text:
    Chicago Great Western Railroad Company, Appellant, v. American McKenna Process Company, Appellee.
    Gen. No. 6,161.
    1. Liens, § 8

      —when lien for labor on chattels waived. A laborer waives his right to a lien on chattels by giving time beyond the date of delivery for payment.
    2. Contracts, § 331*—when stipulation for credit waived. A stipulation in a contract for thirty days’ credit after shipment of personal property upon which labor is to be performed is waived where the laborer requests payment without shipment and the owner complies with such request.
    3. Contracts, § 263*—when party may not rescind contract in part. A party in order to obtain the benefit of a provision of a contract favorable to him must conform to other provisions not in his favor.
    4. Contracts, § 253*—what is effect of modification of in part. A contract may be varied as to one of its provisions without affecting the liability of the parties under its other terms and conditions, unless such conditions are directly related to the modified condition, in which case the related conditions are also modified.
    5. Assumpsit, action of, § 70*—when recovery may be had under common counts for labor performed. .Where a contract for labor is substantially varied by subsequent agreement as to require more time and greater expenditure on the part of the plaintiff to complete the performance of it, he is not obliged to sue on the original contract but may recover on the common counts.
    6. Assumpsit, action of, § 70*—what is extent of recovery for labor in action on quantum meruit. Where work is done under a. special contract, the price must be governed by the stipulations of the contract, even when the plaintiff is justified in abandoning the contract and bringing his action for quantum meruit.

    7. Contracts, § 187*—what is effect of construction by parties in determining rescission or abandonment of. The construction placed upon the provisions of a contract by the parties is of great weight and often controlling in cases of doubt whether such changes and noncompliance exist as to permit a party to treat the contract, or a provision of it, as rescinded or abandoned.
    8. Liens, § 2*—when lien for labor on chattel exists. As a general rule a lien for labor on a chattel exists only when the laborer enhances the value.

      9. Appeal axd errob § 1679

      —when variance waived. A variance between allegations and proof is waived if not suggested in the trial court.
    10. Appeal and ebror, § 1466*—when admission of evidence as to value of services harmless error. The admission of evidence of the plaintiff as to the reasonable value of services in rehandling rails in an action to recover for such services, when there was no proof as to the market value of the labor, held to be harmless error where no motion was made to exclude the evidence and no effort was made to show that the charge was excessive or unreasonable.
    11. Appeal and error, § 1470*—when proof of contents of letter without proof of its loss harmless error. Proof of the contents of a letter without proof of its loss is harmless error where such evidence adds nothing material to what is already in the case.
    12. Trial, § 130*—when remarlos of counsel improper. It is improper for counsel for the plaintiff in action against a railroad company to call the defendant the “black sheep” of the railroad business in his address to the jury.
    13. Appeal and error, § 1514*—when improper conduct of counsel in addressing jury harmless error. In an action against a railroad company, the action of the attorney for the plaintiff in calling the defendant the “black sheep” of the railroad business, held not reversible error under the condition of the record.
    Appeal from the Circuit Court of Will county; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1916.
    J. L. O ’Donneul, T. F. Donovan and J. A. Bray, for appellant; Winston, Payne, Strawn & Shaw, of counsel.
    Snapp, Heise & Snapp, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

The appellant, Chicago Great Western Railroad Company, brought this action of replevin for about 122 tons on its rails in the possession of the appellee, American McKenna Process Company, which held them on claims of liens for labor. A jury trial resulted in a judgment in the alternative, as provided in section 22 of our Replevin Act (J. & A. 9207), that the plaintiff pay the amount claimed or make return of the property, from which judgment this appeal is prosecuted.

There is practically no controversy about the evidentiary facts. There was a written contract of July 13, 1911, that appellee should re-roll at its Joliet plant 5,000 tons of appellant’s rails, approximately 3,000 tons to be delivered immediately and work begun at once, the balance to be delivered not later than June 1,1912. The price was fixed at $5 per ton if appellant delivered the full amount of 5,000 tons, or $6 per ton if a less amount was delivered within the time named, payment to be made within thirty days from the date of shipment of finished rails by appellee. It is a fair construction of the contract that appellant should receive the rails from time to time as they were finished in the ordinary course of business. Appellant commenced to forward rails in August, and before December 11,1911, had shipped about 2,700 tons, which were received by appellee, sorted out into various grades prepared for re-rolling, and piled in its yard. For various reasons appellant did not wish the work done at the time contemplated by the contract, and on December 23,1911, a supplemental contract was, at the instance of appellant, executed providing that these rails in the yard of appellee might remain there the property of appellant until they should be re-rolled and reshipped. Appellant forwarded no more rails, and from time to time answered appellee’s urgent insistence that it be permitted to go on with the work with the request that it be deferred because it, appellant, was not in condition to receive and use the rails. Finally on July 29, 1912, appellee commenced re-rolling the rails and continued until about August 5,1912, finishing in that time about. 1,245 tons, which were inspected and passed by an agent of appellant, and eleven cars loaded for shipment, when appellant notified appellee that it would not then receive the rails and they were consequently unloaded and again stored in appellee’s yard. No more rails were re-rolled. What remained of the 2,700 tons was shipped out on appellant’s order and fifty cents a ton charged and paid for handling them. Appellant sold the finished rails to the Pere Marquette Railroad Company, and this sale made necessary another inspection by parties representing that company, which required much manual labor in handling the rails, and that labor was furnished by appellee at the request of appellant. Under the second inspection the rails were divided into different grades and some changes made by way of shortening some of the rails, and taking twists out of others. In November, 1912, while the finished rails were still in the yard, appellee requested payment at $6 a ton on an estimated amount of the finished rails, which appellant paid, and at the same time appellee shipped to the order of appellant all the finished rails except about 122 tons, which still remained in its yard. September 6,1913, appellee sent appellant a bill based on the actual weight of the finished rails, showing a balance due for re-rolling of $526.02, about which there is no controversy, and also included in the bill a charge of fifty ■ cents a ton ($666.33) for extra handling required bv said second inspection. Appellant objected to the charge for extra handling, and paid no part of the bill, but after demand and refusal to deliver, took the rails on the writ of replevin issued in this case. A declaration was filed in the usual form, and appellee’s defense rests on two special pleas in each claiming a lien, one setting up the charge of $526.02 for re-rolling, and the other a charge of $1 a ton ($1,332.67) for extra handling.

The controlling question is whether appellee was entitled to hold the rails until its charge for labor was paid. It is claimed that because of the provision in the original contract for thirty days ’ credit after shipment by appellee, no right of lien could exist, and many authorities are cited to the effect that a laborer waives his right of lien by giving time beyond the date of delivery for payment. This is no doubt the law. Stevens v. Faucet, 24 Ill. 483; 25 Cyc. 674. It is also obvious that if appellee was under an obligation to deliver these rails on demand and wait thirty days for payment, it could not ground a defense in a replevin suit on the fact that payment before delivery was refused. It is claimed by appellee that the stipulation in the original contract of July 13, 1911, for thirty days’ credit was waived by appellant and was not binding on appellee at the time of its refusal to deliver the rails. Appellee bases this contention on the consideration that the contract containing this stipulation provided for immediate delivery after July 13, 1911, of 3,000 tons of rails by appellant, which were to be immediately re-rolled and reshipped to appellant in the ordinary course of business, and paid for by appellant in thirty days after shipment; that appellant did not perform this essential part of its contract, but shipped 2,700 tons and asked for and obtained a written modification of the contract as to the time within which the work should be done, under which modification appellee was to do the work within a reasonable time, but that appellee from time to time deferred the work at the urgent insistence of appellant, leaving the rails stored in its yard and subjecting itself to much trouble and inconvenience in so doing, which was repeatedly stated to appellant and well understood by it; that finally long after these rails would have been re-rolled and reshipped and paid for if the original contract had been complied with, appellee, while the rails were still in its yard, requested payment based on an estimate which covered nearly all of its charge for re-rolling. By this request for payment without shipment, appellee treated the stipulation for credit as no longer in force, and appellant, by complying with this request, acquiesced in that construction. We think this position of appellee well taken. A party in order to obtain the benefit of a provision of a contract advantageous to him must conform to other provisions not in his favor. Babcock v. Farwell, 245 Ill. 39; Graham v. Holloway, 44 Ill. 385; Harrison v. Polar Star Lodge, 116 Ill. 279; Hale v. Bryant, 109 Ill. 34; Lasher v. Loeffler, 190 Ill. 150; Mount v. Williams, 11 Wend. (N. Y.) 77. A contract may be modified as to one of its provisions without affecting the liability of the parties under its other terms and conditions, unless such conditions are directly related to the modified condition, in which event the related conditions must be held also modified. (35 Cyc. 127.) Where a contract is varied by subsequent agreement so as to require more time and greater expenditure on the part of a plaintiff to complete the performance of it, he is not obliged to sue on the original contract but may recover on the common counts. 9 Cyc. 690; Huehl v. Monarch Refrigerating Co., 157 Ill. App. 145; Anglo-Wyoming Oil Fields v. Miller, 117 Ill. App. 552. But where the work is done under a special contract, as in this case, the price must be governed by the stipulations of that contract, even when the plaintiff is justified in abandoning the contract and bringing his action for the quantum meruit. W. H. Purcell Co. v. Sage, 200 Ill. 342; Rice v. Partello, 88 Ill. App. 52, and Illinois cases there cited. We assume that the above mentioned rules governing the right of a party to a contract to treat it as rescinded qr abandoned must be applied only where there have been substantial changes in the contract, or substantial noncompliance by the other party, but in cases of doubt whether such changes and noncompliance exist as to permit a party to treat the contract or a provision of it, rescinded or abandoned, then, as in all cases of interpretation of doubtful contracts, the construction placed on its provisions by the parties to the contract is of great aid and often controlling. W. H. Purcell Co. v. Sage, supra. We are of the opinion that the changes in the original contract made at the instance of appellant and for its advantage, and against the constant contention of appellee and to its disadvantage, justified appellee in at least asserting that the stipulation for credit was abandoned because of its relation to the other provisions that had been abandoned. It was certainly equitable that it should be so treated, and when appellant acquiesced in this assertion by paying what was estimated to be the amount of the bill for re-rolling before the rails were delivered, it should not be permitted to set up that same provision for credit to defeat a recovery in this action for the little balance that was found on actual weight of the rails not covered by the estimate. Under this view of the ease the verdict and judgment were properly for appellee under its special plea of lien for the payment of $526.02 due for re-rolling. But the verdict also allowed the amount of $1,332.67 claimed for rehandling, and the judgment covered that amount. Appellant argues that judgment on this plea is bad because the rehandling did not enhance the value of the rails, and a lien only exists where the work of a laborer enhances value. This is true as a rule, but in applying it, “value” does not always mean market value. If an owner of property employs a mechanic to change its character to satisfy some special use or even whim of the owner, the mechanic is not deprived of his right of lien because the article may have less market value after it is finished than it had before. But it is not necessary to much consider this rule of law here. The evidence shows that by the work done as a part of the second inspection, resorting the rails, straightening some of them and shortening some of them, their market value was increased. But it is argued that the plea counted on storing, handling and care of the rails, and that the added value from straightening and shortening some of the rails comes under none of those designations, therefore that there was a variance between the allegations and the proof. And while it is admitted that this evidence was not objected to and the variance was not pointed out in the trial below, it is claimed to be so substantial a departure from the pleadings as to be fatal. We do not think this position well taken. If the work proven was not technically covered by the change “handling” (and we do not say it was not), the variance could have been easily remedied by amendment had it been suggested on the trial, and the familiar rule that a variance is waived if not suggested in the trial court should be applied. Appellant also urges that there is no competent evidence that the services of appellee in rehandling the rails were reasonably worth $1 a ton, and no proof as to the market value of such labor, and calls our attention to the fact that in the bill originally rendered only fifty cents a ton was charged for the service. The proof on this subject was not contradicted, but was to the effect that the cost of rehandling—of the extra work—was not less than $1 a ton, and was probably over $1 a ton, and while in a letter accompanying appellee’s bill for fifty cents a ton it said it was a usual charge, it appeared on the trial that appellee had done none of this kind of work before; that there was no usual charge, and from the nature of the work, it is quite apparent that there could be no very customary charge anywhere for that kind of labor. There was no motion made to exclude this evidence, and no effort to show that the charge was excessive or unreasonable. We think, under this condition of the record, the admission of this proof and the use of it by the jury as a foundation of their verdict should not be held reversible error. Schmitt v. Kurrus, 234 Ill. 578. It was held in Travis v. Pierson, 43 Ill. App. 579, that in the absence of anything indicating bad faith what one had actually paid for service is admissible in evidence to show what the reasonable cost of snch service is, and while the rule as there announced may not be one of general application and may not warrant the retention of such testimony on motion to exclude it, still we think in the absence of such motion that it should not be allowed to work reversible error in a case where it is quite clear that the services' were reasonably worth the amount claimed.

It is urged that the court erred in permitting evidence of the contents of a letter to go to the jury without proper proof of the loss of the letter. It was a note handed an agent of appellee by an agent of appellant directing appellee to permit the second inspection of the rails above mentioned. It is not material here whether the court technically erred or not in permitting the proof of the contents of the note. There had been oral proof introduced that -appellant had authorized such inspection, and among the stipulated facts read to the jury it is recited that: “In compliance with said request of the railroad company, the process company rehandled the said rails for the purpose of inspection. ’ ’ Proof of the contents of the letter in question in no way added or subtracted from anything material otherwise in the case. Appellant also argues several objections to the instructions given at the instance of appellee. If we are right in our conclusions of law before expressed, there is no substantial error in the instructions. On the plea claiming a lien for balance due for re-rolling the rails, the defendant was entitled to a directed verdict. On the other plea claiming a lien for services in rehandling, if the evidence as to the value of those services is as matter of law a competent basis for a finding of the jury, their verdict was right as to the whole amount. There is no evidence in the record upon which they could intelligently base a different finding. Objection is also urged to a remark of appellee’s counsel in his address to the jury in which he characterized appellant as the black sheep of the railroad business. Objection was made to that remark and the court overruled the objection. We think the remark improper, and the ruling of the court error, but in the condition of the record as just pointed out, we see no reason for holding it reversible error. Finding no reversible error in the record the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Carnes

license: Public Domain

text:
    American Steel & Copper Plate Company, Appellee, v. H. H. Bilter et al., Appellants.
    Gen. No. 6,162.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Du Page county; the Hon. Mazziki Slusseb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Bill in aid of execution by American Steel and Copper Plate Company, complainant, against H. H. Bilter and others, defendants. From a decree setting aside a conveyance by defendant and subjecting the property to the lien and payment of the judgment and execution, defendants appeal.
    On May 23,1913, H. H. Bilter, his wife and two sons, Raymond R. Bilter and H. C. Bilter, the four defendants, were living as one family in a residence owned by H. H. Bilter in Elmhurst, DuPage county, Illinois. He also owned a farm of about 293 acres in the same county, and was indebted to parties other than complainant in amounts aggregating $24,550. On that date summons was served upon him in a common-law suit by the plaintiff, American Steel & Copper Plate Company. Four days thereafter for an expressed consideration of $1 he conveyed, his wife joining with him, all said real estate to said two sons by deed that was duly recorded. The common-law suit brought by complainant terminated October 18, 1913, in a judgment against him of $442.31. Execution issued therein, and he filed a schedule of his personal property showing a valuation of less than his exemptions of $400. The execution was levied on all the real estate so conveyed and complainant filed its bill in equity in this case in aid of the execution. Issues were joined, the cause referred to the master in chancery who reported the evidence with his conclusion that the prayer of the bill be granted. Objections and exceptions to the master’s report were filed and overruled, and a decree entered setting aside the conveyance and subjecting the property to the lien and payment of the judgment and execution, from which decree this appeal was prosecuted.
    The evidence showed that the real consideration for the conveyance was an agreement in writing by the grantees to assume and pay the before mentioned indebtedness of their father to parties other than plaintiff ; and that the grantees understood that the transfer covered all the real estate and personal property of their father. Evidence was introduced by plaintiff as to the market value of the real estate, from which the master found that at the time of the transfer the fair cash value of the residence in Elmhurst was $6,000 and of the farm $45,415, making an aggregate of $51,415. No evidence to the contrary was introduced except that it was shown, subject to objection, that the assessed valuation of the property for purposes of general taxation was less than the amount agreed by the grantees to be paid for it, and the grantees testified that at the time of the transfer they arrived at the value of the property by a computation as to its net revenue, and the result was about the amount they agreed to pay for it. The property had a market value. The master concluded that the amount agreed to be paid by the grantees was about forty-five per cent, of the value of the property.
    Abstract of the Decision.
    1. Evidence, § 63

      —when evidence as to assessed valuation of property immaterial in determining value. Where property has a market value, evidence as to its assessed valuation is incompetent and immaterial.
    2. Evidence, § 63*—when market value may not be determined on basis of revenue. The market value of property may not be determined by computation of what it would be worth on the basis of revenue.
    3. Fbaudulent conveyances, § 268*—when evidence sufficient to show conveyance for insufficient consideration. On a bill in aid of execution to subject real estate conveyed by a father to his children to the payment of debts, evidence held sufficient to sustain a finding that the property was conveyed for a consideration less than half its value.
    4. Fbaudtjlent conveyances, § 271*—when evidence sufficient to sustain finding that grantees had knowledge of grantor’s indebted

      ness to creditor. On a bill in aid of execution to subject real estate which was conveyed by a father to his children for an inadequate consideration, consisting of the assumption of all the debts of the grantor except that owed to one creditor, evidence held sufficient to sustain a finding that grantees had notice of the indebtedness of the grantor to such other creditor.

      The grantees testified they did not, at the time of the transfer, know of their father’s indebtedness to plaintiff, and there was no direct evidence that they did then know of it. The parties continued to live together under an arrangement, they said, that the father should work for the grantees for his board.
    Fred A. Dolph, William H. Gallagher and S. L. Rathje, for appellants.
    Charles S. Williston, for appellee.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

5. Fraudulent conveyances, § 80 —what constitutes voluntary gift of property invalid in equity. The conveyance by a debtor of all his property to his children for a consideration, consisting of the assumption of all the debts of the grantor except one, which consideration is only about one-half the value of such property, constitutes a voluntary gift over to the assignees, and will be set aside in equity at the instance of such other creditor regardless of whether or not the grantees have knowledge of such other debt.

6. Fraudulent conveyances, § 87*—when no presumption as to lack of good faith arises from sale to relatives. A debtor in failing circumstances may convey his property to his relatives, and if there are no indications of fraud no presumption arises from the relationship.

7. Fraudulent conveyances, § 87*—when to be considered to impeach conveyance. The fact of relationship between an indebted grantor and the grantee of property may be considered with other evidence as tending to impeach the conveyance.

8. Fraudulent conveyances, § 65*—what is badge of fraud. Inadequacy of consideration for the conveyance of property by an indebted father to his children is a badge of fraud.

9. Appeal and error, § 365*—when grantee of property set aside as invalid against creditor not entitled to decree for reimbursement of consideration paid. A grantee of property which is set aside as invalid against creditors is not entitled to protection in equity for the payment of part of the consideration, where he fails to ask such protection from the court.


text:
    Edward Thompson Company, Appellant, v. Martin C. Decker, Appellee.
    Gen. No. 6,179.
    1. Contracts, § 279

      —what is effect of rescission of contract. The operation and effect of a rescission of a contract is to terminate all the rights of the parties under the original contract.
    2. Sales, § 284*—when right of seller to recover purchase price not affected by storage of goods subject to order of purchaser. Where a contract of sale is rescinded by the purchaser, the right of the seller to recover the purchase price is not affected by the fact that the purchaser delivers the goods to the seller and they are stored by the seller subject to the purchaser’s order.
    3. Sales, § 284*—when seller may bring action of quantum, meruit on abandonment of contract by purchaser. Where books are sold under a special contract, the seller may, upon default of the purchaser, treat the contract as abandoned or “rescinded” and bring an action of quantum meruit, and the price is governed by the stipulation in the abandoned contract.
    4. Appeal and error, § 1802*—when cause must be remanded for further proceedings upon reversal. In the absence of a waiver of the right to trial by jury, a judgment for plaintiff may not be entered upon reversal of the judgment for defendant, but the cause must be remanded for further proceedings.
    Appeal from the Circuit Court of Lake county; the Hon. Claire C. Edwards, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 8, 1916.
    Cooke, Pope & Pope, for appellant.
    Ralph J. Dady, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellee, Martin C. Decker, August 31, 1909, sent a subscription contract for twenty volumes of American and English Annotated cases at five dollars a volume, to appellant, Edward Thompson Company, which was by it accepted. The contract provided for payment of five dollars cash, and the balance in instalments of five dollars, payable quarterly for one year, and afterwards bimonthly, and contained an agreement that the right of property in all the volumes unpaid for should remain in appellant until the same were wholly paid, and a statement that no representations or guaranties had been made by the salesman on behalf of appellant which were not expressed in the written contract. At that time only thirteen volumes had been published, and they were delivered to appellee September 3, 1909. The three succeeding volumes were also delivered from time to time, as published, by August 26,1910. Appellee paid four of the five dollar instalments, as provided in the contract, and in December, 1910, shipped back to appellant the sixteen volumes with the statement that he had not found the work up to the representations of their solicitor, and had received no benefit from it, and therefore returned it. Several letters followed in which appellant all the time insisted that it would not consent to take back the books and release appellee on the contract, and appellee insisted that he would not make further payment or receive further books. The sixteen volumes returned were stored by appellant and appellee promptly notified that they were held subject to his order. Finally, July 14, 1913, appellant commenced this suit.before a justice of the peace for sixty dollars, the balance unpaid for the sixteen volumes at five dollars a volume. It was tried on appeal in the Circuit Court where there was a verdict and judgment for the defendant, from which judgment this appeal is taken. Appellant treated the contract as abandoned by appellee, and claimed the right to recover for the sixteen volumes furnished at the contract price. Its right to so recover would be free from question but for the fact that on the trial the deposition of an agent of appellant was read, in which he said that December 30, 1910, appellant treated the contract “as being repudiated by the defendant and rescinded by the plaintiff,” and also said “at the time defendant repudiated contract by shipping back the books to plaintiff, there was then no further volumes of such publication manufactured, and when further volumes were manufactured plaintiffs did not ship more volumes to defendant because the latter had repudiated his contract, and the plaintiff then rescinded it.” This use of the word “rescinded” is relied on by appellee as indicating that appellant consented to an entire abrogation of the contract, had taken back the books, and therefore could not recover on the contract, and he says there is no evidence upon which to base any other recovery. It is true that the operation and effect of a rescission of a contract is to terminate all the rights of the parties under the original contract. The title to the goods is revested in the seller and he cannot maintain an action for the price. (35 Cyc. 158.) If appellant had consented to take back the books this rule would apply, but appellant did not take back the books and its right to recover here is not affected by the fact that appellee delivered the books to appellant and it held them subject to his order. It is settled law in this State that where work has been done or goods furnished under a special contract, the laborer or vendor may, because of the default of the other party, treat the contract as abandoned and bring an action for the quantum meruit of the work, and that the price is governed by the stipulation in the abandoned contract. This rule is said in Folliott v. Hunt, 21 Ill. 654, to have been repeatedly held by that court. It was repeated in Dobbins v. Higgins, 78 Ill. 440, where the plaintiff had given notice that it would treat the contract as “rescinded” and abandon the work. Notwithstanding the use of that word “rescinded,” the court treated the contract as abandoned and held a right of recovery pro tanto at the contract price. In City of Chicago v. Sexton, 115 Ill. 230, it is held that where one is prevented from completing the contract by an unauthorized declaration of a forfeiture, he may recover for material furnished under the contract, but the price must be fixed by the stipulations of the contract so far as they can be applied. In Keeler v. Clifford, 165 Ill. 544, the right of a party to a contract to abandon it because of the default of the other party and recover the amount due on the basis of the price named in the contract is held. To the same effect is Rice v. Partello, 88 Ill. App. 52, and Chicago Training School v. Davies, 64 Ill. App. 503, and many other Illinois cases.

It is hardly necessary to enter into a discussion of the meaning of the word “rescinded” in this connection. It may be that the word “abandoned” should be used instead, but our Supreme Court in W. H. Purcell Co. v. Sage, 200 Ill. 342, speaking of a case where the vendor of coal ceased delivery under the contract because of the failure of the vendee to pay as agreed and sued for the contract price of coal that they had delivered, said: “Appellees were justified in declaring the contract rescinded. * * * They were entitled to recover at the contract price for coal they had delivered. ! ’ Counsel for appellant in their argument use this term “rescinded” in the sense that the Supreme Court did in that case, and it is evident that appellant’s witness used it in the same sense, and whatever the propriety of using that word with that meaning, it is very clear that it must be so interpreted in the decision of this case.

It is therefore evident that appellant was entitled to a judgment in its favor, and the court erred in overruling its motion for a new trial. In the absence of a waiver of the right to trial by jury, we have no power to reverse the judgment and enter a judgment for plaintiff’s damages and costs in the court below. (City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497.) The judgment is therefore reversed and the cause remanded for further proceedings not inconsistent with the views here expressed.

Reversed and remanded.


text:
    Ralph Jester, Appellant, v. David S. Lee, Appellee.
    Gen. No. 6,182.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 7

      —when evidence sufficient to sustain finding that contract to sell property not made. In an action by a broker for commissions, where it appeared that the owner had practically arranged a sale of property to the purchasers, evidence held sufficient to sustain a finding that the owner did not enter into a contract with the broker to find a purchaser for the property.

      Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by Ralph Jester, plaintiff, against David S. Lee, defendant, to recover commissions for the sale of real estate. From a judgment for plaintiff, defendant appeals.
    Clarence W. Heyl and Harry C. Heyl,' for appel- ' lant; Heyl & McGrath, of counsel.
    Evans & Evans, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

2. Brokers, § 95*—when requested instruction that plaintiff had furnished buyer properly refused. In an action by a broker for commissions, a requested instruction including a holding that plaintiff had proved by the greater weight of evidence that he furnished the buyer, held properly refused, there being sufficient evidence to sustain a finding that a contract was not entered into.

3. Instructions, § 114*—when requested instruction properly refused as inapplicable to issues. In an action by a broker to recover commissions for the sale of real estate, a requested instruction that

' the measure of recovery was what the services were reasonably worth, held properly refused where no question of value of the services was in issue and it was uncontradicted that such services, if rendered, were worth more than plaintiff claimed.

4. Brokers, § 84*—what evidence inadmissible. In an action by a broker for commissions, evidence that the officers of the purchaser and the seller of the property were not on speaking terms, and that an officer of the purchaser never talked with the seller about the purchase before a slip of paper with the price of property marked thereon, which the broker had received from the seller and had given to one officer of the purchaser, was given by such officer to another officer of the purchaser, held inadmissible where it was not claimed that such latter officer had seen the owner before he got the slip of paper, and it appeared that he did in fact go to the owner and negotiate the sale of the property.


text:
    Frank Oscar Johnson, Administrator, Appellee, v. City of St. Charles, Appellant.
    Gen. No. 6,186.
    1. Negligence, '§ 95

      —what degree of care required of children. L child is not required to exercise the same degree of care to avoid njury as an adult, but only such care as a child of his age, intelli;ence, experience and capacity would ordinarily exercise.
    2. Negligence, § 4*—what degree of care required not to injure Iphildren. Adults must take notice of the lack of judgment, caution and discretion in children and their consequent inability to take care of themselves, and conduct business with that in view and reasonably guard against injuring them.
    3. Negligence, § 201

      —when contributing negligence of child is for fury. Although the evidentiary facts are undisputed, still the question of contributory negligence is one of fact for the jury and not of law for the court, unless all reasonable minds must agree as to the conclusion to be drawn from the admitted facts.
    4. Electricity, § 28*—when contributory negligence of child in handling live wire for jury. In an action for the death of a boy ten years of age who, while traveling on a highway, left it to examine a fallen electric wire on land adjoining a public highway, and was killed upon touching the exposed end of the wire while handling it, held that it was a question for the jury whether the deceased was guilty of contributory negligence.
    5. Electricity, § 27*—when evidence sufficient to sustain finding that city was guilty of negligence in failing to repair break in electric wire. In an action against a city for the death of a boy ten years of age, as the result of his handling a live wire in a field adjoining a public highway, where it appeared that the line had been in operation three or four weeks and that a severe storm occurred two days before the accident, evidence held sufficient to sustain a finding that defendant was guilty of negligence in failing to investigate and repair the line.
    6. Electricity, § 9*—what degree of care must be taken to prevent injury to persons from current of electric light supply line. An felectric light supply line is a dangerous agency, and care commensúrate with the danger must he taken to prevent injury to persons from the electric current.
    7. Trespass, § 11*—what does not constitute trespassing on premises of city. A boy who leaves the public highway and goes into a field, which a city has a license to use for its electric light supply line, to experiment with a fallen electric light wire, is not a trespasser on premises of the city, regardless of whether or not he was a trespasser as against the owner of the land.
    8. Electricity, § 25*—when not presumed that boy has full knowledge of danger from electric wire. It is not to be presumed that a boy ten years of age has any knowledge of electricity and its dangers compared with workmen employed around electric wiring.
    9. Appeal and error, § 1772*—when judgment not reversed. A judgment should not be reversed where the record discloses no material error of law.
    10. Instructions, § 47*—when instructions which direct verdict may be refused. Requested instructions advising the jury that plaintiff’s decedent ivas guilty of negligence under the facts, held improper.
    11. Instructions, § 153

      —when not duty of court to modify. It is not the duty of the court to modify requested instructions which in effect direct a verdict.
    12. Appeal and error, § 1241*—when party may not oomplain of modification of erroneous requested instruction. One who asks a court to give an improper instruction cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good.
    13. Appeal and error, § 1544*—when error in instructing jury to pass on question of contributory negligence as matter of law harmless. Any error in an instruction in an action for negligent death, that it allowed the jury to pass on “contributory negligence” as a matter of law, held harmless where the jury were told in other instructions that the plaintiff was not entitled to recover unless the deceased was at and before the accident in the exercise of due care there defined.
    14. Death, § 73*—when not erroneous as telling jury to consider all the evidence in determining damages for negligent death. An instruction in an action for negligent death, that if the jury believed from a preponderance of the evidence in the case that the defendant was guilty as charged in plaintiff’s declaration or some count thereof, then in determining the amount of damages, if any, to be awarded to plaintiff as administrator, they should fix such amount for their verdict, as would, in their judgment, from all the evidence be a fair and just compensation to the next of kin of deceased for the pecuniary loss, if any, resulting to them by reason of his death, held not erroneous as requiring the jury to consider “all the evidence” instead of limiting their consideration to the facts and circumstances attending the injury.
    15. Death, § 73*—when instruction on damages in action for negligent death not bad as ignoring defense of contributory negligence. An instruction on damages for negligent death is not bad as ignoring the defense of contributory negligence where it does not direct a verdict, but is only intended to guide the jury in assessing damages, if they find the defendant guilty.
    16. Death, § 73*—when instruction in action for negligent death limiting recovery to pecuniary damages proper. In an action for the negligent death of a child, an instruction on damages held proper as confining the jury to pecuniary damages.
    17. Appeal and error, § 1542*—when instruction on damages not reversibly erroneous. An instruction on damages cannot be held
      reversibly erroneous where there is no claim, or ground for claim, that the damages are excessive.
    Appeal from the Circuit Court of Kane county; the Hon. Clinton F. Irwin, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    John A. Bussell and Charles L. Hunt, for appellant.
    C. Helmer Johnson and Leonard Mead, for appellee.

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

      See Illinois Notes Digest, Yols. 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 Carnes

delivered the opinion of the court.

The appellant, City of St. Charles, operated an electric plant with poles and wires extending along a much traveled public highway north from the city. On Monday, September 23, 1912, appellee’s intestate, Walter Johnson, a boy ten years old, was walking along that highway at a point within a mile of the business part of the city with Nils Nelson, a boy about twelve years old. There had been a severe storm of the previous Friday, and one of the electric wires was broken and hanging with the end lying on the ground inside the field adjoining the public highway. Walter ran to the side of the road, climbed through the fence, and took hold of the insulated wire about two feet from the end, which was harmless. He then touched the end of the broken wire, which was uninsulated and described as bright and “shiny,” and received a shock from which he immediately died. He was warned by his companion and knew when he did this that there might be danger from touching the wire. The wire was down Saturday morning, two days before the accident. There is evidence tending to prove that appellant was actually notified of this condition on Saturday; but there is a conflict on that question, and whether appellant in the absence of actual notice in time to repair the wire is charged with constructive notice is a pertinent inquiry. The poles and wires were placed there by permission of the owner of the land. There was no reason why deceased should go through the fence or touch the wire except the prompting of boyish curiosity. This action was brought to recover for that injury, and on a jury trial there was a verdict and judgment of $2,500 for the plaintiff. The record is brought here on appeal.

It is first insisted that under the above stated facts deceased was guilty of contributory negligence as matter of law, and that the court erred in not directing a verdict for the defendant. In Trapp v. Rockford Elec. Co., 186 Ill. App. 379, we considered the degree of care required of children and discussed several holdings of our Supreme Court on that question, and noted the purpose of the law “to protect children against their lack of sound judgment.” It was said in Sutton v. Arrow Transfer Co., 186 Ill. App. 188: “A child is not required to exercise the same degree of care as an adult, but only such care as a child of his age, intelligence, experience and capacity would ordinarily exercise.” In the late case of Hartnett v. Boston Store of Chicago, 265 Ill. 331, the court citing many authorities said: “A minor may reasonably be expected to exercise that degree of care which a person of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use. ’ ’ The law recognizes the lack of judgment, caution and discretion in children and the consequent inability to take care of themselves, and requires adults to take notice of these tendencies and conduct business with that in view and reasonably guard against injuring them. Accident cases are very numerous in which.xhiMxenJmYS.-heen held not guilty of contributory negligence where adults would clearly have- been foimd~nót in the exercise of ordinary care for their own'safety. "Whether in the present case deceased was exercising such care for his own safety as hoys of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use, is a question of fact to be first passed on by the jury unless there is only one reasonable conclusion. What a ten-year-old boy of the kind and character pictured in legal definitions would naturally and ordinarily do is a question that laymen are quite as well qualified to answer as are judges and lawyers. ' It involves a consideration of many factors. No fixed rule can be applied even in cases of children of equal age and natural capacity. Thompson on Negligence, vol. 1, sec. 309; Hartnett v. Boston Store of Chicago, supra. Although the evidentiary facts are not disputed, still the question of contributory negligence is one of fact for the jury and not of law for the court, unless all reasonable minds must agree as to the conclusion to be drawn from the admitted facts. That it is not for the court to direct the jury as to what facts do or do not constitute negligence hardly requires citation of authority. The rule is held or recognized in Lake Erie & W. R. Co. v. Klinkrath, 227 Ill. 439; Commonwealth Elec. Co. v. Rose, 214 Ill. 545; Illinois Iron & Metal Co. v. Weber, 89 Ill. App. 368; Christiansen v. Navigato, 185 Ill. App. 318; Kelly v. Commonwealth Elec. Co., 167 Ill. App. 210, and many other cases. Of course, all statements that contributory negligence is a question of fact for .the jury are to be read remembering that any contention as to any claimed fact may become a matter of law for the court instead of a question of fact for the jury if the evidence is so clear that there can be but one reasonable conclusion from it. In our opinion it cannot be said in the present case that deceased, as matter of law, was not measuring up to the required standard in letting his boyish curiosity lead him to experiment with the broken wire. We think that question was properly left to the jury, and that their conclusion was not so unreasonable as to require the trial court to disregard it, or permit this court to reverse the case on that ground.

The jury were justified in finding the defendant negligent. Its line was properly constructed and had been in operation three or four weeks before the accident. The break was within about a mile of its power plant and on the Elgin road. There was a severe storm on Friday night which should have warned appellant of the danger of such an accident. It was dealing with a destructive agency which required care commensurate with the danger. Commonwealth Elec. Co. v. Melville, 210 Ill. 70. And even if the jury were not justified in finding actual notice to appellant on Saturday, still we think they were warranted in charging appellant with negligence in not learning the danger and repairing the line before the accident happened, considering the location of the wire, its nearness to the city and the plant, and the danger to be anticipated from neglecting investigation of the line after a severe storm.

It is argued that deceased was a trespasser and therefore appellant owed him no duty except not to wantonly injure him. If the field entered by deceased had been owned or controlled by appellant a different question might arise. But it was the land of a third party, appellant was there by permission of the owner and whether deceased was there' under an implied license, which often arises from custom in the country to go on foot onto fields adjacent to the highway, or was trespassing as against the owner of the land, he was not trespassing on the premises of appellant. Appellant had no authority to forbid deceased from going upon that field, therefore, as against the appellant, he was rightfully in the field where he was injured. The case is to be distinguished from those in which an accident occurs to a trespasser upon the property of the defendant. The wire fell within the field adjoining the highway, but we think that fact should not make appellant less liable than if it had fallen on the roadside of the fence.

There is no question that deceased was a bright, intelligent boy. He was a farmer boy, probably not much acquainted with the operation of electricity. He knew when he touched the wire that he might receive a shock, and quite likely knew cases where boys had touched electric wires and received slight shocks. There is nothing in the evidence to show, and it is not to be presumed, that he had any knowledge of electricity and its dangers compared with workmen employed around electric wiring. The judgment should not be reversed unless the record discloses material error of law.

Appellant offered four instructions, each, in substance, advising the jury that deceased was guilty of negligence under the facts which the instructions recited and which were not controverted. The court mo dified each of those instructions by inserting, “If you believe such acts on his part were contributory negligence, ’9 leaving the jury to determine whether the conclusion from the admitted facts was that the boy was negligent instead of determining that question as a matter of law. Each of these instructions practically directed a verdict and might well have been refused. It was not the duty of the court to amend or modify the instructions (Rolfe v. Rich, 149 Ill. 436), though he might do so if he desired. The Appellate Court of the fourth district lately held in Grannon v. Donk Bros. Coal & Coke Co., 173 Ill. App. 395, that one who asks the court to give an improper instruction cannot be heard to complain of the court’s action in modifying it, although the court fails to make it good. It held the same rule in Wilkerson v. Willis Coal & Mining Co., 158 Ill. App. 620, and in earlier cases there cited. Ryan v. Donnelly, 71 Ill. 100, cited and approved in Crown Coal & Tow Co. v. Taylor, 184 Ill. 250, seems to support that holding. But without attempting to fix the limitations of that rule, it is sufficient in this ease to say we see no substantial error in the instructions, as modified. It is objected that they left the jury to pass on “contributory negligence” as matter of law, but the jury were told in other instructions that the plaintiff was not entitled to recover unless the deceased was at and before the time of the accident in the exercise of due care there defined, and there is no reason to suppose that they would conclude from this instruction that he might recover if he did not measure up to the standard of care required by the other instructions.

The court, at the instance of appellee, gave the jury the following instruction: “If you believe from a preponderance of the evidence in this case that the defendant is guilty as charged in plaintiff’s declaration, or some count thereof, then, in determining the amount of damages, if any, to be awarded to the plaintiff as administrator, you should fix such amount for your verdict as will, in your judgment, from all the evidence be a fair and just compensation to the next of kin of deceased for the pecuniary loss, if any, resulting to them by reason of his death. ” It is urged that this instruction is bad because it tells the jury in assessing the damage to consider “all the evidence” while it should have limited' the consideration to the facts and circumstances attending the injury. A similar objection to a similar instruction was denied by the court in Chicago City Ry. Co. v. Gemmill, 209 Ill. 638, and it was there said that an instruction in substantially the same form had been approved by the court in many cases there cited. It is also urged that the instruction is bad as ignoring the defense of contributory negligence. The answer to that objection is that it does not direct a verdict, but is only intended to guide the jury in assessing damages, if they find the defendant guilty. This objection goes to the first part of the instruction, where the jury are told if they believe, etc., that the defendant is guilty as charged in plaintiff’s declaration, or some count thereof. Instructions similar in this respect have been approved in Pennsylvania Co. v. Marshall, 119 Ill. 399, and numerous later cases citing that case, among them U. S. Brewing Co. v. Stoltenberg, 211 Ill. 531, citing a great number of earlier cases. The instruction properly confined the jury to pecuniary damages: So far as it is to be considered as an instruction on the measure of damages, it would not, if erroneous, work a reversal of the judgment, for there is no claim, nor ground for claim, that the damages are excessive.

The court refused two instructions offered by the defendant, each of which would, if given, have informed the jury that the conclusion from the practically admitted facts in the case was that deceased was negligent and plaintiff could not recover. There was no error in refusing these instructions. We are of the opinion that the record discloses no substantial error of law. The judgment is affirmed.

Affirmed.


text:
    Louise C. Greenacre, Appellee, v. Aurora Brewing Company et al., Appellants.
    Gen. Ho. 6,187.
    1. Intoxicating liquobs, § 209

      —when declarations as to intention to commit suicide inadmissible in action by wife for loss of support. Declarations made by one who is killed by a train as the result of his lying on the track while intoxicated previous to his death, as to his intention to commit suicide and to throw himself in front of a train, must be regarded as hearsay and inadmissible, in evidence in an action under the Dramshop Act, sec. 9 (J. & A. If 4609), by a wife for damages for loss to her means of support caused by the intoxication of her husband and his consequent death, when unaccompanied by some attempt at the time to carry them into execution.
    2. Intoxicating liquors, § 225

      —when evidence shoivs intoxication at time of death. In an action under the Dramshop Act, sec. 9 (J. & A. 1i 4609), by a wife for damages for loss to her means of support as the result of the intoxication and resulting-death of her husband by a railroad train, evidence held sufficient to sustain a finding that deceased was so intoxicated at the time of Ms death as to be unable to take care of himself.
    3. Appeal and error, § 1542*—when instruction on amount of recovery not reversibly erroneous. Any error in giving an improper instruction on the measure of damages is harmless where there is no claim, and no ground for claim, that the damages are excessive.
    Niehaus, J., dissenting.
    Appeal from the Circuit Court of Kane county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Alschuler, Putnam & James, for appellants.
    John M. Raymond and John K. Newhall, 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. Justice Carnes

delivered the opinion of the court.

This is an appeal from a judgment of $3,063.75 rendered on a verdict of $3,000, with interest added to date of judgment, in a suit brought by appellee against two saloon keepers and the Aurora Brewing Company, the owner of one of the saloon buildings, under section 9 of our Dramshop Act (J. & A. jf4609), for loss of means of support caused by the intoxication of her husband and his consequent death.

Frank Greenacre, the husband, was about forty-five years of age, with an earning capacity of about $1,500 a year, residing with his family in the Village of Hinckley, Illinois. There was a curve in the railroad track running through the village so that at that point an object on the track could not be seen a great distance. Saturday, November 15, 1913, a fast train "was passing through the village at 11:30 p. m. Greenacre was lying on the track with his head on one rail and his feet extending to or on the other rail, and was struck by the train and instantly killed. He had been on the track less than an hour. Another train had passed over the track about fifty minutes before. The theory of appellee is that Greenacre was so intoxicated as to be unable to take care of himself and for that reason was in this place of danger. Appellants claim that he was not so intoxicated as to render him incapable, but that he deliberately took that way to commit suicide. Appellants, on the trial, offered proof by several witnesses of declarations of the deceased at various times before his death showing an intention to take his own life. The witnesses were produced in court and testified out of the presence-of the jury for the purpose of advising the court just what their evidence would be. One said that he met Greenacre in the latter part of August, 1913, and he then made a statement indicating an intention to take his own life; and that he met him again on the day he was killed between twelve and one o’clock and deceased told him he was tired of the game and the witness would never see him again. Another testified that he and deceased were acquainted with a man who had committed suicide by jumping in the river about two years before, and several times in talking about the matter, Greenacre told the witness that he would never commit suicide by jumping in the river but when he got ready to go he would throw himself in front of the fast train; that two weeks before Green-acre’s death the witness met him in town after eleven o’clock at night and Greenacre asked him to have a drink with him saying it would probably be the last drink they would have together, and just then the limited train went through the town (the one that after-wards struck deceased) and Greenacre said that train is apt to hit me any night; that many times within six months of Greenacre’s death when the witnesses were working for him, as they stepped across the railroad track, Greenacre had said: “Bight there is where I would like to jump in front of the fast train.” Two other witnesses testified to sitting one evening in the latter part of August with Greenacre near the railroad track and talking about lights on the track, and Green-acre mentioned the curve of the track where the light did not show, and said if anybody was on the track the engineer would not see him until the train was right on him, and that was the place where deceased was after-wards killed. Another witness said he helped Green-acre load stock the Sunday evening before he was killed and Greenacre told him that was the last load he was going to ship. The court permitted none of this testimony to go to the jury and the record properly presents.the question here whether any of it was competent. Counsel devote the larger part of their briefs to this question, and we will first consider it. If the court erred in excluding this testimony it was certainly reversible error.

Counsel for appellants do not claim, and we see no ground for any assumption, that these declarations were a part of the res gestee, or that they were accompanied by some attempt at the time they were made to carry them into execution. But appellants ’ counsel cite and review a number of authorities holding such declarations competent, notwithstanding they are not a part of the res gestee. The question has usually arisen in homicide cases and in actions on life and accident insurance policies. It was carefully considered by our Supreme Court in the homicide case of Siebert v. People, 143 Ill. 571, the leading authorities were discussed and reviewed, and the conclusion reached that such declarations not accompanied by an act of the deceased that they might explain, were hearsay and not admissible. The court relied on Commonwealth v. Fetch, 132 Mass. 22, among other authorities, in support of its conclusion,' and expressly refused to follow the Supreme Court of Massachusetts in overruling that case in the later case of Commonwealth v. Trefethen, 157 Mass. 185. The latter case is well said by appellants’ counsel to be the greatest case on the subject. It is said by the author of the notes in 24 L. R. A. 235, to be a notable case on the subject of evidence of declarations of intention when not a part of the res gestee. It, however, loses its value as authority in this State because the Supreme Court in Siebert v. People, supra, on page 588, speaking of the case, said: “This decision, although rendered by a court of high standing, we do not regard in harmony with the current of authority, and we are not inclined to follow it. If a declaration of that character was accompanied with any act tending to show an intent to commit suicide," it might be admissible in connection with the act.”

The Siebert case, supra, was cited and approved on this point in Howard v. People, 185 Ill. 552, and Clark v. People, 224 Ill. 554. It was cited and its doctrine approved in Nordgren v. People, 211 Ill. 425, but the rule is there said to be limited to cases where the declarations offered in evidence are not a part of the res gestee, or accompanied by any act of the deceased which they might characterize or explain, but are mere naked declarations offered as original evidence. In that case it appeared that the deceased kept in her room bottles and flasks of whisky and strychnine poison, and as explanatory of those acts she made declarations showing an intent to commit suicide, which were held competent and part of the res gestee, not as original evidence but as explanatory of the acts in question. It is said in 21 Cyc. 902, that such declarations are admissible in homicide cases, but in a note the author cites Siebert v. People, supra, and State v. Fitzgerald, 130 Mo. 407, and says that such declarations are held not competent in Illinois and Missouri if not accompanied by some attempt at the time to carry them into execution, or when not made a part of the res gestee, or admissible as dying declarations.

The authorities are quite fully reviewed in State v. Fitzgerald, supra, among them Mutual Life Ins. Co. v. Hillmon, 145 U. S. 285, which is much relied on by appellants here. The Missouri court concluded that a different rule does and should prevail in actions on life insurance policies; that under such contracts the admissions or statements by either party with respect to the subject-matter of. controversy may be shown by the-adverse party; that the difference between the two classes of cases in this respect is “broad as a gulf.” Apparently our Supreme Court has recognized a distinction between the two classes of cases, for in Treat v. Merchants’ Life Ass’n, 198 Ill. 431, the court, without referring to the holdings in the homicide cases, held that in an action on a life insurance policy where it is claimed the insured committed suicide, the testimony of the agent who took the application for insurance that before the policy was delivered the insured asked him if his company paid losses on suicides, and on learning it did not made some remark about canceling his application, was admissible as tending to show that the insured had in his mind the question of suicide at the time he took out the insurance, and bearing on the question whether or not he took his own life. In actions on life insurance policies the plaintiff is claiming under a contract of the deceased. Perhaps for that reason the rule is different from that in homicide cases, but whatever may be the reason for the distinction, it seems quite clear that the rule applied in life insurance cases should not govern in homicide cases, and that it would seem that the rule of evidence applicable to homicide cases should be applied to this character of a case under the Dramshop Act. There is certainly no privity of contract here between the deceased and the plaintiff in the action. We are of the opinion that the trial court did not err in its ruling-on the offered evidence.

Appellants argue that the evidence does not sustain the finding that deceased was so intoxicated at the time in question as to render him incapable of taking care of himself. There was a sharp conflict in the evidence on that question. It was for the jury to decide under the direction and control of the trial judge. The verdict was not so manifestly against the weight of the evidence as to authorize us to disturb it.

A number of questions arising on the introduction of evidence and manner of examining witnesses, and remarks of counsel, are presented and argued by appellants. None of them seem to us of controlling importance. Some slight errors were committed as must always happen in a bitterly contested case of this character. We reach the same conclusion in considering error assigned on giving and refusing instructions. The court gave over twenty instructions at the instance of defendants in which the law was as favorably stated as they should ask. There is some ground of complaint as to one of plaintiff’s instructions on the evidence to be considered in assessing damages, but there is no claim, and no ground for assuming that the damages are excessive.

There is no question but that deceased drank intoxicating liquor at the two appellants’ saloons on the day of his death, or that the brewing company owned one of the buildings and rented it for saloon purposes. We are of the opinion that no reversible error was committed on the trial, therefore the judgment is affirmed.

Affirmed.

Mr. Justice Niehaus.—I do not concur in this opinion.


text:
    Laura S. Thompson, Plaintiff in Error, v. Ancient Order of Gleaners, Defendant in Error.
    Gen. No. 6,193.
    (Not to be reported in full.)
    Abstract of the Decision.
    I. Insurance—when evidence sufficient to sustain finding that insured did not pay money to treasurer of local order to cover delinquent assessments. In an action on a death benefit certificate issued by a fraternal beneficiary society, evidence held sufficient to sustain a finding that insured did not make payment of delinquent assessments to the treasurer of the local order.
    2. Insurance, § 782

      —when failure to pay dues and assessments constitutes automatic suspension of member of fraternal beneficiary society. The failure of a member of a fraternal beneficiary society to pay dues and assessments causes his automatic suspension under laws of the society, providing that the failure to pay dues or assessments operates as a suspension of a member.
    3. Insurance, § 807

      —how member of fraternal beneficiary so-.

      ciety automatically suspended for failure to pay dues and assessments may be reinstated. Where a member of a fraternal beneficiary society has been automatically suspended under the laws of the society because of his failure to pay dues and assessments, he cannot become reinstated without complying with the requirements of the society unless some one with authority waives such requirements.

      Error to the Circuit Court of La Salle county; the Hon. Joe A. Davis, Judge, presiding. • Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Statement of the Case.
    Action by Laura S. Thompson, plaintiff, against Ancient Order of Cleaners, defendant, to recover on a benefit certificate on the life of her husband. From a judgment for defendant, plaintiff brings error.
    Egbert Carr and Butters & Clark, for plaintiff in error.
    H. M. Kelly, for defendant in error.

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

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

   Mr. Justice Carnes

delivered the opinion of the court.

4. Insubance, § 797*—when receipt of dues and assessments by local officer does not constitute waiver of requirement for reinstatement in fraternal beneficiary society. The receipt of dues and assessments from a member of a fraternal beneficiary society, who has been automatically suspended because of his failure to pay dues and assessments as required by the laws of the society, by the local secretary and treasurer, does not constitute a waiver of a requirement for the production of a certificate of good health as a condition for reinstatement, so as to constitute a reinstatement, where such local officer at the time of taking the money advised the member that it was doubtful whether he could be reinstated and that it must depend upon the action of the superior officers of the company.

5. Depositions,' § 40*—when objections to interrogatories must be made before trial. Objections to interrogatories in a deposition as to books and documents, copies of which are sought to be used in evidence, that sufficient foundation was not laid for their introduction in evidence, must be made before -the trial.

6. Depositions, § 43*—when questions as to competency of interrogatories not considered on appeal. Where there is no reasonable presumption from the record that anything got into evidence that could not easily have been made competent by a retaking of a deposition, if the questions had been held bad on a motion to suppress, questions raised on appeal, as to competency of interrogatories, that should have been first raised on the taking of the deposition or on the motion to suppress, will not be considered.


text:
    Madeline Harris by Mary E. Harris, Appellee, v. Fred Schlink, Appellant.
    Gen. No. 6,196.
    1. Trial, § 68

      —When party not required to state facts to be proved by answer to question. Where a question is in proper form and clearly admits of an answer relative to the issue and favorable to the party on whose side the witness is called, the party is not bound to state the facts proposed to be proved by the answer unless the court requires him to do so.
    2. False imprisonment, § 85*—when evidence admissible in mitigation of exemplary damages. In an action by a girl fourteen years of age for damages for false imprisonment by a saloon keeper who detained her and turned her over to the police while she, with a party of children, was passing defendant’s saloon, and some one had thrown open the door of the saloon and broken the glass, held that evidence that defendant had been instructed, upon a prior complaint to a policeman, to catch parties making disturbances and get their names or send them to the police station, and that he would see that the disturbances were stopped, was admissible in evidence in mitigation of exemplary damages.
    3. Appeal and error, § 1523*—when error in instruction harmless. In an action by a child for damages for false imprisonment, any error in an instruction on the right of a private person to make an arrest for a crime committed or attempted in his presence, held harmless where there was little question as to the right of the defendant to arrest and detain the plaintiff.
    4. Instructions, § 155*—when method of modification to be condemned. The' practice of modifying instructions, leaving the part struck out so that the jury can read it, is to be condemned.
    Appeal from the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 8, 1916.
    John B. King and Leo Gr. Hana, for appellant.
    Dailey & Miller, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

April 1,1914, Fred Schlink, the appellant, conducted a saloon in Peoria. * There had been a children’s party in the neighborhood that evening, and about ten o’clock they were on their way home by circuitous routes, loitering, laughing and playing after the manner of children. Several of them, including Madeline Harris, the appellee, a girl fourteen years old, passed appellant’s saloon. Another smaller party of children appeared at that point about the same time. Some one violently threw open the front door of the saloon, breaking the glass. Appellant was sitting in a rear room with a retail merchant of the vicinity. He rushed out of doors. The children ran. He caught Madeline and led her back to the saloon and sent for the police patrol wagon which came and took her to the police station. Appellant meantime telephoned the police station that he only wanted to teach the children a lesson and to lecture her and let her go, which was done. This action was brought to recover for that injury. A jury returned a verdict in favor of plaintiff for $2,250. The court required a remittitur of $1,000 and entered judgment for $1,250 and costs. The defendant prosecutes this appeal and urges that the evidence does not support the verdict; that the court erred in excluding evidence offered by the defendant, and in instructions to the jury, and that the verdict is excessive.

There is some evidence that appellant had before been annoyed and troubled by children trespassing upon his property; that he had complained to a policeman about it and had been told by him to catch the parties and get their names, or send them into the station, and that he would see that the disturbances were stopped; and while the evidence fairly shows that Madeline, the appellee, was not guilty of any trespass on defendant’s property, and that there was no valid reason for Ms seizing and detaining her, and that his action in so doing was hasty and foolish, still a very . material consideration is what cause, if any, was there for his acting in the manner that he did. The girl’Was not injured apparently more than would naturally result from being caught and struggling to get away, and being frightened. . It is not clear from the evidence how much she was injured, and what were the after effects; but there is no question that the verdict was much beyond what could reasonably be found even including exemplary damages, and it is peculiarly a case where a jury would be much influenced by what might seem to them outrageous conduct of the defendant. It was therefore very material to appellant that he be permitted, within the rules of evidence, to show anytMng he could by way of excuse for his action in defense of exemplary damages. He produced the police officer above mentioned as a witness, and offered to prove by Mm the conversation before stated. The court sustained an objection to this testimony. Appellant afterwards, as a witness in his own behalf, was permitted to testify to the conversation and it was not contradicted, still it probably did not impress the jury so much as if it had been stated by the officer. While appellant was testifying in his own behalf, in speaMng of the throwing open of the door to his saloon, he was asked how many times that occurrence had taken place that same Mght. This question was objected to as incompetent and immaterial; which objection the court sustained on the statement by appellant’s counsel that he could not show that it was done by the plaintiff or those parties. He was then asked: “Was there a disturbance at your front door more than one time that Mght!” and: “Were there three or four disturbances at your front door on that same evening!” his counsel stating that the testimony was offered to show want of malice. Objections were sustained to each of these questions. While there was no statement by counsel of what answer was expected, still under the authority of the late case of Hartnett v. Boston Store of Chicago, 265 Ill. 331, where it is said: “Where a question shows the purpose and materiality of evidence it is not necessary to state what the answer would be. If a question is in proper form and clearly admits of an answer relative to the issue and favorable to the party on whose side the witness is called, the party is not bound to state the facts proposed to be proved by the answer unless the court requires him to do so. (38 Cyc. 1330; Buckstaff v. Russell & Co., 151 U. S. 626),” such statement was not necessary.

This action of the court is properly presented here for review. If the rules of evidence permit that character of proof, there is little reason to doubt that its rejection was substantial and material error.

In Roth v. Smith, 41 Ill. 314, the defendant proved he was advised by persons not lawyers to make the affidavit under which plaintiff was arrested, and the court held this evidence competent, and said: “For the purpose of showing that he was not actuated by vindictive feelings, this evidence was proper, and if proper for any purpose it should always be admitted.” This ruling of the court was cited and approved in Cochrane v. Tuttle, 75 Ill. 361. It was cited in Merrifield v. Davis, 130 Ill. App. 162, along with Donnelly v. Harris, 41 Ill. 126, in support of the conclusion of the court that evidence was improperly excluded that would not be competent in bar of the action, but was competent in mitigation of exemplary damages. It was held in the Donnelly case, supra, that while words do not justify an assault or false imprisonment, and will not mitigate the actual damages, they may be considered on the question of vindictive damages. In the present case, vindictive damages were asked and evidently given by the jury, therefore the general rule admitting evidence that is not competent in bar of the action applies. The case of Klein v. Pollard, 149 Mich. 200,10 L. R. A. (N. S.) 1008, is somewhat in point. It was an action against a police officer for the unlawful arrest of a woman who had come out of a saloon at midnight and was walking along the street. There was no reason for her arrest, but the defendant offered in evidence his instructions from his superior officers to go to that saloon every evening because it was disorderly and prostitutes frequented it. It was held that these instructions did not constitute a defense to actual damages, but as they tended to show the good faith of the defendant they were admissible in mitigation of damages. In Schultz v. Frankfort Marine, Accident & Plate Glass Ins. Co., 151 Wis. 537, the defendants were guilty of an unlawful interference with the liberty, of the plaintiff in endeavoring to prevent him from leaving-town, and it was held that while their motives for so preventing him might be to detain him until it could be ascertained whether he should be arrested were no defense to the action, that it was competent to give that matter in evidence in mitigation of damages; that if they mistakenly thought they were performing a legal duty, or that the plaintiff’s reputation was so bad that their action was not likely to injure him in any great degree, that should be taken into consideration in mitigation of damages. In Henry v. Hug, 76 Mo. 342, defendant was sued for unlawfully and wrongfully killing the plaintiff’s cow, and he offered to prove that the plaintiff’s wife sold him the cow, which evidence was rejected by the trial court. .The Supreme Court said the evidence was admissible on the question of exemplary damages, it being material on that question whether defendant believed that he had acquired the ownership of the cow. In Camp v. Camp, 59 Vt. 667, which was an action for damages for cutting and carrying away grass, and building a fence on the plaintiff’s land, the action of fence viewers in establishing the line was relied on'as a defense, and it was held they had no official authority to do so. The trial court had excluded testimony as to their action, and it was held that as exemplary damages were asked and included in the verdict, the excluded testimony was material and admissible as bearing on that question as tending to show the motive under which the defendant acted, and it was said: “The plaintiff may show that the act was done with express malice; on the other hand, the defendant is entitled to the benefit of any facts and circumstances tending to show that he acted in good faith.”

We are of the opinion that there was prejudicial and reversible error in excluding the testimony before referred to, and for that reason the judgment should be reversed and the cause remanded.

It is urged that the court erred in its instructions to the jury in regard to the right of a private person to make an arrest where a crime is attempted or committed in his presence; in modifying certain instructions by striking out certain parts, leaving them legible so that the jury could readily see what he had refused to state as the law; in repeatedly calling the jury’s attention to their right to give exemplary damages; and in permitting the question of exemplary damages to go to the jury. As we have concluded to reverse the judgment for the reasons before stated, we will not pass on these questions further than to say that we think on the record before us there was a question of exemplary damages for the jury, and there was so little question of the right of the defendant to arrest and detain the plaintiff that there is no substantial error in the instructions as to that. The practice of modifying instructions, leaving the part struck out so that the jury can read it, has been condemned. But if that occurred here it will probably not occur on another trial. The judgment is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Niehaus took no part.


author: Mr. Justice Cabnes

text:
    Dan J. Curran and Alice O. Curran, Appellees, v. J. H. Junk, Appellant.
    Gen. No. 6,199.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Brokers, § 88

      —when evidence sufficient to show acceptance of offer to act as broker for specified commission. In an action by brokers for commissions for the exchange of real estate, evidence held sufficient to sustain a finding that plaintiffs’ proposition to act as brokers for a specified commission was accepted by defendant.
    2. Brokers, § 88

      —when evidence sufficient to sustain finding that terms of contract to act as broker not modified. In an action by brokers to recover commissions for the exchange of real estate, evidence held sufficient to sustain a finding that the contract fotf commissions was not modified so that no commissions were to be paid until the property received in exchange was in turn exchanged for other property.

      Appeal from the Circuit Court of Knox county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in this court at the October term, 1915.
    Affirmed.
    Opinion filed February 8, 1916.
    Rehearing denied April 6, 1916.
    Statement of the Case.
    Action by Dan J. Curran and Alice O. Curran, plaintiffs, against J. H. Junk, defendant, to recover commissions for the exchange of real estate of defendant for other property. From a judgment for plaintiff for $5,900, defendant appeals:
    Williams, Lawrence, Welsh & Green, for appellant.
    M. J. Daugherty and Roy M. Marsh, for appellees.

      See Illinois Notes Digest, Yols. 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 Cabnes

delivered, the opinion of the court.

3. Brokers, § 95*—when instruction on burden of proof in action - for commissions correct. In an action by brokers for commissions for the exchange of real estate, an instruction that the burden of proof was upon the plaintiffs to show a contract for commissions and that the contract, if so shown, stood until a rescission or change was shown, and that the burden of proof was upon defendant to show a rescission or change, held correct.

4. Brokers, ' § 95*—when instruction improperly modified as not conforming to pleadings. In an action by brokers for commissions for the exchange of real estate in Minnesota for property in another State, which latter property defendant claimed plaintiffs agreed as part of the contract to exchange for Illinois property, a requested instruction that if the jury believed that there was an agreement between plaintiffs and defendant to trade the foreign property for land in Illinois “or elsewhere” and the undertaking was not performed by plaintiffs they could not recover, held improperly modified by striking out the words “or elsewhere” on the ground that there was a departure from the pleadings, as, if a later and different agreement was made, it was admissible under the general issue.

5. Appeal and error, § 1565*—when error in modifying instructions as not conforming to pleadings harmless. In an action by brokers for commissions for the exchange of real estate in Minnesota for property in another State, which latter property defendant claimed plaintiffs agreed as part of the contract to exchange for Illinois property, any error in modifying requested instructions that if the jury believed that there was an agreement between plaintiffs and defendant to trade the foreign property for land in Illinois “or elsewhere” and the undertaking was not performed by the plaintiffs they could not recover, on the ground that it was a departure from the pleadings to so instruct, held harmless where the jury had been informed in other instructions that if there was a later and different agreement the plaintiffs could not recover.

6. Instructions, § 151*—when instructions covered by given instructions properly refused. Requested instructions which are adequately covered by given instructions are properly refused.

7. New trial, § 102*—how motion for on ground of newly-discovered evidence should be supported. A motion for new trial founded on newly-discovered evidence should be supported by the affidavits of the witnesses by whom it is proposed to prove the facts relied upon, or some excuse should be shown for not obtaining them.

8. Appeal and error, § 1236*—when neither party may complain of amount of verdict. Where the jury are instructed by agreement of counsel, in an action by brokers for commissions for the exchange of real estate, that if they found for the plaintiffs to render a verdict for a stipulated amount, neither party can complain of the amount of the verdict.


text:
    Harry E. Brown, Appellant, v. W. B. Atwood, Appellee.
    Gen. No. 6,201.
    1. Appeal and error, § 1034

      —when judicial notice taken of warrant of attorney not set out in bill of exceptions. In the absence of a special demurrer to a declaration which expressly makes a part thereof and1 files therewith, as an exhibit, a warrant of attorney to confess judgment, the reviewing court will take notice of such warrant of attorney though not set out in the bill of exceptions.
    2. Judgment, § 17*—when power of attorney to confess judgment on award of arbitrators invalid. A power of attorney to confess judgment on a common-law award of arbitrators to be made after the execution of the power is invalid.
    3. Judgment, § 80*—when judgment by confession may be vacated after expiration of term. A court may vacate a judgment by confession after the expiration of the term at which it was rendered if it was without jurisdiction to enter the judgment.
    4. Judgment, § 13*—when judgment by confession void. A judgment by confession entered under an invalid power of attorney is void.
    5. Judgment, § 81*-r-when suit dismissed upon vacation of void judgment. Where, after vacation of a void judgment by confession, the plaintiff declined to take further proceedings, the suit may be dismissed.
    Appeal from the Circuit Court of Henry county; the Hon. Emery C. Graves, Judge, presiding. Heard in this court at the October term, 1915.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed February 8, 1916.
    Sturtz & Ewan and Harry E. Brown, pro se, for appellant.

      Charles G. Davis and Joseph L. Shaw, for appellee.

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

   Mr. Justice Carnes

delivered the opinion of the court.

Appellant, Harry E. Brown, and appellee, W. B. Atwood, submitted to arbitration all controversies existing between them. The hearing March 26, 1913, resulted in an award in favor of the appellant and against appellee for the sum of $3,188.70. Appellant says, correctly we think, that it was not a proceeding under the statute, but was one at common law. The arbitration agreement was in writing and contained a provision: “That the award, when so made, may by either party be filed in the Circuit Court of Henry county, Illinois, and when so filed the said court is hereby authorized to enter judgment in favor of the party in whose favor said award may be made, without notice to either party hereto,” followed by a warrant of attorney in the usual form used with promissory notes to confess judgment for such an amount as might be awarded. Afterwards appellant filed a declaration in the Circuit Court, counting on said award, and averring that the defendant had executed his power of attorney authorizing a confession of judgment thereon, setting out the legal effect of the award and attaching a copy of it to the declaration as an exhibit, expressly making the copy “a part of this declaration.” Judgment by confession was entered in term time on this declaration. The exhibit so attempted to be made a part of the declaration included the arbitration agreement, the oath of the arbitrators, and their finding or award. Execution issued on the judgment so obtained. At a subsequent term, November 4, 1914, appellee appeared and entered a motion to vacate and set aside the judgment and quash the execution on the ground that the warrant of attorney attached to the declaration conferred no jurisdiction upon the court to enter judgment against him, supported by his affidavit that the execution was served on him September 18,1914, which was the first knowledge or notice he had that a judgment had been rendered or any proceeding commenced against him. Appellant moved to strike this motion from the files for the following reasons: That it comes too late, is vague and indefinite and does not point out wherein the warrant of attorney attached to the declaration fails to confer jurisdiction; that the affidavit of the defendant was sworn to before one of his attorneys of record; that the question raised by the motion is one of law, and the court has no jurisdiction to vacate said judgment after the term in which it was entered; that the defendant does not show any defense; that no equitable reason is presented for setting aside the judgment; that the defendant does not deny the debt; that the warrant of attorney gave the court jurisdiction of the person of the defendant and of the subject-matter of the suit; and the judgment can only be attacked for equitable reasons. The court heard the two motions together; denied appellant’s motion and sustained appellee’s motion to vacate the judgment and recall the execution; ordered that the judgment be set aside and vacated, and the execution quashed. Then the record recites that “The plaintiff, declining to proceed further in this suit, and the costs thereof having been paid, the suit is dismissed,” from which judgment of the court this appeal was allowed and perfected, and a bill of exceptions signed showing the motion and affidavit of appellee, and the motion of appellant, above referred to, but not setting out the exhibit attempted to be made a part of the declaration.

It is claimed by appellee, and admitted by appellant in his reply brief, that because the arbitration agreement containing the power of attorney to confess judgment and other writings attempted to be made a part of the declaration as an exhibit are not preserved in the bill of exceptions that they are not before us for consideration, and appellant urges that we must therefore assume that there was a valid power of attorney upon which the judgment was confessed. It does not appear in the body of the declaration that it is a suit upon an arbitration award which contained a warrant of attorney to confess judgment on the award to be rendered. Perhaps the reasonable assumption. that such power" of attorney was exercised in confessing this judgment is not warranted if we cannot take notice that the judgment was confessed by an attorney acting under that power.

There is an abundance of authority that it is not permissible to make exhibits a part of the pleadings at law, though it is a common practice in equity. In Jones v. City of Chicago, 167 Ill. App. 175, the court collected the Illinois authorities on that question. The cases there cited, most if not all of them, refer to copies of instruments sued on that are filed with the declaration under the statute requiring such copies to be filed. This court said in Sehnert v. Schipper & Block, 168 Ill. App. 245, ‘ ‘ Common-law pleading cannot be done by exhibits,” citing Hart v. Tolman, 6 Ill. (1 Gilm.) 1; Thompson v. Kimball, 55 Ill. App. 249; and Chicago Portrait Co. v. Chicago Crayon Co., 118 Ill. App. 98, but held that the objection must be raised by special demurrer, and in the absence of such objection the exhibits, when by the language of the plea they are made a part of the pleadings, are to be treated as such. In the present case the exhibit is filed with the declaration and expressly made a part of the pleading, as was done in the Sehnert case, supra. We adhere to our holding in that case, and therefore take notice of the warrant of attorney on which the judgment was confessed in the present case. This presents the question whether a- valid power of attorney can exist to confess judgment on an award not yet rendered in a common-law arbitration proceeding.

Appellee in his brief, at considerable length, shows that the judgment cannot be maintained under the statute authorizing judgments in statutory arbitration proceedings. Appellant does not deny this, but says: “We are not concerned with the statute at all. The judgment in this case is justified under the common law. ’ ’ Judgment by confession cannot be entered upon an award unless the arbitration has been conducted under the statute and in compliance with its terms. Duffy v. Odell, 117 Ill App. 336. There can be no valid warrant of attorney to confess judgment against the donor of the power where the amount of judgment is not fixed in the power. Little v. Dyer, 138 Ill. 272. There may be a valid warrant of attorney to confess judgment for rent to become due by the terms of the lease where the monthly rental is fixed by the lease, and the amount due is ascertainable by inspection of the lease, but not for the confession of judgment for other matters not ascertainable by an inspection of the lease. Fortune v. Bartolomei, 164 Ill. 51. Authority to confess a judgment without process must be clear.and explicit and strictly pursued. A judgment so entered without such authority is a nullity. The judgment must be for a fixed and definite sum, and the facts supporting it must be established by the written documents required by the statute to be filed in order to authorize entry of a judgment by confession. Weber v. Powers, 213 Ill. 370.

We are of the opinion that there can be no valid power of attorney to confess judgment on a common-law award of arbitrators to be made after the attempted execution of the power. A court has the power to vacate a judgment after the expiration of the term at which it was rendered if it was without jurisdiction to enter the judgment. City of Chicago v. Nodeck, 202 Ill. 267, and authorities there cited.

It follows that the judgment entered by confession on the award was void, entered without authority, and was properly vacated and set aside. After this action of the court the case was still there pending on the declaration filed. Appellant could, if he had seen fit, taken further proceedings, but as he declined to do so, the court did not err in dismissing the suit. Finding no error in the record the judgment is affirmed.

Affirmed.