text:
    Mary Geraldine Neville, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 19,704.
    (Not to be reported in full.)
    Error to 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 and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Mary Geraldine Neville against the city of Chicago for damages for injuries resulting from a fall on a defective sidewalk. From a judgment in favor of defendant, plaintiff brings error.
    The essential facts are stated in a review of a former trial in the opinion filed in Neville v. City of Chicago, 154 Ill. App. 537. Upon the second trial, it was clearly shown that the sidewalk upon which the accident occurred was at that time old and worn, was affected by dry-rot and had been frequently repaired. While several witnesses called by defendant testified that they had never seen any holes in the sidewalk, all of them practically admitted that the walk was in the condition above stated. The manner in which the accident occurred was not disputed. The real dispute in the case arose upon the claim of the plaintiff that certain ailments that developed long after the accident were directly caused by the accident. Most of the evidence on this point was given by physicians. Some of the evidence of these physicians was opinion evidence, and some was as to matters of fact. The physician who attended the plaintiff at the time of the accident testified only as to the plaintiff’s injuries at that time and his treatment for a week or two thereafter. At the defendant’s request, the court gave to the jury the following instructions:
    “The court instructs you that you are to judge of the credibility of doctors and experts the same as of the credibility of other witnesses. You are not bound to take as absolutely true the testimony of any doctor or expert, but you are authorized to consider the apparent consistency, fairness and congruity of such testimony; the probability or improbability of the same; the motive, temper, feeling or bias of the witness, if any, his interest or lack of interest, if any, in the result of the case; and to give such credit to such testimony as, under all the circumstances, you believe it to be entitled to, and no more.”
    A. W. Fulton and T. F. Laramie, for plaintiff in error.

      Abstract of the Decision.
    1. Witnesses, § 253

      —effect of calling attention to witnesses or particular testimony. The practice of calling special attention to particular witnesses or particular testimony in instructions to the jury may so effect the result as to constitute reversible error.
    2. Instructions, § 101*—credibility of particular classes of persons. Where othér instructions given were a sufficient guide to the jury in weighing the evidence, including that of doctors, a special instruction as to the testimony and credibility of the doctors was held to be reversible error, the jury being informed that they were not bound to take as absolutely true the testimony of any doctor or expert, which, under the peculiar circumstances of the case, could hardly fail to convey the impression that the testimony of the doctors should be scrutinized more closely than that of other witnesses.
    3. Instructions, § 95*—credibility of witnesses. The principle that a jury is not bound to accept as true the testimony of any witness, if there are any facts or circumstances tending to discredit his evidence, is not peculiarly or especially applicable to the testimony of doctors or experts, so that such experts should not be singled out in announcing the general rule to the jury.
    4. Municipal, Corporations, § 994*—what constitutes negligence in care of side ■valle. In an action against a city for personal injuries from a fall on a defective sidewalk, evidence held to show defendant negligent, so as to require a reversal of a judgment on a verdict of no* guilty.
    William H. Sexton and N. L. Piotrowski, for defendant in error; David R. Levy, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Fitch

license: Public Domain

text:
    Raphael Jackson and Michael Jackson, trading as R. Jackson & Company, Defendants in Error, v. Grand Crossing Tack Company, Plaintiff in Error.
    Gen. No. 19,792.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and erbob, § 1265

      —necessity of showing error in proceedings in trial court. When the record and proceedings of a trial court are sought to he reviewed by writ of error, the burden is on tfye plaintiff in error to show that the proceedings were erroneous, to overcome the presumption of regularity and freedom from error indulged in on review.

      Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Rehearing denied and additional opinion filed February 8, 1915.
    Statement of the Case.
    Action by Raphael Jackson and Michael Jackson, trading as R. Jackson & Company, against Grand Crossing Tack Company, a corporation. Defendant entered an appearance and filed a written demand for a jury in apt time. From an order entered on motion of plaintiffs for dismissal of the suit “without costs, it appearing to the court that no costs have accrued to either party to this cause,” defendant brings error.
    The record filed in the Appellate Court consisted of certified copies of the summons, statement of claim, appearance, affidavit of merits.and judgment of dismissal. No bill of exceptions, statement of facts or stenographic report appeared in the record.
    A. W. Martin and Edward H. S. Martin, for plaintiff in error.
    Harry C. Leemon, for defendants in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Appeal and ebrob, § 1265 —presumptions to support finding of trial • court. In reviewing a judgment by writ of error every reasonable intendment not negatived by the record will be indulged in support of the judgment below.

3. Appeal and ebrob, § 1303*—presumption of sufficiency of evidence to sustain finding. Where in an order of dismissal the trial court found no costs to have accrued to either party, the' finding is presumed to be based upon evidence sufficient to sustain it in the absence of a statement of facts or stenographic report in the record.

4. Appeal and error, § 1303*—effect of statutory requirement as against finding. The fact that the statute requires a defendant demanding a jury to pay a fee of six dollars, does not overcome a finding of the court to the contrary, that no costs had accrued to either side upon the entry of an order of dismissal, since a presumption of the sufficiency of the evidence to sustain the finding prevails as against a presumption that the statutory fee was paid in a given case.

5. Municipal Court of Chicago, § 26*—necessity of statement of facts, transcript or report for review. If a party has not preserved the evidence for review in the manner prescribed by statute, he is not in a position to question the sufficiency of the evidence to support the finding of the trial court.

6. Appeal and erbob, § 639*—impropriety of affidavits to support motion for certificate of importance and appeal. Affidavits in support of a motion for a certificate of importance and appeal are wholly out of place in the Appellate Court.

7. Municipal Court of Chicago, § 19*—modification of judgment. .Municipal Court Act (Hurd’s R. S„ .see. 284, J. & A. j[ 3333) provides for the vacation, setting aside or modification of a judgment after the expiration of thirty days, upon a proper petition.

8. Costs, § 65*—necessity for motion to retax for review. The taxation of costs is a-matter that cannot be reviewed by an Appellate Court without a motion having been first made in the trial court to retax the costs.


text:
    H. L. Hollister, Appellant, v. Samuel Dinsmore, Appellee.
    Gen. No. 19,916.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Pledges, § 24

      —effect of conditional delivery of stock to pledg- or. Where it appeared that defendant executed and delivered a' note to plaintiff and deposited with him as collateral security a certificate of stock in a corporation, and that the note being not paid when due, defendant called at -plaintiff’s office and requested permission to take the collateral, sell it and bring back the proceeds, saying that he had a chance to sell all his stock in the com-pany including that in plaintiff’s hands, but that the purchaser wanted all or none, and the amount then due to plaintiff was computed and a demand note -for that amount made out and signed by defendant, and the collateral was delivered to him for the purpose and upon the understanding stated and defendant sold the stock but failed to account for the proceeds, held that the delivery of the stock by plaintiff to defendant was not an unconditional delivery of the same, but that defendant received it merely as the agent of the plaintiff for the special and limited purpose of selling the same for plaintiff’s benefit, and that plaintiff’s lien was not thereby lost, and the failure or refusal of defendant to return either the stock or the proceeds constituted a conversion.

      Appeal from the Superior Court of Cook county; the Hon. Claeence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by H. L. Hollister against Samuel Dinsmore in trespass on the case and in trover. The trial court held “that the evidence introduced on behalf of the plaintiff did not tend to sustain an action other than in assumpsit. From a judgment on a directed verdict for defendant, plaintiff appeals.
    Harris F. Williams, for appellant; Eldon M. Votaw, of counsel.
    No appearance for appellee.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. ' Trover and conversion, § 34 —joinder of trover and case. It is permissible to join counts in trover and in case in the same declaration.

3. Trover and conversion, § 34*—propriety of declaration in case and trover. Upon a declaration in trespass on the case and in trover for the conversion of a certificate of stock intrusted to a pledgor to sell and account for the proceeds to the pledgee, held the trial court erred in finding no recovery could be had except in assumpsit.

4. Pledges, § 46*—measure of damages for conversion 8y pledgor. Where a pledgor secures possession of stock in a corporation from his pledgee for the purpose of effecting a sale of the same and accounting for the proceeds to the pledgee, upon his failure to do so the measure of damages is the value of the collateral with interest from the time of the conversion, unless such amount exceeds the sum due the pledgee, and such value is, of course, material in a tort action.


text:
    R. Stuart Adam, Administrator, Appellee, v. Columbian National Life Insurance Company, Appellant.
    Gen. No. 19,981.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Rehearing denied and additional opinion filed February 18, 1915.
    Statement of the Case.
    Action by E. Stuart Adam, suing as the administrator of the estate of George J. Adam, deceased, against Columbian National Life Insurance Company, to recover on a life insurance policy for $5,000. From a judgment in favor of plaintiff for the full amount of the policy and interest, defendant appeals.
    At the trial, plaintiff introduced in evidence the policy, receipts for all the annual premiums accruing during the lifetime of the deceased, proof of the death of the insured, the appointment of an administrator and the delivery of proofs of death to the insurance company. Defendants then offered to prove that the last annual premium, due on December 6, 1911, was never in fact paid; that instead of paying that premium the insured gave his promissory note for the amount thereof, due six months thereafter, and then extended two months further, which note contained a recital to the effect that it was given “with the full knowledge and intent,” on the part of the insured, that if the note was not paid when due, “said policy shall become absolutely null and void, subject to the legal conditions contained therein relating to cash value, paid up and extended insurance,” without further notice; and that said note was never paid. Defendant offered to prove further, by oral testimony, that at the time such note was given it was fully explained to the insured that a failure to pay the note at maturity “would absolutely void his policy. ’’ Plaintiff objected to all this offered evidence and the objections were sustained by the trial court, to which ruling exceptions were duly preserved. No other defense being made, the court thereupon instructed the jury to find a verdict for plaintiff for the full amount of the policy and interest.
    Plaintiff offered in evidence five receipts. The first read as follows: “Received the annual premium due Dec. 6, ’07, as per statement in the margin hereof, on policy No.,” etc.; and in the margin was the following: “Premium for one year, $163.00.” The next three were in the same form and each was marked with the “date when paid.” The fifth “receipt,” the one in question, was entirely different from the others. While it was labeled a “premium receipt” across the margin, the words of such receipt were as follows: “The premium due as set forth below has been settled this day.” Beneath this statement the policy number, the “due date” and the amount of the premium were given.
    Abstract of the Decision.
    1. Insurance, § 149

      —effect of recital of payment of first premium. Insurance companies are concluded on ground of public policy by a recital in the policy to the effect that the first premium has been paid and will not be heard to assert to the contrary for the purpose of avoiding the contract of insurance, if the policy actually has been delivered.
    2. Insurance, § 886*—explanation of premium receipt by parol. Where a contract of insurance is already in force and is a continuing contract requiring periodical payments to be made to keep it alive and prevent forfeiture, and a receipt is given merely for the purpose of acknowledging the payment of one of the subsequent premiums as required by the terms of the contract, no new contract is thereby created and there is, therefore, nothing in such case to prevent the application of the ordinary rule permitting receipts to be explained or contradicted by parol evidence, to show that a subsequent premium was not in fact paid.
    3. Words and phrases'—to “settle” not equivalent of to “pay” The word “settle” has a double meaning and is used alike to denote an adjustment of a demand and a payment, since it does not necessarily convey the meaning of “payment.”
    4. Insurance, § 886*—admissibility of parol evidence. Where it appeared from plaintiff’s evidence that while each of four receipts acknowledged in terms that an annual premium of a certain sum had been “paid” to a life insurance company and the fifth merely Stated that the premium due on a certain date had been “settled,” and after this “receipt” had been offered in evidence plaintiff also introduced a copy of a letter written by plaintiff’s attorney to the company stating that a note was in payment of the premium in question and authorizing the company to deduct the amount due on that note from the amount claimed to be due under the policy, held, from plaintiff’s own evidence, that the last receipt was not given to evidence a cash payment, but was given in. exchange for the note of the insured; and the execution of the receipt and of the note were parts of one and the same' transaction, so that defendant was clearly entitled to introduce the note for the purpose of showing the whole transaction and to explain the sense in which the word “settle” was used in the last receipt, as bearing on the fact whether the last annual premium of a policy was paid, as a condition thereof, the question of the effect of such a condition not being presented for review.

      Holt, Cutting & Sidley, for appellant.
    Albert L. Hopkins, for appellee; William Burry, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    The People of the State of Illinois, Defendant in Error, v. Edward M. Seymour, Plaintiff in Error.
    Gen. No. 20,043.
    1. Contempt, § 2

      —nature of power to punish. All courts of record independent of statutory provisions have an inherent power to punish contempts committed in facie curia.

    2. Contempt, § 2*—power of court to punish for. The power of a court to punish for contempt necessarily includes all acts calculated to impede, embarrass or obstruct the court in administration of justice, the primary question being in such cases of alleged contempt whether there has or has not been an interference with the due administration of justice.
    3. Contempt, § 51*—nature of proceedings. Proceedings for contempt of court are of two classes: Those which are criminal in their nature, sometimes called common-law contempts, and those which are intended as purely civil remedies, which ordinarily arise out of the alleged violation of some order entered in the course of a chancery proceeding.

      4. Contempt, § 61

      —effect of trial on answer. Where in a case of common-law contempt the answers of defendant prove false the remedy is by indictment for perjury, as such defendant must be tried upon his answer, and found guilty or purged.
    5. Contempt, § 68*—inadmissibility of evidence extrinsic to answer. In cases of common-law jurisdiction for contempt the defendant is tried on his answer made to interrogatories filed and no other evidence is heard, so that if the party purges himself of the contempt by his answer he will be discharged.
    6. Contempt, § 68*—admissibility of affidavits. In a proceeding for contempt for violation of orders in chancery the court will hear affidavits pro and con, and may also avail itself of other legal evidence that will aid the court to determine the question according to right and justice.
    7. Contempt, § 1*—direct contempt. When an act constituting contempt of court is committed in the actual presence of the court while sitting as such, or so near to the court as to interrupt its proceedings, it is denominated a direct contempt and is punishable in a summary way by fine or imprisonment or both, without any preliminary affidavit, process or interrogatories, whether it be a civil contempt for refusing in open court to abide by an order of a court of chancery or a common-law contempt, criminal in its nature, since the facts constituting the alleged contempt are within the personal knowledge of the court.
    ' 8. Contempt, § 64*—right of trial by jury. In a proceeding for a contempt of court there is no constitutional right of trial by jury involved.
    9. Contempt, § 51*—nature of proceedings. While proceedings for common-law contempt are in their nature criminal, they are »ot criminal prosecutions within the meaning of the Bill of Rights, providing that in all criminal prosecutions the accused shall have a right to a jury trial, a copy of the indictment or information, to meet the witnesses face to face and to have process to compel the attendance of witnesses in his behalf, such cases not being governed by the ordinary rules of criminal procedure.
    10. Contempt, § 33*—interference with property talcen under writ of restitution. In a proceeding for common-law contempt, where it appeared by defendant’s answers that he advised a person to regain possession by force if necessary of premises from which she had been ousted less than twenty-four hours before by a writ of restitution that had not yet been returned by the bailiff, and his answers did not deny any of the material facts nor did not present any other facts or circumstances that were sufficient to explain or justify his wilful and unlawful interference with the judgment and process of the court, it constituted, in effect, a plea of guilty to the charge of contempt in spite of his disavowal of any intention to commit a contempt, the disavowal being inconsistent with his acts and contradicted by them so that the court properly found him guilty upon his answer.
    11. Witnesses, § 249

      —privilege as to incrimination personal. The right of a defendant to refuse to answer upon the ground that it may tend to criminate him is a personal privilege which must be specifically claimed or it will be considered as waived.
    12. Contempt, § 61*—necessity of answering. The constitutional provision “that no person shall be compelled in any criminal case to give evidence against himself” has no application to a contempt proceedings, even though it be of that class which would be considered as criminal in its nature.
    13. Contempt, 78*—proper order as to punishment. In a proceeding for a common-law contempt punishment is held not excessive, for the reason that the judgment provided that in case of default in payment of the fine he should stand committed until the fine should be paid “or until said respondent shall have been discharged according to law.”
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 4, 1915.
    Rehearing denied February 16, 1915.
    Statement by the Court. By this writ of error it is sought to reverse a judgment of the Municipal Court imposing a fine of fifty dollars upon the plaintiff: in error, hereinafter called the respondent, for contempt of court. The writ of error was sued out of the Supreme Court, but upon motion the cause was transferred to this court in October, 1913.
    The following facts appear from the affidavit of the relator and the sworn answer of the respondent: In February, 1913, one John Konopa was the owner of certain premises in Chicago, occupied by Mrs. Anna Przybylski. The Eagle Brewing Company, claiming to be entitled to the possession of said premises, brought a forcible detainer suit against Mrs. Przybylski in the Municipal Court, and on February 13,1913, a judgment for possession was entered against her by default. She made a motion the next day to vacate the judgment, supported by affidavits, which motion was heard and overruled. On February 20, 1913, she entered into a contract with Konopa for the purchase of the premises in question for the sum of six thousand dollars, payable fifty dollars as earnest money, thirty-nine hundred and fifty dollars in forty days, and the remainder by assuming the payment of an incumbrance of two thousand dollars. This contract was in the usual form of contracts-for the purchase and sale of real estate, and contained the usual provisions regarding examination of the abstract of title, forfeiture for nonperformance, etc. There was no provision in it authorizing the purchaser to take possession of the premises prior to the consummation of the sale, but the sale was made “subject to existing leases expiring monthly, the purchaser to be entitled to the rents, if any, from February 20, 1913.” Mrs. Przybylski was in possession at the time this contract was made. Five days later a writ of restitution was issued upon the judgment in favor of the Brewing Company, and delivered to a deputy bailiff named Bemus to be executed. The deputy removed Mrs. Przybylski and her effects from the premises and locked the doors, but did not return the writ to the clerk’s office, nor make any return upon the same. The record does not show when, if ever, such a return was made. The day after she was thus dispossessed, Mrs. Przybylski consulted the respondent, who is an attorney at law, but who had not represented her in the forcible detainer proceedings. After hearing her story he went to the office of the clerk of the Municipal Court and made inquiries regarding the status' of the forcible detainer proceedings. He was informed by. a clerk that a writ of restitution had been issued and executed and that the keys to the premises in question had been delivered to the attorney for the Brewing Company, but that Bemus, the deputy bailiff, Still had the writ in his possession and had made no return of the same. The respondent inquired as to the names of the persons who had assisted Eemus in dispossessing Mrs. Przybylski, but was referred to Eemus for information upon that point. Be-mus was not about, however, so the respondent and Mrs. Przybylski sought the judge who had entered the judgment. They told him of the eviction, and of her purchase of the property after the judgment was entered. The judge said that nothing could be done except upon notice to opposing counsel. The respondent admitted in his answer that he then told Mrs. Przybylski to go back to the premises, and if no custodian was in charge of the same, “to pull the lock off the door, put her beds and the like inside, and to stay there over night, or until the further order of the court,” and that he sent with her a young man from his office to see that these directions were carried out, instructing him, however, not to create any disturbance, but merely to make sure that no officer of the court was in actual possession. Pursuant to his advice and instructions, Mrs. Przybylski took possession of the premises. The next day she was again dispossessed by the bailiff, who then placed a custodian in charge of the premises. She made another attempt to re-enter by force, but desisted when threatened by the custodian.
    On May 3, 1913, a document called an information was filed in the Municipal Court, signed and sworn to by the attorney for the bailiff of that court. This information states that on February 25, 1913, ‘ ‘ a writ in words and figures as shown by a copy thereof attached and marked Exhibit A and made a part of this information,” was issued out of said court “in a cause wherein this court had jurisdiction of the parties thereto and the subject-matter thereof”; that said writ was received by the bailiff and was delivered to a deputy named Eemus, for service; that on February 28, 1913, Eemus “dispossessed the defendant therein named from the premises described in said writ, but made no return on said writ”; that thereafter the respondent, Seymour, became the attorney for the defendant in said writ, and “with full notice and knowledge of the existence of said writ and of the action of the deputy bailiff thereunder, and without leave of court, advised and directed the said defendant in said writ by force to repossess herself of said premises in said writ described, and to withhold possession from the plaintiff in said writ and the bailiff of this court”; that acting upon his advice, “the defendant in said writ repossessed herself of said premises,” and held the same until she was “redispossessed” by the bailiff; that thereafter, acting upon respondent’s advice, she broke open the rear door of the premises and was about to break another, when she was threatened with bodily harm by the custodian, and left the premises; that during all these transactions, the said writ was in the possession and under the control of the deputy bailiff “unreturned”; and that this conduct of Seymour “tended to belittle this court and obstruct, embarrass and impair the administration of justice,” and was an unlawful interference with the duty of an officer of the court.
    The respondent filed a motion to quash the information because of its alleged uncertainty and insufficiency. Upon the hearing of this motion it appeared that the writ referred to in the information as “Exhibit A” had not been attached as an exhibit, but upon leave granted, a copy of the writ was then attached, and thereupon the motion to quash was overruled and the respondent was ruled to answer within ten days the information as thus amended. He filed an answer under oath, setting up, in substance, the facts hereinabove stated and disclaiming any intention on his part of committing a contempt of court, or of obstructing the due administration of justice. Later, interrogatories were also filed to which he filed answers setting up the same facts, in substance, as in his answer to the information. After an examination of the information and the sworn answers, and after arguments of counsel, the court found that the answers filed ‘ ‘ did not constitute a full and complete defense to the charge of contempt made in the information filed,” and that respondent was guilty of contempt.
    Scott O. Cavette and E. M. Seymour, pro se, for appellant.
    Maclay Hoyne, for defendant in error; John Stelk, of counsel.

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

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

The briefs of the respondent were evidently prepared for the Supreme Court, and were filed here without revision after the case was transferred. In consequence, we have been obliged to sift from the briefs and arguments such contentions as seem to be properly before this court. Briefly stated, these contentions are that the Municipal Court erred: (1) In denying the respondent’s motion to quash the information; (2) in compelling him to give evidence against himself; (3) in denying him a jury trial; (4) in refusing to discharge him upon his answer. Underlying each and all of these alleged errors is the theory that the proceeding in the Municipal Court was a criminal prosecution, that all the technical formalities incident to the trial of criminal cases must be strictly observed in a contempt case, and that the failure of the Municipal Court to accept and act upon that theory in this case violated the provisions of the Constitution of the United States and of the State of Illinois relating to due process of law and to the right of trial by jury.

The proposition that “all courts of record have an inherent power to punish contempts committed in facie curies” (Rapalje on Contempts, see. 1) is too firmly established in this State to admit of argument. In the early case of Clark v. People, Breese, 340, it was said that such a power “is an incident to all courts of justice independent of statutory provisions.” In Dahnke v. People, 168 Ill. 102, it was said: “In Stuart v. People, 3 Scam. 395, we held, that the power was inherent in every court of justice to defend itself when attacked, just as much as the individual man has a right to defend himself for his own preservation; and we also there held, that in the power to punish for contempt are necessarily ‘included all acts calculated to impede, embarrass or obstruct the court in the administration of justice. Such acts will be considered as done in the presence of the court. ’ * * * It has been said, that the power of the court in the matter of contempt cannot be defined within any limits, and that the primary question in all cases of alleged contempt is, ‘whether there has or has not been an interference or an attempt to interfere with the due administration of justice.’ ”

Proceedings for contempt of court are of two classes: Those which are criminal in their nature, which are sometimes called common-law contempts, and those which are intended as purely civil remedies, which ordinarily arise out of the alleged violation of some order entered in the course of a chancery proceeding. In Hake v. People, 230 Ill. 174, it was said (p. 185): “There is a distinction to be noted, in several respects, between practice in contempt proceedings in a court of chancery and proceedings to punish contempts in a court at law. Where the proceeding is in a court of equity, the contempt is punished as an incident to the enforcement of orders and decrees made in furtherance of the remedy sought. In cases of common-law cognizance the contempt usually consists in some act in disregard of the power 'and dignity of the court, and which has a tendency to interrupt or disturb the due administration of justice. In cases of common-law jurisdiction for contempt the defendant is tried upon his answer made to interrogatories filed. Ho other evidence is heard.. If the answers prove false the remedy is by indictment for perjury, but if the party purges himself of the contempt by his answer he will be discharged. In a proceeding for contempt for violation of orders in chancery the court will hear affidavits pro and con, and may also avail itself of any other legal evidence that will aid the court to determine the question according to right and justice.” Many Illinois cases are cited in which this distinction was recognized, and the reason for the distinction is shown by a quotation from the opinion in the case of O’Brien v. People, 216 Ill. 354, wherein it was said: “When the contempt consists of something done or omitted in the presence of the court tending to impede or interrupt its proceedings or lessen its dignity, or out of its presence in disregard or abuse of its process, the proceed-' ing is punitive or criminal, and the penalty is inflicted by way of punishment for the wrongful act and to vindicate the authority and dignity of the people, as represented by their judicial tribunals. In such cases the application for attachment may be made in the original cause, yet the contempt proceeding will be a distinct case criminal in its nature. Cases of this kind are clearly distinguished from cases where the parties to a civil suit, having the right to demand that the other party do some act for their benefit, obtain an order from a proper court commanding the act to be done, and upon refusal the court, by way of executing its orders, proceeds as for contempt, for the purpose of advancing the civil remedy of the other party to the suit. In this class of cases, while the authority of the court will be incidentally vindicated, its power has been called into exercise for the benefit of a private litigant and not in the public interest, merely. ’ ’

There is a further distinction in the procedure in contempt cases between what are known as direct contempts and those which are called constructive con-tempts. When the act constituting a contempt is committed in the actual presence of the court while sitting as such, “or so near to the court as to interrupt its proceedings,” it is denominated a direct contempt (Stuart v. People, supra; Dahnke v. People, supra). Such contempts are punishable in a summary way by fine or imprisonment or both, without any preliminary affidavit, process or interrogatories (Rapalje on Contempts, sec. 93), whether they be civil contempts for refusing in open court to abide by an order of a court of chancery, as in the case of Tolman v. Jones, 114 Ill. 147, or common-law contempts, criminal in their nature, such as that involved in the case of People v. Gard, 259 Ill. 238, for the reason that in all such cases the facts constituting the alleged contempt are within the personal knowledge of the court, and the respondent is usually present in the court room at the time. Acts which are committed not in the actual presence of the court nor so near to the court as to interrupt its proceedings, but which nevertheless tend to obstruct, embarrass, impede or prevent the due administration of justice, are denominated constructive contempts (Stuart v. People, supra; People v. Wilson, 64 Ill. 195), because they are only constructively in facie curice. In such cases, the facts are ordinarily not within the personal knowledge of the court and the respondent is not ordinarily in court, and therefore the procedure for the punishment of such contempts is necessarily of a different and more formal character. Usually—but not necessarily, as will be hereafter shown—the facts constituting a constructive contempt, whether it be of a civil or criminal nature, are brought to the attention of the court by affidavit, and a rule is then entered against the alleged offender to show cause why he should not be attached and punished for contempt. Rapalje on Contempts, secs. 93, 103. From this point on, the practice in cases of constructive contempt of a criminal nature is essentially different from that which obtains in cases of constructive contempt for failing to comply with an order entered in a chancery case. If the offense charged is a common-law or criminal contempt as above defined, the respondent may file a sworn answer to the rule, or he may insist that interrogatories be filed for him to answer under oath, and if his sworn answer in either case is sufficient to acquit him of the charge of contempt, he must be forthwith discharged. Hake v. People, supra; Oster v. People, 192 Ill. 473; Welch v. People, 30 Ill. App. 399; Stull v. People, 173 Ill. App. 512. In such cases, the hearing of evidence, or counter-affidavits, in contradiction of the respondents ’ sworn answer, is “without warrant of law” (Welch v. People, supra; Stull v. People, supra). If, on the other hand, the alleged contempt be of the nature of a civil contempt, as above defined, the answer of the respondent is not conclusive, but the court may hear affidavits, or any proper testimony, to enable it to determine the truth of the matter according to justice and equity (Hake v. People, supra).

In Oster v. People, supra, it was held that a contempt proceeding brought in the name and on behalf of the people for the purpose of punishing a receiver for his alleged participation in the wrongful removal and secretion of certain goods in his custody, with the intention of depriving the court of the control thereof, was criminal or quasi criminal in its nature, and that therefore the sworn answer of the receiver, in which he Bxplicitly denied any participation in the alleged wrongful acts, was conclusive, so far as that proceeding was concerned, and entitled the respondent to a discharge. In that case, the contempt proceeding was commenced by entering an order for an attachment against the receiver, in the course of a hearing upon a petition in the chancery suit, without the filing of any preliminary affidavit or information. As to this mode of proceeding, the Court said, in substance, that while, as a general rule, an attachment for a contempt of court, committed out of the presence of the court, should be based upon an affidavit as to the truth of the facts constituting the alleged contempt, still the filing or presentation of such an affidavit is not essential to the jurisdiction of the court where, as in that case the facts constituting the alleged contempt had been otherwise brought to the attention of the court, and the respondent was otherwise fully advised—in that case, by the order for the attachment—of what he would be called upon to meet and answer.

It is almost universally held that a proceeding of this nature does not violate any constitutional right of trial by jury (Rapalje on Contempts, sec. 112), nor does it contravene the constitutional provision that no person shall be deprived of life, liberty or property without due process of law. “In matters of contempt a jury is not required by due process of law” (People v. Kipley, 171 Ill. 44, 70; see also, O’Brien v. People, supra, at p. 370). In Storey v. People, 79 Ill. 45, 52, it was said: “The common law mode of proceeding in cases of contempt, presents no question of fact to be tried by a jury. The defendant determines, by his otun answer, under oath whether he is guilty of that ivhich is charged against him as a contempt of court, and if he fail thereby to purge himself, the court may, at once, impose the punishment.” The opinion of the late Judge Gary, in the case of Welch v. People, supra, is to the same effect.

From an examination of these decisions, as well as others in this State on the general subject' of con-tempts, it will be seen that our courts have generally been careful to say that such proceedings as the one here in question are “m the nature”' of criminal proceedings; that is, that for certain purposes and to a certain limited extent, they will be considered as criminal cases. The fact that such proceedings are thus characterized implies that they are not considered as criminal cases for all purposes. So far as we are advised, it has never been held in this State that they are criminal prosecutions within the meaning of the ninth section of the Bill of Bights, which provides that “in all criminal prosecutions” the accused shall have the right to a jury trial, a copy of the indictment or information, “to meet the witnesses face to face” and to have process to compel the attendance of witnesses in his behalf. When such proceedings are prosecuted in the name of the People, for the purpose of inflicting punishment for wilful contumacy, they are said to be quasi criminal in character because of the object sought to be accomplished, but they are not criminal prosecutions in the ordinary sense, nor are they . governed by the ordinary rules of criminal procedure. It is necessary that the respondent be apprised with reasonable certainty, by affidavit, information or rule to show cause, of the nature of the charge against him and of the facts upon which the alleged contempt is predicated, and it is also requisite that he shall have a reasonable opportunity to answer the charge by a written answer under oath. If, by his sworn answer, he specifically denies the facts upon which the charge is founded, or if he sets up other facts which, if true, are sufficient to acquit him of the charge, then he must be discharged, for the reason that his answer in such case presents an issue of fact which cannot be tried by the court in a proceeding of this character. Whether his answer, if true, is sufficient to acquit him of the charge is not a question of fact, but a question of law. If his answer is adjudged by the court to be insufficient to acquit him, or if his answer admits the material facts charged to be true, then there is no issue of fact to be tried, and in such case, if such facts constitute a wilful contempt of court, the order imposing punishment for such contempt is analogous to a sentence pronounced upon a plea of guilty in a criminal case. Welch v. People, supra. There being nothing in such case for a jury to try, no constitutional right of trial by jury is in any manner involved.

The procedure followed by the Municipal Court in this case was in accord with the practice above stated, and this being true, the constitutional requirement of due process of law was duly observed. Flannery v. People, 225 Ill. 62-72. The respondent was fully apprised by the information, as amended, of the nature of the charge against him and of the facts he was called upon to explain, deny or justify. The facts stated in the amended information, if true, constituted a wilful contempt of court on the part of respondent. He was given every opportunity to purge himself of the alleged contempt, but failed to do so. By his answers to the rule and to the interrogatories, he admitted, in effect, that with full knowledge of the facts alleged in the information he advised Mrs. Przybylski to regain possession, by force if necessary, of premises from which she had been ousted less than twenty-four hours before, under a writ of restitution that had not yet been returned by the bailiff. His answers did not deny any of the material facts, nor did they present, any other facts or circumstances that were sufficient to explain or justify this wilful and unlawful interference with the judgment and process of the court. Therefore, in effect, he pleaded guilty to the charge of contempt. His disavowal of any intention to commit a contempt is inconsistent with his acts and is contradicted by them. Therefore the court properly found him guilty upon his own answer. The alleged constitutional questions now raised by him were mentioned for the first time in the Municipal Court after the court had pronounced its finding, in a written motion in arrest of judgment, and then only in the most general terms. He did not at any time claim any right to refuse to answer upon the ground that his answer might tend to criminate him, The right to refuse to answer upon that ground is a personal privilege, and must be specifically claimed or it will be considered as waived. Bolen v. People, 184 Ill 338; Kanter v. Clerk of Circuit Court, 108 Ill. App. 287. Moreover, as to this point, we agree with the Appellate Court of the Third District in holding that the constitutional provision that “no person shall be compelled in any criminal case to give evidence against himself,” has no application to a contempt proceeding, even though it be of that class which is considered as criminal in its nature (O’Neil v. People, 113 Ill. App. 195). Nor does the fact that the conduct of the respondent may, perhaps, have amounted to a criminal offense,-—as to which we express no opinion,—and may have been punishable as such, relieve the respondent from liability for contempt of court. Flannery v. People, supra; O’Neil v. People, supra. The point made that the punishment is excessive because no limit is fixed for imprisonment in case the fine is not paid is untenable, for the reason that the judgment provides that in case of default in the payment of the fine he shall stand committed until the fine shall have been paid, ‘ ‘ or until said respondent shall have been discharged according to law.” This is a proper judgment in such cases. Kettles v. People, 221 Ill. 221, 223; McDonald v. People, 86 Ill. App. 558.

Finding no reversible error in the record, the judgment is affirmed.

Affirmed.


text:
    R. Hart et al., Plaintiff's in Error, v. Northwestern Trust & Savings Bank, Defendant in Error.
    Gen. No. 20,077.
    Principal and agent, § 131

      —power of agent to collect and give receipt. Where an agent was sent by his principal to a bank to collect for materials furnished by the principal 01^ a. building and the bank drew a check on itself and handed it to the agent, who then indorsed it with his principal’s firm name, indicating that it was by himself, and disappeared, held the principal could not recover the sum in question from the bank, as the delivery of the check to the agent and the payment of it by the bank constituted one transaction amounting to a collection, the check being an acknowledgment of indebtedness and the agent’s indorsement a receipt of payment.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Bbitler, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 4, 1915.
    Baker & Holder, for plaintiffs in error.
    David & Zillman, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

In August, 1912, the owner of a building then under construction in Chicago was- indebted to the plaintiffs in error, partners doing business under the firm name of Hart & Page Lime Company, in the sum of $285, for the value of certain building materials furnished by them. The owner of the building had arranged with the defendant bank for a loan, out of which the amounts due for materials furnished were paid to the several contractors upon their filing with the bank written waivers of their lien rights under the Mechanic’s Lien Act. Plaintiffs in error had in their employ a man named' Boss. His duties were somewhat general in character. "He attended to receiving material from freight cars, receipted the freight hills, directed the unloading of the cars, helped to unload them, attended to the deliveries of material, employed drivers, and supervised the manner of loading, the number of teams and number of trips made by them; in the absence of Mr. Hart, who was the general manager of plaintiff’s Chicago office, he took charge of the office; and he did whatever else he was directed to do by Mr. Hart.

On August 31, 1912, Hart sent Boss to the bank to collect the bill due for materials furnished to the building above mentioned. Before going to the bank for this purpose, Boss prepared a written waiver of lien, and signed it, in the presence and with the approval of Hart, in the name of the firm, “per E. F. Boss.” He had been in the habit of making out and signing such waivers, with the knowledge and consent of .the plaintiffs in error. Boss then went to the owner, got an order from him for the payment of the bill, and went with the owner to the bank, where he presented the lien waiver and order, and asked for the money. The teller in charge of the loan department of the bank made out a check of the bank upon itself for the amount due, payable to the order of the plaintiffs in error, had it signed by the vice-president of the bank, and handed it to Boss. Boss asked for the money, and after indorsing the check in the name of the plaintiffs, “per E. F. Boss,” the money was paid him by the paying-teller. Boss then disappeared, and the money was never paid to the plaintiffs. Hart testified that he did not know what became of Boss, and that no effort had been made to find him. Plaintiffs sued the bank for the amount of the check, claiming the bank had cashed the same upon an unauthorized indorsement. After hearing- the evidence above stated, the court directed a verdict for the defendant. The plaintiffs sued out this writ of . error.

The plaintiffs admitted, both on the trial below and in this court, that when Boss was sent to the bank he was authorized to collect the $285 which the bank paid him. ■ It is claimed, however, that his authority to collect did not authorize him to indorse the check which the bank gave him—in other words, that his authority as the agent of the plaintiffs ceased when he received the check,—and that therefore the bank remained liable to the plaintiffs, notwithstanding the payment to Boss. The contention is extremely technical, and we think it is without substantial merit. Boss had no authority to receive a check in payment of the account, and when the check was handed to him he did not accept it in payment, but at once asked for the money. The delivery of the check to him and the payment of it by the bank upon his indorsement all constituted one transaction, and amounted to a collection by Boss of the amount due. The check was not that of a depositor, drawn against his deposit in the bank. It was the bank’s own check, drawn upon itself. It was a mere acknowledgment of indebtedness, like the cashier’s check in Clark v. Chicago Title & Trust Co., 186 Ill. 440, and the indorsement of Boss was, in effect, but a simple receipt for such indebtedness. The purpose the bank had in view in giving the check to Boss and requiring him to indorse it before paying over the money was, evidently, to preserve a convenient record of the transaction by retaining the cancelled check as a voucher for the payment.

In the view we take of the facts and the legal effect of the same, we deem it unnecessary to discuss the contention of plaintiff’s counsel that authority to receive a check does not include authority to indorse it.

For the reasons stated, the judgment of the Municipal Court was correct, and it will be accordingly affirmed.

Affirmed.


text:
    Ottillia Dawson, Defendant in Error, v. A. Brom Allen, Plaintiff in Error.
    Gen. No. 20,089.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Ottillia Dawson against Dr. A. Brom Allen for injury alleged to have been sustained to plaintiff’s foot through the carelessness of a dentist engaged in extracting a tooth. From a judgment for $300 in favor of plaintiff, defendant brings error.
    Before pulling the tooth, the plaintiff was anlesthetized by the inhalation of nitrous oxide gas administered by a trained nurse in the defendant’s office. The whole time during which the plaintiff was in the dentist’s chair did not exceed five minutes, and the period of complete unconsciousness (during which the tooth was extracted) did not exceed forty seconds. The plaintiff did not claim there was anything wrong with the operation itself or the administration of the anesthetic. Her claim was that her foot was injured at that time. She testified that before the operation her foot was in perfect condition; that immediately after the operation, she felt a sharp pain in her left foot, and cried out: “Oh, my foot’’; that defendant said: “Tour foot is all right; get up and walk”; that she walked into an adjoining room, where she rested a few minutes on a couch, and then left the doctor’s office, suffering great pain. This happened about noon time. She went about her usual duties during the afternoon, but the pain in her foot continued. On arriving at her home she removed her shoe and discovered a bruise on the instep, abont in line with the buttons of the shoe, and about the size of a silver dollar. A doctor was called, who prescribed hot applications and bandages. She claimed she was unable to perform her usual work, that of a school teacher, for a period of six weeks, and expended $27- for doctor’s bills and medicine. The defendant and his assistant both testified that nothing happened while the plaintiff was in the chair that conld have caused the injury described by her.
    Abstract of the Decision.
    I. 'Physicians and subgeons, § 14

      —care required of. Physicians, surgeons and dentists are responsible only for the failure to exercise such reasonable care and skill. as those in good practice ordinarily use.
    2. Dentists, § 3*—what constitutes negligence of. Where a dentist gives an anaesthetic to his patient for the purpose of extracting a tooth, the dentist is not an insurer against all possible injuries or accidents, and a presumption of .negligence on the part of the dentist does not arise from proof of the mere fact that plaintiff without her fault sustained an injury of unusual character while she was in the care and control of the dentist.
    In the argument to the jury, plaintiff’s counsel said: “We do not, I contend, have to go further than to show that this accident happened at that place. It happened in her helpless condition. It was something that would not ordinarily happen in a dentist’s chair, and that is all ive have to show; it is all we can show, it is all you or anybody else can show under the same circumstances. ’ ’
    H. L. Howard, for plaintiff in error.
    Charles W. Lamborn, for defendant in error.

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

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Dentists, § 3 —instruction as to presumption of 'negligence. In an action for an injury to plaintiff’s foot alleged to have been sustained while under the care of a dentist, an instruction to the jury that if they believe from the evidence that plaintiff was hurt without fault on her part while she was under the control of defendant and her injury was of such a nature as would not happen in the ordinary course of things under such circumstances, then the jury have a right to presume that the injury was caused by defendant’s negligence and that the burden is upon the defendant to overcome that presumption, held erroneous since it is necessary to show that the injury is of such a character that it would not ordinarily occur if due care is used.

4. Dentists, § 3*—when doctrine of res ipsa loquitur applies. The doctrine of res ipsa loquitur can only be properly invoked where there is some evidence tending to prove that an injury complained of was caused by something under the defendant’s con: trol.

5. ' Dentists, § 3*—necessity of control of cause of injury. Where it was admitted that there was no evidence from which to deduce any theory of what actually caused an injury to plaintiff’s foot alleged to have been sustained, it was erroneous for the court to assume by its instructions that the injury was caused by something under defendant’s control while plaintiff was under his care for the purpose of extracting a tooth, since it might have been caused by pure accident or by something not at all within the control of the dentist, the cause of the injury being a question of fact and one of the main issues in the case.

6. Dentists, § 3*—necessity of control of cause of injury before presumption of negligence may arise. In an action for injury to plaintiff’s foot while she was in a dental chair, remarks of counsel voicing the theory that if she was hurt without fault on her part while under the care of defendant, and her injury was of such a nature as would not happen in the ordinary course of things under such circumstances, the jury had a right to presume that the injury was caused by defendant’s negligence, placing the burden on defendant to overcome the presumption of negligence, held prejudicially erroneous in assuming the cause was within defendant’s control.


author: Mr. Justice Pam

text:
    Frank Parmelee Company, Plaintiff in Error, v. George W. Jackson, Inc., Defendant in Error.
    Gen. No. 19,483.
    Vendos and pubchaseb, § 344

      —recovery of money paid for guaranty policy of title. Where grantor’s first deed conveyed an entire lot including an intervening space of 11 inches between the north 100 feet and the south 65 feet, conveyed in grantor’s second deed, and the purchaser agreed to waive the survey and accept a guaranty policy of title, held, under the evidence, that the transaction proceeded on the theory that the policy would be issued to cover the entire property as described in the first deed, including the 11 inches, so that plaintiff was entitled to recover a fair and reasonable price paid to secure such a policy, upon defendant’s refusal to provide one for the entire property.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and judgment here.
    Opinion filed February 4, 1915.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Foreman, Levin & Robertson, for defendant in error.

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

   Mr. Justice Pam

delivered the opinion of the court.

This is a suit brought by the Frank Parmelee Company, a corporation, hereinafter referred to as the plaintiff, against George W. Jackson, Inc., hereinafter referred to as the defendant, to recover $353.80, the price paid by the plaintiff to the Chicago Title & Trust Company for a guaranty policy of insurance issued by it, guarantying title of the defendant in and to a certain piece of real estate known as “Lot 6 in Blanchard’s Subdivision of Block 4, in School Section Addition to Chicago,” situated in the city of Chicago, county of Cook, State of Illinois, for which the plaintiff paid defendant $75,000.

The controversy which led to the beginning of this action arose out of a real estate transaction between the plaintiff and the defendant. Plaintiff purchased from the defendant certain property situated in the city of Chicago. Defendant, in conveying to the plaintiff title to the property that was purchased, executed two deeds which we shall hereafter designate as the first and second deeds, the description in the first deed being as follows:

“Lot six (6) in Blanchard’s Subdivision of Block four (4), in School Section Addition to Chicago, in Section sixteen (16), Township thirty-nine (39) North, Range fourteen (14) East of the Third Principal Meridian, situated in the City of Chicago, County of Cook and State of Illinois.”

The second deed contained the following description:

“The north one hundred (100) feet of Lot six (6) in Blanchard’s Subdivision of Block four (4) in School Section Addition to Chicago; the West half of the South sixty-five (65) feet of Lot six (6) in Blanchard’s Subdivision of Block four (4) in School Section Addition to Chicago; the East half of the South sixty-five (65) feet of Lot six (6) in Blanchard’s Subdivision of Block four (4) in School Section Addition to Chicago, all in Section sixteen (16), Township thirty-nine (39) North, Range fourteen (14) East of the Third Principal Meridian.”

Part of the record in the case is a written stipulation of facts. This stipulation shows that Lot 6 aforementioned is a tract of land fronting on the* north on Jackson boulevard, on the south on Boston avenue; that Lot 6 is otherwise known as Nos. 751-753-755 West Jackson boulevard, and 750-752-754 Boston avenue.

The only oral evidence given was that of Fred Norlin, a surveyor, who testified that the length of the lot conveyed by the first deed was 165 feet 11 inches, and the width 50 feet 6% inches; that there was on this lot one building, viz., a factory building three stories high, of brick construction; that the said building was 148 feet 10 inches long, and 49 feet 6%, inches wide; and that the north front of the building came right up to the south line of Jackson boulevard.

The second deed conveyed the north 100 feet of Lot 6 in Blanchard’s Subdivision of Block 4, etc., and the west and east one-half of the south 65 feet of Lot 6 in Blanchard’s Subdivision of Block 4, etc. The second deed transferred only 165 feet of land. The testimony of Mr. Norlin showed that Lot 6 contained 165 feet 11 inches. The second deed omitted to convey the 11 inches between the north 100 feet and the south 65 feet mentioned in the second deed. The first deed, however, conveyed the entire Lot 6, and was therefore inclusive of the 11 inches omitted in the second deed. The building covered this 11 inches. The record is barren of any formal written contract having been entered into by the parties for the sale of this land. We must rely upon the stipulation of facts, the testimony of Mr. Norlin, and the correspondence which passed between the parties, and the deeds themselves, to determine what contract had been entered into between the parties with reference to the sale of this land.

At the time of the trial the attorneys for defendant admitted that up to the delivery of the warranty deeds on or about September 1st, Mr. Milton J. Foreman was agent for the defendant in connection with the sale of the real estate in question in this case, and that during* this period and thereafter up to and including the date hereof, Mr. A. R. Sheriff and the firm of Sheriff, Dent, Dobyns & Freeman were agents of the plaintiff. In a letter dated August 1,1911, Mr. Milton J. Foreman, on behalf of the defendant, sent Mr. Sheriff on behalf of the plaintiff, a continuation of abstract of title to the north 100 feet of Lot 6, and to the east and west one-half of the south 65 feet of same lot. On August 7, 1911, the Chicago Title & Trust Company gave an opinion of title to the north 100 feet and the south 65 feet of Lot 6, in which it found that the defendant had a good title in said property, subject, among other things, “to the rights or claims of parties in possession and not shown of record and questions of survey.” (Italics ours.) It is evident from the record that these opinions of title must at once have been sent to Sheriff, Dent, Dobyns & Freeman, for on August 8th we have a letter by that firm,, addressed to Mr. Foreman, which reads as follows:

“August 8, 1911.
Col. Milton J. Foreman,
822 First Natl. Bk. Bldg.,
Chicago, HI.
Dear Sir:—
Referring to the proposed conveyance from George W. Jackson, Incorporated, to the Frank Parmelee Company of the real estate known as 753 and 755 West Jackson boulevard, we beg to say that we will waive the survey and accept a guaranty policy in the sum of $75,000. The policy should be issued to Frank Par-melee Company.
. A letter from Chicago Title & Trust Company under date of August 7th, is herewith returned.
Tours very truly,
Sheriff, Dbjstt, Dobyhs & Freemah,
By L. L. Dent.”

This letter, it will be seen, has reference to the letters from the Chicago Title & Trust Company of August 7th and which the record shows were the opinions of title hereinabove referred to. This letter clearly indicated that the question of survey set forth in the opinion given by the Chicago Title & Trust Company was waived under the condition that a guaranty policy in the sum of $75,000 would be secured by the defendant from the Chicago Title & Trust Company in favor of the plaintiff.

The next step in the transaction, as shown by the record, was the passing of the deeds, viz., the first and second deeds, both dated August 18, 1911. There was no oral evidence submitted as to what took place between the parties between the sending of the letter dated August 8th and the passing of the deeds. That, however, there was an obligation of some kind incurred is clearly evident from the fact that on September 13, 1911, Mr. Foreman addressed a letter to Mr. Sheriff wherein he referred to a letter addressed by the Chicago Title & Trust Company to Messrs. Foreman, Levin & Robertson under same date. This letter was written after both deeds that passed between the parties had been placed of record, and finds title in plaintiff to the north 100 feet and to the south 65 feet of Lot 6, and the balance in Joseph Hartmann, his heirs or devisees. The letter of August 8th previously referred to waived the question of survey upon the issuance of a guaranty policy. If a survey had been made at the time of the transfer of the property in question, it would have been discovered that Lot 6 was 165 feet 11 inches long; but the letter of August 8th explains why the survey was not made, viz., plaintiff accepted in lieu thereof a guaranty policy for $75,000. It is fair to presume, therefore, that it was by reason of acting favorably on the letter of August 8th sent to the defendant’s agent by the plaintiff that the plaintiff was endeavoring to secure the guaranty policy, and that as a result of this endeavor, the opinion of title in the letter of September 13th was given by the Chicago Title & Trust Company to Mr. Foreman as agent of the defendant. The acceptance of the offer of August 8th may be further inferred from the admissions by defendant in its affidavit of merits, wherein, while it denies that defendant agreed to supply plaintiff with a policy of insurance on Lot 6, yet it admits that it agreed to supply plaintiff with a policy of insurance on the property described in the second deed. This is also admitted in the stipulation of facts already adverted to; and furthermore, in the letter of November 11, 1911, written by Mr. Foreman to Mr. Sheriff, wherein it is stated that it had agreed to furnish a guaranty policy covering the property mentioned in the opinion of title already set forth in the letter of August 7th by the Chicago Title & Trust Company to defendant’s attorneys. From the correspondence and the action of the parties there can be no doubt that the transaction proceeded upon the theory that the guaranty policy would be issued, the only question being whether the policy was to cover the property described in the first deed or- the property described in the second deed as the north 100 feet and the south 65 feet of Lot 6.

In the course of communications between the parties, counsel asked for the tax receipts, and these were supplied by defendant’s representatives. The tax receipts for 1909 were two in number, and covered the north 100 feet and the south 65 feet of Lot 6, respectively. The tax receipt of July 15, 1910, was for taxes on the property described as Lot 6, and did not make any distinction between the north 100 and the south 65 feet. The property therein is treated as one piece. These tax receipts were furnished by the defendant and taxes receipted for in these receipts were paid by the defendant before the deeds were passed.

The three-story brick building covered the lot from the north end to within 12 feet of the south end, inclusive of the 11 inches in the center which was discovered by the survey as not being covered by the second deed, but was included in the first deed. It is fair to presume, therefore, that in conveying Lot 6 with the building thereon, without the exact dimensions being set forth in the description, that the defendant not only intended to but did convey 165 feet 11 inches. When on August 8th an offer was made of $75,000 upon condition of defendant’s furnishing plaintiff a guaranty policy, and as a result of which a deed was given covering Lot 6, there is no room left for any doubt that plaintiff expected to receive a guaranty policy on Lot 6, and that it had the right to receive same from the defendant; that defendant, by acting upon said letter and conveying the property and receiving $75,000, in view of the facts and circumstances in evidence in this case, led the plaintiff to believe that it would furnish such a guaranty policy covering Lot 6 which would protect the title of the plaintiff as to the 11 inches not included in the second deed, and this notwithstanding the fact that a second deed was given which conveyed only the north 100 and the south 65 feet. If it had been intended that only such property was guarantied against, there was no necessity for the first deed. We believe, the defendant having failed to furnish a guaranty policy covering Lot 6, plaintiff had the right to secure same from the Chicago Title & Trust Company. The stipulation of facts offered in evidence admitted that the price for the guaranty policy covering Lot 6 as described in the first deed was fair and reasonable. The court therefore incorrectly applied the law to the facts. In law, under the facts and circumstances in evidence, plaintiff was entitled to a guaranty policy covering Lot 6, and the judgment of the court should therefore have been for $353.80. The case must therefore be reversed. There being no dispute on the facts, the case will not be remanded but judgment entered here for $353.80 in favor of the plaintiff.

Judgment reversed and judgment here for $353.80 and costs of suit.


text:
    James Todd, Defendant in Error, v. S. Harnstrom, Plaintiff in Error.
    Gen. No. 19,632.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Sctjlly, judge, presiding. Heard in the ’ Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by James .Todd against S. Harnstrom to recover for a balance alleged to be due on account of extra mason work, excavating and material furnished upon a building. From a judgment for $384.70 against defendant in favor of plaintiff, defendant brings error.
    Plaintiff’s statement of claim set out in detail the extra mason work, excavating and material furnished for and at the request of the defendant, for the building being constructed. It further stated that the value of the said extra mason work, excavating and material was figured on the basis of prices agreed upon in the original contract, save as to a special agreement in regard to certain brick, with reference to which plaintiff claims that in order to secure an early completion of the building it was necessary to pay for 222,000 brick $7 per thousand instead of $6, and that defendant agreed with plaintiff to pay one-half of said advance. It set forth in detail the credits by cash payments, and also the credits by reason of allowances to the plaintiff in the use of a cheaper grade of brick for face and mantel work than had been provided for in the contract, the change in the character of the brick being made under an agreement between the plaintiff and the defendant; that after allowing all credits there was due plaintiff from defendant, because of the extra mason work, excavating and material, the sum of $408.70. Plaintiff further set forth in his statement of claim that he had offered to submit his claim to one L. Ostling, mutually selected as arbitrator, but that the said Ostling neglected and refused to comply with the request of the plaintiff for arbitration of the amount due plaintiff for said extra work and material.
    To this statement of claim, defendant filed an affidavit of merits wherein he set forth that the contract provided the manner in which alterations, additions or extra work should be appraised; that following the manner so provided, the valuation placed on said extra work was $350; “that an accounting was had between the plaintiff and defendant herein on or about October 31,1910; that the value of all alterations, additions and extras was fixed and agreed upon at the sum of $350; that on said date all payments and all items and matters in dispute between the parties hereto and all allowances were checked over and agreed upon, and that on said date it was found and agreed that the sum of $250.50 was the sum then due and owing to plaintiff which said sum was on said date paid to said plaintiff.” The affidavit of merits then concluded with the statement that defendant had paid all claims under the said contract and for extras mentioned, and that there was nothing due plaintiff.
    Upon the issues presented by the affidavit of merits, defendant testified that he had informed plaintiff that the value of the extra work and material furnished was $350. There was, however, no explanation as to how this figure was arrived at. Defendant further testified that the credits to be allowed by reason of the different quality of mantel and face brick used should have been $337.50 (which was $31.50 more than plaintiff had allowed on that item); that in addition to this, he mentioned to plaintiff three items aggregating $60.50, for certain work done by him (defendant) which should have been performed by the plaintiff under the original contract; _ and an additional allowance on brick, of $19.50, claimed by him; that plaintiff had acquiesced in such credits and that an accounting on this basis showed there was due from defendant to the plaintiff the sum of $250.50; that this accounting was had on October 31st, and that he then handed plaintiff a check for that sum; and further, that in the presence of the plaintiff on that day he made the following memorandum on the back of the original contract (defendant’s exhibit 5): “Ck. Oct. 31st, 1910 in full and extras, $250.50.” Defendant also offered in evidence certain documents which contained figures which he claimed to be evidence of the accounting arrived at between the plaintiff and the defendant.
    Plaintiff denied categorically the testimony of the defendant with reference to having entered, into any agreement whereby all payments, items and matters in dispute were checked over and agreed on, and that there was found due and owing plaintiff the sum of $250.50. He, moreover, denied that there ever was brought to his attention any memorandum to the extent of $60.50 as testified to by the defendant, or that he allowed a credit to defendant for that sum. He, moreover, denied that the difference in favor of the defendant by reason of the change in the quality of face and mantel brick was $337.50, or that there was a further allowance on brick of $19.50; he furthermore denied that defendant in his presence called his attention to the fact that he (defendant) had made a memorandum that that check for $250.50 was a settlement in full. The exhibits with reference to these items of $60.50, $19.50 and $337.50 were all in the handwriting of defendant or his representative, and nowhere did any of these exhibits bear any writing or memorandum made by the plaintiff or his representative, save exhibit 5, which was the contract itself.
    James G. Skinner and Joel C. Carlson, for plaintiff in error.
    Meek & McDonald, for defendant in error.

      Abstract of the Decision.
    1. Account stated, § 23

      —burden of affirmative defense. In an action for work done and material furnished on a building, where the defendant set up in his affidavit of merits that the parties árrived at an agreement of all items and matters in dispute and that said agreement constituted an account stated and that the amount arrived at in a certain sum having been paid, the agreement constituting the account stated having been fulfilled, and that there was nothing further due plaintiff from defendant, the affidavit of merits not denying that the extra work and material had been furnished nor the value thereof, held that the defense relied upon constituted an affirmative one of an account stated upon which defendant had the burden of proof.
    2. Assumpsit, action op, § 89*—sufficiency of evidence to support recovery. Where there was no denial of plaintiff’s itemized statement of claim either in the affidavit of merits or opening statement for the defendant, and there was an express admission that there was extra labor performed and extra material furnished, and plaintiff offered testimony tending to prove his claim as set out in a statement of claim, the only question in the case being whether there had been an accounting agreed on which constituted an account stated, evidence held to fully warrant the trial court’s finding for plaintiff.
    3. Accord and satispaction, § 8*—insufficiency of evidence to establish. In an action for work done and material furnished upon a building, evidence held to fail to overcome a finding for plaintiff as against a defense of an account stated and settlement.

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

   Mr. Justice Pam

delivered the opinion of the court.