text:
    Harry Feigenbaum, Defendant in Error, v. Louis Dultz, Plaintiff in Error.
    Gen. No. 15,716.
    1. Contracts—effect of final certificate upon right to recover under building contract. A final certificate by the architect is not necessarily essential to the right to recover under the contract under whicV the work was done and the material furnished.
    2. Municipal Court—when judgment set aside. A judgment of the Municipal Court will be set aside on review if it is not supported by the evidence.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed October 5, 1911.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade, of counsel.
    Saltiel & Rossen, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This writ of error is brought by Louis Dultz to reverse a judgment of $202.55 and costs against him rendered by the Municipal Court sitting without a jury, in a case of the fourth class.

Dultz.was the owner of a building on West Taylor street in Chicago, which he wished remodeled and practically rebuilt. Feigenbaum, the plaintiff below and defendant in error here, as "carpenter contractor, raiser and mover of buildings, etc., ’’ contracted "to provide all the materials and perform all the work for the house moving and raising, carpenter’s work, including iron work and material, stone walks, railings, hardware, sliding doors, plumbing, gas fitting and sewer work, lathing and plastering, painting and glazing, sheet metal work, composition roofing, mosaic floor, electrical work, iron work, in and on the building numbered 785 West Taylor street, Chicago, Ill., as shown on the drawings or described in the specifications prepared by the architect, W. C. Goodman.”

The contract provided that the work should proceed "in a skillful and workmanlike manner in accordance with the plans and specifications;” that the sum to be paid therefor should be $1800, to be paid "only upon certificates of the architect.” It provides also, however, that the final payment shall be made thirty days after the completion of the work.

The contract contains the usual stipulations concerning the right of the owner to pay lien claims arising out of the work and charge the same to the contractor, and a clause insisted on by the plaintiff in error as material in this controversy, reading thus:

"No certificate given or payment made under this contract except the final certificate or final payment shall be conclusive evidence of the performance of this contract either wholly or in part, and no payment shall be construed to be an acceptance of defective work or improper materials.”

Feigenbaum, claiming that he had completed his work, and that he had not been able tó obtain settlement and final payment for it, brought suit. His demand was for $725.10. One hundred and forty-seven dollars of this amount he claimed was a balance of the $1800 provided for by the contract, which had not been paid; the balance of $578.10 he claimed for various items of extra work and materials not included in the specifications and contract.

The defendant Dultz gave notice of a claim of setoif of $886.95, resulting from an alleged failure of the plaintiff to complete the work provided for by the contract in a workmanlike manner; and in defending the suit, besides insisting on various items of damages specified in this notice of set-off, because of this alleged failure, contended that nothing could be recovered on the contract because no final certificate of the architect had been obtained; that only $118.90 was ever due for extras, and that the plaintiff had been, either directly or by payments made to his creditors, sub-contractors or employes, already overpaid to a considerable amount.

After hearing a great volume of evidence the court found that there was due on the original contract a balance of $100; for certain work on and in an “attic” which was not covered by the specifications, $275; for sewers as per agreement outside the contract, $75; and for various other extras, $113.90, aggregating as the sum due from the defendant to the plaintiff $563.90. It also found, however, that there was due from the plaintiff to the defendant on the claimed set-off, as damages for various things required by the contract but omitted or insufficiently performed, $219.04. Supplementing these findings the court made another, that there was also due to the defendant the sum of $142.31 for unpaid material used by the plaintiff in the building of the defendant, for which sum a judgment had been obtained in the Municipal Court against the defendant and the plaintiff jointly in favor of Isaac Zechman and Jennie C. Zechman, who were entitled to a mechanic’s lien on the premises involved.

Judgment was thereupon rendered against the defendant in favor of the plaintiff for the difference between $563.90 and $361.35 (the sum of the two amounts found due from the plaintiff to the defendant), being $202.55, as herein first stated. The defendant in error has not filed any brief in this court.

The plaintiff in error assails this judgment in the following respects. He maintains, first, that nothing-should be found due as a balance of the original contract, because it is admitted that no final certificate was ever issued by the architect nor was the work ever accepted by him as satisfactory. / We do not think there is anything in the contract which would prevent the recovery as a final payment of that which the court might find in this suit was properly due; but as in our view, as will hereinafter appear, the plaintiff has been already overpaid on the contract, this point need not concern us.

Another objection made to the finding and judgment is that they include $275 as payment for work outside the contract for attic, bath and sleeping rooms, constructed in a manner which violated the building ordinances of Chicago. Therefore it was and is the duty of the courts, he says, to refuse compensation for making them. A consideration of the evidence has failed to show us definitely how or why they were illegal. The conversations proven between the parties concerned in the building and the so-called admissions do not compel or warrant any such holding on account of the alleged illegality as would deprive the plaintiff of the payment the defendant contracted to make him for this work.

But the defendant, plaintiff in error, claims further that the payment so contracted for was $200, and that the court allowed $275. This is a question of fact, on which the evidence was conflicting, and after consideration we see no reason for setting aside the conclusion of the trial judge upon it.

Plaintiff in error, however, also attacks the allowance of $75 extra for sewers. We think the objection is well taken. The court below held with the defendant in ruling on the evidence offered concerning it, but apparently reversed that ruling in his finding. So far as appears from the evidence, the sewers for which this extra payment was allowed were included in the contract. x_z—^

Without expressly waiving the point that the allowances made to the plaintiff in error for omissions and bad work were insufficient, counsel decline to argue the matter in detail, and we shall not interfere with the finding of the court thereon. We therefore confirm that allowance of $219.04.

There was therefore, in our view, due at the time of the judgment to the plaintiff, less whatever payments had been made and less $219.04, the following sums:

$1800 for contract price,
275 for extra attic rooms,
113.90 for other extras,
a total of $2188.90.

Without consideration of the payments this would leave due to the plaintiff after the deduction of the $219.04 allowed on the set-off, $1969.86.

The remaining question for us therefore is, what amount the evidence shows had been paid by the defendant to or on account of the plaintiff and was properly chargeable to him. We have been forced to a laborious examination of the record in this regard, without the assistance of any suggestion from the defendant in error, and without a convenient tabulation or, so far as we have been able to see, a complete one from the plaintiff in error even. We have made such an examination, however, and are unable to arrive at any other conclusion than that the amount so proven to have been paid is $2090.80, according to the following schedule:

$250 cash on order- of Aug. 3, 1908.
210 pd. Wallich & Co. Aug. 4, 1908, (moving bldg.)
50 cash Aug. 15, 1908.
270 cash Aug. 19, 1908.
300 cash Aug. 26, 1908.
80 Paid Kappen Aug. 26, 1908 | For
45 Paid Kappen subsequently j iron work.
55 Paid Scher Aug. 28, 1908, electric material.
30 Paid Koversky Sept. 4, 1908, Roofing.
55 Cash Sept. 4, 1908.
58 Paid Chicago Plate Glass Co. Sept. 10, 1908.
98 Paid Friedley Voshardt Co. Sept. 10, 1908, metal ceilings.
14 Paid J. L. Smith Sept. 10, 1908, Tiles.
177 Paid Stein & Norantz Oct. 12,1908, Sheet metal work.
125 Paid Turansky at different times, Plastering.
23.80 paid Perlman, Hardware.
65.00 Paid Brockman & Crane, Painting.
185 Paid Goldsmith on Judgment of Dultz and Feigenbaum.
Total, $2090.80.

This is a larger amount than the plaintiff in error in his argument contends for, but while some of these items were certainly not expressly admitted, we. cannot see that the evidence is not sufficient, in the absence of particular specific contradiction, to establish them. Mr. Feigenbaum’s general denial of payments to exceed $1643 is not convincing against it.

We cannot avoid the conclusion, therefore, that, without reference to the judgment that day obtained by the Zechmans against Dultz and Feigenbaum, the court, instead of finding that anything was due from the defendant to the plaintiff, should have found that there was due from the plaintiff to the defendant on his set-off the difference between $2090.80 and $1969.86, or $120.94, and that the judgment instead of being for $202.55 in favor of the plaintiff, should have been for $120.94 in favor of the defendant. The judgment of the Municipal Court will therefore be reversed and judgment will be entered here in favor of the plaintiff in error against the defendant in error for $120.94.

Reversed and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Isaac Zechman et al., Defendants in Error, v. Harry Feigenbaum et al., Louis Dultz, Plaintiff in Error.
    Gen. No. 15,717.
    Appeals and errors—when evidence in another cause cannot be considered. Evidence adduced in another cause not contained in the transcript on file in the Appellate Court cannot be considered, unless the two causes have been consolidated, unless in some way preserved in the transcript under consideration.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 5, 1911.

      Winston, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade, of counsel.
    Jacob Diamond and James F. Hutchison, for defendants in error; Harry C. Diamond, of counsel.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

Beference to the opinion handed down herewith in cause 15716 in this court, Feigenbaum, defendant in error, vs. Dultz, plaintiff in error, will show the relation of this cause to that. (Ante, p. 360.) Under all the circumstances we should be embarrassed in disposing of this case were the judgment in correct form.

It is plain that the reversal of the judgment in 15716 requires also, to secure justice, the reversal of this judgment and a retrial of the cause under the changed conditions.

-But the cases have not been consolidated, and we are not at liberty to consider the evidence in 15716 as evidence in this case, simply because of a memorandum in the record that the court below announced that “by stipulation the evidence in the case of Feigenbaum vs. Dultz, 13188 in the Municipal Court of Chicago,” * * * “is to be considered as evidence in this case. ’ ’

Such a stipulation was probably sufficient to justify the trial judge in considering the evidence in that case in the decision of this one, but without consolidation of the records in this court, or stipulation even concerning the matter in this court, we can derive no information from the return to the writ of error in another case, upon which we could justify action in this case. Beflection will show how dangerous a precedent this would be, whatever moral certainty might exist in this particular case that the further evidence considered below was to be found in said other return.

As the record itself, therefore, in this case shows that evidence not contained in it was by stipulation considered below, we should feel ourselves obliged to affirm the judgment under our invariable rule but for the reason before suggested—that the judgment is incorrect in form.

The case was expressly brought under the Mechanic’s Lien Act. The 28th section of the Act of May 18, 1903, entitled “An Act to Revise the Law in Relation to Mechanics’ Liens,” regulates and controls the practice in these “Actions at Law against Owner and-Contractor.”

It was said in O’Brien vs. Gooding, 194 Ill. 466, that in said actions “Both the right to the lien and the method of enforcing it must be in strict' compliance with the terms of the statute.”

The statute says “All such judgments * * * shall recite the date from which the lien thereof attached. * * *”

The judgment in this cause does not recite any such ' date. We think the omission, under the circumstances of this case, at least, a sufficient reason for reversing the judgment of the Municipal Court and remanding the cause to that court.

Reversed and remanded.


text:
    O. J. Doggett et al., Appellees, v. H. N. Greene, Appellant.
    Gen. No. 15,755.
    1. Verdicts—when not disturbed. The Appellate Court is reluctant to set aside a verdict as against the weight of the evidence where two juries acting independently have found the same way.
    2. Evidence—propriety of receiving testimony given upon former trial. If upon a former trial a party called a witness, upon a subsequent trial such party may offer not only the direct but also the cross-examination of such witness.
    3. Evidence—when secondary competent. Proper foundation having been laid, secondary evidence of the contents of a letter containing the basis of the contract sued on is competent.

      4. Evidence—when conversation with deceased witness rendered competent. ‘ ‘ If counsel chooses to cross-examine, a witness as to facts which were not admissible in evidence, the other party has the right to examine him as to the evidence thus given. ’ ’
    5. Contracts—when question to be submitted to jury. If the terms of a contract are disputed the entire question as to the contract rights and obligations of the parties must be submitted to the jury.
    Appeal from the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    George A. Trude and M. Marso, for appellant.
    Thomas E. D. Bradley, for appellees.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from the Municipal Court of Chicago in a case of the first class. The judgment appealed from was for $1,125, and was in favor of a firm of real estate brokers doing business as W. D. Doggett & Bros, against one Horatio N. Greene for commissions earned, as plaintiffs claim, in selling for said Greene certain real property on Michigan avenue in Chicago. The judgment was entered on the verdict of a jury, before whom the case was tried. A previous trial before another jury had resulted in a like verdict, and a new trial had been granted. The alleged errors assigned and argued in this court are the admission of incompetent evidence, the giving of incorrect instructions, the refusal of correct instructions, and also the refusal to take the case from the jury on the ground that there was no evidence to support a verdict for the plaintiff, or, as that was not done, to set aside the verdict when rendered as contrary to the clear weight of the evidence.

Considering the case as it was made and assuming that there was no incompetent evidence admitted nor instructions erroneously given or refused, we should in any event he reluctant on the ground of a counter preponderance of evidence, to set aside the decision reached independently by two juries on the questions of fact. Our duty, however, requires us to examine the matter first in that view. This involves also, of course, the consideration of the ultimate theory of the evidence urged by the appellant, that no part of it even tends to- support the plaintiffs’ case, and that therefore the jury should have been peremptorily instructed for the defendant. Before stating our conclusions in this regard we will make a summary of the facts and the evidence relating to them as that evidence stands in the record.

In 1902 and prior thereto Mrs. Julia F. Heyworth and H. N. Greene owned adjoining pieces of real estáte on Michigan avenue. The property of Greene was on a comer and numbered 1261 Michigan avenue. H. N. Greene was in 1902 a retired business man seventy-two years old, whose residence was Chicago, but who travelled much for his wife’s health and therefore spent much of his time away from home. He was so much away from home during those years, principally beyond seas, that his son, Dr. Frank C. Greene of Chicago, testified (by deposition, he being-then ill) that his father in 1902 and 1903 “had no settled residence, but was traveling abroad.” Dr. Greene during this time had charge of the property, which was improved. He collected the rents and received and assumed to act (by peremptory refusal) on applications of purchase of the property. He was admittedly a middle man in negotiations which resulted in the conveyance by his father of the property in question to Mrs. Julia F. Heyworth by deed executed in the State of New York November 2, 1903. Whether or not he had authority to sell the property in question, using his discretion as to price and method, is one of the controverted questions of fact in the'cause. The defendant, H. N. Green, testified that his son had no such authority and had nothing to do with the property beyond collecting the rents, but subsequently admitted that the Doctor “looked after the property” while he (the defendant) was away, and that he (the Doctor) claimed that he made the sale, and that he sent him the deed for execution. One of the plaintiffs, Herbert Doggett, the member of the firm of W. L. Doggett & Bros, who claims to have conducted (for the firm) the negotiations which resulted in the sale, and to have thereby earned the commissions sued for in this cause, testified, over objections to be hereafter considered, that he saw a letter from the defendant to Dr. Greene, dated November 5, 1902, in which the express authority to sell, with absolute discretion as to ‘ price, was given; and James 0. Heyworth, a witness called (for the defendant) to prove that his negotiations and not the plaintiffs’ resulted in the sale in question, testified that the business was all conducted with Dr. Greene; that his conversations with him about the sale began as early as 1897, and that the purchase was summarily concluded with Dr. Greene within a week of-a threat to build on the Heyworth lot.

Besides testimony of James 0. Heyworth that prior to and during the years of 1902 and 1903 he talked with Dr. Greene about a purchase and sale of 1261 Michigan avenue, there is in the record testimony in the deposition of Dr. Frank C. Greene, before referred to, that before his negotiations with Herbert Doggett, hereafter detailed, he had a conversation with Lawrence Heyworth, another son of Mrs. Julia Heyworth, in relation to the purchase of the property in question by his mother. He says, however: “It was not in a serious way. We talked over the sale of the property, but no specific offer was arrived at. Mr. Lawrence Hey-worth advised me to sell, as the building was falling down and the property was no good any way, and any terms of sale would be better than keeping the old building in repair. As I remember, I was not serious in my conversation with him, as I fully realized the value of the property and felt also that he did. These conversations took place at the Chicago Athletic Club when we happened to get together for a game of pool or amusement.” The only other allusion Dr. Greene made to any direct communication with the Heyworths in that part of his deposition read in evidence was the statement in answer to the question whether after conversing with the plaintiffs he talked with the Heyworths about the property, that six months after he happened to meet James Heyworth on the street. He does not say what passed between them.

Doctor Greene died before the first trial of the case, after his deposition had been taken in behalf of the defendant. Such portions as were offered and read in evidence were so offered and read by the plaintiffs’ counsel.

Except so far as hereinafter stated Dr. Greene’s statements in his deposition tend to support the plaintiffs ’ case, it depends entirely on the testimony of Herbert Doggett, and certain correspondence produced by him and read into the record. His story in substance is this: He is a member of the plaintiff firm, who are licensed real estate brokers, making a specialty of the sale of down town property and of negotiating long leases. Prior to October, 1902, he had been acquainted with Doctor Greene (but not recently at least with his father) and with the Heyworths, mother and sons, for a long time. He knew the ownership of the property at 1261 Michigan avenue. Dr. Greene had told him of it. He ascertained that the Heyworths were the owners of the property adjoining it.

Having talked with Dr. Greene prior to October 30, 1902, Doggett went to Lawrence Heyworth and to Mrs. Julia Heyworth and had conversations with them about the purchase by Mrs. Heyworth of 1261 Michigan avenue, telling her that Dr. Greene had said that his father wished to sell it and had asked him (Doggett) to get a purchaser for it. Doggett urged the purchase on her, reminding her that it would make her entire property a corner. Mrs. Heyworth, after expressing some reluctance to increase her real estate holdings, referred him to Lawrence Heyworth, telling him'that whatever Lawrence did would meet her approval. Thereupon Doggett took up negotiations with Lawrence and received authority to make an offer. October 30, 1902, pursuant thereto, he wrote a letter to Dr. Greene telling him that he was authorized by Lawrence Heyworth to offer $39852.51 cash for the property and urging the submission of the offer to Dr. Greene’s father—the defendant—and its acceptance. He received a reply under date of November 4th from Dr. Greene, declining to consider the offer or submit it to his father. November 5th, having previously telephoned Dr. Greene and seen Lawrence Heyworth, Doggett wrote again to Dr. Greene, transmitting a new offer from Mr. Heyworth to take a ninety-nine year lease of the property on a rental of four per cent on $53,000, with the privilege of purchase at $55,000 within twenty years. To this Dr. Greene by letter replied that he had telegraphed to his father, H. N. Greene, at New Bedford, Mass.: “Have offer four per cent on $53,000, ninety-nine year lease with the privilege of purchase on or before twenty years for $55,000. Reply at once. F. C. Greene,” and had received this reply: “Offer refused. Will not lease. Letter coming. H. N. Greene.” Dr. Greene added in his letter: “His” (the defendant’s) “letter may contain a proposition.” Doggett called on Dr. Greene shortly afterward and was shown a part of a letter from H. N. Greene dated New Bedford, November 5, 1902, addressed to his son, Dr. Greene, saying, in substance: “Tour telegram received. I have wired you. * * * We do not want to lease the property, but want to sell and use your own discretion as to price. ’ ’

Within a few days thereafter Doggett again saw Lawrence Heyworth and told him his offer had been declined, and that the Greenes would not lease. Hey-worth said they would wait awhile. Doggett urged Heyworth to buy lest he should lose the opportunity, and Heyworth replied that there was no hurry—the Greenes could sell to no one else.

In the early part of 1903 Doggett while acting in another negotiation met Mrs. Heyworth and both her sons in James Heyworth’s office, and urged on her to attempt the purchase for cash, and was again referred by her to Lawrence. She said that she was going to Europe and would leave the matter in the hands of Lawrence. From that time on during the remainder of the Spring, Summer and Fall of 1903, Doggett swears he very frequently saw Dr. Greene on the one hand and Lawrence Heyworth on the other, and urged each to meet the other’s views. Heyworth authorized an offer of $44,000. Dr. Greene refused it. But, so Doggett testifies, Dr. Greene finally said to him, “I won’t give Heyworth an offer in writing, but if you can get an offer from him of $45,000 I will accept it and pay your commission.” On the other hand Heyworth refused to make an offer in writing, but told Doggett that he would accept such an offer if made by Greene in writing. It being finally reported to Heyworth by Doggett that an offer in writing could not be obtained, Heyworth said, “Then we will wait until my mother returns.” At some time in November, 1903, after Mrs. Heyworth had returned, Doggett went up to her house to see her and renew his efforts to induce the purchase. He was then informed by her that a few days before it had been consummated at $45,000. The defendant having refused to pay Doggett any commission, this suit was brought.

The evidence above detailed is that on which the plaintiffs predicate their right of recovery. We cannot say that, taken as true, it fails "to furnish support for a verdict for them.

The amount given was sworn to be the customary and usual charge made by brokers for selling property in that vicinity and the evidence tends to show that Doggett was the efficient cause of the final result. The question of its showing any justification for the employment of a broker by Dr. Greene will be considered in connection with the instructions.

It is, however, urgently insisted by the defendant that even if the evidence for the plaintiffs as it stands is sufficient to have properly prevented a peremptory instruction for the defendant, the verdict rendered is manifestly against the weight of all the evidence in the cause and should have been set aside on the motion for a new trial.

The testimony of Mr. Doggett was certainly contradicted in some particulars,—different parts that is, by different people. The defendant, Greene, -swore that in the letter to his son on November 5," 1902, he did not use the words of direction and authority about selling which Doggett said he read in it. James Hey-worth’s testimony is to the effect that his efforts brought about the sale and seems inconsistent with, although not in material respects directly contradictory to, Doggett’s. Mrs. Heyworth does not remember any statement to Doggett referring him to Lawrence and expressing willingness to abide by what Lawrence might do in the matter. On the other hand a portion of Doggett's testimony was confirmed by the deposition of Dr. F. C. Greene, whose death after it was taken introduced an element of difficulty into the case and probably led in some degree to the rather confused and indefinite character of the evidence adduced on each side, especially as to the dates and particular circumstances of the transactions and conversations involved. Dr. Greene testified that he had many conversations with Doggett about the property, and that if they arrived at an agreement he had power to close the deal; and it certainly is not without significance that Lawrence Heyworth, although called to the stand for the defendant, was not interrogated concerning and gave no testimony contradicting the material portions of Doggett’s story.

We cannot say that we are satisfied that the verdict was against the clear weight of the evidence in the cause. Therefore we shall not interfere with it on that ground.

The appellant, however, contends that the evidence as it stands was in material points incompetent. It was objected to and should have been excluded, and its admission vitiated the verdict and judgment, as he claims.

The first of the objections noted is that by offering in evidence the answers of Dr. F. 0. Greene to the direct interrogatories propounded to him by the defendant, the plaintiffs made him their own witness and were precluded from offering his testimony on the cross-examination. We do not so understand the rule. Adams vs. Russell, 85 Ill. 286, is authority against the proposition. We think the court ruled correctly on the introduction of the cross-examination.

The second objection to the rulings of the trial court on evidence is that Doggett was allowed to testify as to the contents of the letter of November 5, 1903,, alleged to have been written by H. N. Greene to his son, there being no evidence that H. N. Greene wrote the letter. We do not think this objection is better taken than the first. H. N. Greene testified that he wrote a letter to his son in answer to the communications to which the letter that Doggett saw was an answer. Dr. F. C. Greene produced the letter but did not attach it to his deposition. We think there was evidence sufficiently tending to show the genuineness of the letter which Doggett swore that he saw, to allow the testimony concerning its contents when the foundation for secondary evidence had been laid.

A- graver question is presented by the testimony which was admitted, in which Doggett related his conversation with Dr. Greene containing the promise to accept $45,000 and pay a commission if an offer in writing could be obtained by Doggett from Heyworth. Dr. Greene was the agent of the defendant in the transactions involved. He died before the trial and the defendant insists that the Illinois Statute on Evidence forbade the plaintiffs to testify to any conversation with the said agent.

It is undoubtedly true that such testimony is prohibited by the statute in the absence of countervailing and controlling circumstances. It was not enough that the defendant had it in his power to read a deposition of the agent which he had taken. The court ruled out all testimony of Doggett as to anything said to him by Dr. Greene during his direct examination. But in cross-examination in connection with his statement that Lawrence Heyworth had told him that if he would bring.an offer from Dr. Greene of $45,000, that it would be accepted, he was asked: “Did you ever get an offer from Dr. Greene to that effect?”

On redirect examination this question was put to him by the counsel for plaintiffs: “On your cross-examination you were asked the question, ‘Did you ever get an offer from Dr. Greene to that effect?’ If you ever had a conversation with Dr. Greene in which he talked about submitting an offer of $45,000 to Mr. Heyworth or any other person, please state what Dr. Greene said about that subject?” To which question the witness was permitted, over objection, to answer: “Dr. Greene told me to bring him the offer from Mr. Heyworth of $45,000 for the property and he would accept it. He said, ‘I know Heyworth and I won’t give him a proposition in writing he can make use of adversely to the property, but I will accept $45,000 if you can get it from Heyworth tangibly and pay your commission. ’ ”

We are not convinced that the admission of this testimony was reversible error, nor that it did not fall within the principle stated by Greenleaf (vol. 1, sec. 468) and quoted by counsel, that “If counsel chooses to cross examine a witness as to facts which were not admissible in evidence, the other party has a right to examine him as to the evidence thus given.” That principle was adopted in Morton v. Zwierzykowski, 192 Ill. 328. That case did not involve a statutory prohibition, nor does the utterance of Greenleaf seem to be made with reference to one, but the reason seems as strong in a case where the incompetency is the result of such a statute as in any other.

The instructions given and the ruling of the court in refusing to instruct as requested by the defendant raise one more serious question, which may be thus stated. The defendant claims that even were all the evidence competent and properly admitted, it would still be true that there was none tending to prove that Dr. F. C. Greene had authority in making a sale to employ a broker; that whether he had such authority was not under the evidence a question of fact for the jury, but one of law for the court, which should have given to the jury the construction and legal effect of the clause in the defendant’s letter to Dr. Greene, sworn to and relied on by Mr. Doggett. The court in refusing to accept this view in its instructions and refusing to instruct the jury that the letter in question gave Dr. Greene no right to employ the plaintiffs, it is claimed fatally and fundamentally erred in its application of the law to the facts of this cause..

The question thus stated is one of some difficulty, on which none of the authorities cited seem to us exactly in point. Under ordinary circumstances it is true that the construction of a written document constituting an agent is one of law for the court. It is equally well settled, to quote the language of Judge Cooley in McKenzie vs. Sykes, 47 Mich. 294, that “Where the terms of a negotiation are left to oral proofs, the question what the parties said and did and what they intended should be understood thereby, is single and can not be separated so as to refer one part to the jury and another part to the judge, but in its entirety the question is one of fact.” But the application of these principles is difficult when the language, although orally proved, is the language of a lost letter not before the court, and the use of certain words is alleged by one side and denied by the other.

The language of the court in Jennings vs. Sherwood, 8 Conn. 122, seems to bear out the court below in leaving the question of the authority conferred as one of fact to the jury.

But we are also of the opinion that while the existence of authority from the defendant to F. C. Greene was denied and was in issue, the proper construction of the words if proved would in any event, in the light of the extrinsic circumstances to which they must have been applied, be the one which inhered in the verdict of the jury. The cases in which an employe or, paid agent has been held not to have authority to employ brokers or subagents do not seem to us of authority here. Those most nearly in point are merely reversals of the City Court by the Common Pleas of New York City, and the decision of the one court is as persuasive to us as that of the other. In the case at bar, if it be granted that Dr. Greene was given authority to sell, and to use his judgment as to price and terms, we think a jury would have been wrong in holding that such authority did not include the right to bind the defendant to pay for the services of a real estate broker in finding a purchaser.

For the reasons given we affirm the judgment of the Municipal Court.

Affirmed.


text:
    Herman F. Vorbeck et al., Defendants in Error, v. William T. Hamback et al., Plaintiffs in Error.
    Gen. No. 15,763.
    Municipal Court—when judgment not disturbed. A judgment of the Municipal Court will not be set aside on the facts where the Appellate Court does not see that it can arrive at any conclusion more likely to be correct than that of the trial judge.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    John D. Farrell, for plaintiffs in error.
    N. M. Jones, for defendants in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

The sole question in this ease is one as to the proper amount of damages to be awarded for a trespass on the plaintiff’s land. One of the defendants was a contractor with the other for the excavation of a basement. The contractor, with the knowledge and consent of the other defendant (so far as we can judge from the testimony), piled or spread the earth and clay taken out of the excavation on the lots in question, which were adjoining each other and the excavated lot.

The case was one of the fourth class in the Municipal Court and no written pleadings were required or used; but the statement of claim indicates an action of trespass rather than, as counsel for defendants suggests as an alternative, a suit on an implied promise to remove or pay for removing the dirt complained of.

We notice this because counsel also argues that the evidence shows that the dumping was done with the consent and knowledge of the defendants in error, and that no trespass was committed.

But we do not think the evidence taken together justifies this conclusion. The basis of it is found only in the testimony of the agent of the plaintiffs that after complaining to one of the defendants of the trespass already committed by placing the material on the plaintiffs’ property, and receiving a promise to remedy the damage, he said, “As long as you take it away, it is all right.” That conversation does not tend to prove consent on the part of the owners.

The only question left, as we have said, is as to the amount of the damages. The testimony from which the amount had to be figured was conflicting. We do not see that we could arrive at any conclusion more likely to be correct than that of the trial judge, who tried this case without a jury and fixed it at $150. We therefore affirm the judgment of the Municipal Court.

Affirmed.


text:
    C. A. Chapman, Defendant in Error, v. George Hofmann, Plaintiff in Error.
    Gen. No. 15,769.
    Municipal Court—when recovery may he had upon quantum meruit. Held, that the statement of claim, in this ease was sufficient to justify a recovery upon a quantum meruit.

    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Statement by the Court. This writ of error is brought to reverse a judgement for the Municipal Court of Chicago in a cáse of the fourth class. The judgment was for $730.24. It was rendered in accordance with findings of the trial judge sitting without a jury. The plaintiff, a corporation, the defendant in error here, sued Hofmann, the defendant below and plaintiff in error here, stating its claim to be:
    “For services as engineer rendered by C. A. Chapman to said defendant in the preparation qf plans and specifications for the erection and equipment of a certain hydro-electric power plant and accessories, which said plans and specifications were prepared at the request and direction of said defendant in the fall of 1907; said services amounting to the sum of $741.34, together with interest thereon from November 20, A. D. 1907, which said claim was transferred and assigned to the plaintiff by said C. A. Chapman on, to-wit, December 1st, A. D. 1908, and said plaintiff is now the bona fide owner thereof. ’ ’
    The defendant based his defense below on two propositions ; the first, that' the plans and specifications prepared by Chapman were prepared by him under a specific contract that the same were not to be charged for unless they were used by the defendant, and that they were not used; and the second, that the plans and specifications were not in accordance with the contract between Chapman and the defendant, and that by reason of the changes made in the construction work at the direction and request of Chapman, the defendant expended a sum of money exceeding the claim of the plaintiff, which sum the defendant has the right to recoup in this suit.
    In this court, however, under the assignments of error, it is only argued that the plaintiff below “failed to show by a requisite preponderance that the plans and specifications and work performed was done at the request and direction of the plaintiff in error, and that plaintiff in error agreed to pay for same,” and “that the suit is based on a specific contract, and the burden was upon defendant in error” (the plaintiff below) “to establish said contract by a preponderance of the evidence, which it failed to do. ’ ’
    Samuel Friedlander, for plaintiff in error.
    Gale Blocki, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

We see no reason to disturb the finding of the court and the judgment in this case. There is no doubt in our minds, after a careful consideration of the stenographic report of the evidence adduced at the trial, that on or about September 10, 1907, the defendant Hofmann employed Chapman (the assignor of the plaintiff) as an engineer to advise him and enable him to develop some water power on the Desplaines river, by means of which he apparently designed to light a proposed amusement park there. During a joint examination and consultation it became understood between Hofmann and Chapman that Chapman was to prepare plans and specifications for the plant and supervise the construction and installation thereof.

Numerous visits from Chapman and his employes to the place of operations, to determine by observation and expert examination what was necessary and practicable, followed; and a very considerable amount of work was done by Chapmán and his office force in making drawings of plans for the power plant, and drafting specifications for a power house, electrical apparatus to be installed therein, and turbine water wheels in connection therewith.

Friction and dissatisfaction between Hofmann on the one hand and Chapman and the representative of the latter, one Bailey, on the other, soon developed, engendered apparently by differences of opinion between Hofmann and Bailey as to the desirability of certain parts of the proposed work or the method or promptness in accomplishing it, and confirmed by Hofmann’s belief that Chapman himself was not personally giving the attention he ought to the undertaking. This culminated in an angry conversation over the telephone on November 18,1907, between Hofmann and Chapman and the abrupt termination of the relations between them. Exactly what was respectively said.by the parties in that conversation is in dispute between them. Chapman says that he told Hofmann that he wished to be relieved of any further responsibility in connection with the work, and that Hofmann replied that he would be very glad so to relieve him. ‘‘I asked him,” Chapman testified, “what I should do with the papers and he said ‘Send them to me.’ I said ‘All right, I will send them to you and send my bill.’ He said, ‘All right, send your bill and I will pay it up and get rid of yon.’ ”

Hofmann in his testimony denied that he promised in that conversation to pay a bill or said anything about a bill. He says that Chapman said to him, “If yon don’t like my way of doing this work, get somebody else,” and that he replied, ‘ ‘ That is a fine way to leave me at this time. That is no way to do. Why don’t you go out, if you have any suggestions or tell me why you have not been on the ground? Bailey doesn’t know anything about it. He has made three changes. Now come out and show me why you have done it.”

We should see no justification for disturbing the finding of the court below, in this version of the conversation, if we accepted it as the correct one.

Hofmann admitted in his testimony that he thought that Chapman had a bill against him and that he expected to pay Chapman for his time. Subsequently in his testimony, however, Hofmann supplemented this account of the conversation. He says: “I said, ‘That is a funny way to leave a person just at this stage and the condition of the weather. If high water comes on it will flood all our work, everything that was in there. ’ Chapman said, ‘Get somebody else,’ and I said ‘All right.’ ” And to this express acceptance of Chapman’s withdrawal Hofmann added the implied one of receiving, without objection or comment, the package of drawings and specifications and immediately summoning another expert to advise him and, as he himself says, “to go on and finish the work.” There is no reason, however, why the trial judge or we should accept Hofmann’s account of this conversation, or other parts of his testimony, as more credible than Chapman’s statements, where they are in conflict with them.

It was for the trial judge to choose between them. We cannot agree with counsel for defendant that his testimony is in itself more probable or that it is better corroborated than the plaintiff’s. The documentary evidence on the other evidence tends rather to bear ont the plaintiff’s credibility than the defendant’s. Hofmann testified that he never ordered from Chapman ’ any plans or specifications, and that he never knew any plans or specifications were in existence until he received them, and had never been told by Chapman that he was preparing plans and specifications, and that the only genesis of them was the statement of Chapman, after he had been taken the first' time to the river, ‘ There will be no harm in drawing up some sketches and blue prints, and if you” (Hofmann) “will use them, you can pay for them; if you don’t use them and use- somebody else’s, all right.” The inherent probability of all this does not seem to us great at best. It is lessened by the fact that Hofmann undoubtedly received from Chapman, without remonstrance, objection or comment, a letter dated September 25, 1907 (a few days after the date of this alleged conversation), in which Chapman, after discussing the flow of water and the estimated power, says:

“On this basis drawings are being prepared for the installation of a flume, forebay, tail race and building for the placing of the wheel and generator. * * * In keeping with your directions drawings for the rack, head gates and flume are being prepared and will be ready within a few days.
Should you desire that a dam be designed by me, kindly instruct me of your pleasure and the subject will be given immediate attention.
Specifications are also prepared for a turbine wheel, necessary shafting, generator, étc.
I trust my action in this connection will meet with your approval. * * * ”

and also by the fact that on October 30,1907, Hofmann signed an order to Chapman to deliver to a firm of architects, designating them as “Architects for the Improvements at Lyons,” “Copies of all your drawings for the water power at the dam; ’ ’ and by the fact that under date of November 5, 1907, Chapman wrote a letter to Hofmann which it is a fair presumption, despite Hofmann’s disclaimer, the latter received, that Chapman had complied with this request; and finally by the fact that on the termination of the relations between them and the reception of a letter from Chapman, in which he said that he was forwarding drawings and specifications and added, “I am also including my bill for services in this connection as per your direction and trust that in keeping with your statement, I may receive prompt remittance covering same,” Hofmann again made no comment of rejection or denial to Chapman, but turned the package of papers over to his lawyer unopened.

Much emphasis is placed in the argument for the plaintiff in error on the position that “the statement of claim” and “concession of counsel” show the suit to have been brought on “a specific contract,” and that a specific contract for a definite sum was not proven by a preponderance of evidence. Therefore, it is argued, the plaintiff must fail.

We do not consider the statement of claim as inconsistent with recovery on a quantum meruit, the “quantum” being alleged to be $741.34. As for the “concession” of the plaintiff’s counsel in the court below, nothing was said by him misleading to the court or the defendant. Whatever the precise language used, the intent and meaning were plain enough. The claim was for the proper compensation for the services performed by Mr. Chapman and his office force, and that proper compensation was, according to the custom of the business and the testimony offered, a percentage of the estimated cost of the proposed plant.

The record does not show any satisfactory proof that Chapman was incompetent, inefficient or unfaithful. There was no sufficient reason shown for the termination of the relations between Chapman and Hofmann except the ill feeling that had grown up between them. The amount recovered seems to be justified by the evidence as a reasonable and customary compensation for the services performed.

‘‘ The laborer is worthy of his hire, ’’ and in deciding the case “upon the merits as they appear from the * * * stenographic report * * * signed by the judge” (Municipal Court Act, sec. 27, par. 8), we have no hesitation in affirming the judgment.

Affirmed.


text:
    Benjamin Glassman, Defendant in Error, v. Benjamin Abromovich, Plaintiff in Error.
    Gen. No. 15,772.
    Landlord and-tenant—liability to repair. In the absence of agreement to the contrary at least, it is the duty of the common landlord to maintain in properly safe condition a hallway and stairs used as common entrance and approach to the premises occupied by various tenants and he is liable to his tenants and persons having business with, them if injury results to them from a neglect of that duty.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Statement by the Court. The plaintiff in error in this case, Abromovich, was the owner of a building at Nos. 386 and 388 West Twelfth street in the city of Chicago. It was rented to various tenants, no part of it being actually occupied by the plaintiff in error. The second story, including a water closet, was leased by one Louis Eisenberg, who carried on a tailoring establishment on the premises. The defendant in error, the plaintiff below—Grlassman—was, as he' claims, in the employ of Eisenberg at the time of the incidents ont of which this litigation grew. December 29, 1908, Grlassman fell on the stairway leading to the second story as he was ascending to Eisenberg’s rooms, and broke his leg. He claims that the accident was the result of the negligence of the owner of the premises, Abromovich. Abromovich, he alleges, had been notified that there was a water pipe connected with the water closet defective and leaking, and had promised to repair the same. He did not do so promptly and the water from the leak overflowed on the stairway and froze. The hall and stairway were dark and Grlassman, going up the stairs in pursuit of his business, slipped on the ice thus formed. He brought a suit (of the fourth class) against Abromovich in the Municipal Court. It was tried before a jury. The jury returned a verdict of $200 and after a motion for a new trial had been made and denied, judgment was entered on the verdict. To reverse that judgment this writ of error has been sued out.
    The plaintiff in error, the defendant below, denies that there was ice on the stairs, or that there was any overflow of water caused by any leak for which he was liable or which he had promised to repair. Such water as was on the stairs was, he contends, not frozen, and came there through the negligence of Eisenberg and his employes in choking up the bowl of the water closet with paper, thus flushing the bowl, allowing it to freeze and causing it to run over. Further the defendant claims that the plaintiff was a mere licensee on the defendant’s premises, towards whom, therefore, the defendant was under no other obligation than to abstain from wilful injury to him.
    In this court the plaintiff in error has argued that the verdict was contrary to the law and the evidence; that there was a fatal variance between the allegations of negligence in the statement of claim and the evidence offered for the plaintiff; that the court admitted improper testimony and failed to instruct the jury properly, and that the verdict was excessive.
    B. M. Shaffner, for plaintiff in error.
    Saltiel & Rossen, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

There is no difficulty about the law in this case. The question at issue between the parties is one of fact.

The questions of fact which were before the jury are sufficiently indicated in the prefixed statement. We think the jury had evidence before it tending to prove that the plaintiff was at the time of the accident an employe of a tenant of the defendant; that he was then in the exercise of his regular line of employment and required by the convenient transaction of his business to use the stairs in question; that there was ice or frozen glaze on the stairs; that he might not have seen the same although in the exercise of due care, and as a matter of fact did not see it; that this ice and consequent slippery condition of the stairs were the result of the flow of water from a broken pipe leading to the toilet room on the second floor, which pipe the defendant had undertaken to repair, but had neglected to put into a safe condition promptly; that the stairs in question were the common approach to the upper stories for both the plaintiff’s employer and the persons doing business for and with him and for other tenants higher up.

Portions of the testimony furnishing this evidence were seriously controverted, but the proper finding of fact largely depended on the credibility of witnesses contradicting each other, and we cannot substitute ourselves for a jury in passing upon that credibility.

Assuming the facts proven which the plaintiff’s evidence tended to prove, the law seems clear.

The hallway and stairs used as a common entrance and approach to premises occupied by various tenants, it is, in the absence of agreement to the contrary at least, the duty of the common landlord to maintain in properly safe condition, and he is liable to his tenants and persons having business with them if injury results to them from a neglect of that duty. Helbig v. Slaughter, 95 Ill. App. 623; Shearman & Redfield on Negligence, sec. 56; as quoted by Judge Wall in Reichenbacher v. Panmeyer in 8 Ill. App. 217. Especially must this proposition he true if the unsafe condition is the result of the neglect of the landlord properly or promptly to repair some defect in his premises which he has undertaken so to repair.

There is no merit in the point made by plaintiff in error of a variance betwen the statement of claim and the plaintiff’s proof, nor in those concerning the instructions, the admission of testimony and the size of the verdict.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Me. Presiding Justice Brown

text:
    Harry Baker, Defendant in Error, v. Alex. Mayer, Plaintiff in Error.
    Gen. No. 15,777.

      Assumpsit—when, owner of premises not liable. In an action not brought under the Mechanics Lien Act and not .susceptible because of the facts of being so brought, one who has engaged with a contractor to do work upon premises, cannot recover therefor from the owner thereof.

      Error to the Municipal Court of Chicago; the Host. G. F. Going, Judge, presiding. Heard in 'this court at the October term, 1909.
    Reversed and judgment here.
    Opinion filed October 5, 1911.
    Elias D. Whipp, for plaintiff in error.
    Leon Zolotkoff, for defendant in error.
   Me. Presiding Justice Brown

delivered the opinion of the court.

It is sufficient in deciding this case to say that the plaintiff below, defendant in error here, so far as appears by the “Statement of Facts” in the Transcript of the Record, failed to show any liability of the defendant to him. According to the testimony of all parties heard, including the plaintiff himself, he was hired by one Perry to do work on Mayer’s premises. But the evidence also showed without contradiction that Perry had made a contract with Mayer for the work done and had been paid most of the contract price before the defendant knew that the plaintiff was working on the premises, and all of it before the plaintiff asked him for money for his work.

The suit is not brought under section 28 of the Mechanic’s Lien Act, and if it were could not be effective, for the reasons stated.

There was no employment of the plaintiff by the defendant shown, and no liability to be enforced. The cause was tried below without a jury.

The judgment of the Municipal Court is reversed and a judgment of nil capiat and for costs in both courts will be entered here against the plaintiff.

Reversed and judgment here.


text:
    Ethel Kurz, Defendant in Error, v. Guenther Bradford & Company, Plaintiff in Error.
    Gen. No. 15,778.
    Res judicata—how estoppel by verdict may be established. It is competent to show by parol an estoppel by verdict, or its equivalent, where it is doubtful whether the subject-matter was or was not adjudicated in a prior suit.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 5, 1911.
    Francis J. Noonan and T. W. Brown, for plaintiff in error.
    Lee & Lee, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

We must reverse this judgment and remand the case to the Municipal Court for another trial. The judgment for $274.20 was in an action of the fourth class for damages for the taking and conversion by the defendant of household goods of the plaintiff. The goods in question were taken by the defendant under an attachment writ against the plaintiff’s husband and sold under an execution in that suit.

We quote from plaintiff in error’s brief and argument to show the objections made by it to the judgment of the Municipal Court.

First. There is no evidence as to ownership of the property in question.

Second. There is no evidence as to the market value of the property in question at the time it was taken under the attachment writ.

Third. The whole matter is res adjudicata. The contention of the plaintiff here, Ethel Kurz, as to her title to the property was fully passed on and decided in the original attachment suit.

Fourth. If the files in that case do not establish that fact, the court erred in excluding parol evidence as to what occurred on the hearing of that case.

We do not sustain any one of the first three of these positions of the defendant. We think the proof of title and value was sufficient, and we are not satisfied that the record establishes a prior adjudication barring this suit.

But we think it is plain .that the court erred in refusing to admit in evidence oral testimony that there was a hearing on an intervening petition filed by the plaintiff in the original attachment suit, and that certain depositions were then read on behalf of the plaintiff.

It is competent to show by parol an estoppel by verdict, or its equivalent, where it is doubtful whether the subject-matter was or was not adjudicated in a prior suit. Railroad Co. v. Schaffer, 124 Ill. 112. This was a proper case to apply the rule. Moore v. Williams, 132 Ill. 589.

The questions ruled out plainly tended to this end, and should have been allowed.

Counsel for defendant says that it cannot be shown that the plaintiff’s claim was heard on the intervening petition, because the record shows that depositions in her behalf were not filed until two days after the order of dismissal of" the petition. Aside from the fact that this in itself does not show that there was not a hearing on the petition without the depositions, the question whether these depositions were actually read by stipulation or otherwise was the very one ruled out.

For the error indicated the judgment of the Municipal Court is reversed and the cause remanded to that court.

Reversed and remanded.


text:
    Hattie V. Samberg, Plaintiff in Error, v. Sophia Kelly, Defendant in Error.
    Gen. No. 15,817.

      Liens—when not established. Held, under the evidence, that the lien claimed in the action of replevin reviewed was not established.
    Replevin. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Charles J. O ’Connor, for plaintiff in error.
    William H. A. Rust, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This suit in replevin for certain household goods was decided by the Municipal Court in favor of the defendant below, who is therefore defendant in error here. A writ of retorno habendo was ordered and a judgment for costs entered in favor of the defendant against the plaintiff.

The Municipal Court was right in its judgment. The suit was based on a supposed lien given to the plaintiff or a conditional sale by her. Neither was, in our opinion, proved. It would be a dangerous precedent to hold that such a conversation as was sworn to by the witness Brockhyser gave such a lien or made a sale absolute on its face and evidenced in writing, a conditional one.

The plaintiff moreover affirmed the sale as an abso«lute one by her suit in assumpsit for the purchase price.

The cook stove was only to be returned in exchange for the one mentioned in the bill of sale.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Schultz Piano Company, Defendant in Error, v. Leslie C. Hughes, Plaintiff in Error.
    Gen. No. 15,820.

      Damages—when amount will not be reviewed. The question of damages will not be reviewed if the sum allowed did not exceed the pecuniary loss which the evidence tended to establish.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 5, 1911.
    Caswell & Healy, for plaintiff in error.
    Thomas McEnery and Michael Koch, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is a writ of error sued out to the Municipal Court of Chicago to reverse a judgment of that court rendered in a case of the fourth class tried by it without a jury. The judgment was for $500 against Leslie ' C. Hughes in favor of the Schultz Piano Company.

The statement of claim although marked “Contract” was in reality and essence an action for deceit and was practically so treated by the parties and the court.

The ground of the action was the fraudulent misrepresentations of the defendant Hughes to the plaintiff, the Piano Company, inducing the latter to enter into a transaction afterward repudiated and, so far as possible, rescinded by that Company, by which transaction it had been damaged to the extent of the judgment. Viewed in that light, we think "that the question of the amount of damages, somewhat dwelt on by the plaintiff in error in his argument here, is not very significant. Under the rule applied by the Supreme Court in a case in which the same plaintiff in error was interested—Hughes v. Lockington, 221 Ill. 571—the pecuniary loss which the evidence tended to prove was sufficient to sustain the action for the amount of damages which the plaintiff obtained judgment for.

The state of affairs which, although there was a conflict of evidence, the court below was justified in holding proved, was that the defendant Hughes obtained from the Schultz Piano Company a Lester grand piano, for which a price of $775 had been agreed on, by giving to that Company a Schaff piano valued at $275 and a note and chattel mortgage of Charles E. Holmes (the note being made to his own order by Holmes and by him alone endorsed) which had been given to him (Hughes) as collateral additional to other more valuable security which he had previously received from Holmes, for an indebtedness of $500 incurred by Holmes to him for going on a bail bond in a criminal action through which Holmes was in custody; that the chattel mortgage was of furniture which in Hughes ’ opinion was practically worthless, and which actually was not worth more than $200, and that notwithstanding these facts Hughes represented by express words or plain implication, in the conversations held with the manager of the Schultz Company, that he had loaned in cash the $500 which the note represented to Holmes on the sole security of the furniture described in the chattel mortgage. Moreover, although his own opinion was actually that the furniture was nearly worthless, he studiedly gave the impression that his opinion was that it represented much more value than the amount of the note. Nor, of course, did he intimate in any manner the position of the maker nor the peculiar circumstances surrounding the transaction which brought him the note.

That he realized that these representations and concealments were material, and that the trade in question with the Schultz Piano Company could never have been negotiated by him without them, is shown by the fact that he reported to Holmes’ lawyer, who had pro-i cured his signature to the bond, that he had told the Schultz Piano Company that he had paid $500 in cash to Holmes for the note. This he wished the lawyer .to corroborate if the Schultz people asked him about it, which the lawyer refused to do.

It further appeared that very shortly afterward Hughes received on the account of Holmes, from the prior security in his hands, almost the entire amount which had been agreed on as compensation for signing the bond, and that in consequence the note and mortgage were repudiated as obligations by Holmes, and "that before this suit was begun the Schultz Piano Company tendered back the note and mortgage and Schaff piano, demanding the undoing of the whole transaction, to which Hughes refused to assent.

The plaintiff in error’s argument here is largely framed as though these facts raised only questions of the effect of such representations as might have been made in good faith of the value of the furniture described in the chattel mortgage and of the probability of the subsequent payment of the note and of the effect of n payment to the original holder of a chattel mortgage note after negotiation. We think they raise, rather, a question of the effect of representations made in bad faith about matters of fact, when the note was offered to the Piano Company. Even the opinion of the value of the furniture then actually entertained by Hughes was a matter of fact, which the evidence tended to prove.

We think that we have no good reason to interfere with the judgment, and it is affirmed.

Affirmed.


text:
    Jarecki Manufacturing Company, Appellant, v. Samuel T. Dailey et al., The National Bank of the Republic, Garnishee, and Studebaker Bank, Interpleader, Appellees.
    Gen. No. 15,825.
    1. Garnishment—when garnishee entitled to discharge. If the answer of the garnishee denies property in its hands it is entitled to a discharge unless such answer is overcome by proof.
    2. Garnishment—when interpleader properly sustained. Held, under the evidence, that the title to a check originally owned by the principal debtors had passed and that the proceeds thereof in the hands of the collecting bank were not susceptible to garnishment.
    3. Evidence—against whom admissions competent. Admissions against interest are only competent as against those making them.
    Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed in part and affirmed in part.
    Opinion filed October 5, 1911.
    Statement by the Court. This is an appeal by the plaintiff, the Jarecki Manufacturing Company, from a judgment of the Municipal Court of Chicago in favor of The National Bank of the Republic, garnishee, that the said Bank as garnishee he discharged, and in favor of the said National Bank of the Republic, garnishee, and Studebaker Bank as interpleader, against the said Jarecki Manufacturing Company for costs.
    The original suit was one of the first class, in attachment. According to the affidavit for attachment it was brought by the Jarecki Manufacturing Company against ‘‘Samuel T. Dailey and Homer M. Dailey, doing business as Dailey Bros., upon a running account for goods, wares and merchandise sold and delivered,” the ground of attachment being the non-residence of the defendants. So far as the record shows, there has been no appearance of or personal service on the original defendants or attachment or garnishment of any other property belonging to them than that alleged to be garnished in the hands of the National Bank of the Republic. After the service of the garnishment, however, the usual notice by publication was made and mailed to the alleged address of the defendants. They were called and defaulted on January 12, 1909, and the plaintiff’s damages were assessed by the Court on April 23, 1909, at $1183.04.
    On November 8, 1908, the attachment writ was served on The National Bank of the Republic of Chicago, and on November 30,1908, interrogatories to said Bank were filed. To the direct interrogatories asking whether the garnishee had, at the time of the service of the writ or since, any property of Dailey Bros., Samuel T. Dailey or Homer M. Dailey, or either of them, in its hands, or was then or since indebted to them, the answer by the garnishee was a direct negative.
    To the interrogatory: “Did you on or about the day of the service upon you of said writ collect any drafts or checks payable to the order of said Dailey Bros., Samuel T. Dailey or Homér. M. Dailey?” the garnishee answered that on' November 18, 1908, the Studebaker Bank of Bluffton, Indiana, sent in the regular course of business certain checks to the National Bank of the Republic (the garnishee), and among them a check drawn by the First National Bank of Bridgeport, Illinois, by its cashier, to the order of “Dailey Bros.” for $1300 on the Fort Dearborn National Bank of Chicago. The check was endorsed in blank, “Dailey Bros.,” and then specially endorsed to The National Bank of the Republic by the Studebaker Bank. The garnishee collected the check through the Chicago Clearing House on November 19, 1908, in the regular course of its business and, pursuant to the instructions of the Studebaker Bank, placed the proceeds on its books to the credit of the Studebaker Bank, which had continuously for many years kept a general deposit account with the garnishee. The Studebaker Bank has drawn its checks, drafts and bills of exchange on said banking and deposit account. The garnishee further answered that it was informed and believed that the check and its proceeds were, at the time of the service of the writ of attachment on it, the sole and absolute property of the Studebaker Bank and that the plaintiffs had no right or interest therein.
    In the same order of April 23, 1909, which assessed the plaintiff’s damages, leave was granted by the court to Studebaker Bank to interplead, and further the order reads: “It appearing to the court from the answer of the garnishee, The National Bank of the Republic, that no funds were found, leave is given to traverse answer of said garnishee and thereupon this cause comes on for trial on the traverse of the garnishee’s answer and upon the interplea.”
    The Studebaker Bank on the same day filed its inter-plea, claiming to be the sole owner of and entitled “to the funds garnished by virtue of the attachment writ herein and now in the possession of The National Bank of the Republic, of Chicago.”
    ■ It alleges that it purchased the draft in question on November 18, 1908, from one Catherine F. Dailey, and in payment therefor issued to Catherine F. Dailey its certificate of deposit for $1300, on which certificate it remains liable to Catherine F. Dailey or order; that when purchased it bore the endorsement, “Dailey Bros.;” that it forwarded the draft to the National Bank of the Republic for collection and that it was collected and the proceeds placed to the credit of the Studebaker Bank in the regular course of business, as set up in the answer of the National Bank of the Republic, and that the draft and proceeds have, ever since the purchase of the draft by the Studebaker Bank, been its property, and that neither said Dailey Bros, nor any. member of said firm nor any other person had any right or interest in the same.
    The plaintiff, the Jareeki Manufacturing Company, also on the same day filed a sworn general traverse of the answer of the garnishee, the National Bank of the Republic, to its interrogatories, which concluded: “And the said plaintiff denies that the endorsement ‘Dailey Bros.’ on said draft, as it appears by the answer to said interrogatories was executed by either the said Samuel T. Dailey or Homer M. Dailey, members of said firm of Dailey Bros., or by any person having authority to endorse the said draft. ’ ’
    On the 26th day of April, 1909, the Municipal Court entered an order reciting that it had heard the evidence and-being fully advised found the issues for the National Bank of the Republic as garnishee. It therefore discharged the garnishee and ordered that the suit be dismissed as to the interplea.
    On May 26, 1909, by stipulation in open court the order of April 26th was vacated and another order entered nunc pro tunc as of April 26th. This is the order first above described in this statement and is the judgment appealed from.
    In this court the plaintiff—appellant—insists on assignments of error attacking the discharge of the garnishee and the judgment for costs in favor of the National Bank of the Republic and the Studebaker Bank, claiming that there should have been judgment in favor of the defendants, Samuel T. Dailey and Homer M. Daily, for the use of the plaintiff against the garnishee, The National Bank of the Republic, for $1183.04.
    Castle, Williams Long & Castle, for appellant.
    Newman, Northrup, Levinson & Becker, for appellee.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

There are various technical objections raised by the appellee to our consideration of this appeal on the record which has come to us, of which objections it is not necessary to say more than that they are not well taken.

The substantial questions in the case are properly before us, we think, for decision.

But in the view we take of it, it is only necessary to discuss one. The appellant’s whole case is based on the position that John Dailey had no authority to endorse for Dailey Bros, the draft which is involved and which is- described in the statement prefixed to this opinion.

It does not matter, therefore, what ultimate decision of the appeal we might arrive at were we convinced of the correctness of this premise of the appellant’s argument. Without g'oing further into it, we may place our decision on our want of such conviction. The burden of sustaining the traverse of the garnishee’s answer was undoubtedly on the plaintiff. The garnishee expressly denied having in its hands any assets of the .defendants or being indebted to them. This denial entitled it to the discharge given to it by the judgment unless overcome by proof. Under no theory could the answer detailed in the prefixed statement to the interrogatory concerning the collection of a check payable to the Dailey Bros, be held to charge the garnishee unless it was supplemented by proof that this piece of negotiable paper endorsed “Dailey Bros.” and collected, as the answer discloses, for and as the property of the Studebaker Bank, was at the time of collection the actual property of the defendants. The plaintiff’s theory is that it has furnished that proof by the testimony of Fenton, district manager of the plaintiff company, that Samuel and Homer Dailey composed the firm of Dailey Bros., supplemented by an answer in the deposition of Catherine F. Dailey, stepmother of the defendants, to the same effect and a further answer that it was John Dailey who endorsed the check.

But, leaving out of account that it is a very doubtful proposition, considering the presumptions concerning signatures necessary to the negotiation of commercial paper, whether, if the non-membership of John Dailey in the firm of Dailey Bros, was to be taken as proved, this would furnish even sufficient prima facie evidence of the endorsement being without authority, we do not agree with the plaintiff’s contention that the non-membership of John Dailey was proved. Fen-ton declared that his knowledge was derived from Samuel and Homer Dailey’s statement to him. That was pure hearsay, only admissible against Samuel and Homer Dailey, as an admission against their interest, not as self-serving testimony in their favor. (Rush v. Thompson, 112 Ind. 158.) But the attaching creditor, who is suing Samuel and Homer Dailey alone, is pursuing the garnishee in their right. His interest in this draft is their interest, not one adverse to them. The interest of the garnishee and of the interpleader, on the other hand, comes from John Dailey’s action and is in privity with his interest. The testimony of Fen-ton, therefore, is clearly inadmissible and worthless as against the garnishee to prove John Dailey not a member of the firm.

Mrs. Dailey’s testimony to the same effect is rendered futile by the fact that in the same deposition she retracts it. "When asked, “Who gave him (John) the authority to endorse the name of ‘Dailey Bros.?’ ” she answered: “He is one of the Dailey Brothers you know.” The inquiry then proceeded:

“Q. He was not a member of the firm of Dailey Bros. ?
A. I could not tell you that part of it.
Q. You have said he was not.
A. I don’t know whether all four of them were in it. All four of them are Dailey Brothers.”

Fenton’s and Mrs. Dailey’s testimony is all the evidence relied on by the plaintiff to show that John Dailey was not a member of the firm of Dailey Bros.

On the other hand, the record shows that there were four brothers named Dailey connected with the transactions out of which this controversy sprung. They were the sons of Michael F. Dailey, deceased. Their names were Samuel, Homer, John and Charles. The witness Perlman of the Jareeki Manufacturing Company says: “The Daileys were contractors of big oil wells,” and it appears that the widow of Michael F. Dailey was also interested in oil wells. The original debt in question here was for things needed in the construction of an oil well. One of the witnesses called by the plaintiff, an officer of a bank doing business with the family, in answer to the question, “Do you know who composed the firm of Dailey Bros.?” answered, “I don’t know to a certainty—sons of Michael Dailey. ”

The widow of Michael F. Dailey, through whose negotiations the draft came to the garnishee ultimately, had an account with the bank dating back to her marriage with the father of these four sons, and, as already noted, was herself interested in oil wells, and seems at times to have acted as treasurer for the boys ’ business, although as to the draft involved here, the most definite evidence there is about it shows that she was a holder for value. At all events the positive evidence is that the Studebaker Bank was such a holder.

The plaintiff’s manager, going to the Dailey farm, as he says, to investigate the truth of Samuel’s taking the check and leaving the neighborhood; talked about the matter with John and Charles, as well as Homer, and says that John spoke about the injury that Sam had done “them” in getting a check for a well which he was to send “them” and “skipping” with it and leaving “them” in the lurch; and it was John apparently who in the same conversation at which all the brothers except Samuel were present, said that it was their intention as soon as they received the check to take it to the plaintiff’s office and pay the claim.

There seems as much competent evidence showing that John was a member of the firm as that Homer was. The yard foreman for the plaintiff company says that Samuel alone ordered the goods that were delivered by that company.-

It appearing under this state of the evidence that John endorsed the draft “Dailey Bros.,” and that so endorsed it came into the hands of a purchaser for value, we think that the plaintiff was very far from sustaining the burden cast upon it by any theory on which it could hold the garnishee, to show that the endorsement was a forgery or without authority.

We are somewhat at a loss to know why the first judgment, which seems to us correct in dismissing the interplea after discharging the garnishee, should have been vacated and one substituted which adjudicated costs in its favor but gave no other relief to the inter-pleader. In a case like this, where the property attached is alleged to be an indebtedness to be reached by garnishment, and the garnishee answers that it owes nothing to the defendants, the finding of the issues in its favor seems to us to leave nothing to be done to the interpleader’s petition but to deny or dismiss it.

The twelfth assignment of error questions the rightfulness of this judgment for costs. Although it is not specifically argued, we must hold it well assigned. So far as the judgment of the Municipal Court gives costs to the Studebaker Bank against the plaintiff it is reversed; in all other respects it is affirmed.

Reversed in part and affirmed in part.


text:
    R. D. Nuttall Company, Defendant in Error, v. Armac Motor Company, Plaintiff in Error.
    Gen. No. 15,858.

      Sales—effect of acceptance of merchandise sold under executory contract. In the absence of fraud or latent defects, the aeeeptance of articles sold under an executory contract after an opportunity to examine them, is an assent and agreement that the quality and workmanship is satisfactory and as conforming to the contract, bars a claim for compensation for any defect that may exist in the articles and also bars the right of rescission.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1909.

    Affirmed.
    Opinion filed October 5, 1911.
    Statement by the Court. This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago, sitting without a jury, in favor of B. D. Nut-tall Company, a corporation, against Armae Motor Company, a corporation. The judgment is for $121 and costs. The defendant (plaintiff in error here) claims that the judgment should instead have been for $200 on a counter claim filed by it. The suit by the plaintiff was to recover the balance of $121 due on the sale and delivery of gear wheels to the defendant to the amount at a stipulated price of $1035. Nine hundred and fourteen dollars had been paid on this account previous to the bringing of this suit. In defending, the defendant by affidavit set up “an offset or counter claim against the said plaintiff in the sum of $200 for-defective gear wheels furnished by plaintiff to the defendant, which were used in construction of its engines, but by reason of defect in cutting and also in failing to fasten the said gear wheels to the intermediate shaft as directed, the defendant was required to and did take apart the said engines and correct the defects aforesaid.”
    Various propositions of fact and various propositions of law were submitted to the court by each party at the trial, some of which it held and some of which it refused to hold. They appear in the Transcript of the Record in this court.
    The assignments of error made by the plaintiff in error in this court attack generally the finding and judgment of the court for the plaintiff, and particularly the holding of certain of the propositions of law and of fact tendered by the plaintiff and refusing to hold certain propositions tendered by the defendant.
    Thornton & Chancellor, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.
   Mr. Presiding Justice Brown

delivered the opinion of the court.

We do not think it necessary in deciding this case to discuss all the propositions of the law of sales, which were set forth in the propositions of law tendered to the court by the respective parties and have been argued herein. One which was properly held by the trial court was sufficient to control the disposition of the suit.

It was “That in the absence of fraud or latent defects, the acceptance of articles sold under an executory contract after an opportunity to examine them, is an assent and agreement that the quality and workmanship is satisfactory and as conforming to the contract, bars a claim for compensation for any defect that may exist in the articles and also bars the right of rescission.”.

This correctly states the law. That it is applicable to the facts of this case and that the defendant’s counter claim of setoff is barred by it, we think it only needs an examination of the correspondence, chronologically arranged, to see.

The correspondence between the plaintiff and defendant seems to have opened by a letter of the Motor Company to the Nnttall Company of December 20, 1906, referred to in an answer to that letter by the Nuttall Company on December 28, 1906. The letter of the Motor Company had contained apparently a request for prices of gears like a sample forwarded. After a further interchange of letters, the Motor Company on January 14, 1907, asked the Nuttall Company to make them 25 sets of gears, saying that they wanted the 25 as a sample and “if the samples were correct in every detail” they would then order 500. This order the Nuttall Company immediately acknowledged. Following this was some correspondence explaining details. On April 27, 1907, the Motor Company wrote the Nuttall Company:

“The gears arrived and look very nice. On some of them we find a rather poor thread and with, that exception they seem to be all right. You may enter our order for 500 of each size to be exactly like the twenty-five which you sent us and to have perfect threads, and we should like say 50 of each size sent us at once if possible and would like 50 more in two weeks, and thereafter if you could send us 100 of each size every month it would help us out very nicely. We use these in sets of three, one of each size on an engine, and so that when we order say 50 of each size we mean 50 sets. Kindly let us know if you could make an immediate shipment of 50 sets. If not, how soon will you be able to accommodate us with say 50, and advise whether or not we may expect you to ship us 100 set per month until the order is filled.”

May 7, 1907, the Motor Company again writes the Nuttall Company, expressing impatience at not having had an answer to theirs of April 27th.

Under date of May 8th the Nuttall Company, sends an acknowledgment of receipt of order of April 27th and notes that it is to be careful in the threading, because of complaint in previous order, and that 50 sets (i. e. 150 out of the 1,500 gears ordered) are to, be delivered as soon as possible, 50 to follow in two weeks and balance 100 a month.

The first gears—150 (50 sets)—were shipped June 17, 1907, and the rest as follows:

150 on June 26, 1907;
300 on July 11, 1907;
300 on July 27, 1907;
135 on Aug. 10, 1907;
255 on Aug. 16, 1907;
61 on Aug. 25, 1907;
149 on Sept. 24, 1907.
Total 1500.

Some question was made about the dates of shipment or delivery by a witness for the defendant (the goods came from Pittsburg to Chicago), and counsel for the plaintiff in error have fallen into the very vital mistake of supposing (according to their argument) that the first shipment was delivered in August, 1907, and the last one in August, 1908. But nothing is more certain than that the shipments were made at or about the dates specified above and delivered shortly thereafter, according to due course. Not only is this the testimony of Mr. Allen, the bookkeeper of the Nuttall Company, who swears to the correctness of the statement showing these dates, but it is in substantial accordance with the terms of the order and is shown to be the fact by the whole course and tenor of the subsequent correspondence. Thus on August 11, 1907, the Nuttall Company received from the Motor Company payment according to the agreed price for the shipments of June 17th and June 26th, and on September 18, 1907, for the shipment of July 11th.

August 27, 1907, when certainly 149 and probably 210 gear wheels were yet to be received by the Motor Company, it writes to the Nuttall Company: “We wish to inform you that we have had some trouble with the pin breaking in the intermediate gear wheels which we purchased from you. Kindly see if you cannot remedy this.”

It may be noted that no other complaint was made in this letter, although the shipments were so nearly concluded and although it is now claimed by the defendant that there were defects in the gears plainly apparent to the naked eye.

But stranger still, if the present contention of the defendant be correct, was its subsequent action. On September 24,1907, the last shipment was made. After that delivery had been made and the credits of the two payments already made given, the account against the Motor Company" in favor of the Nuttall Company was $621. But it is evident that the agreed terms of' payment, which are not given in the evidence, had not made the $102.05 accruing from the shipment of September 24th then due. On October 12, 1907, the manager of the Motor Company writes a very apologetic letter to the Nuttall Company, saying that the treasurer is absent from the City, which accounts for delay in remitting, but that patience will result in a check being sent.

October 28, 1907, the Nuttall Company writes the Motor Company, pressing for payment of the overdue balance of $518.95 ($621 less $102.05), “considerably past due.” Later it telegraphed to the same effect, and November 7, 1907, the manager of the Motor Company writes, regretting inability to remit, the company having, as he says, “about the worst time in its existence in making collections;” they “hope in the very near future to satisfy the claim.”

There followed another dunning letter from the Nut-tall Company on November 16th, and on November 27th, when the $102.05 for the last shipment had evidently become due, it writes relative to the “overdue balance” of $621.

The Motor Company was short of money and wrote on November 30th, on December 6th and on December 11th apologetically, promising payment in the near future and thanking the Nuttall Company for its indulgence and leniency, but never hinting at any dissatisfaction with the amount of the claim. On December 23, 1907, the Motor Company sent the Nuttall Company a check for $150, the first payment since September 18th, and promised more in January. In January, 1908, it sent $100 more, in February, $100, in March, $50, on June 8th, $50, and on June 30th, $50. The correspondence, however, on the part of the Motor Company was by no means confined to the letters which enclosed these remittances. At least three other letters between January 1, 1908, and July .1, 1908 (answering requests from the Nuttall Company for remittance), appear in the record, all, like the ones enclosing the checks, apologetic and deprecatory, and-no one suggesting any dissatisffiction with the goods or the account. After the payment of June 30, 1908, there was only $121 due, the amount later sued for and recovered in this suit; and on that date the Motor Company wrote that just as soon as they had remittances from the Coast which they were expecting they would see that the Nuttall Company was ■ taken care of, and requested further patience. The Nuttall Company on August 22, 1908, reminded the Motor Company that the account had been running a full year. On October 7th, 1908, the Motor Company wrote by the hand of Mr. Hartenstein, its president and manager, as he testifies, the letter om which it relies to show its complaint about the gears. This letter the Nuttall Company does not admit receiving, but we may assume that if sent it was received. It runs as follows:

“We have been doing all we can to wipe out your account, but must candidly say that your gear wheels are getting worse as we continue to use them. They run all the way from 5-1000 to 25-1000 of an inch out of regular size, which any ordinary person can see without using a pair of callipers, center pins breaking and not a tight pin in any of them. We will be compelled to make new pins for over 100 sets. Can you suggest anything in the matter? Trusting to hear from you promptly, we beg to remain.”

If this letter is to be construed as evidence of a rejection of any of the goods or a counter claim for damages, it came too late. It was, moreover, strange in that view that it should be followed by a letter from the Motor Company to the Nuttall Company on October 22, 1908, in which they promise to remit “about the 8th of the coming month,” and close by saying that they trust that the Nuttall Company “will have patience with them for a short time” and thank them “for the leniency extended in the past.”

The judgment of the Municipal Court is affirmed.

Affirmed.