text:
    Amy Young, Appellee, v. Federal Union Surety Company et al. On appeal of Fred A. Bangs, Appellant.
    Gen. No. 19,686.
    1. Injunction, § 156

      —test in determining propriety of holding property in statu quo. The chief, if not the controlling question on a bill for a temporary injunction to hold the property in statu quo until the rights of the parties have been adjudicated, is the relative inconvenience to the parties that will result from the granting or refusal to grant the injunction.
    2. Injunction, § 156

      —when property will he ordered held in statu quo. Although there may be serious doubts as to who should prevail on the merits on a bill to enforce a contract of sale of an heir’s interest in an estate, a temporary injunction may be issued requiring the property to remain in statu quo, where complainant would have a barren victory if the stocks and securities were put beyond the reach of the court and defendant has no personal interest or claim' in the property.
    3. Injunction, § 159

      —when clear right to permanent injunction need not he shown by hill. A bill need not show a clear right to a permanent injunction where a temporary injunction is prayed for in order to conserve the rights of the complainant pending the litigation.
    4. Injunction, § 159

      —when sufficiency of hill can he tested only hy demurrer. The question of the sufficiency of a bill to warrant an order for a temporary injunction to preserve a status quo pending the determination of the rights can be tested only as on a general demurrer, and must be held sufficient if it shows a right to the relief prayed for.
    5. Injunction, § 159

      —when hill for temporary injunction is sufficient. A bill held sufficient to warrant the ordering of a temporary injunction requiring the parties to keep the property in statu quo until the determination of the merits of the controversy.
    Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed November 21, 1913.
    E. I. Frankhauser, for appellant.
    Alden, Latham & Young, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

This is an appeal from an interlocutory order granting an injunction on a bill filed to enforce a contract for the sale to appellee of the interest of one Jay A. Rigdon as an heir in the estate of Charles W. Rigdon, deceased.

Several defendants are named whom the bill alleges have possession of, control over or access to all or part of the property included in the contract for sale, on which the bill is based. As to Fred A. Bangs, who is the only appellant, it is averred that he is the attorney for Jay A. Rigdon, the heir, and that such possession of, control over or access to the property as he has, arises from that relation. The injunction order complained of is aimed to, and can only have the effect of requiring the property to remain in status “quo, as to ownership, possession and location of deposit, until the rights of appellee to it can be adjudicated. The property in question consists almost, if not entirely, of shares in various mining corporations. If there is any other, it consists in negotiable securities.

As we understand the trend of modern authority, the merits of the main controversy are not necessarily involved in the question whether a temporary injunction is properly ordered, where the effect of such injunction is merely to hold the property in status quo, until the rights of the parties have been adjudicated. In Harriman v. Northern Securities Co., 132 Fed. 464, the Court said: “Where, however, the sole object for which an injunction is sought is the preservation of a fund in controversy, or the maintenance of the status quo until the question of right between the parties can be decided on final hearing, the injunction properly may be allowed, although there may be serious doubt of the ultimate success of the complainant.”

The case of Swift v. McCormick, 121 Ill. App. 556, was an appeal from an order granting a temporary injunction restraining the defendant from disposing of a certain certificate of stock, the title to which was in controversy in the bill on which the injunction was ordered, and the Court there said: “The circumstances of the gift are unusual, and the certificate is peculiar in some of its conditions. It is not proper for us to pass upon the merits of the case on this interlocutory appeal.”

To the same effect is the holding in City of Newton v. Levis, 25 C. C. A. 161, 79 Fed. 715, and in Rago v. Village of Melrose Park, 161 Ill. App. 18.

One of the chief if not the all controlling question to be determined in such cases is the relative inconvenience to the parties that will result from the ordering or refusal to order such injunction. In Rago v. Village of Melrose Park, supra, the Court said: “It is a familiar principle concerning injunctions pendente lite, that they will be granted and continued in doubtful cases until final decree in the litigation if it appears that less harm from this course will result to the enjoined party if he should be finally victorious than would accrue to the complainant from the absence of the injunction if he were the winning party. Beach on Injunctions, sec. 110; High on Injunctions, sec. 13; Cornwall v. Sachs, 69 Hun 283.

We think this is such a case and shall affirm the order of the court below.”

In Russell v. Farley, 105 U. S. 433; it is said: “It is a settled rule of the court of chancery in acting on applications for injunctions, to regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant if it were refused. Kerr on Injunctions, 209, 210. And if the legal right is doubtful, either in point of law. or fact, the court is always reluctant to take a course which may result in material injury to either party.”

In*22 Cyc. 751, the author says: “It is not sufficient ground for refusing a preliminary injunction that it is not absolutely certain that complainant has the right that he claims, or that the injury feared will occur; and even though complainant’s right to permanent relief is doubtful, it may be proper to maintain the status quo pending the determination of his right, the issuance of a temporary injunction in such cases depending chiefly upon the relative inconvenience to be caused to the parties.”

In the case of City of Newton v. Levis, 25 C. C. A. 161, 79 Fed. 715, the following language is used: ‘ The granting or withholding of a preliminary injunction rests in the sound judicial discretion of the court, and the only question presented by this appeal is, whether or not the court below erred in the exercise of that discretion under the established legal principles which should have guided it. The propriety of his action must be considered from the standpoint of that court * * *. The controlling reason for the existence of the right to issue a preliminary injunction is, that the court may thereby prevent such a change of the conditions and relations of persons and property during the litigation, as may result in irremediable injury to some of the parties before their claims can be investigated and adjudicated. When the questions to be ultimately decided are serious and doubtful, the legal discretion of the Judge in granting the writ, should be influenced largely by the consideration that the injury to the moving party will be certain, great and irreparable if the motion is denied, while the inconvenience and loss to the opposing party will be inconsiderable ' and may well be indemnified by proper bond if the injunction is granted. A preliminary injunction maintaining the status quo, may properly issue whenever the questions of law or fact to be ultimately determined in a suit are grave and difficult and if the injury to the moving party will be immediate, certain and great if it is denied, while the loss or inconvenience to .the opposing party will be comparatively small and insignificant if it is granted.”

While in the case at bar there may be serious doubt as to who should prevail on the merits of the controversy, if this injunction had not been ordered, any decree appellee might hereafter secure might, and in all probability would, be a barren victory, for it would be an easy matter for appellant to put beyond the reach of the courts of this State any stocks he may have in his hands or under his control, the possession of which appellee seeks to secure by this litigation. On the other hand, it does not appear that appellant has any personal claim on or interest in the property in question, and it is inconceivable how he could be injured by the injunction.

The bill in this case could easily be improved. However, on the question of its sufficiency to warrant an order for a temporary injunction, it can be tested only as on a general demurrer, and must be held sufficient if it shows a right to the relief prayed for. Stripped of its verbiage, the allegations of the bill show that appellee purchased from Jay A. Rigdon his interest as an heir in the estate of Charles W. Rigdon at a stipulated price; that the assets of the estate of Charles W. Rigdon were composed of mining stocks and negotiable securities; that at the time of the purchase they were in the hands of the administrator of the estate of Charles W. Rigdon; that the estate has been fully administered and part of the assets belonging to it which were purchased by appellee from the heir have been turned over to the heir or to others for him; that all the assets are about to be turned over to the heir or to others for him by those having them in their, possession and control, and carried away from the jurisdiction of the courts of this 'State, and that the same will be so turned over and carried away, unless those having possession and control of the same are restrained from so doing by injunction; that Jay A. Rigdon has repudiated the sale; that appellee has offered and attempted to pay the consideration and now stands ready and willing and offers to pay the same; and that appellee has no adequate remedy at law. We think the bill was sufficient to warrant the court in ordering the temporary injunction whereby the parties were required to keep the property in question in status quo until the determination of the merits of the controversy.

'The contention that in order to warrant a temporary injunction a bill must show a clear right to a permanent injunction has no force where the temporary injunction is prayed for in order to conserve the rights of the complainant pending the litigation. The rule referred to applies only to cases where the relief prayed for is a permanent injunction.

For the reasons above given the order of the Superior Court is affirmed.

Order affirmed.


source: Caselaw Access Project

author: Mr. Justice Baume

license: Public Domain

text:
    The People of the State of Illinois ex rel. Clarence H. Venner, Appellee, v. Chicago City Railway Company et al., Appellants.
    Gen. No. 17,868.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed November 21, 1913.
    Statement of the Case.
    Petition by the People of the State of Illinois, ex rel. Clarence H. Venner, against Chicago City Railway Company, a corporation, T. E. Mitten, president, and R. B. Hamilton, secretary, to compel an inspection of the books, records and accounts of the company. From a judgment awarding a writ of mandamus on the respondents electing to abide by their answer after a demurrer thereto was sustained, respondents appeal.

      Abstract of the Decision.
    1. Corporations, § 179

      —when mandamus to compel inspection of records will he denied. Where it appears that a shareholder seeks inspection of the records and books of account of the corporation for an unlawful purpose, as for levying blackmail, as distinguished from a merely improper purpose, a writ of mandamus to compel such inspection will be denied.
    2. Corporations, § 179

      —when answer to petition to compel inspection of records is insufficient. Where an answer to a petition for a writ of mandamus by a shareholder to compel inspection of the books of the corporation alleges by argument, conjecture and conclusion that the purpose of the petitioner is to levy blackmail and does not allege any actual threats or demands, the answer is insufficient.
    3. Corporations, § 179

      —when demand to inspect records is sufficient. Where the answer to a petition for a writ of mandamus by a shareholder to compel inspection of the hooks of the corporation admits a general demand to inspect by the petitioner and asserts the right and intention of the respondents to ignore and refuse such demand, the demand is sufficient.
    Shope, Zane, Busby & Weber, E. R. Bliss and Geo. Gillette, for appellants.
    Elijah N. Zoline, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Mary A. Felgar, Executrix, for use of H. H. Felgar, Plaintiff in Error, v. John L. Bolen, Defendant in Error.
    Gen. No. 18,040.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.

      Abstract of the Decision.
    1. Vendor and purchaser, § 159

      —interest acquired, By purchaser. From the time of a contract for the sale of land the vendor, as to the land, becomes a trustee for the vendee and the vendee, as to the purchase money, a trustee for the vendor, who has a lien upon the land therefor; when the vendee has fully performed or has tendered full performance, he has an equitable title to the property described in the contract.
    2. Executors and administrators, § 122

      —when executrix cannot rescind contract for sale of land. "Where a vendee has performed or tendered performance of a contract for the sale of land, his executrix has no such interest in the subject-matter of the contract as will permit her to rescind it and maintain an action to recover damages for its breach as the vendor’s rights under the contract pass to his heirs at law, and not to his personal representative.
    3. Vendor and purchaser, § 114

      —when contract of sale is merged in conveyance. Where a contract for the sale of .land requires the vendor to furnish an abstract of title and a title guaranty policy, the vendee’s demand for and acceptance of all the land operates to extinguish the contract and merge it in the conveyance, and an action cannot be maintained by the vendee, his personal representatives or assigns to recover damages for a breach of the contract.
    Statement of the Case.
    Action by Mary A. Felgar, as executrix of the estate of William H. Felgar, for the use of H. H. Felgar, against John H. Bolen and Edmond S. Holmstrom to recover damages for the breach of a written contract for the conveyance of land. From a judgment in favor of the defendant Bolen, the case having been voluntarily dismissed as to the defendant Holmstrom, the plaintiff bring’s error.
    Harry H. Felgar, for plaintiff in error.
    Park Phipps, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    George W. Thomas, Plaintiff in Error, v. South Side Elevated Railroad Company et al., Defendants in Error.
    Gen. No. 18,146.
    1. Eminent domain, § 262

      —how extent of right in easement acquired is measured. Where an elevated railroad company acquires an easement in land condemned by it for right of way purposes, the extent of its rights in the easement is to be measured by the compensation paid therefor and by the purposes and uses to which it may be legitimately put as and for its right of way.
    2. Eminent domain, § 262

      —purposes for which elevated railroad company may enter upon its easements. An elevated railroad company acquiring an easement in land condemned by it for right of way purposes may enter upon every portion of the way at all times for the purpose of inspecting and repairing its elevated structure and the supports, and may perform such work thereon as may he reasonably necessary and expedient to conserve its structural equipment and to provide for the comfort and convenience of its passengers and safety of its employes.
    3. Eminent domain, § 262

      —when elevated railroad company may enter and pave easement. An elevated railroad company acquiring an easement in land condemned by it for right of way purposes may enter upon and pave the way, where such pavement is beneficial to the company, without answering in trespass to the owner of the fee.
    4. Elevated railroads, § 4

      —when instructions as to use of property are not harmful to owner of fee. Where an elevated railroad company enters upon an easement acquired by condemnation for right of way purposes and paves the way, in trespass against it by the owner of the fee, it appearing that the company had a right to pave, instructions that the presence of the elevated structure and operation constitute possession and the fact that they did not use all the land condemned does not give the owner any right to use it, are not harmful to the plaintiff.
    Error to the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    West & Eckhart, for plaintiff in error.
    Addison L. Gardner, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to review the record of a proceeding in the Superior Court where, in a suit brought by the plaintiff in error, George W. Thomas, against the South Side Elevated Railroad Company and certain of its contractors and servants, to recover damages for an alleged trespass, a trial by jury resulted in a verdict and judgment against plaintiff in error.

The declaration consists of four counts and an additional count. The first count alleges that defendants in error on May 18, 1907, broke and entered the close of plaintiff in error, described as lots 13 and 14 of the resubdivision of lots 31 to 39 inclusive and part of lots 30 and 40 in Thomas’ Subdivision of block 87, etc., in the city of Chicago; that defendants in error destroyed a fence of plaintiff in error then standing on said close and that they thereafter destroyed other fences of plaintiff in error which he erected on said premises; that they drove upon said premises and tore up, damaged and spoiled the earth and soil of the said close of plaintiff in error and then and there expelled plaintiff in error from the possession, use and occupation of said close. The second count charges that defendants in error entered upon said close with horses and wagons and then and there wilfully, maliciously and violently drove said horses and wagons close to and at the person of plaintiff in error. The third count alleges that defendants in error drove upon said close of plaintiff in error with horses, wagons, wheelbarrows and other vehicles and with steam rollers and other machines and carried upon said close large quantities of sand, gravel, stone, asphaltum and other materials which were then and there unloaded and deposited upon said close, where they still remain. The fourth count charges that defendants in error entered said close and then and there maliciously, unlawfully and wilfully ran a steam roller with force and violence along and across the same and towards and at the person of plaintiff in error and thereupon the servants and agents of defendants in error with force and arms violently, rudely, maliciously and wilfully pushed, pulled and shoved plaintiff in error. The additional count alleges that defendants in error entered upon said close and deposited sand, gravel, stone, asphaltum and other materials thereon and then and there constructed thereon a pavement and then and there opened up said close as and for a public highway or alley, and that said close has at all times since been used as a public highway or alley by the public with the leave and consent of defendants in error, but without the consent and against the will of plaintiff in error.

The material facts in the case are not controverted.

The premises where the several trespasses charged in the declaration are alleged to have occurred are a portion of lots 13 and 14 fronting on Twenty-eighth street, located in the middle of the block between Wabash avenue, State street, Twenty-eighth street and 'Twenty-ninth street, and constitute the right of way of the defendant in error railroad company, acquired by condemnation proceedings wherein said railroad company, or its predecessor railroad company, paid the full market value of the said premises, together with damages to the adjoining property. At the time of the alleged trespasses the defendant in error railroad company was using the said premises for railroad purposes, by having erected columns thereon, upon which it had constructed an elevated railroad whereon railroad trains were being continuously " operated by it. By an ordinance of the city of Chicago, passed March 16, 1903, the defendant in error railroad company was required to pave its entire right of way and the north and south alleys adjacent thereto from Twelfth street to Forty-third street. On May 18, 1907, plaintiff in error, being the owner of lots 13 and 14, entered upon the right of way of the defendant in error railroad company and erected thereon temporary fences as barriers to obstruct entrance to and upon said right of way, and upon the same day when the paving contractors employed by the railroad company attempted with teams to haul stone upon said right of way, plaintiff in error stood in front of the fence and protested, whereupon defendants in error disregarding such protest removed the fence and drove their teams and wagons upon the right of way and deposited stone thereon. On June 12th, following, plaintiff in error erected a more substantial fence to obstruct entrance to and upon said right of way and placed a “No Thoroughfare” sign thereon. This fence was removed on June 15th, following, and was replaced by plaintiff in error on the same day. On June 17th, following, against the protest of plaintiff in error, defendants in error removed the fence and operated one or more steam rollers upon the right of way in performing work necessary to be done in constructing a pavement, which was thereafter completed. On one or more occasions when plaintiff in error attempted to prevent the passage of teams and the operation of steam rollers over the right of way by standing in front of the same he was removed by the servants of defendants in error. Said right of way and the connecting alleys running south and west are frequently used by pedestrians as affording a more convenient means of access to the elevated station on Twenty-ninth street, and said right of way and said alleys are also used by teams. Before a pavement was laid thereon said right of way was littered with ashes, garbage and refuse and was unsightly and unsanitary, but since the pavement has been laid the right of way has been kept clean, is well drained and makes a suitable passageway for pedestrians. It is necessary from time to time for employes of the railroad company to go upon and along the pavement on the right of way for the purpose of inspecting and repairing the elevated structure, and materials for use in the elevated track are more conveniently hauled upon the pavement and thence raised into place upon the elevated structure. The blowing of dust and dirt upon an unpaved right of way is detrimental to the electrical equipment of the cars, and the pavement served the purpose of preventing the accumulation of such dust and dirt upon the right of way. Prior to the construction of the pavement the moisture from the ground caused the metal structural work upon the right of way to rust and corrode and thereby rendered the same liable to deteriorate more rapidly.

Upon the record as made, plaintiff in error seeks a reversal of the judgment for alleged error by the court in giving two instructions tendered by defendants in error, but primarily plaintiff in error insists that as the railroad company took merely an easement by the condemnation proceedings, and that, as the fee in thé lots out of which such easement was carved remained in himself, he was and is entitled to the possession and use of all of the surface of the land constituting said right of way not in actual use by the railroad company for the purpose of supporting the columns upon which the elevated structure and tracks are constructed.

The extent of the right, if any, of plaintiff in error to use such portion of the right of way in question as was not in actual and exclusive use by the railroad company is not concretely presented upon this record. Plaintiff in error did not, so far as this record discloses, seek to use the right of way for any purpose whatsoever, but merely sought to prevent defendants in error from using said right of way for purposes which are entirely consistent with the use by the railroad company of ’its easement.

Undoubtedly by the condemnation proceedings the defendant in error railroad company acquired only an easement in the portion of lots 13 and 14 condemned for railroad right of way purposes, and the fee in said portion of said lots is vested in plaintiff in error. The extent, however, of the rights of the defendant in error railroad company in said easement is to be measured by the compensation paid therefor and by the purposes and uses to which it may legitimately be put by the railroad company as and for its railroad right of way. That the railroad company may enter upon every portion of said right of way at any and all times for the purpose of inspecting and repairing its elevated structure and the supports thereof upon said right of way, and may perform such work thereon as may be reasonably necessary and expedient to conserve its structural equipment and to provide for the comfort and convenience of its passengers and the safety of its employes is undeniable. Excluding from consideration the obligation, if any, imposed upon the railroad company by the city ordinance to pave its right of way, which question we do not determine, the uncontroverted evidence shows that the laying of the pavement upon such right of way by the railroad company was a legitimate exercise by it of its rights under its easement.

Among the cases cited and relied upon by plaintiff in error are Lockie v. Mutual Union Tel. Co., 103 Ill. 401; St. Louis & C. R. Co. v. Postal Tel. Co., 173 Ill. 508; and Eldorado, M. & S. W. R. Co. v. Sims, 228 Ill. 9. These cases are not in point. The Lockie case and the Postal Tel. Co. case involved the extent of the right acquired by condemnation for telegraph purposes, and the Sims case involved the right of the owner of the fee to mine for coal beneath a railroad right of way acquired by condemnation.

In the Lockie case, supra, it was held that the only exclusive right of occupancy which the telegraph company acquired by the condemnation proceedings was the occupancy of the land occupied by the poles erected for telegraph purposes.

In the Postal Telegraph Co. case, supra, it was said (p. 534): “The spaces between the telegraph poles, and over which the wires are strung, are used jointly by the railroad company and the telegraph company, by the former for such purposes as are appropriate to a railroad right of way, and by the latter in the exercise of its right to the easement already referred to. Inasmuch as the telegraph company does not take the exclusive use of the remainder of the right of way not occupied by the poles, and, inasmuch as the railroad company still continues to use the same, it cannot be said that such remainder is taken by the condemnation proceeding. It is merely damaged to the extent to which the telegraph company has an easement, or the right to enter, for the purpose of constructing and repairing its line. The measure of damages, therefore, suffered by the railroad company, is.not the value of the land embraced within the right of way between the poles and under the wires, but the measure of damages is the extent to which the value of the use of such spaces by the railroad company is diminished by the use of the same by the telegraph company for its purposes.”

In Drainage Commissioners v. Knox, 237 Ill. 148, which was a proceeding by a drainage district to ascertain the compensation to be paid a land owner for the laying and maintaining of a tile drain, it was said (p. 151): “Of course, the nature and extent of the interest acquired by the condemnation is to be considered in estimating the compensation to be paid to the owner, but that does not affect the question whether the property is taken or not. In some cases, such as railroad right of way, the right acquired by the petitioner is practically exclusive, and the naked title which is left in the owner is for all practical purposes of no value. In such cases the damages must be assessed at the full market value of the land. In any case the owner is entitled to be paid for such rights of use and enjoyment of his land as are taken from him, and inasmuch as the defendant retains substantial rights in the strip of land, the measure of damages would not be the full market value.”

In Sexton v. Union Stock Yard & Transit Co., 200 Ill. 244, it was said (p. 250): “The nature of the estate and the quantity of title taken from the land owner are not improper for consideration by a jury. (10 Am. & Eng. Ency. of Law, — 2d ed. — 1150.) Where the petitioner takes a perpetual easement to occupy and use the surface of the land, the bare fee remaining in the owner is generally, for all practical purposes, of no value, and in such cases it would not be error for the jury to allow the fair cash market value of the property.”

In Walker v. Illinois Cent. R. Co., 215 Ill. 610, where the railroad company acquired an easement for railroad right of way purposes by deed, the Court said (p. 615): “The land contained in the strip was not conveyed to the appellee, but its use. The interest, however, which the appellee acquired in said strip was absolute for the purposes for which it was acquired, so long as it was used for railroad right of way purposes. In Hazen v. Boston and Maine Railroad Co., 2 Gray, 574, it was said (p. 580): ‘The right acquired by the corporation, though technically an easement, yet requires for its enjoyment a use of the land permanent in its nature and practically exclusive.’ And in Chicago and Mississippi Railroad Co. v. Patchin, 16 Ill. 198, this court,- on page 202, speaking through Mr. Justice Scates, said: ‘I presume the right to the land upon which railroads are ’built is not strictly analogous to the easement of the public in highways, leaving the fee in the owner of the soil, but is an absolute ownership in fee for railroad purposes.’ And in Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500, it was held that the right of way was the exclusive property of a railroad company, upon which no unauthorized person had the right to he for any purpose. And in Jackson v. R. & B. R. R. Co., 25 Vt. 150, Mr. Justice Bedfield said: ‘ The railway company must, from the very nature of their operations, in order to the security of their passengers, workmen and the enjoy-meat of the road, have the right at all times to the exclusive occupancy of the land taken, and to exclude all concurrent occupancy by the former owners in any mode and for any purpose. ’

In Illinois Central Railroad Co. v. Houghton, 126 Ill. 233, on page 241, where the court was considering a deed very similar to the deed now under consideration, it was said: ‘While we are not disposed to hold that the deed from Walker to the plaintiff conveyed to the plaintiff an estate in fee in the right of way, it is clear that it conveyed an estate which, so far as the right of possession for railroad purposes is concerned, had most of the qualities of the fee. The right of possession thereby conveyed was exclusive, and was wholly inconsistent with the subsequent possession of the land, or any part of it, by the grantor or his assigns for purposes of grazing or agriculture, or as a part of the farm to which it originally belonged. ’ To the same effect is Illinois Central Railroad Co. v. O’Connor, 154 Ill. 550.”

The 29th and 39th instructions complained of by plaintiff in error are as follows:

“29. The court instructs you that the presence of the elevated structure in question, and its supporting columns, on and above the premises in question, as shown by the evidence in this case, and the running of trains over the same at the time of the alleged trespass, as shown by the evidence, constitute an actual and continuing possession by the said railroad company of the premises in question.”
“39. The court instructs you that the fact that the railroad company does not actually use all the land condemned by it for its right of way, does not give the owner of said land any right to use it.”

As applied to the uncontroverted facts in this case, these instructions could not have harmed plaintiff in error. Indeed, upon the facts established by the evidence the trial court would have been warranted in giving to the jury a peremptory instruction to find defendants in error not guilty.

We perceive no substantial reason for reversing the judgment of the Superior Court and such judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Josie I. Blume, Plaintiff in Error, v. Pittsburgh Life & Trust Company, Defendant in Error.
    Gen. No. 18,209.
    1. Insurance, § 93

      —what provisions may be incorporated in policy. Parties competent to contract are at liberty to incorporate such provisions in a contract of insurance as they choose, providing such provisions are not inhibited by law or by good morals.
    2. Insurance, § 120

      —when policy not construed as ambiguous. The rule that language employed in a contract is to be given its commonly accepted meaning, applies to contracts of insurance as to other contracts; its qualification that ambiguous language is to be construed most strongly against the insurer does not authorize a perversion of language for the purpose of creating an ambiguity where none exists.
    3. Insurance, § 310

      —when paid up insurance is forfeited by not surrendering policy. Where a life insurance policy provides that it can be surrendered within six months from the date of lapse for the amount of nonparticipating paid up insurance specified and also provides for forfeiture on nonpayment of premiums, the contract is not automatically executing and no paid up insurance can be recovered after a lapse if the policy was not surrendered within the time provided in absence of a waiver of the provision by the insurer.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    O’Bryan & Marshall, for plaintiff in error.
    John H. Rollins and Frank Ewing, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

On October 9, 1900, the Security Trust & Life Insurance Company, a New York corporation, issued to George A. Blume a policy of insurance on his life for $5,000, payable at his death to his wife, Josie I. Blume. Thereafter, on September 15, 1906, upon a transfer to it of all the assets of the initial insurer, the Pittsburgh Life & Trust Company, a Pennsylvania corporation, assumed all liability under the policies issued by the initial insurer. The insured made payment of five annual premiums of $196 and gave his note for the premium falling due October 15, 1905, upon which he paid $75.30, the last payment thereon being made May 1, 1906. The insured died November 29, 1910, having made no further payment of premiums on the policy.

The policy contained, among other provisions not here involved, the following:

“VI. Paid-up Values. If the full premiums on this policy be paid, as already provided, for not less than three complete years, it can be surrendered within six months from the date of lapse for the amount of nonparticipating paid-up life insurance specified in the accompanying table.”
“VII. Cash Value. If the full premiums on this policy be paid, as already provided, for not less than five complete years, it can be surrendered within six months from the date of lapse for the amount of cash specified in the accompanying table.”
“VIII. Reinstatement. This policy will be reinstated, on written application from the Insured, after non-payment of any premium, subject to satisfactory evidence of good health furnished on the Company’s blanks and the payment of the premiums then due with interest at the rate of six per- cent, for the time elapsed.”
“XI. Premiums. * * * If any premium is not paid on or before the day it is due, this policy shall become void and all payments previously made shall remain the property of the company except as herein-before provided. * * *

The table accompanying the policy specifies $760 as the amount of nonparticipating paid up life insurance, if after payment of full premiums for five years the policy shall have lapsed and been surrendered within six months from the date of lapse; and the same table specifies $350 as the cash value of the policy, if, after payment of full premiums for five years said policy shall have lapsed and been surrendered within six months from the date of lapse.

The policy was not surrendered by the insured in his lifetime and no request or demand was made by him for nonparticipating paid up life insurance of $760.

On July 18, 1911, after the death of the insured, Josie I. Blume, his widow and the beneficiary named in the policy, brought suit in the Municipal Court against the Pittsburgh Life & Trust Co. to recover the sum of $760, claimed to be due under the terms of said policy for paid up life insurance. A trial by the court without a jury resulted in a finding for the defendant and judgment against the plaintiff in bar of her action and for costs. This writ of error is prosecuted to reverse such judgment.

Under date of October 6, 1906, the Security Trust & Life Insurance Co. wrote the insured, in substance, that if he desired to reinstate his policy it would be necessary for him to furnish a satisfactory health certificate, and that until such certificate was furnished the policy stood lapsed. To this letter the insured made no response.

It is insisted by plaintiff in error that time is not of the essence of the contract as to the sixth clause of the policy, which provides that if the full premiums be paid for not less than three years it can be surrendered within six months from the date of lapse for nonparticipating paid up life insurance; that as the insurance company has received and has in its reserve the entire consideration for such paid up insurance the contract for such paid up insurance must be construed as automatically executed, and the insured was not obliged to make any demand therefor or to surrender the original policy.

Parties competent to contract are at liberty to incorporate such provisions in a contract as they choose, providing such provisions are not inhibited by law or by good morals, and the language employed in a contract is to be given its commonly accepted meaning. This rule is as applicable to contracts of insurance as it is to other contracts. True, if the language of the contract of insurance is doubtful or ambiguous, the doubt or ambiguity will be resolved in favor of the insured, so as to effectuate the purpose for which the contract was made (Grand Legion, Select Knights v. Beaty, 224 Ill. 346; Monahan v. Fidelity Mut. Life Ins. Co., 242 Ill. 488; Anson v. New York Life Ins. Co., 252 Ill. 369); but the rule that ambiguous language is to be construed most strongly against the insurer does not authorize a perversion of language for the purpose of creating an ambiguity where none exists. Crosse v. Knights of Honor, 254 Ill. 80.

The eleventh clause of the policy provides that if any premium is not paid on or before the day it is due, the policy shall become void and all payments previously made shall remain the property of the company, except as thereinbefore provided. The preceding sixth clause of the policy provides that if the full premiums thereon be paid for not less than three complete years, it can be surrendered within six months from the date o.f lapse for the amount of nonparticipating paid up life insurance specified in the accompanying table. There can be no doubt, therefore, that by the express terms of the policy it became void upon the failure of the insured to pay the premium for the year 1905, and that the insured thereby forfeited to the company all premiums previously paid, unless within six months from the date of the lapsing of the policy he exercised his option to surrender the same for paid up life insurance of $760. It is uncontroverted that the insured, with full knowledge that his policy had lapsed, took no steps thereafter during his lifetime to exercise his. said option, and there is no proof in the record tending to show a waiver of the provisions of the policy by the company or any facts which excused the insured from exercising his option within the time limited.

The doctrine that time is of the essence of a contract, such as is here involved, appears to be supported by the great weight of authority; Knapp v. Homeopathic Mut. Life Ins. Co., 117 U. S. 411; Bonner v. Mutual Life Ins. Co., (Miss.) 36 So. Rep. 538; Cravens v. New York Life Ins. Co., 148 Mo. 583; McLaughlin v. Equitable Life Assur. Soc., 38 Neb. 725; Attorney General v. Continental Life Ins. Co., 93 N. Y. 70; Equitable Life Assur. Soc. v. Evans, 25 Tex. Civ. App. 563; Meyer v. Manhattan Life Ins. Co., 144 Ind. 439; Straube v. Pacific Mut. Life Ins. Co., 123 Cal. 677; Bussing v. Union Mut. Life Ins. Co., 34 Ohio St. 222; Smith v. National Life Ins. Co., 103 Pa. St. 177; Universal Life Ins. Co. v. Devore, 88 Va. 788. See also Joyce on Insurance, vol. 2, secs. 1184, 1185.

In Phoenix Mut. Life Ins. Co. v. Baker, 85 Ill. 410, the surrender of the policy prior to its lapse appears to have been regarded by the court as a condition precedent to the right of the insured to demand and receive a paid up policy. In Keyser v. Mutual Life Ins. Co., 104 Ill. App. 72, a somewhat similar clause in a policy was construed to require a surrender of the policy within the time limited, in order to entitle the insured to paid up insurance.

In Ingersoll v. Mutual Life Ins. Co., 156 Ill. App. 568, the policy involved did not provide that a failure to pay the premium should avoid the policy. In this respect the policy was unlike the one in the case at bar. But it was there further held, following Lenon v. Mutual Life Ins. Co., 80 Ark. 563, 8 L. E. A. (N. S.) 193; Manhattan Life Ins. Co. v. Patterson, 109 Ky. 624, and other Kentucky cases, that time was not of the essence of a similar provision in an insurance policy. In this view we are unable to concur.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    Reid, Murdock & Company, Defendant in Error, v. John J. McGregor, Garnishee, Plaintiff in Error.
    Gen. No. 18,315.
    1. Attachment, § 212

      —when service by posting notices insufficient. R. S., C. 79, art. VIII, § 11, J. & A. If 6940, requiring constable to post three copies of notice for an attachment in three public places, requires each notice to be posted in a separate public place.
    2. Attachment, § 263

      —when judgment may be impeached by garnishee. Proceedings in attachment void for want of jurisdiction of the defendant may be attacked by the garnishee.
    3. Process, § 44

      —when statutes must be strictly complied with. Where jurisdiction is acquired by a court through publication or posting of notice to parties interested, the statute must be strictly pursued and its provisions complied with.
    4. Garnishment, § 118

      —when recital in judgment conclusive on question of jurisdiction of attachment debtor. Recital in judgment against garnishee in attachment that court acquired jurisdiction of attachment debtor by proper notice, held, conclusive against garnishee, though return showed that service on debtor by posting of notice was defective, where sufficient time had elapsed between the time the notice was defectively posted and the time the judgment was entered for a proper notice to have been prepared and posted as required by statute.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    Adams, Bobb & Adams, for plaintiff in error.
    Colson & Johnson, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

This is a suit in attachment instituted in the Municipal Court on July 12, 1911, by Beid, Murdock & Co., against the McGregor Catering Company, a foreign corporation, and wherein John J. McGregor was served as garnishee. On January 9, 1912, judgment by default was entered against said McGregor Catering Company for $177.50, together with costs, and thereafter upon the same day a judgment in proper form was entered against said garnishee for $182.60. This writ of error is prosecuted by the garnishee.

If the proceedings in attachment are void for want of jurisdiction of the defendant McGregor Catering Company, they may be attacked by the garnishee. Pomeroy v. Band, McNally & Co., 157 Ill. 176.

The statute provides that if the defendant in the attachment is not served with summons and does not appear at the time and place of trial a notice shall be prepared to be posted up at three public places in the neighborhood of the justice (court), etc., which notice shall be delivered to the constable (bailiff) who shall post three copies of the same at three public places in the neighborhood of the justice (court) at least ten days before the day set for the trial, and on or before that day shall return the notice delivered to him by the justice (court) with an indorsement thereon stating the time when and the places where he posted copies of the same. Statute 1911, ch. 79, art. VIII, § 11. (J. & A. 6940.)

In the case at bar, the notice which appears in the record was prepared and delivered to the bailiff, who indorsed his return thereon, as to posting the same, as follows: “Served the within notice this 31st day of July, A. D. 1911 by posting a copy at each of the following places to-wit: One at North Entrance County Bldg. One at South Entrance City Hall. One at South Entrance City Hall, all of which are public places in the neighborhood of the within named Court.”

It appears from this return of the bailiff that he posted two copies of the notice at one and the same public place, to-wit, “the South Entrance City Hall.”

It is obvious that the statute contemplates that a copy of the notice shall be posted at each of three separate and distinct public places. If two copies of the notice may be posted at one and the same place then also three copies of the notice may be so posted, and the requirement that more than one copy be posted is absurd and superfluous.

It is the settled rule that where jurisdiction is to be acquired by a court through the publication or posting of a notice to parties interested, the statute must be strictly pursued and its provisions complied with. Taggy v. City of Chicago, 194 Ill. 88; Slattery v. Stevens, 125 Ill. App. 67.

Counsel for defendant in error do not seriously assert the sufficiency of the bailiff’s return of posting the notice referred to, but insist that as the judgment order of January 9, 1912, recites that the defendant judgment debtor was duly notified of the pendency of the suit and of the time required of said defendant to appear, by publication of notice according to law a sufficient number of days prior to the time required of said defendant to appear, and as sufficient time elapsed between the time when the notice was so defectively posted and the time when judgment was entered for a proper notice to have been prepared and posted as required by the statute, the recital in the judgment order must prevail, and it will be presumed that a subsequent and valid service of a proper notice was had.

This insistence is abundantly supported by authority and is decisive of the case. In Turner v. Jenkins, 79 Ill. 228, it was said: “Confessedly, the service upon John Turner to the September term of court was defective. Without any steps having been taken, the cause was continued. At the ensuing term, the decree recites, defendants ‘were duly served ten days before the first day of the October term. ’ Only the summons to the September term is found in this record. Non constat but a summons may have been issued to the October term, duly served on defendants, and lost from the files. Every reasonable presumption will be indulged in favor of the jurisdiction of a court of general jurisdiction, and its findings in the decree that defendants were ‘duly summoned,’ will be held to be prima facie evidence of the existence of that jurisdictional fact. Nothing appears in this record that rebuts the presumption in favor of the jurisdiction of the court, as indicated by its finding in the decree. ’ ’

The doctrine announced in the Turner case has been followed and applied in the following cases: Mulvey v. Gibbons, 87 Ill. 367; Chicago Dock & Canal Co. v, Kinzie, 93 Ill. 415, Matthews v. Hoff, 113 Ill. 90; Connely v. Rue, 148 Ill. 207; and Benk v. Fiel, 249 Ill. 424.

Section 51 of the Municipal Court Act (J. & A. 3368) provides: “That both in direct and in collateral proceedings the same presumptions shall be indulged with respect to the jurisdiction of the Municipal Court over the subject matter of suits and over the parties thereto, and with respect to the regularity of the proceedings of said Municipal Court, as are indulged with respect to the jurisdiction and regularity of the proceedings of circuit courts in like cases. ’ ’

If the notice and return which appear in the record were necessarily the notice and return by virtue of which the court assumed to acquire jurisdiction of the defendant, that is to say, if subsequent to the date of such notice and return sufficient time had not elapsed prior to the date when judgment was entered for the service of notice as required by the statute, a different question would be presented and we should be compelled to hold that the finding of the court as to its jurisdiction was not conclusive, and that the court did not acquire jurisdiction of the defendant MeGregor Catering Company. Forrest v. Fay, 218 Ill. 165; Manternach v. Studt, 230 Ill. 356.

As the record discloses that ample time elapsed between July 31, 1911, the date of the defective notice, and January 9, 1912, the day when judgment was entered, to have acquired jurisdiction of the defendant by proper notice as required by the statute, the finding of such jurisdiction in the judgment order must be held to be conclusive.

The judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    Elizabeth Ruff, Appellee, v. Henry Ericsson, Commissioner et al., Appellants.
    Gen. No. 19,798.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed November 21, 1913.
    Statement of the Case.
    Bill filed by Elizabeth Buff against Henry Ericsson, commissioner of buildings of the city of Chicago, and others praying that defendants be enjoined from interfering with complainant in proceeding with the removal of a building. From an order that writ issue, upon the filing of a bond in the sum of one thousand dollars, defendants appeal.
    William H. Sexton, for appellants; Loring R. Hoover, of counsel.
    Bernard J. Larkin and James M. Slattery, for appellee ; Henry D. Bottum, of counsel.

      Abstract of the Decision.
    1. Injunction, § 219*—when order granting injunction is conditional. An order granting an interlocutory injunction “upon the filing of a bond therein in the sum of $1,000,” is merely a conditional order whereof the condition remains unexecuted until the bond is filed.
    2. Injunction, § 385*—when order will he reversed because informally entered. An order granting an interlocutory injunction “upon the filing of a bond therein in the sum of $1,000” which does not require the injunction to become operative within the time limited for taking an appeal therefrom is informally entered, and on appeal from such order when no bond has been filed and no writ of injunction has issued, the appeal may not properly be dismissed, but the order will be reversed because informally entered.
   Mr. Justice Baume

delivered the opinion of the court.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.


author: Mr. Justice Duncan

text:
    Sam Schmalhausen, Plaintiff in Error, v. Joe Zukowski, Defendant in Error.
    Gen. No. 18,088.
    1. Judgments, § 56

      —when court should grant application to open up confessed judgment. An application to open up or to set aside a confessed judgment to permit a defense to the action is addressed to the equitable as well as the legal powers of the court, and where the petition supported by affidavit shows that the applicant has a legal defense, or one that is triable by a jury, the court should grant it, unless the applicant has been guilty of laches in filing his petition.
    2. Municipal Court of Chicago, § 19

      —when confessed judgment may he opened up to permit defense. Municipal Court has jurisdiction to set aside a confessed judgment on a motion made more than thirty days thereafter, if a sufficient petition supports such motion showing equitable grounds for setting aside the judgment.
    3. Sales, § 327

      —when verdict for defendant in action for purchase price not sustained by the evidence. In an action for a balance due on liquors sold by plaintiff to defendant, a verdict for defendant held manifestly against the weight of the evidence.

      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 remanded.
    Opinion filed November 21, 1913.
    Frank Foster, for plaintiff in error.
    Comerford & Cohen, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

March 7,1911, a judgment by confession was entered on a note in the Municipal Court in favor of plaintiff in error for $351.56. June 8, 1911, an order of the court was entered vacating the judgment on motion of defendant in error, Joe Zukowski, and allowing him to defend the suit. September 25, 1911, a verdict and' judgment were rendered in a jury trial in favor of the defendant in error.

The first ground of reversal urged is that the Municipal Court was without jurisdiction to vacate the judgment by confession, because the motion to set aside said judgment was made more than thirty days after it was entered, and that under section 21 of the Municipal Court Act (J. & A. jf 3333) the order setting aside the judgment and the second judgment are nullities. That section provides as follows: "If no motion to vacate, set aside or modify any such judgment, order or decree (one final in its nature) shall be entered within thirty days after the entry of such judgment, order or decree, the same shall not be vacated, set aside or modified, excepting upon appeal or writ of error or by a bill in equity, or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a- bill in equity: Provided, however, that all errors in fact in the proceedings in such case, which might have been corrected at common law by.the writ of error coram nobis may be corrected by motion, or the judgment may be set aside in the manner provided by law for similar cases in the Circuit courts. ’ ’

No objection is raised to the sufficiency of the petition or affidavit sup or ting the motion to set aside the confessed judgment, and the contention that the Municipal Court has no jurisdiction to set aside such a judgment on a motion made more than thirty days thereafter is untenable, if a sufficient petition supports such motion showing equitable grounds for the setting aside of the judgment. The statute itself is expressly against plaintiff in error’s contention. An application to open up or to set aside a confessed judgment to permit a defense to the action is in any case addressed to the equitable, as well as the legal powers of the court, and if the petition supported by affidavit shows that the applicant has a legal defense, or one that is triable by a jury, the court should grant it, unless the applicant has been guilty of laches in filing his petition. Custer v. Harmon, 105 Ill. App. 76.

The note in suit was given to plaintiff in error by defendant in error for an alleged balance due on liquors sold and delivered. The defense of defendant in error was that he sold the liquors of plaintiff in error as his agent on a salary a part of the time and a part of the time on a commission, and that the debt or the account was not owed by himself to plaintiff in error, but by the customers to whom defendant in error delivered the liquors; that he signed the note in question which was for the total debts of said customers and that there was no consideration to support the note. Plaintiff in error contended that the liquors were by him sold and delivered directly to defendant in error and that defendant in error promised to pay for the same; that they had a settlement of their account on the day the note in question was given and agreed upon the amount due from defendant in error to plaintiff in error, and that on request defendant in error executed the note in settlement. The contention of the defendant in error was supported only by his own testimony, while plaintiff in error’s case was supported by his books of account and the note, his own testimony, and in addition thereto by the testimony of three apparently disinterested witnesses, Maurice G-armisa, a liquor dealer, Edward Carpenter, a lawyer who wrote the note, and Thomas Daily, paying teller of the Calumet National Bank, all of whom testified that defendant in error said that he owed the debt to plaintiff in error and would pay it. Defendant in error was not a very strong witness in his own behalf. In testifying about giving the note he said: “This note was made out in Schmalhausen’s place about ten o’clock in the morning. * * * I was taking out orders and he said, ‘Give me a note or I arrest you.’ This note was made at that time. Mr. Carpenter made it out. The orders of whiskey that I was taking out was for West Pullman and Kensington. About a week ago I want to quit. I owed $400.00. I bring in $400.00 and left $60.00.” And again he testified: “I told Mr. Schmalhausen I could not pay, because they (the customers) tell me they cannot pay; if he can trust me, then I would trust them. When the customers paid the money to me, I brought it to Mr. Schmalhausen. When I delivered the goods, sometimes I made out the bills and sometimes the bookkeeper. * * * He got the names from my book. I gave him the addresses.”

As the verdict is manifestly against the weight of the evidence, the judgment will have to be reversed, and as the cause must be again tried, we refrain from further comment on the merits of the evidence. The judgment is reversed and the cause is remanded.

Reversed and remanded.


text:
    Post Falls Lumber & Manufacturing Company, Ltd., Defendant in Error, v. W. A. Messer Lumber Company, Plaintiff in Error.
    Gen. No. 18,165.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13

      —when formal written pleadings not required. No formal written pleadings are required in a fourth class action in the Municipal Court of Chicago.
    2. Municipal Court of Chicago, § 13

      —when statement and affidavit are sufficient. A statement of claim in a fourth class action in the Municipal Court of Chicago, for lumber sold and delivered did not state in terms that the claim was for lumber sold and delivered, but was stated in words and figures sufficiently for any lumberman to understand every item of charge and credit therein. The affidavit of merits states that the cause was a suit upon contract for the payment of money; that the nature of its demand is for a balance as set forth in the claim, and that a certain sum is due. Held, the statement of claim and affidavit when considered together were sufficient to support the judgment.

      Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    Statement of the Case.
    Action by Post Falls Lumber & Manufacturing Company, Ltd., a corporation, against the W. A. Messer Lumber Company, a corporation, to recover a balance due for lumber sold and delivered. From a judgment for two hundred and seventy-five dollars for plaintiff, defendant brings error.
    Harry A. Biossat, for plaintiff in error.
    Julius N. Heldman, for defendant in error; Edward Graff, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number

   Mr. Justice Duncan

delivered the opinion of the court.

3. Municipal Court of Chicago, § 19 —when judgment not vacated. Where a defendant in an action in the Municipal Court of Chicago did not file an appearance until two days after judgment was entered and not within time required by rules of court and made no sufficient excuse for not filing an affidavit of defense, and took no action until thirty days after judgment was entered, no diligence is shown and a judgment by default will not be vacated however meritorious the defense may appear.

4. Judgment, § 134 —diligence must he used in vacating default judgment. Both diligence and merit must be shown to have a judgment by default set aside, and a judgment will not be vacated where due diligence to protect rights was not exercised although the party may have a meritorious defense.


text:
    W. A. Fowler Paper Company, Defendant in Error, v. Bert Jones Sales Book Company et al. Bert Jones, Plaintiff in Error.
    Gen. No. 18,189.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    Rehearing denied December 8, 1913.
    Statement of the Case.
    Action by W. A. Fowler Paper Company, a corporation, against Bert Jones Sales Book Company, a corporation, Bert Jones and David M. Nichol to recover on a promissory note. From a judgment for plaintiff for $238.20, Bert Jones brings error.
    The affidavit of defense of Bert Jones was, in substance, that his indorsement of the note was for the accommodation of the Bert Jones Sales Book Company, and that no notice of nonpayment of the note was given him by defendant in error.

      Abstract of the Decision.
    1. Bills and notes, § 275

      —who may make presentment for payment. The holder of a promissory note, or his authorized agent, is the proper person to malte the presentment of such paper for payment.
    2. Bills and notes, § 275

      —collecting bank may make presentment for payment. A presentation for payment of a promissory note by a bank having it for collection is sufficient.
    . 3. Bills and notes, § 363

      —when failure to deny is admission. The general rule that every allegation of a declaration or complaint not denied by pleas or answers shall, for the purposes of the action, be taken as true is applicable to allegations of execution, indorsement and demand of pasunent of a promissory note.
    4. Bills and notes, ,§ 450

      —when evidence shows notice of nonpayment. In an action against the indorser of a promissory note the manager of the collecting bank testified that he wrote letters to each indorser notifying him of dishonor, that he gave the letters to a boy whose duty it was to. copy them and take them to the mailing department, and the book copy was introduced. Another indorser testified that the letters were received and recited a conversation to that effect with defendant. Defendant denied the conversation, the receipt of the letter and other evidence. Held, a finding that notice of dishonor was given would be sustained.
    5. Evidence, § 134

      —what preliminary proof is sufficient to admit secondary evidence of note. The evidence of the manager of a collecting bank that notices of dishonor of a promissory note should have been mailed to indorsers in due course of business, and of an indorser of receipt of the notice, is sufficient to admit secondary evidence of the contents of the notice against another indorser, when considered with the fact that his attorney when asked to produce the original notice stated in open court: “We are unable to produce it.”
    6. Appeal and errob, § 1489*—admission of incompetent evidence otherwise established is harmless. In an action on a promissory note, the admission of evidence as to mailing a notice of dishonor is harmless, though it may not, when considered alone, be sufficient to show mailing, where there is sufficient evidence in the entirety to show mailing and receipt of notice by the defendant.
    Ode L. Rankin, for plaintiff in error.
    Charles F. McKinley, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.


text:
    Voightmann & Company, Plaintiff in Error, v. Cross-Conklin Company et al., Defendants in Error.
    Gen. No. 18,233.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Mechanics’ liens, § 167

      —jurisdiction of Municipal Court. The only action on a subcontractor’s claim for a mechanics’ lien cognizable in the Municipal Court of Chicago is an action at law in assumpsit jointly against the owner and contractor under the Mechanics’ Liens Act, § 28, J. & A., jj 7166.
    • 2. Mechanics’ liens, § 171

      —when process must he served on contractor. A subcontractor suing an owner and contractor under the Mechanics’ Liens Act, § 28, J. & A., j[ 7166, is not entitled to a judgment against the contractor not served by process or publication.
    3. Mechanics’ liens, § 202

      —when judgment must he against owner and contractor jointly. In a subcontractor’s action in assumpsit under the Mechanics’ Liens Act, § 28, J. & A., T 7166, against the owner and contractor, the judgment must be against the owner and contractor jointly for the whole sum due the subcontractor from the contractor, but can only be enforced against the owner to the extent of his liability under the act, and the judgment should find and recite the amount and date of the. subcontractor’s lien.

      Error to the Municipal Court of Chicago; the Hon. William C. DeWolf, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed November 21, 1913.
    Rehearing denied December 8, 1913.
    Statement of the Case.
    Claim of Voightmann & Company as subcontractors against Cross-Conklin Company, a corporation, Irving Schoenbrun and Samson Schoenbrun, for a mechanics’ lien. From a judgment for defendants, plaintiff brings • error.
    J. H. Perkinson, for plaintiff in error.
    Adler & Lederer, for defendants in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number*

   Mr. Justice Duncan

delivered the opinion of the court.

4. Mechanics’ liens, § 202 —when judgment may he rendered against contractor. Where in a subcontractor’s action in assumpsit under the Mechanics’ Liens Act, § 28, J. & A., If 7166, against the owner and contractor, no lien is established against the owner, judgment may he rendered against the contractor.

5. Process, § 2 —party served with, summons must he made defendant. Serving a summons on a party without making him a party defendant to the suit does not make him a party defendant.


author: Mr. Presiding Justice Baker

text:
    Albert Kowalski by Frank Kowalski, Defendant in Error, v. John S. Kelley, Plaintiff in Error.
    Gen. No. 18,045.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Action by Albert Kowalski, a minor, by Frank Kowalski, Ms father and next friend, against John S. Kelley to recover for personal injuries sustained by plaintiff while riding with John S. Kelley in an automobile driven by the latter. The injuries were alleged to have been caused by John S. Kelley negligently driving the automobile so as to cause a collision with a street car. From a judgment in favor of plaintiff against John S. Kelley for two hundred and fifty dollars, the latter brings error.
    Carpenter & Barnhardt, for plaintiff in error; Clayton W. Mogg and Wyman, Jurgens & Carpenter, of counsel.
    Gallagher & Messner, for defendant in error.

      Abstract of the Decision.
    Automobiles and garages, § 3*—verdict for injuries sustained 6y occupant resulting from negligent driving sustained. In an action for injuries sustained by plaintiff resulting from the negligent driving of an automobile in which plaintiff was riding at the request of defendant, the questions whether defendant was negligent in driving the automobile and whether plaintiff was guilty of contributory negligence in failing to jump from it before it was struck by a street car, held questions for the jury, and verdict for plaintiff sustained.
   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Elvira Bergamo, Defendant in Error, v. Tony Tarello, Plaintiff in Error.
    Gen. No. 18,184.
    1. Landlord and tenant, § 209

      —effect.of statute of frauds on covenant to repair. Tenant in possession is bound by a covenant to repair, although the agreement by which he holds is void, or contrary to the statute of frauds.
    2. Landlord and tenant, § 94

      —when occupancy under a lease within the statute of frauds creates tenancy from month to month. One taking possession under a verbal lease voidable under the statute of frauds, agreeing to pay rent monthly and paying rent as it accrues, becomes a tenant from month to month.
    3. Landlord and tenant, § 479

      —when notice by tenant' from month to month terminates lease. Where a tenant from month to month gives notice on the first day of a month of his intention to move at the end of the month and pays rent for that month, held tenant is not liable for the next month’s rent where he moves before the first day of the next month.
    4. Frauds, statute of, § 96

      —when part performance does not take lease out of statute. The doctrine of part performance is not applicable to lease within the statute of frauds in a court of law.
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed with judgment here.
    Opinion filed November 24, 1913.
    Cairoli Gigliotti, for plaintiff in error.
    Friedman & Ader, for defendant in error.

      See Illinois Notes Digest, Veis. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

February 1, 1910, the parties to this suit entered into a verbal contract by which plaintiff, Bergamo, rented to defendant, Tarello, certain premises for three years at a monthly rental of $14 per month, payable monthly, and defendant agreed to reimburse plaintiff for the cost of certain repairs if he moved out before the expiration of the three years. Defendant gave notice August 1, 1911, of his intention to move out at the end of the month, paid the rent for August and moved out during the month. Plaintiff brought suit for the rent for September and for the cost of making certain repairs and on a trial by the court had judgment for $86.96, and the defendant has sued out this writ of error.

The lease was void under the statute of frauds and the doctrine of part performance is not applicable to a lease within the statute of frauds in a court of law. Marr v. Ray, 151 Ill. 340, 26 L. R. A. 799; Warner v. Hale, 65 Ill. 395.

When a party enters into possession of premises under a verbal letting voidable under the statute of frauds, agreeing to pay rent monthly, and pays rent as it accrues, he becomes a tenant from month to month. Marr v. Ray, supra; Brownell v. Welch, 91 Ill. 523; Warner v. Hale, supra; Prickett v. Ritter, 16 Ill. 96.

A tenant in possession is bound by the covenant to repair, although the agreement under which he holds may be void, or contrary to the statute of frauds. 1 Taylor, Landlord and Tenant, sec. 363.

In Marr v. Ray, supra, it was said (p. 345): “The policy of tlie statute is satisfied in preventing any person being charged in a contract creating an interest in lands for a longer period than one year by an oral contract; and the parties having proceeded to act under the contract, and having created the relation of landlord and tenant, the contract, so far as stipulations are made not within the statute, governs the parties so long as possession is retained and the tenant has an interest from month to month, and is regulated in every respect by the terms of the lease, except as to the term; and the proof of the contract is sufficient proof of the amount of rental per month and time of payment. Doe on the demise of Riggs v. Bell, 5 Burn. & East 471; Richardson v. Gifford, 1 Adel. & Ell. 52; Schuyler v. Liggett, 2 Cowan (N. Y.) 660; People ex rel. Kline v. Rickert, 8 id. 226; Barlow v. Wainwright, 22 Vt. 88; Laughran v. Smith, 75 N. Y. 205; 1 Greenleaf’s Cr. on R. P. 246; Browne on Frauds, sec. 39.”

The court gave judgment for the plaintiff for $86.90, made up of the following items:

Rent...............................$14.00.

Plumbing .......................... 26.40.

Gas pipe........................... 14.00.

Plastering and painting.............. 25.00.

Broken electric lamp................. 7.50.

We think the award of $14 for rent was improper because plaintiff gave notice of his intention to move out August 1, and moved out before the first of Sepl tember, and also think that the award of $26.40 for plumbing was improper. Possibly the defendant was liable for the cost of replacing a closet, but the plumber made a gross charge of $26.40 for putting in a new closet and for other work for which the defendant clearly was not liable, and it is impossible to tell what was the cost of replacing the closet. As to the other items, amounting to $46.50, we think the court might from the evidence properly hold the defendant liable to the plaintiff.

The judgment of the Municipal Court will be reversed and judgment entered here for the defendant in error, Elvira Bergamo, against the plaintiff in error, Tony Tarello, for $46.50.

Judgment reversed with judgment here.


text:
    Harry Foster Dean, Defendant in Error, v. Chicago and Northwestern Railway Company, Plaintiff in Error.
    Gen. No. 18,262.
    (Not to be reported in full.)
    Abstract of the Decision.
    Civil rights, § 3

      -—when refusal to allow negro to ride in elevator violation of statute. Evidence held to show that plaintiff, a negro, was refused the privilege of riding in defendant’s depot elevator solely on account of his race and color and that such refusal was an act done by the elevator man in the scope of his employment.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Action by Harry Foster Dean against Chicago and Northwestern Railway Company, a corporation, for the violation of the Civil Rights Act, J. & A. (f 3531, by a servant of defendant refusing to carry plaintiff in an elevator, on account of plaintiff being colored. From a judgment in favor of plaintiff for three hundred dollars, defendant brings error.
    Frank D. Fulton and Irving Herriott, for plaintiff in error; Edward M. Hyzer, of counsel.
    No appearance for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Tomasz Narkiewicz, Appellee, v. Valentine Wachowski, Appellant.
    Gen. No. 18,267.
    Evidence, § 63

      —when value cannot he proved hy impeaching statement. Where in an action by a vendee of land against the vendor to recover for a breach of a contract to sell and convey, a witness for. plaintiff testifies that the value of the property was a certain amount and on cross-examination admits that prior statements as to value were untrue and that plaintiff did not have a certain offer for the property, a written statement signed by the witness, offered on rebuttal, that a third person stated he would buy the property of plaintiff for a certain amount if plaintiff had title, but would not do so inasmuch as plaintiff did not have title, is inadmissible to prove value or to impeach the witness, and, further, is hearsay.
    Smith, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 24, 1913.
    Cheney & Evans, for appellant; White & Wilson, of counsel.
    Beach & Beach, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

September 13, 1910, plaintiff, Narkiewicz, brought assumpsit in the Circuit Court against defendant, Waehowski, to recover damages for a breach by the defendant of a contract in writing between the parties made June 24, 1910, whereby defendant agreed to sell and convey and plaintiff agreed to buy certain real estate at the price of $17,500.

The contention of the plaintiff was that the value of the real estate exceeded the contract price, and that of defendant was that such value did not exceed the contract price. Defendant plead and gave evidence tending to prove that the plaintiff falsely and fraudulently represented to him that the property had not been offered to plaintiff by any broker of the defendant, when in fact it had been offered to him by a broker employed by the defendant. In the view taken by us of the case it will not be necessary to decide whether the plaintiff did or did not make such representations to the defendant.

The evidence as to the value of the real estate was conflicting, that for the plaintiff tending to show that it did, and that for the defendant that it did not exceed the contract price. ' Stanley Zaleski, called by the plaintiff, testified that the market value of the property at the time of the breach of the contract, August, 1910, was about $16,500. On cross-examination he admitted that he told defendant’s attorneys a few weeks before the trial that in his opinion the value of the property was $19,000 or $20,000, and further testified that such statement was not true. That it was “promotion” and in answer to the question, “You were lying, were you?” answered “Yes.” He further testified that he told plaintiff that he could sell the property for more than the contract price; that he had a customer named Toddy; that Toddy had never told him what he would pay for the property and did not agree with plaintiff to buy the property. He was then shown the following paper writing and admitted that he signed it and it was marked for identification, ‘ ‘ Plaintiff’s Exhibit 4.”

“Chicago, September 16, 1910. My name is St. Zaleski. I am in the real estate, loan and insurance business at 1164 Milwaukee avenue. I knew that Tomcisz Narkiewicz had purchased or contracted for a property known as 1400 Dickson street, from V. Wachowski. I had a purchaser, Frank Tadych, for this property. I had one or two talks with Narkiewicz and Tadych separately, and at last got them to agree to sell and buy at $24,000 the above property. When I got parties together to pay money Tadych said he would buy for $24,000 if Narkiewicz had the title, but he had seen his lawyer and lawyer said if Narkiewicz and Wachowski were in dispute over contract he would advise Tadych not to buy until dispute was settled. Tadych said he would offer $24,000 if Markiewiez could give good title, but as he did not then have title he would not buy until good title could be furnished.
Narkiewicz was to pay me 2% % on full purchase price.
(Signed) Stanley Zaleski.”

In rebuttal Mr. Beach, plaintiff’s counsel, offered the exhibit in evidence and it was objected to by the defendant. Mr. Beach then said, “I don’t contend that it fixes the value, but it impeaches Zaleski.” The Court ruled that it might be admitted. Defendant’s counsel said: “We take it that it is offered for impeachment purposes only” and Mr. Beach replied, “For whatever it is worth,” and defendant excepted to the ruling of the court.

The existence of such a paper was brought out by the defendant on the cross-examination of Zaleski. It does not state that any valid contract for the purchase and sale of the property had been made, but only states the conclusion of Zaleski that plaintiff and Tadych (Toddy) had agreed to sell and buy the property at $24,000. That no contract was made appears from Zaleski’s testimony that Tadych said, “He would offer $24,000 if Narkiewicz had good title, but as he then did not have title, he would not buy until good title could be furnished.” At most, the exhibit can be held to state what Tadych had offered or was willing to pay for the property. The value of an “offer” depends on too many considerations to allow it to be used as a test of the value of property. Fowler v. Middlesex County Com’rs, 6 Allen (Mass.) 92; Lewis’ Eminent Domain, sec. 446. As what Tadych offered or was willing to pay for the property was not a test of the value of the property, proof of such offer or willingness was not admissible for the purpose of impeaching Zalesld or for any other purpose. Chicago, B. & D. Ry. Co. v. Kelly, 221 Ill. 498; Hine v. Manhattan Ry. Co., 132 N. Y. 477; Watson v. Milwaukee & M. Ry. Co., 57 Wis. 332.

The written statement of Zalesld was made September 16, and the suit was brought September 13, 1910. His assertion that Tadych would offer $24,000 if Narkiewicz had good title was mere hearsay, and yet, coupled with the statement that Tadych would pay that price if the title was good, might give to it more weight than an opinion given by a witness not thus supported.

In the opinion of a majority of the court it was reversible error to admit in. evidence the paper signed by Zaleski, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Smith dissents.


text:
    In the Matter of the Petition of Patrick McCarthy, Insolvent. On Appeal of Patrick McCarthy, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 18,286.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Petition of Patrick McCarthy, an insolvent debtor, arrested at the suit of Andrew Wydra, against the People of the State of Illinois, to be released from the custody of the sheriff holding him on a writ of capias ad satisfaciendum issued on a judgment recovered in the Municipal Court of Chicago. From a judgment dismissing the petition, petitioner appeals.

      Abstract of the Decision.
    Execution, § 306

      —when denial of release of insolvent cannot he reviewed. Where on an appeal by an insolvent debtor, arrested under a writ of cavias ad satisfaciendum from a judgment" dismissing his petition to be released from arrest, the record only shows the filing of the petition, denial thereof, remand to the sheriff, dismissal of the petition and appeal therefrom, and does not contain a bill of exceptions, it cannot be determined whether it was error to hold that malice was of the gist of the action or to dismiss the petition.
    George Remus, for appellant.
    Thomas F. Swanson and Elwyn E. Long, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.


author: Mb. Presiding Justice Baker

text:
    A. Yuckman, Defendant in Error, v. Joseph A. Fischer, Plaintiff in Error.
    Gen. No. 18,292.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 24, 1913.
    Statement of the Case.
    Action by A. Yuckman against Joseph A. Fischer to recover broker’s commissions for effecting an exchange of property. From a judgment for plaintiff for five hundred and seventy-five dollars, defendant brings error.
    Vincent D. Wyman and Otto W. Jurgens, for plaintiff in error.
    Adler & Lederer, for defendant in error.

      Abstract of the Decision.
    Brokers, § 88*—when right to commission not shown. A broker suing to recover commission for effecting an exchange of property testified that defendant accepted an offer for a certain amount for his property and agreed to take in exchange incumbered property, assuming the mortgage, the equity being equal in value to his property, but did not testify that the owner of the incumbered property had made such an offer. Defendant testified he neither made nor accepted the offer, and the owner of the mortgaged property contradicted plaintiff. Held, a verdict for plaintiff was manifestly against the evidence.
   Mb. Presiding Justice Baker

delivered the opinion of the court.


text:
    Michael Nelson, Appellee, v. Buick Motor Company, Appellant.
    Gen. No. 18,306.
    1. Damages, § 68

      —duty of person injured to lessen loss. As a general rule it is the duty of a party injured by a breach of contract or tort to make reasonable. effort to avoid damages therefrom, and such damages as might have been avoided by reasonable diligence ón his part are not recoverable.
    2. Damages, § 214

      —when instruction denying recovery for failure of plaintiff to prevent loss proper. In an action for the breach of a contract for the sale of an automobile, where the defendant had agreed to take plaintiff’s automobile in part payment and took it from the rear of plaintiff’s residence in accordance with the agreement, but later declined to allow plaintiff the price agreed upon and returned it to plaintiff’s alley, where it remained all winter until it disappeared, held, that the courts’ refusal to give an instruction to the effect that plaintiff could not recover for any loss or damages which he sustained by reason of his failure to make reasonable effort to prevent loss or damage, was reversible error.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term; 1912.
    Reversed and remanded.
    Opinion filed November 24, 1913.

      Eddy, Wetten & Pegler, for appellant; Charles H. Pegler and W. H. Dieterich, of counsel.
    Edward J. Green, for appellee; W. C. H. Keough, of counsel.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

In the Circuit Court plaintiff, Nelson, had a verdict and judgment against the defendant, Buick Motor Co., for two hundred dollars damages for the breach by the defendant of a contract which plaintiff alleged was made by the parties, whereby the defendant agreed to sell plaintiff an automobile for one thousand and fifty dollars and receive as part payment therefor an automobile of the plaintiff at three hundred dollars.

We think that from the evidence the jury might properly find the issne as to whether such a contract was made for the plaintiff, but as the judgment must be reversed and the cause remanded on another ground we shall not discuss the evidence on the issue above stated. December 4, 1909, the machine of the plaintiff was in a garage and it was agreed that the plaintiff should have it brought to the alley in the rear of his house and that the defendant should take it from that place. December 6, the defendant took the machine away and an hour or two later telephoned plaintiff that it would not accept the machine unless plaintiff would agree that it should be taken at two hundred dollars. This plaintiff declined to do and the defendant sent the machine back the same day to the place from which it was taken. It remained in the alley where it was left, according to the testimony of the plaintiff, all winter and then disappeared and has not since been seen by either party. The defendant asked the court to give this instruction:

“The court instructs the jury that it was the duty of the plaintiff to make all reasonable exertions to render the damages suffered by him (if you find he suffered any) as light as possible. In no case can a person recover for damages to his business or property, which he knowingly permits to go on without making every reasonable effort and taking active steps to prevent it or have it stopped. If you believe from the evidence in this case that the plaintiff could have lessened the loss or damage, if any, suffered by him, by taking proper and reasonable precaution so to do, then the defendant cannot be charged with liability for any damages caused by plaintiff’s neglect as before described,” but the court refused to do so and the defendant excepted. The general rule is that it is the duty of a party injured by a breach of contract or tort to make a reasonable effort to avoid damages therefrom, and such damages as might by reasonable diligence on his part have been avoided are not to be regarded as the natural and probable result of plaintiff’s acts, and therefore there can be no recovery for damages which might have been avoided by reasonable effort on the part of the person injured. 6 Am. & Eng. Encyc. of Law, 605. In Dobbins v. Duquid, 65 Ill. 464, in an action of trespass quare clausum fregit it was held that the law imposed a duty on the plaintiffs to make ordinary and reasonable effort to prevent loss and that they could only recover for the natural consequences of the wrongful act charged and not for consequential damages which might have been avoided by reasonable care on their part. The same rule is stated and followed in Brant v. Gallup, 111 Ill. 487-497, and Woodward v. Pierce Co., 147 Ill. App. 339.

We think that the court erred in refusing to give said instruction, and for that error the judgment is reversed and the cause remanded.

Reversed and remanded.