text:
    A. R. Hoeft et al., Plaintiffs in Error, v. George C. Vandehonten, Jr., Defendant in Error.
    Gen. No. 14,651.

      Vebdicts—when set aside and final judgment rendered. Upon review of a judgment rendered in an action sounding in contract rendered in the Municipal Court in a trial before the court without a jury, the Appellate Court, upon reversing such judgment, will render such final judgment as is called for by the evidence.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Jtjdson F. Going, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed December 7, 1909.
    Charles Daniels and Sumner C. Palmer, for plaintiffs in error.
    Ernest G. Kusswurm and Edward E. Shennick, for defendant in error; Aaron Heims, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiffs, Hoeft & Moore, sued defendant (for $61.98, claimed as an unpaid balance for work, labor and material in making dies and tools to be used in the manufacturing of an egg beater. Defendant presented a set-off of $203.54, being for money from time to time paid plaintiffs on account of the work, labor and material in the making of such dies and tools. The case was tried without a jury and judgment was rendered against plaintiffs for $203.54. Plaintiffs prosecute this writ of error.

Plaintiffs refused to complete and deliver the work they had on hand unless defendant paid the $63.

Plaintiffs’ business is die-making and machine work. In the fore part of May, 1907, defendant arranged with plaintiff Hoeft to have plaintiffs make dies and tools for the manufacturing of the egg-beater. Hoeft testified defendant then asked how much it would cost and for a “figure” and that he, Hoeft, replied he could not tell and would not make a definite price, but would charge for time and material, at the rate of seventy-five cents per hour for time. Defendant testified he asked Hoeft what he would charge and Hoeft replied he could not tell exactly but that it would not cost more than fifty or seventy-five dollars. Nothing appears to have been said as to when the work should be completed. Hoeft would not start the work until a deposit was made, and on May 24 a deposit of $15 was made by defendant. Plaintiffs started with the work on July 8, 1907. Thereafter, while the work was in progress, itemized bills were made to defendant from time to time during July and August and several payments were made by defendant during these months until he had paid, including the deposit of $15, an aggregate amount of $203.54. The aggregate amount for work, labor and material done and furnished appears to be $265.52, leaving an unpaid difference, according to plaintiffs’ contention, of $61.98.

We see no justification in the evidence for defendant rescinding and refusing to pay for work and labor done and material furnished at his request. It is a matter of common knowledge that there is more or less difficulty in making dies and special tools for the manufacture of a new article. Here, the parties agree that there was no time specified when the dies and tools should be finished. They also agree that no price was agreed upon. Defendant was entitled to quit and pay up his bills at any time; but upon no possible theory was he entitled to rescind the contract and recover back money he had paid for work and labor done and material furnished. His statement that he was told the cost would not be more than $50 or $75 is contradicted, and in respect thereto the burden of proof rested upon him. Both witnesses are equally credible; hence defendant failed to establish this proposition by a preponderance. But were his version to be adopted he would be no better off for, the circumstances being all considered, the giving of the cost as here given was merely estimating, not entering into a contract in respect to a price. Furthermore, the transactions between the parties show defendant did not regard this estimate so given as a contract price, for he received itemized bills from time to time and early overpaid this estimate without complaint.

The judgment will be reversed and judgment will be rendered here in favor of plaintiffs for $61.98. The item of interest will not be allowed.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Mary Moscherrosch, Plaintiff in Error, v. Gottlieb Henry Moscherrosch, Defendant in Error.
    Gen. No. 14,685.

      Divobce—when findings of decree sufficient. The marriage of the parties having been admitted and the ground of divorce having arisen in the county where the bill was filed, a finding in the decree rendered “that the complainant has been guilty of adultery as charged in the cross-bill” is sufficient to sustain such decree.
    Divorce. Error to the Superior Court of Cook county; the Hon. Willabd M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    John R. Philp, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Mary Moscherrosch filed her bill for divorce against her husband, Gottlieb Henry Moscherrosch. He filed his answer and, subsequently, a cross-bill for divorce to which Mrs, Moscherrosch filed her answer. The chancellor, after hearing the contest between the parties, rendered a decree, on November 1,1906, granting cross-complainant a decree of divorce from the original complainant.

The original complainant brings this record to this court by writ of error and assigns as errors that the decree on its face purports to be based on evidence heard in open court, but no evidence appears in the record, and that the decree does not contain sufficient findings of fact to sustain it.

The assignment of errors if sustained by the record would require a reversal.

The cross-bill charges the original complainant with having committed adultery here in Chicago, on various specified dates in 1905 and 1906. The original bill alleges that the parties were married September 24, 1900, and this fact of marriage is admitted, of record, by cross-complainant’s answer to the original bill.

The decree, besides a general finding that all the charges and allegations of the cross-bill are true, contains a special finding “That the complainant has been guilty of adultery as charged in the cross-bill.”

Under Trenchard v. Trenchard, 151 Ill. App. 215, this special finding is sufficient. The marriage of the parties is shown of record by an admission in the pleadings. Under section two of the Divorce Act the place of residence of the parties is of no consequence, where the offense complained of has been committed here.

The decree must be affirmed.

Affirmed.


text:
    People ex rel. Minnie C. Duhr, Appellee, v. Charles Gasner, Appellant.
    Gen. No. 14,996.
    1. Continuances—how affidavit for, construed. An affidavit for a continuance, like a pleading, is to be construed most strongly against the party presenting it.
    2. Continuances-—when affidavit predicated upon absence of witness insufficient. An affidavit wherein the affiant merely asserts his expectation or opinion in respect to procuring the presence of an absent witness at the next term of court is not sufficient; the law requires the affidavit to set forth the facts upon which the expectation is based that the witness will be present or that his attendance will be procured.
    3. Continuances—what affidavit predicated upon absent witness should show. In such an affidavit the affiant should state that what he asserts the absent witness will testify to is the truth or that he believes it to be the truth.
    4. Continuances—what affidavit predicated upon absent witness should show. Such an affidavit is insufficient if diligence does not appear from the facts sworn to.
    5. Bastardy—when verdict sustained. Notwithstanding the evidence might justify a determination that another than the defendant was the father of the bastard child, yet the jury having found the other way, the verdict if supported by the evidence will not be disturbed, as the jury, in such cases, are, by statute, made the judges of the credibility of the witnesses.
    Bastardy proceeding. Appeal from the Criminal Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    Coburn & Case and Louis Greenberg, for appellant.
    No appearance by appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Defendant had a trial by jury in the Criminal Court of Cook county and a verdict was returned that he was the father of Minnie Duhr’s bastard child born September 30, 1907. The trial judge rendered judgment upon the verdict. This appeal is to procure the reversal of that judgment.

The state’s attorney, on behalf of The People, appellee, has rendered no assistance to this court by the filing of a brief.

Appellant assigns for error the overruling of a motion for a continuance. The motion was made upon the statutory ground of the absence of material evidence, under section 62 of the Practice Act. Had the affidavit filed in support of the motion been sufficient the presiding judge would have had no discretion but would have been obliged to grant the continuance. The affidavit, however, is, in many respects, insufficient. An affidavit for a continuance, like a pleading, is to be construed most strongly against the party presenting it. See Board v. O’Donovan, 82 Ill. App. 163, and the authorities there cited. The affidavit states the conclusion or opinion of the affiant that if further time be given, “the place of residence or business” of the absent witness “can be ascertained” and that affiant expects to procure the testimony of the absent witness at the next term of court. Under the law an affidavit wherein the affiant merely asserts his expectation or opinion, in respect to procuring the presence of an absent witness at the next term of court, is not sufficient. The law requires the affidavit to set forth the grounds—the facts—on which the expectation is based that the witness will be present or that his attendance will be procured. Dacey v. People, 116 Ill. 555, 567; Wilhelm v. People, 72 Ill. 468, 471. “It would be erroneous to grant a continuance unless there was. a reasonable prospect of obtaining the desiréd evidence at some future time.” Richardson v. People, 31 Ill. 170, 173. By the presentation of the facts to him; the trial judge must be given an opportunity to exercise his judgment upon the reasonableness of the prospect of the witness’ attendance in the future. It is the judge’s, not the affiant’s, judgment that is to be called into play in determining the question. The affidavit filed below states no facts in the respect required. Again, the law requires that the affiant state that what he asserts the absent witness will testify to is the truth or that he believes it to be the truth, which is perhaps all that can, under some circumstances, be required. Metcalf v. Nystedt, 203 Ill. 333, 334; Wilhelm v. People, 72 Ill. 468, 471; Lichliter v. Russell, 89 Ill. App. 62, 64. The affidavit in this record is silent as to the truth, or the affiant’s belief in the truth, of what it is asserted the absent witness will testify. Further, it does not appear in the affidavit that the absence of the witness was not by the affiant’s own consent; for aught that appears the absence may even have been by affiant’s procurement. Such lack is alone sufficient to defeat the application for a continuance. N. C. C. Ry. Co. v. Gastka, 128 Ill. 613, 619. Furthermore, the affidavit does not satisfactorily show proper diligence in endeavoring to procure the presence of the absent witness. Affiant states he had learned of the witness’ return to Chicago, from St. Paul, Minnesota, in October, 1907. The trial began February 20, 1908. The affidavit states that since February 8, 1908, a subpoena has been issued for the witness. The language of the affidavit does not show any effort whatever to sérve the subpoena nor does it preclude the idea that the subpoena was not issued until the day of the trial. In this connection see Davids v. People, 192 Ill. 176. Our conclusion is that there was no error in refusing the continuance.

The prosecutrix testified to illicit connection with defendant on December 31, 1906. A child was born to her on September 30, 1907. It appears from the evidence the prosecutrix had illicit connection with a person other than the defendant on December 8, 1906. She testified to having menstruated December 26, 1906. Defendant’s attorneys contend that as, under the evidence, it is possible the person with whom prosecutrix had connection on December 8, 1906, may be the father of the child, therefore, in law, the verdict is unjustifiable, and the judgment erroneous. We cannot agree with that contention. The contention is apparently advanced under a misapprehension of the precise import of the rule sought to be invoked. In another connection this court quoted the rule, supposed to be here available, in the case of Tuthill v. Belt Railway Company, 145 Ill. App. 50, as follows: “There is another rule of the law of evidence which is of the first importance, and is fully established in all the courts, viz.: that where the evidence is equally consistent with either view—with the existence or nonexistence of negligence—it is not competent for the judge to leave the matter to the jury. The party who affirms negligence has altogether failed to establish it. That is a rule which ought never to be lost sight of.”

The evidence herein is not equally consistent to the effect that either the defendant or the other person may be the father of the child. The two circumstances of length of time and menstruation, although neither may be of conclusive influence one way or the other, justify the verdict of the jury against defendant. While here, as in Pike v. People, 34 Ill. App. 112, there are two possible causes, there are here, different from the situation in that case 1 ‘ circumstances to determine the mind” in favor of the one cause and as against the other. The question was properly left to the jury.

In respect to the square conflict of evidence between the prosecutrix and defendant it is sufficient to refer to the Revised Statutes, chapter 17, section 6, which is as follows: “On the trial of every issue of bastardy, the mother and defendant shall be admitted as competent witnesses, and their credibility shall be left to the-jury.” By this enactment the legislature has lodged the power of passing upon the credibility of the mother and of the defendant with the jury. The jury did not believe the defendant. No direct attempt was made to impeach the truthfulness and veracity of the prosecutrix.

Complaint is made of the giving of certain instructions on behalf of The People. We find no material error in those instructions. The judgment will be affirmed.

Affirmed. '■


author: Mr. Justice Mack

text:
    Consuelo Fould de Grasse, Appellee, v. The H. W. Gossard Company, Appellant.
    Gen. No. 14,113.
    1. Chancery—when will take complete jurisdiction. If chancery has jurisdiction upon one ground, it will retain the cause and do complete justice between the parties.
    2. Chancery—what within jurisdiction of. Chancery has jurisdiction to correct a mutual mistake of fact made in a contract.
    3. Chancery—when will take jurisdiction. If the remedy at law is inadequate, equity will take jurisdiction.
    4. Chancery—section 28 of act construed. Every defendant, whether a corporation or an individual, may be required to make full answer, both as to allegations and interrogatories, even where the oath is waived, and if the defendant attempt by demurring to evade answering, the court may, in granting relief that involves a reference to a master, require the defendant, before the master, not merely to testify generally but to testify and answer specifically such proper interrogatories as may be contained in the bill.
    Bill for accounting. Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    Rehearing denied December 17, 1909.
    Edmund S. Carr, for appellant; Leon S. Alschuler, of counsel.
    Shops, Zane, Busby & Weber and Hayes McKinney, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

A bill was filed by appellees against appellant, setting out that the parties had entered into a contract whereby complainant had licensed defendant to manufacture under a patent on a royalty per piece, with a guaranty of a minimum amount, and under which contract the defendant was to furnish the complainant with sworn quarterly statements of all sales made. The contract further provided that unless a certain amount had been sold the license could be revoked and that if revoked the defendant should be obligated to return the original letters patent to the complainant.

The bill alleged that the number of the letters patent stated in the contract was erroneous; that a different number was mutually intended by the parties; that the defendant had failed to furnish the sworn statements required by the contract, had failed to render any account of the sales made by it; that it transacted its business in such a way as to make the accounting complicated, involving numerous transactions and the examination of many books; that the defendant had not kept proper books as provided by the contract, but had kept false and fraudulent books of account and had caused such false and fraudulent books of account to be kept by others so as to prevent complainant from ascertaining the number of corsets manufactured and sold by it, and had not permitted the complainant to examine its real or proper books of account showing the actual number of corsets so manufactured and sold, but on the contrary had refused to permit such examination; that demand had been made for the sworn statements provided for in the contract and for payment of the amounts due thereunder, but that the same had been refused; that the license had been revoked and the original letters patent demanded back, and that the defendant had refused to return them; that all of the accounts, records, data and information were within the knowledge and control of the defendant and could not be obtained by the complainant without the accounting.

The bill prayed for a correction of the contract and ' its enforcement, the production of all books of account for examination, and for an accounting between the parties of the amount due, and the payment over of a sum that might be found due. In addition to this there was a prayer for general relief and a specific prayer that the defendant might be required to answer certain interrogatories which were set out in full in the bill and which were directed to ascertaining specifically the number of corsets sold under the license by the defendant and those acting under its permission.

The court overruled a general and special demurrer to this bill, the point of special demurrer being the uncertainty and ambiguity of the allegations of fraud in the keeping of the books of account.

The court thereupon entered a decree finding the facts as alleged in the bill, correcting the mistake in the number of the letters patent as recited in the contract and directing the defendant to produce before a master in chancery its books of account and papers and to render a proper account in accordance with the terms of the contract. In and by the decree the cause was referred to a master in chancery to take the proofs and to state the account on the basis fixed by the court, being that specified in the contract. The decree further provided that at the hearing before the master the defendant should discover and answer the specific interrogatories set forth in the bill of complaint.

The appeal from this decree was dismissed by this court on the ground that it was interlocutory, and on further appeal to the Supreme Court the judgment of this court was reversed and the cause was remanded, the Supreme Court holding that the decree was final. De Grasse v. Gossard Co., 138 Ill. App. 375; De Grasse v. Gossard Co., 236 Ill. 73. The question that is therefore presented to us is whether the allegations of the bill justify the decree.

It is urged in the first place that this is a bill for an accounting, and that under the authority of County of Cook v. Davis, 143 Ill. 151, the remedy at law is adequate. It is unnecessary for us to determine whether this case falls within the scope of that decision, because the present case is not merely a bill for an accounting, but it is also a bill for the correction of a mutual mistake embodied in a written contract. The jurisdiction of equity to correct mistakes of this kind has long been settled. If the court of equity property acquires jurisdiction for this purpose, it will, wherever feasible, do complete justice between the parties, even though a court of law could give a remedy under the corrected contract. We have no doubt of the jurisdiction of the court of equity to entertain this bill.

If this were a bill to rescind a contract because of some fraud it may be that the specifications of fraud would not be sufficient, but in this case fraud is not the basis of the jurisdiction and the allegations in respect to the fraudulent character of the books are, under the circumstances, entirely adequate.

The bill could moreover be sustained for other reasons. The defendant has specifically agreed to furnish sworn statements of account. A court of law could give no adequate remedy for the performance of such a contract, and therefore defendant would be entitled to specific performance thereof. This provision of itself would be sufficient justification for the decree that the defendant specifically answer under oath the interrogatories contained in the bill. Then, too, the defendant is specifically obligated to return the original letters patent. The remedy at law for the recovery of these is also totally inadequate. They have no intrinsic value, but they may have great evidentiary value to the owner thereof. Equity will take jurisdiction of a bill specifically to recover them.

This is in no sense, as defendant seems to suppose, a bill for discovery. It is a bill for relief and discovery incidental 'thereto.

■ We agree entirely with the argument of complainant that under section 23 of the Chancery Act every defendant, whether a corporation or an individual, may be required to make full answer, both as to allegations and interrogatories, even where the oath is waived, and that if defendant attempt by demurring to evade answering, the court may, in granting relief that involves a reference to a master, require the defendant before the master, not merely to testify generally but to testify and answer specifically such proper interrogatories as may be contained in the bill.

The judgment of the trial court will be affirmed.

Affirmed.


text:
    Winnefred McGreevy, Defendant in Error, v. National Union, Flaintiff in Error.
    Gen. No. 14,594.
    1. Insurance—when making of material false statement in application will defeat recovery. If the application, the statements of which are expressly warranted to be true, contain a false statement as to a material fact, a recovery will not be sustained.
    2. Insurance—effect of receiving policy with copy of application containing false statement attached. If an examining physician has filled in the blanks in the application and such application contains false statements as to material facts, the receiving and retention by the insured of the policy or certificate with a copy of such application attached as a part thereof, is a ratification by the insured of the insertion by the physician of those answers which were in fact given.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon, Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed December 7, 1909.
    Charles J. Kavanagh, for plaintiff in error.

      John A. Bloomingston, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

This action is on a benefit certificate issued by defendant to plaintiff’s husband and payable to plaintiff. The application and medical examination are expressly made a part of the certificate and a copy is attached thereto. The certificate provides as follows:

‘ ‘ This certificate is granted upon the express condition that all statements and representations made by said member in his application for membership in said council and all statements made the Medical Examiner by him are true, and upon further condition that this friend complies with the Laws of the Order now in force or which shall hereafter be enacted.”

The application signed by deceased contained the following:

“I do hereby consent and agree that any untrue statements made above, or to the Medical Examiner, or any concealment of facts by me in this application, in regard to my health, habits, or circumstances, personal or family history, or my suspension or expulsion from, or voluntary severing of my connection with the Order, shall forfeit the rights of myself and my family or beneficiary to all benefits and privileges therein.”

The medical examination contains the following questions and answers: “13A. When and for what did you last seek medical advice? A. Nothing. 14A. For what have you had medical advice during the last five years? A. Nothing. 16. Have you ever had any of the following disorders or diseases? (Answer ‘yes’ or ‘no’ to each.) Pneumonia or inflammation of the lungs? A. No.” At the end of the medical examination is the following: “I hereby warrant that the answers to the above questions are true and I agree that any impairment of my present physical condition before the completion of my membership php.ll invalidate any benefit certificate issued thereon,” which was also signed by said McGreevy.

The evidence shows that the deceased was attended by his physician for pneumonia in October, 1905; the medical examination for the insurance was in February, 1906, and the death from tuberculosis in August, 1907.

The examining physician called in rebuttal by plaintiff testified that he did not remember whether he asked McG-reevy if he had had pneumonia; that Mc-Greevy did not have certain data as to his family history and was to send it to be filled in; that he thought it was mailed to him and that his wife had copied it off. He further stated that every answer which appeared in his heavy writing was obtained from Mc-Greevy personally after putting the question; that part of those answers were written in before and part after McGreevy had signed the document. The answer “Nothing” to the question 13A appears in heavy writing, while the same word in answer to the question 14A, as well as the answer “No” to question 16, is in the light handwriting of the doctor’s wife.

On direct examination the physician was asked, ‘ ‘ State whether or not he said he had not had medical advice for any disease,” to which he answered, “He did not.” The cross-examination was in part as follows:

“Q. Take for instance answer to question 13A and let me read that. ‘When and for what did you last seek medical advice?’

A. ‘Nothing.’

Q. That answer is in your handwriting?

A. I believe that is in my handwriting.

Q. That is true, that is what he told you, is it not?

A. That is what I presume.

Q. You would not have written it down if it had not been answered?

A. I do not think I would. ’ ’

This physician was plaintiff’s witness. His testimony is contradictory in part and unreliable. Without it, however, plaintiff could not succeed, as on the face of the papers the deceased had made a materially false representation and warranty.

It is urged, however, that this evidence shows, or at least that the jury was justified in believing therefrom, that none of these material questions had been asked the deceased, and that, therefore, the warranty did not extend to them.

It seems to us, however, clear that the apparent contradiction between the direct and cross-examination can be avoided by a closer examination of the question put to the witness on the direct examination. Counsel carefully avoided asking whether or not question 13A had been asked and answered. The question put, “State whether or not he said he had not had medical advice for any disease?” is more applicable to 14A than to 13A. The question as put presupposes that the blank form contains the question, “Have you had medical advice for any diseases?” But there is no such question in the blank. 13A is, “When and for what did you last seek medical advice?” 14A is, “For what have you had medical advice during the last five years?” The answer “Nothing” to 13A is in the doctor’s handwriting; that to 14A is in the handwriting of the doctor’s wife. Under his testimony, the only conclusion that in our judgment can reasonably be drawn is that he did ask him question 13A and received the answer; but that he did not ask him 14A.

Whether the answer to 13A was inserted before or after signature is immaterial. It is clear that the physician, though acting for the company, was authorized by the deceased to fill up the blanks in accordance with the statements made and those regarding family history to be furnished. Moreover, when the certificate was issued, a copy of the examination, containing these answers over the signature of the deceased, was attached to it as part of it. Whatever the effect of receiving and retaining the certificate in that form may be, as to those questions and answers which were never put or answered, it seems to us clear that it is a ratification, if ratification be needed, of the insertion by the doctor of those answers which were in fact given. Nat’l Union v. Arnhorst, 74 Ill. App. 482; Spence v. Central Acc. Ins. Co., 236 Ill. 444. We are entirely satisfied on this record that a materially false statement was knowingly made by the deceased for the purpose of securing this insurance. Under these circumstances, his beneficiary can obtain no rights against the company.

The judgment will be reversed with a finding of facts.

Reversed with a finding of facts.


text:
    Catherine Miskell, Defendant in Error, v. F. T. Boydston, Plaintiff in Error.
    Gen. No. 14,621.
    Municipal Coubt—when judgment reversed and final judgment rendered in Appellate Court. If there Is no evidence of negligence to support the bill of particulars of the plaintiff, a judgment in his favor will be reversed and final judgment rendered for the defendant in the Appellate Court.
    Action in case for personal injuries. Error to Municipal Court of Chicago; the Hon William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of fact.
    Opinion filed December 7, 1909.
    Mann & Miller and Gale Blocki, for plaintiff in error.
    Defrees, Buckingham, Bitter & Campbell, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The amended bill of particulars filed in the Munich pal Court of Chicago after the trial and before judgment, but recognized by an order entered within thirty days after judgment granting leave to file it nunc pro tunc as of the day before the trial, read as follows: “That the cause of action arises by reason of defendant undertaking to make certain repairs on premises, owned by him and occupied by plaintiff; that defendant made said repairs in a negligent and careless manner, and that plaintiff, while in the exercise of ordinary care, was injured by reason of falling through certain stairs upon which said repairs were made by defendant in said careless manner and thereupon plaintiff sustained permanent injuries.” .

Plaintiff’s brother rented the second floor flat of a two story frame cottage from defendant, under a written lease, and on the day they moved in she sent word to the agent that the stairs and porch were not strong enough to hold four men and the piano that were to be taken up the back porch. Thereupon defendant sent men over to strengthen it. There is a conflict as to how it was strengthened and whether or not the props were removed after the piano was in. Plaintiff did not go on the back porch until a week thereafter. On shaking out a carpet, some loosened boards gave way and she fell through, sustaining injuries.

The court charged that the plaintiff sought recovery on the ground that, although there was no legal responsibility resting upon the landlord to make these repairs, yet if the landlord undertook to make the repairs, and made the repairs negligently, and that by reason of such negligent repairs the plaintiff was injured, then the plaintiff may recover.

This is in accordance with the amended bill of particulars subsequently filed and is the only ground upon which a recovery could be based. But under the undisputed evidence, the landlord did not, and was not requested to, make repairs generally but to fix up the porch so as to make it safe to bring up the piano. This he did. Even if his men subsequently removed the props—and the very clear preponderance of the evidence is that they did not do so—plaintiff was not deceived in this respect, for she claims to have seen them removed. She therefore could not have relied on their being in place when she used the porch.

Moreover there is no evidence that the repairs were negligently made. On the contrary plaintiff’s daughter testified that the piano movers loosened the boards of the porch. This was subsequent to the repair work by the defendant.

On the ground that there is no such evidence of negligence as is alleged in the amended bill of particulars the judgment will be reversed with a finding of facts and the cause will not be remanded.

Reversed with finding of facts.


text:
    Robert Housley, Defendant in Error, v. Feilchenfeld Company, Plaintiff in Error.
    Gen. No. 14,648.
    1. Coepobatioits—When proceedings of directors may he established hy parol. Proof of a verbal decision by the directors is proper notwithstanding the fact that a document exists purporting to contain the minutes of the meeting at which such decision was arrived at which contained no record of such decision. This is especially true if such document does not, on its face, purport to contain the complete minutes of such meeting.
    2. Coepobatioits—when stock: subscription may he rescinded. There is an implied condition to a subscription to an increased issue of stock that such increase shall at least be substantially subscribed for, and while the compliance with this condition may well be waived by the payment of the purchase money and the acceptance of a certificate, if it be not waived it may be insisted upon and after a reasonable time for compliance therewith the subscription may be rescinded and money paid in part payment thereof, or as a deposit therefor, recovered back.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908..
    Affirmed.
    Opinion filed December 7, 1909.
    Rehearing denied December 17, 1909.
    Statement by the Court. In August, 1907, the defendant corporation, by resolution of its stockholders, increased its capital stock from $40,000 to $50,000. No resolution determined how the increased stock was to be disposed of. In September, 1907, in a conversation between the president of the defendant company and the plaintiff, the plaintiff stated that he would take $3,000 worth of the increased stock, but that he had only $700 on hand, and he was told by the president that he could get his certificate when he paid the entire amount and that in the meantime he could pay the $700. He made the payment, taking a receipt reading as follows:
    “Received of Robert Housely $700.00 to apply on stock.
    The Feilcheneeld Company,
    By Stemm.
    September 24, 1907.”
    He never demanded any stock and the defendant company never demanded any further payment from him. In November, 1907, the Secretary of State acknowledged receipt of the certificate that the capital stock had been increased.
    It does not appear from the record that anybody other than Housley had subscribed for any of the increased capital stock or that any of such increased capital stock had been issued. On the contrary, the fair inference from the record is that none of the increased capital stock had been subscribed for except possibly $2,000 worth, exclusive of Housley’s subscription, and that none had ever been issued. At a meeting of the board of directors, in January, 1908, the principal stockholder bought out the others except Housley. To save the family name, some brothers of the principal stockholder, who were engaged in a similar business, took over the capital stock other than Housley’s and assumed the debts of the company. At that time, the capital of the company was materially impaired. At this meeting of the board of directors, it was verbally agreed by all of the directors that the plaintiff should not be considered a stockholder and that he should get his money back.
    The plaintiff demanded back the $700 paid or deposited by him with the company and after this suit had been begun, the company purported to issue to him a certificate of seven shares of the stock and tendered the same to him. A judgment was rendered in favor of the plaintiff for $700.
    Gabriel J. Norden, for plaintiff in error.
    Adolp Raphael, for defendant in error; Emery S. Walker, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

It has been held in this state that a subscription to an increase of capital stock before the same has been authorized by a vote of the stockholders is a nullity. Wolf v. Chicago Sign Printing Co., 233 Ill. 501. Whether, in addition to authorization by the stockholders a full compliance with the statutory requirements by the filing of a certificate with the Secretary of State and recording the same, is a condition precedent to the validity of a stock subscription, need not now be determined.

Assuming in this case without deciding it, that by the oral arrangement between the plaintiff and the president of the defendant company a binding contract to subscribe for and to allot stock was made by the parties, it is clear that such contract was not for seven shares but for thirty shares. It was specifically for part of the increased stock, the total of which was to be 100 shares. Whether or not a subscription to an increase of stock is like a subscription to the original stock, conditioned upon the total amount being bona fide subscribed for, is a question on which the authorities are in conflict, the weight of authority being to the effect that there is no such condition. As the Supreme Court of the United States says in Aspinwall v. Butler, 133 U. S. 595, at page 607: “There was no express condition that the individual subscription should be void if the whole $500,000 was not subscribed, and in our judgment there was no implied condition involved to that effect.” But at page 608 the court proceeds: “There may be cases in which equity would endeavor to protect subscriptions to stock where a large and material deficiency in the amount of capital contemplated has occurred, but such cases would stand on their own circumstances.” In that case, ninety-two per cent of the increase, had been subscribed for and certificates therefor had been issued. In the present case, the transaction was not consummated by the delivery of the certificate, the company for all practical purposes abandoned its business, and the directors unanimously, at a meeting, decided that the plaintiff should not be deemed a stockholder and that his money should be returned to him. The proof of the verbal decision of the directors was proper, notwithstanding the fact that a document purporting to contain minutes of the meeting, and which contained no record of this decision, was offered, especially as the document did not on its face purport to contain the complete minutes of the meeting. 3 Cook on Corporations, sec. 714. Under these circumstances, no rights of creditors being involved, we are of' the opinion that the case falls within the exceptions stated by the Supreme Court of the United States. Moreover, in our judgment, there is an implied condition to a subscription to the stock that the increase shall at least be substantially subscribed for, and while the compliance with this condition may well be waived by the payment of the purchase money and the acceptance of a certificate, if it be not waived it may be insisted upon and after a reasonable time for compliance therewith the subscription may be rescinded and money paid in part payment thereof, or as a deposit therefor, recovered back.

The judgment will therefore be affirmed.

Affirmed.


text:
    Oliver D. Crilly, Defendant in Error, v. W. K. Young, Plaintiff in Error.
    Gen. No. 14,688.
    1. Brokers and factors—what does not preclude recovery of real estate commissions. If the broker was the procuring cause of the sale he is entitled to his commissions and the fact that the owner may be required to pay two commissions does not affect such right; nor is the fact material that a verdict in favor of another broker for commissions on the same transaction has already been sustained on review.
    2. Brokers and factors—what not fraud hy hroher. Held, that it was not such a fraud by a broker as to preclude his right to commissions that he concurred in the valuation of the property for the purchaser at less than the then asking price of the owner.
    3. Brokers and factors—when license not essential to recovery. If the transaction in suit was the first in which the broker had acted a specific contract for compensation can be enforced by him without a showing that he was licensed to prosecute the business of a broker.
    4. Brokers and factors—what license sufficient to sustain recovery. It is not essential to a recovery by a broker that he has a license at the time the property is put into his hands as long as he has such license at the time his work is completed; even though he have no license at the time an oral contract of bargain and sale of real estate is made, he may recover, as such a contract is within the Statute of Frauds; if the broker have a license at the time an enforceable written contract is made, he is in a position to enforce his claim to commissions. ,
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    Samuel J. Howe, for plaintiff in error.
    Cassoday & Butler, for defendant in error; Ernest O. Best, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

The defendant Young was the owner of a flat building in Chicago which he advertised for sale or for exchange. A firm of real estate brokers saw the advertisement and sent one of their employes to plaintiff’s office to submit a proposition with a view to inducing plaintiff’s client to exchange a farm for it. After various negotiations in which the plaintiff and the defendant met, the deal fell through. Plaintiff went to California and subsequently his clients sold their farm. On his return he again sought the defendant with a view to effecting a sale of the property to the same parties for whom he had endeavored to negotiate the exchange. He did not mention his clients to the defendant, but obtained the selling price of $30,000 from the defendant and an agreement that he should have 2%% commission if the sale were consummated. The prospective purchaser subsequently asked him to have the property valued by his brother. The brother valued it at $27,000. The plaintiff concurred in that valuation and the defendant sold the property to plaintiff’s customer at that price. A verbal agreement to sell was entered into before May 2. On May 2 plaintiff procured a broker’s license. Subsequent to May 2 the sale agreement was reduced to writing. Before the transaction was consummated, the defendant informed plaintiff that as he would have to pay off some mortgages he would pay him only $500 instead of the 2%%. Subsequently, on learning that the brokers who had first attempted to effectuate an exchange, were demanding the commissions, the defendant refused to pay even the $500 to the plaintiff unless he would give him an indemnity bond. This plaintiff refused to do and brought this action for the recovery of the entire commission. The jury awarded him the sum of $587.50 from which he remitted, by the requirement of the court, $87.50.

' The evidence in the case abundantly justifies the finding of the jury, under the instructions of the court, that the plaintiff was the procuring cause of the sale. This is one of those unfortunate cases in which the defendant may by his acts have made himself liable to pay double commissions. In any event, the fact that this court has upheld the verdict of the jury in a suit by the other brokers for commissions on this very transaction, does not justify the court in holding that the jury in this case should not, under the evidence, have found the plaintiff to be the procuring cause of the sale.

It is urged, however, that the plaintiff’s concurrence in the valuation of the property for the purchaser at less than the then asking price of the defendant is such a fraud on defendant and such a violation of his duties as agent as to preclude any recovery. We cannot, however, find any breach of good faith or of any obligation toward the defendant in the plaintiff’s conduct.

It is, however, strenuously insisted that as the plaintiff was a broker at the time of the sale and as he had no license at the time of the contract, he is not in a position to enforce his claim. The record, however, furnishes several answers to this contention: first, the jury was justified in believing the plaintiffs’ statement that he had never theretofore acted as a broker but had confined himself to the management of his father’s estate, and that, too, despite the fact, that at a former trial he had, in answer to questions, testified that he was a broker at the time of the trial and had been a broker for a year prior thereto.

If this was his first transaction as a broker and he had not acted as such theretofore, then the specific contract for compensation could be enforced by him, even if he had not obtained a license. Packer v. Sheppard, 127 Ill. App. 598. More than this, however, it is not essential to a recovery by a broker that he have a license at the time that the property is put into his hands as long as he has it at the time that his work is complete. Loehde v. Halsey, 88 Ill. App. 452. Ordinarily, the broker’s commissions are earned when he shall have brought the parties together and they shall have entered into an enforceable contract. An oral contract, however, is not an enforceable contract, and if, after the oral contract, either party had repudiated the same, the broker would not be entitled to commissions. At the time that an enforceable contract was entered into in writing, the plaintiff had his broker’s license. Moreover the plaintiff testified in this case, and the jury had a right to believe from the evidence, that his employment was not the ordinary employment of a broker, but was a special employment under which the compensation would not have been earned unless the sale was actually consummated. "Whatever plaintiff’s rights might have been if, under such a contract, the sale had been consummated before he obtained his broker’s license, in this case the license was obtained long before the sale was actually completed.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Emil H. Schintz, Defendant in Error, v. American Trust and Savings Bank, Trustee, Plaintiff in Error.
    Gen. No. 14,706.
    Negotiable instruments—when burden of proof upon plaintiff to show acquisition in good, faith. After the defendant has shown the title of the payee to have been defective, the burden of proof is on the assignee to establish that he took the negotiable instrument in suit in good faith and for value.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwabd A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 7, 1909.
    Lee D. Mathias and Jesse Lowenhaupt, for plaintiff in error.
    Otto W. Jurgens, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The payee of a sixty-day note for $500, executed by defendant, sold and endorsed it to plaintiff twenty-one days before maturity for $300. Plaintiff testified that he wanted to see defendant before buying it, not on account of bad faith but to know whether he would pay it when due. He endeavored without success to telephone to him, and bought the note without seeing him.

To the question as to whether the plaintiff suspected that there might be some reason why defendant would not pay the note when due, an objection was sustained.

In view of the statement in the brief of defendant in error “that we shall not discuss the question as to whether Koelling’s (the payee’s) title was defective within the meaning of section 55 of the Negotiable Instruments Act,” it is unnecessary for us to review the evidence on this point. Suffice it to say that in our opinion there was abundant evidence to justify a finding that at the time of the sale to plaintiff, Koelling held the note no longer as payee but for defendant and that his title was therefore defective.

Inasmuch as the court directed a verdict for the plaintiff, the only question is, was there any evidence from which the jury would have been justified in finding the plaintiff not to have been a holder in due course within section 51 of the act.

Whatever may be the rule at common law, see Bradwell v. Pryor, 221 Ill. 602, the statute now expressly provides that after the defendant has shown the title of the payee to have been defective, the burden of proof is on the plaintiff to establish among other things that he took the paper in good faith.

While neither gross negligence nor a mere suspicion of defect of title (Bradwell v. Pryor, supra) nor a mere inadequacy of consideration (Kimmel v. Nagele, 84 Ill. App. 22) would of itself necessarily establish bad faith or perhaps even sustain a finding of bad faith, the combination of a suspicion of some defense on the part of the maker with the purchase at forty per cent discount twenty-one days before maturity, under the circumstances of this case, requires the submission of the question of good faith to a jury. The objection to the question bearing on plaintiff’s suspicions was therefore improperly sustained and the error was not cured by any subsequent question or answer.

But even without the answer that was sought to be elicited, to this question, two facts stand out clearly in this record; the purchase, at forty per cent discount, twenty-one days before maturity, of a note executed by one whom, according to the evidence, the purchaser considered good, and the attempt to investigate but the failure to carry out the investigation by making direct inquiry of the maker, who was readily accessible.

It is to be noted that the statute now requires a holder in due course, not only to have had “no notice of any defect in the title of the person negotiating it” (Neg. Instr. Act, sec. 52, sub-sec 4), which notice is further defined in section 56 as “actual knowledge of the defect or knowledge of such facts that his action in taking the instrument amounted to bad faith,” but it also requires him by section 52, sub-section 3, to have taken it “in good faith.” A mere lack of notice or knowledge is not therefore sufficient; good faith implies honest intent. It is consistent with negligence, even gross negligence. A blundering fool may therefore be found to have acted in good faith, though under like circumstances a shrewd business man might be deemed to have acted in bad faith; but it cannot be held as a matter of law that this plaintiff, an experienced real estate man who made a practice of buying notes, acted in good faith. Plaintiff may be well satisfied if a jury on the retrial shall find good faith to have existed in fact. It was therefore error to have directed a verdict.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of the State of Illinois, Defendant in Error, v. Harry Hill, Plaintiff in Error.
    Gen. No. 14,906.
    1. Bastardy—when verdict not set aside. The rule of nature that the usual period of gestation is from 260 to 308 days is not followed as a rule of law. Held, in this case, under the evidence that the verdict of the jury should not be disturbed.
    2. Municipal Court—jurisdiction in bastardy. The Municipal Court of Chicago has jurisdiction not merely to hold one accused of bastardy over to the Criminal Court but to hear and determine such a cause.
    3. Municipal Court—oral instructions authorized. Oral instructions may properly he given in cases tried in the Municipal Court of Chicago.
    Bastardy proceeding. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding, Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 7, 1909.
    S. A. T. Watkins, for plaintiff in error.
    John E. W. Wayman and Thomas G. Vent, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

Defendant, who was police officer at a picnic which he says was held on August 26, 1907, hut which the complaining witness says was held in the early part of August, was found guilty of bastardy. The evidence of the complaining witness was that she had intercourse with him at his house on the night of the picnic, and that she never had intercourse with any one at any other time. Her sister corroborates her as to the defendant’s friendly relations with her at the picnic. The child was born May 1, 1908. On March 24, 1908, she told him of her condition. Defendant denied having had sexual relations with her.

We cannot on these facts say that the verdict finding defendant to be the father of the child is against the preponderance of the evidence, or that it is impossible for him to be the father of a child born after such a short period of gestation, even assuming the sexual act to have occurred on August 26.

The statement in People v. Pike, 34 Ill. App. 112, that the usual duration is from 260 to 308 days, is not the statement of a rule of law but of a rule of nature, subject to many exceptions of which the court takes judicial notice.

That the Municipal Court of Chicago has jurisdiction not merely to hold the accused over to the Criminal Court but to hear bastardy cases is settled by the amendment to the Municipal Court Act approved June 3, 1907, and adopted at an election held September 17, 1907. Section 50-A, Laws of Illinois 1907, p. 225. If the amendment were inconsistent with the amendment to the Bastardy Act adopted February 17, 1907, Laws of Ills., 1907, p. 56, it would nevertheless, as the later enactment, prevail. The two acts, however, are in no sense conflicting.

A similar answer must be given to the contention that oral instructions are not permitted in the Municipal Court. The new Practice Act (Laws of Ill. 1907, p. 443) and the amendment to section 37 of the Municipal Court Act were approved on the same day. To reconcile them, provisions in the former act conflicting with those in the latter, must be held to be inapplicable in the Municipal Court.

The evidence fully establishes the venue inasmuch as the intercourse occurred and the child was born in the city of Chicago. It is unnecessary specifically to recite this in the finding.

The validity of section 25 of the Municipal Court Act is determined in City of Chicago v. Knobel, 232 Ill. 112. The jury was properly drawn.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    William F. Zibell, Trustee, for use of E. L. Loewen, Defendant in Error, v. Western Steel Car & Foundry Company, Plaintiff in Error.
    Gen. No. 14,671.
    1. Mumcipai, Court—what statement of facts should contain. It is the evidentiary, as distinguished from the ultimate facts, that the trial judge should certify up in the statement of facts; to hold otherwise would bind the Appellate Court to the conclusions of fact found by the trial judge of the Municipal Court.

      2. Contract—when custom does not enter into. A general custom does not enter into an express entire contract free from ambiguity or uncertainty and complete in itself.
    3. Parties—who cannot sue upon contract. One not a party to a contract and who has not received it by assignment cannot maintain an action thereon nor can a general custom so affect a contract not ambiguous or uncertain but complete in itself as to enable several parties to sue thereon in their own names on the ground that they have furnished certain' portions of the merchandise therein specified.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 7, 1909.
    Statement by the Court. Action was brought in the Municipal Court of Chicago by William F. Zibell, trustee of Illinois Hardwood Lumber Company, defendant in error, against the Western 'Steel Car & Foundry Company, plaintiff in error, to recover the purchase price for 7,530 feet of lumber sold and delivered by the Illinois Hardwood Lumber Co. to the defendant car company. The trial was before the court without a jury and resulted in a finding and judgment in favor of the plaintiff and against the defendant for $275.85.
    It appears from the record that the defendant car company was, in October, 1905, in the business of building freight cars, and that it desired to purchase a certain quantity of ash lumber of specified dimensions. It asked F. J. Shead, of the Shead Lumber Association, by telephone or letter, for a quotation on the lumber, stating how much was wanted. Mr. Shead went to see one Frank M. Creelman, who was in the business of buying- and selling lumber in Chicago, doing business in his own name. Shead stated to Creel-man what lumber the car company wanted and asked him to make a price on it, including his—Shead’s— commissions. Creelman gave him a price of $45 per thousand feet. Shead returned to his office and under date of October 16, 1905, sent to the car company the following quotation: “We are pleased to quote you on the following for immediate acceptance, 1st and 2nd Ash 10,200 pcs. 2x33Ax7/ or 14' $45.00.”
    The next day the Car Company sent to the Shead Lumber Association a purchasing agent’s order as follows:
    “Please furnish this Company the articles specified below, making bills in triplicate on our forms, showing our order and requisition numbers and mailing same direct to Purchasing Agent, 1480 Old Colony Building, Chicago, Ill. Send Bills of Lading and Shipping Notices to Superintendent, Hegewisch, Ill.
    **************
    Quantity. Specifications.
    10,200 Pcs. First and Second Ash 2 x 3^4 x 7' or 14'
    Bough.
    The above to be free from unsound or defective knots. This stock is to be cut immediately and put to drying until instructions are received from us to make shipment.
    Price: $45.00 per M. Ft.
    Terms: 60 days net or 2% for cash 10 days from receipt of material.
    Delivery: Later.
    Account: 2550 Harriman Box Cars. O. O. No. 1946.
    Cofifirming verbal order to Mr. Shead.
    CHS-S
    Beceived
    Oct. 18, 1905.
    Answered......
    Acknowledged ....
    Entered 10/17 ....
    **************
    Consign to Western Steel Car and Foundry Company, Hegewisch, Ill.
    Boute Shipment via Later
    A. P. Bowsisr,
    Purchasing Agent.
    Prices F. O. B. Hegewisch, Ill. Order Number must be marked on each package. Invoice must be rendered same day material is shipped. No charges allowed for drayage or package. Please sign and return at once the attached receipt for this order.
    Deliver no material without a written order properly signed by Purchasing Agent.”
    Shead then made out a written acknowledgment of this order and sent it to the Car Company, as follows: “Have received and entered your order No. A-706 for execution as herein specified. Our order No. 252. Date received Oct. 18, 1905. Shead Ebr. Assn.” He also made out and gave to his stenographer to mail to Creelman a copy of the order, and the following letter:
    “Oct. 18, 1905.
    Me. F. M. Creelman,
    By. Exchange, City.
    Dear Sir:—
    Beg to enclose you herewith our formal order No. 252 covering some ash strips to the Western Steel Car & Foundry Co.
    As to the delivery of this shipment, it 'will not be asked before Jan. 1st, and possibly Feb. 1st, and for this uncertainty, they have not specified any particular time of shipment in their order, but we assume the longer time we are given in which to dry the material, the greater will be a saving in the freight to you.
    Tours truly.
    The Shead Lumber Association.”
    Later, on December 19, 1905, the Car Company instructed Shead Lumber Association by letter to ship the lumber covered by the order immediately. Shead then called up Creelman on the telephone and told him “to get out the lumber for us.”
    Some time later a car of lumber corresponding in dimensions and price to the lumber described in the order of the Car Company was delivered to the Car Company with the following invoice:
    ’ “original.
    Bender bills in triplicate upon this form and mail immediately on shipment of goods to the Purchasing Agent, Western Steel Car and Foundry Company, Hegewisck, Ill. Send bills of lading and shipping notices to Superintendent, Hegewisch, Ill.
    Pur. Agt. No. 28497
    INVOICE FOB MATEBIALS.
    Shipper’s No.................
    Date, Jan. 19th, 1906.
    Shipped by F. M. Creelman,
    1529 By.- Ex. Building, Chgo.
    Loaded at.............'. in I. p. Car No. 24559.
    Routed via....................and consigned to the
    Western Steel Car and Foundry Company at Hegewisch, Ill., on their Order No. A-706, Requisition No.
    Terms: 60 days or 2% for cash in 10 days from date of bill of lading. Delivery F. O. B............. 1986 pcs. 2 x 314—V—7530' at $45.00..........338.85
    On order from Shead Lumber Assn.”
    Another invoice, different in form, was also introduced in evidence, but both invoices agree in the material statements that the car was shipped by F. M. Creelman to the Car Company, and the number of the car loaded with 1986 pieces of the lumber described in the order to the Shead Lumber Association, at the price quoted by Creelman to Shead and by Shead to the Car Company, and both invoices state that it is “On order from Shead Lumber Association.” At this time there was no other order for lumber of any kind pending between the Shead Lumber Association and the Car Company.
    A few days after the receipt of this car of lumber the Car Company wrote to Shead Lumber Association under date of February 3, 1906, as follows: “Please furnish us, over your signature, authority to make payment to F. M. Creelman for I. C. Car No. 24559 shipped to apply on our order A-706.” The Shead Lumber Association replied: “Replying to yours of the 3rd inst. relative to payment for car No. 24559 to apply on your order No. A-706, would suggest that you withhold the payment of this money until we know what will he done with the balance of the lumber due on this order.”
    No more lumber was shipped upon the order by either Shead Lumber Association, F. M. Creelman or Illinois Hardwood Lumber Company. The defendant purchased a part of the balance of the order on the market at a price equal to the contract price, leaving the balance, approximately 26,437 feet, unfilled.
    February 17, 1906, Frank M. Creelman and Illinois Hardwood Lumber Company, which was organized and commenced business in December, 1905, failed, and separate petitions in bankruptcy were filed against them. Zibell, plaintiff, was appointed trustee of the Illinois Hardwood Lumber Company.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Whitman & Horner, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

There appears in the record filed a transcript of the evidence given and proceedings had on the trial of the cause to which is appended a certificate that “the above and foregoing is a correct statement of the facts appearing upon the trial of the said cause, and of a.11 questions of law involved in such case, and the decision of the court upon such questions of law, this 11th day of May, 1908, and the said statement of facts is hereby signed by me and placed on file.”

It is contended by counsel for the plaintiff below, defendant in error here, that assuming that the certificate of the judge to the document makes it a statement of the facts and of the questions of law and the decisions of the court' upon the same, so far as it is to be regarded as a statement of facts, it only states evidentiary facts, and therefore cannot present any basis upon which to predicate error in this court, in the absence of the ultimate facts found by the court.

Counsel also take the further position that if the document signed and placed on file by the trial judge contains a statement of the ultimate facts appearing on the trial, they appear in what on their face and inherently are statements purporting to be statements of the court; and that this court must confine its examination of the record to such ultimate facts, which, as counsel contend, sustain the judgment of the trial court. This implies, and it seems to be the argument of counsel, that this court is precluded from an investigation of the evidence presented on the trial, for the purpose of passing upon the merits of the case. We cannot regard this construction of the provisions of paragraph sixth of section 23 of the Municipal Court Act as sound. In our opinion the provisions authorizing “a correct statement * * * of the facts appearing upon the trial” means not only the facts which the trial court found from the evidence, but the substance of the evidence as given by each witness. To hold otherwise would be to bind this court absolutely by the conclusions of the trial court as to the facts. This is not the meaning or intent of the act. This court is as free to investigate and decide upon the merits of the case where this statement of facts is filed, as where “a correct stenographic report” or a bill of exceptions is filed.

In the view we take of this case it is necessary to /consider one question only presented by the record • and arguments of counsel, namely, what legal right has Zibell, as trustee in bankruptcy of the Illinois Hardwood Lumber Company, to maintain the action against the Car Company for the price or the value of the carload of lumber delivered to it. It is too clear for argument or the citation of authorities that Zibell' as trustee has no other or greater rights than the Illinois Hardwood Lumber Company, the bankrupt. The question then is upon the evidence in the record, could the bankrupt, if the proceedings in bankruptcy had not been instituted, maintain an action? This question must, in our opinion, be answered in the negative.

The evidence both oral and documentary shows that the order for the lumber was given and accepted in October, 1905. It further shows that the contract was an entire contract between the Oar Company and the Shead Lumber Association, and that it was so recognized and treated by the parties. The Illinois Hardwood Lumber Company was not in existence when the contract was made, and was not and could not be, a party to the contract, and did not, and could not, have any interest in it. The Hardwood Lumber Company was organized and commenced business December 4, 1905, but it took no assignment or purported assignment, oral or written, of the contract between the Shead Lumber Company and Creelman, or of the contract between the Car Company and Shead Lumber Company. The evidence shows no transfer or novation of contractual rights, nor even an attempted transfer, from the Shead Lumber Company to Creelman or by Creelman to the Illinois Hardwood Company at any time. But, if there had been an assignment of the contract, the Hardwood Lumber Company could not have maintained the action in its own name. City of Carlyle v. Carlyle W. L. & P. Co., 140 Ill. 445.

The trial court held, and the plaintiff, defendant in error, contends that the Shead Lumber Association was a mere commission merchant and took the order from the defendant as such; that there was a recognized custom in the lumber trade whereby the Shead Association had the right to place the order with a number of different firms, if it saw fit; "that it was also the custom recognized by the trade that the shipper of any portion of the order was to receive payment from the purchaser for what such shipper furnished ; that Creelman and the plaintiff, Illinois Hardwood Lumber Company were one and the same party; that Creelman gave the Shead Lumber Association the price of $45 a thousand, but made no express contract for any definite amount of lumber, or if Creel-man did make a contract he at most made a contract for a single car load lot for the Illinois Hardwood Lumber Company which it furnished to the Car Company and the Car Company accepted the lumber and used it, and therefore the plaintiff, Illinois Hardwood Lumber Company, had a right in law to maintain in its own name the suit upon an implied assumpsit for the value of the lumber.

In our opinion the evidence in the record does not support this theory in several particulars. To the propositions of law involved therein we cannot yield assent. We do not think that if such a general custom was established by the evidence, it would enter into an express, entire contract, free from uncertainty or ambiguity, and complete in itself, so as to give rights of action to several parties in their own names, on the ground that they furnished certain portions of the lumber specified in the contract, “on the order from jShead Lumber Association.” Roosevelt v. Doherty, 129 Mass. 301; Corbett v. Schumacker, 83 Ill. 403. “A general usage may be proved in proper cases to remove ambiguities and uncertainties in a contract, or to annex incidents, but it cannot destroy, contradict, or modify what is otherwise manifest. When the intent and meaning of the parties are clear, evidence of a usage to the contrary is irrelevant and unavailing.” National Bank v. Burkhardt, 100 U. S. 686; Bissell v. Ryan, 23 Ill. 517; Hedenberg v. Seeberger, 140 Ill. App. 618.

The effect of the custom or usage relied upon would be to add to, contradict and modify the express contract. It was inadmissible for that purpose.

Upon the evidence in the record the Illinois Hardwood Lumber Company or its trustee was not entitled to maintain the fiction. The judgment is reversed with a finding of fact.

Reversed.


text:
    East Liverpool China Company, Defendant in Error, v. Illinois Surety Company, Plaintiff in Error.
    Gen. No. 14,691.

      Suretyship—when limitation period as to commencement of action constitutes defense. If an action is required by a bond of indemnity to be brought thereon within 365 days from the time that the company’s liability ceases for subsequent acts of the employe whose honesty is guaranteed, failure to bring the action within such time is fatal if such defense of contract limitation is interposed.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed December 7, 1909.
    Hopkins, Peppers & Hopkins, for plaintiff in error.
    Archibald Cattell, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

An action was brought in the Municipal Court of Chicago by the East Liverpool China Company, doing business as The Great Northern Manufacturing Company, defendant in error, against the Illinois Surety Company, plaintiff in error, on a bond issued to the plaintiff by the defendant, dated April 25, 1906. By the terms of the bond the defendant bound itself to reimburse the plaintiff for any loss it might sustain through the “larceny or embezzlement” of one Henry A. Miller during the period of one year from the date of the bond." The plaintiff received the bond directly from the defendant and paid the premium therefor.

The evidence shows that in the latter part of June, 1906, Miller, who was a travelling salesman for plaintiff, was short in his account with the plaintiff. This was brought to the attention of the defendant, which wrote a letter to plaintiff consenting that plaintiff might retain Miller in its employ and agreeing to be bound by any acts committed by him during the term of the bond.

In September, 1906, Miller’s account showed a further shortage, and plaintiff notified defendant of the shortage by a letter inclosing statement dated September 7, 1906, showing the amount of the shortage to be $142.71. Certain deductions were subsequently made from the claim which brought it down to $122.71.

The bond contained a provision that it was issued and accepted subject to certain conditions on the back thereof. Among these conditions were the following:

“The employer’s claim for loss and default hereunder, or any renewal hereof, must be presented to the surety within six months from the date the liability of the surety for the employe’s subsequent acts as aforesaid ceased from any cause; and no suit or proceeding at law or in equity shall be brought after 365 days shall have passed from the date upon which the surety’s liability for said subsequent acts of the employe ceased.”

“It is essential to the validity of this bond that it be signed by the employe and that the actual payment to the surety of the premium, or any renewal premium, shall be a condition precedent to any recovery on this bond for any default during the term of this bond or of any renewal of the same, as the case may be.”

Miller never signed the bond; and there is no evidence in the record that the defendant had any knowledge of his failure to sign it up to the time the bond was introduced in evidence on the trial of the cause.

The trial court found the issues for the plaintiff and assessed its damages at $122.71, and entered judgment on the finding.

The defendant, plaintiff in error, seeks to reverse the judgment on several grounds. We find, however, that it is necessary for us to notice or discuss only one of those grounds, for the reason that if the contention of the defendant that the suit was not brought within the period limited by the bond is sustained, it is decisive of the case.

It is contended on behalf of defendant that under the provision of the bond above quoted suit should be brought within 365 days from the date of the notice of loss, which was September 7, 1906; and as the suit was not brought until January 14, 1908, it was too late, and the delay of the plaintiff is a bar to any^ claim it may have had against the defendant.

The condition above quoted appears to us to be clear. There can be no reasonable doubt from the evidence in the record that all liability for the subsequent acts mentioned in the condition of the bond ceased on September 7, 1906, when the written notice of loss was given. The defendant was no longer liable for any acts of Miller subsequent to that date. The provision seems to us to provide clearly that “no suit or proceeding at law or in equity shall be brought after 365 days shall have passed from the date upon which the surety’s liability for said subsequent acts of the employe ceased.” No question is made in argument, and none could be made, as to the reasonableness of this limitation. Andes Ins. Co. v. Fish, 71 Ill. 620. Much shorter periods in limitation clauses have been held valid. Universal Ins. Co. v. Weiss Bros., 106 Pa. St. 20; Garretson v. Hawkeye Ins. Co., 65 Ia. 468. There is no express or implied waiver of this provision shown in the record. We must, therefore, enforce the provision.

The judgment of the Municipal Court of Chicago is reversed with a finding of fact, and judgment is entered in this court for the defendant, Illinois Surety Company.

Reversed and judgment here.


text:
    Karel Kotek, Defendant in Error, v. Court of Honor, Plaintiff in Error.
    Gen. No. 14,702.

      Insurance—when false statements in application constitute defense. Regardless of whether answers constitute warranties or are merely representations, they constitute a good defense by the company to an action upon a policy or certificate, if such false answers pertain to matters material to the risk.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. WimiAM N. Gemmile, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with- finding of fact.
    Opinion filed December 7, 1909.
    Francis J. Sullivan and William B. Risse, for plaintiff in error.
    Simeon Armstrong, for defendant in error; Louis M. Kane, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

Defendant in error, Karel Kotek, brought suit in the Municipal Court of Chicago, against plaintiff in error, on a beneficiary certificate issued to Marie Kotek, plaintiff’s wife, by the defendant, for $1,000, payable to the plaintiff as beneficiary.

The record shows that on December 10, 1906, Marie Kotek made application in writing for membership and for insurance to the defendant, a fraternal beneficiary society organized under the laws of Illinois. In her application she declared and warranted that she was then of sound body and mind, in good health and free from disease or injury; that the application, including therein the succeeding pages in which she made answers to questions hereafter referred to, and the laws of the society, should form the sole basis of her admission into and continued membership in the society, and of the benefit certificate to be issued to her; that any untrue or fraudulent statement or answer made to the medical examiner, or any concealment of facts intentional or otherwise, in the application, or in the succeeding pages, should forfeit her right and that of her beneficiary to any and all benefits and privileges therein or arising therefrom.

In the succeeding pages signed by her .she says that “the following are full, true and correct answers and statements in relation to the following particulars concerning my Family History.” She then stated that her mother was living, in good condition of health, and fifty years of age. 'She made answers to questions as follows:

“3. Have either of your parents, or any of your paternal or maternal relations had consumption, apoplexy, hemorrhage, scrofula, cancer, insanity, or mental derangement, and if so, state kind, degree, duration, and effect on health? (Answers must be complete and definite.) Ans. No.

4. Have you ever -been subject to or had any of the following disorders or diseases? (Answer “yes” or “no” to each.)

Habitual cough? Ans. No.

Pleurisy? Ans. No.

Inflammation of lungs? Ans. No.

Spitting or raising blood? Ans. No.

6. Have you ever lived in the family with or nursed any one who was afflicted with or died of consumption? Ans. No.

8. Do you resemble father or mother? Ans. Mother.

10. Have any facts regarding your past health been omitted? Ans. No.

13. Have you undergone any surgical operation? Ans. No.

14. Have you personally consulted a physician, been prescribed for or professionally treated for sickness or accident in the'past five years? Ans. No.

17. Have you had any serious illness, local disease or personal injury? Ans. No.

30. Is there anything to your knowledge in your physical condition, family or personal history or habits, tending to shorten yonr life, which is not distinctly set forth above? Ans. No.

37. Have you now, or have you at any time had, any disease of the breast, uterus or ovaries? Ans. No.

38. How many children have you had? Ans. Two.

40. Date of your last confinement? Ans. 1903.

“I hereby adopt as my own the foregoing answers and statements from 1 to 48, inclusive, whether written by me or not, and declare and warrant that they are full, complete and true, and I agree that the truth of each answer and statement mentioned above shall be a condition precedent to any binding contract issued upon the faith of the foregoing answers, and that 1 have not concealed or omitted to state any facts regarding my health, either past or present.

“I further agree that the foregoing answers and statements, together with the preceding declaration, shall form the basis of the contract between the Court' of Honor and myself, and shall constitute warranties, and are offered by me as a consideration for the contract applied for, and are hereby made a part of any benefit certificate that may be issued upon this application, and shall be deemed and taken as part of such certificate; that this application may be referred to in said benefit certificate as the basis thereof, and that they shall be construed together as part of my contract; and I further agree that if any answer or statement in this application is not true and complete, or if I shall fail to comply with and to conform to any or all of the laws of said Court of Honor, now in force or that may hereafter be enacted, amended or adopted, that my benefit certificate shall be void.”.

Upon this application the beneficiary certificate sued on was issued to Marie Kotek, dated December 27, 1906. It recites that the application has been accepted by the Society upon the faith of the warranties contained therein and in the medical examination therewith; and in the certificate “it is expressly agreed that the application for membership and medical examination upon which this certificate is issued, the constitution, laws and rules of the Court of Honor and this certificate shall constitute the complete and only contract between said benefit member and the Society; shall be binding upon the beneficiary or beneficiaries named herein.”

Marie Kotek, the insured, died June 21,1907, of consumption.

Dr. Christie testified on the trial that he had been a practicing physician for twenty-five years and that he knew Marie Kotek before she was married; that he knew her mother, Mrs. Turek, in her last illness, and that she died in 1902 of pulmonary consumption. He talked to Marie Kotek about her mother. Marie Kotek was living with her mother; she was there all the time of her mother’s illness. Dr. Christie further testified that he attended Marie Kotek during her lifetime. She came to his office on May 7, 1905, and two days later he saw her at her home, and treated her for pleurisy with effusion—fluid thrown into the pleural cavity through inflammation in the pleura. It is very often of a tubercular nature. He did not tell her the nature of her disease. He tapped her at that time. From May 7, 1905, to June 10, 1905, he visited her seventeen or eighteen times. Some time in October, 1905, he attended her in confinement. He again attended her in March, 1906, or the early part of April, making five or six visits, possibly- more. He saw her again in April, 1907. She then had pulmonary tuberculosis. He treated her once before that time for consumption when she had symptoms of pulmonary tuberculosis. He always examined her closely and carefully. He was the family physician. He signed the proofs of death.

Dr. Christie’s evidence was the only evidence given on the trial relating to the truth or falsity of the answers of Marie Kotek to the questions contained in her application for insurance. It is clear from the evidence that her statements in the application were untrue in at least ten important particulars. If these untrue answers were not warranties, they were at least material representations, and their untruth would avoid the contract. Metropolitan Life Ins. Co. v. Moravec, 214 Ill. 186; Continental Life Ins. Co. v. Rogers, 119 id. 474; Conn. M. Life Ins. Co. v. Young, 77 Ill. App. 440. The knowledge or ignorance of the plaintiff in error as to whether there was consumption in the family of the applicant, whether she had ever had pleurisy, or inflammation of the lungs, or whether or not she had ever lived with or nursed one who had consumption, or whether she had undergone any surgical operation, or had any serious illness, or local disease, would have influenced its judgment materially in making or declining to make the contract of insurance. If the statements made as to these matters were false, and upon the evidence they must be so held, it constitutes a good defense under the authorities cited.

The judgment of the Municipal Court is reversed with a finding of fact.

Reversed with finding of fact.


text:
    John Donegan, Plaintiff in Error, v. Walter C. Hately and John A. Bunnell, Defendants in Error.
    Gen. No. 14,707.
    1. Master and servant—when question of assumed risk one of fact. Unless the court can say as a matter of law that the servant knew and appreciated the peril to which he was exposed, the question -is one to be determined by the jury.
    2. Negligence—when question for jury. When the evidence, with all the reasonable inferences which may legitimately be drawn therefrom, tends to support the charge of negligence in the declaration, the question is one of fact 'which should be submitted to the jury.
    Action in case for death caused by alleged wrongful act. Error to the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 7, 1909.
    Rehearing denied December 21, 1909.
    Johnson & Molthrop, for plaintiff in error.
    Lackner, Butz & Miller, for defendants in error.
   Mr. Justice Smith

delivered the opinion of the court.

The question presented by this record is whether or not the trial court erred in directing a verdict for the defendants at the close of the plaintiff’s evidence.

No question is made on the pleadings. From the evidence for the plaintiff it appears that on May 15, 1905, David Donegan, plaintiff’s intestate, was in the employ of the defendants, who were engaged in a packing business conducted in a large building at the Stock Yards in Chicago. The east wall of the building ran north and south. East of the wall and adjoining it planking was laid on the ground the entire length of the building. Further to the east, and running parallel to the building, was a railroad platform, elevated about four feet above the planking, and about the level of the floor of box cars standing on the switch track which ran parallel with and just east of the platform. It was eight or nine feet wide. There was a door in the east wall of the building from which a runway ran up to the railroad platform. The runway was constructed of planks and was about twenty feet in length. It was made in two sections. The upper section was a little over seven feet in length, and four feet two or three inches in width, and was supported at its lower or western end by a wooden horse. The lower section was only three feet and six inches in width and had to be taken down every night to permit the closing of the door of the building.

On the upper surface of the runway were nailed two 2x4 pieces, extending the entire length of the runway. On the lower section the north 2x4 piece ran parallel with the north edge of the runway at a distance of about eight inches from the north edge. The south scantling ran parallel with the south edge of the runway and about eleven inches from it.

On the morning in question a box car load of bulk salt stood on the switch track with its center side door about fifteen feet south of the point where the runway connected with the railroad platform. The deceased and four other men were put to work unloading the car of salt. They commenced the work about 7:30 in the morning of the day of the accident. The deceased and two others were wheeling the salt in carts from the car down the runway into the building, while plaintiff’s witness Flynn and another loaded the salt into the carts in the box car. The carts used had boxes between three and three and one-half feet long and a little over three feet wide. An axle was secured to the bottom of the box. The wheels were of a design similar to buggy wheels, and about three and one-half feet in diameter. Each cart was provided with two handles which extended under the box and at one end of the box extended out about two feet beyond the box, near the bottom corners of the box. At these corners there were two legs, one at each corner, to provide a rest for the cart. The space between the handles was about two feet. The track of the wheels was about three feet. The carts were handled or drawn behind the person operating them. His position was between the handles with his back to the cart. When the work of unloading the salt first commenced the men took the carts along the railroad platform to the south of the car and down a permanent incline and into what was called a salt shed. They continued this route for about two hours. The foreman, Martin, who had charge of the men and hired and discharged them, then ordered them to take it down the runway above described and take it to the elevator. In obedience to this order the men commenced taking the salt down the runway. The witness Flynn ’a description of the way the men took the cart§ down this runway is as follows:

“I saw Donegan every time he went down. He would pull right up to the runway on the platform, get the truck even and get his feet in between the two by four and get one of the wheels on each side of the two by four and hold back with the load as strong as he could, because it was a steep runway going down. He had his back up against the truck and bearing down on the handles. He would put the legs down and let it slide on the runway and hold Ms back against the box of the cart. He would be braced with his feet going down the best way he could to hold back on the truck with a heavy load. As soon as he left the top of the runway the truck started to go faster. The trucks would be going faster at the bottom. Nobody was helping down the runway.”

Flynn thus describes the manner in wMch Donegan received his injury:

“Nobody helped Donegan go down this runway. He got hurt on either the third or fourth trip down. I saw him make the trip down. I would say he had between six and seven hundred pounds of salt on the wagon. I would say the truck weighed three hundred pounds. On his fourth trip down he pulled from the platform onto the runway. He got on the top all right and went along until he came a little ways on the second part of the runway. The second part of this runway was a little narrower and he was a new man and he tried to hold back on the truck as usual and the truck seemed to get the best of him and he held the truck against the two by four. It tipped over and the truck of salt and all went down with him. I went down and picked him up. The place where this truck fell off was about two and one-half feet high.

“At that time he held back on the truck going down. The truck went down straight, only the runway was narrower below this first part of the runway and when the wheel rubbed against the two by four, the truck was too wide and it got right off the runway. The track of the wheels on that truck was a little over three feet.”

The testimony of Dr. Macleary, who treated Donegan in his last illness from May 16, 1905, until his death, is that he was suffering from a perforation of the bowels; that he was operated upon, and about three inches of his intestines were taken out and the ends brought together. Donegan recovered so far as the operation was concerned, but he died from septic inflammation-and multiplied abscesses due to poisonous matter that had escaped through the rupture of the bowel into the abdominal cavity.

Donegan left him surviving his father sixty-two years of age, his mother sixty years of age and six brothers and sisters. He contributed to the support of his father and mother and two young brothers and a sister, contributing about $5 a month.

The evidence tended to show that although Donegan had been working for defendants five or six weeks, the car of salt which they were unloading was the first one he worked on, and it was the first time he attempted to use the runway in question with the kind of truck they were using.

The. negligence averred in the declaration was a failure to provide a reasonably safe place in which to work; in failing to furnish sufficient help; and in failing to properly guard and protect the runway, each count averring the deceased was ignorant of the danger.

On the question of the negligence of the defendants the evidence shows that the runway in question which Donegan was directed to use was so constructed that at the point where the lower section commenced it narrowed down suddenly to a width a very little greater than the tread of the wheels of the trucks. It appears that the loads which Donegan and his fellow workmen were required to take down this narrow runway were very heavy, so heavy, indeed, that a jury might reasonably infer that with reasonable care it was impossible to so handle the loaded truck as to keep it safely on the runway. The evidence warrants the inference that the men were not only required to exert their utmost strength against the loaded truck, but that even then the speed of the trucks increased as they descended to and upon the narrow part of the runway, and that the men were thereby placed in great peril when required to handle loads of the weight shown upon a narrow runway. The position which the men necessarily took between the handles in order to manage the load subjected them to the peril of being thrown off the runway in case one of the cart wheels ran off the side of the runway. We think the evidence, with all reasonable inferences from it which may be drawn legitimately, tended to support the charges of negligence in the declaration, and hence, the negligence of the defendants was properly a question of fact for the jury. The court could not say as a matter of law that there was no evidence of negligence. Supple v. Agnew, 191 Ill. 439; Swift & Co. v. Rutkowski, 182 id. 18; Armour v. Golkowska, 202 id. 144.

We also think that on the evidence in the record the questions of assumption of risk and contributory negligence were questions of fact for the jury under proper instructions. The court could not say as a matter of law that, because Donegan had taken two or three loads down the runway just prior to his injury, and because it was obvious that the runway was narrow and its edges were unprotected, he was aware oí and appreciated the peril to which he was exposed, and therefore assumed the hazard as a risk of his employment. The reasoning of the courts in Armour v. Golkowska, supra, and in Jones & Adams Co. v. George, 125 Ill. App. 503, is applicable to the evidence in this case. Nor, on the other hand, could the court say, as a matter of law, that in obeying the order of the foreman, as Donegan did, the danger was so imminent that a man of ordinary prudence would not have incurred the risk.

In onr opinion the court erred in instructing a verdict, and the judgment is therefore reversed and the cause remanded for a new trial.

Reversed and' remanded.