text:
    Helen D. Simond, Appellee, v. The Liverpool and London and Globe Insurance Company, Limited, Appellant.
    Gen. No. 26,103.
    1. Insurance, § 668

      —what evidence is necessary to show theft in action for burglary insurance. No direct evidence showing a felonious taking is required to recover on a policy of theft insurance where the provisions of the policy require no such proof.
    2. Insurance, § 668*—when evidence is sufficient to show loss by theft in action on burglary policy. Where plaintiff while traveling on a Pullman sleeping car placed her diamond ring upon a window ledge and left it there upon leaving the car to take exercise at a station, and upon her return the ring was gone and not discovered after thorough search and there were only five persons in the car during the absence of the plaintiff, such evidence was sufficient to warrant a finding of felonious taking by one of those persons.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Weuls, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed October 11, 1920.
    Charles B. Obermeyer, for appellant.
    Weissenbach, Hartman, Craig & Cermak, for appellee; Bryan T. Craig, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff was insured in the defendant company under a policy colloquially designated in insurance circles as a “personal effects floating policy” to an amount limited to $500.

Plaintiff while traveling in the State of New York on a Pullman sleeping car placed a three-diamond ring which she removed from her finger at about 9 o’clock in the morning of October 13, 1917, upon the window ledge in the section which she was occupying during the trip. At this time the train stopped in the station at Buffalo, and plaintiff, leaving her ring on the window sill, alighted from the car for a little exercise before partaking of breakfast in the dining car, and upon her return the ring was gone.

The cause was tried by the court and there was a finding and judgment in favor of plaintiff for $536, being the value of the ring with interest thereon from the date of the commencement of the suit to the date of the judgment, and defendant appeals.

The real bone of contention in the case is whether the ring was lost or stolen. If lost, the defendant insurance company is not liable; if stolen, it is.

The decision of the trial court was based upon the evidence of plaintiff and her witnesses, defendant failing to put in any evidence on its part but proffered a motion for a finding in its favor on the contention that there was no evidence tending to show that the ring was lost to plaintiff by burglary, theft or pilferage or by reason of any risk or hazard covered by the policy.

Defendant insists that there is no direct evidence showing a felonious taking. It is a sufficient reply to this contention that the terms of the policy did not require any such proof, for as said in Stick v. Fidelity & Deposit Co. of Maryland, 159 N. Y. Supp. 712: “The contract in this case contains no clause providing that a felonious abstraction must be shown by direct evidence, and the court has no right to make such a contract for the parties.” Zech v. New Jersey Fidelity & Plate Glass Ins. Co., 218 Ill. App. 171.

Plaintiff testifies that she left the ring on the window ledge two or three minutes before she walked out of the car; that she got out on the station platform and walked the length of two or three cars, when remembering where she left her ring, hurried right back to the car and went to the window ledge of her seat for the ring but it was gone; that the train was standing still in the depot when she placed the ring on the window ledge and that the train did not move while she was walking the length of two or three cars; that on returning to her seat the porter was in the next seat apparently at work; that there were only four passengers in the car besides herself, two women and two men, who were apparently foreigners, as plaintiff had heard them talking in a foreign tongue; that these four persons had seats on the opposite side of the aisle from plaintiff; that as soon as plaintiff discovered her ring was gone she told the porter, who was in the next seat, to get the station policeman; that she asked the two women passengers if they had seen the ring and they said no; that she spoke to the two men, but they merely jerked their shoulders and said “No English.” Plaintiff then summoned the conductor and asked that the passengers be searched, which the conductor quite properly declined to do on the ground that he had no authority, and therefore the passengers were not searched. Plaintiff asked the conductor to get a station policeman but he declined on the ground of the lack of time, although he promised to wire back to Buffalo so that he might get some sort of a wire at the next station or along the line. He kept his promise to wire Buffalo after the train pulled out and plaintiff and the conductor got off at' each stop thereafter to see if there was any message. None was received from the Pullman Company and nothing was done by the conductor. The same four passengers were on the car when plaintiff got off at Elmira, her destination, between 2 and 3 o ’clock in the afternoon. On her arrival at Elmira plaintiff reported the loss of her ring to the chief of police and sent to Buffalo an advertisement to put in the Buffalo newspapers advertising for the ring and offering a reward. Plaintiff returned to Chicago a week later and reported the loss of her- ring to the defendant company and duly filed with it a proof of her loss. She never recovered the ring and the company, denying liability, never requited her for her loss.

From this testimony and all the environing circumstances we think that, the trial judge might reasonably find therefrom that the ring was feloniously taken by either the porter or one of the four persons of foreign tongue who were in the car. If the ring had not been stolen it would have been discovered upon the thorough search which was made by plaintiff and the Pullman porter.

We think a reasonable construction of the policy is that its terms covered just such an occurrence as testified to by plaintiff.

We think the judgment of the municipal court is sustained by the proofs, and it is therefore affirmed.

Affirmed.

Dever and McSurely, JJ., concur.


source: Caselaw Access Project

author: Mr. Justice Dever

license: Public Domain

text:
    Postal Telegraph Cable Company of Illinois, Plaintiff in Error, v. Baltimore and Ohio Chicago Terminal Railroad Company, Defendant in Error.
    Gen. No. 25,873.
    1. Municipal cobpobations, § 887

      —what is extent of power of city as to public service corporations. The occupancy of public highways by railroads and telegraph companies is at all times subject to the right of a city to compel relocation of conduits, wires and tracks as the city may see fit to require in a reasonable and just effort to provide for the public health, safety and convenience.
    2. Municipal cobpobations, § 83*—what does not render ordinance mandatory. The mere fact that an ordinance providing for the elevation of railroad tracks contains a provision that it is to become void if not accepted within 60 days after its approval, does not of itself establish a contractual relationship between a city and the railroad company involved.
    3. Municipal cobpobations, § 83*—when ordinance is mandatory. An ordinance providing for the elevation of railroad tracks, which clearly indicates a purpose to provide for the public welfare, under the police power, is something more than a mere offer to permit the railroad company to elevate the tracks and to construct subways for street openings, even though there is a provision requiring acceptance within 60 days, and providing that the ordinance is to be void if not accepted.
    4. Municipal cobpobations, § 892*—what rule does not apply in determining liability for expenses incident to change of grade. The rule that a railroad company is liable to an abutting owner for damage inflicted where its tracks are elevated and a grade crossing abolished does not apply where a track elevation ordinance requires changes in conduits, manholes, cables, etc.; of a telegraph company occupying streets, as such telegraph company is not an abutting owner.
    5. Telegraphs and telephones, § 4*—when telegraph company is liable for expenses incident to change of grade of street. Where in accordance with a city ordinance a railroad elevated its roadbed which required the depression of a street intersection and plaintiff telegraph company was thereby compelled to rebuild and lower its conduits, the railroad company was not liable to the "telegraph company for the expense involved, there being no negligence in the ' performance of the work, and in addition there being the power of the city under its police power, and as reserved in the original ordinance, to order such changes.
    Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed October 11, 1920.
    Jacob E. Dittus and Leon A. Berbzniak, for plaintiff in error.
    Henry D. Sheean, for defendant in error.

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

   Mr. Justice Dever

delivered the opinion of the court.

The plaintiff, Postal Telegraph Cable Company of Illinois, a corporation, on June 1, 1916, possessed certain conduits, manholes, cables, etc., which were laid down in South Cicero avenue at and near its intersection with Colorado avenue in the City of Chicago. The defendant, Baltimore and Ohio Chicago Terminal Railroad Company, operates a railway line in the City of Chicago; its right of way extends over and across the street intersection mentioned above.

The cause was tried in the circuit court of Cook county before the court without a jury on a stipulation of facts, which shows that October 22, 1906, the City of Chicago enacted an ordinance entitled as follows:

“An Ordinance requiring the Belt Railway Company of Chicago and the Chicago Terminal Transfer Railroad Company, respectively, to elevate the plane of certain of their roadbeds and tracks within the City of Chicago.”

Section 1 of the ordinance provides:

“That the Belt Railway Company of Chicago and the Chicago Terminal Transfer Railroad Company are each, respectively, hereby ordered and required to elevate the plane of their roadbeds and tracks within the limits of the City of Chicago in manner and upon the conditions hereinafter specified, that is to say: ’ ’

The ordinance in its other provisions required the •elevation of the tracks and roadbeds in accordance with its terms.

Defendant is the successor of the Chicago Terminal Transfer Eailway Company named in the ordinance.

An amendment to the ordinance provided for a depression of the streets at the intersection mentioned, and it is stipulated that in performing the construction work required by the terms of the, ordinance and the amendment thereto, the plaintiff was compelled to rebuild and lower its conduits at a total expense or $2,194.04. The stipulation provides that if the defendant is liable under the law, this sum with interest thereon is the correct measure of damages in the case.

It is also provided in the ordinance that:

“If in the construction of any of said subways and approaches it shall become necessary to disturb, re¿ move or destroy any pipes, conduits,-'wires or other property belonging to any private corporation or individual, all of the cost and expense thereof, and all damage thereto shall be borne and assumed by the City of Chicago, and the said city * * * will save the said railway and railroad companies harmless from any and all claims, demands and suits arising therefrom and all damages which may be recovered therefrom.”

The trial court held that the stipulation of facts did not authorize r recovery and a judgment was entered in favor of the defendant which the plaintiff seeks by writ of error to reverse.

The plaintiff had a right under an ordinance of the City of Chicago to place its conduits, cable, etc., under the surface of the streets at the intersection mentioned. The defendant, prior to the passage of the track eleva-, tion ordinance, was, legally occupying parts of this intersection with its tracks. Both plaintiff and defendant are public utility corporations and their occupancy of the public highways was at all times subject to the right and power of the City of Chicago to compel a relocation, of conduits, wires and tracks as the city might see fit to require in a reasonable and just effort to provide for the public health, safety and convenience. The cases cited in the brief of counsel for defendant amply sustain this statement. Scranton Gas & Water Co. v. City of Scranton, 214 Pa. 586, 64 Atl. 84; New Orleans Gaslight Co. v. Drainage Commission of New Orleans, 197 U. S. 453.

The principal contention of plaintiff is that the ordinance which provided for an elevation of the tracks is not mandatory; that it is permissible only and was enacted for the benefit of the railway company; that the amendment to the ordinance which provided for a depression of the street intersection was adopted in the interest of the railway company; that no benefit accrued therefrom to the public, and that as a consequence the depression of the intersection which caused the injuries to plaintiff was an act of the defendant in its own interest which gave rise to a legal liability against it in favor of the plaintiff. We are unable to agree with this contention and the cases relied upon by plaintiff do not, in our opinion, support its position on this question.

It is conceded that the City of Chicago in the reasonable exercise of its police power has a legal right, where public safety or convenience requires, to change the grade of a street and that in so doing the city would be free from liability to a telegraph company whose conduits or property is disturbed in making the change.

In the case of City of Vandalia v. Postal Tel.-Cable Co., 274 Ill. 173, an ordinance which required a telegraph company to remove certain of its poles and wires from the street which were placed therein undethe authority of a prior valid ordinance, which did not provide for a relocation of the poles and wires, and where the purpose of the ordinance was merely to improve the appearance of the street, was held to be invalid.

In the case at bar the plaintiff was not specifically mentioned in the ordinance and was not a party thereto, and the ordinance did not directly provide for the removal or relocation of its conduits.

The ultimate object to be attained by the passage of the ordinance was the elevation of defendant’s railroad tracks. The amendment requiring the depression of the surface of the street became an integral part of the ordinance and in determining the purpose of the City Council in passing it, the amendment and the original ordinance should be read together. It is apparent from the language used that the intent of the City Council in enacting the ordinance was to prevent the inconvenience and danger to the public arising from the operation of railroad trains on the surface of the street, and the provision which provided for a depression of the street surface at Cicero avenue had no other object than that of providing a reasonable manner and method of changing the grade of the tracks. It may be quite true, as urged, that this particular provision of the ordinance tended to make the work less expensive, but it is reasonable to suppose that the City Council was moved to adopt the amendment so that the whole ordinance might, in a reasonable way, provide for an elevation of the tracks.

The ordinance was something more than a mere offer on the part of the City Council to permit the railroad company to elevate the tracks and to construct subways thereunder for street openings. While it provides that it was to become null and void if not accepted within 60 days from date of its approval, this fact in and of itself is not sufficient to establish a mere contractual relationship between the parties thereto. On its face the ordinance explicitly ordered and re<quired defendant’s predecessor to comply with its terms, and the language employed clearly indicates a purpose to provide, under the police power of the city, for the public welfare. The ordinance does not appear to have been enacted in the interests of the railroad companies against which it was intended to operate.

In Stillwater Water Co. v. City of Stillwater, 50 Minn. 498, 52 N. W. 893, the court said:

“When one acquires a right to use a street or highway for purposes of his own, the right is subject and must be enjoyed in subordination to the power of the public authorities to keep it in condition for public use, unless the express terms of the grant by which he acquired the right, or the nature of the right acquired by him, necessarily excludes or limits such power. So when under this ordinance the plaintiff acquired the right to lay pipes in the streets, that right was subordinate to the power of the city to establish grades and grade the streets.”

In the case of Moffat v. City and County of Denver, 57 Colo. 473,143 Pac. 577, the court said:

“The power to grade streets and construct subways for the safety and convenience of the public is vested in the city authorities. They may grant an easement in its subsurface in the manner and for the purposes by law provided, but the right thus granted is not absolute. It is only qualified. Placing pipes in the avenue under the franchise granted by the city, and contract to which we have referred, did not give the water company a vested right to have them remain as placed and undisturbed. The rights thus granted were subordinate to the rights of the public therein, and subject to the power of the municipal authorities to make such reasonable changes in the grade or an improvement therein as in their judgment the public interests demanded and required.” i

No question is raised as to the power of the City Council to pass the ordinance and to require and order compliance with its terms, and a reasonable interpretation of these terms does not, we think, indicate that by its mere refusal to accept the ordinance the defendant co'uld decline to elevate its tracks. Quite the contrary is true. If defendant' in fact had refused to accept the ordinance, the city would have been free to impose the same terms by a mandatory ordinance which would not require acceptance; or it could have enacted a more burdensome ordinance which the defendant would have been bound to comply with if its terms were reasonable.

It is contended that where a railroad company accepts municipal authority to change a street grade for the purpose of abolishing a grade crossing and performs the work necessary to effect such change for its own interest, it becomes liable for injury inflicted upon an abutting property owner, even though the public is served by the making of the improvement. This may be conceded. The plaintiff is not an abutting property owner. If it were, a different question would be presented.

The Supreme Court of Pennsylvania in the case of Scranton Gas & Water Co. v. City of Scranton, 214 Pa. 586, 64 Atl. 84, said:

“Where a gas and water company is obliged to move its pipes from a street by reason of a change of grade, it can recover no damages from the city for the injuries sustained. * * *
“So far as property rights are concerned, there is but slight correspondence between the easement enjoyed by appellant company in the streets of the city and the rights of the abutting owners in their several properties. The distinctions.between the two are too obvious for discussion. It is enough to say with respect to the former that it is held and enjoyed subject always to the earlier and superior rights of the public in the streets of the municipality. Among these is the power to regulate and control the streets in the interest of public health and safety. When these demand a change in the mode and manner of the enjoyment of the easement, or privilege, and that demand is expressed through the municipal authority, in the exercise of a reasonable discretion, that change must be made. Calling the legislative grant of privilege to use the streets a contract does not avoid the conditions on which the privilege is to be exercised. Whether such limitation or conditions be expressed in the grant or not is immaterial, for as said in Butchers’ Union Slaughter-House Co. v. Crescent City Live Stock Landing Co., Ill U. S. 746, the power to control and regulate the streets so as to protect public health is one that cannot be bargained away by legislative or municipal grant. The power to control them for the protection of public safety, if not the same, stands on equally high ground. All authorities agree that such right is both paramount and inalienable. Nor is the right limited to the control of mere surface; it extends to the soil beneath to whatever extent it may be required in aid of such purposes as fall within the municipal function, in connection with the health and safety of the public.”

The assumption by the city of all damages occasioned by the disturbance of conduits and lines in the performance of the work required by the ordinance does not, as we read this provision, in any sense inure to the benefit of the plaintiff. Whether any right of action exists against the city is not determined in this opinion. In any event, it is clear that no action is maintainable by the plaintiff against the defendant. Defendant’s conduct was required and ordered by the express terms of the ordinance. No claim is made that the work which caused injury to the plaintiff’s property was performed negligently, or that it was unnecessary under the terms of the ordinance, and aside from the provisions relating to damages the city would not become liable for the disturbance of plaintiff’s conduits and lines because it did not and could not waive its right under its police powers to compel a relocation of the conduits and lines as is required by the ordinance. Further than this, the right to require such changes is expressly reserved to the city in the ordinance granting privileges in the public streets to' plaintiff.

In the case of New Orleans Gaslight Co. v. Drain age Commission of New Orleans, 197 U. S. 453, the Supreme Court of the United States dealt extensively with the question under consideration here. In its opinion that court said:

“The right of control seems to be conceded by the learned counsel for the plaintiff in error, in so' far as it relates to the right to regulate the use of the surface of the streets, and it is recognized that the users of such surface may be required to adapt themselves to regulations made in the exercise of the police power. We see no reason why the same principle should not apply to the subsurface of the streets, which, no less than the surface, is primarily under public control. The need of occupation of the soil beneath the streets in cities is constantly increasing, for the supply of water and light and, the construction of systems of sewerage and drainage, and every reason of public policy requires that grants of rights in such subsurface shall be held subject to such a reasonable regulation as the public health and safety may require. ’ ’

It is not easy to believe that the city, by the language used in the ordinance, intended to assume in favor of the defendant or its predecessor a liability to pay damages for injuries to property resulting from the doing of the work required by the ordinance, where no legal liability was created by the ordinance or resulted from the doing of the work thereunder.

The judgment of the circuit court is affirmed.

Affirmed.

Holdom, P. J. and McSurely, J., concur.


text:
    Louis Henry and Max Robinson, trading as Henry & Robinson, Appellees, v. William M. Le Moyne, Appellant.
    Gen. No. 26,031.
    Attorney and client, § 134

      —what evidence is admissible in an action for compensation on an account stated. In a suit by attorneys, on an account stated, to recover tor professional services performed, the client is permitted to prove that the charges are exorbitant and excessive, are not warranted by custom and usage and are otherwise unfair and unreasonable.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed and remanded.
    Opinion filed October 11, 1920.
    Seymour Edgerton, for appellant; Thomas W. Prindeville and William Sherman Carson, of counsel.
    Winston, Strawn & Shaw, for appellees; Edward W. Everett and Max Robinson, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.

The plaintiffs, practicing attorneys, brought suit in the municipal court of Chicago and recovered a judgment of $5,845.20 against the defendant on a statement of claim in which plaintiffs alleged that the defendant was indebted to them on accounts stated.

It is alleged in the statement of claim filed by the plaintiffs that they had rendered to defendant, during a period of several months, numerous statements of accounts showing a balance due them for professional services. In his affidavit of merit defendant denied liability to plaintiffs except as to the sum of $100. The statement of claim does not set up that the charges made for the alleged services rendered to the defendant were fair and reasonable. The plaintiffs rely solely upon the allegations that they are licensed attorneys at law; that they had rendered services to the defendant and had delivered to him statements showing the charges for,such services, and that defendant had by „his silence for several months after he had received the statements and by the payment on May 12, 1917, of the sum of $100 rendered himself liable for the aggregate amount of the several statements which had been delivered to him.

On the trial of the cause the court admitted in evidence copies of the several statements referred to in the statement of claim, and a witness for plaintiffs testified that the statements were accompanied by letters and were sent to the defendant; that the plaintiffs had “never at any time received any communication in writing, or verbally, from defendant, in which he made any objection to the amounts rendered as shown by certain exhibits.” The trial court denied a motion made on behalf of defendant to strike out the evidence offered by plaintiffs and refused to direct a verdict in favor of defendant. The abstract of record shows that the defendant thereupon “offered to prove the nature, character and extent of the services rendered by the plaintiffs for the defendant in each of the several suits mentioned in plaintiffs’ statement of claim and the character of the questions in issue, and the amounts involved in each of said suits, and the approximate time and labor bestowed by the plaintiffs thereon”; and further offered to prove the usual and customary fair and reasonable charges for such services in the City of Chicago at the time when such services respectively were rendered, and that no agreement or contract was made between plaintiffs and defendant either before or after the rendition of said services as to the amount of the compensation to be paid to the plaintiffs therefor. Defendant also offered to prove that the several charges for services made by plaintiffs against defendant in various statements and bills offered in evidence by the plaintiffs and mentioned in plaintiffs’ statement of claim, “are excessive and unreasonable and more than the usual and customary charges for similar services in the City of Chicago at the several times when the same were rendered.” The court refused to allow the making of such proof.

Evidence was also tendered, which the court excluded, to prove that “it was not usual and customary amongst attorneys in the City of Chicago, during the time covered by the services rendered by the plaintiffs and mentioned in plaintiffs’ statement of claim, to charge an initial retainer in suits in which they are employed, to be paid by their clients, in addition to the usual and customary, fair and reasonable charges for the services actually rendered in such suits; * * * that no agreement was made between plaintiffs and defendant, before or after the employment of plaintiffs by the defendant, to pay a retainer in the several suits in which plaintiffs were employed, or in any of them, and that plaintiffs had acted for the defendant in many matters and suits during several years prior to the time of the performance of the services mentioned in plaintiffs’ statement of claim, and had never in any of said matters or suits charged or collected any initial retainer.” The court thereupon on motion of counsel for plaintiffs directed the jury to find a verdict in favor of the plaintiffs. The jury did as directed and judgment was entered against the defendant for the sum of $5,845.20. The defendant seeks by this appeal to reverse the judgment.

It is apparent from the record that the trial judge was of the opinion that the admission of the statements and letters accompanying them, supported by oral testimony that they had been delivered to defendant and that he had made no objection thereto, established a prima facie case against him that could be contradicted only by evidence showing error, fraud or mistake. On the other hand, counsel for defendant assert that the present suit is one between attorneys and client; that a confidential relationship existed between the parties, and that because of this fact the general rules appertaining to accounts stated do not apply.

We have been favored in the briefs of counsel with citations of and quotations from cases expounding the general rule applicable to cases involving accounts stated, but the present case really turns upon the point made that the defendant sustaining, as he does, the relationship of client towards the plaintiffs, is not for this reason bound by the general rule and is permitted to go behind the statements made and show that the charges made were excessive and exorbitant. It is clear from the record that no express agreement had been entered into by the parties for the payment of any specific amount for the services alleged to have been rendered to tlm defendant. He is charged in the statements with retainer fees, but it is not alleged, nor was it shown in the evidence, that the defendant had ever agreed to pay such fees to plaintiffs. As stated, ■ no attempt was made to prove that the charges, either for services rendered or as retainers, were fair and reasonable. In brief, then, the main question presented to us is whether the trial court erred in refusing to admit evidence tendered for the defendant that the charges made in the statements were exorbitant and excessive; were not warranted by custom and usage and were otherwise unfair and unreasonable. It seems almost impossible to reconcile the decided cases dealing with this question.

In Beals v. Wagener, 47 Minn. 489, the court said:

‘ ‘ Whatever may have been the rule formerly, we see no reason to doubt that now an attorney and his client may state the account of the former. ”

Other cases to which our attention has been called tend to sustain the position taken by counsel for plaintiffs. We are of opinion, however, after a consideration of these authorities, that the holdings in the cases of Gruby v. Smith, 13 Ill. App. 43; Hopkinson v. Jones, 28 Ill. App. 409; Jennings v. McConnel, 17 Ill. 148, and Poppers v. Schoenfeld, 97 Ill. App. 477, are in consonance with reason and justice.

In the Poppers case, supra, this court, speaking through Mr. Justice Adams, held that the trial court erred in refusing to permit a defendant to question items of an account or to cross-examine with relation thereto in a case where the plaintiff, an attorney, relied upon an account stated. In deciding the case the court said:

“It is apparent from the preceding statement, the theory of the trial court was that in a suit by an attorney at law against his client, to recover compensation for professional services performed by the former for the latter, proof of an account stated is conclusive as against the client. Hence the court ruled that appellee could not be examined as to the items of his account. ’ ’

It is sought to distinguish this case by urging that it was merely held therein that proof of an account stated is not conclusive as against the client, but an examination of the case discloses that the reviewing court held it error to exclude the defendant from questioning, by cross-examination or otherwise, the correctness of the alleged account stated.

In the Hophinson case, supra, the court said:

“The question asked of the defendant opened up a branch of the case which she was refused the right to investigate, and that was as to the right of the defendant to go back of the alleged settlement and statement of the account (even conceding that such settlement and statement had ever been made), and look into the fairness and reasonableness of the charges made as they grew out of the original transaction. The court in the admission and rejection of the evidence as well as in the instructions given and refused, seems to have proceeded on the theory that a statement of account made between attorney and client was conclusive upon the client. This may be the rule as among strangers where no relation of confidence or trust exists,' and where neither had a right to look upon the other for projection against, fraud or oppression, or undue advantage. But this rule, if it ever had any existence as between persons holding confidential, trust or dependent relations toward each other, seems to have been relaxed as to them.”

In the Gruby case, supra, an attorney brought suit against his client to recover for legal services rendered. The suit was originally brought before a justice of the peace. In deciding the case the court by Mr. Justice McAllister said:

“The fact that the relation of attorney and client subsisted between the parties, at the time of this alleged assent to a grossly exorbitant bill and promise to pay such a balance, should have had an important, if not controlling, effect upon the question whether any such assent and promise were voluntarily given or made on the part of defendant, and upon the point of permitting an investigation by him into the merits of the several items of that bill. But it seems that that relation was entirely ignored.”

An instruction was given in the Gruby case which told the jury that “if the jury finds from the evidence that there were accounts rendered by both parties to this suit, the one to the other, and a balance agreed upon in favor of the plaintiff, and a promise made by the defendant to pay that balance, then they must find for the plaintiff, not exceeding the amount so, agreed upon and promised.” In commenting upon this instruction the court said:

“Under the peculiar circumstances of the case, that instruction was wrong and misleading. First, because., by the argument ingeniously embodied in it, by the . counsel who drew it, and inadvertently overlooked by the court, the jury would be drawn to the conclusion that an account stated was something which rendered the original merits or extortionate character of the plaintiff’s charges entirely immaterial, and that such account stated was absolutely conclusive upon the defendant. Such was the rule in the early days of the' common law.
*******
“The instruction was.erroneous, secondly, because, while purporting to give to the jury all the elements necessary to a recovery, it wholly omits any reference to the relation of attorney and client, and whether the defendant was fully and fairly informed in respect to material facts.”

For the plaintiffs it is stated that all that was ever claimed by them is that they had made out a prima facie case which could be met by the defendant only by proof tending to show fraud or mistake, and this contention does find support in the cases referred to in the case of Ward v. Yancey, 78 Ill. App. 370.

The record shows that the trial court refused to permit the defendant to show that the charges made had never been expressly agreed to by him; that they were exorbitant and excessive and that they were generally unfair and unreasonable. In the Ward case, supra, a contention was made that a note sued on was executed in consideration of legal services and that the relation of the parties being that of attorney and client, required the attorney, the plaintiff, to show that the transaction in which the note was given was because of the relationship fair and equitable, and it was held in that case that:

“An application of the rule to the extent contended for by counsel would require every attorney suing upon a promissory note executed by a client for legal services to show affirmatively that the services were performed, that the charges were reasonable, and that the client so understood it when he gave the note. In a case where the transaction was.simply the giving of a note in payment of legal services performed, we do not think any greater duty rests with the attorney seeking collection by suit than devolves upon any other plaintiff suing upon a promissory note.”

Here, however, a similar question does not arise. It is not contended in the first instance that the burden of showing that the charges made were fair and reasonable rested upon the plaintiffs, but it is urged that it was permissible for the defendant to prove that the charges were in fact exorbitant and excessive. In the case at bar the defendant was willing to assume the burden of proving the illegality of the charges, and it is our opinion that under the authorities cited he should be permitted to make this proof. If the assertion that the charges made in the statements were unfair and unreasonable be true, then it follows almost necessarily that these charges were made either through error or by conscious unfairness; and in either event defendant ought to be permitted to show their injustice. Having no evidence before us tending to support defendant’s position, we, of course, do not mean to intimate that the charges made were in fact unfair, unreasonable, or otherwise improper. There is, as stated, no evidence tending to show an express agreement between the parties for the payment of any definite sum for professional services alleged to have been rendered by the plaintiffs or for retainers; and it is argued that the claim made is in large part for professional services; that the statements rendered were for unliquidated amounts and that the general rule relating to accounts stated would for these reasons have no application to the present case. This question is not fully argued, and while there is authority tending to support the position of counsel for defendant, we prefer to rest our decision upon the Gruby and other cases above cited. Vanbebber v. Plunkett, 26 Ore. 562.

The evidence shows that defendant was engaged in the practice of law for some years, but that he has not been so engaged since the year 1900. "Whatever force there may be in the argument that he knew or ought to have known whether the charges made in the statements were fair or otherwise, he is entitled to the benefit of whatever rules of law are fairly applicable to the case.

For the error of the trial court in its rulings on the admission of evidence the judgment of that court must be reversed.

The judgment of the municipal court will be reversed and the cause remanded to that court for a new trial.

Reversed and remcmded.

Holdom, P. J. and McSurely, J., concur.


author: Mr. Justice McSurely

text:
    Louis Oglesby, Administrator of the Estate of Frank Oglesby, Deceased, Appellant, v. Metropolitan West Side Elevated Railway Company, Appellee.
    Gen. No. 25,904.
    1. Negligence, § 19

      —what constitutes attractive nuisance. That a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive of liability, the question in cases of attractive nuisance being whether the owner maintained conditions which as a whole could reasonably be expected to attract children.
    2. Negligence, § 19*—what is definitioni of attractive nuisances. Attractive nuisances are such things causing injury/ left exposed and unguarded, which are of such a character as to be an attraction to children, appealing to their childish curiosity and instincts. •
    3. Negligence, § 194*—when negligence as to attractive nuisance is question for jury. In an action to recover for the death of a 10-year-old boy while playing in a vacant coal elevator of the defendant, where the evidence showed that the elevator and surrounding premises had been used by children for the purpose of play for a year and that, the ladders, runways, hoppers, etc., in the dimly lighted building were dangerous, it was a question for the jury to determine whether the elevator could reasonably be expected to attract children and whether it was negligence to leave it unguarded and open to access.
    4. Negligence, § 201

      —when negligence of child is question for jury. In an action for the death of a 10-year-old boy who was killed while playing in a vacant coal elevator, presumably by falling into an unguarded hopper, where it appeared that children had played about the premises for. about a year prior to the accident, the question as to the degree of care of the child which he was required to exercise, in view of his age, experience and capacity, was for the jury.
    Holdom, P. J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed and remanded.
    Opinion filed October 11, 1920.
    Egbert Robertson, for appellant.
    Addison L. Gardner and Carroll H. Jones, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

March 17, 1916, Frank Oglesby, then 10 years and 2 months of age, was killed while playing in a vacant coal elevator building belonging to defendant. The administrator of the estate brought suit upon the theory that defendant negligently maintained an attractive nuisance which caused the death of the boy. Upon trial the court directed a verdict for the defendant, judgment was entered upon the verdict and plaintiff appeals.

The premises on which the elevator stood were near the Belt Line Railway and Harrison street in Chicago. The elevated railway of defendant crossed the property. The premises were partially inclosed by a fence, but there were a number of openings or driveways, while one side appears to have been almost wholly uninclosed. The coal elevator building was about the size and shape of an ordinary grain elevator consisting of a concrete foundation about 10 feet from the ground and walls for about 60 feet more, and above that the eaves and superstructure; its south side was immediately opposite an open space in the fence on Lexington street. On this side was a large opening into the building and also another one about 70 feet from the ground. On the opposite or north end of the building was an exterior frame which supported an iron stairway extending directly from the ground to the top of the building. At the top of this stairway was an opening leading over a horizontal ladder to a system of runways. This stairway was open approximately 20 feet from the ground and above that point was inclosed in a boxing; the foot of the stairway rested upon the ground outside of the building and there was nothing to bar the way of any one wishing to enter. This stairway was visible from Harrison street and from the elevated track of the defendant. Approximately the lower third of the building inside was open space floored with railroad tracks; above that were large concrete and steel hoppers or bins with openings in the bottoms through which coal might be delivered into the cars upon the tracks below. These hoppers extended the length of the building, were open and about 30 feet square at the top, about 30 feet deep and floored with concrete at the bottoms except for the openings referred to. Alongside the tops of these hoppers were steel runways affording access to them. From these runways vertical ladders led down into the hoppers along the sides. Children could descend into the hoppers and go through the openings in the bottom. These runways also ran to an opening in the south end of the building from which it was possible to get onto the roof and from this opening one could see a considerable distance over the neighborhood. Between the tops of the hoppers and the roof ivas the conveying machinery. The interior of the building was dimly lighted. Children could also obtain access to the building from the ground within a bucket conveyor which ran on the south wall outside.

It was shown that for some years previous to the accident the building was unoccupied, and there was testimony tending to show that for a year or more it had becope a place in which the boys in the neighborhood played around the runways, hoppers, etc. Various children’s games were played in the building; one of the neighborhood boys testified that he had played in this building in this way at least forty or fifty times. There was no evidence that the owner had made any attempt by closing the stairway or the opening in the building to prevent boys using it for this purpose or by any restrictions to free entrance to the lot. The neighborhood was partially manufacturing and partially residence.

Upon the day of the accident plaintiff’s intestate, with other boys, was playing in this building most of the morning. The boys went home to luncheon and returned in the afternoon. There was testimony from some of the boys that they went to the premises in the afterndon to play in some freight cars which stood on a switch track running alongside of the building. The boys, including Frank Oglesby, played for some minutes in these cars and then he left, calling to one of the boys to follow him and entered the elevator building and proceeded up the stairway to the top. The other boys followed and as they got about to the top of the stairway heard “something fall” and investigating found Frank lying dead in the bottom of one of the hoppers. It is a fair inference that he either fell into the hopper from the runway or from the ladder leading down into the hopper.

Plaintiff’s theory was that the building with its system of runways, hoppers, tracks, coal conveyors, ladders and stairways, unoccupied and unguarded and open to access by children constituted a dangerous instrumentality to children amounting to an attractive nuisance, and that the defendant maintaining it was under obligation to use reasonable care to prevent access by children thereto.

It is said the trial court was moved to direct for defendant because the evidence showed that plaintiff’s intestate with the other boys went to the premises for the purpose of playing in some freight cars, and that after playing in the cars they went to the elevator. Hence it is argued they were not attracted to the premises by the elevator, but by the freight cars, and that under the doctrine of McDermott v. Burke, 256 Ill. 401, and the cases there cited, and Prickett v. Pardridge, 189 Ill. App. 307 [9 N. C. C. A. 76], there is no liability. The fallacy in this liés in the assumption that because the boys on this afternoon went first to the freight cars they were not attracted by the elevator. This assumption is refuted by the evidence that the elevator for a considerable time before this had been used as a place for playing and that the intestate himself had been playing there in the morning. The jury could reasonably believe that the boys were attracted to the premises by the opportunities for playing in both the freight cars and the elevator building. After a short time they left the freight cars for the elevator which, even upon this afternoon, was apparently the superior attraction.

That a child is first attracted upon the premises by another instrumentality than the one inflicting the injury is not decisive of liability. In White v. Boydson, 202 Ill. App. 49, the child was attracted by the noise of other children playing and did not know of the existence of the hoist which injured her. See also Stollery v. Cicero & P. St. Ry. Co., 148 Ill. App. 499, affirmed in 243 Ill. 290; Rost v. Parker Washington Co., 176 Ill. App. 245; Donk Bros. Coal & Coke Co. v. Leavitt,, 109 Ill. App. 385. The question in these cases seems to be whether the owner maintained conditions and instrumentalities which as a whole could reasonably be expected to attract children in playing, and not whether the particular instrumentality inflicting injury was the exclusive attraction.

We do not agree with the contention that the elevator cannot as a matter of law come under the doctrine of the attractive nuisance cases. Attractive nuisances have been defined to be such things causing injury, left exposed and unguarded, which are of such a character as to be an attraction to children, appealing to their childish cur-iosity and instincts. “The owner of land, where children are allowed or accustomed to play, particularly if it is unfenced, must use ordinary care to keep it in safe condition; for they being without judgment and likely to be drawn by childish curiosity into places of danger are not to be classed with trespassers, idlers and mere licensees.” City of Pekin v. McMahon, 154 Ill. 141. Perhaps in all of the cases on the subject, the attractiveness of the premises or instrumentality for children’s love of play is a controlling factor. Bearing in mind the testimony tending to show that the premises upon which the elevator building stood and the elevator itself had been used by the children of the neighborhood for the purpose of play for a year or more prior to the accident, and the character of ladders, runways, hoppers, stairways, etc., in the dimly lighted, empty building, we hold it was a proper question for the jury to determine whether it did or could reasonably be expected to attract children and whether it was negligence to leave it unguarded and open to access.

We do not think the fact that the entire interior of the building and the entrance at the north end might not be seen from the street is of controlling importance in -view of the evidence tending to show that the premises had been used as a place for playing for a long time, from which the jury might conclude the owner had knowledge of this fact, or should have known it

The question as to the degree of care the intestate was required to exercise in view of his age, experience and capacity, was likewise a question for the jury.

For the reasons above indicated we are of the opinion that the trial court was in error in instructing to find for the defendant, and the judgment is reversed and the cause remanded.

Reversed and remanded.

Dever, J., concurs.

Hoedom, P. J., dissenting.


author: Mr,. Justice McSurely

text:
    Arthur L. Blunt, Appellee, v. James J. Kelly, Trustee of the Estate of Rosa A. Benson, Deceased, Appellant.
    Gen. No. 25,913.
    1. Vendos and purchases, § 116

      —which party must perform first under contract of sale. Where a land contract imposes concurrent obligations, namely, the payment of purchase money on the purchaser and the delivery of a good and merchantable title on the vendor, neither party is obligated to do the first act or perform his part of the agreement before the other.
    2. Vendos and pubchaseb, § 331*—what must be shown in action for return of earliest money. A purchaser under a land contract in order to sustain an action for the return of the earnest money need only to show that he is ready, willing and able to perform on his part if the vendor is ready to perform on his.
    3. Vendos and pubchaseb, § 336*—when ability of purchaser to perform is question for jury. The question of the readiness and ability of a purchaser under a land contract to perform is for the jury, when there is a conflict in the evidence.
    4. Vendos and pubchaseb, § 331*—what is necessary to show ability of purchaser to perform. Proof of an offer of actual cash or that the money is in the bank is not required to show the readiness and willingness of a purchaser under a land contract, to perform.
    5. Vendor and purchaser, § 331

      —when purchaser is not required to deposit purchase money as proof of ability ,to perform. A purchaser under a land contract is not obliged to deposit the purchase money to await the outcome of the vendor’s attempt to clear the title.
    6. Vendor and purchaser, § 331*—what is effect of possession of third, persons as to offer of performance by purchaser. A pur- ■ chaser under a land contract is under no obligation to pay or deposit the purchase price pending the uncertain outcome of negotiations looking to the ouster of persons in possession and the removal of any claims or equities they may have.
    7. Vendor and purchaser, § 329*—when vendor cannot enforce performance by purchaser. The vendor under_ a land contract cannot force a purchaser to pay his money and receive a defective title.-
    ■8. Vendor and purchaser, § 331*—lohen tender of performance by purchaser is unnecessary. The purchaser under a land contract is not required to make an actual tender of any balance due where the evidence fails to show that the vendor could give a good title.
    9. Appeal and error, § 1530*—when giving of instruction is harmless error. In an action to recover earnest money on a contract for the purchase of real estate, the giving of an instruction, construed as submitting to the jury the question of title of the vendor and the effect of a guaranty policy, was harmless error, there being no dispute as to such points.
    10. Appeal and error, § 1422*—when error is harmless because of right result. Erroneous instructions and rulings upon evidence are not sufficient to set aside a judgment based upon the only verdict which the jury would have been warranted in returning under the evidence.
    Appeal from the County Court of Cook county; the Hon. J. H. Ragsdale, Judge, presiding. Heard in this court at the March term, 1920.
    Affirmed.
    Opinion filed October 11, 1920.
    Jamies F. Burns, for appellant; Kelly, Burns, Daly So Fitzgerald, of counsel.
    William A. Morrow, for appellee; Walter M. Fowler, of counsel.

      See Illinois Notes Digest, Vole. 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 McSurely

delivered the opinion of the court.

Plaintiff, bringing suit to recover $1,000 theretofore paid to defendant as earnest money on a contract for the purchase of real estate in Chicago, upon trial had a verdict and judgment for that amount.

The contract was dated July 10, 1917, and the earnest money was to be applied on the purchase price of $30,000 when the sale was consummated. The contract provided that the plaintiff should pay $7,000 on or before 90 days from date and another $7,000 on or before 6 months thereafter, “provided a good and sufficient general warranty deed conveying to said purchaser a good and merchantable title to said premises, subject as aforesaid, shall then be ready for delivery.” Plaintiff was to give his note for the balance of the purchase price, $15,000, due on or before 3 years from date, interest 6 per cent, secured by a mortgage or trust deed on said premises.. It also provided that a certificate of title issued by the registrar of Cook county, or a complete merchantable abstract of title brought down to date, or a merchantable guaranty title should be furnished by the vendor within a reasonable time. If an abstract was furnished^ plaintiff was to have 10 days after receiving the same to deliver to defendant a memorandum of objections, if any, to the title, and if any material defects were found in the title and so noted and not cured within 60 days after such notice, the contract should, at the purchaser’s option, become void and the earnest, money should be returned.

The premises contracted for were apparently designed for hospital purposes, and upon the execution of the contract plaintiff took possession and remained in possession for 2 weeks or less. No move seems to have been made by either party towards carrying out the provisions of the contract until April 25, 1918, when plaintiff served upon defendant a written demand that defendant furnish plaintiff a certificate of title issued by the registrar of titles of Cook county, or an abstract of title, or a guaranty policy, in accordance with the provisions of the contract. Defendant thereupon stated that the abstract was in Philadelphia and it would take some time to get it, and if plaintiff was satisfied, defendant would furnish a title guaranty policy. This was agreed to and such a policy was ordered from the Chicago Title & Trust Company. On May 3 the Trust Company, following defendant’s instructions', delivered to the attorney for plaintiff its opinion upon the title, giving thirteen objections, among which were the lien of a trust deed to secure notes aggregating $21,000, claims against the estate of Rosa A. Benson, deceased, unpaid legacies in .this estate amounting to $35,000, proceedings to enforce a mechanic’s lien for $747.53, and the rights or claims of parties in possession. Plaintiff’s attorney communicated with defendant, calling attention to these objections, saying that plaintiff was ready, able and willing to consummate the deal by paying the sum provided by the contract to be paid whenever these objections were removed apd defendant ready to deliver the deed and guaranty policy. Correspondence passed between the parties but no progress was made towards closing the matter. Defendant’s position was that he was entitled first to receive the $14,000 purchase money from plaintiff and with this clear up the balance due on the prior mortgage and all other liens.

The contract imposed concurrent obligations on both parties who should act simultaneously in its performance. Neither party was obligated to do the first act or perform his part of the’ agreement before the other. Clark v. Weis, 87 Ill. 438; Manistee Lumber Co. v. Union Nat. Bank of Chicago, 143 Ill. 490; Scott v. Beach, 172 Ill. 273; Osgood v. Skimmer, 211 Ill. 229; Summers v. Hedenberg, 198 Ill. App. 460.

Plaintiff, to sustain this action for the return of the earnest money, need only to show that he was ready, willing and able to perform on Ms part if the defendant was ready to perform on his. (Same cases.) To show this, plaintiff produced evidence that he had made arrangements for a loan of $14,000 to complete his payment as soon as the title was cleared. Defendant was informed as to the source of this money. Upon the trial and in argument defendant attempts to weaken this evidence; however, its sufficiency to show the readiness and ability of plaintiff was properly a question for the jury, and there is no good reason to disagree with its favorable conclusion for the plaintiff in this respect. Carter v. Webster, 79 Ill. 435; Foster v. Wynn, 51 Ill. App. 401.

Citations upon the requirements of a tender of an amount due are not in point. Proof of an offer of the actual cash or that the money is in the bank is not required in cases like this. The rule is as stated in Clark v. Weis, 87 Ill. 438, quoting with approval from the opinion in Smith v. Lewis, 26 Conn. 110:

“Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word ‘tender’ as used in such a connection, does not mean the same Mnd of offer as when it is used in reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it, and nothing further remains to be done, and the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the tMngs which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability and notice are sufficient evidence of, and indeed imply, an offer or tender in the sense in wMch those terms are used in reference to the kind of agree-meats we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is, in its nature, conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement.”

Plaintiff having presented evidence sufficient to maintain his action, did defendant sufficiently prove his readiness and ability to perform his part of the contract? The jury concluded that he did not and we cannot say this conclusion was not justified by the evidence. Defendant claims that if lie had been paid $14,000 by plaintiff, he would have been able with this to pay off the balance due on the mortgage, $10,000, the mechanic’s lien claim amounting to $750, and the claims allowed against the estate of Eosa Benson and unpaid legacies; that the Chicago Title & Trust Coinpany agreed if the purchase' money and the notes securing the deferred payments were deposited with it, it would issue a policy guaranteeing defendant’s title except as to the claims of parties in possession, mechanics ’ liens not of record and special assessments and general taxes. The mortgage referred to was held by the Provident Life Insurance Company of Philadelphia, and it is quite evident that what defendant had in mind was an escrow agreement whereby plaintiff was to deposit $14,000 and defendant would open negotiations with the holder of the mortgage for its oancellation. While plaintiff might have consented to such a conditional escrow agreement, he was not obliged under his contract to deposit the cash to await the outcome of defendant’s attempts to clear the title.

In addition to the prior incumbrance and claims there was another objection concerning which there is an entire absence of evidence as to defendant’s ability to remove, namely, the rights of parties in possession. It was proven that on or about August 7, which was before the first instalment on plaintiff’s contract fell due, defendant sold, or had entered into a contract to sell, the premises to another party, receiving $500 as earnest money, and had put this party in possession, who expended some $5,000 in improving the building on the premises. There was no assurance given plaintiff as to what would be done with this party in possession except the vague and general statement by defendant that when the time came that would be attended to. Plaintiff was certainly not obliged to put up his money to await the uncertain outcome of negotiations, possibly involving litigation, looking to the ouster of the parties in possession and the removal of any claims or equities they might have. Under these conditions the jury properly could find that the evidence failed to show readiness and ability on the part of defendant to perform his contractual obligations.

It has been held in many cases that a vendor cannot force a purchaser to pay his money and receive a defective title. Lancaster v. Roberts, 144 Ill. 214; Eggers v. Busch, 154 Ill. 604; Harding v. Olson, 177 Ill. 298; Mead v. Altgeld, 136 Ill. 298. Where the evidence fails to show that the vendor could give a good title, the purchaser will not be required to make an actual tender of any balance due on the contract of purchase. Smith v. Lamb, 26 Ill. 397; Gorham v. Farson, 119 Ill. 425.

Criticism is made of an instruction given to the jury, but its errors, if any, do not require a reversal. Even if the instruction be construed as submitting to the jury the question of title to the property and the effect of the guaranty policy, this would be harmless error as there is really no dispute on these points. American Home Circle v. Eggers, 137 Ill. App. 595.

Criticism as to instructions and upon the rulings upon evidence, although partially justified, are not sufficient to set- aside a judgment based upon the only verdict which the jury would have been warranted in returning under the evidence. Pennsylvania Coal Co. v. Kelly, 156 Ill. 9. The jury returned the proper verdict and nothing has been presented compelling reversal of the judgment, hence it is affirmed.

Affirmed.

Holdom, P. J. and Dever, J., concur.


text:
    John Makarewicz, Appellee, v. Victor Nowicki, Appellant.
    Gen. No. 25,979.
    1. Landlord and tenant, § 5

      —what constitutes lease. Where, during the occupancy of a building by two cotenants holding a contract for the purchase of the premises, one agreed to sell his interest to the other and the purchaser gave his note due in 30 months, which note and the deed were placed in escrow, and the seller agreed to pay rent, pending the maturity of the note, for the flat occupied by him and to remodel such flat, and also remained liable on the original contract, the character of the occupancy, although doubtful, was treated as a leasing, but it was held that it would be unjust to deprive the tenant of his interest in the premises with the right of possession of his moiety, because of the temporary agreement for a lease.
    2. Landlord and tenant, § 6*—what relation is not inconsistent with lease. The relation of landlord and tenant is not inconsistent with' the respective rights of the parties as tenants in common, and the termination of this relation cannot affect such respective rights.
    3. Escrows, § 1*—what is nature of an escrow. An escrow is nothing more than a mere scroll until the condition is performed which makes its delivery obligatory.
    Appeal from the Municipal Court of Chicago; the Hori. Arnold Heap, Judge, presiding. Heard in this court at the March term, 1920.
    Reversed.
    Opinion filed October 11, 1920.
    Otto H. Beutler, for appellant.

      Victor Frohlich, for appellee.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff, bringing an action in forcible detainer, upon trial by the court had judgment for possession, from which defendant appeals. The joint relations of plaintiff and defendant with reference to the purchase and occupancy of the property in question are presented as matters of defense, but plaintiff asserts an oral lease to defendant and invokes the well-known rule that in an action of this sort the defendant cannot question the title of his landlord. This seems to have been the view of the trial court, and judgment for plaintiff followed accordingly.

The facts adduced by defendant, and claimed by plaintiff to be immaterial, are: November 15, 1918, plaintiff and defendant entered into a contract for the purchase of the premises, apparently a two-story flat building, from Robert Uihlein and wife, a warranty deed to be delivered when certain payments were made in monthly instalments for 54 'months thereafter. Both plaintiff and defendant took possession of the premises, plaintiff occupying the downstairs and defendant a portion of the second floor. Pursuant to an agreement between them they commenced to remodel the building but after a time fell into disagreement as to this, which resulted in an arrangement whereby plaintiff was to purchase defendant’s interest in the premises by paying to defendant the amount of his investment in the building, which was agreed upon as $1,250. Plaintiff not having this amount in cash, it was verbally agreed that he and his wife should execute to defendant their note for $1,250, payable in 30 months with interest, and that defendant and his wife should execute to plaintiff a quitclaim deed of their interest in the premises; that both this note and deed should be placed in escrow with a third party, the deed to be delivered when the note was paid by plaintiff; there is no dispute as to this. Defendant testified that it was further agreed verbally that during the escrow he was to occupy the rear upper flat and pay therefor $24 a month, and the lower floor was to be occupied by plaintiff at $65 a month; that plaintiff was to collect the rent from another occupant of a portion of the building and with these receipts pay the monthly instalments with interest due on the contract of purchase with Uihlein; that this arrangement was made so that during the period of escrow the income from the occupation of the building should be applied towards meeting the instalments on the Uihlein contract. It was also agreed that defendant was to complete the remodelment of the flat he was to occupy with his own money. In accordance with this verbal agreement the note and quitclaim deed were executed on January 7, 1919, and together with the Uihlein contract placed in escrow with a bank; defendant then completed the remodelment of the flat at his own expense and paid his $24 a month up to December 10, 1919, receiving therefor receipts as for rent, but at this time plaintiff served him with a 30 days’-notice of termination, and although defendant tendered to plaintiff $24 to cover the payment of the January rent then due, plaintiff refused to accept it and brought this forcible detainer suit. The position of plaintiff seems to be that this amounted to an oral lease for a term of at least 30 months, the date of the maturity of the note, hence was void under the Statute of Frauds and became a month to month tenancy subject to termination upon 30 days ’ notice.

Under the Uihlein contract plaintiff and defendant took possession as tenants in common, each entitled to his moiety. The quitclaim deed to plaintiff placed in escrow did not affect defendant’s interest and would not deprive him of the same until the conditions of the escrow agreement had been fulfilled, namely, the payment of the note of $1,250, maturing 30 months after its date. A deed placed in escrow to be delivered upon the performance of a condition has no effect or force until the condition is performed. As was said in Fitch v. Miller, 200 Ill. 170: “It is nothing more than a mere scroll until the condition is performed which makes its delivery obligatory.” Hudson v. Hudson, 287 Ill. 286.

While there may be doubt as to the character of the occupancy by defendant under the verbal agreement for the payment of $24 a month, we are inclined to consider it as a leasing as. claimed by plaintiff. Does it follow that defendant must be ousted from possession of his moiety of the premises upon the termination of this lease? We hold that it. does not. While there has been some question as to the right of one tenant in common to lease his share to his cotenant, weight of precedent recognizes that such a leasing may be made and that one tenant in common may deal with his cotenant with respect to his interest as he might with a stranger. 1 Tiffany on Landlord and Tenant 407, and cases there cited. The same author in the same paragraph also says:

“If, in such a case, the lessee retains possession after the termination of the lease, he is, it has been decided, to be presumed to be holding, not by reason of his entry under the lease as tenant by sufferance, but by reason of his title as tenant in common.”

In Taylor’s Landlord and Tenant (5th Ed.), sec. 115, the rule is stated thus:

“One joint tenant or tenant in common may make a lease of his part to his companion, and this gives him a right of taking the whole profits, when before he had but the right to a moiety thereof; he may contract with his companion for that purpose as well as with a stranger. If a tenant in common hires of his co-tenant, and for a term occupies exclusively, he is not bound at the expiration of the term to abandon possession nor to make partition and occupy only one-half, even though his cotenant has given him notice to quit; it is sufficient if he offers possession of half, and does no act to prevent his cotenant from occupying with him.” (Citing Mumford v. Brown, 1 Wend. [N. Y.] 52.)

Mason v. Finch, 2 Ill. (1 Scam.) 495, was an action of forcible detainer by one cotenant against the other, and the judgment was that plaintiff be put into possession of the undivided moiety or one-half of the» dwelling house described in the complaint. In the Supreme Court it was urged that one joint tenant could not maintain an action of forcible entry and detainer against his cotenant. It was held that as one cotenant may maintain ejectment if he can prove an actual ouster, so one joint tenant may maintain an action of forcible detainer provided the plaintiff prove that he is kept out by actual force and the judgment would be for “an undivided interest” according to the proof. In Jamison v. Graham, 57 Ill. 94, plaintiff, a tenant in common, had a judgment against his cotenant in an action of forcible detainer. This was reversed by the Supreme Court, the opinion saying:

“If the parties had a joint right, this would be inconsistent with the exclusive use, by either, without an agreement between them. It would be absurd to hold that one joint tenant can deprive his cotenant of all participation in a common right.”

In Graham v. Ford, 125 Ill. App. 578, the court said of a similar forcible detainer suit:

“We hold that one tenant in common cannot bring suit against another tenant in common to recover an undivided interest in premises, unless he has been ousted or evicted by such other tenant in common. In Lick v. O’Donnell, 3 Cal. 59, which was a suit to recover original possession, it was said that as the parties held as tenants in common, the action of forcible entry and detainer could not (be maintained. ’ ’

The general doctrine has been stated in Freeman on Cotenancy and Participation (2nd Ed.), sec. 295:

“It is said that a cotenant is liable in England to a criminal prosecution for forcibly ejecting or forcibly holding his companion put of possession. The Supreme Court of Illinois at an early date maintained that the object of the forcible entry and detainer act of that State was to create a civil remedy in all cases which in England would have sustained a criminal prosecution; and therefore, that redress might be had in Illinois under the act of that State by one tenant in common or joint tenant against his cotenant, where the latter forcibly ousted the former. (Citing Mason v. Finch, supra.) A like conclusion had been reached a few years previously in the Court of Appeals of the State of Kentucky. The judgment in such cases like that on ejectment ‘should be according to the right established for an undivided interest, ’ i. e., it should authorize the putting of plaintiff into possession, but not the putting of the defendant out of possession. (Citing Jamison v. Graham, supra.) If a lessee is also cotenant at the termination of his lease and on that account is entitled to remain in possession, he cannot be proceeded against under the act in reference to unlawful detainers and thereby compelled to surrender the entire possession.” (Citing Henderson v. Allen, 23 Cal. 519; Lick v. O’Donnell, 3 Cal. 59.)

The rule above stated is manifestly supported by reason. It would be unjust to deprive the tenant of his interest in the premises with the right of possession of his moiety because of a temporary agreement between the parties for a lease. The relation of landlord and tenant is not inconsistent with the respective •rights of the parties as tenants in common and the termination of this relation cannot affect such respective rights.

It might also be noted that the defendant is obligated to malee the payments under the Uihlein contract, and the judgment entered below would leave him burdened with this obligation but deprived of any of the benefits and profits from the premises to which he was entitled as a tenant in common.

For the reasons above indicated the judgment of the trial court was improper and it is reversed.

Reversed.

Holdom, P. J. and Dever, J., concur. '


author: Mr. Presiding Justice Barnes

text:
    Sam Cohen, Appellant, v. Louis Ets-Hokin, Appellee.
    Gen. No. 25,472.
    1. Bills and notes, § 433

      —how intention not to he guarantor must he shown. Under the Negotiable Instruments Act of 1907 (Hurd’s Rev St. ch. 94, sec. 81, J. & A. f 7702), one signing his name to a note otherwise than as a maker, drawer or acceptor must indicate his intention not to be bound as a guarantor on the note itself, and such intention cannot be determined by parol evidence.
    2. Bills and notes, § 165*—what is liability of payee as indorser. A payee of a note who indorses it to a third party ior his accommodation must be held only to the liability of an indorser.
    3. Frauds, Statute of, § 19*—when agreement of guaranty violates statute. Where the maker of a note, after payment of a judgment against him on the note, sought contribution for half of the amount of the judgment, under the claim that he signed the note as an accommodation to a third party on a verbal agreement that the latter would secure defendant as an additional guarantor, and that the note was made out to defendant merely as a matter of form, he knowing that his signature thereon was as a joint guarantor with plaintiff, such agreement, not having been in writing, was in contravention of the Statute of Frauds.
    Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Fry, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1919.
    Affirmed.
    Opinion filed October 13, 1920.
    Rehearing denied October 23, 1920.
    Joseph Kamfner, for appellant.
    Samuels & Samuels, for appellee.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Appellant executed his note for $600, payable 60 days after date to the order of appellee. It was indorsed by the latter and handed to the latter’s brother, Sam Ets-Hokin, since deceased, who also indorsed it and got it discounted. The note not having been' paid at its maturity, judgment thereon was had against appellant, which, after levy, appellant paid. By this suit he seeks contribution for one-half of the amount of the judgment from appellee, claiming that appellant signed the note as an accommodation to Sam Ets-Hokin on a verbal agreement that the latter would procure appellee as “an additional guarantor on the note,” and that the note was made out to appellee merely as a matter of form, he knowing that his signature thereon was as joint guarantor with appellant.

In his affidavit of merits appellee denies that any such agreement was made, of that he signed as a guarantor, and sets up that said note was the last of a series of similar notes, that appellant was indebted to Sam Ets-Hokin in the sum of $600, that the last previous note therefor, appellee, as indorser thereon, was required to pay, and that the note in question was given to make good appellant’s default to pay said previous note. Appellee further pleads that if the claim be predicated on a verbal agreement that he was to become the guarantor or surety for another—as is the effect of the statement of claim—then it is contrary to the Statute of Frauds requiring such a contract to be in writing.

The trial was without a jury, and the court’s finding was against appellant.

Under the Negotiable Instruments Act of 1907 (sec. 81, ch. 94, Hurd’s Rev. St. 1917, J. & A. 7702) “a person placing his signature upon an instrument otherwise than as maker,. drawer or acceptor is deemed to be ah indorser, unless he clearly indipates by appropriate words his intention to be bound in some other capacity.” i§uch an intention must be indicated on the note itself and is not to be determined by parol evidence. (Lyons Lumber Co. v. Stewart, 147 Ky. 653; Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499.) Appellant urges that parol testimony was competent to show the actual relation of the parties to the note, whether principal and surety or cosureties, citing decisions rendered prior to the passage of said act of 1907, which, as held in Tucker v. Mueller, 287 Ill. 551, changed the rule announced in those decisions, the court saying that a person indorsing a note in blank on the back, at or before the time of its delivery to the payee, must be held only to the liability of an indorser. The same rule must obtain, we think, in the case at bar where the payee of a note -indorses it and delivers it to a third party for his accommodation.

If, therefore, plaintiff’s claim requires parol proof of a different intention than that which the note under the Negotiable Instruments Act must be construed to show, it cannot be enforced. And if his claim rests on a verbal agreement for a guaranty made with defendant’s brother, for whose benefit the note was made and indorsed, as is pleaded, or even if made with defendant himself, then plainly the agreement, not being in writing to that effect, is in contravention of the Statute of Frauds.

But were we permitted to consider such oral evidence, we cannot say, contradictory as it is, that if the court decided the case on the evidence and not the law its finding was manifestly against the weight of the evidence.

Nor is the conclusion of the court, whether on such evidence, or the laws above stated, affected by the error, if any, in the refusal of the court to hold as the law of the case the proposition submitted by plaintiff.

Affirmed.

Gtjdley and Hatchett, JJ., concur.