text:
    W. D. Watson, Defendant in Error, v. Charles S. Smith, Plaintiff in Error.
    Gen No. 18,098.
    1. Landlord and tenant—consent to assignment. A provision in a lease requiring the lessor’s consent to an assignment is waived, where the assignee of the leasehold interest takes possession and pays rent directly to the owner of the lease.
    2. Landlord and tenant—when assignee of reversion cannot declare forfeiture. The assignee of the reversion cannot take advantage of a cause for forfeiture of a lease for nonpayment of rent which accrued prior to the assignment.
    3. Landlord and tenant—where lessor has waived grounds for forfeiture. The assignee of a reversion cannot declare forfeiture of the lease upon grounds which accrued prior to the assignment and were waived hy the lessor.
    4. Conditional sale—when assignee may assert title. Where the owner of certain buildings and a ground lease makes a contract of conditional sale to a corporation, his assignee is entitled to assert title when the corporation becomes bankrupt and fails to comply with the conditions.
    5. Forcible entry and detainer—lies only to restore actual possession. An assignee of a leasehold interest who has had only constructive possession of the premises cannot maintain forcible entry and detainer.
    6. Forfeitures—not favored ty courts of equity. In equity a provision for the forfeiture of a lease for nonpayment of rent is treated as intended merely for security and equity assumes jurisdiction to relieve tenants from forfeiture upon payment of all rent in arrears.
    7. Equity—power to enjoin landlord from enforcing forfeiture of lease. Where complainant, assignee of a leasehold interest, has tendered defendant, owner of the reversion, the hack rent which accrued before defendant acquired title and the next instalment as it fell due and defendant has taken possession claiming the right to declare a forfeiture, equity has power to issue a mandatory injunction enjoining defendant from interfering with complainant’s occupation of the premises.
    Error to the Superior,. Court of Cook county; the Hon. Chables A. McDonakd, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Statement by the Court. This writ of error brings up for review the overruling’ of a general demurrer to the bill of complaint, by which defendant elected to stand, and the entry of decree on the bill taken as confessed.
    The bill set up: That on March 14,1907, one Porter, the owner of said lots, executed a lease thereof to one Nelson and one Benson, copartners, for the term of ten years from April 1st following, containing covenants that the lessees pay all water rates, taxes and assessments, and the rent in monthly instalments in advance; that the lessees might remove, at the termination of the lease, all buildings they may have erected thereon, provided that all rents, taxes and assessments had been fully paid; that the lease should not be assigned without the written consent of the lessor, and that in case the lessees defaulted in payment of rent or in the performance of any of their covenants, the lessor or his assigns might elect to declare the term ended and re-enter, the lessees waiving the right to a notice of such election.
    That said lease and the rent secured thereby were assigned by said Porter to the Chicago Title & Trust Company on January 4, 1909, and by the latter company to defendant Smith June 6, 1911.
    That a building or mill was erected on the leased premises by Nelson; that Nelson and Benson went into possession and operated the mill until June 27, 1908, when they dissolved copartnership, Benson continuing in the mill business and assigning to Nelson on February 1, 1908, all Ms title and interest in the building and ground lease; that on February 16, 1909, Nelson entered into an agreement to sell Benson the bmldings, improvements and leasehold interest for a certain amount, part cash and the balance in monthly instalments, the title to remain in Nelson until such payments were fully made, when Nelson was to convey his interest by proper conveyance, but in case of default might forfeit all payments made and terminate the contract; that on May 31, 1911, Benson was one year in arrears in his payments on said contract, and refused to make more; that December 17, 1909, he made a bill of sale to the Benson Mill Company, a corporation organized by him and others, of all his interest in said- leasehold, said building and the property contained therein and of his rights and interests under said contract with Nelson; that the corporation occupied the premises and operated the mill until June 6, 1911, paying the ground rent for the premises from time to time, but on May 1, 1911, was in default in the payment of rent for a period of three months and in the payment of general taxes, on account of which Nelson notified Benson and the Benson Mill Company of his election to forfeit all payments made by them under the contract of February 16, 1909, and declared said contract null, void and terminated, and that he would start proceedings to recover possession within seven days. That after service of said notice he was advised by the agent of the then owner of the land and assignee of the lease that he need not make such payments, but that he would endeavor to collect such rent and taxes from the Benson Mill Company, and if .unsuccessful he would notify Nelson before any action was taken to forfeit said lease, so that Nelson could make such payments. That, thereafter, without giving such notice, said owner assigned said lease to Smith as aforesaid and deeded him said lots subject thereto; that the deed was delivered June 6th, and Smith, after filing the same for record at 10:10 a. m., that day, served a notice on Nelson, addressed to Nelson and Benson, and the Benson Mill Company, of his election to terminate the lease and demanded the immediate possession of said lots. That prior thereto Nelson had no notice of Smith’s interest and had received none from Smith’s lessor of any change in the arrangements previously made as aforesaid with its agent; that about one hour after Nelson received said notice, he, in consideration of $600, assigned and transferred all his right, title and interest in and to said leasehold, said building, and said contract with Benson of February 16,1909, to the complainant Watson, who did not have knowledge of Smith’s purchase and the notice given Nelson until June 7th. That at 2:00 p. m., June 6th, an involuntary petition in bankruptcy was filed in the District Court of the United States against the Benson Mill Company, and a receiver therefor was immediately appointed. That at 3:06 p. m. the same day, Smith began forcible entry and detainer proceedings against Benson and the Benson Mill Company for possession of said lots, in which Watson appeared on June 12th, and which were continued on Smith’s motion to July 19th, and abandoned after Smith had taken forcible possession of the said premises. That on June 8th complainant Watson notified the receiver that he was the owner of said building, and that the rent should be paid to him during the receiver’s occupancy thereof. That the receiver’s inventory of the assets of said Benson Mill Company did not include said building nor said leasehold interest; that a, notice of sale by the receiver to take place June 18th referred to only tangible property of said bankrupt; that at said sale the referee made no mention of the building or the leasehold interest and offered only such property as was mentioned in the notice of sale which was struck off and sold to said Smith, and a hill of sale was executed to him conveying the bankrupt’s interest in the tangible assets of every kind, etc., “ together with any and all other property of every kind and description belonging to said bankrupt except accounts and bills receivable and cash on hand.” That on June 7th Watson gave notice to Benson and Benson Mill Company of his confirmation of Nelson’s notice of forfeiture of the contract of February 16th, and notice to Smith of his purchase of said building and leasehold interest and tendered both to Smith and his lessor all back rent and taxes then due and unpaid, and when the next month’s rent accrued tendered the same to Smith. That after Smith received the bill of sale of the bankrupt’s assets, he took forcible possession of said building and threatened to use force and violence against complainant if he attempted to take possession thereof.
    The bill then alleged that by reason thereof complainant was unable to occupy, use, rent, sell or remove the building, and that Smith claimed to own said premises and leasehold interest by reason of his alleged cancellation of said lease, and declared that said attempted cancellation and occupancy of said building was a fraud on complainant and prayed that said attempted cancellation of the lease be declared null and void, that he be decreed the owner of the leasehold interest and of the building and improvements on said lots, and that Smith, his agents, etc., be enjoined and restrained from interfering with or hindering him in the occupation and control of said building and lots.
    Albert H. Fry, for plaintiff in error.
    Lyman, Lyman & O’Connor, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

It is argued first that the bill does not show notice, or written consent by the lessor or his grantee, as expressly required in the lease, to any assignment of the lessee’s interest. The facts set up in the bill show that each successive assignee of the leasehold interest took open possession of the premises and in turn paid rent therefor directly to the then owner or assignee of the lease. The receiving of the rent under such circumstances gave implied consent to such assignments, and constituted a waiver of such provision of the lease. Hopkins v. Levandowski, 250 Ill. 372, and cases cited.

It is also urged that as the lease provided that nonpayment of rent constituted a forcible detainer and the lessees waived notice of election by the lessor to declare a forfeiture for such nonpayment, and as the rent was in arrears for four months when Smith obtained title to the lots, he could take possession of the premises without giving such notice. But the default in the payment of rent took place before he acquired title to the reversion, and as assignee thereof he could not take advantage of a cause for forfeiture which accrued prior to the assignment to him of such reversion. 18 Amer. & Eng. Ency. of Law (2nd Ed.) 393; Watson v. Fletcher, 49 Ill. 498; Trask v. Wheeler, 7 Allen (Mass.) 109; Small v. Clark, 97 Me. 304; Fenn v. Smart, 12 East 444.

Besides, the deed to Smith having been made subject to the lease in question, he could not declare a forfeiture thereof upon grounds which his lessor by his conduct had previously waived. McConnell v. Pierce, 210 Ill. 627; Watson v. Fletcher, supra.

From the allegations in the bill, it is apparent that neither the building nor the leasehold was regarded or sold as the assets of the bankrupt, and that Smith’s purchase at the bankrupt sale gave him no title thereto. His rights thereto rested solely upon his deed from the Chicago Title & Trust Company.

But appellant contends that Nelson’s contract with Benson operated to devest Nelson of the title to the building and leasehold, and, therefore, Watson acquired no title from him. As the contract .expressly reserved the title to Nelson until full payment was made, it was one of conditional sale, (Gilbert v. National Cash Register Co., 176 Ill. 288,) and no rights of a bona fide purchaser or execution creditor having intervened there was nothing to prevent Nelson from asserting his title on the failure to comply with its conditions. Herbert v. Rhodes-Burford Furniture Co., 106 Ill. App. 583. His title therefore passed to Watson.

Watson having tendered to Smith all the rent and taxes that had accrued before Smith acquired title, and having kept his position good by tendering the next instalment of rent as it accrued, and Smith having abandoned his forcible entry and detainer proceedings and taken forcible possession of the property on the same being vacated by the receiver, the question arises whether Watson was entitled to the equitable relief sought.

Never having been in actual but only constructive possession of the premises, he was in no position to resort to the legal remedy of forcible entry and detainer. Thompson v. Sornberger, 59 Ill. 326; Whitehill v. Cooke, 140 Ill. App. 520. No default took place after Smith acquired title upon which he could declare a forfeiture, and as before stated none could be declared on default occurring before he acquired title, for which full compensation was tendered. Equity will grant relief against an attempt to declare a forfeiture where full compensation can be made. “Forfeitures are not regarded by courts with any special favor” (Palmer v. Ford, 70 Ill. 369) and courts of equity treat provisions for the forfeiture of leases for nonpayment of rent as intended merely as security for the payment of rent, and assume jurisdiction to relieve tenants from such a forfeiture upon the payment of all rent in arrears. 18 Amer. & Eng. Ency. of Law (2nd Ed.) 389; 2 Story’s Eq. Juris., secs. 1314-1316; Giles v. Austin, 62 N. Y. 486; Noyes v. Anderson, 124 N. Y. 175.

If, as we hold, the case is properly one of equity jurisdiction, there can be no question that the court had power to enter a mandatory injunction, enjoining Smith from interfering with, impeding or hindering the complainant in his rightful occupation of the building, under the circumstances set forth. Burrall v. American Telephone & Telegraph Co., 224 Ill. 266; Spalding v. Macomb & W. I. R. Co., 225 Ill. 585.

The demurrer was properly overruled and the decree will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    Assets Adjustment Company, Defendant in Error, v. Atkinson, Mentzer & Grover, Plaintiff in Error.
    Gen. No. 18,206.
    1. Municipal Court—default. In a fourth class action in the Municipal Court, where plaintiff has filed a statement of claim and defendant an affidavit of merits, it is error to enter judgment on the statement of claim as by default upon defendant’s failure to answer interrogatories filed by plaintiff within ten days, since the court has no such power as rule 9% attempts to confer.
    2. Municipal Court—roles. Section 20 of the Municipal Court Act does not give the court power to adopt a rule whereby a party’s pleadings may be stricken from the files and judgment entered by default upon his failure to comply with an order for the production of evidence.
    3. Constitutional law—due process of law. The constitutional guaranty of due process of law, without which no person may be deprived of his property requires inquiry before judgment, hearing before condemnation.
    4. Municipal Court—right to he heard on the issues. Where defendant puts a statement of claim at issue by an affidavit of defense he cannot be deprived of his right to be heard on the issues thus presented merely because of contumacy in disobeying an order that does not directly relate to such pleadings or the settlement of issues thereby raised.
    Error to the Municipal Court of Chicago; the Hon. Thomas P. Scully, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 9, 1913.

      Guerin, Gallagher & Barrett and James M. Gwin, for plaintiff in error.
    Julian C. Byer, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a ease of the fourth class in the Municipal Court in which, after plaintiff had filed its statement of claim and defendant its affidavit of merits, the latter was ruled, under section 32 of the Municipal Court Act, to answer within ten days interrogatories filed by the former. On failure to comply with said rule, the court entered judgment on plaintiff’s statement of claim as by default, and such action is assigned as error.

Defendant in error cites Buie 9% of said court in justification of. such proceeding. It provides that on default of defendant to comply with the rule to answer plaintiff’s interrogatories, the court may strike the affidavit of defense from the files and enter judgment on the statement of claim.

The record does not show that the affidavit of defense was stricken from the files. But, whether it was or not, in either case the same principle is involved as that discussed in Walter Cabinet Co. v. Russell, 250 Ill. 416. In that case Russell filed a set-off and obtained a rule on plaintiff to produce certain books. Plaintiff refusing to do so, its statement of claim was stricken from the files and judgment was entered on the set-off. In that case and this a party was denied a hearing on the merits of its case after the same was put at issue in the manner required by the statute and the rules of court, the only difference being that in the case at bar the proceeding was sanctioned by a rule of court. In the Russell case, supra, the court held that it was only where the statute expressly authorized such a proceeding that the court could strike a party’s pleadings from the files and enter judgment by default upon his failure to comply with an order for the production of evidence, and stated that our statute contains no such provisions.

But it is urged here that because the judges of the Municipal Court have the power, under section 20 of the Municipal Court Act, to adopt such rules regulating the practice in that court as they may deem necessary and expedient for the proper administration of justice therein, providing that no such rule shall be inconsistent with those specially provided for in the act, that the rule in question has the force of a statute.

The difficulty with the contention is that said rule is inconsistent with another provision of the act and ignores the substantive right of every litigant to have a judicial determination of his rights, when properly put in issue, by “inquiry before judgment, hearing before condemnation.” In the Russell case supra, the court said: “The constitutional guaranty of due process of law, without which no person may be deprived of his property, requires inquiry before judgment, hearing before condemnation. The contumacy of a party in disobeying the order of a court may justify his punishment for contempt, but not the deprivation of his civil rights or the taking of his property and giving it to another. The judgment here, though purporting to be a judicial determination of the rights of the parties, is, in fact, only an arbitrary declaration of the judge having no reference to such rights. * * # and it is a principle of fundamental justice that, however plenary may be the power to punish for contempt, no court, having obtained jurisdiction of a defendant, may refuse to allow him to answer, refuse to consider his evidence and condemn him without a hearing because he is in contempt of court.”

Section 40 of the Municipal Court Act provides that in cases of the fourth class “the Municipal court may adopt such rules and regulations as it may seem necessary to enable the parties, in advance of the trial, to ascertain the nature of the plaintiff’s claim or claims, or of defendant’s defense or defenses.” The act manifestly contemplates that the issues in a case shall be be presented in some form, and, in recognition thereof, the Municipal Court has passed rules under which a a defendant puts a statement of claim at issue by an affidavit of defense, and he cannot be deprived of his right to be heard on the issues thus presented merely because of contumacy in disobeying an order that does not directly relate to such pleadings or the settlement of issues thereby raised.

Under section 32 aforesaid, the court may unquestionably require an answer to proper interrogatories, but there is nothing in the act which gives the court the power on a failure to comply with a rule to answer them, to declare the contumacious party in default on the issues of the case. Without such power, to enter judgment merely for such default, would be, as said in the Russell case, supra, “an arbitrary declaration of the judge having no reference to the rights of the parties.” The court has no such power as Buie 9y2 attempts to confer, and the exercise of it in the case at bar was error, for which the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Floy Clarke, Appellant, v. Illinois Commercial Men’s Association, Appellee.
    Gen. No. 18.275.
    1. Iitstjbaitce—what by-law does not contravene Act of 189S, § 15. A by-law of a mutual accident insurance company doing business on the assessment plan, which provides that payment in case of accidental death would be made only in case such death resulted within 90 days after the accident, does not contravene any express provision of the Act of 1893, § 15, relating to what must appear in the policy of life and accident insurance companies.
    2. IirsTrBAiTCE—construction of policy. If there is any contradiction between the policy issued by a mutual accident insurance company and the by-laws the policy will govern.
    3. Insubance—what by-law not contradiction of policy. Where a policy of a mutual accident insurance company provides for payment in case of accidental death and that liability is subject to subsequent by-laws, a subsequent by-law is not a contradiction of the policy, but is a qualification thereof, where it provides that payment on account of accidental death shall only be made where death results within 90 days after the accident.
    4. Insubaxce—what by-law parsed after issuance of policy not unreasonable. Where a mutual accident insurance company, having power to change its by-laws and authorized by the Act of 1893, relating to life and accident insurance companies, to change the risks to be assumed and their duration, issues a policy providing for payment in case of accidental death and making its liability subject to by-laws subsequently passed, a subsequent by-law, providing that payment shall be made in case of accidental death only when such death results within 90 days after the accident, is within the contemplation of the parties and not inconsistent with the provisions of the policy nor unreasonable in character.
    Appeal from the Superior Court of Cook county; the Hon. William Eenimobe Coopeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Lewis, Folsom & Streeter, for appellant.
    James Maher, for appellee.
   Mr. Justice Barnes

delivered the opinion, of the court.

Appellee, a mutual accident insurance company doing business on the assessment plan and organized under the act in force July 1, 1893 (chap. 73, p. 1366, Hurd’s R. S. 1911) issued a policy to one Damon Clarke, which provided, among other contingencies, that in case of his accidental death the association would pay his wife, appellant, the sum of $5,000. It further provided that the liability to pay should be in accordance with and subject to the then existing by-laws, and “of any and all amendments, alterations and new issues of said by-laws,” that they should become a part of the policy as soon as adopted, and that by acceptance of the policy the member agreed to be bound by such by-laws.

Appellant brought suit to recover under said policy alleging that said Clarke died November 17, 1909, and that his death resulted from an accident happening June 14, 1909.

A plea to the declaration set up that at the time of the accident and the member’s death a by-law of the association was in force which provided that payment on account of death by accidental means would be made only in case such death resulted “within ninety days from and after the date of said accident,” and that the death of said Clarke did not occur within ninety days after the date of the alleged accident. A demurrer to the plea was overruled, and, plaintiff electing to stand by it, judgment was entered for defendant.

It is argued and urged by appellant that under the provisions of the statute the association had no power to make a by-law relieving it of liability in case the death did not occur within ninety days after the accident, first, because the statute requires the policy to state oh its face the contingency upon which the indemnity is payable, which in the policy in question is stated to be accidental death without the limitation prescribed by said by-law; and, second, because said by-law is inconsistent with the provisions of the policy.

Under the first contention our attention is directed to section 15 of said act. While it manifestly contemplates that promise of payment in a policy must necessarily state whether the contingency is one of death or physical disability, or both, and while it requires that it shall specify the sum of money promised to be paid under the contingency and the time in which it shall be paid after satisfactory proof of its happening, yet it contains no requirement as to what the policy shall specify respecting such contingency, nor any prohibition against the association placing reasonable limitations thereon. We, therefore, fail to see that the by-law contravenes any express provision of the statute respecting what must appear in the policy.

As to the contention of inconsistency, of course if there is any contradiction between the policy and the by-laws, the former will govern. But we think that the limitation, in question does not constitute a contradiction, but rather, a qualification and thus presents the question of the reasonableness of such bylaw.

The provision it makes is consistent with the right and duty of the association to protect itself and its members against unjust claims, and one that is the proper subject of a by-law, and within the scope of what may reasonably have been contemplated by the member’s agreement to be bound thereby. We are of the qpinion, therefore, that it does not change the essential terms of the contract, but merely states with greater particularity a contingency designated in the policy in general terms. In other words, while the member is insured against accidental death, the bylaw states when it shall not be deemed accidental.

The proximate cause of death, especially when it follows at a time somewhat remote from the accident to which it may be attributed, is often the subject of controversy and litigation. Provisions of different kinds, designed to remove or limit a controversy on that subject, are found sometimes in the policies and sometimes in by-laws. Doubtless, the bylaw in question had some such end in view.

Its reasonableness would seem to rest upon a theory that if death does not usually result from the injuries received from an accident within ninety days therefrom, it may be as reasonably ascribed to other causes prior or intervening. We cannot say that such a time limit is unreasonable. On the contrary, in view of the power of the association to make by-laws and under section 5 of the act to change from time to time “the risks to be assumed by such corporation and duration thereof,” and of the fact that the contract was expressly made with reference to such powers, we are of the opinion that the by-law was within the contemplation of the parties to the policy and not inconsistent with its provisions nor unreasonable in character.

In each of the cases relied on by appellant the bylaw was plainly in direct conflict with either the statute or the policy, in that it attempted to change the time of payment as designated in the policy, or attempted to limit the liability to a different sum from that specified in the policy, or the territory within which a suit to recover could be brought under the statute, or the assessments to a number that would not pay the amount contracted for in the policy. None of the cases apply to the question raised here. The judgment will be affirmed.

Affirmed.


text:
    Lena Spaar, Appellee, v. Peter Slakis, Appellant.
    Gen. No. 18,348.
    1. Tbover—when plaintiff not entitled, to immediate possession. A lessee executed a bill of sale of certain property to the lessor to secure the rent, quit business when owing rent, stated that she would pay no more rent and voluntarily delivered the keys of the premises where such property was also kept to the lessor. Held, that the delivery gave the lessor a right to possession of the property to enforce his security and the lessee could not maintain trover.
    2. Conversion—what act of lessor in refusing to receive rent not act of conversion of goods given to secure rent. Where a bill of sale of personalty was given by the lessee to the lessor to secure the rent for the term and the lessee quits business and surrenders the premises and the personalty while owing one month’s rent, refusal by the lessor to receive payment of the month’s rent, tendered soon after the surrender, and to turn over the personalty does not constitute a conversion since the property was given as security for the rent for the term.
    3. Conversion—what remark of defendant, not admission of value of goods nor proof of market value. In an action for conversion of goods sold by defendant to- plaintiff, proof of a remark at the time of the sale by defendant that “they were cheap” is not an admission of their value and is not evidence of their current market value.
    4. Conversion—proof of current market value of goods. In an action for conversion of goods, proof of their current market value is necessary.
    5. Landlord and tenant—what instruction misleading as to liability for rent after taking of possession by landlord after default. Where a bill of sale of goods is given by the lessee to the lessor to secure the rent and the lessee sues the lessor for conversion of such goods, an instruction is inapplicable and is misleading which states that if from the evidence the lessee was a tenant of the lessor and while he was such tenant the lessor took possession of the premises the lessee is not liable for rent after such taking of possession, when the testimony shows that possession was voluntarily surrendered after default.
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed May 9, 1913.
    Rehearing denied May 27, 1913.

      Martin C. Koebel, for appellant; Edward A. Mechling and Hayden N. Bell, of counsel.
    B. M. Shaffner, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an action of trover tried before the court and jury upon the general issue of not guilty. The verdict and judgment were for $354.38.

On September 5, 1911, defendant executed a lease to plaintiff and one Anna Immerman (whose interest, if any, it is unnecessary to consider) of a store-room to be used by the lessees for a nickel theatre, and at the same time sold plaintiff certain personal property, therein used in connection with such purpose, for the sum of $350. At the same time the lessees executed a bill of sale of said personal property to defendant, as expressly provided for in said lease, to secure the rent. The lease ran for three years from September 11, 1911, and the rent was payable in monthly instalments of $35 in advance on the 11th of each month. The instalments due September 11th and October 11th were paid.

On November 13th, plaintiff ceased to do business, with the intention of returning to her home in Wisconsin. Defendant, learning of it, went to the place with a police officer and found her moving a picture machine out of the building. He told her she had no right to take goods from the place. She asked if she could take the goods that belonged to her, which was assented to, and at his request gave him the keys to the place, and said she would pay no more rent and had “closed for good.” She testified that on that day she quit business her operator told her she might as well take her things and go home; that she was doing so when the defendant and the policeman came, and that she gave defendant the keys on the sidewalk. There was no proof of duress, and the evidence tends to show that she voluntarily surrendered possession of the property to defendant. This suit for conversion of the same was brought one month later, but what was done with the property in the meantime, whether defendant still retained it in his possession, or had taken steps to foreclose his lien thereon, does not appear. Two or three days later they attempted to negotiate a settlement on the basis of a release of the lessees from further liability under the lease, and of their claim to the personal property described in the bill of sale, but the transactions were not consummated. The voluntary delivery of the keys under the circumstances gave defendant a right to possession of the personal property for the purpose of enforcing his security for the rent then due. His possession thereof was lawful and plaintiff had no right to immediate possession of the same, which was essential to her cause of action. (Forth v. Pursley, 82 Ill. 152.)

A few days after the surrender of the possession of the premises and property as aforesaid, plaintiff tendered defendant one month’s rent. But his refusal to receive it under such circumstances would not, in view of the fact that the property was given as security for rent that might accrue during the remainder of the term from liability for which she had not been released, constitute an act of conversion.

Nor did the evidence of the value of the property warrant a verdict. It consisted of proof of what plaintiff paid defendant for the goods, and the latter’s remark at the time that “they were cheap.” This could hardly be deemed an admission of their value, and certainly was not evidence of their current market value which is necessary in an action of this kind. Sturges v. Keith, 57 Ill. 451; Robinson v. Alexander, 141 Ill. App. 192.

One of the instructions given to the jury told the jury that if they believed from the evidence that plaintiff was a tenant of defendant and that while such, defendant entered the leased premises and took possession thereof, then plaintiff is not liable for rent after such taking of possession and ousting of plaintiff. In view of the testimony showing that the possession was voluntarily surrendered after a default, this instruction had no application to the issues, and was misleading.

The judgment will be reversed.

Reversed.


text:
    Andreas Kressman, Executor, Appellee, v. Charles J. L. Kressman, Appellant.
    Gen. No. 18,397.
    ; 1. . Evidence—testimony of defendant as to memorandum of transactions. In an action by an executor to recover a balance claimed to be due on a note given by defendant to deceased, the testimony of defendant that a note book he had offered in evidence containing only a series of dates and amounts represented transactions with deceased is inadmissible.
    2. Evidence—checlcs made payable to currency. In an action by an executor on a note given by defendant to deceased, checks of the defendant, offered in evidence, made payable to currency and bearing no endorsements of deceased are properly refused and the testimony of defendant that they represented payments made to deceased is inadmissible.
    Appeal from the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding. Heard in the Branch Appellate Court .at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Rehearing denied May 27, 1913.
    James N. Tilton, for appellant.
    Nathaniel A. Stern, Menz I. Rosenbaum and Louis M. Cahn, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a suit by an executor to recover a balance claimed to be due on a note given by defendant to the deceased. The defense was that it had been paid by defendant to the deceased in his life time. In support thereof defendant was permitted to offer in evidence an alleged memorandum book containing what he claimed were items of his account with deceased. It contained no accounts or transactions with anybody else, and none that purported therein to be transactions with deceased. It consisted merely of. a series of dates and amounts in dollars, but nothing to indicate that they represented any particular transactions. To show that they did required parol evidence, and, therefore, of itself the memorandum had no probative value. Defendant took the witness stand and offered to testify that they represented transactions with deceased. No proof except the note having been offered on behalf of the executor, the court properly held that the statute renders such evidence incompetent. On the same ground the court properly refused to receive in evidence checks of the defendant, made payable to currency, bearing no endorsements of deceased, and also to permit defendant to testify that they represented payments made to deceased. The judgment will be affirmed.

Affirmed.


text:
    Gertrude Carroll, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,407.
    1. Carriers—general issue. Where defendant street railway company pleads the general issue, plaintiff is required to prove her allegations that she was a passenger and that defendant was negligent in suddenly starting its car.
    2. Instructions—which direct a verdict. Where an instruction directs a verdict against defendant if the jury find certain facts, it should include all the elements of the cause of action that the declaration makes essential to recovery.
    3. Carriers—instructions assuming facts. Where defendant street railway company pleads the general issue, instructions which assume that plaintiff was a passenger are erroneous.
    4. Evidence-—where failure of proof does not constitute admission. In a personal injury action, where defendant, claiming to have had no knowledge or notice of the case until suit was instituted, pleads the general issue and in its defense proceeds to question the claim of negligence and the relationship of carrier and passenger, a failure to disprove either directly does not constitute an admission.
    5. Carriers—questions of fact. In a personal injury action, questions of fact as to the relationship of plaintiff and defendant and as to negligence of defendant are to be determined by the jury without any intimation or assumption in the instructions as to the proper conclusion.
    6. Carriers—where instructions assume facts. In a personal injury action, an instruction which assumes that merely being on a street car creates the relationship of passenger and carrier and assumes that plaintiff was on the car is erroneous.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 9, 1913.
    B. F. Richolson and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    McMahon & Cheney and E. C. Reniff, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Appellee recovered a judgment for injuries which she claimed and alleged in her declaration were received by the sudden and negligent starting of a car operated and controlled by appellant while she was alighting therefrom.

The declaration contained one count and alleged that she was riding as a passenger upon said car, and that it was stopped at a street intersection to permit her to alight; whereas it appears from her own testimony that when the car reached the intersection she stepped from the street to its platform and inquired whether it would take her to 12th street, and learning it would not, immediately alighted therefrom. We need not consider, however, appellant’s contention that the proof fails to support the declaration, or whether the gist of the action is the same whether plaintiff was alighting from a car on which she had been riding or from one under the circumstances she testified to, for error in giving certain instructions requires that the case be remanded for a new trial.

The case is one designated by appellant as a “blind” case, that is, one of which it claims to have had no knowledge or notice prior to the institution of the suit, and therefore one which it was unable to meet with direct proof. Its plea of general issue, however, required plaintiff to prove each essential element of her cause of action and, therefore, that she was a passenger and that the defendant was negligent in suddenly starting the car. Neither fact was admitted and each was for the jury to determine under proper instructions of the court. Two of the instructions given at the request of plaintiff read as follows:

“6. The jury are instructed that it is the duty of the defendant in this case to use the highest degree of care and caution reasonably consistent with the practical operation of its road, to prevent injury to its- passengers, and if the jury find from the evidence that the employes of the defendant failed to exercise such degree of care while the plaintiff was alig’hting from its car, and as a result of such failure the plaintiff was injured, then your verdict should he for the plaintiff, provided you also find from the evidence that the plaintiff at the time she was injured was in the exercise of ordinary care for her own safety.
7. The jury are instructed that if you find from the evidence that the plaintiff was on a car of the defendant and that an employe of the defendant caused the car to start while she was in the act of alighting therefrom and thereby she was thrown to the ground and was injured; and if you further find from the evidence that such employe of the defendant knew or by the exercise of reasonable care and diligence could have known that the' plaintiff was in the act of alighting from said car when he caused the same to start, and if you further find from the evidence that the plaintiff, while she was alighting from the car, was in the exercise of ordinary care for her own safety, then you should find the defendant guilty.”

In each of these instructions the court assumes as a fact that plaintiff was a passenger. While defendant could not, under the circumstances, prove directly that she was not, or that there was no such accident, the theory on which its defense proceeded was to question the claim of negligence and the relationship of carrier and passenger, and a failure to disprove either directly did not constitute an admission of it. The existence of either as a fact was for the jury to determine without an intimation or assumption in the instructions as to the proper conclusion. Illinois Cent. R. Co. v. Johnson, 221 Ill. 42. Each of the instructions directed a verdict against the defendant if the jury found certain facts and, therefore, should have included all that the declaration made essential elements of the cause of action. Mooney v. City of Chicago, 239 Ill. 414; Ratner v. Chicago City Ry. Co., 233 Ill. 169; Swiercz v. Illinois Steel Co., 231 Ill. 456. One of these elements was the existence of such relationship, and another the fact of negligence. In both instructions the former is omitted. They authorize a verdict against defendant whether plaintiff was a passenger or not. Both assume that merely being on the car created such relationship, and No. 6 assumes as a fact that she was on the car.

In instruction No. 7 the jury was not expressly required to find that defendant was negligent, but were told that if plaintiff was on the car (whether as a passenger or not) and while alighting therefrom was thrown to the ground by defendant’s employe causing the car to start (whether started suddenly as alleged in the declaration or not), then if she was exercising ordinary care for her own safety and the employe knew or had notice of her alighting, the defendant was guilty. In Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658, a similar instruction, which expressly required, what No. 7 omits, that the jury find as facts the relation of passenger and the sudden starting of the car, was nevertheless held erroneous because the acts of defendant mentioned in the instruction did not necessarily constitute negligence.

In a later case, Crauf v. Chicago City Ry. Co., 235 Ill. 262, which was distinguished from the Dinsmore ease, supra as to the facts, a similar instruction was upheld on the theory that the facts it required to be found constituted negligence at law because it was the duty of the carrier not to start its car until the passenger had an opportunity to alight therefrom in safety. In both cases, however, the plaintiff was alighting from a car on which she had been riding as a passenger, and her relation as such does not appear, as in the case at bar, to have been questioned. If it were an uncontroverted question whether appellee sustained such relation, the Crauf case, supra, might apply. But if she was not a passenger, it did not follow as a matter of law, defendant not then being held to the highest degree of care, that, upon the facts stated in the instruction, appellant was necessarily liable. As such relation was a controverted fact, we think both instructions were erroneous in assuming its existence. The judgment will be reversed and the cause remanded for a new trial.

Reversed and remanded.


text:
    Therese C. Stadler, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,411.
    1. Evidence—when error to admit testimony as to prior accidents at the same place. In a personal injury action, where the car in which plaintiff was riding was derailed and the negligence alleged is the running of the car at too great speed while taking a curve, it is error to admit evidence of similar accidents at the same place.
    2. Evidence—of similar accidents. Evidence of other accidents occurring from the same cause is competent where the accident depends on a physical defect, like careless or negligent construction, of which previous accidents from the same cause would serve to give notice.
    3. Appeals and errors—former trial. The fact that defendant’s negligence was conceded at a previous trial cannot he considered on appeal where the record shows that in the trial appealed from it was put in issue by the pleadings and not conceded.
    4. Appeals and errors—when judgment reversed. A judgment for $5,000 where there is a conflict as to the extent and cause of plaintiff’s injuries and evidence tending to show that they were equally attributable to prior operations and other accidents experienced by plaintiff will be reversed when evidence is erroneously received calculated to create prejudice and induce the jury to give punitive damages.
    5. Appeals and errors—when judgment cannot he cured hy remittitur. Where prejudicial evidence, having a tendency to affect the judgment, is admitted the judgment must be reversed and remanded since the error cannot be cured by a remittitur.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed May 9, 1913.
    Rehearing denied May 27, 1913.

      Franklin B. Hussey and C. Le Roy Brown, for appellant; Leonard A. Busby, of counsel.
    Edward Maher and H. E. Wynekoop, for appellee; Morse Ives, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an action brought to recover for personal injuries. The only assignment of error we need consider is whether there was error in the admission of evidence of similar accidents at the same place where plaintiff alleges she was injured. At that point the car tracks curved to and continued on an intersecting street. As the car on which appellee was riding started on the curve, it left the tracks.

The negligence charged in the declaration was that defendant “so carelessly and negligently managed, operated and ran” the car on which plaintiff was riding, that it jumped, ran and left the tracks, and thereby the plaintiff was thrown, etc., and injured. There was no allegation or proof of negligence resulting from any defective condition of the car or tracks.

The negligence relied upon, and which the evidence tended to establish, was the running of the car at too great speed while taking the curve. The accident occurred on a dark night at a place where there were no street lights, and there was evidence tending to show that the motorman did not know that he had reached the curve, and for that reason probably had failed to regulate properly the speed of the car while taking it. Whether, therefore, the car was negligently driven at too great speed in taking the curve was the real question and ultimate fact the jury had to determine.

But one of plaintiff’s witnesses was permitted to testify over objection that he had previously observed two other cars leave the rails at the same curve under similar conditions as to tracks, cars, speed and time. That evidence of other accidents, occurring from the same cause, may be competent has been held in this and other states. City of Bloomington v. Legg, 151 Ill. 9, and cases there cited. But in most of the cases in which the question has arisen, the action was against a municipality and involved the element of notice; and all that we have examined involved a dangerous physical defect of which such prior accidents served to give notice. It was said in Mobile & O. R. Co. v. Vallowe, 214 Ill. 124, that the legitimate purpose of such evidence is to give notice. But here no question of notice was in issue. The primary instrument or agency causing the accident in question" was not a physical one nor claimed to be such, but the failure of the motorman to exercise due care in regulating the speed of the car while taking the curve. Where an accident depends not on a physical defect, like careless or negligent construction of which previous accidents from the same cause would serve to give notice, but on the failure of a particular individual to exercise due care, of which no one in the nature of things can have notice, especially from the conduct of another individual on another occasion, it is manifest that the theory of notice has no application. Even though the prior accidents resulted from careless driving of other motormen, yet they had no tendency to show that the motorman who drove the car in question was negligent.

But it is urged that in a former trial of this case defendant’s negligence was conceded. Even were that so, we are limited to the consideration of the present record which shows it was put in issue by the pleadings and not conceded at the trial.

But the effect of such testimony was not limited to the question of negligence. If it were, we might deem it harmless in view of the fact that the record discloses no other cause of the accident. But it was otherwise prejudicial. Evidence of what purported to be repeated negligence at the same place, was calculated to create prejudice and induce the jury to give punitive damages. They were not instructed as to its probative value or application, and it is not at all improbable, as contended, that it produced such effect. Their verdict was for $5,000 in a case in which there was not only a serious conflict as to the extent and cause of plaintiff’s injuries, but evidence tending to show that they were equally attributable to prior operations and other accidents experienced by her. If, as we think, the evidence had a tendency to affect the judgment of the jury as to the amount of damages to be assessed, it was error to admit it and it cannot be cured by requiring a remittitur. Lauth v. Chicago Union Traction Co., 244 Ill. 244. The judgment will, therefore, be reversed and the cause remanded for a new trial.

Reversed and remanded.


author: Mr. Justice F. A. Smith

text:
    A. C. Badger Advertising Company, Defendant in Error, v. United States Music Company, Plaintiff in Error.
    Gen. No. 18,103.
    1. Contracts—consideration. An agreement to cancel a contract upon the payment in the future of an amount already due, is without consideration.
    2. Appeals and errors—when proper to direct a verdict. In an action for the amount due on a contract, where the evidence produced would not warrant the jury in finding the contract was canceled as claimed by defendant, it is proper to direct a verdict for plaintiff.
    Error to the Municipal Court of Chicago; the Hon. William N. Gbmmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.

      Adams; Bobb & Adams, for plaintiff in error; G. L. Wire, of counsel.
    Jarrell & McNeil, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Plaintiff below, defendant in error here, had judgment in the trial court on a directed verdict against the defendant below, plaintiff in error here, for $112.-50, for an amount due on a certain advertising contract.

The main controversy on the trial relates to the question whether the contract was abrogated in December, 1910, by an agreement of the parties. The testimony offered by the defendant bearing upon this issue was that of Friestedt who testified to an interview with A. C. Badger, representing the plaintiff company, on December 19, 1910, in which Badger asked for a payment of the October account under the contract, which was delinquent. The witness stated that he told Badger that he would give him a check for the account, but before giving him a check, he wanted to know what the situation was with regard to the space on the American Music Hall curtain; that he wanted to terminate and cancel the agreement; that Badger said he would make out a bill to December 24th, which was in advance, and, upon receipt of the check for that amount, would cancel the contract, and that the witness agreed to that arrangement. The testimony of the witness is denied by Badger. The evidence shows that the plaintiff rendered a statement dated December 20,1910, and there was offered in evidence a check of the defendant dated December 31, which the witness says was sent in payment of the invoice. It appears from the endorsements on the check that it was paid' on January 6, 1911. There is no controversy in the evidence but that the amount was due in advance according to the contract on the first day of December. It was not therefore an advance payment.

There is also evidence showing correspondence between the parties relating to the desire of the defendant to cancel the contract, and the evidence shows that a telephone conversation was had between the parties subsequent to the delivery of the check.

Upon a review of all the evidence bearing upon the question of the cancellation of the contract, we are of the opinion that there was no agreement shown .by which the contract was canceled. The agreement testified to by Friestedt for the cancellation of the agreement in the future upon the payment of $50 before a certain date was of no legal effect for the reason that there was no consideration for the. cancellation of the agreement in the future. The money promised to be paid was already due and owing. There is no question but that the parties had the right by mutual agreement to terminate the existing executory contract between them. But this was not done. The alleged agreement was to pay a sum of money in the future, which was already due, on the one hand and to cancel the contract on the other; but this agreement was not performed.

The jury would not have been warranted in finding that the contract was canceled at any time upon the evidence produced. The court, therefore, did not err in directing a verdict for the plaintiff. Offutt v. World’s Columbian Exposition, 175 Ill. 472.

The judgment is supported by the. evidence and is affirmed.

Affirmed.


text:
    Ernst Behnke, Plaintiff in Error, v. Turn Verein Einigkeit, Defendant in Error.
    Gen. No. 18,159.
    1. Municipal Court—statement of facts. A statement of facts is presented within the time required by section 23 of the Municipal Court Act where final judgment is entered November 11, the statement is presented for approval December 9, and in the following March the court on motion orders the statement filed nunc pro tunc as of December 9.
    2. Contracts—when custom as to vacation for teacher enters into contract. Where a teacher is employed from year to year at a fixed salary per month and it appears that by custom the months of July and August are vacation months for which full salary is paid without any attempt to control the time of the teacher, such custom becomes a part of the contract.
    3. Contracts—when teacher entitled to salary during vacation months. Where a teacher was employed from year to year at a fixed salary per month under a contract whereby by custom July and August were vacation months during which he might use his time as he saw fit, and his employer accepted his resignation tendered to take effect September 1, he is entitled to his salary for July and August, when he performed all the services required from the time of the tender to September 1, though he was employed by a third person during July and August.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and judgment here.
    Opinion filed May 9, 1913.
    Leopold Saltiel and Meyer Rossen, for plaintiff in error.
    Rost & Smith, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An action of the fourth class was commenced in the Municipal Court of Chicago by Ernst Behnke, plaintiff in error, hereinafter called plaintiff, against the Turn Yerein Einigkeit, defendant in error, hereinafter called defendant, to recover the sum of $170 for salary due him as teacher of physical culture during- the months of July and August, 1911. On the trial before the court without a jury, the court found for the defendant and judgment was entered on the finding.

It is urged by the defendant that the plaintiff has no standing in this court for the reason that the, statement of facts with the questions of law involved was not filed and approved within the statutory period for filing and signing same.

The abstract of record shows that final judgment against plaintiff was entered November 11, 1911, and that the statement of facts was presented to the judge for approval December 9, 1911, and that subsequently, on the fifth day of March, 1912, on motion for approval of statement of facts presented, the court sustained the motion and ordered that the statement of facts be filed nunc pro tunc as of the ninth day of December, 1911. In our opinion the statement of facts was presented within the time allowed by law, and the cause is properly before this court for review upon its merits.

The evidence shows that in August, 1903, plaintiff was employed as a teacher of physical culture by the defendant, a corporation not for pecuniary profit. The only written evidence of the employment was a part of the minutes of the defendant society, which reads as follows:

“There were numerous motions in regard to hiring a turning teacher and lastly a motion was made and carried that Teacher Behnke be appointed for one year, with the privilege of three months’ trial, and should he not he satisfactory to this Society during the trial period, the Society has the privilege to discharge him.”

From that date, August, 1903, the plaintiff continued in the services of the defendant as teacher until April, 1911, when he tendered his resignation to the defendant to take effect September 1st of that year. His resignation as tendered was accepted. The school year of the defendant was divided into two terms,—the first term covering the months of September, October, November, December and January, the second term, February, March, April, May and June. The evidence fairly shows that the months of July and August of each year were vacation months during which time the training teacher gave no instruction and had no duties to perform. The classes were closed about the 26th day of June, 1911. After that date, plaintiff was not called upon during his employment for instruction, and during July and August in each year he was at liberty to occupy his time as he chose.

On June 26, 1911, the plaintiff was employed by the West Park Board as a gymnastic instructor and received salary from the Board commencing on that date. The defendant refused to pay the plaintiff for the months of July and August upon the ground that he performed no work for the defendant during those months, and that he was in the employ of the West Park Board and received a salary from that Board. The sole question in the case is thus presented as to whether plaintiff is entitled to his salary for the months of July and August, 1911.

It is clear, in our opinion, from the evidence that the months of July and August in each year were vacation months, and that the custom existing in relation thereto entered into and became part of the contract between the parties. Under this custom, the defendant paid the full salary during the actual vacations in July and August of each year without any attempt to control the time of the plaintiff or in any way interfere with or restrict him during the vacation periods. The inference under the evidence is clear that he was at liberty to employ his vacation time as he saw fit, and he might he otherwise employed during Ms vacations; hence, his employment by the West Park Board and his performance of duties as physical instructor there during July and August, 1911, were not in violation of his contract with the defendant. University of Illinois v. Bruner, 175 Ill. 307. The defendant, under the contract, could not require of the plaintiff service during the vacation period. The defendant recognized the. employment of the plaintiff during the months in question by accepting Ms resignation to take effect September 1st. The employment was from year to year. His salary as teacher was at the rate of $85 per month at the time his resignation was tendered and accepted.

In our opinion the tender of the resignation and its acceptance was an admission of the continuance of the employment until September 1st, and the proof shows that he performed all the services required of him from the time' the resignation was tendered until September 1st. He is therefore entitled to his salary for the months of July and August, amounting-to $170.

The judgment of the court below was erroneous and is reversed with a finding of fact, and judgment will be entered here for $170.

Reversed and judgment here.


text:
    Margaretha Pauler, Appellee, v. Franz Pauler, Appellant.
    Gen. No. 18,171.

      Divorce—cruelty. Evidence in proceedings for a divorce, held to ' sustain the allegations of extreme and repeated cruelty and the findings of the decree granting a divorce.
    Appeal from the Circuit Court of Cook county; the Hon. Adelor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.

      Caswell & Healy, for appellant.
    Johh Lace, for appellee; Ode L. Bahkih, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal is prosecuted from a decree granting appellee a divorce from appellant for extreme and repeated cruelty. The main contention of appellant is that the evidence does not sustain the averments of the bill. Upon an examination of the evidence we are of the opinion that the evidence sustains the bill and the findings of the decree. No useful purpose would be subserved by restating the evidence on the charges of cruelty contained in the bill and we, therefore, omit any detailed discussion of it.

The evidence does not show condonation of the acts of physical cruelty constituting the body of the charge. Sharp v. Sharp, 116 Ill. 509.

The decree is affirmed.

Affirmed.


text:
    Gustave Horn, Defendant in Error, v. Michael Zimmer, Sheriff, Plaintiff in Error.
    Gen. No. 18,187.
    1. Replevin&emdash;when cannot he maintained. Plaintiff cannot maintain a replevin action for certain saloon property where it appears that the property belonged to his brother for whom he was managing the saloon.
    2. Replevin&emdash;when admission of evidence as to damages for the taking and holding of property under execution is error. Where plaintiff cannot maintain a replevin action instituted against a sheriff for certain property taken under an execution, he has no claim for damages for the taking and holding of the property under the execution and the admission of evidence as to damages is error.

      Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of fact.
    Opinion filed May 9, 1913.
    Thomas J. Young, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before this court for review a judgment in a replevin suit in favor of the plaintiff below, defendant in error, Gustave Horn, against plaintiff in error as sheriff, who had .levied an execution issued in a certain suit of Fortune Bros. Brewing Company v. Adam Maurer and Eliza Maurer on certain saloon property.

The plaintiff’s evidence did not show or tend to show that the plaintiff had any right, title, special property, interest, or right of possession in the property levied oh, and the trial court should have sustained the defendant’s motion to dismiss at the close of plaintiff’s case. The plaintiff’s testimony shows that the property belonged to his brother William Horn, and that the plaintiff was managing the saloon as agent for him. The plaintiff therefore had no right to institute and maintain the action of replevin. Pease v. Ditto, 185 Ill. 317, 189 Ill. 456; Cobbey on Replevin (2nd) Sec. 150. This being so the plaintiff had no right or claim for damages against plaintiff in error for taking and holding the property under the execution, and the admission of evidence as to damages was erroneous. '

The judgment is reversed with a finding of fact.

Reversed with finding of fact.


text:
    Samuel B. Kahn, Defendant in Error, v. Fred E. McCready, Plaintiff in Error.
    Gen. No. 18,230.
    1. Principal and agent—actions for compensation. In an action by a salesman for commissions, when it is undisputed that he took orders and that the memoranda thereof were delivered to defendant, the burden of proving non-delivery of the goods and the irresponsibility of the customers is on the principal.
    2. Evidence—presumptions. In an action by a salesman for commissions, it will be presumed that a customer secured by such salesman is responsible, in the absence of evidence to the contrary.
    3. Principal and agent—when salesman entitled to commissions. Where plaintiff, a salesman for defendant, who is not a manufacturer, is by agreement entitled to commissions on delivery of the goods, he is entitled to his commissions when he has procured customers ready and willing to purchase on the terms fixed by defendant and the refusal or inability of defendant to complete the contract does not affect plaintiff’s right.
    Error to the ¡Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    George R. Harbaugh, for plaintiff in error.
    B. M. Shaffher, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Samuel B. Kahn, defendant in error, hereinafter called the plaintiff, recovered a judgment against Fred E. McCready, plaintiff in error, hereinafter called the defendant, in the Municipal Court of Chicago for $244.24 for commissions on sales of furniture on account of the latter by the former.

The questions involved in this case are questions of fact. The evidence shows that the defendant was in the commission furniture business and employed the plaintiff to sell, on commission, lines carried by the defendant. The plaintiff was entitled to receive commissions when goods were delivered. The defendant was not a manufacturer. The orders taken for furniture by the plaintiff were delivered to defendant during December, 1910, and January, February, March and April, 1911, and memoranda were made of -such orders by the plaintiff at the time they were received. These original memoranda were offered and received in evidence. The record shows in detail the amount of sales of the various kinds of furniture and the amounts due thereon according to the contract for commissions. No definite or substantial defense was offered to the claim of the plaintiff. The defendant testified that he could not say whether or not the items mentioned in plaintiff’s memoranda had been delivered. He claimed that in August, 1911, an agreement to settle was made for the sum of $71.27,- as due from the defendant to the plaintiff, but that the plaintiff thereafter repudiated the agreement. He further testified that he had no memoranda with him in court to show the delivery or non-delivery of the goods; that he had no list of the orders in plaintiff’s memoranda which had not been delivered. He offered in evidence orders taken by the plaintiff for furniture known as “Lee line,” which the defendant swore he could not déliver because he had not the goods. He also testified that he had knowledge of the non-delivery of three items only in plaintiff’s memoranda, commissions on which amounted to $18.08, and which sum the court deducted from plaintiff’s claim.

The evidence of the plaintiff was to the effect that the reason that no deliveries of the “Lee line” orders were made was because the defendant could not make deliveries, and that he never had a settlement with the defendant and did not check up the amounts with him at any time. This is the substance' of the evidence offered on both sides of the case on the trial.

In our opinion the evidence sustains the judgment rendered by the trial court. There was no dispute as to the taking of the orders and delivery of the memoranda thereof to the defendant. The burden of showing non-delivery, the irresponsibility of customers, etc., is on the principal, and the burden is not- on the broker to establish the responsibility in the first instance. No evidence on this point was offered by either side. In the absence of evidence to the contrary, the customer will be presumed to be responsible. i Amer. & Eng. Ency. of Law, 975. In our opinion the plaintiff was entitled to his commission upon negotiation of the sale of the property when he had procured a customer ready and willing to purchase the property on the terms fixed by the principal, and that the refusal or inability of the defendant in this case, to complete the contract does not affect the right of the plaintiff to his commission.

The judgment is affirmed.

Affirmed.


text:
    Waters-Clark Lumber Company, Defendant in Error, v. Grus lumber Company, Plaintiff in Error.
    Gen. No. 18,254.
    1. Sales—switching charges. In an action to recover a balance due for lumber, where defendant telephoned the order to plaintiff’s agent who made out an order in which he specified the lumber was to be shipped at regular terms, defendant is entitled to a set-off for switching charges where the evidence shows it was customary in previous dealings for plaintiff to deliver the material.
    2. Sales—storage charges pending settlement of controversy. Where defendant has purchased lumber from plaintiff, and a dispute arises, defendant who keeps the lumber pending the controversy is not entitled to set-off storage charges.
    3. ' Sales—handling lumber for inspection. Where defendant has purchased lumber from plaintiff, and a dispute arises as to whether it conforms to the grade ordered, defendant is not entitled to a set-off for handling the lumber when it is inspected.

      Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with judgment on appeal.
    Opinion filed May 9, 1913.
    Louis W. Mack, for plaintiff in error.
    Albert H. Fry, for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The Waters-Clark Lumber Company, a corporation, defendant in error, brought suit against the Grus Lumber Company to recover a balance of a bill for lumber sold in January, 1911, to the Grus Lumber Company. The defendant in error filed its statement of claim, showing a balance due it from the Grus Lumber Company of $70.23, after deducting all just credits. The plaintiff in error filed its affidavit of merits, admitting the indebtedness, and filed a set-off against the claim as follows: For switching charges, $13.75; for storage charges, $10; for labor in handling the lumber, $5, amounting in all to $28.75. The case was tried before the court without a jury and there was a finding and judgment in favor of tiie plaintiff for $70.23.

On the trial no question was raised about the lumber, nor was there any question about the prices. The entire controversy turned upon the set-off claimed by the defendant, plaintiff in error.

The order for the lumber was telephoned to the agent of the Waters-Clark Lumber Company in Chicago. The agent made out an order to the Waters-Clark Lumber Company dated February 15, 1911, in which he specified that the lumber was to be shipped to the Grus Lumber Company, Edgewater, Illinois, at regular terms, care of C. M. & St. P. Ry. Co. It appears that the yards of the Grus Lumber Company are on a public switch-track of the C. M. & St. P. Ry. Co. at its station called Edgewater, which is in the northern part of the city of Chicago. The lumber came into Chicago on the Chicago & Northwestern Bailway, and was switched to Edgewater by the C. M. & St. P. By. Co. The switching charges were $13.75, which the defendant, plaintiff in error, paid. This is one of the items of set-off, and the question is whether the plaintiff in error or the defendant in error should pay this charge. The order specifies Edgewater as the point of shipment. The custom during previous dealings between the same parties was to deliver the material to the plaintiff in error at Edgewater. In our opinion, the defendant in error should pay this charge.

There was a controversy over the quality of the lumber when it arrived at plaintiff in error’s yard in Edgewater. It was found that a part of the lumber did not meet the requirements of the order. Pending the settlement of this controversy, the lumber remained in plaintiff in error’s yard about three months. This is the basis of the storage charge of $10. There is evidence in the record that it was customary, where there was a dispute with reference to lumber among lumbermen, that the settlement arrived at would be considered a complete settlement, and that no charges for storage and other expense should be added. In our opinion, the plaintiff in error is not entitled to an allowance for this charge. We are of the opinion that the charge of $5 for handling the lumber at the time that an inspector visited the yard of the plaintiff in error to inspect the lumber and determine whether it conformed to the grade of lumber ordered, should not be allowed to the plaintiff in error upon the evidence in the case.

The judgment is, therefore, reversed and judgment will be entered here for $56.48 in favor of the WatersCIark Lumber Company,' defendant in error, and against the Giras Lumber Company, plaintiff in error, upon a finding of fact, each party to pay its own costs.

Reversed and judgment here.


text:
    Julius Barnes and Julius Barnes, Jr., Trading as Julius Barnes & Co., Defendants in Error, v. Independent Peerless Pattern Company, Plaintiff in Error.
    Gen. No. 18,271.
    1. Contracts—construction. An ambiguity or uncertainty in the meaning of the terms of a contract is construed against the party employing them.
    2. Contracts—providing for return of patterns. In an action to recover the surrender value of certain patterns, returned by plaintiff to the defendant, a provision in the contract providing that defendant should pay for all patterns “returned in good salable condition” will be held to apply to the external physical condition of the patterns and not to include only patterns retained by defendant in its semi-annual list as live patterns.
    Error to the Municipal Court of Chicago; the Hon. Thomas P. Schlly, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Colson & Johnson, for plaintiff in error.
    Bowersock & Stilwell, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

An action was brought by defendants in error, hereinafter called plaintiffs, against the plaintiff in error, hereinafter called defendant, to recover the surrender value of certain patterns that were returned to the defendant by the plaintiffs under and by virtue of a written contract entered into between the parties April 1, 1907. Judgment was rendered for $103.03 for the plaintiffs.

By the contract the defendant agreed, among other things, to supply the plaintiffs with Peerless patterns at half their retail prices, and Peerless fashion guides and catalogues at certain prices set forth in the contract. The defendant, by the contract, further agreed to receive from the plaintiffs in the months of January or February and in July or August any patterns purchased under the agreement which were discarded and recalled by the defendant in exchange at even rates for other patterns to be shipped thereafter. The plaintiffs, on their part, agreed to purchase from the defendant and keep on hand a stock of Peerless patterns amounting to $300 at the above quoted wholesale prices, and agreed further that a balance of $150, part of the purchase price of the patterns, should stand unpaid on the books of the defendant to bear interest at the rate of 3 per cent, per annum, and to become due and payable at the termination of the agreement. The plaintiffs further agreed to return any patterns discarded for exchange direct to the general office of the defendant in New York.

The concluding paragraph of the contract was as follows:

“Both parties agree that there are no verbal understandings to conflict with the terms of this agreement and that it shall remain in operation for a term of three years from date of first shipment hereunder and from term to term thereafter, unless either party shall give notice to cancel, in writing, within thirty days after the expiration of any term. If such notice is given it is further mutually agreed that the business shall continue in full operation for three months thereafter and that the merchant shall then return to the manufacturer in New York City, all patterns on hand, supplied under this agreement and, all obligations hereunder having been complied with by the merchant, the manufacturer shall pay within thirty days after delivery, for all patterns in good salable condition ninety per cent, of the wholesale price charged for same. ’ ’

Plaintiffs set forth in their statement of claim that they returned at the termination of the contract 5,303 patterns for which they claimed credit under the contract, after allowing proper credit to defendant for the standing credit, of $150 and all other counterclaims, the sum of $103.03. The defense as set forth by the affidavit of merits filed by the defendant, is that according to the terms of the contract plaintiffs were entitled to be paid for patterns returned in good salable condition; that plaintiffs returned but 2,983 patterns in good salable condition, and' are indebted to defendant for a standing credit of $150 with interest at three per cent., also for transportation or freight charges, and that there is due the defendant from the plaintiffs $17.68.

The main controversy in this case is based upon the construction of the contract and particularly of the paragraph above quoted. It is clear from the affidavits which were filed in place of pleadings that the only question presented to the court was the number of patterns for which the plaintiffs were entitled to credit under the terms of the contract. No other defense is suggested by the affidavit. All other defenses are, therefore, waived. By the issue thus formed, the defense sought to be presented is that the plaintiffs are not entitled to credit for all patterns returned as set forth in the plaintiffs’ statement of claim. It is contended by the defendant that the terms “good salable condition,” as used in the contract, include only the patterns which had not been by the semi-annual discard list published by the defendant, marked as discarded patterns; in other words, that “good salable condition,” as used in the contract, includes only the patterns which have been retained by the defendant upon its semi-annual list as live patterns.

The evidence shows that it was the custom of the Pattern Company to issue an inventory book or list of patterns made, up by experts employed by the company, who decided which patterns would not likely find a ready sale owing to change of style or for other reasons, and such patterns were omitted from the list and were denominated “discarded” or “recalled” patterns. These inventories were sent by mail to the merchants about the first week of January or July respectively, and at these periods the merchants under their contracts would exchange such patterns, if they had any on hand which were not contained in the printed list, at even rates for other patterns to be shipped by the Pattern Company. The question is whether the terms used, in “good salable condition,” are to be limited to the pattern retained in the semiannual catalogues or whether they are to be construed as referring to the external physical condition of the patterns whether retained in the catalogues or were discarded patterns.

The contract is the standard form of contract prepared by the defendant, and is the one used by it and all its customers. It is printed by the defendant and sent out to its agents to be used by them. Hence the words employed in the contract have been selected by the defendant and have not been chosen by the plaintiffs, and if there is any ambiguity or uncertainty in the meaning of the terms employed, under the law the contract must be construed against the party employing them. But we think that it is unnecessary to refer to that principle of construction in this case, for the business considered and all the facts and circumstances shown in evidence, the contract must be construed as entitling the plaintiffs to credit for all patterns returned, whether such patterns are retained in the catalogue list or whether they have been discarded by the defendant, at ninety per cent, of the wholesale price charged for them by the defendant. To construe the contract otherwise would enable the defendant to make an absolute sale to plaintiffs of all patterns furnished the plaintiffs by the defendant by simply resorting to the one-sided action of marking the patterns as discarded, for the plaintiffs had no voice in determining that question. That was not the intention of the parties and the language of the contract does not so express the agreement. The trial court was right, therefore, in allowing credit to the plaintiffs for the discarded patterns returned by them.

There is some controversy in the testimony as to the number of patterns returned. We see no reason for disturbing the finding of the court in favor of the plaintiffs as to the number of patterns actually returned. The testimony of the witness Hacker on behalf of the plaintiffs shows that he counted the patterns carefully three times before shipping them, and that he had been in the employment of the plaintiffs fourteen years. The testimony of Miss Burnett for the defendant is the only testimony contradicting the witness Hacker. Miss Burnett had very little experience in the work which she was employed to do, and we cannot say that her count of the patterns was more reliable than Hacker’s count.

No question is made by the affidavit as to the termination of the contract or the right of plaintiffs to return the patterns when they did return them. The judgment of the court below is just and equitable, and is affirmed.

Affirmed.