text:
    Frank Simpson Fruit Company, Defendant in Error, v. Southern Pacific Company, Plaintiff in Error.
    Gen. No. 14,867.
    1. Common carriers'—right of connecting carrier. A connecting carrier is entitled to every advantage from the contract of carriage which the contracting carrier could himself derive from it.
    2. Common carriers—by tohat laws obligations of governed. The laws of the state where the bill of lading was delivered will control as to the nature, interpretation and effect of the contract for carriage.
    3. Evidence—what tends to establish law of sister state. The opinion of the highest court of a foreign state interpreting and declaring the law of such state, is proper evidence of the law of that state.
    4. Evidence—what does not tend to establish law of sister slate. The opinion of the Supreme Court of one state on a question controlled by the law of another state is inadmissible as evidence of the law of such other state.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed October 6, 1910.
    John Maynard Harlan and M. 0. McGifein, for plaintiff in error; Oliver B. Wyman, of counsel.
    Charles A. Butler, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court for damages sustained by the owner of 488 crates of tomatoes, by reason of the alleged breach of duty of the defendant, the delivering carrier, to give said tomatoes proper care while .in its possession and control, the jury found the defendant guilty and assessed plaintiff’s damages at $1,000. The court denied defendant’s motion for a new trial, gave judgment on the verdict and the defendant sued out this writ of error.

The instrument signed by the trial judge and certified by him to contain a “correct statement of the facts appearing on the trial and of all questions of law involved therein and the decisions of the court on such questions of law,” is in part a statement of facts; in part a statement of certain evidence introduced by the defendant, and in part a statement of evidence offered by the defendant and excluded. This is the statement of facts in said instrument:

“The following facts appeared from said evidence: That on or about May 6, 1905, Chase & Company, commission merchants of Jacksonville, Florida, delivered to L. E. Spencer, the agent of the Atlantic Coast Line Bailroad Company, at Jacksonville, Florida, 488 crates of tomatoes marked and consigned to the Simpson-Hack Fruit Company, (which company was succeeded by Frank Simpson Fruit Company, plaintiff herein), Los Angeles, California; that said 488 crates of tomatoes were, at the time and place last mentioned, loaded into a car belonging to the Atlantic Coast Line Bail-road Company, and known as car A. C. L. 25,862; that the contents of said car were thereupon checked by the loading agent of the Atlantic Coast Line Bailroad Company at that time and place; that the vents (the vents being for the purpose of letting the heated air which arises from the vegetables out of the car) in said car were open at the time said car left Jacksonville, Florida; that the tomatoes contained in said crates were-then in sound, merchantable condition and suitable for shipment, and that said crates of tomatoes were properly loaded in said car and in the usual and customary manner of loading tomatoes for long distance shipments.

“That on the 19th day of May, 1905, the said car A. C. L. 25,862 arrived on defendant’s line of railroad at Los Angeles, California, containing 488 crates of tomatoes; that the vents in said car were then closed; that the car was then very hot and if the vents had been kept open the car would have been much cooler upon its arrival at Los Angeles; that upon examination it was found that said tomatoes had greatly deteriorated in value, and that they were in a heated, spoiled and decaying condition and unsalable except as damaged merchandise; that the agent of defend ant at Los Angeles examined said tomatoes on their arrival at Los Angeles, and admitted that they were in very bad condition.

“That the fair and reasonable market value of said tomatees at Los Angeles, California, upon said 19th day of Hay, 1905, in good, sound, merchantable condition, was $2,440, and that the fair and reasonable market value of said tomatoes at said time and place in the condition in which they did arrive was $132; that the value of labor in repacking said tomatoes so as to render them salable was $20, and that the amount of freight paid by the said plaintiff to the said defendant on said shipment was $494.35.”

The evidence introduced by defendant was parts of depositions taken by plaintiff, which the plaintiff had not put in evidence, and consisted of the testimony of one of the shippers of said tomatoes that their market value at the time and place of shipment was from $1.00 to $1.25 per crate, and the testimony of the cashier of the shippers that he received on the morning of Hay 6, 1905, from a clerk in the office of the receiving carrier an instrument marked “Plaintiff’s Exhibit O,” signed by the agent of the carrier. Said “Exhibit C” was put in evidence by the defendant. Said exhibit is in form a bill of lading of said tomatoes. It in terms gives the shipper the election of accepting its conditions, “printed on the face and back hereof and the reduced rates applying thereto,” or of paying the full rate, which was 20 per cent more than the reduced rate (subject to a minimum increase of one cent per hundred pounds) and holding the carrier to its common law liability. Condition 3 printed on the back of the instrument is as follows:

“The amount of any loss or damage for which any carrier becomes liable shall he computed at' value of the property at the place and time of shipment under this bill of lading unless a lower value has been agreed upon or is determined by the classification upon which the rate is based. In either of which events such lower value shall be the maximum price to govern such computation.”

The evidence offered by the defendant and excluded is the opinion of the Supreme Court of Florida in the case of Atlantic Coast Line R. R. Co. v. Dexter et al., 50 Florida, 180.

The defendant, a connecting carrier, is entitled to every advantage from the contract for the carriage which the contracting carrier could himself derive from it. Hutchinson on Carriers, 3rd ed., sec. 473.

The tomatoes were shipped from Jacksonville, Florida, to Los Angeles, California, the receipt or bill of lading was delivered in Florida, and the laws of Florida will control as to the nature, interpretation and effect of the contract for the carriage. Coats v. C. R. I. & P. Ry. Co., 239 Ill. 154.

In order to defend under the law of Florida the defendant was bound to prove the law of that State.

The opinion of the highest court of a foreign State, interpreting and declaring the law of such State, is proper evidence of the law of that State. Coats v. C. R. I. & P. Ry Co., supra.

In the Dexter case the Brady Union Stock Yards, the agent of the plaintiffs, delivered to a carrier at Atlanta, Georgia, a carload of horses for carriage to a point on defendant’s road in Florida, and accepted and signed a stock contract or bill of lading containing certain limitations on the carrier’s liability. The receiving carrier delivered the horses to the defendant in Florida, and the action was against the second carrier for damage to the horses. The portion of the opinion in that case material to the decision of this case is as follows:

“After the defendant had introduced in evidence without objection the two ‘live stock contracts’ or bills of lading under which it was admitted the railroad company received the stock for carriage and shipment, and had made H. F. Dexter, one of the plaintiffs, its witness, and had proved by him that he had received and ridden on a pass issued with such contract, the plaintiffs’ counsel on cross-examination of said Dexter propounded to him the following question: ‘Were you acquainted with the terms of this hill of lading, and did you agree to the same?’ To this question the defendant objected on the grounds: (1) The hill of lading has already been admitted by them to be the contract under which said stock was shipped. (2) The plaintiffs accepted the benefits of the free pass under the contract; and, (3), the railroad companies were induced to accept the said stock by the acquiescence of the plaintiffs to the terms of the said bill of lading, hence they are estopped to deny the acceptance of same. These objections were overruled and the question allowed, which ruling is assigned as error. The witness answered as follows: ‘I didn’t lmow anything about the terms of this bill of lading, neither did I agree to the same. Brady Union Stock Yards took the bill of lading and then the bill of lading and pass are sent to the hotel and I know nothing about it until the bill of lading and pass get to the hotel.’ The court below erred in this ruling for various reasons. The rule is quite generally settled in the United States that an acceptance by a shipper or his agent of a receipt or bill of lading containing a limitation of the carrier’s liability is binding on him when the limitation is not illegal or unreasonable. And that it is not essential to the validity of such a limitation that it be shown that the shipper was aware of it, or that he had read it, or that it had been explained to him or his attention called to it, provided the carrier made use of no improper means to prevent his noticing or objecting to it. And •that every shipper is conclusively presumed, in such a case, to have read and assented to the provisions of the receipt or bill of lading given him, whether he in fact assented or not. 5 Am. & Eng. Ency. of Law, (2nd ed.),, pp. 293 and 294, and numerous authorities there cited. The stock contract or bill of lading here inquired about had been admittedly received by the shipping plaintiffs, had been accepted and signed by their shipping agent, the Brady Union Stock Yard, and the plaintiff had admittedly received and ridden upon a free pass issued to him by the railroad company as a part of the contract of shipment, and no obstacles were shown to have been thrown in his way to prevent his fully familiarizing himself with the terms of the contract and each and every of its conditions. Under these circumstances it made no difference whether the plaintiffs ever expressly assented to the contract or not, or even read or knew of its terms and conditions, they are fully bound thereby, and are estopped from gainsaying or repudiating it. What is here said disposes also of the assignment of error predicated upon the ruling of the.court in permitting one P. T. McGriff, a witness, and shipping agent for the plaintiffs, to testify to his nonassent to, and want of knowledge of, the terms and conditions of the second live stock contract or hill of lading involved in the case.”

The contention of counsel for plaintiff in error as to the rule of law announced and declared in the Dexter case is thus stated in their brief: “In the Dexter case the Supreme Court of Florida stated the law of that jurisdiction to be that ‘An acceptance by a shipper or his agent of a receipt or bill of lading containing a limitation of the carrier’s liability is binding on him when the limitation is not illegal or unreasonable. And that it is not essential to the validity of such a limitation that it be shown that the shipper was aware of it, or that he had read it, or that it had been explained to him or his attention called to it, provided the carrier made use of no improper means to prevent his noticing or objecting to it. And that every shipper is conclusively presumed, in such a case, to have read and assented to the provisions of the receipt or bill of lading given him, whether he in fact assented or not. 5 Am. & Eng. Enc. of Law (2nd ed.), pp. 293 and 294, and numerous authorities there cited.’ ” With this contention we are unable to agree.

The opinion must be read and examined as a whole, in the light of the facts on which it is based, and the question before the court for its decision, to determine what rules of law are thereby announced and declared.

In this case the question presented is whether, in a case where the shipper only received from the carrier a receipt or bill of lading, on the back of which ivas a provision limiting the liability of the carrier, the assent of the shipper to such provision is conclusively presumed.

In the Dexter case the question presented was whether in a case where a stock contract or bill of lading, containing a provision limiting the liability of the carrier, was received by the shipping plaintiffs and accepted and signed by their shipping agent, and one of the plaintiffs received and rode on a free pass issued to him as a part of the contract of shipment, and the carrier used no improper means to prevent the plaintiffs from noticing such provision, the assent of the plaintiffs to such provision is conclusively presumed.

It is true that in the course of the opinion the court in the Dexter case made use of the language quoted in the brief for plaintiff in error, but that part of the opinion begins with the words: “The rule is quite generally settled in the United States that an acceptance by a shipper,” etc.

The opinion then proceeds as follows: “The stock contract or bill of lading here inquired about had been admittedly received by the shipping plaintiffs, had been accepted and signed by their shipping agent, the Brady Union Stock Yard, and the plaintiff had admittedly received and ridden upon a free pass issued to him by the railroad company as a part of the contract of shipment, and no obstacles were shown to have been thrown in his way to prevent his fully familiarizing himself with the terms of the contract and each and every of its conditions. Under these circumstances it made no difference whether the plaintiffs ever expressly assented to the contract or not, or even read or knew of its terms and conditions, they are fully bound thereby, and are estopped from gainsaying or repudiating it.”

The words, “under these circumstances” in the opinion refer to and include only the facts just before stated in the opinion. It is on those facts that the decision is based that: “it made no difference whether the plaintiffs ever expressly assented to. the contract or not, or even read or knew of its terms and conditions, they are fully bound thereby and are estopped from gainsaying or repudiating it.”

We do not regard the decision in the Dexter case as applicable to the facts of this case, and think that the trial court did not err in excluding the opinion in that case.

The ruling of the trial court may, we think, be affirmed on another ground. The contract before the court in the Dexter case was not made in Florida, but at Atlanta, Georgia, where the horses were shipped and the bill of lading delivered. The law of Georgia, not the law of Florida, controlled as to the nature, interpretation and effect of the contracts for carriage, and we do not think that the opinion of the Supreme Court of Florida on a question controlled by the law of Georgia was admissible as evidence of the law of Florida.

Finding no error in the record, the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    McDowell, Stocker & Company, Defendant in Error, v. W. A. Sharp, Plaintiff in Error.
    Gen. No. 15,288.
    o 1. Statute of frauds—what promise within. A promise by one person to pay an obligation created or to be created by another ii such other does'not, is a promise within the statute.
    2. Statute of frauds'—what consideration sufficient to support promise to pay debt of another. A delivery of merchandise pursuant to such a promise is such consideration.
    3. Municipal court—when defect in hill of particulars will not 'reverse. If the cause of action proved is not correctly set forth in the plaintiff’s “statement of claim” so-called, a reversal will not be awarded if no prejudice appears to have resulted.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Statement by the Court. This is an appeal of the defendant from a judgment for $475, recovered against him in the Municipal Court by plaintiff in an action of the fourth class. This is plaintiff’s Statement of Claim:
    “Plaintiff’s claim is the agreed price at fair market value of one No. 2 Walsh press and one No. 4 Walsh press sold by the plaintiff to one John Wollgren at the request of defendant, W. A. Sharp, and upon his promise to guarantee the account and pay the same if the purchaser did not. Said promise and sale was made on, to-wit, August 14, 1908, and the prices agreed upon between the plaintiff, defendant and Wollgren were as follows:
    One No. 2 Walsh press at.......... $155.00
    One No. 4 Walsh press at.......... 320.00
    Amount due...................$475.00.”

      August 9, 1908, Wollgren called at plaintiff’s place of business and selected two presses, which he desired to purchase on a credit of sixty days. The next day the treasurer of plaintiff called on defendant Sharp and asked him if he would “guarantee the account of Wollgren for the presses he was about to purchase from McDowell, Stocker & Co., and Sharp said that he would, that if Wollgren did not pay, he, Sharp, would.” The price and terms proposed were told to defendant before he “said that he would pay the bill if Wollgren did not.” August 14, 1908, a proposal by plaintiff to Wollgren to sell him said presses on the terms therein stated was presented to Wollgren and defendant and accepted by each in writing. This is said proposal and acceptance:
    “Proposal from McDowell Stocker & Co. Machinery.
    59-61-63 South Canal Street. Chicago, 8-14........1908.
    Mr. John Wollgren:
    We quote you delivered P. O. B. your shop subject to the approval of our home office, (prices being subject to change without notice) the following:
    1 No. 2 Walsh Press O. B. I. .....$155.00
    1 No. 4 “ “ “ “ “ ...... 320.00
    $475.00
    Terms 60 day note dated Aug. 14th, no interest. Signed by Mr. Wollgren & indorsed by W. A. Sharp. John Wollgren. Accepted, W. A. Sharp.
    McDowell Stocker & Co.,
    Per W. McDowell.”
    After this instrument was signed by Wollgren and defendant, plaintiff delivered the presses to Wollgren. The note provided for in said instrument was not given.
    William B. Moak, for plaintiff in error.
    Gartside & Hudson, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The defendant offered no evidence and the case, on the merits, presents only the question whether the evidence on the part of the plaintiff is sufficient to sustain the finding and judgment.

We think that the verbal promise of the defendant of August 8, that he would pay for the presses if Wollgren did not, was in substance a promise to pay the debt of another and within the Statute of Frauds.

The written proposal of plaintiff of August 14 was to sell to Wollgren the presses at $475, to be paid in a 60 day note of Wollgren indorsed by Sharp. This proposal was accepted by Wollgren and Sharp in writing, and afterwards the presses were delivered by plaintiff to Wollgren.

The assent of Sharp to plaintiff’s proposal is shown by his acceptance of it, and he thereby promised plaintiff that it should receive in payment for said presses Wollgren’s note endorsed by Sharp. The sale was not complete until the presses were delivered and the delivery of the presses to Wollgren, after the acceptance of the proposal by Sharp, was a sufficient consideration for Sharp’s promise to plaintiff.

The term of credit had expired when this suit was brought, and plaintiff could recover the price of the presses, as damages for the breach of the special contract for payment in an endorsed note. Dunsworth v. Wood Machine Co., 29 Ill. App. 23; Hanna v. Mills, 21 Wend. 90; Worthy v. Jones, 11 Gray, 168.

The cause of action proved is not accurately set forth in plaintiff’s “Statement of Claim,” but we do not think that the defendant was prejudiced thereby, or that for that reason the judgment should be reversed.

We find no error in the rulings of the court on questions of evidence.

The record is, in our opinion, free from reversible error and the judgment is affirmed.

'Affirmed.


text:
    William D. McKey et al., Defendants in Error, v. William B. Ester, Plaintiff in Error.
    Gen. No. 15,299.
    Brokers and factors—when entitled to commissions. If the employment of the broker is established and it appears that he was the procuring cause of consummating the transaction in question he is entitled to his commissions.
    Error to the Municipal Court of Chicago; the Hoñ. E. L. Eake, Jr., Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Rehearing denied October 17, 1910.
    Statement by the Court. In an action of the fourth class in the Municipal Court plaintiffs filed the following Statement of Claim, verified by the affidavit of Fred A. Gates as the agent of the plaintiffs:
    “Plaintiffs’ claim is for broker’s commission for renting store for defendant at 445 East Sixty-third street, Chicago, to F. M. Johnson and W. G. Morgan for theater as follows:
    For period of two years, 5% of rental, $120.00
    For period of three years, 1 % of rental, 36.00
    Total..........................$156.00.”
    The jury returned a verdict for the plaintiffs for $60 damages, on which judgment was entered, and the defendant prosecutes this writ of error.
    Frank L. DeLay, for plaintiff in error.
    P. H. Bishop, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

Gates, who made affidavit to plaintiffs’ statement of claim, was called as a witness by the plaintiffs. The lease proved was a lease from Ester to Johnson for one year of the premises mentioned in plaintiffs’ claim at $100 per month, with a right of renewal for four years. Defendant’s counsel in his argument to the jury attempted to read from the statement and affidavit of claim and comment on them to the jury, but the court refused to permit him to do so. This was error. Howard v. Tedford, 70 Ill. App. 660; Holmes v. Jones, 121 N. Y. 461. But we do not think that for that error the judgment should be reversed.

The principal controversy is as to the liability of defendant. Caulfield, an employe of the plaintiffs, went with Johnson to Ester’s house, introduced Johnson to Ester,, and negotiations were at once begun between Johnson and Ester which resulted in the making of the lease in question. There is no testimony tending to show that Johnson ever employed plaintiffs to obtain a lease of any premises for him. He desired to lease premises in which to conduct a five cent theatre and went into plaintiffs’ office several times to inquire whether they had such premises for lease, but did not employ or offer to employ plaintiffs to secure a lease for him.

The evidence for the plaintiffs tended to show that some time before Johnson went to Ester’s house he asked Gates, the manager of plaintiffs’ renting department, about the premises which he afterwards leased, in which was then a laundry; that Gates said he would inquire and let him know; that Gates then sent for Ester, who came to plaintiffs’ office and said to Gates that he expected'to lease to his present tenant, but if he did not he would be glad to have another tenant; that Gates told Johnson he could not get the store; that Ester afterwards went to plaintiffs’ office and told Caulfield, another employe of plaintiffs, that he' had not leased to his then tenant ; that the next day Johnson came to plaintiffs’ office and Caulfield told him that the lease of the laundry premises had not been closed, asked him if he would lease them, and Johnson said that he would for ten years at $75 per month; that Caulfield reported Johnson’s offer to Ester, gave him Johnson’s name, and it was agreed between them that Caulfield should bring Johnson to Ester’s house; that Caulfield then over the telephone made with Johnson an appointment to meet him at plaintiffs’ office and take him to Ester’s house; that pursuant to the appointment Johnson came to plaintiffs’ office and Caulfield took him to Ester’s house and introduced him to Ester; that Johnson finally offered Ester $100 a month for the place and give security to restore the premises to their then condition at the expiration of the term, and that he and Johnson then left; that the next morning as Caulfield was passing Ester called him into his house and said that he was satisfied to go into the deal if J ohnson could give him proper .security to put the building back in good shape, and then said, “I will have to pay you gentlemen a commission; how much will'I have to pay you?” That Caulfield answered that he did not know plaintiffs’ rates for such lease, that Gates would give him the particulars.

The testimony for the defendant was in several material matters in direct conflict with the testimony for the plaintiffs. Johnson testified that he went into plaintiffs’ office several times to find if they had anything vacant suitable for a five cent theatre; that one day as he and one Morgan left plaintiffs’ office they passed by the premises in question and saw the sign, “For Bent. Apply to 6628 Monroe Avenue, W. B. Ester;” that they went back to plaintiffs’ office, told Gates that “he was not on to his job,” and then went to the premises, examined them and started to go to Ester’s house; that on the way they met Caulfield by accident and he said he would go with them and did so; that Johnsoji did not meet Caulfield by appointment. Ester testified that Caulfield did not call at his house before he called there with Johnson; that he did not say to Caulfield that he would have to pay commissions on the lease, but admitted that he did, on the morning after Caulfield called with J ohnson, ask Caulfield what was plaintiffs’ charge for commissions.

It is particularly the province of the jury to determine the weight and credit to be given to the testimony of witnesses. We cannot say that the jury might not properly find from the testimony that plaintiffs, through their employes, first called the attention of Johnson to the premises which he afterwards leased; that Johnson submitted an offer to take a lease of the premises for ten years at $75 per month to Caulfield, plaintiffs’ employe; that Caulfield reported the offer to defendant with the name of the person who made it; that defendant requested Caulfield to firing Johnson to defendant’s house; that Caulfield did so, introduced Johnson to defendant and negotiations were then entered on which resulted in the making of the lease.

We think that from the evidence the jury might properly infer a contract of employment and a promise by defendant to pay to plaintiffs the usual commissions in case they should be the procuring cause of a lease to Johnson, and might also find that plaintiffs were the procuring cause of the lease in question. It follows from what has been said that in our opinion the verdict cannot be held to he against the evidence.

The record is, we think, free from reversible error and the judgment is affirmed.

Affirmed.


text:
    William H. Bowers et al., Defendants in Error, v. C. W. Mills, Plaintiff in Error.
    Gen. No. 15,309.
    Brokers and factors—when not entitled to commissions. If there was no direct communication between the broker and the purchaser, such broker is not entitled to commissions unless he shows affirmatively that the purchaser was induced to enter into the negotiations which resulted in the purchase through the means employed by him for that purpose.
    Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed October 6, 1910.
    Rehearing denied October 20, 1910.
    Statement by the Court. In December, 1907, defendant left with the plaintiffs, licensed real estate brokers in Chicago, for sale the property No. 4815 Champlain avenue, Chicago. The attention of Fanny Korsak was called to the property by the advertisement of the plaintiffs and she was shown the property by them. Defendant authorized plaintiffs to sell the property for $9,000, and they offered it to Mrs. Korsak at that price. She appears to have been willing to buy the property at that price provided she could obtain a certain sum of money from her brother. Called as a witness of plaintiffs, she testified that she told the agent of the plaintiffs that if she did not get money from her brother she could not buy the property; that her brother wrote her that he could not raise the money she wanted and she then, “dropped the property and did not think any more about it.” And further testified in part as follows: “Q. Mow are you the owner of 4815 Champlain avenue? A.- I am not now. Q. Who is ? A. A daughter of mine. Q. Did you have anything to do with the purchase of that property for your daughter ? A. Mo, sir. Q. Have you anything to do with the property at all ? A. Mo, sir. Q. What is your daughter’s name ? A. Dorothy.” The negotiations between plaintiffs and Fanny Korsak ended during the last week of April. Early in May Dorothy Korsak, the daughter of Fanny Korsak, then twenty years old, received in settlement of an action brought by her against a street railroad company $4,500. She then began negotiations for the purchase of the property with defendant direct, and May 26 entered into a contract with him for the purchase of the property at $9,000. The defendant advertised the property for sale in the Chicago papers. Called as a witness by plaintiffs, Dorothy Korsak testified: “Q. When was your attention first called to 4815 Champlain avenue? A. I was looking over the advertisements for real estate for sale and saw Mr. Mill’s ad. and called him up. Q. Did your mother ever mention it to you ? A. Mo, sir. * * * Q. Did you at any time ever hear of the firm of Bowers & Co. in connection with this sale ? A. Mo, sir. Q. You never knew your mother was going to purchase it? A. Mo, sir. I work all day and if there was any conversation I would not hear it. Q. You were living with them ? A. Yes, sir. Q. And you did not know your folks were contemplating buying this property? A. I only heard a conversation that they were thinking of buying if they could get some money from my uncle.”
    Plaintiffs had a verdict and judgment thereon for $225, and defendant prosecutes this writ of error.
    C. W. Hills, plaintiff in error, pro se.
    Edward J. Kelley, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

There was in this case no direct communication between the plaintiffs and the purchaser. To entitle the plaintiffs to commissions the burden was on them to show affirmatively that the purchaser was induced to enter into the negotiations which resulted in the purchase through the means employed by them for that purpose; to prove facts from which the jury might properly find that they were the procuring cause of the purchase of the property by Dorothy Korsak. They brought Fanny Korsak to the defendant as a prospective purchaser of the property. In the course of the negotiations with her Dorothy Korsak learned that her mother was thinking of buying the property if she could get money from her brother. She was unable to procure the money and did not buy the property. Afterwards Dorothy Korsak received $4,500 in settlement of an action brought by her against a street railroad company. She then saw defendant’s advertisement, offering the property for sale, entered into direct negotiations with defendant, purchased the property from him and paid the portion of the purchase price which was paid in cash with the money she had received from the railroad company. There is no evidence tending to show that Fanny Korsak was the real purchaser of the property, or that she has or ever had any interest in the property, or that she was at any time the agent either of the plaintiffs or of the purchaser in the negotiations which resulted in the purchase of the property.

Where a broker talked about property which had been placed in his hands for sale to a person, and such person, of his own accord and not acting in behalf of either the broker or the purchaser, mentioned to another that the property was for sale and such person looked into the matter and finally became the purchaser, the agency of the broker in inducing the sale was not sufficiently direct to entitle him to a commission. Baumgartl v. Hoyne, 54 Ill. App. 496; Gleason v. Nelson, 162 Mass. 245, 38 N. E. 497; Johnson v. Seidel, 150 Pa. S. 396, 24 Atl. 687; Vandyke v. Walker, 49 Mo. App. 381; Jones v. Frost, 24 Misc. 208, 53 N. Y. Supp. 573; Antrobus v. Wickens, 4 Foster & F. 291, 19 C. Y. C. 258, note 41.

Plaintiffs’ right to recover in this case finds no support in the cases of Lincoln v. McClatchie, 36 Conn. 136, or Wilkinson v. Alston, 48 L. J. Q. B. 733, 41 L. T. Rep. N. S. 394. In Lincoln v. McCatchie the broker advertised the property. A. was the personal friend of B. and knew that B. wished to purchase a dwelling house. A. saw the advertisement of the broker, went to his office and was told that the defendant had a house for sale and was given the price. A. communicated the information to B., who requested him to examine the property and report. A. did so and B. purchased the property from the defendant. It was held that the broker was the procuring cause of the sale and so was entitled to his commission. The ground of the decision is that A. acted for B. in procuring the information. He did not casually obtain it, but went to the office of the broker to obtain it, and B. acted on the information when obtained, knowing from what source it was obtained; that B. adopted the acts of A., which was equivalent to a previous request to perform the acts; that A. received the information in the capacity of a messenger for B., and that therefore the broker was the procuring cause of the sale as much as would have been the case if B. had gone in person to the broker and obtained the information himself.

In Wilkinson v. Alston, plaintiff Wilkinson was employed by defendant to find a buyer, for defendant’s ship on the terms that if he did so he should receive a certain commission. Plaintiff employed White, who mentioned the ship to Wise, who was the agent of Learoyd. Wise, for Learoyd, acting on the information he had obtained from White,.purchased the ship from defendant. It was held that Wise being the agent of Learoyd, the introduction of Wise to defendant was the introduction of Learoyd, and information given to Wise was given to Learoyd, and that Wise having acted on information received from plaintiff through White, plaintiff was entitled to his commission.

In both cases the right of recovery is based on the fact that the person to whom the broker gave information was the agent of the purchaser, and therefore the information was given by the broker to the purchaser. In this case, as has been said, Fanny Korsak, to whom the plaintiffs gave the information, was .not the agent of her daughter Dorothy, the purchaser.

There is in the record testimony that defendant, after the sale to Dorothy Korsak, promised the plaintiffs to pay them a commission. Defendant testified that he made no such promise. If such promise was made, after the sale, it was without consideration and no action can he maintained upon it.

There is in the record no evidence from which the jury might properly find that the plaintiffs were the procuring cause of the purchase of defendant’s property by Dorothy Korsak, and the judgment will therefore he reversed.

Reversed.


text:
    Joseph R. Morris, Plaintiff in Error, v. A. G. Cuthbert, Defendant in Error.
    Gen. No. 15,320.
    1. Sales—when vendor entitled to recover purchase price. If a vendor performs a contract of sale on his part and the vendee refuses to accept the articles sold, the vendor is entitled to recover the purchase price.
    2. Contracts—when substantial performance not sufficient. Substantial performance of a contract to build a boat according to specific directions is not sufficient; the contract must be strictly complied with.
    3. Verdicts—lohen not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. ' Fred L. Fake, Jb., Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Statement by the Court. Defendant, a boat builder, contracted in writing with plaintiff to build for him a gasoline launch, in accordance with the specifications set out in the contract, at the price of $1,350, payable 25% with the order, 25% when the hull was completed and engine installed, 25% on delivery, and 25% after thirty days’ trial of the boat in actual service. The contract was made April 11, 1908, and provided that the boat should be made within seven weeks from the receipt of the order. The boat was finished July 18 and tendered to plaintiff July 24, who refused to accept it on the ground of delay and also on the ground that it was, not built according to specifications. Plaintiff paid defendant 25% of the price, $337.50, the day the contract was made, and a further sum of $337.50 June 25. August 11, 1908, plaintiff brought suit to recover the $675 paid by him to defendant on the contract. The defendant by way of set-off asked judgment for $675, the unpaid portion of the contract price. The trial resulted in a verdict for the defendant for $675, on which judgment was entered, to reverse which the plaintiff prosecutes this writ of error.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Edward W. Everett, of counsel.
    Defbees, Buckingham, Bitter & Campbell, for defendant in error; IT. A. Fischer, Jb., of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

Soon after the contract was made defendant told plaintiff that because of a fire in the works of the company which was to make the engine, there would be delay in its delivery, but that the delay would be less if defendant waited for the engine he had ordered, than it would be if he ordered an engine from another concern. The time for the delivery of the boat fixed by the contract was May 30. The engine was delivered to defendant June 23 and June 25 ■ plaintiff made to defendant the second payment of $337.50, which the contract provided should be paid when the boat v?as completed and engine installed. If plaintiff intended to reject the boat when finished because of the delay in its delivery occasioned by the delay in furnishing the engine, he should have so stated to defendant when told that there would be such delay. This he not only failed to do, but after the engine was delivered to defendant he made the second payment on the contract to defendant. It is not shown that there was any unnecessary or avoidable delay in completing the boat after the delivery of the engine to defendant. We think that from the evidence the jury might properly find that plaintiff waived the right to refuse to accept the boat on the ground of delay in its delivery. Moline Malleable Iron Co. v. McDonald, 38 Ill. App. 589.

Plaintiff in error contends that the boat was not built in accordance with the contract, and that therefore the plaintiff might refuse to accept it and recover the amounts paid on the contract.

Defendant testified that after the contract was made plaintiff said to him, “I know nothing about a boat and I am trusting to you to give me a good boat, and if you know anything to make it better you will do so,” and that he told plaintiff that, “If I found at any time during the construction of his boat that there was anything that I could improve or that I thought would be to his advantage, I would do it.” Plaintiff testified that he had no such conversation with defendant, but from the evidence the jury might properly find that such conversation occurred, and that thereby the contract was so modified as to give to the defendant the right to make changes from the specifications if in his judgment it would be to the advantage of the plaintiff to do so.

Defendant testified that he still had the boat. If the defendant performed the contract on his part and the plaintiff refused to accept the boat, defendant was entitled to recover the unpaid portion of the purchase price. Shawhan v. Van Nest, 25 Ohio S. 490, and cases there cited.

It was not sufficient for the defendant to show a substantial performance of the contract on his part. To entitle him to recover he was bound to show that the boat which he tendered to plaintiff complied in all material things with the contract.

The specifications provide that the keel shall be of “clear, sound white oak.” In the keel were weather checks and a few small knots. On the question.whether the keel was in accordance with the requirements of the specifications the testimony was conflicting, and we cannot say that the jury might not from the evidence properly find that question in favor of the defendant.

We do not think that the fact that on four or five of the forty ribs of the boat shims were required, shows that the ribs, “were not bent to shape over molds,” as required by the specifications. The ribs were each bent to a different curve. The evidence shows that ribs after bending are liable to spring or draw, and that it is exceptional when such a boat is built without shims between some of the ribs and the planking to make the joint close.

Defendant testified that he put in the engine bed in a manner somewhat different from that provided for in the specifications, and that he put the exhaust water above in place of under water, as the specifications provided; that he thought the way in which he put in the engine bed was better than the way mentioned in the specifications, and that it was better to have the exhaust above than below water.

We think that from the evidence the jury might properly find that the changes referred to were made by the defendant because he believed it would improve the boat to make them, and if after the contract was made the parties agreed that the defendant should make such changes as he thought would improve the boat, the plaintiff could not reject the boat because of such changes.

In building the boat a bolt or spike was accidently driven through the bottom of the boat. It was cut off flush with the planking and the end painted. This did not, in our opinion, give the plaintiff the right to reject the boat.

The fact that the name of the boat was in aluminum letters on the stern in place of on both sides of the bow, as plaintiff requested, did not, we think, give the plaintiff the right to reject the boat.

As to the limbers and limber chains the testimony is conflicting and from the evidence the jury might properly find that the limbers were of sufficient size and that the boat was provided with a limber chain as required by the specifications. The other objections to the boat made by plaintiff we regard as captious.

Whether the defendant, after the plaintiff refused to accept the boat, used it for his own benefit and thereby lost the right to recover the unpaid portion of the contract price, was, we think, on the evidence, a question of fact on which the verdict of the jury must be held conclusive against the plaintiff.

We cannot, on the evidence in this record, say that the verdict is so clearly against the weight of the evidence as to require a reversal of the judgment, and it will therefore be affirmed.

Affirmed.


text:
    Edwin D. Buell, Trustee, Defendant in Error, v. William O. Trainer et al., Plaintiffs in Error.
    Gen. No. 15,329.
    Municipal Court—when unauthorized to extend time for filing hill of exceptions. The Municipal Court is without power after the expiration of thirty days from the entry of judgment to grant an extension of time for -filing a bill of exceptions, statement or stenographic report.

      Error to the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    McEntibe & Mulligan, for plaintiffs in error.
    David Jetzingeb, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court, submitted to a jury, defendants’ motion for a new trial was overruled and judgment entered on the verdict against defendants for $200 and costs December 28, 1908, and thirty days given to defendants in which to file their “bill of exceptions.” Ho other order in reference to the filing of a bill of exceptions, statement or stenographic report was made in the cause until February 6, 1909, when this order was entered: “On motion of counsel for defendants, it is hereby ordered that the time for filing bill of exceptions in the above entitled cause be and the same hereby is extended ten days.” There is nothing to show that the plaintiffs knew or consented to such order, or that the bill of exceptions was signed or filed with their consent.

The Municipal Court was without power after the expiration of thirty days from the entry of the judgment to grant an extension of time for filing a bill of exceptions, statement or stenographic report; Lassers v. The North German Lloyd Steamship Co., 244 Ill. 570.

In view of that decision we think that the bill of exceptions in this case did not become a part of the record and that it must be ignored. M. K. & T. Ry. Co. v. Russell, 60 Fed. Rep. 501; Devine, Admr. v. The Prudential Ins. Co., 156 Ill. App. 477.

Since no error is assigned which appears of record otherwise than by such bill of exceptions, the judgment of the Municipal Court must be affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    August Schlechte, Appellee, v. Chicago Electric Transit Company et al., Appellants.
    Gen. No. 15,151.
    1. Personal injuries—refusal of plaintiff to submit to examination. It is proper to ask the plaintiff upon the trial of his action for personal injuries whether he is willing to submit to a physical examination and if he refuses the fact of such refusal is a matter for the jury to consider upon testimony as to the extent, character and permanency of his injuries.
    2. Evidence—as to what medical expert incompetent. A medical expert examining a plaintiff in an action for personal injuries for the purpose of qualifying as a witness should not be allowed to state his conclusions predicated upon other than objective symptoms.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 30, 1910.
    Rehearing denied October 17, 1910.
    John A, Rose and Frank L. Kbiete, for appellants.
    Walter A. Brendeoke, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment of the Superior Court of Cook county entered in favor of plaintiff and against defendant in an action to recover for injuries alleged to have been suffered by reason of negligence of the defendants’ servants.

That the plaintiff was injured is not denied, nor is it questioned that defendants are liable for such injuries. Defendants’ contention is that the damages are excessive, that the trial court erred in rulings on the admission of evidence and that plaintiff’s counsel was guilty of misconduct prejudicial to defendants. It appears from the evidence that the plaintiff oil the 18th of November, 1905, when riding on the front platform of a North Elston avenue car operated by defendants, was thrown from the car upon the pavement, striking on Ms right side, and that he became unconscious. There is testimony tending to show that five of his ribs on the right side were broken, his right shoulder dislocated, and that two of the broken ribs penetrated through the pleura into the lung. It is urged by defendants that the evidence does not justify the claim that plaintiff suffered permanent disability entitling him to large damages. The verdict was for $7500. Plaintiff remitted $1000 and judgment was entered for $6500.

Plaintiff’s'counsel insist that the judgment is not excessive. Attention is called to evidence in plaintiff’s behalf tending to show the severe nature of his fall, that he lay in bed two weeks unable to sleep much, suffiering from fits of coughing accompanied by bloody expectoration and pain; that after that time the coughing and spitting decreased; that he was confined to his bed about a month and that it was five or six weeks before he was able to walk. There is evidence that after that time plaintiff rapidly grew better, did work about his house, and that nine months after the injury he opened a bakery and thereafter conducted his business regularly in the same manner as before the- accident until in October, 1907, he sold it out. The hemorrhage which it is claimed appeared after the accident is attributed by one of plaintiff’s physicians to a penetration by two broken ribs through the pleura into the lung. It is urged by defendant’s counsel that the testimony upon which plaintiff’s claim is based that he has been permanently injured, rests on subjective statements of plaintiff himself. The physician who was first called after the accident and treated plaintiff about six days was succeeded by plaintiff’s family physician. He afterward made an examination of the plaintiff about a month before the trial, and testified on cross-examination that he examined plaintiff’s shoulder, “not for the purpose of testifying, but for the purpose of finding out whether he had pain in his arm,” knowing however that plaintiff had “a case coming up against the company.” He says that plaintiff “has neuritis of that arm,” resulting from the dislocation of the shoulder at the time of the accident and from “injury to that nerve;” that the evidence he found of neuritis “was simply the course of the pain;” that this “is not entirely subjective; his statement about where the course of pain is, is not entirely so. I can tell he has pain in that nerve if I make pressure on the nerve without asking him. A man could not simulate that kind of pain, not the pain of neuritis of the arm;” that he could “simulate sometimes, yes si-r.” A motion was made to strike out the doctor’s testimony as to neuritis of the arm on the ground that it was based on purely subjective evidence of pain. This motion was overruled, when the witness had stated that “neuritis in the arm is objective.” In Greinke v. Chic. C. Ry. Co., 234 Ill. 564-571, it is said the rule “is well settled that a physician, when called as a witness, who has not treated the injured party but has examined him solely as a basis upon which to found an opinion to be given in a trial to recover damages for the injury sustained by the injured party, cannot testify to the statements made by the injured party to him, or in his presence, during such examination, or base an opinion upon the statements of the injured party. (Citing cases.) An expert witness called under such circumstances must base his opinion upon objective, and not subjective, conditions.” The statement of the physician that “neuritis in the arm is objective” did not meet the objection. The question was not what the doctor’s opinion was, but upon what evidence it was founded. He had based his conclusion that there was neuritis in the arm upon the “course of the pain,” which in the nature of things is a subjective symptom and could be simulated, as the witness admits. Another physician testified in plaintiff’s behalf on direct examination that “the prominent points on the ribs corresponding to the fractures were very sensitive to pressure; often if we touch those points the patient reveals a great deal of pain—making faces and so forth; it responds to the touch.” The part of the answer “making faces and so forth” was stricken out on motion, but the fact remains that the witness’ testimony as to these points being sensitive to pressure was based upon the subjective symptoms stated, as was other testimony of the same kind to which objections were overruled.

We are not called upon however to determine whether the admission of this evidence was necessarily harmful. Defendants’ attorneys urge that there was more serious error in the ruling which sustained an objection to the following question put to plaintiff on cross-examination: “Are you willing, Mr. Schlechte, to he examined by a doctor appointed either by the Court or by myself in the presence of your own doctor as to your present ailment on account of this injury, either here or at your home or at any place that will suit your convenience ?” In City of Chicago v. McNally, 227 Ill. 14-20, the plaintiff was asked whether she was willing to submit to a physical examination. Objections to the question were sustained and the ruling assigned as error. The Supreme Court said the question whether or not one may he asked in the presence of the jury as to his or her willingness to submit to an examination had never been before it for decision; that the question in the form it was asked in that case was properly refused; hut whether so or not, the appellant was. not injured thereby inasmuch as appellant’s counsel was allowed to comment upon the refusal of the plaintiff to submit to an examination by reputable physicians. In P. D. & E. Ry. Co. v. Rice, 144 Ill. 227—232, it was held that injustice is not likely to result to defendant from a refusal to order a plaintiff to submit to an examination by four physicians named, “especially when given the full benefit of the fact that the plaintiff has refused to submit voluntarily thereto, as was done in this case both by evidence and instructions to the jury.” In Sertaut v. Crane Company, 142 Ill. App. 49-61, the refusal of the court to allow the plaintiff to he asked whether he "would consent to an examination was held prejudicial error, on the ground that “the fact of refusal must he brought to the knowledge of the jury either by asking the plaintiff in the jury’s presence whether he will submit to an examination, or asking him out of the jury’s presence, and if he refuses, by producing before the jury proof of his refusal.” While it is the established doctrine in this State that a court has no power to grant a motion to compel a plaintiff to submit to a physical examination (P. D. & E. Ry. Co. v. Rice, supra. p. 232) it does not follow that the plaintiff may not be called upon to answer a question like that under consideration in order that in case of refusal, such fact may be made clear to the jury. If the plaintiff refuses to submit to such an examination the fact of refusal is a matter for the jury to consider in passing upon testimony as to the extent, character and permanency of plaintiff’s injuries. In Union Pacific Ry. Co. v. Botsford, 141 U. S. 250-255, it is said that if one “unreasonably refuses to show his injuries, when asked to do so, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power.” To the same effect is what was said in City of Freeport v. Isbell, 93 Ill. 385-386. And in Sandwich v. Dolan, 42 Ill. App. 53, it was said by Hr. Justice Cartwright: “If she had refused to submit to an examination which would disclose the truth, it would tend to show that the symptoms were exaggerated or feigned.” While a plaintiff has the right to refuse to submit to a physicial examination, the defendant is entitled to have the fact of such refusal put before the jury clearly and unequivocally. It is true that the question under consideration in the case at bar was not “Will you submit” to such examination, but “Are you willing to be examined,” etc., but we are unable to find any real distinction where as here the question went on to make it clear when and where and by whom such examination could be had. The objection sustained was not to the form of the question. If it had been sustained on that ground, the difficulty might have been obviated then and there. FTor would the propriety of the examination in this case in view of the nature-of the evidence in plaintiff’s behalf have been made more manifest by any statement of counsel or affidavit that such examination was necessary to a full and fair trial. The necessity of or at least advisability of such examination was we think manifest from the nature of the plaintiff’s proof, which consisted in large part of plaintiff’s declarations and in part of opinions of his doctor’s based in part on subjective conditions.

An expert called by defendants testified that “if neuritis of the radial nerve existed it would be objectively evident in the hand.” But the conclusion of plaintiff’s witness, upon which his opinion that neuritis existed was apparently based, rested on the conduct of the patient when the doctor pressed upon certain points, “making faces and so forth,” clearly subjective symptoms and incompetent as evidence.

The refusal of the trial court to allow the question to be answered by the plaintiff left the jury in uncertainty on the material point, whether plaintiff himself was willing to submit to an examination and so furnish the best evidence in his power as to the character and extent of the injuries for which he is seeking compensation.

Complaint is, made of alleged prejudicial remarks and conduct of plaintiff’s counsel on the trial. We think the record shows this objection to be well founded, but since the cause will probably be submitted to another jury, and in confident expectation that these errors will not be repeated, we will not extend this opinion to consider them in detail.

For reasons indicated the judgment of the Superior Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Freeman

text:
    Helen T. Pelouze et al., Plaintiffs in Error, v. Harry R. Gibbons, Defendant in Error.
    Gen. No. 15,188.
    1. Contracts—release of executory contract under seal. An executory contract under seal can be released and canceled by an executed verbal agreement.
    2. Contracts—modification of executory contract under seal. An executory contract under seal cannot be modified, varied, discharged or released by an executory verbal contract.
    3. Landlord and tenant—what does not affect cancelation of lease. A verbal agreement to cancel an executory demise not followed by surrender, is ineffectual to accomplish a termination.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court. at the March term, 1909.
    Reversed and remanded.
    Opinion filed October 6, 1910.
    William E. O’ÜSTeill and Jacob E. Dittus, for plaintiffs in error.
    John S. Hummer and Charles A. McDonald, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

Plaintiffs, who are heirs under the will of Stephen F. Gale, deceased, sued in this action to recover rent claimed to be due from defendant under a ground lease made by said Gale in his lifetime to defendant, Harry E. Gibbons. The lease in question bears date March 1, 1905, and by its terms leases the premises therein described from the first day of May, 1905, until the thirtieth day of April, 1910, at an annual rental of $2,200 per annum, payable in quarterly payments of $550 each in advance, on the first days of May, August, ^November and February in each year of the term. The lease permits the lessee to erect and maintain improvements and to remove them at any time during the term, providing all rents and other charges finder the lease have been fully paid. The lessee having failed to pay the quarterly installment due February 1, 1908, plaintiffs brought this action to enforce payment.

The defense is set forth in an amended affidavit of merits filed September 26, 1908, by leave of court after the trial in the court below and pending a motion for a new trial nunc pro tunc as of June 1, 1908, prior to the trial. It is the last of four affidavits of merits—the first two of which were stricken from the files—filed by defendant’s counsel. Although the order “nunc fro tunc” is for obvious reasons erroneous, the affidavit itself states the grounds upon which the defense rests. We quote material parts as follows:

“(1) That one Miller, the duly authorized agent of the plaintiffs in that behalf, on or about January 20th, 1908, made and executed a verbal agreement with the defendant herein, whereby the lease and the term created thereby was canceled and surrendered, and the said defendant was thereby released and discharged from further liability or obligation under said lease.”

“(2) That after the cancelation and surrender of said merits filed September 26, 1908, by leave of court after the lease and the term thereby created, the said Miller made and entered into a verbal agreement with said defendant for ,a new lease to the said premises, for a period of ten years from and after February 1, 1908, upon the same terms and conditions contained in the lease mentioned in this cause. That thereafter said Miller refused and still refuses to make a lease on behalf of his principals pursuant to said verbal agreement.”

The cause was submitted to a jury and a verdict returned for defendant upon which judgment for costs was entered against plaintiffs, ' to reverse which this writ of error is prosecuted.

The defendant’s counsel state his contention to be, that “An executory contract under seal can be released and canceled by an executed verbal agreement.” Citing Alschuler v. Schiff, 164 Ill. 298, and Bloomquist v. Johnson, 107 Ill. App. 154. As to this there is no dispute. It is however indisputably settled that an executory contract under seal cannot be modified, varied, discharged or released by an executory verbal contract. Leavitt v. Stern, 159 Ill. 526; Smith v. Lewis, 24 Conn. 624-641. This does not appear to be disputed in behalf of defendant. The latter’s counsel claim that “the evidence introduced on behalf of the defendant in error, when considered in the light of the surrounding-circumstances, is sufficient to establish the defense of an executed verbal agreement to cancel the lease upon which recovery is sought in this case.” In this contention we are unable to concur. The defendant’s testimony as to such alleged verbal agreement is to the effect that Miller, who testified he was agent of the plaintiffs “for collection of rents,” told defendant that “he would give me a ten years lease and would cancel the old lease” from the first of February, 1908. Miller himself denies that he made any such promise or agreement, and in this he is corroborated by his stenographer, who was present and heard the conversation. But assuming that such verbal promise was made by Miller, there is in the first place no evidence called to our attention tending to show that Miller had any authority whatever to make any such agreement in behalf of the plaintiffs; and in the next place, there is no evidence tending to show that such alleged agreement was acted upon. The burden of proof in this respect was clearly on defendant, after the introduction of the written lease and proof of defendant having taken possession under said lease of the leased premises and paid rent therefor. Defendant’s argument is that since there is evidence tending to show that at the time of the alleged verbal promises two-thirds of the buildings on the leased premises had been destroyed by fire, “the only act of surrender which the defendant was capable of performing was to agree to the cancelation of the lease.” It is not claimed in behalf of defendant that he ever in any way made or offered to make any actual surrender of the premises, and the lease itself has never been surrendered nor canceled. On the contrary there is uncontradicted testimony tending to show affirmatively that defendant was still in possession and making use of the premises within a few days before the trial in the lower court. The defendant’s contention as set forth in the amended affidavit above quoted, namely, that “the duly authorized agent of the plaintiffs in that behalf on or about January 20, 190S, made and executed a verbal agreement with the defendant,” is, so far as we can discover, wholly unsupported by evidence of such execution. We agree with plaintiffs’ contention therefore that defendant’s testimony to the effect there was an oral executory agreement to cancel the lease in controversy and to give defendant a new ten years’ lease was incompetent and that it was error to deny the motion of plaintiffs’ counsel that it be stricken out.

The law applicable is stated in Leavitt v. Stern, supra, as follows: “The lease was an instrument under seal and appellant sought to show that fourteen months before the end of the term created by it, it was canceled by the parol agreement for a new lease for a term of six years. "x" * * In Loach v. Farnum, 90 Ill. 368, it was said by this court: ‘It is a well settled rule of the common law that an executory contract under seal cannot be modified or varied by a parol agreement,’ and the same doctrine has frequently been announced by this Court.” (Citing cases.) “This is not a case where the parol agreement had been executed by the parties, and it does not therefore come within the exception to the rule as stated in Worrell v. Forsyth, 141 Ill. 22. The testimony as offered did not tend to prove any actual cancelation or surrender, but only an oral agreement that the new lease should take the place of the old. It follows therefore that the proposed testimony was incompetent to prove a termination, cancelation or surrender of the lease.” What is said in Smith v. Lewis supra is also in point: “As to the other point in the case, we are of the opinion that the Court properly refused to hear evidence relative to a parol executory discharge of a sealed executory agreement. * * * We are not aware that any case of high authority has permitted a mere verbal agreement for the release of a covenant under seal, without an execution by the cancelation or surrender of the covenant itself, to operate as a discharge of the most solemn instrument known to the law. * * * It is clear that sealed contracts for the performance of future acts would be of little avail if parol testimony could be received to show that the parties verbally agreed, before the time of performance arrived, to dispense with the obligation of the covenant.”

The judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    John F. McLean, Defendant in Error, v. National Press Association, Plaintiff in Error.
    Gen. No. 15,202.

      Contracts—who not liable upon. Where a salesman is employed by a contract which provides that his sales, etc., shall be made in the name of another corporation, such other corporation is not liable for the commissions earned by such salesman.
    Attachment. Error to the Municipal Court of Chicago; the Hon. McKenzie Gleland, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed October 6, 1910.
    Fred A. Bangs, for plaintiff in .error.
    F. J. Karasek, for defendant in error; Charles W. Espey, of counsel.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This writ of error'is prosecuted by the defendant in the suit to reverse a judgment in favor of the plaintiff McLean based upon a written contract made and executed by and between plaintiff and a third party.

The contract in question was made November 27, 1905, between the Syndicate Publishing Company, a corporation, party of the first part, and John F. McLean, party of the second part. It provides among other things that the Syndicate Company shall furnish the second party a.publication called Twentieth Century Encyclopaedia f. o. b. Philadelphia, Pa., or Albany, N. Y., for $8 per set and furnish prospectus, etc., at cost of production; that the Syndicate Company shall advance second party such part of $150 a week as may be necessary until such time as the cash collected on orders taken by second party shall equal $150 a week, not exceeding however $10 an order; that the second party shall devote entire time and sell the publication for not less than $29.50 per set, make settlements promptly the first of each month for the preceding month’s purchases, not draw more than $150 a week from their business, McLean to draw $80; that the second party shall turn over to the Syndicate Company all leases or agreements of sale as soon as delivery of book is made to subscriber, the Syndicate Company to use its best endeavors to collect same and to receive therefor fifteen per cent on the actual amount of cash collected with additional fees if suit should be found necessary; said contracts to be held only as security for obligations of second party to the Syndicate Company and not to be used except for liquidation of such obligations. The first party is to mail monthly statements showing amount of collections for preceding month.

The only reference to defendant in the contract is in the following clause: “It is also mutually understood and agreed that the actual agreements of sale shall be made in the name of the National Press Association, and that the collections to be undertaken by said first party (Syndicate Publishing Company) shall be also made in that name at its office in Philadelphia, and at such time as said National-Press Association may have an office in the city of Chicago, the collections may also be made from that point if it should be deemed advisable.”

The second party was to begin operations on or before January 1, 1906, and the agreement was to continue in full force and effect until January, 1907. The contract is signed by “Syndicate Publishing Company, B. Mauer, Secretary,” and by John P. McLean. E. L. Whittier, who is mentioned in the contract as one of the parties of the second part, did not sign it and seems to have dropped out before the contract was executed.

The plaintiff’s bill of particulars filed November 6, 1907, states that plaintiff’s claim is upon the foregoing contract; that the plaintiff took orders for said publication under said contract at $29.95 for each order, specifying eighty-one orders, and that there was a balance due him on the face of contracts taken of $957. In an amended statement of claim filed by leave of court November 22, 1907, it is alleged that the agreements of sale or orders for the sale of the publication referred to in the original bill of particulars “were taken in the name of the National Press Association and the collections to be undertaken for the monthly payments were also taken in the name of the National Press Association; and the plaintiff avers that the agreements of sale and the collections aforesaid were both accepted by the said National Press Association and all work done by the plaintiff was done and accounted for to the National Press Association and by them was accepted, and the said National Press Association received the benefit of the work aforesaid and of the orders for the agreements of sale for the publications aforesaid and the collections undertaken as aforesaid.” The suit was originally begun by attachment. Later the defendant filed bond and the garnishee, the Railway Claim Adjusting Company, was by order of court released and discharged.

There is evidence tending to show that the plaintiff took eighty-one orders for the publication referred to, and that he worked under the contract in question until about April 4, 1906. At that date he wrote the Syndicate Publishing Company that “owing to the uncertainty of procuring business” under existing industrial conditions, he did “not feel justified in spending any more money on Try outs’ at this time.” There is evidence tending to show that he meanwhile had received under the contract merchandise amounting to $655.55 and $834.92 in cash advanced to him, a total of $1,490.47; that meanwhile the Syndicate Publishing Company had collected according to its books on the orders taken and sales made by plaintiff $1660.49; that deducting from this amount the fifteen per cent commission to Avhich it Avas entitled under the contract and the amount paid plaintiff, the latter was in debt to the Syndicate Company in the sum of $79.05. There is also evidence tending to shoAV that the merchandise furnished and cash advanced under the contract all came from the Syndicate Publishing Company. The plaintiff’s claim against defc'dant is based upon the clause in the contract between him and the Syndicate Publishing Company, in which it was mutually agreed that the agreement of sale and the collections to be undertaken by the Syndicate Company should be in the name of the defendant, a separate corporation, and not a party to the contract. It is charged that these agreements of sale or orders for the publication referred to were accepted by the defendant and that it received the benefit of the work and of the orders taken and collections made by it. The clause in the contract referred to states however that it was “the collections to be undertaken by said first party,” namely the Syndicate Publishing Company, that were to be made in the defendant’s name, thus by mutual agreement between plaintiff and the Syndicate Publishing Company constituting defendant the agent of the Syndicate Publishing Company to make the collections, which by the contract the Syndicate Company was “to use its best endeavors to collect.” The plaintiff in taking orders of sale in the defendant’s name and the Syndicate Company in turning them over to the defendant as its agent in making the collections, were acting in accordance with the terms of their own written agreement, to which the defendant was not a party. That in accepting the agency for the Syndicate Company at the request of both parties to the contract, the defendant made itself liable to the plaintiff under the contract, is a claim which finds no support in this record; and there is no evidence to which our attention has been called tending to show the defendant “received the benefit of the work aforesaid and of the orders for the agreements of sale for the publication aforesaid and the collections undertaken as aforesaid,” as set forth in plaintiff’s amended statement of claim. It is said by plaintiff’s counsel that “it appeared that the said Syndicate Publishing Company in so signing (the contract) was acting in the matter as a representative of the National Press Association, which had not only availed itself of the benefits of said contract, but had acted upon it and assumed the obligations thereof as though it had expressly made itself a party thereto by signature in due course. The two corporations assumed toward each other the relation of partners and the jury found plaintiff in error liable on the contract.” No effort is made to point out evidence tending to support the contention that the Syndicate Publishing Company signed the contract sued on as a representative of the defendant. It is apparently sought to hold the defendant liable on the alleged ground that the two corporations “assumed toward each other the relation of partners.” The contention is not supported by evidence, the absence of which cannot he supplied even by the verdict.

The claim to hold defendant liable under the circumstances on the mere alleged ground that it has “assumed the relation of partner” toward another corporation which is the real contracting party, hut not a party to the suit, is not tenable. There is no evidence tending to show that the defendant assumed the contract of the Syndicate Publishing Company or has acted otherwise than as agent of the contracting parties.

The evidence upon which the claim of plaintiff to recover any definite sum of money is apparently based tended to show that in his opinion the plaintiff has not received all he is entitled to out of the money collected by defendant, whether as agent or otherwise. Plaintiff testified that he had no knowledge how much had been collected on his orders for the publication; that “there should be due me now about $8 on each contract taken as recorded here, which would make about $648.” The objection that this is a mere statement of opinion or conclusion of the witness is well taken. There is no controversy on any question of law. Plaintiff’s counsel states, “We are willing to concede that the propositions of law advanced by the plaintiff in error are entirely valid.” We are of opinion the defendant is not liable on the contract upon which the suit is brought. The judgment of the Municipal Court is therefore reversed.

Reversed.


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    Nathan Gethner, Defendant in Error, v. A. D. Salomon et al., Plaintiffs in Error.
    Gen. No. 15,231.

      Revenue—effect of governmental seizure of cigars. If cigars are offered for sale contrary to the revenue laws of the United States a right of forfeiture and seizure by the government arises and if the cigars are actually sold pursuant to such offer a subsequent seizure by the government operates to vest the title of the government thereby acquired as of the time of the offer of sale and to divest the paper title made by the sale pursuant to the offer.
    Trover. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantby, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed June 30, 1910.
    Rehearing denied October 17, 1910. .
    Childs & Childs, for plaintiff in error.
    Bernard J. Brown, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action in trover brought by plaintiff, Nathan Gethner, doing business as Gethner Brothers, to recover the alleged value of a quantity of cigars claimed to have been unlawfully converted by defendants. The cigars in question were manufactured by one Ben Meyer at his factory, No. 1695 First District of Illinois. There were about twenty-seven or twenty-nine thousand of them and they were packed in boxes bearing labels which indicated they had been made and the revenue stamp cancelled in the Third District of Iowa. The boxes bore a warning notice as follows:

“Factory No. 76, State of Iowa.

Notice: The Manufacturer of the cigars herein contained has complied with all the requirements of law. Every person is cautioned not to use either this box for cigars again or remove the contents of this box without destroying said stamp under the penalties provided by law in such cases.”

Each box had burned into the wood, “Factory 3STo. 76, Third District, Iowa.” Meyer testifies that plaintiff took a few of these boxes of cigars and tried to sell them and a few days later bought from Meyer 22,000 of them, which Meyer delivered to him by an expressman. • Gethner tried to sell the cigars and did sell and deliver some, which however the purchasers refused to retain and returned to plaintiff without paying for them. About this time the cigars were seized by the Collector of Internal Revenue for the First District of Illinois, because they were illegally marked and branded. The fact that they were so illegally marked is not disputed. Meyer, the manufacturer of the cigars, was arrested by the authorities of the United States. A compromise was finally effected by one Salomon acting as agent for and in behalf of Meyer, who paid the Government in settlement the sum of two hundred dollars with costs and expenses. On the 10th of May, 1907, Meyer received notice of the Government’s acceptance of the compromise. A few days later the boxes of cigars were correctly marked, inspected by the officials of the Government and Meyer was notified to go to Salomon’s office and get them. Before he did this the defendant instituted a suit in attachment against Meyer and caused a writ of attachment to be served on Salomon as garnishee. Upon order of the Court in the attachment suit the cigars were afterward on June 15, 1907, turned over to the defendant herein.

It is said by plaintiff’s attorney that the only proposition involved in the case in the one stated by defendant as follows: “At the time Gethner Brothers claim to have purchased and acquired possession of the cigars in question said cigars were not the subject either of legal sale or legal delivery, and they could acquire neither the legal title nor legal possession thereof.” In this contention we concur. Section 3397, vol. 3, Federal Statutes Annotated, p. 750, provides that whenever cigars “are removed from any manufactory or place where cigars are made * * * without properly affixing thereon and cancelling the stamp denoting the tax on the same * * * they shall be forfeited to the United States,” and if any “are sold or offered for sale not properly boxed and stamped, they shall be” so forfeited. The federal statutes also provide that property taken under authority of any revenue law of the United States, as were the cigars in question, “shall be irrepleviable and shall be deemed to be in the custody of the law and subject only to the orders and decrees of the Courts of the United States having jurisdiction thereof.” Section 934, Vol. 6, p. 766, Federal Statutes Annotated.

In Clark v. Protection Ins. Co., 1 Story (U. S.) 134, it is said, “the established doctrine is that notwithstanding the forfeiture, the property remains in the owner until it is actually seized by the Government and then by the seizure the title of the Government relates back to the time of the forfeiture.” When therefore the cigars in question were seized by the Government the title of the latter related back to the time when they were first “offered for sale” and before such sale was or could be consummated. The plaintiff never had any legal title to them. The moment the cigars were removed from the factory of Meyer where they were made, without being properly marked, stamped and branded, they became forfeited, and by the seizure the title of the Government related back to that time.

Plaintiff apparently relies upon Wessels v. Beeman, 87 Mich. 481. In that case it is said (p. 490) : “There was no testimony introduced and none offered to show that the United States had taken any steps to enforce the forfeiture, although its revenue officers were acquainted with the facts.” In the case at bar however steps were taken to enforce the forfeiture and the cigars were actually seized by the Government. The language therefore in the case last cited and upon which plaintiff’s counsel apparently relies, is not in point. It is as follows: “We do not think that third parties can set up the illegality of a sale in violation of the revenue laws to defeat an action brought against such third persons for inter-meddling with the property or converting it to their own use, when neither party to the contract has repudiated it and the contract has been fully executed.” This has no application under the facts in the case at bar.

After the cigars were seized and after Meyer, the manufacturer, had been arrested he went to one Salomon to obtain bail. Salomon thereafter acted as Meyer’s agent. He paid for Meyer the cost of an appraisement made by the Collector, and the cost of publication of a notice by the Collector to the effect that “any person claiming ownership of said cigars must appear and file claim within thirty days from the date of this notice.” It was not the plaintiff, but Meyer, accompanied by his agent Salomon, who appeared and claimed the cigars. And it was Meyer acting through Salomon who compromised the matter with the Government and paid the fine of $200 with costs and expenses. When the compromise was accepted by the Government, notice of the acceptance was sent to Meyer, and it was Salomon acting for Meyer and not for plaintiff, so far as appears, who when the cigars had been put in proper condition for sale notified not plaintiff but Meyer to come and get them. Before Meyer did so the defendant attached them as Meyer’s property in the hands of Salomon.

We are of opinion the plaintiff has failed to show any title to or right of possession of the cigars in controversy. The judgment of the Municipal Court is reversed.

Reversed.


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    Worth Huskey Coal Company, Defendant in Error, v. The Parker-Washington Company, Plaintiff in Error.
    Gen. No. 15,243.
    1. Contracts—right to reject deliveries of coal. Coal delivered which is not the kind and quality contracted to be delivered is properly rejected.
    2. Accord and satisfaction—when not established. “Where the amount due a creditor is ascertained and not in dispute, the payment by the debtor and acceptance by the creditor of a less sum will not operate as a satisfaction of the demand; but if the amount due is unliquidated and there is a bona fide dispute as to how much is due, a payment of the amount elaimecl by the debtor to be due, in full settlement, if accepted by the creditor is a satisfaction of the claim.”
    Error to the Municipal Court of Chicago; the Hon. J. C. Scovel, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed October 6, 1910.
    Statement by the Court. This writ of error is sued out to reverse a judgment for $401.65 against the defendant, plaintiff in error here. The cause was tried without a jury.
    The defendant company doing business as a contractor and excavating a tunnel for the city of Chicago was in May, 1908,, consuming from one to two carloads of coal a day. The plaintiff is a dealer in coal and had been delivering to defendant coal known as “Knox County Indiana, Mine Run Coal.” On the 16th of May, 1908, the defendant by its superintendent gave the plaintiff an order as follows: “You may enter our order for ten cars Mine Run Coal same quality as you have been delivering to us, one car per day—or not less than one car every two days, f. o. b. Grand Crossing, Ills., Ill. Central, Lake Shore or Ft. Wayne tracks, at one dollar seventy cents per ton. You may extend shipments on the above terms beyond the amount and time specified until notified by us to cease shipment.” This order is said to have been accepted, but within three or four days the secretary of the plaintiff called at the defendant’s office and stated that owing to a strike in Indiana plaintiff could not furnish any Indiana coal except a car or two then in transit, until coal mining in Indiana should be resumed, but would fill the order with other coal of quality equal to Knox County Mine Run coal. There is some difference between the witnesses as to the exact phraseolgy used in this conversation, whether the plaintiff’s secretary promised coal of equal quality or “a very good grade of Illinois coal” through the strike period. Plaintiff thereupon directed twelve or more cars of Illinois coal to be shipped to the defendant, and in all ten cars of Illinois coal were so shipped, received and paid for by defendant. Five carloads of the same kind of coal however arrived between June 8th and June 12, 1908, and were set on the tracks for defendant by the Ill. Central Ry. Co., but were refused and were never accepted or used by the defendant. Three of these carloads were subsequently used by the railroad company and two carloads were sold by the latter company for its charges. These are the cars now in controversy.
    There is testimony tending to show that early in June, 1908, defendant notified plaintiff that the coal was coming too fast for defendant to take care of it, and during the first week of June there was a conversation at defendant’s office between plaintiff’s secretary and defendant’s representatives, in which the latter complained that the Illinois coal shipped to them was not satisfactory, not in accordance with the agreement, and plaintiff was notified that defendant would not receive any more of that coal. There is testimony also tending to show that on or about the 8th or 10th of June the plaintiff’s secretary was again notified that defendant would not receive the coal on the tracks and that it had notified the Illinois Central Railroad Company of such refusal. There is conflict in the testimony as to what was said at these conversations.
    Frank L. Childs and Ode L. Rankin, for plaintiff in error.
    Harvey Striokler, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant that the latter gave plaintiff timely notice that it would not receive the five cars of coal in question, that defendant had the right to refuse it, that the Illinois coal furnished was of inferior quality, that the court erred in rejecting proof of the relative qualities of the Indiana and Illinois coal in question and that the use of defendant’s check by plaintiff while there was a bona fide dispute over the item of demurrage which had been deducted from the voucher accompanying the check, was an accord and satisfaction of the demurrage item and all matters contained in said voucher. As to the first of these contentions we are of opinion the preponderating evidence tends to show that notice of the defendant’s refusal to accept the five carloads in question was given to the railroad company early in June with a request that the shippers be notified, and that the plaintiff’s secretary was in fact so notified by defendant, in apt time. There is correspondence between the parties that tends to sustain this view in addition to the other evidence.

In the next place, it appears the original understanding was that Illinois coal of good quality was to be furnished by plaintiff to defendant until coal mining in Indiana should be resumed. It is conceded that mining in Indiana was resumed about June 1st and that plaintiff received Knox County Indiana coal on June 4th, the kind it had been shipping defendant prior to the strike, and this was before the five cars of Illinois coal in controversy which defendant refused to receive were placed on the tracks by the Illinois Central Railroad Company for delivery to defendant. It is apparent that in shipping this coal the plaintiff was not conforming to the terms of the original understanding and agreement. That the Illinois coal so shipped was of inferior quality and that defendant had been complaining about it, the evidence sufficiently discloses.

It appears that on or about August 1,. 1908, defendant made out a statement or voucher showing the numbers of the cars received from plaintiff which were received and used by defendant, the freight charges and demurrage on each car, the invoice price and showing a balance due from defendant of $496.88 after deducting the demurrage paid. A check for this balance was made out and sent to plaintiff, with the voucher, which contained a receipt for the amount of the check, “Four Hundred Hinety Six and 88/100 dollars in full settlement of the above account.” There was a dispute between the parties as to the demurrage charged amounting to $95, which had been deducted by defendant, the check being for the balance after such deduction had been made. Plaintiff retained this check and voucher and upon August 14, 1908, plaintiff’s secretary wrote to defendant that he had not heard from defendant in regard “to the car service which you promised to investigate and let us know about. You will remember this amount was $95 and was deducted from your voucher. We have been holding the check pending investigation and would now like to know what you intend doing in the matter, as this delay ties up our money.” About the first of September following there was a conversation about this demurrage between representatives of the respective parties at the defendant’s office. At a subsequent conversation over the telephone defendant’s representative offered to “pay a portion of the demurrage on condition that our past accounts were all closed upand this was followed by a letter, a portion of which is as follows, dated September 17, 1908:

“Worth Huskey & Co., 303 Dearborn St., City.

Gentlemen: We wish to say in regard to our conversation over the telephone this afternoon, we are well satisfied that justly you should pay the car service as per deductions made from your invoices, but we feel this way about our deals with you that rather than having this matter of claims standing between yourself and us, we are willing to compromise our differences by the payment to you of $75.00 on the $95.00 car service deductions, you giving us a receipt in full for all our transactions with you to date.”

Within the next two days it appears from the evidence the check in question was deposited and collected by the plaintiff, the latter having full knowledge of the terms upon which the check was held by it and that the demurrage item was still in dispute. We are of opinion that the defendant’s contention to the effect that “the use of defendant’s check while there was a tona fide dispute over the item of demurrage which had been deducted from defendant’s voucher which accompanied said check was an accord and satisfaction of the demurrage item and all matters in the voucher contained,” is in view of the evidence and the law applicable well taken. In Snow v. Griesheimer, 220 Ill. 106-109, it is said: “Where the amount due a creditor is ascertained and not in dispute, the payment by the debtor and acceptance by the creditor of a less sum will not operate as a satisfaction of the demand; but if the amount due is unliquidated and there is a bona fide dispute as to how much is due, a payment of the amount claimed by the debtor to be due, in full settlement, if accepted by the creditor is a satisfaction of the claim. In Ostrander v. Scott, 161 Ill. 339—345, it is held in substance that one cannot receive and use a check and repudiate the terms upon which it was tendered. See also Perkins v. Headley, 49 Missouri App. 556.

In view of the conclusions stated it is not necessary to follow counsel in the discussion of other points raised in the briefs. For reasons indicated the judgment of the Municipal Court must he reversed.

Reversed.


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    Edward T. Stokes, Defendant in Error, v. Robert H. Howe, Plaintiff in Error.
    Gen. No. 15,254.

      Contracts—when person ordering work clone liable. One who represents himself as the owner of property and orders work done thereon is liable for the debt thus created.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed October 6, 1910.
    Thomas J. Morgan, for plaintiff in error.
    J. J. O’Connor, for defendant in error.
   Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment for $104.38 against defendant, Robert H. Howe. The suit was originally commenced against him and his wife, Annie T. Howe, hut subsequently dismissed as to her.

There is evidence tending to show that the wife, Annie T. Howe, was owner of the premises known as Ho. 1014 Sheridan road, Evanston, which at the time the work was done for which plaintiff recovered in this suit, was occupied by one Charles Anthony under a lease from said Annie T. Howe. About the middle of February, 1907, the tenant complained to the health department of the city of Evanston to the effect that the premises in question were in a very unsanitary condition. A sanitary inspector of that department thereupon inspected the premises and notified Mrs. Annie T. Howe by letter of the conditions as he found them. The tenant meanwhile called on the plaintiff Stokes, who is a plumber, and asked him to examine the plumbing. Plaintiff did so and found that the main sewer leading from the house was stopped up with dead leaves. After working one day and part of the next and finding the cause of the trouble, plaintiff instructed his men not to go on with the work unless the owner should so direct. It appears from the testimony of plaintiff’s witnesses that while they were there at work the defendant, Robert H. Howe, came there with another plumber, and that on being informed by plaintiff’s workmen as to the cause of the trouble and stating that he was the owner of the building, he told plaintiff’s workmen that as they were doing the work they “might as well finish it and do a good job.” Plaintiff accordingly finished the work. He states that he mailed his bill to Annie T. Howe the first of each month for five or six months, and after threatening to sue received from her a threatening letter. He thereupon commenced this suit.

The defendant Howe in his testimony states that on Friday, February 15, 1907, his wife showed him a letter addressed to her relating to the condition of the house; that he went out to the premises and found two workmen there at work on the sewer; that he inquired what they were doing, but did not say anything to them with reference to going on with the work. He says his wife owned the property. Hpon this state of facts the trial court dismissed as to Annie T. Howe on the ground that the evidence showed no liability on her part, and gave judgment against the husband.

There is conflict in the evidence as to whether the defendant Howe stated to the plaintiff’s workmen that he was the owner of the premises and directed them to go on with the work, but on this question of fact the evidence preponderates against him. Even though the title of record stood in the name of his wife, it appears from the preponderating evidence that defendant held himself out as the real owner and directed plaintiff to go on with the work; and from defendant’s evidence it appears that he was there because of the letter his wife had received relating to the sewer. Having stated that he was the owner and directed the plaintiff to do the work, we find no error in the action of the court holding him liable for work done under his orders on property he claimed to own, and which he and his wife have since conveyed by a deed in which both joined.

The judgment of the Municipal Court will be affirmed.

Affirmed.