text:
    Maremont, Wolfson & Cohen Company, Appellees, v. Schwarzschild & Sulzberger Company, Appellant.
    Gen. No. 20,882.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Maremont, Wolfson & Cohen Company, a corporation, plaintiff, against Schwarzschild & Sulzberger Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a written contract. From a judgment for plaintiff for $2,431.10, defendant appeals.
    Plaintiff’s second amended statement of claim is in part as follows:
    “Plaintiff is in the business of manufacturing and repairing wagons. Defendant is engaged in the business of beef and pork packing. For about eight months prior to November 23, 1908, plaintiff performed work of repairing on defendant’s wagons. On November 23, 1908, plaintiff submitted to defendant a proposal, a copy of which is as follows:
    We propose to furnish all materials and labor to repair, paint and fully maintain all your rolling stock equipment, listed below, connected with your stables at Chicago, as follows: "We will take your equipment in its present condition and keep it in repair; you agree to let us do all your overhauling and repainting of the wagons, buggies and carts now in your stables, as listed below; you to have the liberty to add or diminish the number of each class of vehicles according to the needs of your business.
    15 single wagons, 16 double wagons, 2 four horse wagons, 7 dump carts and cripple carts, 11 buggies, 1 mail cart, and 12 shop fat wagons.
    We will overhaul and repaint any single wagon at $56.25, double wagon at $70.20, four horse wagon at $76.50, buggies at $33.75, dump carts and cripple carts at $22.50? mail cart $25, and shop fat wagons $70; all overhauling and general repairing and painting to be done at our factory, we to call for and deliver the work. In overhauling we agree to take all springs apart and clean and oil them before painting. * * * Our price for overhauling your buggies does not include the maintenance and replacement of your rubber tires.
    For and in consideration of your agreeing to give us all your business on the overhauling and repainting of your wagons, we agree to keep all your rolling stock in repair throughout the year without charge. We agree to pay you for all petty repairs which you may find advisable to have done at your own shops by your own men, such as repairing or tightening clips, putting-in or tightening bolts, etc. * * * We agree to do all the work in an expeditious manner and at such time as will least interfere with your business. You are to pay us on the 10th day of each month for all the overhauling and repainting done by us during the preceding month, terms net cash. It being understood that we will make bills for each job we overhaul at the foregoing prices, and that the light running repairs done on your vehicles are not to be billed, the cost thereof being contemplated in the above itemized prices.
    This contract to run for two years from date, and to continue after that time until cancelled by either party giving thirty days’ notice to the other party, and shall cease upon the termination of such thirty days’ notice, excepting on the equipment that has been overhauled and repainted less than a year previous to date of cancellation. On this equipment the contract is to run until one year from date of overhauling.
    Your acceptance of this proposition will constitute a contract, which we agree to live up to to your entire satisfaction and in case this work is not done to your satisfaction we grant you the right of cancelling- this contract when you see fit.
    Maremont, Wolfson & Cohen Co.
    per L. S. Maremont.
    Accepted
    SCHWABZSCIIILD & SULZBERGER Co.
    per E. B. Kitzinger.
    Jany. 23, 09.”
    It was further alleged that a modification of the contract was proposed by defendant after accepting the contract by which other wagons were included in the contract, and that the fat wagons referred to should be eliminated therefrom. In the affidavit of defense these allegations were admitted.
    Plaintiff’s treasurer testified to letters and statements sent by plaintiff to defendant’s purchasing agent, which witness had personally dictated, signed and mailed in the usual course of business, and copies which witness testified were correct were admitted in evidence, due notice having been given defendant to produce the originals. The evidence and the testimony of plaintiff’s treasurer tended to show a constant insistence by plaintiff on a construction of the contract requiring each wagon included in the contract to be painted as well as repaired at least,once a year, and an attempt by defendant to have its wagons repaired under the contract without expense, without having them repainted. Defendant’s letters contained such expressions as, “We are doing what we can to get these wagons into you within a year’s time to be repaired.” In another letter defendant said: “We are anxious to have our wagons go through your shop once a year.” In no letter does defendant refer to plaintiff’s contention that each wagon must be repainted once a year at the contract price, as part of the consideration of the contract, though the record shows that in answer to a letter from plaintiff pointing out that under the contract, “the time of painting is the time when I get the yearly contract price,” defendant’s purchasing agent replied, whether verbally or in writing does not appear, that such was defendant’s understanding.
    It appeared that during, the first year of the contract, out of 20 single wagons 15 were repaired under the contract, and 10 only were repainted, and. all 15 double wagons were overhauled, but only 8 were repainted. During the second year, defendant operated 20 single and 15 double wagons, 12 buggies, 7 carts and 1 mail cart, and of these 13 single and 9 double wagons, 9 buggies and 2 carts were repaired, repainted and paid for, while 7 single and 6 double wagons, 3 buggies, 5 carts and 1 mail cart were repaired but not repainted.

      Abstract of the Decision.
    1. Depositions, § 9

      —when court may limit scope of interrogatories. Where interrogatories.required answers not only as to the times and places of interviews between representatives of plaintiff and defendant, but also all that was said thereat, a ruling of a justice of the Municipal Court of Chicago that only the questions as to the times and places of such interviews need be answered, held, not an abuse of discretion under section 32 of the Municipal Court Act (J. & A. H 3344), providing that such justice “may permit the filing * * * of interrogatories * * * and * * * require an answer under oath” thereto, where at the trial plaintiff’s representative testified fully, as far as material, as to what was said at such times and places, so that defendant was not prejudiced by such ruling.
    2. Production of books and papers, § 10

      —when subpoena duces tecum unnecessary. Letters and statements sent to one in his official capacity as purchasing agent of a corporation are not letters to a third person, requiring a subpoena duces tecum to such third person to compel the production of such writings at the trial, but are in effect letters to the corporation, and if on proper notice the originals are not produced, held not error to permit plaintiff to introduce copies in evidence.
    3. Contracts, § 377

      —when evidence of transactions before execution admissible. In an action to recover on a written contract for repairing and repainting defendant’s wagons, held not error to admit in evidence written orders for such painting and repairing, “as per contract,” sent by defendant to plaintiff prior to defendant’s formal written acceptance of the contract, it appearing that such orders were sent to plaintiff as under the contract, and afterwards executed by it thereunder, for the reason that the fact that parties treated the contract as being in force prior to such acceptance by defendant does not cause the application of the rule that negotiations leading up to a contract are merged therein.

      The items for which plaintiff recovered consisted, in substance, of claims for the stipulated price for painting the wagons which under the contract defendant should have had repainted, but did not, with the exception of one item for a balance on an account submitted to defendant and admitted to be correct.
    William R. Brown, for appellant.
    Litzinger, McGurn & Reid, for appellee; E. R. Litzinger, 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.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

4. Contracts, § 177 —how construed. In an action to recover on an ambiguous written contract, where the construction contended for by plaintiff was that defendant was bound to have each of its wagons repainted by plaintiff at least once a year during the term, at a price stipulated in the contract, contract construed and held to show an intention that each vehicle named should undergo a general overhauling and repainting by plaintiff each year during the life of the contract, such intention being inferred from the use of the words “throughout the year” and “one year” used in the contract.

5. Evidence, § 351 —when parol evidence admissible to aid in construction of written contract. "In an action on an ambiguous written contract, held not error to admit evidence of correspondence and conversations between representatives of the parties, either occurring at the time the contract was made, or during its performance, for the reason that such evidence, if it tends to show what construction the parties themselves placed thereon, is always admissible in aid of its construction, the rule being that where it appears that parties have given to the instrument a particular construction by acting upon it in a particular way, the court will usually adopt such construction.

6. Witnesses, § 194 —when use of memorandum allowed. In an action to recover on a written contract, held not error to allow a witness to refresh his recollection by consulting a memorandum.

7. Witnesses, § 185 —when answer not responsive. Where a witness is called to testify as to market prices for painting a certain sort of wagons, held not error to strike out his testimony where it appears that his testimony is of the prices which he charged in his own business for such work, and not of the market price.

8. Interest, § 19 —when improper to allow. In an action to recover on a written contract for repairing and repainting wagons, a judgment of $2,431.10 for plaintiff, which included interest on all items for which plaintiff recovered, held excessive to the extent of $331.17, for the reason that interest to that extent was improperly allowed, plaintiff’s damages, except as to one item which was admitted, being not sufficiently certain to enable defendant to know, prior to verdict, what it owed, and hence the statute as to interest was inapplicable.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Mary A. O’Brien, Appellee, v. National Council Knights and Ladies of Security, Appellant.
    Gen. No. 20,894.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    Insurance, § 897

      —when misrepresentation a question of fact. In an action to recover on a certificate of insurance, where there was evidence that insured had not complied with the terms of his contract, in that some of the representations in insured’s application for insurance were false, and also in that insured, at the time of death, was not in good standing according to the by-laws of defendant’s society, held that a peremptory instruction for plaintiff was erroneous, and that the case should have been submitted to the jury under proper instructions.

      Statement of the Case.
    . Action by Mary A. O’Brien, plaintiff, against the National Council Knights and Ladies of Security, defendant, in the Superior Court of Cook county, to recover on a certificate of insurance issued by defendant, a fraternal beneficiary society, to William P. O’Brien, and payable on his death in good standing to plaintiff, his mother.
    The defense, in part, was that deceased in his application for membership had falsely stated the cause of death of a sister to have been “pleurisy,’’while there was evidence that both the sister and deceased died as the result of consumption.
    From a judgment for plaintiff for $918.40, defendant appeals.
    A. W. Fulton, for appellant.
    T. F. Monahan, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.


text:
    George J. Cooke Company, Appellee, v. Richard Hochmuth, Appellant.
    Gen. No. 20,901.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John J. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by George J. Cooke Company, a corporation, plaintiff, against Richard Hochmuth, defendant, in the Municipal Court of Chicago, to recover on a written contract, whereby defendant agreed to purchase of plaintiff 2,000 barrels of beer, to be ordered and delivered in quantities of not less than 15 nor more than 40 barrels each week during a term of two years. From a judgment for plaintiff, defendant appeals.
    Charles F. Vogel, for appellant.
    Harry A. Daugherty, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Damages, § 56 —what measure for breach of contract. In an action to recover for failure to purchase and accept deliveries of beer under a written contract, where the contract showed that the beer was to be manufactured and delivered after the date of the contract, held that the measure of plaintiff’s damages was the difference between the cost per barrel of manufacture and the contract price.

2. Witnesses, § 21 —when witness qualified. In an action where the measure of damages was the difference between the cost per barrel of manufacturing certain beer and the contract price therefor, and where plaintiff corporation’s president testified from personal knowledge as to such cost, a motion to strike out such testimony held not erroneously denied, although witness had refreshed his memory as to the figures to which he testified by looking at the books of plaintiff corporation, which he knew to be correct, for the reason that the objection to the testimony went to the source and extent of witness’ knowledge, and was not put on the ground that the books were the best evidence.

3. Contracts, § 384 —what evidence insufficient to show excuse for breach of contract. In an action to recover for the refusal to purchase and accept deliveries of beer under a written contract, evidence held insufficient to show that the beer was of unmerchantable quality, it appearing from the evidence that defendant’s reason for refusing performance of the contract was that he had sold out his saloon, and it also appearing from defendant’s testimony that he was satisfied with the beer both as to price and quality.


text:
    Herbert Hinchliffe for use of Carson, Pirie, Scott & Company, Appellee, v. Wenig Teaming Company, Appellant.
    Gen. No. 20,907.
    1. Carriers, § 139

      —when evidence sufficient in action for loss. In an action to recover for loss of goods which defendant contracted to transport for plaintiff for hire, but which it never delivered, where the horses and truck used to transport the goods in question were not owned by defendant, but hired by it from another, held that the evidence, though conflicting, was sufficient to support a verdiet and judgment for plaintiff, in that such evidence sufficiently-showed that the teamster who drove the team in question was employed by the defendant.
    2. Instructions, § 115

      —when refusal of instruction as to issue not involved proper. In an action to recover the value of goods which defendant contracted to transport for plaintiff, but never delivered, where the court instructed the jury, in substance, that one who contracts to transport goods for hire is liable for the safe carriage of the goods, though he hired the horses and wagon by which such goods were transported, held not prejudicial error to refuse to give an additional instruction, which was substantially that the test of the employment of a servant Was the right of the master to discharge, pay or control the servant, the trial court giving as a reason for his refusal to give the instruction that the question involved in the instruction requested was not in issue.
    3. Carriers, § 138*-—when evidence as to value of lost goods admissible. In an action to recover the value of goods which defendant contracted to transport for plaintiff, but never delivered, held not error to deny a motion to strike out testimony as to the market value of a portion of the goods in question.
    4. Pleading, § 259*—when amendmient changing cause of action allowed. In a first-class action under paragraph 1, sec. 2, of the Municipal Court Act (J. & A. 3314), to recover for property lost in transportation, where the record shows leave granted to amend the form of the action by changing it from an action on the case to one of assumpsit and where the amendment for which leave was granted was actually filed, held that the court had jurisdiction to enter a judgment on a verdict against defendant on its implied contract to transport the property safely.
    5. Pleading, § 250*—when amendment at close of case allowed. An amendment in a civil action by changing the form of the action from tort to assumpsit after both sides had rested and before verdict, held properly allowed under section 30 of the Practice Act (J. & A. If 8576), providing that such amendments may be allowed in a civil action at any time before verdict.
    6. Pleading, § 271*—when defendant to plead to amended declaration. Where the court grants leave to plaintiff to amend by changing the form of action from case to assumpsit, and requires defendant to plead instanter thereto, defendant is not required to plead before the amendment allowed is actually filed.
    7. Appeal and error, § 1677*—when failure to file amendment waived. Where a defendant is required by the court to plead instanter to an amendment which plaintiff has leave to file, and does so plead before such amendment is actually filed, he thereby precludes himself from invoking, the rule that under such circumstances the Appellate Court on review cannot regard such an amendment as having been actually filed.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at th'e October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Rehearing denied October 15, 1915.
    Statement fey the Court. On January 19, 1910, the plaintiff, Herbert Hinchliffe, for use, etc., commenced a first-class action in the Municipal Court of Chicago against Wenig Teaming Company, a corporation, defendant, “of a plea of trespass on the case.” The declaration as originally filed consisted of two counts. The first count was as follows:
    “For that whereas, on, to-wit, the fourth day of January, 1910, the defendant was the owner, proprietor and was conducting and operating the business commonly known as the express and teaming business, in and about the City of Chicago, County of Cook and State of Illinois, and was a common carrier of goods and chattels for hire.

    " Said plaintiff avers that on, to-wit, the said fourth day of January, 1910, in said city, county and state aforesaid, the plaintiff caused to be delivered to the defendant, and the defendant by its agents and servants in that behalf then and there received from the plaintiff certain bales, packages and boxes containing divers goods, chattels and merchandise, to-wit: six (6) cases and five (5) bales or packages containing the following merchandise (enumerating same) of the plaintiff of the value of, to-wit, $1,292.77, to be safely and securely carried by the defendant from a certain warehouse of the plaintiff to a store or wholesale house of the plaintiff in the City of Chicago aforesaid, for a certain reward to the defendant in that behalf.
    “Plaintiff further avers, that in consideration of the premises it then and there became and was the duty of said defendant to safely handle, care for and deliver the aforesaid bales, packages, boxes and merchandise to its destination as aforesaid and in the meantime to take dne and proper care thereof.
    “Yet the said defendant, by its agents and servants, did not regard its duty in that behalf, but on the contrary thereof so carelessly, negligently and improperly conducted itself in and about the premises that by and through the negligence, carelessness and default of the said defendant, by and through its servants and agents, the said bales, packages, boxes and merchandise and the contents thereof, being of the value of $1,292.77, after the delivery thereof to and receipt by the said defendant by its servants and agents in that behalf as such carrier, became and were wholly lost to the plaintiff, * * * to the damage of the plaintiff in the sum of $1,310.03, and therefore the plaintiff brings this suit, etc.”
    The first, second and third paragraphs of the second count were the same as the corresponding paragraphs of the first count. The fourth paragraph of the second count was as follows:
    “Yet the said defendant, by its agents and servants did not regard its duty in that behalf, but on the contrary thereof so carelessly, negligently and improperly conducted itself in and about the premises that by and through the negligence, carelessness and default of the said defendant, by and through its servants and agents, the said bales, packages, boxes and merchandise and the contents thereof, being of the value of $1,292.77, after the delivery thereof to and receipt by the said defendant, by its servants and agents in that behalf as such carrier, were wrongfully and unjustly taken and carried away by some person or persons to the plaintiff as yet unknown, and were and still are thereby wholly lost to the said plaintiff, to the damage of the plaintiff in the sum of $1,310.03, and therefore the plaintiff brings this suit, etc.”
    On February 7, 1910, the defendant filed a plea of not guilty to the declaration. On February 2,1914, the cause came on for trial before a jury. On the same day the plaintiff asked leave to amend the second count by striking out the allegation in the first paragraph of said count that the defendant “was a common carrier of goods and chattels for hire,” and also by striking out of the fourth paragraph of said count the words “as such carrier,” and the court ordered that such leave be granted and that defendant’s plea of not guilty stand as a plea to the declaration as amended. No amendment was then made to the first count. The bill of exceptions shows that on the morning of February 5, 1914, after all the evidence had been heard, the defendant moved that the court instruct the jury to find the defendant not guilty, but the motion was denied; that thereupon, in chambers, the court gave plaintiff leave “to change the form of action to assumpsit,” and also gave plaintiff leave to amend his declaration by adding to the fourth line, after the words “trespass on the case,” the words “on promises,” and at the end of each of the first and second, counts by striking out the words “to the damage of the plaintiff in the sum of $1,310.03, and therefore the plaintiff brings this suit, etc.,” and inserting in lieu thereof the following words:
    “Whereby said defendant became liable to pay said plaintiff said sum of money, and in consideration thereof the defendant well and truly promised to pay the same; nevertheless said defendant, not regarding said promise, refused and still does refuse to pay same; to the damage of said plaintiff in the sum of $1,650.”
    The bill of exceptions further shows that to all of the above rulings the defendant duly excepted, and that thereupon the following proceedings were had:
    “Whereupon, a rule was entered on the defendant to plead to said declaration, as amended, instanter, to which ruling of the court the defendant * * * objected and excepted.
    “Counsel for defendant was given all day, February 5, 1914, in which to plead to said declaration as amended.

      “The Court: ‘The record will show that by agreement the defendant may present any defense under the general issue that might have been presented under any special plea, if pleaded. ’
    “Mr. Croarkin (attorney for defendant): ‘I will except to the ruling of the court, but, of course, I will have to do what the court has directed, and I will get that in some time today, subject to my objection.’
    ‘ ‘ The Court: ‘ All right. ’
    “Counsel for defendant requested the court to instruct the jury to find the issues joined for the defendant ; which motion was overruled, to which ruling the defendant * * * excepted.
    “Which was all the evidence offered or received upon the hearing of the above entitled cause. ’ ’
    The bill of exceptions further shows that the court then proceeded to instruct the jury orally. During the course of the charge the court said:
    “The court further instructs the jury, if you believe from a preponderance of the evidence that the plaintiff requested the defendant, the Wenig Teaming Company, that it send a team to the warehouse of Carson, Pirie, Scott & Company to carry a load of goods for hire, and that said defendant, the Wenig Teaming Company, agreed to supply such team for such purpose ; and if you further believe from the evidence that the defendant company caused such team to be sent to the warehouse of Carson, Pirie, Scott & Company, in pursuance of such agreement; and if you further believe from the evidence that the goods in question were delivered to the driver of a team supplied by the Wenig Teaming Company; and if you further believe from the evidence that the goods in question were never delivered as directed, or redelivered, to Carson, Pirie, Scott & Company, then the burden is on the defendant to show, by a preponderance of the evidence, that the loss of such goods was not caused by a want of reasonable care on its part of the goods in question.
    “You are further instructed, that if you believe from the evidence that the plaintiff supplied the defendant with a team to transport the goods in question, the defendant does not relieve itself from the responsibility of safely carrying such goods, by employing some other person to actually do the carrying or by securing the team to do the work from some other person ; so that, even though you believe from the evidence that Mr. Guthmann, or his company, furnished the wagon and horses in question, yet if you further believe from the evidence that such wagon and horses were supplied at the request and procurement of the defendant, the liability and duty of the defendant toward the goods would be the same as though it had been the horses’ and wagon of the defendant; on the contrary, if you believe from the evidence that the plaintiff did not employ the defendant, the Wenig Teaming Company, to transport the goods in question, but did employ Mr. Guthmann, or any other person, to so transport them, you should find the issues against the plaintiff. ’ ’
    At the conclusion of the charge defendant’s attorney objected to that portion of the charge above set forth as “inaccurate and incomplete,” and requested the court to further instruct the jury that “the test of employment of a servant by a master is whether or not such person has a right to discharge, pay or control the course or direct the conduct of the servant.” The court refused so'to do, on the ground that “it is not a question whether Guthmann or the Wenig Teaming Company hired him (Moran); if the Wenig Teaming Company did not, they are not liable; if they did, they are liable.”
    The jury returned a verdict on February 5, 1914, finding the issues against the defendant and assessing plaintiff’s damages at the sum of $1,292.77.
    The common-law record shows that on the same day¿ February 5,1914, the defendant filed a plea of the general issue in assumpsit. Said record, however, does not show that at any time plaintiff actually filed an amendment to the declaration, in pursuance of the leave granted him as above shown in the bill of exceptions.

      On March 7, 1914, the court, after overruling the defendant’s motions for a new trial and in arrest of judgment, entered judgment on the verdict against the defendant for $1,292.77, which judgment the defendant by this appeal seeks to reverse.
    Francis E. Croarkin, for appellant.
    Louis Ziv and F. S. Loomis, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for defendant contends that the verdict and judgment are not supported by the evidence. No point is made that the verdict is excessive. While the testimony of some of defendant’s witnesses is in sharp conflict with the testimony of plaintiff’s witnesses in some particulars, plaintiff’s evidence discloses, in substance, the following facts: The plaintiff, Hinchliffe, was and had been for twenty years engaged in the teaming business in Chicago. He had an arrangement with Carson, Pirie, Scott & Company to do certain teaming and hauling for them and to provide for them as many teams each day as they should notify him on the preceding day they would desire. Occasionally, when he was short of teams, he would telephone defendant, or other parties engaged in the teaming business, to furnish teams to make up the necessary number. The defendant, Wenig Teaming Company, was also engaged in the teaming business in Chicago, hauling merchandise from depots to warehouses and from warehouses to stores, and “ready to do business for any one who asks our aid and is ready to pay the money for it.” On January 3, 1910, Carson, Pirie, Scott & Company notified Hinchliffe that they would need on the following day more teams than he had available and about five o’clock on the afternoon of that day he telephoned George Wenig, secretary and treasurer of defendant, and asked how many teams defendant could furnish plaintiff, and Wenig promised three teams for the next morning to go to warehouse “C” of Carson, Pirie, Scott & Company. On the morning of January 4th, said teams not having arrived at said warehouse, Hinchliffe telephoned Wenig and the latter said that he had sent only one team to the warehouse. Later in the morning Hinchliffe again telephoned Wenig that said team had not arrived, to which Wenig replied that the team was on the way. Later in the day Hinchliffe again telephoned Wenig, saying that the team had been to the warehouse, had got its load of merchandise, but that the team and merchandise had not yet arrived at the wholesale store of Carson, Pirie, Scott & Company, and asked if the teamster had been properly instructed, to which Wenig replied that the teamster was working and that the team would arrive all right. About four o ’clock in the afternoon, the team not having arrived at said store, Hinchliffe again telephoned Wenig and advised him of that fact, to which Wenig replied that the team belonged to the Guthmann Transfer Company, that evidently something was wrong and that Hinchliffe had better communicate with said transfer company. The teamster never delivered said merchandise to the wholesale store, or any store, of Carson, Pirie, Scott & Company, and the teamster and merchandise disappeared. The horses and empty truck were found the same night on the west side of the city near certain railroad tracks. Bichard Guthmann, ‘ a witness for plaintiff, testified, in substance, that in January, 1910, he was engaged in the general teaming business in Chicago under the name of Guthmann Transfer Company; that he had been accustomed to furnish teams and trucks by the day to the defendant for a consideration; that early in the morning of January 4th, the defendant telephoned him and requested the use of a team of horses and truck; that he ordered an assistant to get a team and truck ready for defendant; that subsequently a teamster, not in his employ and giving his name as “Moran” and having a slip of paper or order from the defendant, called upon him; that he-saw said teamster take said team and truck out of his bam and yard; that he gave him no instmctions; and that subsequently he rendered a bill to the defendant for the use of said team and truck on said day and that the bill was paid. Adolph Ackerbloom, a witness for plaintiff, testified, in substance, that he was foreman at said warehouse “C”; that a teamster, giving his name as “Moran,” called on him at said warehouse on the morning of. January 4, 1910, and that the merchandise in question' was delivered to him and loaded upon the truck. We are of the opinion that the verdict and judgment are sufficiently supported by the evidence. And we think that the evidence sufficiently discloses that the teamster, Moran, was employed by the defendant, and not by Guthmann as contended by counsel for defendant.

And we do not think that under the facts as shown by the evidence there is any merit in the contention that the trial court committed prejudicial error in refusing to add to the oral charge the additional instruction asked for by defendant’s attorney, as mentioned in the above statement of the case. Neither do we think that the court erred in refusing to strike out the testimony of certain of plaintiff’s witnesses as to the market value of certain portions of the merchandise in question.

It is further contended by counsel for defendant that the court erred in denying defendant’s motions, made at the close of plaintiff’s evidence and again at the close of all the evidence, to instmct the jury to find the defendant not guilty, and for the reason that, as the action as originally commenced was a first-class action in tort and not for the conversion of personal property, the trial court had no jurisdiction to hear the case under the provisions of clause 3 of paragraph 1 of section 2 of the Municipal Court Act (J. & A. ft 3314). It does not appear from the record that at any time before or during the trial the question of the jurisdiction of the court of the subject-matter was in any manner raised. To the declaration in case to recover damages for defendant’s negligence in causing the loss of certain merchandise, defendant filed a plea of not guilty. It further appears that after both parties had-rested, and after the court had denied defendant’s motions to instruct the jury to find the defendant not guilty, the plaintiff was given leave to change the form of action to assumpsit and to amend his declaration accordingly. It was not improper for the court to allow this to be done at any time before final judgment. (Section 39, Practice Act, J. & A. j[ 8576). It further appears from the bill of exceptions what particular amendments to the declaration plaintiff would be allowed to make, but it does not appear, from the common-law record that plaintiff actually filed with the clerk of the court a formal amendment to his declaration in accordance with the leave given him by the court. Had this been done, we are of the opinion that the declaration as amended would have been sufficient after verdict to have sustained the verdict and judgment against the defendant on its implied contract to carry the merchandise in question safely (3 Hutchinson on Carriers, sec. 1403; Chudnovski v. Eckels, 232 Ill. 312, 318, and that the court had jurisdiction to enter the judgment (Chudnovski v. Eckels, supra). We are aware of the decisions of our Supreme Court in the cases of Wisconsin Cent. R. Co. v. Wieczorek, 151 Ill. 579, 583, Ogden v. Town of Lake View, 121 Ill. 422, and other subsequent cases. In the Wieczorek case, supra, it was decided, in substance, that where a plaintiff obtains leave of the trial court to amend his declaration, and this leave, together with the words of the amendment and where they are to be placed in the pleading, are shown by the bill of exceptions but he failed to make the amendment, a court of review cannot treat the amendment as having been made. Counsel for defendant does not cite any of these cases, .or urge the particular point decided in those cases as a reason for the reversal of the judgment. He states in his written brief that the case had been tried, under a declaration in tort, as a tort case, that the testimony was all in, and that “it was manifestly unfair, because it was entirely unexpected,” for the trial court “to give leave to plaintiff to file a declaration in assumpsit, which he did not do, to change the form of action to assumpsit, and to add to and strike out words in the declaration on file, over the objection of the defendant, and to then rule defendant to plead to said declaration as amended instanter over defendant’s objection, even though the court then suggested that defendant might at that late date present any evidence under the general issue that might have been presented under any special plea, if pleaded. ’ ’ It appears from the bill of exceptions that after the court had entered a rule upon the defendant to plead to the declaration, as amended, the defendant was given all day, February 5, 1914, in which to plead, and that by agreement the defendant was given leave to present any further defense, but it does not appear that he attempted to do so or gave any reason why he could not do so. It further appears from the bill of exceptions that, while excepting to the rulings of the court, defendant’s attorney stated in effect that he would file a plea of the general issue in assumpsit some time during the day, and that thereafter defendant’s attorney requested the court to instruct the jury “to find the issues joined for the defendant,” which motion the court denied. And the common-law record shows that during said day the defendant did actually file with the clerk a plea of the general issue in assumpsit. Although the court had entered a rule upon defendant to file a plea in assumpsit, he was not obliged to file such a plea until after the declaration had been actually amended in accordance with the leave granted, but instead of waiting until this was done, defendant filed his plea in assumpsit, and thereby treated the declaration as actually having been amended in accordance with the leave granted. In our opinion, under the facts disclosed in the present case, the rule announced in the Wieczorek case, supra, should not here be applied. We think that the defendant is in no position in this court to urge that the judgment should be reversed, defendant having filed a plea of the general issue in assumpsit. Wrought Iron Bridge Co. v. Commissioners of Highways, 101 Ill. 518, 520; Illinois Steel Co. v. Hanson, 195 Ill. 106, 107; American Home Circle v. Schneider, 134 Ill. App. 600, 602.

For the reasons indicated the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Henry Becker, Appellee, v. Sanitary District of Chicago, Appellant.
    Gen. No. 20,985.
    1. Pleading, § 14

      —when declaration in action for personal injuries not objectionable as stating conclusions of law. In an action to recover for personal injuries caused by plaintiffs hand coming in contact with an electric wire of defendant carrying a current of 12,000 volts, which wire was about thirty-feet from the ground and attached to a pole, where the declaration alleged that the accident occurred while plaintiff, a hanger of electric signs, was “lawfully” working on such a sign which extended into the street at a height of about twenty-eight feet from the ground near said wire, defendant first demurred, and after its demurrer was overruled, pleaded the general issue, and under both demurrer and plea contended that the sign on which plaintiff was working at the time of the accident was a purpresture and a nuisance, obliging plaintiff, in order to charge defendant with any duty as to the condition of the wires, as to plaintiff, to allege and prove affirmative facts tending to show a right thus to occupy space above the street, and that without such allegation and proof the allegation that plaintiff was “lawfully” in the situation where the accident occurred was a mere conclusion of law. Held, that defendant’s contention was without merit, for the reason that such signs, if not interfering with the public use of a street or sidewalk, are not to be regarded as nuisances, nor is every obstruction of the street a purpresture.
    2. Nuisance, § 1

      —how distinguished from purpresture. A purpresture is to be distinguished from a nuisance in that though it may be a nuisance it is not necessarily so.
    3. Electricity, § 11

      —when failure to insulate is negligence. In an action to recover for personal injuries, caused by plaintiff’s hand coming in contact with an uninsulated electric wire of defendant carrying a current of 12,000 volts, which wire was carried on poles above ground, where it appeared that there was nothing which should have warned plaintiff that the wires carried current and were uninsulated, and where it also appeared that it was electrically practicable to so insulate such wire as to prevent the escape of the current, evidence held to tend to prove negligence on the part of defendant.
    4. Electricity, § 9

      —what degree of care required in employing. While one using a dangerous element such as electricity in the public streets is not an insurer of the safety of the public, yet such person using such element is bound to anticipate any legal use of the street by the public, and to know of and to use reasonable care to guard against dangers which may arise in such use of the street by the public, whether such public use be for business, convenience or pleasure.
    5. Electricity, § 9

      —what constitutes ordinary care in employing. Ordinary care exercised by those who use for profit a dangerous element like electricity, in order to prevent injury to others from the use of such element, must be commensurate with the danger, and as there is greater danger and hazard in the use of such an element as electricity, there must be a corresponding exercise of skill and attention to avoid injury to others, in order to come within the legal meaning of the term “ordinary care.”
    6. Electricity, § 9

      —lohat care required of Sanitary District of Chicago in using. The Sanitary District of the City of Chicago is a municipal corporation, and when engaged in transporting and selling electrical power for either public or private purposes is to be regarded as a private corporation, and liable as such for its negligent and wrongful acts.

      Appeal from the Superior Court of Cook county; the Hon. Humo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This is an action brought by Henry Becker, plaintiff, against the Sanitary District of Chicago, defendant, to recover damages for personal injuries sustained on August 16, 1910, occasioned by his coming in contact with certain electric wires carrying a current of about 12,000 volts, said wires being strung on poles about 30 feet from the ground and said poles being on the east side of Forty-eighth avenue, a public street in the City of Chicago, about two feet east of the east curb line of said avenue. The wires were of copper, but merely covered with a waterproof insulation to prevent corrosion, and were part of defendant’s system of transmission wires which carried the electrical current from defendant’s station.at Thirty-first street and Western avenue to the West Park substation for lighting the West parks, and then on to Bloomingdale road and Ashland avenue for furnishing light and power to factories, etc. On the east side of Forty-eighth avenue and about midway in the block south of Lake street was a theater building, called Lyda theater, facing west. The width of the cement sidewalk from said building to the east curb line of Forty-eighth avenue was sixteen feet. In front of the entrance to the theater and about fifteen feet above the sidewalk was a canopy, extending west almost to said east curb line. Plaintiff was an electric sign hanger. On the day of the accident he, with other workmen, was engaged in hanging an electric sign made of galvanized iron, attached at its east end to said building, and also supported by means of cables attached to the building and fastened to the sign by eyebolts immediately east of its west or outer end. The sign was three feet wide and about twelve feet long. When hung in place the top of the sign was about thirteen feet above the canopy, and the word “Lyda” on both sides of the sign could be read from the north or from the south. At the time of the accident the work of hanging the sign was about completed. Plaintiff was standing on one of the upper rungs of a ladder, the lower end of which rested on the top of the canopy and the upper end leaned against one side of the sign near its outer end. The top of the sign came about even with plaintiff’s elbow as he stood. The electric wires of defendant were about two feet west of the outer end of the sign and about two feet above the top level of the sign. Plaintiff had just finished adjusting a turn buckle, about nine inches from said end of the sign, used for tightening the cables. He raised his left hand to give a signal to another workman, when his hand came in contact with one of said wires, there was a flash, and plaintiff received a shock which threw him from the ladder on to the canopy. He was terribly burned in many places on his body, and while in the hospital suffered intense pain. He, however, made a remarkable recovery, and while he was enabled to leave the hospital in fourteen weeks, and afterwards to resume work at his calling, he suffered some permanent injuries. The jury returned a verdict finding the defendant guilty and assessed plaintiff’s damages at $5,000, upon which the court on May 9, 1914, entered judgment. It is not assigned as error, or argued, that the verdict is excessive.
    Plaintiff’s original declaration, filed July 21, 1911, consisted of two counts. The first count alleges, in substance, that on August 16, 1910, defendant was a corporation engaged in manufacturing, selling and dealing in electric power; that it had and maintained in Forty-eighth avenue, a public street in the City of Chicago, certain electric wires, carrying a current of 12,000 volts, strung upon poles closely adjacent to the sidewalk or curb; that on said day plaintiff was “lawfully engaged” in placing a certain metal sign projecting over the sidewalk close to the wires of the defendant; that defendant was bound to maintain its wires in a reasonably safe condition so as not unnecessarily to endanger and injure persons “lawfully” upon the street, and to have and keep said wires insulated so that the same might not be a source of injury to persons near and about the same; that while plaintiff was so working, with all due care, etc., he came in contact with said wires, which' defendant had negligently permitted to remain without sufficient insulation, whereby because of such negligent and insufficient insulation the heavy voltage and current in said wires passed into and through plaintiff’s body, and burned and injured him and caused him to fall from the ladder upon which he was then working on to a certain canopy, and as a direct consequence of the defendant’s said negligence he was severely and permanently injured. The second count alleged, in. substance, that the wires carried so heavy a voltage that their maintenance and operation without any insulation to prevent injury to plaintiff and members of the public constituted a nuisance, and that while plaintiff was “lawfully” working as aforesaid upon the sign he, without fault on his part, came in contact with said wires and was severely and permanently injured as a direct consequence of said nuisance and the unlawful acts of the defendant. To these counts the defendant filed a plea of the general issue.
    On October 14, 1911, plaintiff filed three additional counts, to which defendant filed a general and special demurrer, and on May 25, 1912, plaintiff filed a fourth additional count, to which defendant also demurred generally and specially. The demurrer to the first additional count was subsequently sustained, and the allegations of that count need not be mentioned. The second, third and fourth additional counts are substantially the same as the first original count, alleging the “lawful” presence of plaintiff in said public street while engaged in erecting said sign, the presence of defendant’s poles and wires in said public street, the high voltage carried in the wires, and the negligence of the defendant in not sufficiently insulating the wires, etc. The fourth additional count contains the further allegation to the effect that the defendant negligently failed to place signs or warnings upon the poles or wires warning persons of the dangerous voltage being conveyed through the wires.
    One of the stated causes of demurrer to said last mentioned counts is that plaintiff states “conclusions of law” when he avers that he Was “lawfully engaged” and was “lawfully upon said public street,” in that he does not aver facts showing that he was so lawfully engaged and so lawfully there. The court overruled defendant’s demurrers to said counts and subsequently defendant filed a plea of the general issue thereto.
    Edmund D. Adcock and Ross C. Hall, for appellant; Oscar H. Olsen and Edmund M. Sinnott, of counsel.
    Robert J. Folonie, Underwood & Smyser and Arthur A. Basse, 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 Gridley

delivered the opinion of the court.

It is first contended by counsel for defendant that the judgment should be reversed because the evidence does not affirmatively show that plaintiff was lawfully at the place where he was injured at the time of the accident, and, under the facts shown, plaintiff must be considered as having occupied the position of a trespasser to whom defendant owed no other duty than to refrain from wilfully and wantonly injuring him. The argument, as disclosed in counsels’ written brief, is substantially as follows: That in .order for a person to legally occupy space within the confines or limits of a public street, above the surface thereof, it is incumbent upon such person to establish such right, by showing a permission or license from the municipality, that such occupancy of space above the surface of the street “is presumed to be unlawful until affirmatively shown to be lawful”; that the sign in question upon which plaintiff was working, extending as it did over a public sidewalk and at a height of about twenty-eight feet from the surface of the street, unléss properly authorized by law, “would be a purpresture and therefore a nuisance,” the presence of which, or that anyone would be employed in working on the same, defendant would not be bound to anticipate; that there was no evidence introduced that the City of Chicago, in pursuance of any grant of power conferred upon cities, had enacted any ordinance authorizing the erection of such a structure, or what the ordinance was, or that any license or permit had been issued for the erection of such a structure ; and that, therefore, for aught that appears in the evidence plaintiff’s position was that of a trespasser and he is not entitled to recover. Counsel also contend that not only was it incumbent upon plaintiff to affirmatively prove that he was lawfully at the place where the accident occurred, but that he should have alleged in his declaration facts, showing that he was lawfully there, and that the allegations of his being “lawfully” there, and “lawfully engaged” there, are mere conclusions of law and insufficient.

In reply, counsel for plaintiff contend, (a) that the question, whether the sign had been erected pursuant to a license from the City of Chicago, is not involved, but the real question is whether the defendant was bound to anticipate that persons might in the pursuit of their business, pleasure or affairs come in close contact with the wires in a public street, and take precautions to safeguard such persons by properly insulating the wires; and (b) that the presumption is* that plaintiff was lawfully where he was at the time of the accident and that the erection of the sign had been permitted by license, if one was required; and that the allegation in the declaration that plaintiff was lawfully engaged in erecting the sign imports that he was so engaged by the city’s license, if one was required, and if defendant wished to take issue on this matter of inducement it should have done so by a special plea, which it did not do but filed a plea of the general issue.

In the case of Commonwealth Elec. Co. v. Melville, 210 Ill. 70, plaintiff, while under a sidewalk, was injured by reason of shock and burns from an uninsulated wire of defendant. The sidewalk was level with the street at the curbside. The adjoining lot was much lower. A space existed through which persons could crawl under the sidewalk from the lot side if they wished. It was contended that plaintiff was a trespasser and could not recover. The court, however, held that plaintiff was rightfully there, and that the same rule did not apply to him as applies to one who goes upon the property of another with or without permission, in that he was not upon property either owned or controlled by the defendant. The court says (p. 77) :

“Plaintiff’s act in taking hold of the wire was an accident. The injury resulted from that accident, and while it may be conceded that he had no right to take hold of the wire, the question still remains, who was responsible for the injury that resulted from his accidental contact with that wire? So far as being in the space under the sidewalk was concerned, plaintiff had the same right to be there that the defendant had, but he could npt rightfully interfere with the property of the defendant or occupy the space already pre-empted by it. Appellant urges that the rights of the parties to be in this space were not equal, for the reason that it was there in pursuance of the terms of an ordinance and could not be summarily ejected, as the plaintiff, perhaps, might be. This is wholly immaterial. •* * * Electricity is a subtle and powerful agent. Ordinary care exercised by those who make a business of using it for profit, to prevent injury to others therefrom, requires much greater precaution in its use than where the element used is of a less dangerous character. As there is greater danger and hazard in the use of electricity, there must be a corresponding exercise of skill and attention for the purpose of avoiding injury to another, to constitute what the law terms ordinary care. ’ The care must be commensurate with the danger. * * * Appellant’s failure to use some device to guard its wires in this space under this sidewalk so that no person could inadvertently touch the cable tended to show a lack of ordinary care.”

In the case of Loth v. Columbia Theater Co., 197 Mo. 328, it appears that an electric sign fell upon plaintiff injuring him. Suit was brought against the theater company, the contractor engaged in lowering the sign, and the city. The court held, in substance, that the question of license or no license from the city was not involved, that the sign extending over the sidewalk from the building line, when safely and securely attached, was not a nuisance per se, but that it might become a nuisance by being allowed to become unsafe and dangerous to persons on the sidewalk. In the case of Engel v. Frank Parmalee Co., 169 Ill. App. 410, an unlicensed hotel runner, while acting as such in a public street, was injured by the negligence of the defendant, and it was held that the fact that he was unlicensed did not preclude a recovery by him, where his violation of the ordinance, which required that hotel runners be licensed, did not cause or contribute to the injury and he was not individually offending against defendant.

In Lawson on Presumptive Evidence (p. 93), the author states the rule to be in civil cases that “a person who is shown to have done any act is presumed to have done it innocently and honestly, and not fraudulently, illegally or wickedly”; and again the author says (p. 102): “The question is whether A has committed a certain act; the doing of the act renders A liable to a penalty; that A has done an act involving a penalty will not be presumed.” In Munson v. Fenno, 87 Ill. App. 655, it is held that in the absence of proof to the contrary a license to act will always be presumed.

, In Joyce on Nuisances (chapter 5, sec. 60) it is said: “A purpresture is to be distinguished from a nuisance, for though it may be a nuisance it is not necessarily one.” In Smith v. McDowell, 148 Ill. 51, 65, it is said: “It by no means follows that every obstruction of a street is a purpresture, or illegal.” And on page 66 the court states that “extensions of signs into the street,” not interfering with the public use of the street or sidewalk, are not to be regarded as nuisances.

Under the pleadings and under the facts in evidence, and in view of the foregoing authorities, we are of the opinion that the contention, first above mentioned, of counsel for defendant is without merit.

It is secondly contended by counsel for defendant that, even though plaintiff had a right to be where he was at the time of the accident, still, defendant, in the exercise of ordinary care, was only required to so place its wires that they would be reasonably safe for persons using the street in the usual and ordinary way, viz.,' traveling over the surface thereof. In other words, the contention is that the defendant was not bound to anticipate the likelihood of injury to persons from its wires, strung as they were in a public street about thirty feet above the surface thereof, though carrying the high voltage of twelve thousand volts and being uninsulated except with a covering to protect the wires from the weather, and therefore defendant, was not guilty of negligence.

We cannot agree with counsel. There was evidence introduced by plaintiff showing that wires carrying such a high voltage in public streets were usually placed underground in insulated casings, yet it was electrically practical, though expensive, to carry them on poles above ground and have them perfectly insulated to prevent escape of the current, and safe. In Rowe v. Taylorville Elec. Co., 213 Ill. 318, plaintiff’s intestate, Albert Bowe,' was employed by a telephone company in the city of Taylorville. The defendant electric company had operated an electric light plant in said city for about eight years. The poles of the electric company were twenty-five feet high. Those of the telephone company were thirty feet high and were set on the same side of the street as those of the electric company. On the day of the accident Bowe and other employees of the telephone company were at work stringing wires on said company’s poles in the street. When the wires of the electric company were not carrying any current there was no danger in working above them, but when the current was turned on it was dangerous. Bowe was on a pole of the telephone company about twenty-five feet from the ground, stretching a wire, when it came in contact with a parallel uninsulated wire of the electric company in which there was a high current of electricity, and he received a shock, fell to the ground and was killed. It had been the custom of the electric company to blow its whistle about five minutes .before turning on the current to notify its employees. Bowe and the other employees of the telephone company knew of the danger in working, and had no intention of working, when the current was on, and they were watching for the whistle, but which defendant did not give before turning on the current. On the trial, at the conclusion of all the evidence, the court directed the jury to return a verdict of not guilty, which they did, and judgment was entered in favor of the electric company, which judgment on appeal was affirmed, and upon the grounds that no recovery could be had because the insulation was defective, when Bowe knew that the electric,wire at times, carried a deadly current, and that defendant did not owe to the employees of the telephone company the duty to warn them by the whistle of the turning on of the current. Among the questions, however, submitted to the Supreme Court for decision was the question whether the condition of the wires of the electric company, as to insulation, tended to prove actionable negligence on the part of the electric company. It was contended by counsel for the electric company (and substantially the same contention is made here in the instant case) that the duty to maintain perfect insulation did not extend to the entire system of wires, but only to places where defendant might reasonably anticipate that persons would go for work, pleasure or business, and that the duty did not extend to wires strung twenty-five feet above the ground simply because there was a possibility that some person in pursuit of his own business would bring himself in contact with the wires. But the court held to the contrary, saying (p. 322):

“Electricity is a silent, deadly and instantaneous force, and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use. One duty is the insulation of its wires, but that duty does not extend to the entire system. No duty of that kind is imposed on the owner on his own premises as to trespassers or bare licensees, who are neither invited upon the premises nor there for purposes of business with the owner. * * * But the streets of the city were not the private premises of defendant. The streets belong to the public, and the public, generally, have a right to use them. As a matter of fact, the defendant must be held to have anticipated that the 'public would use the streets as they had a right to do, and also the employees of the telephone company would be working in the streets in the business of that company, and might come in proximity to its wires in attending to their duties. The defendant was not an insurer of the safety of the public, but it was bound to know the dangers incident to the use of the streets by it and to guard against such dangers by the exercise of care commensurate with them. * * * The duty extends to every place where persons have a right to be, whether for business, convenience or pleasure. The condition of the electric wire as to insulation tended to prove negligence on the part of the defendant which would give rise to a cause of action for an injury to one not aware of the danger, who had a right to rely upon the wire being properly insulated.”

In the instant case the evidence tended to show that plaintiff was not aware of the danger in working in close proximity to defendant’s wires. He testified that he had noticed the wires, but that they looked like “black, common telephone wires,” and appeared “as though they had insulation.” That the condition of defendant’s wires as to insulation tended to prove negligence on its part is also supported by the following cases: Commomvealth Elec. Co. v. Melville, supra; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484; Winegarner v. Edison Light & Power Co., 83 Kan. 67; Geismann v. Missouri-Edison Elec. Co., 173 Mo. 654; Thomas v. Electrical Co., 54 W. Va. 395; McCrea v. Beverly Gas & Electric Co., 216 Mass. 495.

Counsel for defendant also contend that the court erred in modifying two instructions, presented by defendant, by striking out certain words contained in said instructions. We do not think any error was committed in this regard. In our opinion, had the instructions been given as presented they would have tended to mislead the jury; as modified they stated the' law as favorably for the defendant as it was entitled to.

Counsel for defendant further contend that defendant is not liable for torts arising out of injuries to the person. The argument is (1) that defendant is engaged in the performance of a governmental function under the police power, or (2) that defendant is a quasi municipal corporation and is not liable for torts unless such liability is expressly imposed upon it by statute. A sufficient answer to this is, we think, that defendant is a municipal corporation (Sanitary Dist. of Chicago v. Martin, 173 Ill. 243, 247), and in transporting and selling electrical power for public and private use is to be regarded as a private company and liable for its negligent and wrongful acts. Sanitary Dist. of Chicago v. Hanberg, 226 Ill. 480, 484; Village of Palestine v. Siler, 225 Ill. 630, 636.

For the reasons indicated the judgment of the Superior Court is affirmed.

'Affirmed.


text:
    Annette Grosvenor, Appellee, v. John Grosvenor, Appellant.
    Gen. No. 21,022.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Bill for divorce by Annette Grosvenor, complain.ant, against John Grosvenor, defendant, in the Circuit Court of Cook county, on the ground of impotency due to masturbation. From a decree granting complainant an absolute divorce, defendant appeals.
    Francis Borrelli, for appellant.
    Leo B. Lowenthal, for appellee.

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

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Divorce, § 15 —what constitutes impotency. Under Rev. St. ch. 40, sec. 1 (J. & A. H 4215), providing that it shall be a cause for divorce if either party to a marriage shall be at the time thereof and shall continue to be “naturally impotent,” “naturally” means “incurably,” and “naturally impotent,” as used in the statute, means impotent or incapable in the matter of performing coition with the other sex as nature prompts, and incurably so.

2. Divorce, § 50 —when burden of proving impotency on complainant. In a bill for divorce on the ground of impotency, the burden is on complainant to prove the existence of the defect at the time of marriage, and that it is incurable.

3. Divorce, § 15 —when impotency ground. In a bill by a wife for divorce, wherein it is alleged that the husband is impotent by reason of masturbation, such action is maintainable on the ground of impotency where it appears that the husband will not so control himself as to make it possible to determine whether his disorder is curable.

4. Divorce, § 45 —when evidence sufficient to support decree. In a bill for divorce on the ground of impotency due to masturbation, rendering defendant incapable of the act of coition, where the evidence as to such impotency was conflicting, evidence held, sufficient to support a decree in favor of complainant for an absolute divorce, for the reason that the decree was not manifestly against the weight of the evidence.

5. Divorce, § 43 —when admission as to impotency admissible. In a bill for divorce on the ground of impotency, an admission of defendant of the fact of impotency may be admitted as evidence of such fact if the court is satisfied that it was made in sincerity and without fraud or collusion.

6. Trial, § 68 —when offer of defendant for examination by court’s experts properly refused. Where in a bill for divorce on the ground of impotency, and after both parties had rested, defendant offered himself for medical examination by competent and disinterested physicians to be appointed by the court, as to the fact of his impotency, held on all the evidence not reversible error to refuse to follow the suggestion.

7. Divorce, § 16 —-when delay in suing not defense. The fact that a bill for divorce on the ground of impotency existing at the time of the marriage was not filed until eight years after marriage is not of itself sufficient to preclude complainant from obtaining a divorce, but merely a fart to be considered by the court in connection with all the other evidence.


author: Mr. Justice Barnes

text:
    Bartholomae & Roesing Brewing and Malting Company, Appellant, v. South Side Trust and Savings Bank, Appellee.
    Gen. No. 19,615.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John K. Pbindiville, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and judgment here with finding of fact.
    Opinion filed October 5, 1915.
    Rehearing denied October 14, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by the Bartholomae & Roesing Brewing and Malting Company, a corporation, plaintiff, against the South Side Trust & Savings Bank, a corporation, defendant, in the Municipal Court of Chicago, to recover the amount due on a check of $1,311.79, drawn by' defendant to the order of plaintiff, on which payment was refused. Defendant claimed to set off the amount of a check for $500 drawn by plaintiff to the order of one who indorsed to defendant, which paid the amount of it to such payee, who was a depositor in defendant’s bank. From a judgment for plaintiff, but allowing defendant’s set-off, plaintiff appeals.
    Winston, Payne, Strawn & Shaw, for appellant; John C. Slade and George A. Kelly, of counsel.
    Knapp & Campbell, for appellee; Charles P. Schwartz, of counsel.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Payment, § 6 —when note operates as. A note accepted as payment operates as a satisfaction of the pre-existing debt for which it is given.

2. Payment, § 6 —when evidence sufficient to show. In an action to recover on an unpaid check, made by defendant payable to the order of plaintiff, where defendant sought to set off the amount of an unpaid check made by plaintiff payable to the order of a third person, who deposited it in defendant’s bank, and received from defendant the amount thereof, and where parties stipulated that certain funds standing to the credit of the payee in said bank had been applied “in part payment” of the check sought to be set off, and that certain notes were received by defendant “in payment of the balance” of the amount due on said check, a judgment allowing the set-off held erroneous, for the reason that it must be inferred from the language of the stipulation that such application of funds and such notes were received by defendant in payment of the liability on the check sought to be s,et off.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,054.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy. Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a promissory note given by the Lavigne Company to M. F. Curtis, indorsed by defendant and discounted by plaintiff.

      Abstract of the Decision.
    1. Corporations, § 454

      —when signature that of corporation. An indorsement of commercial paper in the name of a corporation by its president is prima facie the signature of the corporation.
    2. Bills and notes, § 249

      —when holder charged with notice that indorser is corporation. Where commercial paper when presented for discount bears an indorsement which prima facie is the signature of a corporation, the indorsee for discount is charged with notice that the indorser is a corporation.
    3. Bills and notes, § 249

      —when holder charged xoith notice of accommodation indorsement. Where commercial paper, both when presented for discount and when discounted, is in the possession of the maker or payee, the indorser fpr discount is charged with notice that an indorsement not appearing thereon when presented for discount but appearing when discounted “was for accommodation only, especially where there is evidence that such indorsement was procured for the express purpose of inducing the acceptance of such paper for discount.

      The evidence shows that the Lavigne Company purchased property of said Curtis, giving him the note in question as part of the purchase-money; that Harry Lavigne, its president, met Curtis at plaintiff’s bank and had an interview with its president as to discounting the note; that the latter required an indorser, and thereupon Lavigne went to the president of the defendant company, who indorsed the note in the name of the corporation by himself as president. The indorsement appeared above that of Curtis. In that form Lavigne returned it to the hank shortly afterwards and the latter discounted the note.
    To reverse a judgment for plaintiff for $103.90, defendant prosecutes this writ of error.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.

      Sce Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, game topic and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

4. Corporations, § 457 —when holder of note on which corporation accommodation indorser charged with notice. A hank accepting for discount commercial paper bearing the indorsement of a commercial corporation, under circumstances charging such discounting bank with notice that such indorsement was for accommodation merely, is also charged with notice that such indorsement of such corporation is ultra vires as being an act not within the scope of the ordinary business of such corporation.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,224.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on the second of a series of seven notes. The facts in this case are the same as in that of South Side State Bank v. Fox River Distilling Co. Gen. No. 20,054, ante, p. 655, except that such facts are stated more in detail, but which are not materially different. The same judgment was rendered below as in that case, the same questions presented for review, and the same decision made and judgment rendered by the Appellate Court.

      Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,179.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on the third of a series of seven notes. The facts in this case are the same as in the case of South Side State Bank v. Fox River Distilling Co. Gen. No. 20,224, ante, p. 657. The same judgment was rendered below as in that case, the same questions presented for review, the same decision made and judgment rendered by the Appellate Court.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,559.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fbed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago to recover on the fourth of a series of seven notes. The facts in this case are the same as in South Side State Bank v. Fox River Distilling Co. Gen. No. 20,224, ante, p. 657. The same judgment was rendered below as in that case, the same questions presented for review, the same decision made and the same judgment rendered by the Appellate Court.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,560.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Him, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, "against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on the fifth of a series of seven notes. The facts in this case are the same as in the case of South Side State Bank v. Fox River Distilling Co. Gen. No. 20,224, ante, p. 657. The same judgment was rendered below as in that case, the same questions presented for- review, and the same decision made and judgment rendered by the Appellate Court.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,561.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill," Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, against the Fox Biver Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on the sixth of a series of seven notes. The facts in this case are the same as in South Side State Bank v. Fox River Distilling Co. Gen. No. 20,224, ante, p. 657. The same judgment was rendered below, the same questions presented for review, and the same decision made and judgment rendered in the Appellate Court.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    South Side State Bank, Defendant in Error, v. Fox River Distilling Company, Plaintiff in Error.
    Gen. No. 20,680.
    (Hot to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fee® C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by the South Side State Bank, a corporation, plaintiff, against the Fox River Distilling Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on the seventh of a series of seven notes. The facts in this case are the same as in South Side State Bank v. Fox River Distilling Co. Gen. No. 20,224, ante, p. 657. The same judgment was rendered below as in that case, the same questions presented for review, and the same decision made and judgment rendered by the Appellate Court.
    Isadore S. Blumenthal, for plaintiff in error; Maurice Alschuler, of counsel.
    Lyman M. Paine, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Gust F. Hesch, Plaintiff in Error, v. Charles J. Dennis and James Bakakos, Defendants in Error.
    Gen. No. 20,372.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. La Buy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed October 5, 1915.
    Abstract of the Decision.
    1. Bills and notes, § 56

      —when expression of opinion not misrepresentation. In an action to recover on a promissory note, absolute on its face and given as part of the purchase price of the leasehold interest in and the equipment of a theater under an agreement providing that such theater building should “conform with regulations of Building and Health Departments,” where the affidavit of defense alleged that the building “did not conform to the city ordinances relating to ventilation; that plaintiff knew and fraudulently concealed the fact from defendants and induced them to sign the note by misrepresentation and fraud,” held that the matter charged as misrepresentation amounted to no more than an expression of opinion as to a matter within the knowledge of both parties equally, or a matter as to which defendants were put on inquiry, it appearing that neither in the agreement nor in the bill of sale conveying plaintiff’s leasehold interest did plaintiff vouch or warrant as' to the conformity of such building with such ordinances and regulations.

      Statement of the Case.
    Action by Gust F. Hesch, plaintiff, against Charles J. Dennis and James Bakakos, defendants, in the Municipal Court of Chicago, to recover on a promissory note made by defendants payable to the order of plaintiff, and given as part payment on a contract for the sale of a leasehold interest in and the equipment of a theater. To reverse a judgment for defendants, plaintiff prosecutes this writ of error.
    Lester E. Lee and Charles L. Swanson, for plaintiff in error.
    Miles J. Devine and John J. Devine, for defendants 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. Justice Barnes

delivered the opinion of the court.

2. Bills and notes, § 56 —when failure of consideration not defense. In an action to recover on a promissory note given as part of the purchase price of a leasehold interest in and equipment of a theater, where defendants retained possession and made no attempt to rescind, a judgment for defendants held erroneous, there being no evidence of fraud or failure of consideration, or of a subsequent valid agreement, and evidence to vary the terms of the note being incompetent.

3. Bills and notes, § 431 —when evidence of contemporaneous agreement inadmissible. The maker of a promissory note cannot defend against it by showing an oral contemporaneous agreement which makes the note payable on a contingency, for the reason that such evidence is incompetent as tending to vary the terms of a note absolute On its face.

4. Bills and notes, § 327 —when agreement to cancel invalid. An agreement by the payee named in a promissory note to cancel the note is invalid where it appears that such agreement was made after the making of the note, and where it does not appear that there was a consideration for such agreement.

5. Bills and notes, § 90 —when interest begins to run. The legal construction of a promissory note payable thirty days after date, "with interest at the rate of 1% per annum, after -,” is that such note draws interest from and after thirty days from its date.

6. Contracts, § 238 —when condition waived. In an agreement whereby plaintiff agreed to transfer to defendants a leasehold interest in and equipment of a theater, which agreement contained a clause providing that full performance should be made “when the papers were drawn if found to conform” to certain regulations “on or before thirty days” after the date of the agreement, where defendants accepted a bill of sale of such property and took possession nine days after the date of such agreement, held that defendants waived the provision quoted by accepting such bill of sale and taking possession, and cannot complain that no more time was taken to ascertain whether such building was as provided in the agreement, although the provision quoted was ambiguous.


text:
    L. Goldstein, Defendant in Error, v. Louis Basch & Company, Plaintiff in Error.
    Gen. No. 20,443.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by L. Goldstein, plaintiff, against Louis Basch & Company, a corporation, defendant, in the Municipal Court of Chicago, to recover on a contract whereby plaintiff purchased certain earrings for two hundred dollars, paying one hundred dollars in cash and delivering certain other earrings valued at one hundred dollars. To reverse a judgment for plaintiff for one hundred and eighty dollars, defendant prosecutes this writ of error.
    Donald Groves, for plaintiff in error.
    Homer K. Galpin, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

1. Contracts, § 384 —when evidence sufficient to show agreement for rescission. In an action on a contract whereby plaintiff purchased certain jewelry from defendant, on an alleged agreement whereby plaintiff might rescind within a year and receive back the purchase price less ten per cent., evidence held sufficient to sustain a judgment for plaintiff.

2. Contracts, § 298 —when tender of performance not necessary. Where a party to a contract refuses to make performance thereof, formal tender of such performance by the other party is unnecessary.

3. Motions, § 9 —when order impounding property in suit sufficient. In an action on a contract whereby plaintiff purchased of defendant certain earrings, giving in payment certain other earrings, with a condition that plaintiff might rescind and receive back the purchase price under certain conditions, and where the court had ordered the earrings impounded, held that failure of the court to provide in such order that such earrings be delivered to defendant on satisfaction of the judgment for plaintiff was not erroneous, for the reason that such an order was not essential to the court’s power to release the goods in its custody on affirmance of its judgment.


text:
    Margaret Casey, Defendant in Error, v. Ladies Catholic Benevolent Association, Plaintiff in Error.
    Gen. No. 20,503.
    (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 October term, 1914.
    Reversed and remanded.
    Opinion filed October 5, 1915.
    Statement of the Case.
    Action by Margaret Casey, plaintiff, against the Ladies Catholic Benevolent Association, defendant, in the Municipal Court of Chicago, to recover on a benefit certificate wherein plaintiff was designated as beneficiary. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.

      Abstract of the Decision.
    1. Insurance, § 826

      —when evidence sufficient to show waiver of by-law provision as to change of beneficiary. In an action to recover on a benefit certificate issued by defendant to one Annie Mahon wherein plaintiff was named as beneficiary, where it appeared that defendant subsequently, at the request of insured, issued a new certificate wherein plaintiff was not named as beneficiary, and where it appeared that said Mahon’s application for such change was not in conformity with defendant’s by-laws, which required such application to be personally signed, the signature of said Mahon to such application being made in her presence by another by her direction, a peremptory instruction for plaintiff held error, where there was evidence of a .waiver by defendant of the provisions of its by-laws.
    2. Insurance, § 885

      —when evidence admissible as to change of beneficiary. In an action by a beneficiary to recover on a benefit certificate wherein plaintiff was named as beneficiary, where defendant offered in evidence an application by the insured named in such certificate requesting the designation of the beneficiaries and to designate others than plaintiff, which application was signed for insured by another person, in her presence and by her direction, held error to exclude such evidence, although defendant’s by-laws required such application to be signed by insured personally, for the reason that the fact that defendant complied with the request of insured, and, on surrender of the old certificate, issued a new one wherein others than plaintiff were designated as beneficiaries, tended to show a waiver by defendant of the provisions of its by-laws relating to the matter of signature of such application, and that the contract under which plaintiff claimed had been superseded by another, authorized by insured and consented to by defendant.
    3. Insurance, § 826

      —when provision as to change of- beneficiary may be waived. Provisions of the by-laws of a fraternal beneficiary association prescribing that applications for a change of the designation of beneficiary must be signed by insured personally may be waived by such association, and, if so waived, it becomes immaterial whether such by-laws were complied with or not, so far as the rights of beneficiaries are affected, as such provisions are for the benefit of the association and not of the beneficiary.

      Ryan & Condon, for plaintiff in error; Irvin I. Livingston, of counsel.
    Jonas & Hess, for defendant in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Arie de Vries, Appellant, v. Eva de Vries, Appellee.
    Gen. No. 20,648.
    1. Marriage, § 1

      —how distinguished from agreement to marry. Although marriage is a civil contract and, as such, requires mutual assent of the parties thereto, yet there is a distinction between the contract itself and a mere agreement to marry, so that it is immaterial what the previous agreement was in a case where parties entered into a legal marriage which included the two essential elements of a marriage, i. e., capacity and consent.
    2. Contracts, § 142

      —when antenuptial agreement not to cohabit after marriage void. An agreement between parties to a marriage, made prior to the marriage, that no cohabitation should follow the marriage is void as against public policy, and neither party may repudiate it after the marriage.
    3. Marriage, § 29

      —when refusal to cohabit does not avoid. A refusal to cohabit does not render a marriage void, although such refusal may furnish grounds for its dissolution.
    Appeal from the Superior Court of Cook County; the Hon. Mazzini Slusser, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed October 5, 1915.
    Holmes, Mix & Corkell and Oscar W. Olson, for appellant; Thomas J. Holmes, of counsel.
    No appearance for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is an action to annul a marriage on the ground of want of assent thereto or intention to marry. There was no defense. On the contrary, defendant, as a witness, corroborated complainant’s testimony to the effect that they first met on a steamer coming from Holland to New York; that she was under contract with a theatrical company from which she wished to be released, and concluding that marriage would effect the rescission of her contract with the company she later, on reaching Chicago, requested plaintiff to marry her for the purpose of effecting such object, with the understanding between them that there should be no consummation of the marriage relation by cohabitation. Accordingly a marriage license was procured and they were married in legal form, but they never cohabited. The court dismissed the bill for want of equity on the ground that such an arrangement was against public policy.

It is true, as urged by appellant, that marriage is a civil contract and like other contracts requires mutual consent of the parties thereto. But counsel for appellant fails to distinguish between an agreement to marry and the marriage contract itself. It matters not what the previous agreement was, so long as the parties had the capacity to enter into a marriage contract and in doing so mutually consented thereto in legal form. “If,” as stated by Bishop on Marriage, Divorce and Separation, vol. 1, sec. 301, “the agreement between the parties is to dwell together substantially in the law’s relation of husband and wife, they will be adjudged such, and any collateral stipulation contrary to law will be held null. ’ ’ Here the two things essential to the marriage existed—capacity and consent. Neither of the parties was under any disability that would vitiate the contract, and both knew what they were doing and intended what they did. The collateral stipulation before the ceremony, that they would not cohabit together, was null and either party had a right to repudiate it after the ceremony. While cohabitation is contemplated by marriage, refusal to cohabit does not render the contract void even though it may furnish grounds for dissolution of the marriage. One of the grounds for questioning the marriage in the case of Brooke v. Brooke, 60 Md. 524, was the same as urged here, but the court said it would convert the solemn rites of marriage into a delusion and fraud.

No cases are cited by appellant to support the contention that the previous agreement of the parties not to cohabit rendered the contract of marriage subsequently entered into void. The cases cited by him involve the question of want of capacity to enter into the contract, or where the consent was given in jest, or by mistake as to the legal effect of the ceremony, or as the result of duress or fraud. The decree will be affirmed.

Affirmed.