction involved. The language is clear and unambiguous. The words and phrases of an instrument are to be given their plain and ordinary meaning and sense with respect to the particular subject matter contemplated by the contract, unless the context shows that the parties used the words in question in some peculiar and unusual sense. Considering the instrument as a whole we find no evidence of any such use of the words of the lease. Fire insurance is the only kind of insurance mentioned in the lease. The subject-matter of rent insurance,—a very different subject—is nowhere mentioned. It would be straining and forcing the language of the clause or paragraph in question far away from its plain, ordinary and usual meaning to make it cover the subject of rent insurance, as contended by plaintiff. It would be just as reasonable to hold that the lease bound Bradshaw to pay an increased rate of insurance upon an immensely valuable stock of merchandise carried by a tenant, or by Baumgarden himself, on the ground floor or in other parts of the building, as to hold that it made Bradshaw responsible for the increased rate of insurance upon the rents arising out of the building. The theory or construction contended for by plaintiff might make Bradshaw assume an undertaking which would convert his lease into a liability of vast proportions, instead of an asset, under a clause which, on its face and in the common understanding of the language used, refers to insurance on buildings, without even suggesting insurance on chattels or intangible property like rents or income. We are unable to gather any such intention of the parties from the terms employed by them; and we cannot extend by construction the provisions of the lease or leases to include what is not expressed, and what would be a harsh or oppresive meaning of the terms used.

In our opinion the judgment is in accord with the facts proved and the law. The judgment is affirmed.

Affirmed.


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    Royal League, Defendant in Error, v. Julia A. Kolin, Plaintiff in Error, and Robert Kolin et al., Defendants in Error.
    Gen. No. 16,782.
    1. Fraternal benefit societies—what constitutes insurance contract. The charter, constitution, by-laws of the order, the application, medical examiner’s certificate signed by the member and the benefit certificate, constitute the contract between the member and the society.
    2. Fraternal benefit societies—what by-laws control benefit certificate. Where a member of a beneficiary society agrees in a contract of insurance that he will conform to the laws, rules and usages of the society then in force or which may be adopted subsequently his benefit certificate is controlled by by-laws adopted after he becomes a member and which were in force at the time of his death.
    3. Fraternal benefit societies—when by-laws reasonable. A bylaw is reasonable which provides that in the event of the death of a member without designating a beneficiary the fund shall be payable to the heirs at law of the deceased member.
    4. Fraternal benefit societies—what does hot operate to designate beneficiary. Mere verbal statements by the deceased member as to who would get the proceeds of his certificate in the event of his death do not operate to determine who shall be the beneficiary thereof.
    5. Fraternal benefit societies-—who hew at law within meaning of by-laws. Held, that the son of the deceased member and not his wife was his heir at law and entitled to the proceeds of the certificate involved in this ease by reason of the provisions of the by-laws of the society to the effect that in the event of the death of the member without designating a beneficiary the proceeds should be payable to the heirs at law of the deceased member.
    Bill of interpleader. Appeal from the Superior Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.

      F. J. Karasek, for plaintiff in error; I. T. Greenacre, of counsel.

      Mann & Miller, Arthur J. Donovan and Charles J. Gould, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The question presented in this case arises upon a construction of Section 13 of the 1896 Constitution and By-Laws of the Royal League, defendant in error, a fraternal beneficiary society. That section provides that in the event of the death of one or more of the beneficiaries designated by the member, in accordance with the laws of the order, before the decease of such member, if he shall have made no other or further disposition thereof, upon his death such benefit shall be paid in full to the surviving beneficiary or beneficiaries each sharing pro rata as provided in the benefit certificate. In the event of all the beneficiaries named in a benefit certificate dying before the decease of the member, and his failure to designate one or more new beneficiaries in the manner prescribed in these laws, the benefit shall be paid to the heirs at law of the member.

This question is presented upon a bill of interpleader filed by the Royal League, complainant, against Julia A. Kolin and Robert Kolin, defendants; and the decree entered in that proceeding awarding the benefits named in the benefit certificate to Robert Kolin, a minor son of Joseph Kolin, a deceased member of the Royal League, who at the time of his death was a member in good standing of the complainant, the Royal League, holding a benefit certificate for the sum of $4,000.

The benefit certificate in question was issued on April 11, 1895, to Joseph Kolin, who was then a member of the Royal League in good standing. Upon the face of the certificate the name of Anna Kolin, wife of said Joseph Kolin, appears as the beneficiary there'of. Arma Kolin, the beneficiary named in the certificate, died in 1895. There was born to said Joseph Kolin and Anna Kolin, his wife, in February, 1895, a son, Robert Kolin, defendant in error, and no other child or children. Joseph Kolin was again married on June 17, 1903, to Julia A. Kolin, plaintiff in error, his widow; of this marriage no children were born. Joseph Kolin died January 2,1906, leaving him surviving Julia A. Kolin, his widow, and Robert Kolin, his son. Joseph Kolin did not after the death of his first wife, Anna, the named beneficiary, designate a new beneficiary. By the terms of his application for a benefit certificate and by the terms of that certificate it was issued subject to the constitution and by-laws of the order, and also to any amendments subsequently made to the constitution and by-laws. In 1896 the Royal League adopted the amendment to its by-laws above stated. Under this amendment Julia A. Kolin, 'the surviving widow, claims a part of the amount named in the benefit certificate as an heir of Joseph Kolin, deceased.

In order to settle the controversy thus arising between Julia A. Kolin and Robert Kolin, a son of deceased by his first marriage, the Royal League filed the bill of interpleader. Julia A. Kolin, plaintiff in error, seeks by this proceeding to reverse the decree.

Plaintiff in error files a brief containing many points and citing many authorities. No argument is presented on behalf of plaintiff in error other than the mere statement of the points in the brief. It is too well settled to necessitate citing authorities that the charter, constitution and by-laws of the order, the application, medical examiner’s certificate signed by the member, and the benefit certificate, constitute the contract between the member and the beneficiary society; and it is equally well settled that where a member of a beneficiary society agrees in a contract of insurance that he will conform to the laws, rules and usages of the society then in force, or which may be adopted subsequently, Ms benefit certificate or contract is controlled by by-laws adopted after he became a member and which were in force at the time of Ms death. It, therefore, follows that upon the death of Joseph Kolin the benefit provided for in the certificate held by him, his first wife, Anna Kolin, having died and he having failed to designate a new beneficiary, as provided in the by-laws, was payable to his heirs at law under the terms of the contract of insurance, provided the bylaw making the benefit so payable was a reasonable bylaw for the Royal League to enact. We see no reason for holding that the by-law in question was unreasonable. It was within the power of Joseph Kolin to have made a new designation as his beneficiary, if he chose, and to have fixed definitely the beneficiary to whom the fund should be paid upon his death. This he neglected or failed to do. If he never intended to make any change he allowed the money to become payable to his heirs at law upon his death. The alleged statements which he is shown to have made by the testimony of plaintiff in error as to who would receive the benefit upon his death, were immaterial and irrelevant, and cannot legally be considered in the decision of the question presented. The by-law being a reasonable one, as we think it is, and the fund falling within its operation to the heirs at law of Joseph Kolin, the only remaining question is,—who was the heir at law, or who are the heirs at law? While there is some question or doubt which may reasonably be suggested by some authorities in this state, we think it may be said to be the settled law of the state, that Joseph Kolin having died leaving him surviving his son, Robert Kolin, and no other child or children, Robert Kolin is the sole heir at law in both the technical and popular sense of the term. Gauch v. St. Louis Mutual Life Insurance Company, 88 Ill. 251; Royal League v. Kasey, 144 Ill. App. 1.

In our opinion the decree is correct and it is affirmed.

Affirmed.


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    Anton Wesolowsky, Defendant in Error, v. John Twarog, Plaintiff in Error.
    Gen. No. 16,806.
    1. Contracts—when admission of parol testimony will not reverse. The admission of evidence as to what was a part of the written contract in evidence will not reverse,
    2. Contracts—what merged in writing. Conversations had before executing a contract in suit or at the time of executing the same are merged in the written instrument.
    3. Evidence—when questions do not call for conclusions. Held, that the question “When did he order that done?” among others set forth in the opinion, did not call for conclusions.

      4. Instructions—when upon preponderance of evidence will not reverse. Held, in this case, that an instruction upon what should be considered in determining the preponderance of the evidence, in omitting the element of the number of witnesses testifying upon the respective sides, did not constitute reversible error.
    5. Instructions—practice of submitting forms of verdict. Held, that the practice of the trial court in submitting to the jury forms of verdict leaving the amount of the damages to be awarded blank is not improper.
    Assumpsit. Error to the County Court of Cook county; the Hon. William 'A. Wall, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Willett H. Cornwell and Lee D. Mathias, for plaintiff in error.
    Gilbert & Gilbert and Charles A. Churan, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Anton Wesolowsky, defendant in error, hereinafter called plaintiff, brought an action in the County Court of Cook County in assumpsit, for the use of the Edward Hines Lumber Company, against John Twarog, plaintiff in error, hereinafter called defendant, to recover a balance due on a building contract and for extras. The declaration contained a special count on the building contract, and also the common counts. The defendant pleaded the general issue. On the trial a verdict for $900 in favor of the plaintiff was returned, and judgment was entered thereon.

The controversy grew out of a building contract and the performance of the same. The original contract was in writing, and provided for the erection of a dwelling house for the price of $2,225. The extras set forth in the bill of particulars were $200 for building a barn, $75 for a shed, $50 for a shed, $50 for building a fence, and $86 for extra partitions and changes, making a total of $461 for extras, and a total of balance due on contract and for extras of $1,076. The plaintiff remitted $76 from the bill in order to bring the case within the jurisdiction of the County Court.

The evidence shows that a written agreement was entered into between the plaintiff and the defendant on the second day of October, 1906, for the erection of a dwelling house on or before December 5, 1906, for the sum of $2225, and providing that $1112.50 was to be paid thereon when the building was under roof, and the balance upon the completion of the house.

Subsequently to making this agreement, the defendant directed the plaintiff to construct a barn 16x20 in size upon the lot. The barn was shown by the evidence to be reasonably worth $200. The plaintiff also directed the defendant to build for him a large coal shed, and that was shown by the evidence to be worth $75. The plaintiff also directed the defendant to construct for him another shed, which according to the evidence was worth $50. The plaintiff also directed the defendant to build a picket fence around the lot, and this is shown to have been worth $50, and the plaintiff during the construction of the house made various changes in the partitions, putting in some new partitions not called for by the original sketch of the house, and these changes were shown to be worth $86.

Upon the original contract payments were made amounting to $1610, and the balance of the contract, together with extras, was unpaid at the time of bringing suit.

The defendant claimed on the trial that the work was improperly done; that the house was not finished according to the terms of the contract, and that the barn and sheds were a part of the original contract. These questions, so far as they were questions of fact, were submitted to a jury, and upon the merits we are of the opinion, upon the evidence adduced, that the finding of the jury is correct and ought not to be disturbed.

It is urged on behalf of the defendant that the court below erred in the admission and rejection of testimony. In support of this contention error is claimed in the ruling of the court permitting the following question to be put and answered: “Q. Was the barn part of this contract? A. No.” We see no material error in allowing this question to be propounded to the witness. On the other hand if it was error it was harmless error. The written contract before the jury settled that question, and it clearly appearing from the written contract that the barn was not part of the original contract, the answer given by the witness conld not materially injure the defendant. It was really a question of law for the court and not a question of fact for the jury. We do not agree with the contention of defendant in this court that it was a question of fact for the jury to determine from the conversation of the parties as to whether the barn was a part of the contract. If it was a question of fact for the jury, then there is no legal objection to the question.

Defendant urges further that the court below erred in overruling the defendant’s objections to the following questions asked of plaintiff by his counsel:

“Q. Well, now, did you do any extra work there besides the extra work of changing the partitions?

Q. Any other extra work?

Q. When did he order that done?”

And the objections urged to these questions are that the questions called for conclusions of the witness. We think the objections not well taken.

In the course of the trial the plaintiff offered in evidence a bill of the Hines Lumber Company, rendered to the plaintiff below, composed of three pages of items, amounting to a total of $894.45. On the bill was an order signed by the plaintiff directing the payment of this money to the Edward Hines Lumber Company, with a direction to charge the amount of it to the plaintiff’s account. We do not think any reversible error was committed by the court in allowing this evidence to go before the jury.

A witness by the name of G-riggs was produced on behalf of the plaintiff, who testified to selling the lumber on behalf of the Hines Lumber Company to the plaintiff, and that it was directed to be delivered to the premises of the defendant. We think the court did not err in overruling the objection to the question and in refusing to strike out the answer of the witness.

Error is also claimed in the ruling of the court in sustaining the objections of the plaintiff to the following questions asked the defendant by his counsel relative to the partitions in the attic of the house:

“Q. State what, if anything, was said as to what partitions should be placed in the attic in the conversation in Drycimski’s office?

Q. Did you hire anybody to build partitions in the attic?

Q. Were there any partitions put in the attic by the contractor?

Q. Was there anything said between you and the contractor, at the time you met in the office in reference to putting partitions in the attic?

Q. What was the reasonable value of the services, reasonable cost of putting in partitions in the attic?”

These questions were intended to bring out the facts that the plaintiff below had agreed, as a part of the original contract, to build these attic partitions, and that by reason of his failure to do so the defendant had to attend to it, and also to show-what it reasonably cost the defendant below to have it done. Presumably the questions were ruled out upon the ground that conversations had before executing the contract or at the time of executing the contract for the house were all merged in the original contract, and it was therefore immaterial and improper to allow answers to the above questions. We think the ruling of the court upon these questions was proper. No claim was made by the plaintiff for partitions placed in the attic, and there was no issue in the case upon which the questions or the answers thereto would afford any light. The defendant’s theory was that the original contract required the partitions to be constructed. Of this the contract offered no proof, and the answers would have presented an immaterial issue to the jury.

It is urged that the court below erred in giving the following instruction to the jury:

‘ ‘ The jury are instructed that the preponderance of evidence in a case is not alone determined by the number of witnesses testifying to a particular fact or state of facts. In determining upon which side the preponderance of evidence is, the jury should take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify; their "conduct and demeanor while testifying; their interest or lack of interest, if any, in the result of the suit; the probability or improbability of the truth of their several statements, in view of all the other evidence, facts and circumstances proven on the trial, and from all these circumstances determine upon which side is the weight or preponderance of the evidence.”

This instruction is claimed to be wrong because it omits the element of the number of witnesses which the jury should consider in determining the preponderance of the evidence, and therefore the instruction was misleading to the jury. The instruction is not free from error. Lyons v. Ryerson, 242 Ill. 409; Elgin, Joliet & Eastern Ry. Co. v. Lawlor, 229 Ill. 621; Chicago Union Traction Co. v. Hampe, 228 Ill. 346. We do not think, however, that the omission of the number of witnesses in this instruction in this case was reversible error. E. J. & E. Ry. Co. v. Lawlor, supra. We do not think that it affected in any wise the verdict of the jury, when considered in connection with the other instructions given in the case.

Objection is also urged to the following instruction given by the court:

“The court instructs the jury as a matter of law that in suits on building contracts a literal compliance with the plans, specifications and drawings of a contractor is not necessary to recovery, and if you find from the evidence that the plaintiff in good faith performed the contract on which recovery in this suit is sought, substantially and in all material particulars, according to its terms and the plans, specifications and drawings for the work, without wilful departure therefrom or omission in essential points, that such performance is sufficient to entitle the plaintiff to maintain this suit.”

In our opinion the court did not err in giving the instruction.

Error is assigned upon the action of the court in submitting to the jury two forms of verdict, and instructing the jury that in the event they find for the plaintiff their verdict should be upon the first of the forms submitted, and in the .event that they find for the defendant the verdict should be in the second form. We are unable to see that the rights of the defendant were in any way prejudiced by the action of the court. It is well established practice of the courts to submit to the jury two forms of verdict. It should be said that the form of verdict submitted for the use of the jury in case they found the issues for the plaintiff left in blank the amount of damages to be awarded. That was to be found by the jury and filled in by them in making up their verdict.

We find no reversible error in the record, and we are of the opinion that substantial justice was done in the trial.

The judgment of the County Court is therefore affirmed.

Affirmed.


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    Powers Regulator Company, Plaintiff in Error, v. George D. Hoffmann, Defendant in Error.
    Gen. No. 16,808.
    1. Negotiable instruments—when consideration of note fails. If the payment of a note be a concurrent promise with an undertaking of the payee the failure of the payee to perform his promise relieves the maker of the note of the obligation to pay the same.
    2. Contracts—when obligation of payment independent covenant; when not. If a day be appointed for the payment of money, and the day is to happen before the thing which is to be done by the other party is to be performed, then an action may be brought for the money before performance, but when a day is appointed for the payment of money, and the day is to happen at or after the time the thing which is the consideration of the money is to be performed, then no action can be maintained for the money before performance, or offer of performance.
    3. Contracts—effect of destruction of subject-matter. Contracts whose performance depend upon the continued existence of a specific thing, are discharged by the destruction of the thing through no fault of either party.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed April 19, 1912.
    Charles Daniels and Sumner C. Palmer, for plaintiff in error.
    M. J. Dunne, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Action was commenced by plaintiff in error, hereinafter called plaintiff, against the defendant in error, hereinafter called defendant, in the Municipal Court of Chicago, to recover a balance alleged to be due on a promissory note executed by the defendant to the plaintiff. The defense interposed was a failure or want of consideration. The cause was tried before the court without a jury. The court found in favor of the defendant, and judgment was entered upon the finding.

The note sued on was given by the defendant to the plaintiff in settlement of an alleged claim for making-certain patterns for an oil burner. The defendant alleged that the claim of the plaintiff to be paid for these patterns was not a valid and just one, because, as he testified, the patterns were to be made on a joint account; that is, the parties were to share in the profits arising from the device for which the patterns weje made, and that the defendant was not to be required to pay for them otherwise.

The testimony shows that the work of making the oil burners was abandoned on account of the physical' disability of the defendant. Plaintiff, however, demanded pay for the patterns; the defendant refused to pay on the ground that he was not liable. Finally, the parties adjusted the matter by defendant giving his note for the amount claimed on the agreement that he was to receive the patterns from the plaintiff when he paid the note. Defendant made several payments on the note, but when he wrote a letter to plaintiff, dated October 29, 1909, in which he said, “If this is acceptable to you I presume you are in a position to deliver the patterns for which the original note was given. Kindly advise me on this point in your reply to above proposition,” plaintiff replied under date of October 30, 1909, “Whether we can locate these patterns or not, we have not the remotest idea at the present writing-—probably not, as we had a fire in our factory some years ago that was equivelant to a house cleaning.”

On cross-examination, F. W. Powers, secretary of the plaintiff, testified that he did not know what became of the patterns,—“They may have been in our factory at the time of the fire.” He also testified that he was not certain that there was nothing said about the patterns at the time the note was delivered.

There was a dispute on the trial as to whether defendant was to pay for the patterns at all. He says he was- not, but that the parties were to share in any profit made out of the burner. As to what the agreement was, the testimony of W. P. Powers is not very satisfactory, as a denial of the defendant’s testimony. It was agreed on the trial that W. P. Powers, if present, would testify that sometime prior to the date of the note sued on, the defendant had desk room in the offices of the Powers Regulator Company, and that, at that time, the defendant came to him and told him he had an oil burner with which he was experimenting but had no money to make it, and that he, Powers, said, “Take the parts of your burner to our foreman and we will make your patterns and charge you just what this will cost.” It was also agreed that W. P. Powers would deny that he said, “Take this burner to our foreman, Bowman, and if he thinks it is a good thing, we will take it up and manufacture patterns and burner and share the profits equally. ’ ’

Considering the testimony of W. P. Powers, it cannot be satisfactory as a denial of the defendant’s contention. The question arises on the plaintiff’s theory of the case,—why should the plaintiff do the work for cost if they had no interest in its success? And it may be argued that if they were to have a joint interest in the profits, was it not most reasonable to believe that they agreed to bear the cost of the patterns as their contribution to the enterprise? Was not this more probable because of the statement of Powers that Hoffman came to him and told him he had an oil burner with which he was experimenting, but had no money to make it? Then again, it may be argued that it is "unreasonable to believe that Hoffman went to Powers and wanted him to do some work, and said that he had no money to pay for it, and that Powers would then and there agree to do the work even for cost. Upon a consideration of the whole case, we are of the opinion that the court was justified in finding that the defendant, Hoffman’s statement of the- arrangement, under which the patterns were made, was the more reasonable and correct.

At the trial, the attorney for the defendant tendered the full amount of the note, interest and costs, and demanded delivery of the patterns.

The question is thus presented whether upon the evidence and under the circumstances, the plaintiff was entitled to recover, or whether the finding and judgment of the court was correct.

If, as we think, the evidence shows the fact to be the note and the agreement in regard to the delivery of the patterns constituted mutual promises, the full performance of both would be concurrent acts, and if either one of the parties was unable to perform the act incumbent upon him, or it, that absolved the other party from the performance of the other act. So that, when the plaintiff confessed that the patterns were destroyed, the obligation of the defendant to pay the balance due on the note ceased. Bishop on Contracts, page 156, Sec. 401; Ibid, page 581, Sec. 1433; Ibid, page 319, Secs. 826 and 827.

We think it is laid down by law writers, and in the decisions, that if a day be appointed for payment of money, and the day is to happen before the thing which is to be done by the other party is to be performed, then an action may be brought for the money before performance. But, when a day is appointed for the payment of money, and the day is to happen at or after the time the thing which is the consideration of the money, is to be performed, then no action can be maintained for the money before performance, or offer of performance.

In this case, the note was to be paid and the patterns were to be delivered at the same identical time, and if either party was nnable to perform, he, or it, lost the right to require performance by the other party.

Whether the promises in this case were concurrent conditions or conditions precedent the party seeking to enforce the promise (as the plaintiff in this case), cannot maintain his action unless he has performed or was ready, able and willing to perform his part. 3 Am. and Eng. Ency. of Law, 911, note 1, 1st Ed.

Contracts whose performance depends upon the continued existence of a specific thing, are discharged by the destruction of the thing through no fault of either party. 3 Am. and Eng. Ency. of Law, 901, note 2.

If the contract was that the patterns for the burner were to be made by plaintiff and paid for at cost by the defendant, then the plaintiff must be ready and able to deliver to the defendant before he could be compelled to pay for them; and the fact that the defendant gave a note and paid part on it did not change his position as to the right to demand the patterns before making full payment. When the plaintiff, therefore, was unable for any cause to deliver the patterns, then the defendant was discharged from the liability on his note in like manner as if his promise to pay was a verbal one.

If on the other hand the defendant was not to pay for making those patterns, but that the plaintiff was to be compensated out of any profits, as contended by the defendant, and then defendant gave his note on an agreement that plaintiff was to deliver them to defendant, if the patterns were destroyed while in plaintiff’s possession so that it was unable to deliver them on final payment, then the defendant was discharged from his liability,—the payment and delivery being simultaneous and concurrent acts.

Parol testimony is admissible to show what was the real consideration for a note; and the fact that the contract was reduced to a promissory note, does not prevent its being inquired into to see what the exact rights of the parties are in the matter. Under the law of 1907, in regard to negotiable instruments as well as under prior statutes, want of consideration is a defense to a suit on a note. If the defendant had not given his note, and plaintiff had brought suit on the alleged indebtedness on the theory that the defendant was to pay the cost of making the patterns, and it was shown that the plaintiff had not delivered the patterns to the defendant and that the patterns had been destroyed while in the possession of the plaintiff, this would certainly have discharged the defendant of any liability. Putting the alleged debt in the form of a note with the agreement to deliver on payment does not enlarge the rights of the plaintiff nor change the liability of the defendant,—in so far at least as the question of failure or want of consideration is concerned. Whichever theory therefore may be considered as proved by the evidence, that advanced by the plaintiff or that by the defendant, in either ease the plaintiff could only recover against the defendant by showing a delivery to him of the patterns contracted to be made. As the plaintiff was unable to make delivery it cannot recover.

Although the testimony relating to the questions by the record was admitted without objection there is contradiction and conflict in the testimony, but upon examination and analysis of the testimony, we think the court below was correct in holding that the preponderance of the evidence was with the defendant, and in finding the issues for the defendant. The judgment of the Municipal Court of Chicago is affirmed.

Judgment affirmed.