text:
    George Trumbull Woodbury, Appellant, v. Continental Casualty Company, Appellee.
    Gen. No. 21,801.
    1. Appeal and ebbob, § 839

      —when time of filing of bill of exceptions to be determined by the record. The time at which the bill of exceptions was filed must be determined by the record, and resort cannot be had to statements of counsel or affidavits.
    2. Appeal and ebbob, § 846*—what proper practice at common law as to date of signing and sealing bill of exceptions. The proper practice at common law and under earlier Illinois practice was to insert, as the date of the signing and sealing of a bill of exceptions, the date of the trial or the time when the exceptions were actually taken.
    3. Appeal and ebbob, § 846*—when date of signing of bill of exceptions fictitious. According to the practice obtaining in Illinois, the date upon which a bill of exceptions is recited to have been signed is ordinarily and usually fictitious.
    4. Appeal and ebbob, § 846*—when face of bill of exceptions shows it not to have been signed on presentation. Pace of bill of exceptions examined and held to show that it was not signed at the time when it was presented.
    5. Appeal and ebbob, § 846*—when face of record shows bill of

      exceptions to have leen signed on day of filing. Matters appearing of record examined and held to show that the bill of exceptions was not signed on the date" inserted therein, but that it was actually signed on the day it was filed.
    6. Appeal and ebbob, § 846

      —when recitation in lili of exceptions as to date of signing not conclusive. The recitation in a bill of exceptions as to the date of its signing is not conclusive, but the date may be determined by an examination of the face of the record.
    7. Appeal and ebbob, § 846*—what proper practice as to dating lili of exceptions. The proper practice is that a bill of exceptions should recite the actual date on which it is signed.
    8. Appeal- and ebbob, § 846*—when Mil of exceptions signed in apt time. Where a bill of exceptions, presented within the time allowed, is signed three days after the date to which the time of filing has been extended by order of court entered on stipulation of counsel, it is signed in apt time.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Motion to strike bill of exceptions denied.
    Opinion filed April 12, 1916.
    Frederick A. Brown and Raymond S. Pruitt, for appellant; John G. McDonald, of counsel.
    M. P. Cornelius and George R. Sanderson, for appellee; Manton Maverick, of counsel.

      See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, V0I3. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Goodwin

delivered the opinion of the court.

Appellee filed herein, its motion to strike the bill of exceptions from the record for the reason, among others, that it was not filed with the clerk of the Circuit Court within a reasonable time after it had been signed by the trial judge. The state of the instrument discloses the usual recitation with reference to its presentation and request that it be signed, etc., ending with the words, “which is accordingly done this, the 1st day of July, A. D. 1915. Lockwood Honoré, Judge. (Seal).” The words “1st,” “July,” and “Lockwood Honoré,” are written in ink. Below the signature appears the following typewritten statement: “I Hereby Certify that the foregoing bill of exceptions was presented to me this 1st day of July, A. D. 1915, to be signed and sealed. L. Honoré, Judge. (Seal).” The signature “L. Honoré” is in lead pencil. To the left, and below, is written in ink, “O. K., M. P. Cornelius, Atty. Cont. Cas. Co. ” It is marked by the clerk 1 ‘ Piled nunc pro tunc as of July 1st, 1915, Jul. 13, 10:14 A. M. 1915, John W. Rainey, Clerk.” The following order was entered July 13th:

“And it appearing to the court, on good cause shown, and that the bill of exceptions in the cause before entitled was presented and so marked in open court July 1, 1915, within the time fixed by the court for filing said bill, on motion of Brown & Pruitt, attorneys for the plaintiff, it is hereby ordered that the said bill of exceptions signed and dated July 1, 1915, be filed nunc pro tunc as of the same day, to wit, July 1, 1915. Enter: L. Honoré, Judge. ”

Counsel for appellant contend that the bill of exceptions was not signed on July 1st, but on July 13th, the date it was actually filed. Counsel for appellee, without denying this to be the fact, assert that the matter must be determined by the record, and that resort cannot be had to statements of counsel or affidavits. We are of the opinion that the contention of appellee in this regard must be sustained. Counsel for appellee base their proposition that the record was not filed within a reasonable 'time on their contention that the record shows that the bill of exceptions was signed on July 1, 1915, and that it was not filed until thirteen days thereafter. The first question necessary to be examined, therefore, is whether the recitation in the bill of exceptions itself, “which is accordingly done this the 1st day of July, A. D. 1915,” determines the actual date of the signing. The practice at common law and the early practice in this State was to insert, as the date of the signing and sealing, the date of the trial or the time when the exceptions were actually taken. That this is the proper practice is shown by the case of Evans v. Fisher, 5 Gilm. (10 Ill.) 453, citing Walton v. United States, 9 Wheat. (U. S.) 651; Ex parte Bradstreet, 4 Pet. (U. S.) 107; and Law v. Merrills, 6 Wend. (N. Y.) 268. In Wabash, St. L. & P. Ry. Co. v. People, 106 Ill. 652, it is said that in all cases it should appear on its face to have been taken and signed at the trial. In T. E. Hill Co. v. United States Fidelity & Guaranty Co., 250 Ill. 242, Mr. Justice Carter, speaking for the court, after referring to the usual practice of dating the bill of exceptions as of the date of the judgment, said, p. 246:

“As a matter of proper practice the judge should have dated it, after signing, as of the date when it was presented, and an order should have been procured filing it as of that date.”

From these authorities it is plain that the date upon which a bill of exceptions is recited to have been signed is ordinarily and usually fictitious. There are cases, however, where the date is very obviously and conclusively the date of the actual filing, as, for instance, where it is neither the date at which the exceptions were taken, nor the date upon which the bill of exceptions was presented, but a date subsequent to the time limited for presenting the bill of exceptions. In such a case there is, of course, no reason for the insertion of the date selected, except the fact that it was the date upon which the bill was actually signed. This may be illustrated by the case of Illinois Improvement & Ballast Co. v. Heinsen, 271 Ill. 23, where the judgment was entered April 5, 1913, the bill of exceptions presented June 23, 1913, the time for presenting expired August 15, 1913, and it appeared to have been signed September 27, 1913. It is obvious that there could have been no reason for selecting that date except the fact that it was the date upon which the bill was signed.

The question arises, then, as to whether in the case at bar the recitation in the bill of exceptions so conclusively fixes the date of the signing as to justify the court in striking it from the files upon the theory that it was actually signed upon that date, and that in consequence, the filing July 15th was not within a reasonable time. Counsel for appellee, in support of their contention that July 1st was the date upon which the bill of exceptions was actually signed, suggest that it is not customary for a judge to give more than a formal examination to a bill of exceptions where it is 0. K’d by the parties. He therefore concludes that as this bill now appears to have been 0. K’d by the appellee, we are to assume that it was signed upon the date it was actually presented upon the faith of appellee’s certification to its correctness. We think, however, that the face of the bill of exceptions itself shows unmistakable evidence that the bill of exceptions was not signed on the date it was presented, and that appellant’s counsel did not expect it to be signed on that date. It will be noted that in the certificate reciting that the bill of exceptions was presented to the trial judge for signature the 1st day of July, the date is typewritten, while in the case of the recitation with reference to signing and sealing, the date is filled in with ink. The signature to the former was in lead pencil; to the latter it was in ink. Had the bill been 0. K’d at the time it was presented to the trial judge, there would obviously have been no reason for a certificate that it was presented July 1st, for it would in ordinary course have been signed and sealed at once upon the faith of counsel’s 0. K. The signing of the certificate, in our opinion, is inconsistent with the theory that there was an 0. K. upon the bill at the time it was presented, and indicated clearly an intention upon the part of the court to postpone the signing and sealing of the bill until a later date. The cases of Illinois Improvement & Ballast Co. v. Heinsen, supra, and Hall v. Royal Neighbors, 231 Ill. 185, are clearly distinguishable from the case at bar, in that the record in each of those cases showed, and it was not disputed that it did show, the actual date of the signing. It may be noted also that in the Heinsen case, supra, the bill of exceptions was not signed until forty-three days after the time for presenting it had expired, and was not filed until twenty-one days thereafter.

In the case at bar, even the date of the filing was within three days from the expiration of the time allowed for the bill of exceptions, and thirteen days from the date of its presentation. It seems obvious that the insertion in the bill of exceptions of the date of presentation was due to the statement of Mr. Justice Carter in T. E. Hill Co. v. United States Fidelity & Guaranty Co., supra, quoted above, to the effect that it should be signed “as of the date when it was presented, and an order should have been procured filing it as of that date.”

We are clearly of the opinion that the matters appearing of record demonstrate that the bill of exceptions was not signed on the date inserted therein, but that, on the contrary, the state of the record clearly indicates that the bill of exceptions was actually signed on the day it was filed, and that in dating it as of the date when it was presented, counsel followed the suggestion of the court in the Hill case, supra. While this practice avoids the apparent inconsistency which arises when a bill of exceptions is filed as of the date when it is presented, but recites on its face that it was signed and sealed at a later date, yet, in view of the question which has arisen here as the result of following the practice of reciting the date of its presentation as the date when it was signed, we venture the suggestion that similar difficulties may be avoided by reciting the actual date of the signing—a practice which has been repeatedly approved by our Supreme Court.

Appellee’s contention that the bill of exceptions was not signed in apt time is also without merit, in view of the stipulation signed by its attorney “that the time for filing the bill of exceptions in the canse above entitled be again extended to the 19th day of July, A. D. 1915, ’ ’ and the order of court entered thereon. The law is very clear that such a stipulation empowers the court to extend the time for presenting a bill of exceptions, even where it is entered into after the time has expired. (Hawes v. People, 129 Ill. 123; Loeff v. Taussig, 102 Ill. App. 398.)

In Evans v. Fisher, supra, the court went so far as to recognize an oral agreement bv the parties in regard to the settlement of a bill of exceptions after the term had expired, and no order had been entered, although the making of the agreement itself was disputed.

For the reasons above given we are of the opinion that the bill of exceptions in this case was presented and filed in apt time. The motion will, therefore, be denied.

Motion denied.


source: Caselaw Access Project

author: Mr. Justice O’Connor

license: Public Domain

text:
    J. C. Pennoyer Company, Defendant in Error, v. Eugene Wendnagel and William Wendnagel, trading as Wendnagel & Company, Plaintiffs in Error.
    Gen. No. 20,298.
    (Hot to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 12, 1916.
    Statement pf the Case.
    Action by J. C. Pennoyer Company, a corporation, plaintiff, against Eugene Wendnagel and William Wendnagel, copartners, trading as Wendnagel & Company, defendants, to recover seventy-five dollars for services rendered.

      The case was tried by the court without a jury, and judgment was entered in favor of plaintiff for the amount claimed, from which defendants bring error.
    The evidence showed that in October, 1912, plaintiff was under contract with the South Halsted Street Iron Works to haul a steel girder from the latter’s place of business, located on South Halsted street, to the Alaska Theater, located on 31st street. To do this work it required twelve horses and five men. On the morning of October 1, 1912, plaintiff’s men and horses went to the South Halsted Street Iron Works to load the girder. When they arrived there they found a Mr. Carter, who was in the employ of the defendants. The girder was loaded on a wagon and taken to the Alaska Theater, but on account of some obstruction in the alley near the theater, plaintiff was unable to deliver the girder at the place desired. Plaintiff’s men, after waiting a reasonable time, informed Mr. Carter, who had accompanied them to the theater, that they could not allow their teams and men to wait any longer; that unless the girder was unloaded at once, plaintiff would charge twenty-five dollars per hour for any further delay. Thereupon Carter went to a nearby telephone, and shortly afterwards returned and told the plaintiff’s men if they would wait until the girder could be delivered at the proper place, they would be paid for such delay. Plaintiff’s men waited for three hours before they could deliver the girder, and this suit was brought to recover for the three hours’ delay at twenty-five dollars per hour.
    One of the defendants testified that Mr. Carter was in their employ; that he was primarily an estimator on steel contracts; that he lived near the Alaska Theater, and that he was instructed to go to the theater three mornings each week and inspect the work and see how it was getting along. The witness further testified that Carter was not authorized by the defendants to make any agreement with the plaintiff’s men in their behalf.
    Abstract of the Decision.
    Contracts, § 387*—when evidence insufficient to sustain recovery. Evidence in action to recover for services alleged to have been performed under contract, examined and held insufficient to support verdict.
    Adams, Crews, Bobb & Wescott, for plaintiffs in error.
    Boyle & Mott, for defendant in error.
   Mr. Justice O’Connor

delivered the opinion of the court.


author: Mr. Justice O’Connor Mr. Justice Goodwin

text:
    Philip Henrici Company, Appellant, v. Carrie Alexander et al., Appellees.
    Gen. No. 20,934.
    1. Conspiracy, § 14

      —when evidence insufficient to shoio illegal boycotting. On a bill to enjoin defendants from unlawfully conspiring to boycott complainant’s business, evidence examined and held not to show an illegal act on defendant’s part.
    2. Conspiracy, § 8*—when distribution of printed matter not illegal. On a bill to enjoin defendants from printing or publishing any printed matter calling attention to the fact that complainant’s business is unfair and not unionized or that a strike is on, held that the distribution of a publication purporting to give information regarding the strike and of printed matter stating that complainant was unfair was not illegal.
    3. Conspiracy, § 14*—when evidence insufficient to show conspiracy beyond reasonable doubt. On a bill and cross-bill, each alleging a conspiracy to injure business, evidence examined and held insufficient to establish a conspiracy beyond a reasonable doubt, as required by law.

      4. Conspiracy, § 8

      —when picketing illegal. Where the facts show that there was no strike, and the pickets made statements not warranted by the facts, and by reason of the picketing crowds congregated which interfered with complainant’s business, the picketing was properly enjoined.
    5. Conspiracy, § 14*—-when evidence sufficient to show picketing. On a bill to enjoin defendants from interfering with complainant’s business, evidence that defendants patrolled in front of complainant’s restaurant, in which there was no strike, stating to each other so that they could be heard by passers-by that there was a strike on at such place; “We want $8 for six days’ work”; “Don’t eat under police protection,” and words of similar import, is sufficient to show picketing tending unlawfully to interfere with complainant’s business against which an injunction would be granted.
    6. Conspiracy, § 16*—when decree enjoining picketing and patrolling modified. On a bill to enjoin picketing and patrolling complainant’s place of business, where the evidence shows the picketing was not justified, the decree enjoining such picketing and patrolling should not be qualified by adding thereto the words “in such a manner as to intimidate, threaten or coerce any person or persons from entering or who may desire to enter said premises for the purpose of patronizing the complainant, or fsr any lawful purpose whatsoever,” and on appeal the decree will be modified by striking the qualification therefrom.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Decree modified and affirmed.
    Opinion filed April 12, 1916.
    Goodwin, J., dissenting in part.
    McEwen, Weisenbach, Shrimski & Meloan, for appellant.
    Edgar L. Masters, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

Appellant filed a bill for injunction in the Circuit Court of Cook county against the appellees, and after answer filed, appellees filed a cross-bill praying for an injunction against the appellant and other parties. The cause came on for hearing before the Honorable John P. McGoorty, who associated with himself the Honorable Jesse A. Baldwin and the Honorable Thomas G. Windes, judges of said court. From a decree dismissing the cross-bill for want of equity and awarding an injunction in favor of appellant for less than the relief prayed, both parties were allowed an appeal. Appellant has perfected its appeal in this court, and appellees have assigned cross-errors. For convenience, the parties will hereafter be designated as complainant and defendants as in the court below.

Complainant is a corporation engaged in the restaurant and bakery business in the City of Chicago, and has conducted said business for a number of years. The business is successful and profitable. At the time of the filing of the bill it served more than 2,000 patrons daily in its restaurant, some of whom had been customers continuously for a number of years. Complainant employed about 125 persons in various capacities, including 54 waitresses, 7 cooks and 10 bakers. Many of them had been in its employ for years. The waitresses- received wages ranging from $3.50 to $7 "per week, depending on the number of hours worked which varied from 18 to 57. In addition to their wages the girls received their meals. The evidence also tended to show that as a result of gratuities or £ ‘ tips, ’ ’ given to the waitresses by the patrons, the amount received, including their wages, aggregated from $15 to $25 per week.

About six months prior to the filing of the bill, the Waitresses’ Union, Local No. 484, co-operating with the Chicago Cooks’ and Pastry Cooks’ Union, Local No. 865, and the Bakers’ and Confectioners’ Union, Local No. 2, began a campaign in Chicago to unionize the restaurants of the city. The primary purpose of the unions was the improvement of the working conditions of the waitresses, including a minimum wage of $8 per week, consisting of a maximum of 60 hours, and one day of each week for rest and recreation. As a result of such campaign more than 100 restaurants, principally in the loop district of the city, signed the union agreement which embodied the working conditions above mentioned, and provided for a closed shop. In pursuance of the campaign representatives of the three unions called upon the complainant and requested it to sign a similar trade agreement. Complainant informed them that many of its waitresses had been in its employ for a number of years; that they were satisfied with their working conditions, and at no time had they made any complaint; that it would interpose no objection to the waitresses joining the union, and further time was asked by the complainant to consider the agreement submitted. At a subsequent meeting complainant informed the union representatives that it had become a member of the Restaurant Keepers’ Association of Chicago, which consisted of about 40 members, and that further negotiations with reference to the agreement must be taken up with said Association. This was in accordance with a provision of the Constitution of said Association, which is as follows :

“Any member who shall settle a strike or demand of any labor organization whatever affecting the general welfare of the members of this Association shall be suspended and not reinstated until he shall have complied with the conditions which this Association may impose.”

Further negotiations were had between the Association and defendants in this regard. Complainant refused to sign the agreement, and pursuant to a resolution passed by the three unions, a strike was called at the restaurant of complainant, February 5, 1914. On the same day 4 of the 10 bakers, members of the union, quit work; also 2 of the 7 cooks, whose reason for leaving is in dispute. All of the waitresses, however, continued with their work as before, none of them being members of the union. The evidence for the complainant tends to show that it made no discrimination in the hiring of its employees in favor of or against union labor, while evidence on behalf of the defendants tended to show that waitresses belonging to the union had been discharged by the complainant because they were members of the union.

On February 5, 1914, from 6 to 10 members of the waitresses ’ union, in accordance with instructions from the union, patrolled in front of complainant’s restaurant, walking back and forth from a point about 25 feet east to a point about the same distance west of the restaurant, and saying to each other so that they could be heard by the passers-by: “There is a strike on at Henrici’s. ” “We want $8 for six days work. ” “Don’t eat under police protection,” and words of similar import. On one occasion one of the pickets wore a mackintosh on which was printed the following words: “We want $8 for six days work.” Match boxes on which it was stated that the complainant was “unfair” were sent out from the waitresses’ union, together with a publication known as the Bakers’ Journal which purported to give information regarding the strike, and-were distributed to the public. The pickets were supplemented at times by one to three members of the bakers’ and cooks’ unions. The patrolling was done principally at the lunch and supper hours. The pickets were instructed by the union to obey the law and continue moving; that they were not to accost any one nor allow any one to accost or speak to them; that the picketing must be peaceful, and that they should give general information to the public in regard to their grievances to gain its moral support. .

Complainant’s restaurant is located at Nos. 67 to 71 West Randolph street, Chicago, in what is known as the loop district. The picketing attracted large crowds to the vicinity and in front of the restaurant. Crowds also congregated on the opposite side of the street and at times interfered with the business conducted on the street in the vicinity of the restaurant. The picketing continued until March 6th, and the evidence tends to show that during the picketing the number of customers per day at the restaurant was about 250 less than normal. Pickets were arrested daily, the number of arrests aggregating 119. One of them was arrested 15 times, and three of them complained of brutality on the part of the police. They were charged with criminal conspiracy, disorderly conduct, obstructing the sidewalk, etc. It is admitted that none of the pickets committed any act of violence.

The bill contains the usual allegations, and prays that the defendants be enjoined from unlawfully conspiring to boycott or interfere with complainant’s business; from interfering with its employees by intimidation, insults or threats; from printing or publishing any printed matter calling attention to the fact that complainant’s business is unfair and not unionized or that a strike is on; from patrolling in front of or adjacent to the restaurant, etc. The cross-bill makes the complainant, the chief of police, John Vogelsang, Chicago Restaurant Keepers’ Association, and unknown police officers, parties defendant. It charges the cross-defendants with entering into a conspiracy to injure the waitresses’ union and certain unions cooperating in the strike, thus making the same charge against the complainant as is made against the defendants. It alleges that the cross-complainants have not entered into any controversy for the purpose of injuring complainant’s business, but that they are acting in the strike for the purpose of strengthening their organization, in order that the members thereof may profit by better economic conditions, higher wages, less hours of service, and better conditions. The prayer was that the cross-defendants be enjoined from continuing the conspiracy, and from doing any act to injure the unions.

After a full hearing a decree was entered dismissing the cross-bill for want of equity and providing: “That the defendants to the original bill and each of them and their attorneys, solicitors, agents, servants and associates and each and every of them be enjoined and restrained from unlawfully hindering, obstructing or interfering with the business of the Complainant, Philip Henrici Company, or its employees, by any act of violence or intimidation or by picketing or patrolling the street in front of or in the alley in the rear of Complainant’s place of business at 67 to 71 West Randolph street, in the City of Chicago, Cook County, Illinois in such a manner as to intimidate, threaten or coerce any person or persons from entering or who may desire to enter said premises for the purpose of patronizing the Complainant, or for any lawful purpose whatsoever.”

Both parties are dissatisfied with the decree. The complainant contends that the court should have entered a decree in accordance with the prayer of the bill; that the evidence clearly established that the defendants were guilty of a conspiracy to injure the business of complainant, and that they were guilty of boycotting complainant’s business. The defendants contend that the evidence established that the cross-defendants are guilty of a conspiracy to injure the defendants’ union.

The court held, after a careful review of the authorities, that neither party had proven the charge of conspiracy beyond a reasonable doubt as required by law; that the so-called, boycotting was not illegal, and that the distribution of the publication by the defendants, to which objection is made, should not be enjoined. In this conclusion we concur.

The principal controversy, however, in this case, is as to the right of the defendants to picket complainant’s place of business in the manner shown by the evidence. The complainant contends that, under the law of this State, there is no such thing as peaceful picketing, and that under the law and facts in this case, the picketing should be enjoined without qualification. In support of its contention numerous cases are cited. Reliance, however, is placed chiefly on the case of A. R. Barnes & Co. v. Chicago Typographical Union, 232 Ill. 424. On the other hand, the defendants contend that peaceful picketing is not unlawful; that no act of violence was committed by any of the pickets (this is conceded by the complainant), and that therefore the bill should be dismissed for want of equity. In support of their contention, the defendants cite the cases of Kemp v. Division No. 241, 255 Ill. 213; and Iron Molders’ Union v. Allis-Chalmers Co., 166 Fed. 45.

In the Barnes case, supra, a decree was entered enjoining the defendants, among other things, “from picketing or maintaining at or near the premises of said complainants, or any of them, any picket or pickets.” In that case the complainants were engaged in the printing business. On account of some dispute over the hours of labor, etc., a strike was called and complainant’s place of business was picketed. The pickets were guilty of threats and actual intimidation. In passing on the question of picketing, the majority of the court, speaking by Mr. Justice Cartwright, say (p. 435) : “It is next contended that if any injunction was authorized, the injunction granted was too broad in enjoining appellants from peaceful picketing of complainants’ premises and from congregating about or near their places of business for the purpose of inducing or soliciting employees to leave the employment. It is contended that a peaceful picket line around a shop is entirely lawful. But this court has held otherwise in Franklin Union v. People, supra (220 Ill. 355), where endorsement was given to the doctrine of Beck v. Railway Teamsters’ Protective Union, 118 Mich. 497, by quoting therefrom, as follows: ‘ To picket complainants’ premises in order to intercept their teamsters or persons going there to trade is unlawful. It, itself, is an act of intimidation and an unwarrantable interference with the right of free. trade. The highways and public streets must be free to all for the purposes of trade, commerce and labor. The law protects the buyer, the seller, the merchant, the manufacturer and the laborer in the right to walk the streets unmolested. It is no respecter of persons, and it makes no difference, in effect, whether the picketing is done ten or ten hundred feet away.’ The court also gave its approval to the decision in Vegelahn v. Guntner, 167 Mass. 92. In that case a patrol of two men in front of the plaintiff’s factory, maintained as one of the means of carrying out the defendants’ plan, was held to be an unlawful interference with the rights of the employer and the employed. The patrolling or picketing of the premises was considered to have elements of intimidation, and the court decided that the motive of obtaining better wages for themselves on the part of the defendants did not justify maintaining a patrol in front of the complainant’s premises as a means of carrying out their conspiracy. The very fact of establishing a picket line is evidence of an intention to annoy, embarrass and intimidate, whether physical violence is resorted to or not. There have been a few cases where it was held that picketing, by a labor union, of a place of business is not necessarily unlawful if the pickets are peaceful and well behaved, but if the watching and besetting of the workmen is carried to such a length as to constitute an annoyance to them or their employer it becomes unlawful. But manifestly that is not a safe rule and furnishes no fixed or certain standard of what is lawful or unlawful. Any picket line must result in annoyance both to the employer and the workmen, no matter what is- said or done, and to say that the court is to determine by the degree of annoyance whether it shall be stopped or not would furnish no guide, but leave the question to the individual notions or bias of the particular judge. To picket the complainants’ premises was in itself an act of intimidation and an unwarrantable interference with their rights. Pickets were, in fact, guilty of actual intimidation and threats, but if they had not been, the complainants were entitled to be protected from the annoyance. ’ ’

In the Kemp case, supra, nonunion employees filed a bill against union employees to restrain the union and its officers from calling a strike of its members, the purpose of the injunction being to prevent the union employees of the street railway company from quitting their employment in accordance with a vote previously taken by them. The injunction was denied for the reason as stated by Mr. Justice Carter (p. 252) that it would be, ‘ in effect, to compel them to continue in their employer’s service unwillingly.”

In Iron Molders’ Union v. Allis-Chalmers Co., supra, the defendants were enjoined, “from congregating upon or about the company’s premises or the sidewalk, streets, alleys or approaches adjoining or adjacent to or leading to said premises, and from picketing the said complainant’s places of business or the homes or boarding houses or residences of the said complainant’s employees.” In passing on this provision of the decree, Judge Baker, speaking for the United States Court of Appeals, said (p. 51): “With respect to picketing as well as persuasion, we think the decree went beyond the line. The right to persuade new men to quit or decline employment is of little worth unless the strikers may ascertain who are the men that their late employer has persuaded or is attempting to persuade to accept employment. Under the name of persuasion, duress may be used; but it is duress, not persuasion, that should be restrained and punished. In the guise of picketing, strikers may obstruct and annoy the new men, and by insult and menacing attitude intimidate them as effectually as by physical assault. But from the evidence it can always be determined whether the efforts of the pickets are limited to getting into communication with the new men for the purpose of presenting arguments and appeals to their free judgments. Prohibitions of persuasion and picketing, as such, should not be included in the decree.”

Cases from other jurisdictions have been cited which hold that peaceful picketing is not unlawful, but so far as we have been able to ascertain, the law in this State in reference to picketing as announced in the Barnes case, supra, has not been changed. The evidence shows that the pickets in patrolling the street stated that there was a strike on at Henrici’s. A strike is defined to be: “A combined effort by workmen to obtain higher wages or other concessions from their employers, by stopping work at a preconcerted time.” (Bouvier’s Law Dict.) “The act of a body of workmen employed by the same master, in stopping work all together at a prearranged time, and refusing to continue until higher wages, or shorter time, or some other concession is granted.” (Black’s Law Dict.) “A concerted or general quitting of work by a body of men or women for the purpose of coercing their employer in some way, as when higher wages or shorter hours are demanded, or a reduction of wages is resisted; a general refusal to work as a coercive measure.” (Century Dict.) In the case at bar, we are clearly of the opinion that there was no strike as a matter of fact. So far as the evidence shows, none of the complainant’s employees had made any complaint (before the resolution was passed by the unions calling the strike) as to the amount of wages, number of hours worked, or any other matter, nor did any of the waitresses quit their employment on account of the calling of the strike; and made no complaint at any time and, therefore, the statements as made by the pickets, ‘‘ There is a strike on at Henrici’s,” “We want $8 for six days’ work,” “Don’t eat under police protection,” were not justified by the facts, and these, together with the patrolling, constituted picketing which tended unlawfully to interfere with complainant’s business and was therefore properly enjoined.

Counsel for both parties contend that the decree is ambiguous, in that the rights of the parties are not clearly defined. The decree enjoins picketing and patrolling the complainant’s place of business and then qualifies the same by the following language: “In such a manner as to intimidate, threaten or coerce any person or persons from entering or who may desire to enter said premises for the purpose of patronizing the Complainant, or for any lawful purpose whatsoever.” In this qualification the court erred. We are of the opinion that under the facts in this case, the manner of picketing as shown by the evidence was not justified and should be enjoined. The decree will, therefore, be modified by striking therefrom the following words: “In such a manner as to intimidate, threaten or coerce any person or persons from entering or who may desire to enter said premises for the purpose of patronizing the Complainant, or for any lawful purpose whatsoever,” and as so modified the decree of the Circuit Court is affirmed.

Decree modified and affirmed.

Mr. Justice Goodwin

concurring in part and dissenting in part.

Unfortunately, I feel constrained to dissent from the conclusions of the court in this case, so far as they result in a modification of the decree entered in the Circuit Court. Upon the disputed questions of fact I must, of course, concur in holding that as the learned chancellors saw and heard the witnesses, and as their findings in regard to the facts can in no way be said to be clearly against the weight of the evidence, they are binding on this court.

Upon the question as to whether picketing or patrolling is ever lawful, however, I am persuaded that the reasoning of the distinguished jurist in Iron Molders’ Union v. Allis-Chalmers Co., discussed in the opinion of the court, is correct. Certainly picketing, as applied to a labor controversy, has no definite and precise meaning; consequently judges differ in regard to the question of whether picketing is absolutely and unqualifiedly unlawful, to just the extent to which they differ as to the meaning of the term. There does not appear to be a difference in regard to any substantive principle of law expressed in the opinions in the Barnes case, supra, and in the case of Iron Molders’ Union v. Allis-Chalmers Co., supra, but rather a difference in regard to the meaning of a term employed in the respective decrees. Both emphatically agree that the stationing of men for purposes of violence and intimidation should be enjoined; in the first, the position is taken that the term “picketing” necessarily includes an intention to intimidate; in the second it is held that it does not. While it seems preferable to avoid the use of a term of such inexactness, the decree does, nevertheless, by the addition of the qualifying words (which are rejected by the majority of this' court) give it the definiteness and exactness of expression which, in my opinion, the law requires. The criticism of the decree urged by both sides on account of the general language employed, however, appears to be not without some justification. In view of the volume of evidence taken, it would seem that it was possible for the chancellors to define and describe with great particularity the exact character of the acts to be enjoined. This was a matter of perhaps greater importance to the defendants than to the complainant.

It appears, nevertheless, that the language used was sufficiently clear to inform the defendants in the present instance, at least, of what was prohibited, and that did not go beyond what was justified by the findings of fact which, as we have already indicated, we are not at liberty, under the law, to disregard. So far as complainant is concerned, on the other hand, the decree gave it a full measure of protection against unlawful interference with its business, which was all that it was entitled to. It had no right to have that protection expressed in any particular phraseology. For these reasons I believe that the decree should be affirmed without modification.


text:
    Aaron Anderson, Defendant in Error, v. H. A. Reiter, trading as H. A. Reiter & Company, Plaintiff in Error.
    Gen. No. 21,049.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action by Aaron Anderson, plaintiff, against H. A. Reiter, trading as H. A. Reiter & Company, defendant, to recover commissions on the sale of real estate.
    The case was tried before the court without a jury, and to reverse a judgment for $92.50 in favor of the plaintiff, the defendant prosecutes this writ of error.
    The defendant is a real estate broker, and as such sold certain real estate on behalf of the plaintiff. Of the purchase price, $200 was paid to the defendant by the purchaser, which the defendant claimed as his commission. Plaintiff contended that the defendant’s commission was to be two and one-half per cent, of the selling price, or $107.50, and therefore $92.50 of the amount paid to the defendant belonged to the plaintiff. The evidence tended to show that the plaintiff called at the defendant’s office June 2, 1914, in reference to the sale of the real estate. The defendant and his salesman Karrer were present. The amount of commission which the defendant was to charge was discussed.
    The plaintiff testified that the defendant said his commission would be $200; that the plaintiff said this was too much, and that he would only pay $100; that the defendant said that $100 was not even two and one-half per cent.; that thereupon plaintiff said if defendant would not take two and one-half per cent, he (plaintiff) would not sign the contract; that the defendant said, “Well, I guess we will have to take that,” and that then the plaintiff signed the contract for the sale of the property for $4,300; that later the deal was closed at Kransz’s office, and that he then asked the defendant where the $200 deposit was, and the defendant stated that Mr. Karrer had it; that on the afternoon of the same day plaintiff went to the defendant’s office and met Mr. Karrer and asked him for the difference between $200 and two and one-half per cent, of the selling price, which was refused on the ground that the commission agreed upon was $200.
    The defendant and his salesman both testified that a few weeks prior to the time in question, they had sold for the plaintiff a flat building; that the plaintiff received as part of the consideration for said flat building the piece of real estate above referred to; that in that deal the defendant wanted $400 commission, which the plaintiff refused to pay, but finally agreed to pay $300, and further stated that if the defendant sold the real estate mentioned in the contract above referred to he would pay $200 commission; that in that transaction the plaintiff signed a written agreement to pay the defendant $300; that on June 2nd, when the plaintiff called at the defendant’s office, he asked what commission the defendant was to charge and was informed that it would be $200 as the plaintiff had theretofore agreed; that the plaintiff said he would not pay that amount; that he first said he would pay $80, then $100, and then two and one-half per cent, of the selling price; that thereupon the defendant stated that he would sell to the prospective purchaser a piece of property owned by another person in lieu of the plaintiff’s property ; that the plaintiff then said, “Well, all right, draw up the contract, and I will pay the $200;” that the defendant then drew up the contract which was signed. The amount of the commission, however, was not written in the contract. Defendant further testified that after the deal was closed at Kransz’s office, plaintiff said, “Don’t I get any of that $200”; and defendant said, “Mr. Karrer has that, I haven’t”; that on the afternoon of the same day, plaintiff called at defendant’s office and there met Mr. Karrer and demanded the $92.50, which was refused.
    Abstract of the Decision.
    Brokers, § 88

      —when evidence sufficient to support verdict in action for commissions. Evidence in action by real estate broker for commissions examined and held to support the verdict.
    Caswell & Healy, for plaintiff in error.
    Harry Brown, for defendant in error.

      See Illinois Notes Digest, Veis. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.


text:
    Edward A. Glende, Plaintiff in Error, v. H. Spraner, trading as Wicker Park Garage, Defendant in Error.
    Gen. No. 21,061.
    (Not to Ibe reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Action of fourth class in Municipal Court of Chicago by Edward A. Glende, plaintiff, against M. Spraner, trading as Wicker Park Garage, defendant, to recover damages for the loss of a motorcycle valued at $225. The case was tried before the court without a jury, and the issues were found against the plaintiff, a judgment was entered against the plaintiff for costs, to reverse which he prosecutes this writ of error.
    The evidence showed that the defendant was the owner and proprietor of the Wicker Park Garage. The plaintiff was the owner of the motorcycle involved in this case. On the afternoon of May 31,1914, plaintiff and another were riding said motorcycle and, as they were nearing defendant’s garage, the drive chain of the motorcycle broke, and plaintiff then pushed the motorcycle into defendant’s garage to repair the chain. He worked for some time but was unable to fix the chain, and, a storm having arisen in the meantime, plaintiff decided to leave the motorcycle in the garage over night, which he did with the permission of the defendant. The plaintiff stated that he would call for it the next day. Some time during the next day, a man called at defendant’s garage and presented a written order signed by the plaintiff directing the defendant to “give this gentleman permission to inspect” the motorcycle. Defendant complied with plaintiff’s directions, and while the man was inspecting the motorcycle he mounted it and rode away. Plaintiff arrived at the garage immediately after the man had gone and demanded the motorcycle. He was told that the motorcycle had been delivered to the man who presented plaintiff’s written order; that he had just left with it, and would probably be back in a few minutes. Plaintiff waited around the garage for a while, but the man did not return, and plaintiff was never able to recover possession of his motorcycle.
    Abstract of the Decision.
    1. Automobiles and garages, § 5

      —when evidence sufficient to show keeper of garage gratuitous bailee. In an action against the proprietor of a garage for the loss of a motorcycle, evidence examined and held sufficient to sustain a finding that defendant was a gratuitous bailee.
    2. Automobiles and garages § 5*—when garage keeper storing vehicle liable as gratuitous bailee. The keeper of a garage who stores a vehicle over night to accommodate its owner and without agreement as to compensation is a mere gratuitous bailee and is liable for gross negligence only, or a want of slight care or diligence.
    The plaintiff contended that there was an express contract by which he agreed to pay the defendant fifty cents fpr keeping the motorcycle over night, and that therefore the defendant was a bailee for hire. The defendant denied that there was any such agreement, and contended that he permitted the plaintiff to leave the machine as an accommodation and that he was a mere gratuitous bailee.
    Henry J. Kramer, for plaintiff in error.
    Jacob C. Le Bosky, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

3. Automobiles and gabages, § 5 —when garage keeper exercising ordinary care not liable for loss of stored vehicle. A garage keeper who, for compensation, stores a vehicle for the owner is not liable for its loss by theft, if he exercised ordinary care to prevent it.

4. Bailment, § 27*—when burden of proof on bailee and when on bailor in action for loss of bailment. In an action by a bailor against a bailee to recover damages for the loss of the bailment, where plaintiff shows the delivery of the bailment to defendant and the failure of defendant to make redelivery, the burden is on defendant to show the exercise of the degree of care required by the nature of the bailment; but where it appears that the bailment was lost, stolen or destroyed by fire, the burden of proving negligence is on the plaintiff.

5. Automobiles and gabages, § 5*—when garage keeper not liable for theft of motorcycle. ( In an action against a garage keeper to recover for the loss of plaintiff’s motorcycle, where the evidence shows that plaintiff had left the machine in defendant’s garage over night, that he had advertised it for sale and had so informed defendant, also informing the latter that the machine could not be operated until repairs were made, and had left his name and address with defendant and had requested the latter to permit any one to inspect the machine whom he might send around, defendant is not liable for the theft of the machine by one who presented a written permit from plaintiff to inspect and, under the pretext of inspecting it, stole'it, riding it away.


text:
    Oscar Metz and Bertha Metz, Appellees, v. Oscar Brodfuehrer and Henrietta Newton, Appellants.
    Gen. No. 22,132.
    (Not to he reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court.
    Affirmed.
    Opinion filed April 12, 1916.
    Statement of the Case.
    Bill by Oscar Metz and Bertha Metz, complainants, against Oscar Brodfuehrer and Henrietta Newton, defendants, to remove clouds and for an accounting. From an order denying a motion to dissolve a preliminary injunction, heard on the face of the verified amended bill, defendants appeal.
    The bill alleged that complainants, on January 8, 1913, purchased property known as 2161 Leland avenue, Chicago, and paid for the same; that the property is improved with a two-story brick building; that the complainant, Oscar Metz, in 1907, employed the defendant, Oscar Brodfuehrer, as his agent to look after some real estate matters; that the complainants from time to time purchased different parcels of real estate and were represented in said transactions by said Brodfuehrer; that the latter continued to act in said capacity from 1907 until the filing of the bill in this ease; that since the purchase of the Leland avenue property the same has been occupied by tenants; that the defendant Brodfuehrer as agent for the complainants has collected the rents from such tenants; that the defendants conspired to cheat and defraud the complainants out of said property and in furtherance of said conspiracy, on or about the 11th day of September, 1913, forged the complainants’ names to a trust deed to said premises, purporting to secure an indebtedness of $1,000; that the said trust deed is a. forgery and should be removed as a cloud; that after-wards, on or about April 25, 1914, the defendants in furtherance of said conspiracy to cheat and defraud the complainants out of said property forged the complainants’ names to a warranty deed conveying the Leland avenue property; that said deed was filed for record in the recorder’s office, Cook county, Illinois, on August 10, 1915; that the recorder of Cook county is about to deliver said warranty deed to the defendants; that the only way that complainants- can show that said warranty deed is a forgery is by producing the original in court; that from 1907 to the time of the filing of the bill the defendant Brodfuehrer collected ,rents for the complainants derived from several different parcels of real estate in Chicago and has failed to properly account for the same. The bill prays for an accounting; that the trust deed and warranty deed be removed as clouds; that the recorder be enjoined from delivering the warranty deed, and that the defendants be enjoined from attempting to exercise any acts of ownership over the property, etc., and for general relief.
    The defendants contended that this being a bill to remove clouds, and the premises in question being improved, an allegation that the complainants are in-possession was essential, and that the bill as amended contained no such allegation, and was therefore fatally defective.
    They also contended that to warrant an injunction on the face of a bill it must be verified, and that the verification to the amendments to the bill 'was insufficient. The affidavit was as follows: 11 Oscar Metz being sworn states upon oath he has heard read the above and foregoing amendment and knows the contents thereof' and that the statements therein made by him and complainants are true and he subscribed his name to the same.” The objections urged to this were that this affidavit which appeared at the foot of the document, consisting of eleven different amendments to the bill, referred to but one amendment, and therefore it was impossible to determine to which amendment affiant referred; that the word “statements” as used in the affidavit was ambiguous and that no distinction was made between matters stated positively and those upon information and belief.
    Abstract of the Decision.
    1. Injunction, § 269

      —when motion to dissolve treated as demurrer. When a motion to dissolve a preliminary injunction comes on for hearing on the face of a verified amended bill, it must be treated as a demurrer to the amended bill and the case decided upon the face of the same.
    2. Equity, § 242*—what proper practice on filing amendments to hill. Where, after a bill is filed, complainants, by leave of court, make a number of amendments, the better practice is to require that an engrossed bill be filed.
    3. Quieting title, § 61*—when allegation of possession essential in hill. On a bill to remove clouds, where the premises are improved, an allegation that plaintiffs are in possession is essential.
    4. Quieting title, § 61*—when allegation as to possession sufficient. On a bill to remove clouds, allegations of bill examined and held to aver that complainants were in possession.
    5. Equity, § 271*—when verification of amendment to hill sufficient. An affidavit to the amendments to a bill to remove clouds affixed at the foot of the single document containing the amendments, which recites that one of the complainants “being sworn states upon oath he has read the above and foregoing amendment and knows the contents thereof and that the statements therein made by him and complainants are true and he subscribed his name to the same,” is sufficient
    6. Quieting title, § 75*—when order impounding rents toith clerk of court not equivalent to appointment of receiver. On a bill to remove a cloud, where the allegations of ownership in fee of the property by complainants and that they are entitled to the rent therefrom are on the record admitted to be true, an order impounding the rents with the clerk of the court until the final disposition of the cause is not equivalent to the appointment of a receiver, requiring complainants to give bond.

      Roman G. Lewis, for appellants.
    A. L. Williams, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

7. Quieting title, § 75*—when order impounding rents with cleric not injurious to defendant. On a bill to remove clouds, where the bill avers that complainants are owners in fee simple of the property; that they are in possession and entitled to the rents derived from the same, and on the record such allegations are admitted to be true, no injury is done defendants by an order impounding the rents with the clerk of the court until the final disposition of the cause, especially where no objection was made to the impounding of the rents.


author: Mr. Justice O’Connor Mr. Justice O’Connor

text:
    S. D. Childs & Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 22,381.
    1. Eminent domain, § 42

      —when structure for use in connection with municipal bridge not additional servitude. A power plant placed by a city in a pit in the street for the purpose of operating a bascule or “jack-knife” bridge over a navigable river is not an additional servitude, but essentially a part of the bridge.
    2. Eminent domain, § 51*—when payment of compensation not condition precedent to exercise of power. Even though it is admitted that a proposed structure and change of grade in a street in connection with the erection of a municipal bridge over a navigable river will damage adjoining property, the ascertainment and payment of such damages is not a condition precedent where no part of the property is taken, irrespective of the hardship which may be entailed thereby.
    3. Eminent domain, § 40*—when remedy of owner of damaged property an action at law. The remedy of one whose property suffers consequential damage by a public improvement in a street is by an action at law.
    4. Municipal corporations, § 874*—when existence of street suf

      ficiently shown. On a bill to enjoin the erection of structures in a street in connection with a bridge over a navigable river, the existence of a public street held sufficiently shown.
    5. Municipal corporations, § 883

      —when erection of bridge connecting parts of street enjoined. On a bill by a property owner to enjoin a municipality from erecting a bridge and approach over a navigable river and connecting parts of a street, which is to be built in part on complainant’s property, defendant will be enjoined from erecting such structures until it has obtained the right to do so by condemnation or otherwise.
    Additional Opinion on Petition por Rehearing.
    Municipal corporations, § 883*—when access to property not destroyed by proposed improvement. Evidence on bill to enjoin erection of bridge by city, examined and held to show that the proposed improvement would not cut ofi all access to or egress from complainant’s property.
    Interlocutory appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed and remanded with directions.
    Opinion filed April 12, 1916.
    Rehearing denied and additional opinion filed May 17, 1916.
    Samuel A. Ettelson, for appellant; Anton T. Zeman and Chester E. Cleveland, of counsel.
    Edmund S. Cummings and Lee D. Mathias, for appellee.

      See Illinois Notes Disrest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice O’Connor

delivered the opinion of the court.

This is an appeal from an interlocutory order enjoining the defendant, City of Chicago, from proceeding with the construction of a bridge across the1 Chicago River at Monroe street, until the damages have been ascertained and compensation paid. The parties will héreafter be designated complainant and defendant as in the court below.

The cause was heard upon the verified bill supported by affidavits and the verified answer supported by affidavits. Monroe street extends east and west in the City of Chicago and exists by virtue of a common-law dedication. It was dedicated and laid out about seventy-five years ago and has continuously, since that time, been a public street. It is intersected by the Chicago River, which is a navigable stream. The defendant city has-made plans and let the contract for building a bridge across the river on said street. The complainant is the owner of a leasehold estate, which expires April 30, 1919, in the property abutting on the north side of Monroe street and adjacent to the river. The property faces one hundred feet on Monroe street and ninety-nine feet on the river, and is improved by an eight-story mill constructed building, built of brick and stone. A dock eight feet in width extends along the river. As constructed, the building is adapted to the established grade of Monroe street. The only entrance to the building is from Monroe street at the southwest comer of the same. The elevators and stairways are likewise located in the southwest corner. The building is used by complainant and its subtenants for manufacturing purposes, and has been so used since it was built, May 1, 1904. The only means of ingress to and egress from the several floors of the building is by the elevators and stairways. In the construction of the bridge, the city is about to raise the grade of Monroe street abutting complainant’s premises fourteen feet on the west and eleven feet on the east line of the same. The bridge to be constructed is of the jack-knife or bascule kind. For the purpose of operating and maintaining* the bridge, the city is about to build in the street a concrete pit thirty-five feet in depth, abutting the west forty feet of complainant’s premises, and extending* practically the entire width of, the street. The city intends to install and maintain in the pit motors, machinery and other devices to.operate and control the bridge. The plans provide that when the bridge is complete, steel arms 'or girders will extend twelve feet above the surface of the street at the curb, abutting the west forty feet of complainant’s premises when thé bridge is closed, and when it is opened, the arms or girders of the bridge move in the pit and extend upwards perpendicularly in front of complainant’s property to a height of about eighty feet, and cut off all access to or egress from the west forty feet of the premises.

The complainant contends that the fee of the street being in the abutting property owners, the city has no right to put an additional burden upon the fee, without first obtaining the right to do so and paying compensation therefor; and that the city has not obtained such right. The argument is that the additional burden on the fee of the street is not by reason of the construction of the approach to the bridge, but by the construction of the pit in the street and the power plant in the pit; that the only right the city has in Monroe street is the easement to use the street for the purpose of travel along the street and of access to the adjoining property; that both the construction of the pit and the power plant “relate to the prevention of travel upon the street,” and that, therefore, the pit end the power plant constitute an additional burden upon the fee. It is conceded that if the construction of the bridge as proposed constitutes an additional burden upon the fee in the street, and the city has not obtained the right to do so from the abutting property owners by condemnation or otherwise, it has no right to construct the bridge; but it is contended that the digging of the pit and the building of the power plant therein does not constitute such additional burden, but that they are essential parts of said bridge and that when completed the bridge will facilitate traffic in Monroe street, for which purpose the street was dedicated. After a careful consideration of all the facts as disclosed by the record, and in the light of all the authorities, we are clearly of the opinion that the power plant proposed to be constructed in the pit is as essentially a part of the bridge as the plank to be laid in the floor of said bridge, and therefore it does not constitute an additional burden upon the fee in the street.

The complainant next contends that a court of equity will enjoin the damaging of property until compensation therefor is determined and paid, where it is admitted that the property will be damaged by the construction of the improvement, regardless of whether the same imposes an additional burden upon the fee in the street; that it clearly appears the complainant’s property will be damaged by the change in grade and the construction of the steel girders; that the parties have been unable to agree as to the amount; that the city should therefore be compelled to proceed under the Eminent Domain Act to have the damages ascertained and that this is true where the fact that the property will be damaged is admitted, although no property will be physically taken. In support of this contention complainant cites the cases of Meyer v. Village of Teutopolis, 131 Ill. 552, and McElroy v. Kansas City, 21 Fed. 257.

In the Meyer case, supra, an ordinance was passed by the village officials vacating a certain portion of a street in the village in the manner prescribed by chapter 145, Rev. St. (J. & A. 11485, 11486). The village then filed its petition to have the damages to property, by reason of the vacation of said street, ascertained and assessed. It was contended on behalf of the property owners that the ordinance was void, as the street was vacated at the instance of and for the benefit of a private corporation. The contention was held untenable. In that case no question was raised as to the proper procedure, and furthermore the village officials were proceeding under the law as provided in chapter 145, Rev. St., which has to do with the vacation of streets.

In the McElroy case, supra, it was held, under a constitutional provision similar to ours, which provided private property should not be taken or damaged for public use without just compensation, that where private property was damaged for public use compensation must first be ascertained and paid, and this, too, although no property was physically taken.

It would serve no useful purpose to discuss this or the other authorities cited by the complainant on this proposition, for the Supreme Court of this State has many times passed squarely upon the question now undér consideration, adversely to complainant’s contention. In Parker v. Catholic Bishop of Chicago, 146 Ill. 158, the court, in sustaining the dismissal of a bill for injunction, say (p. 165): “While private property cannot be taken by public authority for private use, it may be taken or damaged for a public use upon payment of just compensation to be ascertained by a jury in the mode prescribed by law. (Const., sec. 13, art 2.) It seems to be well settled in this State, that where no part of the land or property of the complaining owner is physically taken for or in making the proposed public improvement, and the damages claimed to result are therefore consequential, only, this provision of the constitution does not require the ascertainment and payment of such damages as a condition precedent to the exercise of the right or power. Stetson v. Chicago and Evanston Railroad Co. 75 Ill. 76; Patterson v. Chicago, Danville and Vincennes Railroad Co. id. 588; Scherts v. Peoria and Rock Island Railroad Co. 84 id. 135; Pennsylvania Mutual Life Ins. Co. et al. v. Heiss et al., 141 id. 35.”

To the same effect is County of Mercer v. Wolff, 237 Ill. 74, where it is said (p. 76): “No part of the premises of the cross-petitioners was sought to be taken. No direct physical damage to their property was contemplated. The damages to be sustained, if any, were entirely consequential. For such actual damages, though consequential only, as may be sustained by an owner of abutting land through the taking of adjoining premises for a public use a remedy is given, and the owner may have his compensation ascertained by a jury, as required by the constitution in a common law action. But when no part of the land of an abutting owner is taken the constitution does not require the ascertainment and payment of his consequential damages before entry can be made upon adjoining property. Damages resulting to an abutting proprietor, no part of whose land is physically taken, are not within the contemplation of the Eminent Domain Act, but he is remitted to his action at law for his damages.”

Complainant’s damages by reason of the change in the grade of the street and the construction of the pit and power plant therein being entirely consequential, it has its remedy in an action at law.

Complainant further contends that the court had jurisdiction to issue the injunction, in that the damages are irreparable and that there is no adequate remedy at law. It is conceded that it will cost the complainant at least $37,500 to open a new entrance to the building and rearrange the elevators and stairways, and that this must be done before the building can be of any use. The complainant further contends that it is financially unable to make such alterations; that it will be compelled to pay a rental of $13,000 per year; that tenants occupying the upper floors of the building, who sublease from the complainant, will move out; that the complainant will likewise be compelled to vacate the premises and move its machinery; that the construction of said improvement will interrupt its business, and that all these elements of damage complainant will be unable to recover, because it says they are damnum absque injuria. But the complainant argues that if such damages as are legally recoverable are first ascertained and paid it will not be compelled to suffer any of such losses because it will then be financially able to make all necessary alterations. The answer to this contention is that the court can impose no condition on the city that the law does not authorize, and as we have already said, the law does not require that the city first pay complainant its damages before proceeding with the work.

A suggestion is made by the defendant that Monroe street does not exist between the west bank of the Chicago River and Canal street, which is a distance of several hundred feet. There is no allegation to this effect in complainant’s bill. The contention is, however, set up in an affidavit in support of the bill. Complainant has made no point of this in its brief and has but incidentally referred to it in its preliminary statement of the case. The defendant’s answer expressly avers that Monroe street is a continuous street from Michigan Boulevard on the east to South Central avenue on the west, a distance of about seven miles. Under the circumstances, we are of the opinion that there is a sufficient showing that Monroe street exists as a street throughout its entire length, including that portion between the river and Canal street.

Complainant further contends that it clearly appears from the record that the city intends to construct a bridge tender’s house upon its dock; that the right to do so has not been given to the city and therefore the court properly entered the order for injunction. On the other hand, the city contends that it has no intention of constructing the bridge tender’s house until it has acquired the right to do so by contract or condemnation.

The city admits that in connection with the bridge, if it can procure the right to do so by negotiations or condemnation proceedings, it desires and intends ultimately to construct at or near the southerly end of said dock a concrete and steel structure, about twenty feet in height and eight feet in width, to be used as a bridge house, in connection with the operation of said bridge when completed; that the complainant has not consented to the erection of such structure, and the city has not acquired such right hy condemnation or otherwise ; that the city has no right to use the dock and has no intention of so doing, unless and until it acquires such right. From, the foregoing, it clearly appears that the city intends to construct upon the complainant’s dock a bridge tender’s house; that it has not acquired the right to do so; that such house will be used in connection with the operation of such bridge; that the bridge cannot be operated without it, and that it is an indispensable part of the bridge. The city is authorized to change the grade in Monroe street in front of complainant’s premises and to construct the bridge, for the sole reason that the bridge when constructed will be a part of Monroe street, so that traffic may pass freely over the same, as contemplated when the street was dedicated, and unless the bridge can be operated it will be of no use or benefit to the public. Before the city should be permitted to construct the bridge in the manner proposed, it should first clearly appear that it has authority to make a complete bridge, either through the right to use complainant’s dock or other means by which the bridge may be operated, and as the record shows that it has no such authority, it should be enjoined until such authority is shown.

The injunction order entered in this case, however, is too broad. The order will, therefore, be reversed and the cause remanded with directions to enter an order enjoining the defendant from proceeding with the construction of the bridge or the approach thereto in front of complainant’s property until the city has obtained the right to construct a bridge which will subserve the purpose for which Monroe street was dedicated. Bach party will be required to pay its own costs in this court.

Reversed and remanded with directions.

Additional Opinion by

Mr. Justice O’Connor

on Petition for Rehearing.

A petition for rehearing has been filed in this case. Before preparing the opinion we made a careful examination of the entire record. Since the filing of the petition we have again carefully examined the record, and are clearly of the opinion that the conclusion originally reached was correct, and that a rehearing should be denied. However, counsel for complainant strenuously insist that we have overlooked several important and controlling principles in the case. We think, therefore, that we should say something further in reply thereto.

In the petition counsel state that the “opinion concedes that the proposed improvement cuts off Alt, Access to and egress from the west forty (40) feet of the complainant’s property and that the steel girders or arms of the bridge will extend twelve (12) feet above the surface of the curb when the bridge is closed. The court, however, has failed to give due consideration to the fact that the complainant as an abutting property owner has an Indefeasible Bight of access to and egress from its property which, while it may be temporarily interfered with, cannot be permanently destroyed. The court has also entirely overlooked the fact that the highway is dedicated As Much for Means of Access to and from the Abutting Property as to public travel along the same and that the taking away of this right from the abutting property owner is as much a taking of his property right as is the closing-up of the street itself. ’ ’

The contention of counsel as above quoted is based on a misapprehension. All access to and egress from the west forty feet of the property is not cut off by the proposed improvement. The property is located on the north side of Monroe street, adjacent to the river, and extends one hundred feet on Monroe street and ninety-nine feet on the river, and is improved by an eight story building. The only entrance to the building is from Monroe street at the southwest corner, and within said forty feet. Likewise the elevators and stairways are located in this corner of the building. These stairways and elevators furnish the only means of access to the several floors of the building, and complainant contends that it will cost about $50,000 to open a new entrance to the building and rearrange the elevators and stairways, said entrance and stairways to be located in the southeast comer of the building; that if this were done complainant would not lose its tenants and could make use of the entire building. From this it clearly appears that all access to and egress from the west forty feet of the property will not be cut off by the proposed improvement.

Counsel also say that “a municipality has no right to so obstruct its streets as to deprive property owners of free- access to and from their lots adjoining.” In support of this contention, complainant cites, among other cases, Stack v. City of East St. Louis, 85 Ill. 377. That was an action on the case for damages to real estate occasioned by the city’s authorizing and permitting a bridge company to build an approach to a bridge in front of Stack’s property, which rendered the street permanently useless and obstructed Stack’s ingress to and egress from his property and caused water to flow and drain upon the land, so that the cellars upon the property were filed with surface water, etc. A demurrer was sustained to a declaration setting up these facts. The Supreme Court reversed the case, holding that the plaintiff was entitled to recover his damages. This is precisely the position we take. Complainant has an adequate remedy at law to recover any legal damages it may sustain. Whether the city proceeds under the Eminent Domain Act or the complainant brings its action on the case, the damages will be precisely the same, the only difference being that in the former the damages must first be ascertained and paid, while in the latter the damages will be assessed after the bridge is constructed. The wisdom or unwisdom of this method for compensating. property owners whose property is damaged for public use is not a question for the courts.

Complainant has raised other points in its petition for a rehearing, which we have carefully considered, but deem it unnecessary to refer to them here, as the same are fully covered in the original opinion. A rehearing will be denied.

Rehearing denied.


author: Mr. Justice McSurely

text:
    William Dorothy, Trustee, Appellant, v. Commonwealth Commercial Company and Northern Trust Company, Appellees.
    Gen. No. 20,870.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 17, 1916.
    Statement of the Case.
    Bill by William Dorothy, trustee in bankruptcy of R. K. Maynard Piano Company, a corporation, bankrupt, complainant, against Commonwealth Commercial Company and Northern Trust Company, defendants.
    Complainant filed a bill for the redemption of certain accounts, notes, contracts and papers in the possession of the defendant Commonwealth Commercial Company, which it is alleged were' delivered to said defendant as collateral security for loans of money made by this defendant, to the B. K. Maynard Piano Company, of which complainant, William Dorothy, is trustee in bankruptcy. The bill prayed for an accounting and asked that upon payment of the amount found due from the Maynard Company all its indebtedness to the Commonwealth Company be declared extinguished and that said accounts, notes, etc., be delivered to complainant and decreed to belong to the Maynard Company and to complainant as trustee for the same. Upon hearing by the chancellor the bill was ordered dismissed for want of equity. From this, complainant appeals.
    Abstract of the Decision.
    1. Contracts, § 1

      —when agreement a loan and not a sale. Transaction in suit held to constitute a loan, and the accounts, notes, contracts and papers involved therein to be collateral security, following Mercantile Trust Co. v. Kastor, 273 Ill. 332.
    2. Contracts, § 203*—lohen dealings between parties a continue ous transaction. On a bill to redeem certain accounts, notes, contracts and papers, dealings between plaintiff and defendant examined and held to constitute a continuous transaction.
    3. Contracts, § 203*—when dealings between parties a continuous transaction. The continuous character of a transaction is not affected by the fact that yearly contracts were entered into between the parties which bore no relation to particular periods of time and were merely incidental to the continuous business.
    4. Contracts, § 157*-—when return of consideration received under ultra vires contract required. On a bill to redeem accounts, notes, contracts and papers claimed to have been deposited by complainant with defendant as collateral security for a loan, complainant who has received money under the contracts between the parties is not relieved from the obligation to account for and return it with legal interest by reason of the fact that such contracts were ultra vires.

      The transfer of the accounts, notes, etc., from the Maynard Company to the defendant was effected under four contracts. Complainant contends that these contracts, rightly construed, show the transaction to be a transfer of collateral as security for loans. The defendant Commonwealth Company contends that they are what in form they appear to be—bona fide sales.
    Atwood, Pease & Loucks, for appellant.
    Zane, Morse & McKinney, for appellees.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.


author: Mr. Presiding Justice Higbee

text:
    Lidgerwood Manufacturing Company, Appellee, v. S. R. H. Robinson & Son Contracting Company, Appellant.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Madison county; the Hon. W. E. Hadley, Judge, presiding. Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 1, 1915.
    Rehearing denied April 5, 1916.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the Lidgerwood Manufacturing Company, plaintiff, against the S. R. H. Robinson & Son Contracting Company, defendant, in the Circuit Court of Madison county, to recover on certain notes and for goods sold and delivered. From a judgment for plaintiff for $33,000.83,. defendant appeals.
    The opinion of the court in the previous appeal (183 Ill. App. 431) contains a copy of the contract and other material facts necessary to a clear understanding of the issues, with the exception of certain testimony relating to an alleged settlement which took place before the machinery, which was the subject of the contract, was completely set up. In regard to tills Gr. N. Crawford, Sr., representing plaintiff,o testified that on September 21, 1910, he inspected the excavators, and that at that time he found the two B-F excavators in actual operation, that the boilers and gears thereof were in good and proper operative condition and that the erection of the C excavator had not yet been completed. Nothing had been paid on the machines and Crawford requested a payment. On September 22nd, at the office of the latter in St. Louis, Missouri, the matter of a settlement was fully discussed. Robinson claimed that defendant had been at more cost in the erection of the machinery than was reasonable, and that it had suffered other damages. Crawford was willing to make some allowances, and as a result of the conference he allowed defendant and the latter accepted, as a credit upon the contract price, the sum of $1,000 in settlement of all damages claimed to have been sustained up to that date. Thereupon Robinson paid plaintiff $5,000 in cash and gave a note for $5,000 due October 12, 1910, which has been paid, and also the note for $5,000 and the three for $3,333.33 each, sued on in this case. It was undisputed that the sum of $1,000 was agreed upon in settlement of all claims for damages up to that date, but it was contended by plaintiff that such damages were agreed upon unconditionally, while the contention of defendant was that this settlement was made on the express condition that plaintiff would make the machines satisfactory and, if the old ones did not give satisfaction, would furnish new swinging engines, new gears and new boilers, if necessary, and if plaintiff failed to carry out this new agreement, the $1,000 would not be accepted by defendant as the amount of damages it was entitled to. The only person present at that time, in addition to Mr. Crawford and Mr. Robinson, was Mr. Dentzer, the Secretary of defendant, who to a large extent corroborated Mr. Robinson and testified that Mr. Crawford absolutely agreed to furnish new boilers for the B-F excavators. Mr. Crawford testified there was no discussion about gears or boilers on that day, and denied that he agreed to furnish defendant any new boilers or swinging engines or gears upon any condition, and he was corroborated by certain facts and circumstances which would tend to establish the improbability of such a contract being made. In this connection it was shown by plaintiff, that at that time excavator C had not been completely erected and that defendant continued to and did complete the erection. Defendant afterwards demanded new boilers of plaintiff, but none .were furnished and the job was completed with those first installed. In the month following the settlement, Mr. Crawford again visited the machines and stated he found them improperly cared for and operated. Subsequent to this visit one McMillen was sent down to overhaul them at plaintiff’s expense, and the proof tended to show he left them in good repair. It also appeared that a new set of gears was furnished by plaintiff after the settlement was made, but the proof showed that they were of the same size and dimensions as the original bevel gears and were furnished as supply parts upon the order of defendant, and that plaintiff made a charge against defendant for them.
    Abstract of the Decision.
    1. Appeal and error, § 1414

      —what weight given to finding of court. Since a court sitting as a jury has the same opportunity of determining the credibility of witnesses and the same power as a jury of determining where lies the preponderance of the evidence, the same weight should be given by the Appellate Court to its finding as to the verdict of a jury.

      Warnock, Williamson & Burroughs, for appellant.
    Baker & Holder and Terry, Gueltig & Powell, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Higbee

delivered the opinion of the court.

2. Sales, § 328 —when question whether new parts necessary for machinery for jury. Where, in making an agreement of settlement of differences arising over contracts for certain machinery, the seller agrees to furnish new parts “if necessary,” the question whether such parts are reasonably necessary is a question of fact.

3. Sales, § 329*—when evidence sufficient to sustain finding that new parts for machine not necessary. Where, in making an agreement of settlement of differences arising out of a contract for certain machinery, the seller agreed to furnish new parts “if necesssary,” evidence examined and held to sustain a finding that such parts were not necessary.

4. Sales, § 71*—when seller not liable for difficulty in operating machines. Where, in making ‘an agreement of settlement of differences arising over contracts for the sale of machinery, the seller agrees to furnish new parts “if necessary,” the seller is not liable for difficulty in operating the machines caused by the inexperience and neglect of the buyer’s employees.

5. Compromise and settlement, § 16*—when evidence sufficient to establish unconditional settlement. In an action to recover on notes given in settlement of differences arising over contracts for certain machinery, where the evidence was conflicting as to whether the settlement was dependent upon the plaintiff’s making the machinery satisfactory or furnishing new parts if not satisfactory, or was unconditional, as plaintiff claimed, evidence examined and held to sustain a finding that the settlement was unconditional.

6. Sales, § 329*—when evidence insufficient to show breach of contract. In an action to recover on notes given in settlement of differences arising over contracts for certain machinery, where defendant claimed that the settlement was conditional on the performance of certain conditions, evidence examined and held insufficient to show such breach as would defeat plaintiff’s claim.

7. Appeal and error; § 1567*—when errors in holding propositions of law harmless. Where it is apparent on the whole record that a judgment entered by a court sitting as a jury is right, errors committed by it in holding propositions of law are harmless and not ground for reversal.