source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    Mary Feeney, Appellee, v. National Council of the Knights and Ladies of Security, Appellant.
    Gen. No. 16,463.
    1. Ihstkbakch — misrepresentations. Where the insured knowingly makes false statements in his application material to the risk, the policy is void.
    2. Insubance — materiality of misrepresentations. A representation in an application for life insurance that the applicant has not been confined to the house by illness within the past five years, where it appears that he was so confined with pneumonia within that time for a period of five or six weeks, is a false representation material to the risk.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed August 12, 1912.
    A. W. Fulton, for appellant.
    David K. Tone and H. M. Ashton, for appellee.
   Mr. Justice Baume

delivered tlie opinion of the court.

This is a suit instituted in the Circuit Court by appellee, Mary Feeney, against appellant, The National Council, Knights and Ladies of Security, a fraternal benefit society organized under the laws of Kansas, to recover the amount of a benefit certificate issued by appellant to Patrick Feeney, the husband of appellee, December 9, 1899, wherein appellee was named as beneficiary. To the declaration upon the benefit certificate appellant filed numerous special pleas, wherein it averred that said certificate was obtained by the insured by fraud and false representations and untruthful answers with reference to certain questions, material to the risk, in the application and medical examination, upon the faith of which said certificate was issued. Upon issue joined a trial by jury resulted in a verdict and judgment against appellant for $1,000, from which judgment it prosecutes this appeal.

Much of the argument of counsel is devoted to a discussion of the question whether under the contract of insurance the answers made by the insured to the questions involved constituted warranties or representations merely, but in the view we are impelled to take of the case we do not deem it necessary to discuss and determine that question. It is conceded by appellee that the answers or statements involved must at least be treated as representations, and that such representations, if untrue, would avoid the certificate of insurance, if they related to matters material to the risk, and were made by the insured with knowledge of their untruthfulness.

The insured’s application for the certificate sued on bears date December 4, 1899, and the insured died October 15, 1900. Waiving a discussion of the several other alleged false representations and of the conflicting evidence relating thereto, we take up the consideration of an alleged false representation with reference to which there is no conflict of evidence.

The 38th question in the application for the certificate is as follows:

“Have you had any illness, constitutional disease or injury that has confined you to the house during the past five years ? If so, give particulars. ’ ’

To this question the insured answered, “No.”

Whatever view may be taken of the evidence bearing upon the other issues involved, the uncontroverted facts in the ease are that in April, 1898, less than two years prior to the date of his application for the certificate, the insured had an illness which confined him to his bed at his home for at least two weeks; that he continued to remain at his home suffering from such illness and unable to work for a further period of at least three or four weeks, and that at that time he was paid six weeks’ sick benefits by Court Protection No. 98, Independent Order of Foresters, of which order the insured was then a member.

Herman Till, the treasurer of said Court Protection No. 98, testified that he knew, of his own knowledge, that the insured was sick at that time; that he went to see the insured at his house; that the insured complained about his lungs, complained that his lungs hurt him ; that he paid the insured $5 a week for six weeks, as and for sick benefits.

Henry J. Burwash, a physician, testified that he treated the insured professionally in April, 1898, during the absence of Dr. Moran, the regular attending physician; that he found the insured suffering from pneumonic condition or lung trouble, or pneumonia at least, and he had then been ill for some little time; that the insured was then apparently over the acute symptoms of the disease.

Mary Feeney, the appellee, and wife of the insured, testified that in April, 1898, her husband was sick in bed two weeks, was bedfast; that his illness started with a very bad cold; that Herman Till paid her husband five or six weeks ’ sick benefit at $5 a week; that the payment was made when her husband was up, after he had been in bed, but “before he went to work, when he was just well enough to get out.”

Upon the nncontroverted facts it cannot be doubted that the statement of the insured in his application, that he had not had any illness, constitutional disease or injury, that had confined him to the house during the past five years, was false and of necessity being a matter within his personal knowledge, such statement must have been known to the insured to be false at the time it was made by him. That such statements, even if held to be merely a representation, related to a matter material to the risk cannot be seriously questioned. Indeed, no argument is advanced on behalf of appellee in an attempt to minimize the force and effect of the statement, or to show that it was not material to the risk.

Upon the undisputed facts in the case there can be no recovery by appellee and the judgment' of the Circuit Court is reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed with finding of facts.

Finding op Facts: That the application made by the insured for the certificate sued on in this case formed a part of the contract of insurance between appellant and the insured; that in said application the insured, rendered the certificate of insurance sued on any illness, constitutional disease or injury that had confined him to the house during the five years prior to the date of said application; that said representation so made by the insured was false and was known by the insured to be false at the time it was made; that said representation related to a matter material to the risk; that said false representation, so made by the insured represented to appellant that he had not had null and void; and that appellant is not indebted to appellee thereon.


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    Southern Re-distilling & Rectifying Company, Limited, Appellant, v. Frank W. Thurston & Company, Appellee.
    Gen. No. 16,481.
    1. Payment — when claim of set-off amounts to offer of. Where a vendee on receiving but part of a shipment of oil under a contract, when he is entitled to the whole, demands damages unless the rest of the shipment be guaranteed to sell at the minimum market price, and where on being refused he charges the amount of such damages against the contract price of the oil received and retained and notifies the vendor of such act, this constitutes a distinct offer to pay for the part received and retained.
    2. Contract — modification. Where a vendee receives but part of a shipment of oil under a contract when he is entitled to the whole, he may, on retaining the same and offering to pay therefor, stipulate as to future terms, and on a refusal to comply therewith may recover damages.
    Appeal from the County Court of Cook county; the Hon. William C. De Wolf, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Hamlin & Boyden, for appellant.
    Church & McMurdy, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

On and prior to January 15, 1906, certain correspondence had between the appellant, Southern Re-distilling & Rectifying Company, doing business at New Orleans, Louisiana, and F. W. Thurston, doing-business in Chicago as F. W. Thurston & Co., appellee herein, resulted in a contract, whereby appellant agreed to ship to appellee, during the months of February, March and April, 1906, twenty-five barrels of fusel oil at 80 cents per gallon delivered in Chicago, and appellee agreed to take the same at said price. Appellant, having failed to make shipment of any oil during the time mentioned in the contract, appellee, on May 9, 1906, wrote to appellant calling its attention to such failure and requesting immediate shipment of the entire twenty-five barrels. Fusel oil was then quoted on the market at from $1.05 to $1.25 per gallon. On May 17th following, appellee, having received no response to his letter of May 9th, wired appellant to telegraph immediate answer to said letter. On the same day appellant wired appellee that it would make first shipment tomorrow, and wrote a letter confirming said wire and advising appellee that it would make a shipment of six barrels tomorrow, and that the balance would follow as soon as the oil could be manufactured, on May 18th appellant shipped to appellee five barrels of fusel oil, containing 236.50 gallons, and billed the same at $189.20, being 80 cents per gallon. On May 21st appellee wired appellant as follows:

“Market one five to twenty you must pay difference between contract and above minimum price or if shipped later on guarantee our selling at this figure telegraph answer.”

On May 22d appellant wrote appellee, acknowledging receipt of said wire, and advising appellee that it would refuse to ship any more oil unless appellee waived his demand for a guarantee. On May 28th appellant made its sight draft on appellee for the shipment of May 18th, which draft appellee refused to pay. On June 12th appellee wrote to appellant reciting- the former correspondence between the parties and informing appellant that, as it had failed to perform the contract, appellee had charged its account with 25 cents per gallon on the undelivered twenty barrels of oil, as and for the damage to appellee, and that appellee would decline to accept any future shipments except in accordance with the terms of the telegram of' May 21st.

Thereafter appellant brought this- suit against appellee in the County Court in assumpsit upon a quantum meruit for the price of the five barrels of oil shipped on May 18th. To appellant’s declaration, consisting of the common counts, appellee filed a plea of non assumpsit and a special plea of set-off of damages. resulting from the failure of appellant to deliver the remaining twenty barrels of oil under the contract. A trial by the court without a jury resulted in a finding in favor of appellee on his plea of set-off and a judgment against appellant for $45.71.

Appellant does not question the amount of the recovery, if damages are recoverable, but predicates its rights to a reversal of the judgment upon the ground that appellee is entitled to recover no damages whatever under his plea of set-off, and insists that it is entitled to recover the price of the five barrels of oil shipped to appellee.

In support of its position appellant relies upon the general rule stated in Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84, that where a vendee has accepted goods delivered under an express contract, but not at the time or in the quantity required by it, with knowledge of the default of the vendor in those respects, and has himself failed, without legal excuse, to pay for them according to it, he cannot maintain an action on the contract for such default of the vendor. The application of this rule is invoked upon the ground that appellee was himself in default in having failed to pay for the five barrels of oil shipped on May 18th.

While the time of payment is not mentioned in the contract, it is practically conceded that in the usual course of business payment was to be made in ten days after shipment. Appellee’s letter of May 9th constituted a waiver by him of the time within which shipment was to be made under the contract, providing appellant would then ship the twenty-five barrels of oil immediately. It was then incumbent upon appellant either to ship all of said oil immediately or to advise appellee that it was unable to do so. Appellant was not authorized to ship five barrels and withhold shipment of the remaining twenty barrels until such time as the oil could be manufactured. Payment for the' shipment of the five barrels on May 18th was not due until May 28th, and on May 21st, before he was in default, appellee informed appellant that it would be required to pay appellee the difference between $1.05 per gallon and the contract price, unless it would guarantee the sale of the oil by appellee at $1.05 per gallon, if shipped later on. As appellant was then in default and liable to respond in damages to appellee, the guarantee proposition made by appellee was most favorable to appellant, because appellant’s possible liability for damages was thereby limited to the difference between the contract price and the then prevailing minimum market price of the oil. Upon the refusal on May 22d of appellant to ship the remaining twenty barrels of oil immediately, and before default of appellee in the payment for the five barrels of oil, Thurston testified that he paid for said five barrels of oil by charging appellant’s account with $235, as damages resulting from the failure of appellant to ship the twenty barrels of oil, the amount of said damages being the difference between the contract price of 80 cents per gallon and the then prevailing minimum market price of $1.05 per gallon.

An exception to the general rule, stated as above in Harber Bros. Co. v. Moffat Cycle Co., and recognized in that case, is announced in Bradley v. King, 44 Ill. 339, to the effect that a vendee, entitled to damages for the default of the vendor, may pay for a portion of the goods received and retained by setting off the damages, providing the vendee makes a distinct offer so to do; and that if such damages are equal to the value of the goods received and retained by the vendee, such offer is equivalent to performance by the vendee.

In Finch & Co. v. New Ohio Washed Coal Co., 156 Ill. App. 589, it was held that an offer to offset defendant’s claim for money dne against plaintiff’s claim for breach of a contract, was, in case the latter justly exceeds the former, equivalent to a tender of money due. In that case a mere statement sent by the plaintiff to the defendant, charging defendant’s account with the amount of damages claimed by the plaintiff, was held to constitute an offer within the meaning of the rule.

In the case at bar appellee by his special plea avers that the damages due him exceed the amount due appellant, and appellee offers thereby to set off the same. Appellee’s telegram of May 21st to appellant, advising it, in substance, that it must pay damages unless it would guarantee the selling of later shipments at the then minimum market figure, together with the act of appellee, on May 22d, of charging the amount of such damages against the contract price of the five barrels of oil then received and retained, and the letter of June 12th, wherein appellee advised appellant that its account had been charged with 25 cents per gallon on the undelivered twenty barrels of oil, as and for appellee’s damages, constituted, within the meaning of the rule, a distinct offer by appellee to appellant to pay for the five barrels of oil received and retained by off setting appellee’s damages for the failure of appellant to ship the remaining twenty barrels of oil.

The finding and judgment of the County Court accomplished substantial justice, under the law, and such judgment will, therefore, be affirmed.

Judgment affirmed.


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    William Madlung and Henry F. Eidmann, Trading as Madlung & Eidmann, Agents, Plaintiffs in Error, v. William P. Jackson, Defendant in Error.
    Gen. No. 16,544.
    Landlord and tenant — holding over. Where a tenant holds possession of premises after the expiration of a lease for a year, the presumption that he continues to hold the premises under said lease, and that the law by implication creates a new tenancy from year to year, is rebuttable by proof that such holding over was referable to the pendency of negotiations for a new lease.
    Error to, the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    George C. Otto, for plaintiffs in error.
    Pease, Smietanka & Polkey, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

In an action of the fourth class instituted in the Municipal Court by plaintiffs in error against defendant in .error to recover $175, claimed to be due for rent, there was a verdict in favor of defendant in error, and a judgment against plaintiffs in error for costs.

On August 26, 1907, plaintiffs in error, as agents for the owner, Clyde D. Armstrong, executed a written lease'of a flat to defendant in error for a term beginning September 15, 1907, and ending September 30, 1908, at a rental of $437.50, payable in monthly installments of $35. Defendant in error continued to occupy the premises and to pay said rent therefor until April 30, 1909, when he vacated the premises and surrendered the key to plaintiffs in error.

Plaintiffs in error sought to recover rent from April 30, 1909, to September 30, 1909, inclusive, under the claim that defendant in error was liable therefor as a hold-over tenant tinder said lease.

Where a tenant holds possession of the premises after the expiration of the lease for a year or years under which he went into possession, a presumption obtains that he continues to hold the premises under said lease, and the law by implication creates a new tenancy from year to year. Such presumption, how^ever, is not conclusive, but is rebuttable by proof that the tenant holds over under a new agreement with the landlord, even though such agreement is unenforceable and void under the statute of frauds, or by proof that such holding over is referable to the pendency of a treaty between the parties for a further lease. Weber v. Powers, 213 Ill. 370; Woodstrom v. Freeman, 159 Ill. App. 340.

Defendant in error introduced evidence tending to show that his possession of the premises after September 30, 1908, was referable to a new agreement entered into with the owner of the premises for a further lease thereof for a year, wherein the owner should covenant to make certain repairs and improvements, and that the negotiations for such further lease extended over a period beyond the expiration of the existing lease.

While the evidence upon this issue is close and conflicting, we are unable to say that it fails to support the verdict of the jury.

The instructions state the law applicable to the case with substantial accuracy, and there being no reversible error in the record, the judgment is affirmed.

Judgment affirmed.


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    George P. Bent, Plaintiff in Error, v. George W. Jones, Defendant in Error.
    Gen. No. 16,589.
    1. Sales — acceptance of contract. Where a contract of sale recites that the same shall not be binding on the vendor until it is accepted and approved by him, it is not binding on either party in the absence of proof of such acceptance and approval.
    2. Replevin — when it will not lie to recover piano sold on instalment. Replevin will not lie to recover a piano sold on the instalment plan on failure to meet the instalments where there is no proof of a demand and refusal and a refunding of money paid by the vendee.
    Error to the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Baker & Holder, for plaintiff in error; G. Raymond Collins, of counsel.
    Thomas A. Leach, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

In a suit in replevin, instituted by plaintiff in error’ against defendant in error before a justice of the peace to recover the possession of a piano and a piano stool, there was a verdict and judgment against plaintiff in error, from which judgment he prosecuted his appeal to the Circuit Court, where a trial by jury resulted in a like verdict and judgment against him, to reverse which judgment this writ of error is prosecuted.

On January 18, 1904, defendant in error executed a written instrument wherein he promised to pay to plaintiff in error $195 in instalments, together with interest, and wherein the consideration for the payment of said amount was expressed to be an agreement by plaintiff in error to sell and deliver to defendant in error one certain piano. The instrument further provided that the piano was and should remain the property of plaintiff -in error until payment therefor should be fully made, and further that in case defendant in error should make default in payment he should on demand deliver said piano to plaintiff in error, or plaintiff in error should have the right without notice or demand to take immediate possession of the same, in which latter case all moneys paid on the purchase price should belong to plaintiff in error as liquidated damages. The instrument further provided that it should not be binding on plaintiff in error until accepted and approved by him. As a part of the same transaction, plaintiff in error executed a writing, wherein he guaranteed the piano “sold” to defendant in error for the term of five years, and wherein it was provided that in case defendant in error should purchase another piano the money paid on the first piano should be applied upon the purchase price of such other piano, and the title to the first piano should “revert” to plaintiff in error. At the time the suit in replevin was instituted, defendant in error had paid $165 upon the purchase price of the piano.

In the absence of any proof (and no such proof was made), that the first, above mentioned written instrument was accepted and approved by plaintiff in error, it did not by its terms become binding upon him, and it was, therefore, lacking in mutuality. The instrument of guarantee, executed by plaintiff in error, refers to the piano as having been sold to defendant in error and recognizes the title to the piano as being in defendant in error.

Upon the evidence adduced at the trial the transaction actually consummated amounted merely to a sale of the piano and payment of the purchase price in instalments. There was no proof by plaintiff in error of a demand upon defendant in error for the piano and a refusal by defendant in error, prior to bringing the suit, or of any facts constituting a waiver of such demand and refusal.

In this case, an action in replevin by the vendor will not lie without proof of a demand and refusal and a refunding of the money paid by the vendee. Hamilton v. Singer Mfg. Co., 54 Ill. 370.

The judgment is affirmed.

Judgment affirmed.


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    Mary F. Risser, Plaintiff in Error, v. Richard O’Connell, Defendant in Error.
    Gen. No. 16,590.
    1. Landlobd and tenant — constructive evicton. It would seem that to constitute a constructive eviction the acts of a landlord must clearly indicate an intention that the tenant shall not have the beneficial enjoyment of the premises and must be of a grave and permanent character which deprive the tenant of the beneficial enjoyment.
    2. Landlobd and tenant — constructive eviction. Constructive eviction because of inadequacy of water supply in a flat is not shown where the evidence does not disclose the reason therefor or show that the lessor was' responsible for the condition but shows that the inadequacy was not permanent and that the lessee abandoned the premises without allowing the lessor a reasonable time to remedy the condition.
    Error to the Municipal Court of Chicago; the Hon. Fbedebick L. Fake, Jb., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed with finding of facts.
    Opinion filed August 12, 1912.
    Abram L. Myers, for plaintiff in error.
    David Sullivan, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

Under the power contained in a lease, wherein plaintiff in error was the lessor and the defendant in error was the lessee, a judgment by confession was entered in the Municipal Court in favor of plaintiff in error and against defendant in error for $120 and costs. Thereafter, upon motion of defendant in error, said judgment was opened up and defendant in error was given leave to defend. A trial upon the merits resulted in a verdict in favor of defendant in error and judgment thereon against plaintiff in error for costs, to reverse which judgment this writ of error is prosecuted.

The lease is for the term of one. year from May 1, 1909, for premises described as “Flat number 3d on 3d floor of building known as 3815 Verno'n avenue,” to be occupied as a private residence. The lease contains a provision to the effect that the lessee has examined and knows the condition of the premises and has received them in good order and repair, and, further, contains a covenant as follows:

“Said party of the first part (plaintiff in error) agrees to pay water rates assessed against said property and supply at her own expense, hot water for the use of tenant at all hot water faucets in said apartment, and steam for the steam-heating apparatus in said building. The steam to be furnished when necessary, from the first day of October until the first day of May of the succeeding year, but it is expressly agreed and understood that said lessor is not to be held liable for any damages if he fails to furnish hot or cold water or steam for steam heating.”

Defendant in error occupied the premises under the lease and paid rent therefor during the months of May and June, 1909, when he abandoned the same. The premises remained vacant during July, August and September, 1909, and were relet by plaintiff in error for a term beginning October 1, 1909. Plaintiff in error sought to recover rent for the three months during which the premises were vacant, and the defense interposed by defendant in error was that his inability to obtain an adequate supply of water during the month of May and up to the middle of June, 1909, and his inability to obtain any water during the remainder of the month of June, constituted a constructive eviction by plaintiff in error and absolved defendant in error from any further liability for rent of the premises.

"While the evidence tends to show that the supply of water for domestic purposes in the flat was insufficient, as claimed by defendant in error, and that during a portion of the time in question he obtained such water from the second flat through the courtesy of the tenant who occupied said flat, the evidence does not disclose the reason for the insufficient water supply— whether it was due to the inadequate size of the service pipes or to a stoppage in said pipes or to insufficient pressure. And while there is evidence tending to show that plaintiff in error was notified that the water supply in the flat was inadequate and had practically ceased during the latter part of June, it does not appear that plaintiff in error was in any manner responsible for the existing condition in that respect.

It has repeatedly been held that in order to constitute a constructive eviction, the acts of the landlord must clearly indicate an intention on his part that the tenant shall no longer have the beneficial enjoyment of the premises, and such acts must be of a grave and permanent character, which, in their nature, deprive the tenant of the beneficial enjoyment of the premises. Keating v. Springer, 146 Ill. 481; Barrett v. Boddie, 158 Ill. 479; Rubens v. Hill, 213 Ill. 523.

The evidence relating to the inadequacy of the supply of water in the flat shows that the condition in that respect was not permanent, but intermittent merely, and that defendant in error abandoned the premises before allowing plaintiff in error a reasonable time within which to ascertain the cause of the inadequate supply of water and to remedy the same, conceding she was under an obligation so to do.

The judgment of the Municipal Court is reversed with a finding of facts to he incorporated in the judgment of this court, and final judgment will be here entered in favor of plaintiff in error against defendant in error for $120 and costs of suit.

Judgment reversed with finding of facts.

Finding on Facts: We find as ultimate facts that plaintiff in error committed no acts which amounted to a constructive eviction of defendant in error from the demised premises, and that defendant in error is indebted to plaintiff in error in the sum of $120.


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    B. J. Schwirtz, Defendant in Error, v. The Woodford Distilling Company, Plaintiff in Error.
    Gen. No. 16,598.
    1. Warehouse receipts — insurance. An owner of warehouse receipts has a right to rely on a clause therein providing that “the whiskey named herein is insured for invoice amount against loss by fire,” and it thereby becomes the duty of the warehouse company thereunder to indemnify the owner against loss or damage by fire.
    2. Warehouse receipts — provision for storage and insurance construed. Where warehouse, receipts provide for storage at a certain rate from a certain time and that the goods are insured against loss by fire, such receipts embody a storage agreement and an agreement for insurance against loss or damage by fire.
    3. Warehouse receipts — provisions as to delivery and insurance construed. An owner of warehouse receipts providing for delivery on return of certificates properly indorsed and payment of taxes and storage, and providing that the goods are insured for the invoice amount against loss by fire, is entitled to the goods on demand or' on destruction by fire to the invoice value less proper charges.
    4. Warehouse receipts — when offer hy owner to comply with terms is shown. Where warehouse receipts provide for delivery on return of the certificate properly indorsed and payment of charges' provided for therein and specify that the goods are insured for the invoice amount, there is a distinct offer by the owner thereof to comply with the terms where, on loss by fire, demand is made for the invoice value less the proper charges due according to a statement by the warehouse company.
    5 Wabehouse beceipts — what constitutes performance of obligation to pay charges. Where a warehouse receipt provides for delivery on payment of charges and specifies that the goods are insured for the invoice amount against loss by fire, an offer by the owner of the receipts on loss by fire to deduct the amount of the agreed charges from the fixed liability of the warehouse company is equivalent to performance of the obligation to pay such charges.
    Error to the Municipal Court of Chicago; the Hon. Feeeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Seitz, Bryan & Wilber, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error; Ernest B. Linderholm, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

Prior to August 5, 1908, one Phil. Kamesch purchased of plaintiff in error, the Woodford Distilling Company, five barrels of whiskey known as Belle of Lexington, and five barrels of whiskey known as Pennsylvania Club Bye, and paid therefor the invoice price of 60 cents a gallon, aggregating $292.59. Plaintiff in error retained the whiskey in storage and issued to Kamesch two warehouse receipts therefor, one for five barrels of Belle of Lexington and one for five barrels of Pennsylvania Club Bye. The two receipts are identical in form, excepting the serial number of the receipt, the designation of the brand of whiskey, the date of inspection, the date when tax is due, the serial number of each barrel, the number of wine gallons and proof gallons in each barrel, and the number of the warehouse stamp on each barrel. The form of said receipts with the exceptions noted is as follows:

“The Woodeord Distilling Company.
Distillery, Woodford County, Ky.
United States Bonded Warehouse, Distillery No. 9, Seventh District, located in Midway, Woodford county, Ky. Keeeived and has on storage the following described five barrels * * * whiskey for our account, and which we hold subject to the order of Phil Kamesch, New Hampton, Iowa.
* * # # * * # *
Deliverable as agreed only on return of this certificate properly endorsed and on payment of the purchase price hereof at Our Main Office and Grovernment, State and County taxes and storage at the rate of five cents per barrel per month from inspection. Loss or damage by the elements, leakage, shrinkage or transportation at purchaser’s risk. The whiskey named herein is insured for invoice amount against loss by fire. The holder of this certificate, in accepting it, agrees to its conditions and to pay all money, taxes and charges due hereon.
The Woodeord Distilling Co.,
By I. Orschel,
Prest.”

Thereafter, said receipts were endorsed by Kamesch and delivered to defendant in error, B. J. Schwirtz, who paid Kamesch the invoiced price of 60 cents a gallon for the whiskey. On August 5, 1908, the warehouse, in which said whiskey was stored, was destroyed by fire and said whiskey was thereby wholly lost. Plaintiff in error having refused to pay defendant in error the invoiced price of said whiskey, less the proper charges, defendant in error brought suit in the Municipal Court to recover the same, predicating his right to recover upon the following clause in said receipts : “The whiskey named herein is insured for invoice amount against loss by fire.” Upon trial by the court without a jury there was a finding and judgment against plaintiff in error for $267.06, to reverse which judgment this writ of error is prosecuted.

By the terms of the receipts defendant in error assumed the risk of loss or damage to the whiskey by all the elements save and except fire, and loss or damage thereto by fire was represented by plaintiff in error as being insured for the invoiced value. Defendant in error had the undoubted right to rely upon such representation and it thereby became the duty of plaintiff in error to indemnify defendant in error against loss or damage by fire to the extent of the invoiced value of the whiskey. Defendant in error was entitled to the whiskey upon demand therefor, or in the event of its destruction in the warehouse by fire defendant in error was entitled to receive from plaintiff in error the invoiced value of the whiskey, less the proper charges. The receipts embodied an agreement for the storage of the whiskey and for its insurance against loss or damage by fire to the amount of its invoice value. In response to a request by an agent of defendant in error for a statement of the charges for storage, etc., plaintiff in error rendered a statement aggregating $25.33, wherein, in addition to charges for storage and for taxes paid, defendant in error was charged with $2.93 for his “proportionate part of insurance,” and the demand made by defendant in error upon plaintiff in error was for the invoiced value of the whiskey, less $25.33, the amount of said charges. There was thus a distinct offer by defendant in error to comply with the provisions of the receipts requiring the payment by him of the proper charges to plaintiff in error. By the terms of the receipts the amount for which plaintiff in error was liable was fixed and certain, and there was no controversy as to the amount of the charges for which defendant in error was liable. The offer, therefore, by defendant in error to deduct the agreed amount of charges from the amount of the fixed and certain liability of plaintiff in error was equivalent to the performance by defendant in error of his obligation to pay such charges. Upon this question Harber Bros. Co. v. Moffat Cycle Co., 151 Ill. 84, cited by plaintiff in error is not in point.

We have considered the objections urged to the rulings of the court in the admission of evidence and find no substantial error in that reg’ard which could have operated to the prejudice of plaintiff in error.

Dawson v. Waldheim, 80 Mo. App. 52, and Keller v. Smith, 59 Minn. 203, are cases wherein warehousemen were held liable upon their contracts to insure goods stored.

There is.no error in the -record and the judgment of the Municipal Court is affirmed.

Judgment affirmed.


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    Anton Busta et al., Defendants in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 16,605.
    1. Fraternal benefit societies — who the agent of. The recorder of a “District Court” of the parent benefit society is the agent of the parent society.
    2. Fraternal benefit societies — when acceptance of dues for prior month does not waive suspension. Where the constitution and laws of a fraternal benefit society provide that on nonpayment of dues for any month on the last day the member is suspended, the mere acceptance by the recorder of the dues for the prior month does not waive the suspension, since if the acceptance does reinstate the member he becomes liable for the assessment for the current month.
    3. Fraternal benefit societies — when sending statement of arrearages does not waive constitution and laws. Though the sending of notices by the recorder of a benefit society to a member stating the assessments for the current month and the prior month is some evidence of a waiver of the constitution and laws, it is not sufficient to constitute waiver either in law or fact where the constitution and laws provide that on nonpayment on the last day of any month the member is ipso facto suspended.
    4. Fraternal benefit societies — when constitution and by-laws not waived. The right of a benefit society to forfeit a certificate is not waived though the recorder sends the owner thereof, who is noted on the books as suspended for nonpayment of dues, a notice of the amount of the assessments for the current month and the prior month, where the constitution and laws provide that the member is suspended on the last day of a month if dues are not paid but that he may be automatically reinstated on payment within sixty days if in good health.
    5. Fraternal, benefit societies — when no recovery can he had under laws of society. No recovery can be had on a benefit certificate where the member was suspended for nonpayment of dues and when dues are subsequently paid within sixty days was in the last stages of a mortal illness unknown to the society, if the constitution and laws provide for suspension on nonpayment and reinstatement within sixty days on payment, if in good health, but further provide that acceptance of dues does not reinstate if the member is not in good health, and that dues shall not knowingly be received unless the member is in good health and that the receipt shall not reinstate in such cases.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term,-1910.
    Reversed with finding of facts.
    Opinion filed August 12, 1912.
    Francis J. Sullivan, for plaintiff in error; William B. Risse, of counsel.
    De Witt C. Jones, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

The defendants in error, the minor children of Anna Busta, hy their guardian, brought suit in the Municipal Court against plaintiff in error, a mutual benefit sosiety, to recover the amount of a benefit certificate for $1,000 issued to said Anna Busta and payable at her death to the defendants in error. A trial by jury resulted in a verdict and judgment against plaintiff in error for the amount of the certificate.

The certificate bears date, October 26, 1906, and on November" 12, 1906, the insured became affiliated with Columbia District Court No. 786 of the parent society. The insured died February 28, 1909.

The provisions of the constitution and laws of the society, relating to the payment of assessments and dues, and to the re-instatement of members, are as follows:

“Sec. 132. There shall, without notice, be due and payable from each benefit member of the society on tbe first day of each calendar month General Fund dues of ten cents, and one benefit assessment, and a member who fails to pay to the Recorder of the District Court such General Fund dues and Benefit Fund assessment on or before the last day of such calendar month, shall ipso facto, without notice, stand suspended from all benefits in the society, or the funds thereof, and all interests of the beneficiary or beneficiaries shall thereupon cease unless such member is subsequently reinstated, as provided by the constitution of the society.”
“Sec. 134. A member who has been suspended for non-payment of assessments, General Fund dues or fines may be reinstated within sixty days from the date of suspension, if in good health, and if not engaged in any of the prohibited occupations, by payment of all arrearages, including current assessments, General Fund dues, District Court dues and fines; provided that the receipt and retention of such assessment and dues shall not have the effect of reinstating such suspended member, nor entitle him or his beneficiaries to any rights under his certificate if he was not in good health at the time of such reinstatement.”

Section 99 provides that the recorder shall keep the records and accounts of the District Court and receive all moneys from members; that he shall not knowingly receive dues or assessments from a benefit member who has been suspended for non-payment thereof, unless at the time tender thereof is made such member is in good health, and that the receipt of assessments and dues under such conditions shall not have the effect of reinstating such member, nor of securing to the suspended member any rights.

It appears from the evidence that prior to June or July, 1908, when members made default in the payment of their dues and assessments, the officers of the District Court made such payments for the defaulting members out of the funds in the treasury; that, thereafter until September, 1908, the recorder of the district court made payments, aggregating $54, for such defaulting members, which amount the District Court refused to reimburse to the recorder, and thereafter, if the members failed to pay their dues and assessments within the time limited, the recorder reported such members as being suspended. The insured became sick with tuberculosis of the lungs in August, 1908, and so continued until her death. Prior to November, 1908, the insured paid her dues and assessments regularly each month within the time limited. She failed to pay the assessment for November, 1908, during that month, but in December following she received from the recorder of the District Court a notieé of the amount of the assessment for that month, and also of the amount of the assessment for the previous month, and the assessments for both of said months were paid by her and received and accepted by the recorder in the month of December. The insured failed to pay the assessment for January, 1909, during that month, but on or about February 6, following, she received from the recorder a notice of the amount of assessments for the months of January and February, and she paid to the recorder, who received and accepted the same, the assessments for both of said months on February 19, 1909. On February 1, 1909, the insured was noted by the recorder upon the books of the society as suspended for failure to pay the assessment for January, 1909, and on February 12, 1909, the recorder reported the suspension of the insured to the parent society. When the report of the recorder for the month of February, 1906, reached the parent society about' March 15, 1909, after the death and burial of the insured, the recorder was informed that the assessments paid by the insured for January and February, 1909, would not be accepted.

The defense interposed by plaintiff in error to a recovery upon the certificate is that the insured was on February 1, 1909, ipso facto, suspended for failure to pay the assessment for the month of January, and that the payment of such assessment by the insured on February 19, 1909, after her suspension from the society, did not operate to reinstate her to membership therein, because she was not then in good health. In avoidance of this defense it is claimed by the defendants in error that plaintiff in error waived a forfeiture of the certificate after the failure of the insured to pay the assessments for the months of November, 1908, and January, 1909, by thereafter notifying the insured of the amount of the assessments for the months of December, 1908, and February, 1909, thereby then still recognized the insured as a member of the society; that the payment by the insured in December, 1908, of the assessment for November, 1908, and the payment by the insured of the assessment for January, 1909, in February, 1909, were not made by the insured and accepted by plaintiff in error under the provision of the constitution and laws relating to the reinstatement of suspended members, but were made by the insured as a member in good standing.

The recorder of the District Court was the agent of the parent society (Court of Honor v. Dinger, 221 Ill. 176), but the mere receipt and acceptance by the recorder in February, 1909, of the assessment for that month did not operate to waive the suspension of the insured, if such suspension accrued by reason of her failure to pay the assessment for January, because if the insured was eligible to reinstatement, the payment of the January assessment operated to reinstate her, and she then became liable to pay the assessment for February, and the same may be said as to the assessments for November and December, 1908. The only acts of the recorder, therefore, which were inconsistent with an intention to regard the insured as having been suspended from the society consisted in sending notices to the insured of the amount of the assessments for December, 1908, and February, 1909. Tbe fact that sucb notices were sent is some evidence of a waiver of a forfeiture, but standing alone it is insufficient to constitute a waiver either in law or fact. Under the provisions of the constitution and laws of the society the insured, notwithstanding her suspension for failure to pay the January assessment, had the right at any time within sixty days after January 31 to pay the same if she was in good health at the time of such payment, and thereupon become automatically reinstated. The insured had, in fact, on February 1, been noted by the recorder upon the books of the society as suspended, and thereafter for sixty days, she, if in good health, was eligible to reinstatement. Under such circumstances the mere act of sending her a notice of the amount of the assessments for January and February did not constitute a waiver by plaintiff in error of the right to assert the forfeiture of the certificate. If the suspension of the insured became effective on January 31, it is uncontroverted that she was then, and thereafter until her death, in the last stages of a mortal illness, and she was, therefore, ineligible to reinstatement, and there is no evidence tending to show that the recorder of the District Court or other officers of plaintiff in error had any knowledge that the insured was not in good health when payment of the assessments was made on February 19, 1909.

Other questions are raised upon the record, but it is unnecessary to consider and determine the same.

The judgment of the Municipal Court is reversed with a finding of facts to be incorporated in the judgment of this court.

Judgment reversed with finding of facts.


text:
    Rebecca Weinberg, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 16,640.
    1. Instructions — harmless error. An instruction in an action for injuries received in a fall caused by alleged defects in a railing guarding an entrance to a basement, referring to the condition of the sidewalk is not harmful to the plaintiff where the declaration refers to its condition, since the reference thereto was made in the first instance by the plaintiff.
    2. Municipal corporations — sidewalks. Evidence that a railing guarding a basement was frequently used by loungers as a meeting and resting place will support an inference that it was apparently sufficiently secure to sustain the weight of those so using it.
    3. Municipal corporations — instructions. On action for injuries received when a railing guarding a basement entrance broke, it is reversible error to instruct the jury that the plaintiff was bound to use reasonable care to detect and avoid such dangers as reasonably prudent persons exercising ordinary care would detect and avoid under the circumstances, since it was not the duty of the plaintiff to anticipate negligence on the defendant’s part.
    4. Municipal corporations — reliance on presumption of performance of duty. One injured .when a guard railing around a basement entry broke was, in the absence of knowledge to the contrary, entitled to rely upon the presumption that the city had performed its duty to keep the railing reasonably safe.
    5. Municipal corporations — duty of individual to avoid danger: One knowing of the dangerous condition of a railing guarding a basement is bound to exercise reasonable care in proportion, to the known danger.
    6 Damages — when instruction not improperly modified. It is not improper to modify an instruction as to damages for personal injuries by striking out the words “and also to what extent, if any, she has been marred or injured in her personal appearance.”
    Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed August 12, 1912.
    Rehearing denied August 27, 1912.

      Edward J. Brundage, Clyde L. Day (Edward C. Fitch, of counsel), William H. Sexton and N. L. Piotrowski (David R. Levy, of counsel), for defendant in error.
    John C. King and James D. Power, for plaintiff in error.
   Mr. Justice Baume

delivered the opinion of the courts.

In an action on the case brought by plaintiff in error against defendant in error in the Superior Court to recover damages for personal injuries alleged to have been occasioned by the negligence of defendant in error, the jury found defendant in error not guilty, and upon such verdict judgment was entered against plaintiff in error for costs.

The negligence charged in the declaration was the permitting by defendant in error of a certain iron railing used to guard an entrance from the sidewalk to a basement on the south side of Fourteenth place, near Halsted street, to be and remain in a defective, weak and unsafe condition. The declaration alleges that on August 31, 1902, plaintiff in error, who was rightfully upon said sidewalk,-and had no knowledge of the said defective and unsafe condition of said sidewalk and said railing and could not have known of it with ordinary care, was, while in the exercise of due care for her personal safety, leaning lightly against said railing, when it gave way and precipitated her violently to the basement below, etc.

The grounds relied upon for a reversal of the judgment are that the verdict is against the manifest weight of the evidence and that the trial court erred prejudicially in giving and modifying certain instructions.

The railing in question was constructed of iron pipes, and extended out upon the sidewalk three to four feet from a brick building. The top rail of the railing at the place in question was supported by three upright iron pipes presumably fastened in tbe sidewalk. It is uncontroverted that at the time of tbe accident at least two of tbe upright iron pipes were loose and sbaky; that they were fastened to tbe top rail in part by wires, and that tbe railing bad been loose and sbaky for several months. Whether or not tbe condition of tbe railing in tbe respects mentioned was obvious was disputed.

It is apparent from tbe record that tbe verdict was predicated upon a finding by tbe jury that plaintiff in error was guilty of contributory negligence in leaning against tbe railing. If no errors of law prejudicial to plaintiff in error bad intervened, we should not be disposed to set aside tbe verdict as being against tbe manifest weight of tbe evidence.

It is urged that the fifth instruction given at the instance of defendant in error improperly makes reference to the condition of the sidewalk, instead of the condition of tbe railing upon tbe sidewalk, and also improperly alludes to tbe duty of defendant in error with reference to latent or unseen defects in its sidewalks. One count of the declaration specifically charges that it was tbe duty of defendant in error to “keep its said sidewalk, railing and appurtenances reasonably safe,” and that defendant in error “negligently and wrongfully then and there allowed tbe said sidewalk and said railing thereof * * * to be and remain in a weak and unsafe condition.” Tbe case was evidently tried in the court below upon tbe theory that tbe railing was a constituent part of tbe sidewalk. Tbe reference to the sidewalk therefore, was injected into tbe case, in the first instance by plaintiff in error herself, and no barm could have resulted to her by reference to it in tbe instruction. While a preponderance of tbe evidence tends to show that tbe railing was defective and dangerous, it was nevertheless insisted by defendant in error that it was not chargeable with notice of such defect and danger, and it was entitled to an instruction ' upon its theory of tbe case, if there was any evidence to support such theory. There was evidence ending to show that the railing had been frequently used by loiterers and loungers as a meeting and resting place, and it was not unreasonably inferable therefrom that the railing was apparently sufficiently secure to sustain the weight of those so using it.

The seventh instruction given at the request of defendant in error relates to the duty of plaintiff in error to exercise reasonable care for her own safety, and in that respect the jury were informed that plaintiff in error was bound to use reasonable care in the exercise of her faculties to detect and avoid such dangers, if any, as reasonably prudent persons, in the exercise of ordinary care, would detect and avoid under all of the circumstances shown by the evidence. The instruction was erroneous and necessarily harmful to plaintiff in error. If plaintiff in error knew of the dangerous condition of the railing, she was bound to exercise reasonable care in proportion to the known danger, but the law imposed no duty upon her to anticipate negligence on the part of defendant in error. Plaintiff in error was entitled, in the absence of knowledge to the contrary, to rely upon the presumption that defendant in error had performed its duty. Vocke v. City of Chicago, 208 Ill. 192.

The instruction tendered by plaintiff in error enumerating the elements proper to be considered by the jury in estimating the damages, if any, is almost identical in form with the second instruction involved in Illinois Cent. R. R. Co. v. Cole, 165 Ill. 334, of which, together with another instruction, it was there said: “No discussion of the two instructions given for the appellee is necessary. They, in substance, state correct principles of law. ’ ’ The trial court refused the instruction as tendered and modified the same by striking out the words, “and also to what extent, if any, she has been marred or injured in her personal appearance,” and gave the instruction as so modified.

It is insisted that the modification of the instruction in the respect stated was error, and the Cole case, supra, is relied upon in support of such insistence. It was not seriously urged in the Cole case that the instructions there recited and approved were erroneous, and what the court said about them did not conclusively establish their correctness. Chicago City Ry. Co. v. Hagenback, 228 Ill. 290. In Cullen v. Higgins, 216 Ill. 78, the propriety of a substantially similar instruction was directly involved and it was held that the jury “would understand the word ‘marred,’ as used in the instruction, to mean the same as the word ‘disfigured,’ and the instruction in the form in which it was framed should not have been given to the jury.”

We must conclude that the instruction as tendered has been expressly disapproved by the Supreme Court, and that the instruction was not improperly modified by striking out the words, above mentioned. See also Lake Street El. R. R. Co. v. Gormley, 108 Ill. App. 59, and Chicago City Ry. Co. v. Schaefer, 121 Ill. App. 334.

For the error in giving the seventh instruction offered by defendant in error the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    May H. Johnson, Defendant in Error, v. Chicago Feather Company, Plaintiff in Error.
    Gen. No. 16,657.
    1. Bailment — plumes delivered to he dyed. Where the evidence shows that plumes received by defendant to be dyed were of a certain length and that those offered in return were shorter but there is no evidence as to how much so, and the uncontradicted evidence shows that plumes shrink considerably in the process of dyeing and are hard to identify, a finding that the plumes returned were not.those received by the defendant is against the manifest weight of the evidence.

      2. Bailment — liability of bailee. A bailee who receives plumes to be dyed is not an insurer thereof.
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed.
    Opinion filed August 12, 1912.
    Harry C. Levinson, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

In November or December, 1909, defendant in error took three ostrich plumes to the retail establishment of plaintiff in error to be dyed. Shortly thereafter plaintiff in error sent three ostrich plumes to defendant in error, which defendant in error refused to accept because, as she claimed, they were not the same plumes which she had delivered to ph intiff in error. Defendant in error then brought suit against plaintiff in error in the Municipal Court to recover the value of her plumes, and a trial by the court without a jury resulted in a finding and judgment against plaintiff in error for $65. There is no appearance by defendant in error in this court.

The brief of plaintiff in error contains an extended discussion of the settled law applicable to a bailment for the mutual benefit of the bailor and the bailee, namely, that the bailor in such a bailment is not an insurer of the goods delivered to it, but is only held to the exercise of reasonable care with reference to such goods. The extent of the liability in that particular of plaintiff in error, as bailor of the plumes in question, is not involved in the case at bar, if its claim is sustained by the proof. There is no claim by plaintiff in error that the plumes delivered to it by defendant in error were lost or destroyed without its fault, but plaintiff in error insists that it tendered to defendant in error the identical plumes which defendant in error had given to it to he dyed.

Defendant in error testified that the plumes she delivered to plaintiff in error measured, respectively, 32, 25 and 20 inches in length, and her testimony in that regard is corroborated hy the testimony of two or more witnesses. No definite proof was offered on behalf of plaintiff in error as to the size of the plumes before they were dyed. While it is apparent from the record that the plumes which plaintiff in error tendered to defendant in error were not as large as those described by defendant in error, the record does not disclose the exact size of the plumes tendered to defendant in error. It is, however, clearly established by the uneontroverted evidence in the record that plumes of the kind and quality here involved shrink very appreciably in the process of dying, and that in the absence of some peculiar distinguishing marks it is practically impossible to identify plumes before and after they have been dyed, curled and cleaned, as being the same plumes. The claim of defendant in error that the plumes tendered to her were not the same plumes she delivered to plaintiff in error is predicated solely upon the admitted fact that the plumes tendered to her were smaller than the plumes she delivered to plaintiff in error. Evidence was introduced by plaintiff in error of the system uniformly adopted by it to preserve the identity of plumes received by it in the usual course of business, and further, that such system was adopted by it in handling the plumes in question. The judgment of the Municipal Court was necessarily based upon a finding that the plumes tendered by plaintiff in error were not the same plumes that defendant in error delivered to it, and such finding must, upon this record, be held to be against the manifest weight of the evidence.

Furthermore, if the evidence warranted a finding that the plumes in question were not the same, it must be held upon the uncontroverted evidence in the record that plaintiff in error exercised the degree of care required of it, under the law, to safely keep the plumes delivered to it.

The judgment of the Municipal Court will he reversed.

Judgment reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Ben Wagner, Plaintiff in Error.
    Gen. No. 16,868.

      Information — fatally defective if no proper allegation of date. An information alleging that the offense therein sought to be charged was committed “on the 30th day of April, A. D. 19-,” is fatally defective and a judgment and conviction thereon cannot stand.
    Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed August 12, 1912.
    J. Gray Lucas, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zack Hoffheimer, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

An information filed in the Municipal Court charged “that Ben Wagner, late of the said City of Chicago, heretofore, to-wit: on the 30th day of April, A. D. 19 , at the City of Chicago, aforesaid, Did procure a place as inmate in a certain house of prostitution in the city of Chicago, in county and state aforesaid, commonly known and described as No. 9166 Harbor avenue, for a certain female person known as Anne Wagner. The said Ben Wagner did cause, induce, persuade and encourage the said Anne Wagner to become an inmate of said house of prostitution contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Illinois.”

To this information the plaintiff in error, Ben Wagner, pleaded not guilty and formally waived a trial by jury. Upon the evidence adduced before the court on the trial the record recites the finding and judgment of the court as follows:

“This cause having been submitted to the court for decision and the court being fully advised in the premises, finds the defendant guilty, in manner and form as charged in the information herein. The state’s attorney now here moves the court for final judgment on the > finding of guilty herein, and the said defendant not saying anything further why the judgment of the court should not be pronounced against him on the finding of guilty entered in this cause, the court finds that it has jurisdiction of the subject-matter of this cause and of the parties hereto, and it is considered and adjudged by the court that said defendant is guilty of the criminal offense of causing, inducing, persuading and encouraging one Anne Wagner to become an inmate of a house of prostitution, on said finding of guilty.”

Upon the judgment so entered plaintiff in error was sentenced to confinement at labor in the House of Correction for the term of six months, and to pay a fine of $300 and the costs of prosecution. This writ of error is prosecuted to reverse such judgment of conviction.

The information is most carelessly and inartificially drawn, and the record of the judgment of the court is subject to the like criticism.

Of the several grounds urged by plaintiff in error for a reversal of the judgment, we deem it necessary to consider and determine but one.

The information alleges that the offense therein sought to be charged was committed “on the 30th day of April, A. D. 19 There is no other allegation of time in the information, and it is in effect and for all practical purposes, wholly wanting in any allegation as to time. The time alleged is impossible and in that respect the information is absurd. The objection is not merely technical, as that term is commonly used, but is substantial and fatal.

In People v. Weiss, 168 Ill. App. 502, the information charged that the offense was committed “on the 4th day of August, A. D. 190 .” The defendant pleaded guilty and was sentenced by the Municipal Court to imprisonment in the House of Correction. Hpon writ of error from this court the judgment of conviction was reversed in an exhaustive and well considered opinion, which fully and satisfactorily disposes of the precise question involved in the case at bar.

The judgment of conviction upon the information here involved must be and is reversed and the cause remanded.

Reversed and remanded.


text:
    John Spry Lumber Company, Appellee, v. Patrick K. Hardin et al., on appeal of Patrick K. Hardin, Appellant.
    Gen. No. 18,651.

      Reoeivebs — necessity of bond. A court of chancery is powerless to appoint a receiver without first requiring the complainant to give a bond as required by statute, unless the order of appointment discloses that for good cause shown, upon notice and full hearing, the chancellor is of opinion that the giving of such bond should be dispensed with.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Chaeles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed August 12, 1912.

      William A. Rogan, for appellant.
    No appearance for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from an interlocutory order appointing a receiver, entered in the. Superior Court in a proceeding in equity instituted by appellee against the appellant, Patrick K. Hardin, and others, to set aside certain alleged fraudulent conveyances and transfers of property, and for discovery, injunction and the appointment of a receiver. The order appointing a receiver on April 22, 1912, is, as follows:

“On motion of solicitors for complainant herein and on verified bill of complaint herein, it is ordered by the court that John R. Owen be and hereby is appointed receiver for the property, assets and effects of whatsoever kind or nature there may be, belonging to said Patrick K. Hardin, upon said receiver filing bond in the sum of Five Hundred ($500.00) Dollars, with surety to be approved by the Court.”

Section 1 of an act concerning the appointment and discharge of receivers provides, as follows:

“That before any receiver shall be appointed the party making the application shall give bond to the adverse party in such penalty as the court or judge may order and with security to be approved by the court or judge conditioned to pay all damages including reasonable attorney’s fees sustained by reason of the appointment and acts of such receiver, in case the appointment of such receiver is revoked or set aside; provided, that bond need not be required, when for good cause shown, and upon notice and full hearing, the court is of opinion that a receiver ought to be appointed without such bond.” Rev. Stat., 1911, 167.

It has been repeatedly held that a court of chancery presuming to act upon the authority of this section of the statute is powerless to appoint a receiver without first requiring the complainant to give a bond as required by said section of tbe statute, unless tbe order of appointment discloses tbat for good cause shown, upon notice and full bearing, tbe chancellor is of opinion tbat tbe giving of such bond should be dispensed with. Watson v. Cudney, 144 Ill. App. 624; Staar v. Koon, 145 Ill. App. 341; Ayres v. The Graham Steamship Coal & Lumber Co., 150 Ill. App. 137; Aevermann v. Rizek, 160 Ill. App. 648.

It follows tbat tbe receiver was improvidently appointed and tbat tbe order appealed from must be and is reversed.

Order reversed.


author: Mr. Presiding Justice Duncan

text:
    B. F. Van Kannel, Plaintiff in Error, v. L. S. Higley, Defendant in Error.
    Gen. No. 16,394.
    1. Damages — provision for liquidated. Whether a sum stipulated as liquidated damages for breach of contract is to be regarded as such or as a penalty depends upon the intention of the parties, to be determined from the entire provisions of the contract.
    2. Liquidated damages — how determined. If the entire contract discloses that the parties calculated and in good faith fixed a certain sum as compensation and intended that that sum should be paid and accepted as the damages and it is reasonable, the courts should allow it as liquidated damages.
    3. Penalty — when. If the sum fixed in the contract is not shown to be a calculation and settlement of the actual damages to be paid, but a sum fixed as security or penalty for the breach of the contract, then it is to be regarded as a penalty.
    4. Damages — provision for penalty. Where a contract states that upon failure to complete a certain dwelling house by a certain date the promisor agrees “to forfeit and pay” six hundred dollars as “liquidated damages,” such stipulation will be regarded as a penalty where it further appears that no damages were inflicted by such failure to perform.
    5. Contracts — liquidated damages or penalty. In doubtful cases a sum stipulated for the breach of a contract will be considered as a penalty.

      Error to the Municipal Court of Chicago; the Hon. Edwin K. Waxkee, Judge, presiding. Heard In the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed August 12, 1912.
    Rehearing denied August 27, 1912.
    Walter J. Miller, for plaintiff in error.
    Underwood & Smyser, for defendant in error; Arthur A. Basse, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This suit was brought by Van Kannel, plaintiff in error, to recover the sum of $600, as liquidated damages against Higley, defendant in error, upon the following contract, dated June 26, 1907, and signed by said Higley, to-wit:

“Mr. B. F. Van Kannel,
Valparaiso, Ind.
Dear Sir :
I remember the fact that on the 8th day of August, 1905, I made you a proposition in writing that if you would build your residence in Chautauqua Park, Valparaiso, Indiana, beginning within the next twenty days after that date, that I would build my residence in the above named Park on or before J an. 1,1907; that not having complied with my proposition, for reasons which are not necessary to name, we afterwards agreed mutually that the time in which I was given in which to build my residence should he extended to June 1, 1908; provided, however, that I was to build the cellar and the foundation by June 15, 1907; that said extension was agreed upon Feb. 19, 1907. I acknowledged the fact, too, that you had accepted my proposition of August 8th, 1905, and had constructed your residence in pursuance to that understanding.
Now, in consideration of the fact that I have not complied with my agreement heretofore and that you will waive any claim which you have for damages on account of my failure to comply with my proposition, I now undertake and agree that I will construct the residence referred to in my proposition, costing not less than $5500.00, and have the same completed on or before Dec. 15th, 1908. I consider this offer and the punctual fulfillment thereof as due to you on account of my failure to perform my former agreement and proposition, and upon failure on my part to do as herein agreed and complete said dwelling by Dec. 15, 1908, I agree to forfeit and pay to you as liquidated damages, the sum of Six Hundred Dollars ($600.00).”

The evidence, in substance, is that plaintiff in error, beginning in 1905, in pursuance of the agreement recited in the first part of the foregoing contract, built a residence in said Chautauqua Park at an actual cost of $3,500 outside of his own time employed thereon, and that he sold the. same about September 15, 1908, for $3,900; that he owned in said Park while building said house three lots, on two of which the house was built; that he owned no lots in said park, December 15, 1908, all of said lots being sold in September, 1908, but that he held a mortgage on the house at the time of the trial for $3,000, and that the house was then worth $3,900; that shortly after the date of the contract sued on defendant in error dug the cellar and put in a foundation on the site on which he agreed to build, from 700 to 1,100 feet away from plaintiff in error’s said house, but up to the time of the trial had failed to erect a $5,500 residence, as he had contracted to do.

In a trial before the court without a jury judgment was rendered for plaintiff in error for one cent as damages, the court holding that the sum of $600 sued for was a penalty and not liquidated damages.

It is clearly stated by the parties in this cause that the only controversy in this court is as to whether the amount stipulated in the 'contract should be held as liquidated damages or as a penalty.

It has been frequently ruled by our Supreme Court that whether a sum stated in a contract is to be regarded as a penalty or as liquidated damages depends upon the intention of the parties to he determined from the entire provisions of the contract. Westfall v. Albert, 212 Ill. 68; Hennessy v. Metzger, 152 Ill. 505; Goodyear Co. v. Selz, Schwab & Co., 157 Ill. 186.

In the case of Streeper v. Williams, 48 Pa. 450, it is said: “The modern authorities attach greater importance to the meaning and intention of the parties; yet the intention is not all-controlling, for in some cases the subject-matter and surroundings of the contract will control the intention where equity absolutely demands it.” The same conclusion stated by the Pennsylvania court seems to have been reached by our Supreme Court in the cases of Radloff v. Haase, 196 Ill. 365, and Scofield v. Tompkins, 95 Ill. 190.

Much of the trouble encountered in harmonizing the authorities upon this point will disappear, if we will remember that the real intention to be sought for is as to whether or not the parties, after having mutually and in good faith considered and calculated the actual damages, intended the sum fixed by their contract to be accepted as compensation for the breach of the contract, or merely as security or penalty for the breach thereof. It ought to be permissible to contracting parties to avoid all litigation and settle the question as to the amount of damages that shall be paid for the violation of their contracts, subject only to the condition that they do in good faith settle such damages on the basis simply of what they mutually determine to be reasonable and just compensation. Sedgwick, after thoroughly considering the authorities bearing upon this question, lays this down as the general rule, to-wit: “Whenever the damages were evidently the subject of calculation and adjustment between the parties, and a certain sum was agreed upon and intended as compensation, and is in fact reasonable in amount, it will be allowed by the court as liquidated damages.” Sedgwick on Damages (8th Ed.), Sec. 405.

In determining the intent of the parties to the contract courts must look to the entire instrument, and give such construction that every clause shall have some effect, if possible, and for such purpose will, so far as practicable, view the contract from the position of the parties at the time it was made, in order to understand their language in the sense in which it was used, and will permit examination into the question of damages to determine whether or not the enforcement of its provisions would work a hardship upon the obligor. Westfall v. Albert and Radloff v. Haase, supra.

The foregoing authorities further lay down as rules of construing such contracts that in doubtful cases courts should be inclined to treat the stipulations as penalties and hold that the real damages should be inquired into. Applying the usual rules of construction to the contract in hand, it may be said that there are just two reasons appearing why the damages specified should be held as liquidated or compensatory damages, as distinguished from damages named as penalties. The first is that they are denominated as liquidated damages by the contract itself, and in the second place the damages themselves at the time the contract was made, independently of the stipulation, were wholly uncertain and incapable, or very difficult, of being ascertained except by mere conjecture. See Westfall v. Albert, supra. But the effect of these two reasons appear to be more than offset by the use of the words “forfeit and pay,” and by the further fact that plaintiff in error is not shown to have suffered any actual damages by the evidence, and under the reasoning of Radloff v. Haase, supra, to construe the contract as for liquidated damages would work absurdity and oppression. The word “forfeit” signifies the incurring of a forfeiture or penalty and is antagonistic to the idea of mere payment of compensation for damages arising from the breach of a contract. Under the evidence plaintiff in error is not an owner of any property in the addition where he had built his house, but is a mere mortgagee with ample security for the note due him, and therefore there can he no presumption that he will become an owner of any property there by reason of his mortgage. His property he sold in September, 1908, for a profit, and at that time defendant in error appears to have put in the foundation of the house he had contracted to build. In other words, the purchaser of plaintiff in error’s property may be presumed to have supposed, if he made any suppositions at all in that regard, that defendant in error would complete his house that he had contracted to build and had started. Hence, we say the court was authorized by the evidence to find that plaintiff in error sustained no actual damages, the proper measure of damages, when considering his actual loss, being the depreciation in the market value of his premises by reason of defendant in error’s failure to carry out his contract to build. The time or labor spent by plaintiff in error in the building of his house could in no event be figured in estimating his actual damages. That time was only, evidence to increase the cost price of his building, all of which time the evidence shows belonged to and was paid for in full by the Company for whom he was working.

There are other reasons why the $600 mentioned in the contract should not be regarded as stipulated compensation or liquidated damages for failure to build the house by December 15, 1908. The contract itself plainly says that all claim by the plaintiff in error for damages for failure of defendant in error to build prior to the date of the contract on which suit is brought is waived. Such damages, if any, were merely recited as part of the consideration for the contract in suit and all claim therefor expressly waived. In other words, the real contract in this case to be construed is simply the contract following and including the words, “I now undertake and agree that I will construct the residence,” and the facts or the recitals of the facts preceding these words only affect the construction of the contract as mere recitals of the consideration and reasons for making the contract.

The contract in short then is that upon failure to complete said dwelling house by December 15, 1908, appellee agreed to forfeit and pay $600 as liquidated damages. For delay in completing building contracts or other tasks parties may liquidate the damages, but the usual way in which that is done by contract is to stipulate that the one agreeing to build shall “forfeit or pay” a stipulated reasonable sum for every day or week the completion of the work is delayed beyond the time named. But a large sum agreed to be paid at once if performance is delayed beyond a certain date is not allowed as liquidated damages, but is usually construed as a penalty, Sedgwick on damages (8th Ed.), Sec. 419.

The words in the contract, “I consider this offer and the punctual fulfillment thereof as due to you on account of my failure to perform my former agreement,” are referred to as evidence that compensatory damages only were agreed on in the contract. We do not so regard it. The words, thus quoted, clearly referred to the offer “to build not less than a $5,500 house” by Dec. 15, 1908, and do not have reference to the promise to pay the $600.

The contract itself shows clearly, we think, that the $600 named in the contract as damages must be considered as a penalty or security for the fulfillment of the contract to build.- By it, if the contract to build was not fulfilled by the 15th of December, $600 was to be the penalty and the penalty would not have been increased or lessened if he had fully completed the building on, any day after that date. Such a contract could not' be very well viewed as based solely upon compensation for delay in building or as compensation merely in case of a total failure to build, as it makes no specific reference to such failures, nor does it make any distinction in tbe calculation or fixing of damages for a single day’s delay in building and in a total failure to build.

For tbe reasons aforesaid,, tbe judgment of tbe lower court is affirmed.

Judgment affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Calumet Elevator Company, Appellant.
    Gen. No. 16,527.
    1. Master and servant — safe place to world. In order that there may he a recovery of damages for the death of an employe resulting from the negligence of the employer in failing to provide a reasonably safe place in which to work, it must he affirmatively shown that the defects complained of existed, that the employer had notice thereof or might have had by the exercise of ordinary care, that the deceased did not know of the defects and had not equal means of knowledge thereof with his employer, and that the defects were the proximate cause of his death.
    2. Death — proximate cause. Where defendant’s .negligence in not keeping a reasonably safe place to work is alleged as the proximate cause of the death of the plaintiff’s intestate, and a presumptive theory is advanced showing how the defendant’s negligence caused the death, without any direct proof thereon, a finding that defendant’s negligence was a proximate cause, of the death cannot he sustained where there are other theories, equally plausible, showing how death might not have resulted through the defendant’s negligence.
    3. Master and servant — assumed risk. Where an employe, with full opportunity to observe and know the conditions around the machine at which he is working, continues his work without complaint he assumes the risk of any attending'dangers.
    4. Master and servant — failure to guard shaft. Where proof fails to show that it was practicable to guard a shaft and there was no statute requiring such guarding, negligence cannot be predicated thereon even though such shaft caused the death of an em- . ploye.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavahagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed August 12, 1912.
    Calhoun, Lyford & Sheehan, for appellant; Ralph F. Potter and Edward W. Rawlins, of counsel.
    George E. Gorman, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

In a jury trial John F. Devine, administrator and appellee, recovered judgment in the sum of $7,500 against appellant, Calumet Elevator Company, for negligently causing the death of one John Rasmussen. The declaration charged that appellant was operating a grain elevator, in the basement of which was placed and driven a certain wheel and shaft at a rapid rate of speed; that said Rasmussen, as appellant’s employe, was required to oil said machinery; that appellant negligently failed to furnish Rasmussen with a reasonably safe place in which to do his work, (1) by reason of its failure to sufficiently light said basement and machinery; (2) by reason of its permitting ice to form and remain on the basement floor where Rasmussen was required to walk and stand to oil said machinery; and (3) by reason of its failure to so guard and protect said shaft as to secure Rasmussen from contact therewith while oiling the same. Appellant-pleaded the general issue.

The evidence is, in substance, that Rasmussen had been employed by appellant in its said grain elevator in South Chicago at general work from one and one-half to three years prior to his death; that at times he worked as oiler and was familiar with the basement and said machinery; that the machinery consisted of a belt wheel and shaft, the shaft being attached to and operating a screw-conveyor; that the machinery was supported by cross pieces attached to four large upright pillars or posts set in the basement in a rectangle about three by four and one-half feet; that the belt wheel ran the shaft and was pulled by a belt running upwards into the room over the basement; that the belt wheel had two oil cups or boxes on either of its sides about four feet apart into which Rasmussen was to pour oil every hour to keep the bearings properly oiled and cooled, which cups were approached from the south and between two of said upright pillars connected by a cross timber or support about three feet from the floor and twenty-one inches from the oil boxes; that the shaft is about two and one-half inches in diameter, three feet above the floor, and extends east of and beyond said two posts through the conveyor box in which was the screw-conveyor; that the shaft was not guarded nor protected with any device that would prevent contact therewith east of the posts; that a sixteen candle power electric light was hanging and burning to the left of the belt wheel and about eighteen inches from, and right above, the left oil cup at the time of Rasmussen’s death; that said machinery was contained within a space about six by twelve feet, and was near the center of the basement, which was about three hundred by one hundred feet, and lighted by six electric lights that burned day and night; that the weather was cold and the basement was covered with ice and the ice was covered with dust in the vicinity of the machinery at the time of the intestate’s death; and that the basement in the vicinity of the machinery was about six feet in height and the height thereof gradually lessened to about four and one-half feet from the machinery to the stairway entering the basement about seventy-five feet away. Rasmussen was last seen alive about one o’clock on the morning of the accident as he descended the stairway into the basement to oil this machinery. About two hours later his body was found under the elevator shaft on the floor of the basement and to the right or east of said four pillars. There was no eyewitness to the accident. His right arm was torn from his body and wrapped to the shaft about three feet to the right of the right oil box, together with his clothing and some waste matter ordinarily uséd for cleaning machinery. His body was entirely nude, and a partition behind or just north of the machinery was spattered with blood. His shoes were found on the floor near the body. In removing his arm from the shaft the first articles unwound and removed therefrom were his pants, then his underclothes, and then the shirt of the deceased. The arm of the deceased and the waste matter in the hand of the deceased were then taken from the shaft, the waste being the first article wound around the shaft and the last removed therefrom.

The contention of appellant that the court erred in refusing to peremptorily direct a verdict of not guilty in this case must be sustained. To authorize a recovery against appellant for negligently failing to provide appellee’s intestate with a reasonably safe place in which to work, the appellee must affirmatively show that the defects complained of existed, that appellant had notice thereof or might have had by the exercise of ordinary care, that the deceased did not know of the defects and had not equal means of knowledge thereof with appellant, and that the defects were the proximate cause of the intestate’s death. L. E. & W. R. R. Co. v. Wilson, 189 Ill. 89.

It is true that the evidence shows that the deceased was a careful employe when at work, but the evidence undisputably shows that the same conditions and defects, if any, that existed on the morning of the accident had existed in the elevator during the deceased’s employment there, and that he was familiar with them. Furthermore, the evidence does not show what was the actual cause of the deceased being caught and wound around the shaft, except that the circumstances make it reasonably clear that the deceased had in the hand of his dismembered arm a handful of waste which was caught and wound around the revolving shaft, and by reason thereof his hand and arm were caught and bound to the shaft with the waste and his clothing, and while thus caught he was whirled around the shaft and killed. It is a matter of pure conjecture as to what caused the waste in his hand to come in contact with the shaft. It is the theory of appellee that by reason of insufficient light the deceased got too near the revolving shaft, or by reason of the slippery condition of the floor, due to the presence of ice, he slipped and fell against the shaft, and got his hand caught. There is not a single circumstance in the record, except the mere presence of ice on the basement floor and which was covered with dust, that tends to prove that the deceased slipped and fell against the shaft. The deceased may have been caught on the shaft by any one of a number of causes for which appellant was in no way responsible, as by accidently stumbling or swooning and falling against the shaft, or by attempting to wipe the shaft with the stringy waste that was found in his hand. Therefore, it can not he said that there is any evidence fairly tending to show that the intestate came to his death by reason of the presence of an- icy floor or for want of sufficient light, because such findings can not he supported by mere conjecture. Appellee could not recover legally without affirmative proof that the negligence charged caused the death of Rasmussen. Steffen v. Ill. Steel Co., 140 Ill. App. 551; Burke v. Hulett, 216 Ill. 545; A., T. & S. F. Ry. Co. v. Alsdurf, 68 Ill. App. 149; Patton v. Texas & Pac. Ry. Co., 179 U. S. 659.

In the last case above cited it is aptly said: “If the employe is unable to adduce sufficient evidence to show negligence on the part of the employer, it is only one of the many cases in which the plaintiff fails in his testimony, and no mere sympathy for the unfortunate victim of an accident justifies any departure from settled rules of proof resting upon all plaintiffs.” If the only theory or theories upon which the death of the deceased could he reasonably based pointed to the negligence charged in the declaration, we could legally hold that the negligence charged was the proximate cause of the intestate’s death. A., T. & S. F. Ry. Co. v. Alsdurf, supra.

But there is another reason why a verdict should have been directed for appellant. The evidence shows that thp same conditions and defects, if any, that existed on the night of the accident, had existed without change during the time that the deceased had worked at the elevator. With full opportunity to observe and to know the conditions around the machinery, the deceased with full knowledge of the defects, if any, continued his work without complaint, and must, therefore, under the law be held to have assumed the risk. See same authorities above cited. This principle of law applies particularly, too, to the charge that the shaft was not guarded. It may be further said, also, that the shaft was a plain smooth shaft without cog wheels, gearings, set screws or other projections, where the deceased was caught, and that the proof failed to show that it was practicable to guard or fence the shaft, and there was no statute at the time of the accident requiring such machinery to be fenced or guarded. It, therefore, does not affirmatively appear from the evidence that the defendant was guilty of negligence in not fencing or guarding the shaft.

For the foregoing reasons the judgment is reversed with a finding of facts to be recited in the judgment of this court, that the defendant was not guilty of negligence in failing to fence and guard the shaft in question, and that the intestate’s death was not proximately caused by tbe other acts of negligence charged, or either of them, and that the deceased assumed the risk.

Judgment reversed.