text:
    Kathleen M. H. Besley, Defendant in Error, v. Edward Ridgely, Plaintiff in Error.
    Gen. No. 21,155.
    1. Landlord and tenant, § 88

      —when tenancy from year to year by holding over created. Where defendant remained in possession after the expiration of his lease for a year it cannot be contended that he so remained pending negotiations for a new lease, it appearing that prior to the expiration of the lease plaintiff sent defendant a new lease and also made repairs at the request of defendant, for the reason that in such case there was no' room for negotiation, plaintiff having made known the conditions under which she was willing to continue the tenancy by sending the lease and making the repairs.
    2. Landlord and tenant, § 88

      —when tenancy from year to year implied. Where a tenant under a lease receives a copy of a new lease for a further term in ample season to enable lessee to accept or reject such lease prior to the expiration of the term of the existing lease, which lessee fails to do but remains in possession after such expiration, paying rent at the same rate as before, the law implies, an agreement to continue as tenant for another year at the same rental, in which case it is immaterial that before vacating the tenant sent a thirty-day notice of intention to leave, it appearing that he vacated before the end of the extended term of the lease.
    3. Landlord and tenant, § 88

      —when landlord deemed to have elected to treat contract as from year to year. In an action to recover for rent due under a lease where it appeared that defendant by his conduct had impliedly agreed to continue as tenant for another year after the expiration of his lease, the election of plaintiff so to treat the contract may be fairly inferred from the fact that plaintiff sent defendant a new lease for another year on the terms of the old lease, and accepted rent at monthly intervals at the old rate.

      Error to the Municipal Court of Chicago; the Hon. Henby C. Beitleb, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Foreman, Levin & Robertson, for plaintiff in error.
    Lyman, Adams & Bishop, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.

We desire to call the attention of counsel to their violation of section 99, ch. 110 (J. & A. ¶ 8636), entitled “Practice,” in not entitling their case on review as it is entitled in the trial court, as provided by said section 99. The abstracts and briefs are all erroneously entitled. The statute was passed to preserve uniformity of title in every court and to prevent confusion arising from changes in titles, and should be obeyed accordingly.

This is an action for one month’s rent of an apartment in which the parties hereto are respectively landlord and tenant. The landlord prevailed in the trial court and the tenant seeks this review. The controlling facts are as follows:

First. Ridgely, the defendant, occupied under a written lease an apartment of plaintiff at 201 East Chestnut street, Chicago, from November 1, 1909, to September 30,1912, at a monthly rental of $135.

Second. Following a conversation between defendant and an agent of plaintiff, a written lease for another year was sent by the agents of plaintiff to defendant for execution by him prior to the expiration of the existing lease.

Third. There was some discussion about certain repairs to be made by the landlord to the satisfaction of defendant’s wife, and a reduction in the rent was sought.

Fourth. Certain repairs were made and defendant continued to occupy the apartment until July 31,1913, when he removed all his effects from the premises with the exception of two trunks, which remained in the apartment until the next day, as defendant admits, but as plaintiff claims until the day thereafter, being August 2nd.

Fifth. On June 30, 1913, defendant gave notice to plaintiff that he would surrender possession of the apartment on July 31,1913, and terminate the tenancy at that time.

Sixth. That the lease sent defendant was retained by him, but he did not execute it.

Seventh. That defendant paid rent from the termination of his first lease, September 30, 1912, to July 31,1913, at the same rate as theretofore, and that this action is for August 1913 rent.

Defendant’s counsel have, both in printed and oral argument, striven with much industry and ingenuity to distinguish their case from the general well-settled principles of law applicable to the facts as above outlined. However, from the conclusions at which we have arrived, it is evident that their efforts in this regard have been unsuccessful.

Defendant’s counsel state in their brief that plaintiff contends that she was entitled to recover $135 as rent for the month of August on the theory, first, that defendant remained in possession of the premises after the expiration of the old lease and therefore became a tenant for another year; and, second, that if the facts did not constitute a hold-over tenancy from year to year, the plaintiff in error was a tenant from month to month and was liable for the August rent by reason of the fact that the two trunks remained in the apartment after the first of August.

It is a denial of the facts to contend that defendant remained in possession pending negotiations for a new lease. There was nothing to negotiate after plaintiff had made known the conditions under which she would be willing to continue the tenancy, which she made evident by sending defendant a new lease and by making the repairs. The lease was sent in ample time for defendant to accept or reject it before the term of the existing lease expired, and he did neither. By remaining in possession after the expiration of the old lease and paying rent thereafter according to the terms of the old lease, the law fixes his status and holds him as tenant for another year at the same rental. Furthermore, as to the amount of the rent, defendant ratified what the law exacted by continuing to pay at the same rate. The giving of the thirty-day notice did not change the status of the contract of the parties, which the law implied from defendant’s holding over and continuing to pay rent at the rate fixed by the old lease.

Of all the cases—and they are numerous—announcing the doctrine that, where a tenant occupies premises under a lease for a year or years and holds over after the expiration of such lease, without having made any new agreement with the landlord under which such holding over takes place, the tenant may, at the election of the landlord, be treated as tenant for another year upon the terms of the original lease Clinton Wire Cloth Co. v. Gardner, 99 Ill. 151, is most analogous on fact and principle to the one at bar, possessing, as it does, many of the same controversial elements. The election of plaintiff to hold defendant for another year may be fairly inferred both from the sending to defendant of a lease for one year upon the terms of the old lease, and the acceptance of monthly rental from defendant at the old rate. This case does not come within the ruling of Schilling v. Klein, 41 Ill. App. 209, and kindred cases.

The judgment of the Municipal Court is right, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    Hydraulic Engineering Works, Defendant in Error, v. George B. Williams, Plaintiff in Error.
    Gen. No. 21,173.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Contracts, § 377

      —when evidence of payment to another inadmissible. In an action to recover for repairing an automobile, where the only question involved is the fact of a contractual relation between plaintiff and defendant, evidence is incompetent that defendant had paid the contract price for such repairs to a person with whom defendant had a contract therefor, and that such third person had turned the work over to plaintiff after partially completing it.

      Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by the Hydraulic Engineering Works, a corporation, plaintiff, against George B. Williams, defendant, in the Municipal Court of Chicago, to recover for repairing an automobile belonging to defendant.
    To reverse a judgment for plaintiff for $160.93, defendant prosecutes this writ of error.
    Defendant delivered his automobile to one Richter for repair. Richter had theretofore repaired the same automobile for defendant. The evidence showed that Richter did some work on the automobile and then took it to the shop of plaintiff and asked him to finish the job, which it did. Defendant had an agreement with Richter to do the repair work on the automobile for $200. Defendant offered to prove that he had paid Richter the contract price for making the repairs.
    Harvey T. Fletcher and Bunge & Harbour, for plaintiff in error.
    McArdle & McArdle, for defendant in error.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

2. Contracts, § 385 —when evidence insufficient to show contractual relation. In an action to recover for repairing an automobile, where the only question at issue was the privity of contract between plaintiff and defendant, judgment for plaintiff held not sustained by the evidence.


text:
    Ralph C. Kent, Appellant, v. Edward J. Thelin, Appellee.
    Gen. No. 21,190.
    1. Bills and notes, § 372

      —what does not constitute variance. Where a special count in a declaration declared on a promissory note, alleging plaintiff to be a holder for value before maturity and where the evidence showed that plaintiff took the note after maturity from an indorser who held it before maturity, held no variance, for the reason that a remote indorsee of a promissory note may declare on the note as the immediate indorsee of the first or any intermediate indorser, in which case plaintiff’s title relates back to the title of such indorser.
    2. Pleading, § 451

      —necessity that defense of variance he raised in trial court. The defense of variance is not available for the first time on review, for the reason that if such defense is not made in the trial court it is cured by verdict.
    3. Pleading, § 451

      —necessity that objection on grounds of variance he specific. A general objection of variance is not sufficient, and in order to make the defense available the objection must be sufficiently specific so that, if well taken, the pleading may be amended so as to conform to the proof, for the reason that such objection is one of procedure and does not go to the merits.
    4. Bills and notes, § 370

      —admissibility of note under common counts. A promissory note is competent evidence under a declaration declaring upon it under the common counts.
    4. Bills and notes, § 420

      —when evidence of transactions between mother and payee inadmissible. Evidence of transactions between the maker and payee of a promissory note which relates
      to the inception of the note is incompetent as evidence in defense where the action is brought by an innocent holder for value before maturity.
    5. Bills and notes, § 369

      —when failure of consideration may not he shown under general issue. In an action to recover on a promissory note where one count declared on the note under the common counts and where defendant interposed a plea of the general issue generally to 'the whole declaration, the admission of evidence tending to prove want of consideration held erroneous, for the reason that such pleas did not raise the defense relied on.
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and remanded.
    Opinion filed December 6, 1915.
    Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    Robert F. Pettibone, for appellee.

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

   Mr. Justice Holdom

delivered the opinion of the court.

This cause was tried before the court with a jury and resulted in a verdict and judgment for defendant, and plaintiff appeals.

The action is on a promissory note for $1,250, made by defendant, payable four months after its date, to the order of Charles Lyle Barnes. Barnes indorsed it to Agnes Gahan Barnes, who indorsed it to the Ken-wood Trust & Savings Bank, before its maturity, who indorsed it to plaintiff. The bank was a purchaser for value before maturity, and through plaintiff, as notary public, protested the note for nonpayment. The declaration consisted of three counts, specially declaring on the note, and the common counts, to which defendant pleaded the general issue, supported by an affidavit of merits reciting want of consideration as the defense.

It is now urged in support of the judgment that there is a variance between the allegations of the special counts and the proof, the averment being that plaintiff was the holder of the note for value before maturity, and the proof showing that plaintiff is a holder of the note after maturity.

We cannot agree with defendant’s contention that there is such variance. The title of plaintiff related back to that of the bank, and it is not disputed but that the bank was a holder for value before maturity. It is also the law that a remote indorsee may declare on the note in his pleading, as the immediate indorsee of the first or any intermediate indorser. Measured by this rule, the averment that plaintiff was holder before maturity was not inaccurate in point of law. Puterbaugh’s Pleading and Practice, 104, and cases cited in footnote.

Moreover, the objection of variance cannot be availed of in a court of review if there made for the first time. It must be made specifically in the trial court, otherwise it is cured by verdict. A general objection of variance would not fulfil the legal requirement. It must be so specific that, if well taken, the pleading may be amended to conform to the proof, as such objection is one of procedure and does not affect the merits. Richelieu Hotel Co. v. International Military Encampment Co., 140 Ill. 248.

In Lake Shore & M. S. Ry. Co. v. Ward, 135 Ill. 511, the court illustrated the rule as to variance by the following language: “It was incumbent upon the defendant to indicate and point out in what the variance consisted, so as to enable the court to pass upon the question intelligently, and also to enable the plaintiff to so amend her pleading as to make it conform to the evidence, and thus avoid defeat upon a point in no way involving the merits of her claim.” Again, the note was admissible in evidence under the common counts, and the plea of general issue to the whole declaration did not raise the defense injected by the evidence given on the part of the defendant against the objection of plaintiff. It was error to overrule the objections interposed. Evidence as to defendant’s dealings with Barnes, arising out of transactions in which the note was given, was not admissible as a defense to such note in the hands of an innocent holder for value before maturity.

The judgment of the Circuit Court is reversed, and as the cause was tried with a jury it is remanded for a new trial.

Reversed and remanded.


text:
    Franco-American Hygienic Company, Plaintiff in Error, v. Edward J. Chladek, Defendant in Error.
    Gen. No. 21,213.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John C. Work, Judge, presiding.
    Heard in this court at the March term, 1915.
    Reversed and judgment here.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by the Franco-American Hygienic Company, a corporation, plaintiff, against Edward J. Chladek, defendant, in the Municipal Court of Chicago, to recover on a guaranty by defendant of the debt of another. To reverse a judgment for defendant, plaintiff prosecutes this writ of error.
    On October 9, 1911, defendant signed and delivered to plaintiff the following guaranty contract:
    “In consideration of year entrusting to
    Name Jessie B. Gordon
    Address Lincoln, Ill.
    from time to time while in your employ, such goods and sample cases as you may deem it advisable for her to use in her capacity as.Traveler for you.
    I hereby guarantee that she will return any samples and goods furnished her within thirty days after written demand has been mailed to her above address. Should she fail to return such goods and samples furnished her within thirty days after demand having been made, or having done so, if there still remains a balance on her account unpaid, I agree to pay for same, not to exceed the sum of Fifty Dollars.
    For the purpose of securing this credit for her, I state that I am worth One Thousand Dollars over and above all debts, liabilities and exemptions.
    It is understood that a series of transactions is contemplated and this guaranty is for the purpose of covering any balance that is or may become due after demand for settlement has been made.
    This surety shall remain in full force and effect until withdrawal of same shall be received and duly acknowledged in writing by the Franeo-American Hygienic Company.
    (Signed) Edward J. Chladek. ’ ’
    After receipt of the foregoing guaranty, plaintiff employed Jessie B. Gordon, therein named, as traveling saleswoman and intrusted to her certain of its goods. On the severing of the relations between plaintiff and Miss Gordon there appears from a statement rendered to her by plaintiff to be due plaintiff the sum of $71.14, which sum neither Miss Gordon nor defendant paid. The following facts were agreed upon at the trial:
    - That defendant signed the guaranty pleaded and turned it over to Miss Jessie B. Gordon, therein named, and that said Gordon owes plaintiff $71.14. The defense was that the guaranty was given October 9,1911; that defendant heard nothing about it until 1913; that he received no consideration; that defendant received notice neither of the acceptance of guaranty nor of default by Gordon; that no demand was made on defendant to comply with the guaranty, and that time in which to pay was extended to Gordon.
    Homer K. Galpin, for plaintiff in error.
    No appearance for defendant in error.

      Abstract of the Decision.
    1. Contracts, § 86

      —what constitutes sufficient consideration to support contract. In an action to recover on a contract whereby defendant guarantied the return of goods supplied to a third person for use by such person as samples while employed by plaintiff, the employment of such third person by plaintiff is a sufficient consideration to support the contract sued upon.
    2. Limitation of action, § 21

      —when action on contract of guaranty barred. An action to recover on a contract, of guaranty containing" no limit of time may be maintained at any time before such action is barred by the statute of limitations affecting such contracts.
    3. Guaranty, § 6

      —when notice of acceptance of guaranty unnecessary. In an action to recover on a contract of guaranty, unlimited as to time, but limited as to amount, proof of notice to guarantor of the acceptance of the undertaking is not necessary.
    4. Guaranty, § 33

      —what facts must he specially pleaded. In an action to recover upon a collateral, continuing guaranty if defendant in defense relies on the fact that no suit was brought against the principal to recover the debt, and that no notice of the default in payment was given to defendant, such facts must be specially pleaded, for the reason that in such case proof of the indebtedness and of the guaranty entitles plaintiff prima facie to recover.
    5. Guaranty, § 27

      —when failure to give notice of default of principal available as defense. In an action to recover on a guaranty, the fact of failure of plaintiff to notify defendant of the default of principal can be availed of as a defense only in so far as defendant can show damage as a result of such want of notice.

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

   Mr. Justice Holdom

delivered the opinion of the court.


text:
    The Standard Brewery, Defendant in Error, v. John Lynch, Plaintiff in Error.
    Gen. No. 21,225.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh J. Kearns, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.

      Statement of the Case.
    Action by the Standard Brewery, a corporation, plaintiff, against John Lynch, defendant, in the Municipal Court of Chicago, to recover on a contract to purchase beer and to rent saloon fixtures. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    The defendant entered into a contract with plaintiff, dated the 27th of March, 1908, agreeing to purchase and receive from the brewery, and from no other person, firm or corporation, all the domestic draft and bottled beer which might be kept for sale or sold by him, his agent or his servant, at, in or about his saloon at 2012 Dearborn street, Chicago, from the 1st of May, 1908, to the 30th of April, 1911, except some Budweiser beer, and the brewery agreed to furnish during that time all the beer necessary to supply defendant’s needs. Plaintiff also agreed to supply defendant with certain saloon furniture and fixtures.
    The contract provided that in case of breach by defendant, he should pay to plaintiff the sum of two hundred dollars “as and for its liquidated damages for and on account of loss of profits on the sale of beer by reason of such breach of contract,” and in addition pay the sum of two hundred dollars for the reasonable rental for the use of furniture and fixtures furnished under the contract and as reimbursement for expenses incurred in equipping the premises for the conduct of .defendant’s business.
    The contract further provided that if defendant, his heirs, etc., have domestic beer of other manufacturers than plaintiff upon his saloon premises, such fact shall be deemed and taken to be a breach of this contract and shall entitle the plaintiff to the damages specified.
    Defendant in his affidavit of defense denied that he executed the contract, or that he ever had any dealings with plaintiff, and further denied that there was at any time any domestic beer of the manufacture of any person, firm or corporation other than plaintiff sold at the saloon or kept on the saloon premises, except Budweiser beer; averred that a Mrs. Jahn owned and ran the saloon, and that he was only her barkeeper and never had any financial interest in the saloon except to draw his wages.
    Abstract of the Decision.
    1. Appeal and error, § 1411

      —when verdict of jury will not "be disturbed. Where the evidence is conflicting the verdict of a jury will not be disturbed although the jury may have believed some witnesses and discredited others, especially where the witnesses discredited were contradicted by admitted facts, for the reason that in such ease it is the province of the jury to find the facts, and having the witnesses before them and observing them on the stand, together with their candor lor want of it, they may better decide to which witnesses credit should be given.
    2. Witnesses, § 275

      —when jury may discredit testimony of witness. Where the testimony of a witness is contradicted by admitted facts, it is proper for the jury to regard such admitted evidential facts as controlling, and to discredit the testimony of the witness in so far as in conflict with such facts, as where in an action to recover on a contract whereby defendant agreed to purchase beer of plaintiff for use in a named saloon, defendant first denied ownership of the saloon and later admitted that both the license and “beer book” thereof were in his name.
    3. Damages, § 88

      —when contract provides for liquidated damages and not for penalty. In an action to recover on a contract whereby defendant, a saloon-keeper, agreed to sell no domestic beer except that manufactured by defendant, which contract provided that in ease of breach by defendant a sum of money recited therein to be liquidated damages should be paid to plaintiff, held that the damages provided were liquidated damages and not a penalty, there being no evidence of fraud or circumvention, and the amount, not appearing to be unconscionable or disproportionate to the damages likely to result from the breach.

      Oscar E. Leinen, for plaintiff in error.
    Baker & Holder, for defendant in error; G. Raymond Collins, of counsel.

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

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

   Mr. Justice Holdom

delivered the opinion of the court.

4. Damages, § 66 —measure of damages for breach of contract to buy beer and rent saloon fixtures. In an action on a contract which provided for liquidated damages in case of breach by defendant and also for a payment of rental for the use of saloon fixtures supplied to defendant by plaintiff, and as reimbursement for expenses incurred in installing such fixtures, a judgment for plaintiff held, not erroneous in that it represented the combined amount of such sums.


text:
    Scovill Manufacturing Company, Appellee, v. Ray Fulton Cassidy and Jacob Alter, Appellants.
    Gen. No. 21,251.
    1. Pleading, § 232

      —when allowance of amendment discretionary. A motion for leave to file an amended affidavit of merits is addressed to the sound discretion of the trial court, and the exercise of such discretion in denying the motion will not be reviewed by the Appellate Court, especially where no fact is alleged in the proposed amendment injecting any merit into the defense which would not be competent under the affidavit on file.
    2. Appeal and error, § 1033

      —when rules of trial court brought up on certificate of clerk under order of trial court. On a writ of error to review a judgment of the Municipal Court of Chicago, where the rules of such court are material to the issues and are not contained in the bill of exceptions, such rules are sufficiently made part of the record in the Appellate Court, so far as pertinent, when certified by the clerk under an order of a judge of the Municipal Court, such order being filed in the Appellate Court by leave of that court, although the better practice in such case is to include such rules in the bill of exceptions.
    3. Pleading, § 359

      —when omission of motion to strike harmless. Where the affidavits of meritorious defense in an action in the Municipal Court of Chicago do not state a defense to the action, and plaintiff does not make a motion to strike, such affidavits acquire no additional force from plaintiff’s failure to object to them, and he waives no right by not objecting.

      4. Guaranty, § 19

      —when change of name of creditor corporation not a release. In an action to recover on a contract whereby defendants guaranteed the account of a corporation, which during the continuance of the guaranty changed its name, and where part of the account sued for was contracted by the corporation under the changed name, the change of name neither added to nor detracted from the risk of the guaranty, for the reason that the guaranty contemplated the legal corporate entity, and the name was mere descriptio personae.

    5. Guaranty, § 19

      —when stipulation permitting change of name of creditor corporation deemed incorporated in guaranty. A contract of "guaranty whereby the account of a corporation is guaranteed must be construed as though parties had incorporated therein a stipulation that such corporation might change its name without detracting from, the force or validity of the guaranty, where it appears that such corporation by statute had power to change its name.
    6. Guaranty, §28

      —when guarantor estopped. Where guarantors of the debt of a corporation are also officers and stockholders thereof, and cause such corporation to change its name for the purpose of evading liability on their contract of guaranty, such guarantors are estopped to set up such change of name as a defense in an action against them to recover on the guaranty.
    7. Guaranty, § 28

      —when guarantor charged with Knowledge. Guarantors of the debt of a corporation who are also officers engaged in transacting the business of the corporation are charged with knowledge of the furnishing of the goods on which the debt guaranteed is based.
    8. Guaranty, § 6

      —when guarantor not entitled to notice of commencement of liability. Guarantors are not entitled as matter of law to notice either that their guaranty is accepted or that credit has been given to the principal on the faith of the guaranty.
    9. Guaranty, § 14

      —when continuing. In an action to recover on a contract of guaranty whereby defendants guaranteed the account of a corporation to the extent of a named sum, contract construed and held to be a continuing guaranty, without limitation except that of the extent of liability, and not terminated by the creditors contracting an indebtedness in excess of the amount guaranteed.
    10. Pleading, § 38

      —when strictly construed. Where there are two defendants in an action and one alleges matter in defense in which the other does not join, such pleading filed by one defendant alone must be strictly construed, and no intendment indulged not fairly inferable from the words of the pleading.

      11. Pleading, § 152

      —when affidavit of defense insufficient. An averment in an affidavit of defense to an action to recover on a contract of guaranty, that subsequently to the execution of the contract the guaranty sued upon was terminated by notice without stating the time when such notice was given, is too vague and indefinite to be an element of defense, there being a possibility that such averment applies to a date subsequent to those when the goods which were the basis of the debt guaranteed were furnished to the principal.
    12. Guaranty, § 12

      —what extent of liability under. In an action upon a continuing guaranty, where the extent of defendants’ liability is fixed by the contract at a named amount, plaintiff is entitled to judgment for the full amount for which defendants are liable, upon proof that the amount of the debt guaranteed is in excess of such limit.
    13. Guaranty, § 36

      —what effect of admission by guarantor. In an action to recover on a contract whereby defendants guaranteed the debt of a corporation, the admission of one of the defendants who was manager of the corporation whose debt was guaranteed is competent as to the amount due, and if not rebutted will be conclusive.
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Rehearing denied December 20, 1915.
    Blum, Wolfsohn & Blum, for appellants.
    Francis X. Busch, Alfred W. Craven and Elmer M. Liessmann, 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 Holdom

delivered the opinion of the court.

The parties to this appeal have thrice had their cause Before court and jury. On the first occasion a juror was withdrawn; on the second and third occasions verdicts in favor of plaintiff and against defendants for $5,000 each were rendered. A new trial was granted from the first verdict, and judgment entered on the second, and defendants appeal.

This is a first-class case in the Municipal Court and is to be adjudged within the terms of the statute and the rules of court governing procedure in cases of that class.

This action is founded on a contract in the nature of a guaranty, in which the defendants are the guarantors. It is in the following terms:

“Whereas, Canchester Incandescent Light & Heat Co.; located in Chicago, Ill., desire to have certain articles manufactured by the Scovili Manufacturing Company, a corporation duly organized and located in Waterbury, Conn., and for that purpose has given the Scovili Manufacturing Company a certain order for the manufacture of said. articles, and expect in future to give other orders for the manufacture of other articles,
Now, Therefore, the undersigned, in consideration that the Scovili Manufacturing Company will accept all such orders and will manufacture and deliver all such goods to the said Canchester Incandescent Light & Heat Co., as the same shall be required from time to time, do hereby become surety for the punctual payment to the said Scovili Manufacturing Company of all money which shall become due to the said Company by reason of the manufacture and delivery of goods which have been or shall hereafter be ordered by the said Canchester Incandescent Light & Heat Co., and if any default shall be made in such payment, or parts of payment, we do covenant and agree with the said Scovili Manufacturing Company to pay the said Company on demand of such sum or sums of money as shall be sufficient to make up such deficiency and fully satisfy the terms and conditions of any order or orders which have been or shall hereafter be given to the said Company by the said Canchester Incandescent Light & Heat Co., without requiring any notice of nonpayment or proof of demand being made, provided that the sum required to make up said deficiency shall not exceed five thousand dollars ($5,000).” It is signed by the defendants as of December 24, 1906.

Plaintiff in its affidavit, filed with its statement of claim, claims $5,000 for money due and owing under the conditions of the guaranty contract above referred to. Defendants each filed separate affidavits of meritorious defense. Each affidavit contains the following four separate items of defense:

“1. The Canchester Incandescent Light & Heat Co. is not indebted to the plaintiff in any sum whatsoever. If there is any indebtedness the same is due from the Canchester Light Co.
2. It is provided in the contract of guaranty, sued on herein, that this defendant shall not be liable thereon, if the indebtedness to the plaintiff exceeds the sum of .five thousand dollars ($5,000).
3. The plaintiff did not within a reasonable time notify this defendant that his guaranty was accepted and that credit had been given on the faith of it.
4. The contract of guaranty sued on herein was given only for the merchandise ordered by the Incandescent Light & Heat Co. from the plaintiff, at the time of the execution of said guaranty and the plaintiff has been put upon notice that this defendant would not be liable upon said guaranty for any merchandise ordered thereafter.”

The defendant, Bay Fulton Cassidy, added as a fifth defense the following:

“5. That subsequent to the execution of the said supposed contract of guaranty the said plaintiff was notified that said contract of guaranty was terminated and that the defendants would not be further liable upon such contract of guaranty. ’ ’

We will first dispose of the two questions of practice which defendants have raised:

First. After the rendering of the first verdict and the granting of a new trial, and before" the entering upon the trial resulting in the judgment appealed from, defendants asked leave to file an amended affidavit of merits, which the court denied. This motion was addressed to the sound judicial discretion of the court. Misch v. McAlpine, 78 Ill. 507; Himrod Coal Co. v. Clark, 197 Ill. 515. We are unable to say that in denying such leave the trial judge abused such discretion, and we therefore hold that the ruling of the court in that regard is without error. Moreover, from an examination of the proposed amended affidavit .found in defendants’ supplemental record, we are unable to discover any fact which would inject any merit into the defense which would not be admissible under the affidavits of merits then on file.

Second. After the perfecting of this appeal, plaintiff procured from a judge of the Municipal Court an order directing the clerk to certify the rules of the Municipal Court to this court, which order, by leave of this court, has been filed here, and defendants object. The rules of the Municipal Court certified by the trial judge, although not included in the bill of exceptions, we think are properly before us, so far as the rules so certified are pertinent to the decision of this case. This manner of bringing the rules of the trial court to the attention of a court of review, we think, falls within the suggestion appearing in Dahms v. Moore, 110 Ill. App. 223. While it is the better practice to have such rules included in the bill of exceptions, we are of the opinion that the method adopted is sufficient to make them a part of the record of the case.

Under rules 17 and 19 of the Municipal Court, the affidavits of the parties became the pleadings in the case. The proofs of both parties are circumscribed within the matters of claim and defense set forth in their respective affidavits. Measured by these rules, these affidavits did not set forth a meritorious defense to the claim of plaintiff as made by its affidavit. While plaintiff might have made a motion to strike the affidavits of defense from the case, yet it was not bound so to do, and it waived no right in not so doing. Neither did defendants’ affidavits acquire any additional force as a defense because of the failure of plaintiff to object to them. As they set forth no defense, they were harmless and in no way inimical to the claim of plaintiff.

Rule 19 provides that “every allegation of fact in any statement of claim * * * if not denied specifically or by necessary implication in the affidavit of defense filed in reply by the opposite party, shall be taken to be admitted * * * .” Weil v. Federal Life Ins. Co., 182 Ill. App. 322, and Hamill v. Watts, 180 Ill. 279, sustain the rule of the Municipal Court in this regard.

We will now pass upon the defenses set forth in the affidavits of defense seriatum.

The first item of defense does not deny the amount of the indebtedness, but avers that whatever is due is not due from the Canchester Incandescent Light & Heat Company, but from the Canchester Light Company. This raises the defense, which is one of law, whether the change of the corporate name terminated defendants’ liability under the contract. The record shows that the name of the Canchester Incandescent Light & Heat Company, whose account to the amount of $5,000 was guaranteed by the contract, was changed to the Canchester Light Company, as permitted by the statutes of this State, from which it held its charter.

Dupee v. Blake, 148 Ill. 453, is not pertinent to the facts of this case. In the Dupee case, supra, the guaranty was as to a firm composed of certain individuals. Another individual was afterwards taken into the firm, and it was held that the contract of guaranty was to be strictly construed and that the taking in of an additional partner or the retiring of one from the firm would extinguish the obligation after the change, unless from the terms of the instrument it appeared that the parties intended the guaranty to be a continuing one without reference to the composition of the firm.

In the case at bar a corporation and not a firm was guaranteed, and the change of the name of the corporation neither added to nor detracted from the risk under the guaranty, for, as held in Rouss v. King, 74 S. C. 251, the guaranty contemplated the legal entity regardless of the name, and the name was merely descriptio personae.

Defendants’ contract must be construed in the light of the law as it existed at the time of its execution. A corporation had, at the time the contract in controversy was executed, a right under the statute to change its name as well as the objects for which it was incorporated. The parties must be held to have entered into the contract with knowledge of the law, and the contract must therefore be read and construed as if defendants had stipulated in it that the corporation might change its name without detracting from its force or validity. As a matter of fact, the defendant Cassidy signed the certificate of change of name as secretary of the company, and consequently was not only cognizant of the change, but a party to it. Thereafter she continued to be a stockholder, a director, and secretary and treasurer of the corporation; and the defendant Alter continued to be a stockholder, a director, and vice-president, and Canchester continued as manager thereof. If it could be contended that these defendants resorted to the subterfuge of changing the name of the corporation as a means of escaping liability upon their contract of guaranty, we should hold that they were estopped by their acts from avoiding their liability in such a way. Springfield Lighting Co. v. Hobart, 98 Mo. App. 227.

As officers of the Canchester Company, defendants are chargeable with knowledge that the goods furnished by plaintiff in faith of their guaranty were received by the company. Furthermore, the company continued to receive such goods from plaintiff without any intimation from defendants, until after this claim accrued, that they disavowed their liability as guarantors under the contract in suit.

We think Chicago Title & Trust Co. v. Zinser, 264 Ill. 32, is authority for the proposition that one entering into an agreement with a corporation does so with knowledge of the statute which allows corporations to, among other things, change their name or the object for which the corporation was originally formed. As decided in Springfield Lighting Co. v. Hobart, supra, one guarantying the account of a corporation does so with knowledge of the law that the corporation may change its name or purposes, and this provision of the law thereby becomes a part of the contract of guaranty, as much so as if the guarantors had stipulated that the changes or alterations might be made.

The second item is false in fact. The contract did not provide that defendants should not be liable thereon if'the indebtedness of the plaintiff exceeded the sum of $5,000, as therein stated, but on the contrary the contract limited the liability of defendants to the sum of $5,000.

The third item of defense is vicious in point of law because, as matter of law, it was not necessary for plaintiff to notify defendants that it had accepted the guaranty or that in faith of it plaintiff had extended credit.

The fourth item of defense, that the guaranty was only for merchandise ordered by the Incandescent Light & Heat Company from plaintiff at the time of the execution of the guaranty, finds no support in the terms of the guaranty itself. The preamble of this document recited that the Canchester Incandescent Light & Heat Company desire to have certain articles manufactured by plaintiff and for that purpose has given the Scoville Manufacturing Company a certain order for the manufacture of said articles, and expects in the future to give other orders for the manufacture of other articles. The condition and consideration for the guaranty as recited in the contract is that plaintiff "will accept all such orders and will manufacture and deliver all such goods to the said Canchester Incandescent Light & Heat Company as the same shall be required from time to time, do hereby become surety for the punctual payment to the Scoville Manufacturing Company of all money which shall become due to the said Company by reason of the manufacture and delivery of goods which have been or shall hereafter be ordered by the said Canchester Incandescent Light & Heat Company.” This is a continuing guaranty, without limit as to time of credit to be extended, the only limitation being that of the liability of the defendants.

The fifth item of defense interposed by the defendant Cassidy is, to say the least, so indefinite as to the time when and by whom plaintiff was notified that the contract of guaranty was terminated, as to be without force as a defense. As the affidavit is the pleading of defendant Cassidy, it must be strictly construed, and no intendment indulged which is not fairly inferable from the words used. The averment that subsequent to the execution of the contract notice was given without specifying any date could as well apply to a date subsequent to the extension of the credit as before that time. Such averment is altogether too vague and indefinite to constitute even an element of defense.

Plaintiff proved the extension of credit to the corporation within the terms of the guaranty contract in suit, and that the amount due and unpaid thereon was largely in excess of the sum of $5,000. It was therefore entitled to a judgment for the maximum amount denominated in the contract. The admission of Canchester as to the amount due from the corporation, he being its manager, was competent and, without countervailing proof, is conclusive.

Finding no reversible error in this record, the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Frank Morse Smith and W. H. Gelshenen, trading as N. J. Baker & Brother, Appellants, v. Ernest H. Kastor et al., Appellees.
    Gen. No. 21,259.
    1. Pleading, § 200

      —when demurrer admits provisions of foreign law. In a bill to enforce a cause of action predicated by the averments of the bill on the statutory and constitutional provisions of a foreign State, such provisions are before the court as facts, and a demurrer to the bill admits the verity of the provisions.
    2. Corporations, § 226

      —when enforcement of liability in creditors. Under a statute providing that “any creditor of the corporation may institute joint or several actions against any of its stockholders that have not wholly paid the capital stock held by him,” such liability to be “determined by the amount unpaid upon the stock or shares owned by him at the time such action is commenced,” held that the right of action if any, under such statute to enforce a claimed liability, grounded on the alleged fact, that defendants unlawfully acquired from the corporation certain shares of its stock, is in the creditors and not in the trustee in bankruptcy of the corporation, the statute not giving such right of action to the corporation.
    3. Corporations, § 192

      —when stockholder’s liability founded on statute. An action to enforce a stockholder’s liability on his subscription is based upon statute, stock subscriptions having been unknown to the common law.
    4. Corporations, § 522

      —when creditor’s right of action does not pass to trustee of bankrupt corporation. A right of action conferred by statute upon the creditors of a corporation and not on the corporation does not pass to the trustee in bankruptcy of the corporation.
    5. Corporations, § 226

      —when rights of creditors of bankrupt foreign corporation do not pass to trustee. Where the statutes of the State under which a bankrupt foreign corporation is organized give to creditors the right of action to enforce payment for stock, the fact that the corporation was authorized to do business in this State does not operate to give such right of action to the trustee in bankruptcy.
    6. Corporations, §724

      —when liability of stockholder in foreign corporation not enforceable. No action is maintainable in the courts of this State by creditors against resident stockholders of a bankrupt foreign corporation to enforce payment for stock, where the right of action sought to be maintained is predicated on the statutes of the foreign State until the courts of such foreign State, in an appropriate proceeding, shall have determined the relation of creditors, stockholders and corporation to each other as well as the proportionate share of the indebtedness to be borne by each solvent stockholder.
    7. Parties, § 31

      —when substitution unauthorised. In a bill brought in this State to enforce payment for stock in a bankrupt foreign corporation, the allowance of a petition to substitute the trustee in bankruptcy as complainant and to eliminate the original complainants as such, held erroneous where the statutes of such foreign State confer such right of action on creditors and not on the corporation.
    8. Statutes, § 7

      —when remedy under foreign statute not enforceable. No special remedy provided by the legislation of a foreign State is enforceable in the courts of this State under the principle of comity.
    9. Corporations, § 229

      —what parties essential to suit by creditors of foreign corporation. Where, in a bill by creditors of a bankrupt foreign corporation to enforce payment for stock, it is nowhere alleged that the cause of action sought to be enforced is contractual, but where on the contrary such cause of action is admittedly statutory, the corporation and stockholders are necessary parties to the action, a determination of their liabilities and - relations to each other being essential.
    10. Equity, § 213

      —when demurrer to bill properly sustained. Where a bill stated no fact giving the court jurisdiction to decree relief, a demurrer thereto held properly sustained.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Robert J. Frank, for appellants.
    Harris F. Williams and Charles Scribner Eaton, for appellees.

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

   Mr. Justice Holdom

delivered the opinion of the court.

The cause as above entitled also involves an appeal in No. 21,258 by Edwin D. Buell, trustee in bankruptcy of U. S. Kellastone Company (post, p. 464), a bankrupt, substituted, on his own motion and against the protest of complainants, as sole complainant in the cause. Both appeals will rest for their decision upon this opinion.

Complainants filed their bill as creditors of the U. S. Kellastone Company, a bankrupt, in their own behalf and in behalf of such other creditors of the bankrupt as might wish to join as parties complainant against the defendants, whereby they sought to enforce a liability alleged against defendants as owners of 3,000 shares of the stock of the IT. S. Kellastone Company. It is averred that defendants obtained the stock, not as original subscribers thereto, but from the Kellastone Company, in whose treasury it was at the time, without paying any adequate or lawful consideration therefor. The method or manner of the dealings by which defendants became possessed of the stock not being material to our decision is omitted from this recitation.

Defendants interposed general demurrers to the bill. Before disposing of the demurrers, Buell, as trustee, filed his petition to be substituted as sole complainant. The court sustained the demurrers and substituted Buell, trustee, ás sole complainant, and the bill was then amended by eliminating complainants and substituting Buell, trustee, in their stead. To the bill as thus amended, defendants filed general and special demurrers. These demurrers were sustained. Thereupon the original and the substituted complainants elected to stand by the bill as originally filed and as amended, whereupon the court dismissed the bill for want of equity. We shall rest our decision upon two questions :

First. Was Buell, the trustee in bankruptcy of the U. S. Kellastone Company, entitled to be substituted as complainant, thereby elimintaing from the case the complainants who brought the bill?

Second. Does the bill, by either the original complainants or the substituted complainant, disclose any facts which, being confessedly true, call for the relief prayed in a court of equity?

It is essential to bear in mind that the U. S. Kellastone Company is a corporation existing in virtue of the laws of the State of Oklahoma and that the claims by the parties must be admeasured in this cause within such laws. In fact, the right to relief is predicated, by the averments of the bill, upon section 1263 of article III, ch. 15 of the 1910 Revised Laws of Oklahoma, and of section 39, article IX of the Oklahoma Constitution. These sections of the statutes and Constitution of Oklahoma are before us as facts, and as the demurrers in law admit their verity, we shall so treat them.

First. The claim sought to be enforced by the bill against defendants is not a liability against them as stock subscribers, but is to enforce a claimed liability grounded on the alleged fact that defendants unlawfully acquired from the corporation 3,000 shares of its stock. Section 1263 of the Oklahoma statutes set out in the bill, provides, inter alia, that * * * any creditor of the corporation may institute joint or several actions against any of its stockholders that have not wholly paid the capital stock held by him * * * . The liability of each stockholder is determined by the amount unpaid upon the stock or shares owned by him at the time such action is commenced, and such liability is not released by any subsequent transfer of stock. * * * This legislation was enacted in virtue of section 29 of the Oklahoma Constitution above cited.

In construing a similar statute of New York, the Circuit Court of Appeals said In re Jassoy Co, 178 Fed. 515: “The bankrupt being a'New York corporation, the right to levy assessment or to take other action to collect from its stockholders must be found in the statutes of this State.” The New York statute referred to is not in its essence unlike that of Oklahoma. In commenting on the New York statutes the court said: “These sections give to the corporation itself no claim and no right of action against stockholders for the amount unpaid on stock held by them,” —meaning the stockholders. The court further said: “There can be no doubt that the appointment of the receiver did not vest in him a right which was personal to the creditors.” The doctrine of the Jassoy Co. case, supra, is sustained by ample authority and is controlling of the case at bar. The right of action against the defendants, if any exists, is in the creditors of the U. S. Kellastone Company and not in its trustee in bankruptcy.

Bell v. Farwell, 176 Ill. 489, holds to the same doctrine. No common-law right is involved, as stock subscriptions were unknown to the common law. The Supreme Court of Oklahoma has advanced the same logic and reasoning in deciding between the rights of creditors and those of a trustee in bankruptcy, in West v. Bank of Lahoma, 16 Okla. 508.

The fact that the Kellastone Company was authorized to transact business in this State, and did so, does not change the situation or operate to giive rights to the trustee in bankruptcy which the law of Oklahoma gives exclusively to creditors. Mead v. Davies, 84 Ill. App. 558.

While it was error to substitute Buell, trustee, as complainant in the bill and to eliminate therefrom the creditor complainants, yet the ultimate conclusion at which we have arrived on the whole record is in no wise thereby affected.

Second. The stockholders’ liability sought to be enforced by the bill in this case does not arise through a subscription to the stock of the Kellastone Company, but is a stock owners’ liability, claimed by the bill to be enforceable under the Constitution and the statutes of the State of Oklahoma.

It is well settled that an action cannot be maintained in the courts of this State against a resident stockholder of a foreign corporation upon a liability predicated upon the statutes of the State granting the charter; such liability must be determined by the law of the State which gave it its corporate vitality. Tuttle v. National Bank of Republic, 161 Ill. 497; Mandel v. Swan Land & Cattle Co., 154 Ill. 177; Hayward v. Sencenbaugh, 141 Ill. App. 395.

Neither will a special remedy provided by legislation in a foreign State be enforced in this State upon the principle of comity.

A bill to enforce a liability such as that claimed against defendants cannot be enforced in the courts of this State until, by appropriate proceeding in the Oklahoma courts, the relations of the creditors, stockholders and corporation to each other have been determined and the proportionate share of the indebtedness to be borne by each solvent stockholder has been ascertained. The liability of the stockholder defendants is, by no averment of the bill, alleged to be contractual, but, if it exists, is admittedly a statutory liability, and under the statutes of Oklahoma that remedy is vested, not in the corporation, but in any creditor. In "such an action the corporation and its stockholders are necessary parties, because it is essential that their relations to each other and their liability shall be established.

Edwards v. Schillinger, 245 Ill. 231, and cases of like import, cited by appellants, are not in point in the case at bar, for the reason that those cases proceeded against stockholders to enforce payment of their liability for unpaid stock subscription, and rest for the jurisdiction of the court upon an entirely different basis to that of the case at bar. Here the Kellastone Company could not enforce any claim against the stockholder defendants by reason of their dealings in acquiring the stock from the company. That right, if it exists, is in the creditors, under the Oklahoma statutes.

As we have concluded that the bill neither as orig- , inally filed nor as amended by the interpolation of Buell, trustee, as complainant, states any fact of which the Circuit Court had jurisdiction to decree any relief, the bill, both in its original and amended form, is obnoxious to the demurrers interposed, and therefore the decree of the Circuit Court is affirmed.

Affirmed.


text:
    Edwin D. Buell, Trustee, Appellant, v. Ernest H. Kastor et al., Appellees.
    Gen. No. 21,258.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in this court at the March term, 1915.
    Affirmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Bill by Edwin D. Buell, as trustee in bankruptcy of the United States Kellastone Company, a corporation, complainant, against Ernest H. Kastor, Bichard H. Kastor, Aaron Bodenweiser and Frederick W. McKinney, defendants, in the Circuit Court of Cook county. Decree sustaining a demurrer and dismissing the bill affirmed on the authority of Smith v. Kastor, No. 21,259, ante, p. 458.
    Silber, Isaacs, Silber & Woley, for appellant; Clarence J. Silber, of counsel.
    Harris F. Williams and Charles Scribner Eaton, for appellees.
   Mr. Justice Holdom

delivered the opinion of the court.


text:
    William H. Brown & Company, Defendant in Error, v. H. F. Hisgen, Plaintiff in Error.
    Gen. No. 21,475.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 26

      —what omissions render statement msufficient. On a writ of error to review a judgment of the Municipal Court of Chicago, a document certified by a judge of that court to be a “Statement of facts appearing upon the trial * * * and all questions of law involved * * * and the decisions of the court upon all such questions of law,” held neither “a correct statement of the facts appearing on the trial” nor “a correct stenographic report of the trial,” within the meaning of the Municipal Court Act, sec. 23, cl. 6 (J. & A. ¶ 3335), where it appears that such statement merely contains the testimony of witnesses in narrative form without a statement of the questions of law involved or the decisions of the court thereon, and where it does not appear that the evidence recited was all the evidence heard or proffered at the trial.
    2. Municipal Court of Chicago, §26

      —when insufficient statement stricken. On a writ of error to review a judgment of the Municipal Court of Chicago, where a document purporting to be a “Statement of facts appearing upon the trial” does not comply with the provisions of the Municipal Court Act, sec. 23, cl. 6 (J. & A. ¶ 3335), requiring to authorize such review that the trial judge sign and place on file either “a correct statement of the facts appearing on the trial,” or “a correct stenographic report of the trial,” a motion by appellee to strike will be allowed by the Appellate Court, for the reason that such a document presents nothing for review.

      Error to the Municipal Court of Chicago; the Hon. Joseph P. Raffebtt, Judge, presiding.
    Heard in this court at the October term, 1915.
    Alarmed.
    Opinion filed December 6, 1915.
    Statement of the Case.
    Action by William E. Brown & Company, a corporation, plaintiff, against H. F. Hisgen, defendant, in the Municipal Court of Chicago. To reverse a judgment for plaintiff, defendant prosecutes this writ of error.
    Victor A. G. Murrell, for plaintiff in error.
    Litzinger, McGurn & Reid, for defendant in error.

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

   Mr. Justice Holdom

delivered the opinion of the court.


author: Mr. Presiding Justice Scanlan

text:
    Bernhard Weinstock, Appellee, v. Harry Manaster and Herman M. Lipman, Appeal of Herman M. Lipman, Appellant.
    Gen. No. 19,791.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed December 8, 1915.
    Statement of the Case.
    Action by Bernhard Weinstock, plaintiff, against Harry Manaster and Herman M. Lipman, defendants, in the Circuit Court of Cook county, to recover for the alleged negligence of defendants in excavating upon land adjoining that of plaintiff, and thereby causing damage to plaintiff’s building. From a judgment for plaintiff on a verdict of the jury for $675 against defendant Lipman, defendant Lipman appeals.
    Defendant Manaster, who was the owner of a lot adjoining a building owned by plaintiff, engaged defendant Lipman to construct a building on his lot. The latter made an excavation on the lot for foundation and basement purposes. The plaintiff claimed that defendant Lipman did the excavating in a negligent and unskilful manner and thereby caused an injury to his building.
    The court, at the instance of the plaintiff, gave to the jury the following instruction:

      Abstract of the Decision.
    Negligence, § 221

      —when instruction ignoring negligence of plaintiff improper. In an action to recover for damages caused to plaintiff’s building by negligent excavation by defendant, an instruction, based on the theory that the excavation was made wholly on land adjoining that of plaintiff, which directs that in case the jury find that defendant failed to use reasonable and ordinary skill in making the excavation complained of they- shall find for plaintiff, held erroneous, where there is evidence tending to show that but for such failure on the part of plaintiff such injury would not have occurred, in that such instruction entirely withdraws from the eonsideration of the jury the questions whether plaintiff exercised ordinary care to protect his building, and whether such failure contributed proximately to the injury sought to be recovered for.

      “The court instructs the jury, as a matter of law, that the owner of land has a right to have the soil of his premises sustained by the lateral support of the natural soil of the adjoining land; and that while this right does not extend to the support of any additional weight which the owner of the soil may place upon it, such as a building, still the law is that the adjoining landowner is making excavations on his land must do so in a reasonably careful and skilful manner, so as to avoid doing any unnecessary injury to the building; and in this case, if you find from the preponderance of the evidence that the defendants made an excavation wholly within the lot owned by the defendant Manaster, and that in making such excavations they failed to use reasonable and ordinary care or skill, as charged in the declaration, and that by reason of such failure of the defendants to use such reasonable care and skill, the building of the plaintiff was damaged, then your verdict should be for the plaintiff.”
    Louis Ziv, John C. King and James D. Power, for appellant.
    Max Luster, for appellee; J. Ambrose Gearon, of counsel.

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.


text:
    Minnie C. Painter, Appellant, v. Howard Durham, Appellee.
    Gen. No. 20,964.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed December 8, 1915.
    Rehearing denied December 20, 1915.
    Statement of the Case.
    Action by Minnie C. Painter, plaintiff, against Howard Durham, defendant, in the Municipal Court of Chicago, to recover on a contract for services. From a judgment for plaintiff for $4.26, plaintiff appeals.
    This was an action of the first class in the Municipal. Court of Chicago, brought by the appellant (hereinafter called the plaintiff) against the appellee (hereinafter called the defendant) to recover a balance of $955.26, and interest, alleged to be due the plaintiff for services as a “graduate professional nurse,” rendered to the defendant under an alleged contract. Plaintiff’s statement of claim, as amended, alleges, in substance, that she rendered services to certain members of the defendant’s family as a “graduate professional nurse,” for a period of eighty-one weeks, from March 16, 1908, to and including October 19, 1909 (except two weeks, from July 25, 1908, to August 10,1908), at an agreed rate of $25 per week, making a total of $2,025; that the defendant was entitled to credit for payments aggregating $1,069.74, leaving a balance due to plaintiff of $955.26, with interest. The defendant filed an affidavit of merits in which he denied the employment of the plaintiff for a longer period than seventy-nine weeks; denied any contract or agreement with the plaintiff to pay her at the, rate of $25 per week, or that he ever ratified any such alleged agreement; and averred that there was never any contract or agreement as to the rate of pay of the plaintiff; that she was entitled to payment only at a reasonable rate for the nature and kind of services performed; that plaintiff rendered services as a “graduate professional nurse” for twenty-six weeks only, and that for such service $25 per week is reasonable, making a total of $650; that for the remaining sixty-three weeks plaintiff rendered services only as a practical or untrained nurse, for which $8 per week is reasonable and ample compensation, making a total of $424; that plaintiff earned for her entire services to the defendant a sum not exceeding $1,074; that defendant has paid to plaintiff $1,069.74, leaving a balance of $4.26 due the plaintiff.
    The defendant testified as follows: “That on the 9th or 10th of May, 1909, Miss Painter rendered me a statement and asked for some money. I had been giving her money as she asked it during this time. The statement showed that I owed her at the rate of $25 a week a little over $1,000. I wrote Miss Painter a check for $300. I told her I had no idea she would charge me $25 a week for every week she had been with me, that I thought it was unfair, that I could not afford to pay it, that I could not afford to keep her at that rate and that if she was going to stay with me any longer she would have to reduce her bill and reduce her charge for the future. That is the payment appearing on statement of claim under date of May 11,1909. The Court: Q. What did she say when you told her she would have to reduce her bill? A. She said she didn’t see how she could do it, etc., but I told her I could not afford to keep her any longer at that rate. It was a pleasant friendly conversation and we left it that way, that I could not afford to pay it.” The defendant further testified that he never at any time during the period of employment told the plaintiff that he considered her as anything else than a professional nurse; that after the said conversation he permitted the plaintiff to continue in her work and nothing further was said or done in reference to her work or pay.
    Abstract of the Decision.
    1. Master and servant, § 81

      —when compensation for continued services presumed to be same as formerly. Where plaintiff performs services as “.a graduate professional nurse” for defendant for a period during which defendant without objection pays plaintiff at stated rate of compensation, and where after such period plaintiff continues to perform services and defendant continues to accept such services without giving notice of any change in such rate, the rate of compensation for such continued services is presumed to be the same as for those for which defendant paid, although such continued services may be slightly different and less exacting than formerly, provided that during such continued services plaintiff was expected at all times to hold herself in readiness to perform the same services as formerly, if required.
    2. Master and servant, § 81

      —when employee presumed to have assented to new contract. If after notice of a proposed change in the terms of an employment an employee continues in the service of an employer without objection, he is presumed to have assented to the new contract and that subsequent services were, rendered thereunder.
    3. Master and servant, § 84

      —when evidence insufficient to establish assent by employee to change in terms of employment. In an action to recover for services, where after an objection by the employer to the rate of compensation which had previously been paid to the employee and a request for a reduction in the rate charged the employee continued in the service of the employer, evidence examined and held insufficient to warrant an inference that after such objection and request the 'employee assented to a change in the terms of the employment;

      Alexander J. Innes, for appellant.
    Charles H. Wells, for appellee.

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

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

   Mr. Presiding Justice Scanlan

delivered the opinion of the court.

4. Appeal and error, § 1802 —when judgment reversed without remanding. Where a judgment must be reversed as being entered on a wrong theory of the law, and the amount due plaintiff appears with certainty from the record, judgment will be entered in the Appellate Court for the amount which plaintiff is entitled to recover, and the cause will not be remanded.