text:
    Horace J. Eggmann, Appellee, v. Charles B. Nutter et al., Appellants.
    1. Instructions—when upon burden of proof erroneous. If the burden is upon the plaintiff upon the whole case to show such a state of facts as will authorize him to recover, it is error for the court to instruct the jury in substance that it is incumbent upon the defendants to establish by a preponderance of the testimony the truth of the defense which they have pleaded.
    2. Alteration of instruments—burden of proof to establish. After proof by defendants tending to show alteration, the burden of proof on the whole case is then upon the plaintiff to show that no such alteration was made or that it was made with the consent of the defendants or that they ratified the same.
    3. Evidence—when improper should be excluded. It is error for the court to refuse to exclude improper and irrelevant evidence at any time on motion to exclude, before argument, although not objected to when offered.
    4. Evidence—what not competent to impeach. It is not competent to impeach a witness by showing that the reputation of such witness “for honesty and prompt payment of debts in the community in which he lived” was bad.
    Assumpsit. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed April 9, 1910.
    D. E. Keefe and N. C. Lyrla, for appellants.
    Eggmann & Eggmann and Kramer, Kramer & Campbell, for appellees.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an action of assumpsit brought in the City Court of East St. Louis by Horace J. Eggmann against Charles B. Nutter, C. L. Nutter and John W. Sanders, appellants, on a promissory note for $250, dated September 11, 1905, due September 1, 1906, payable to order of John E. Miller and Horace J. Eggmann with 7 per cent interest per annum, signed by appellants, and endorsed by John E. Miller to appellee. The declaration contained a special count on said note and . also the common counts.

The appellants denied the execution of this note, filing the plea of non est factum sworn to by all of them, and issue was joined thereon. After a jury trial the court overruled appellants’ mption for a new trial and entered judgment in favor of appellee and against appellants in the sum of $308.33.

The contention of the appellants in the court below was that this note was signed by all of them; but that at the time they signed and delivered it that there was only one payee named in the note, to wit, John E. Miller, and that the name of Horace J. Eggmann was not at those times mentioned or described in said note as a payee. They also contend that they have never at any time consented to the name of Eggmann being added as payee, have never ratified the same, and that said note was materially altered by the adding of the name of said payee, and that therefore there could be no action maintained against them thereon. The evidence of the two Nutters was to the effect that said alteration was made without their consent or knowledge. They also introduced a receipt signed by Horace Eggmann, dated Sept. 12, 1905, in this language: “Received of C. B. Nutter note for the sum of two hundred fifty dollars, dated Sept. 11, 1905, payable to John E. Miller, and payable Sept. 11, 1906; said note being signed by Charles B. Nutter, C. L. Nutter and John W. Sanders. Said note being given as a guarantee for the payment of one-half of lease rent of Miller farm, due Sept. 1, 1906.” John W. Sanders, appellant, did not testify. The payees in this note both testified positively that the note when appellants signed and delivered it to them, was in the identical same condition that it was in when sued on and read in evidence, and that there is not, and there never was, any alteration to said note. Eggmann admitted writing the receipt above named; but stated that the omission of his own name as a payee was a mere oversight, and that the receipt was intended to describe the note in question. The other evidence for plaintiff was of the bankers who had the note for collection, concerning notices given, and had little bearing on the main question of •alteration. There was also some evidence of impeachment offered by plaintiff which will be considered later.

Appellants insist here on this appeal (1) that the •court gave erroneous instructions; (2) that the court admitted improper evidence.

First. In the giving of plaintiff’s third and fifth instructions the court erred, as they are not accurate ■statements of the law. The fifth instruction told the jury in substance that it was incumbent on the defendants to establish by a preponderance of the testimony the truth of the defense which they have pleaded before they could recover, and the same meaning is to be found in the third. “Upon the whole case the burden of proof is on the plaintiff to show such a state of facts as would authorize him to recover.” Conkling v. Olmstead, 63 Ill. App. 649; Merritt v. Dewey, 218 Ill. 605.

When the plaintiff proved the signature of the appellants to the note in suit, the note was properly admitted in evidence, there being no alteration apparent on the face of the note. The burden was then cast on the defendants, to introduce evidence proving or tending to prove that the note was altered since its delivery, as the plaintiff had made a prima facie case. But after proof by appellants tending to show alteration, the burden of proof on the whole case was then on plaintiff to show that no such alteration had been made, or that it was made with appellants’ consent, or that they had ratified it. See same case above cited.

Second. The plaintiff introduced evidence in this case that the reputation of C. B. Nutter “for honesty and prompt payment of debts in the community in which he lived was bad.” It is true that when this evidence was introduced the only objections made to it by the appellants’ counsel were that the witnesses were not sufficiently acquainted with his character, or that he was not shown to live in the community inquired about, and other such objections as were untenable. But after it was suggested by the court that this character of evidence might not be proper, appellants’ counsel, then moved to have this evidence excluded and stricken from the record, but the court' denied the motion because no sufficient objection was made to it when it was offered and given. By the law of some states the court’s action could be sustained in this regard. Burr W. Jones on Ev., 3 Vol., Sec. 896. But even under those authorities the trial court may of his own motion and without objection exclude the evidence if improper. Our courts are thoroughly committed to the doctrine that it is error in the court to refuse to exclude improper and irrelevant evidence at any time on motion to exclude, before argument, although not objected to when offered. Greenup v. Stoker, 2 Gilman, 688; Pittman v. Gaty, 5 Gilman, 186; Wickenkamp v. Wickenkamp, 77 Ill. 92; Chicago P. & St. L. Ry. Co. v. Blume, 137 Ill. 448; Maxwell v. Durkin, 185 Ill. 550; Sailors v. Nixon-Jones Printing Co., 20 Ill. App. 509.

There can be no question as to the point that the evidence was improper, and most damaging to the defense. There can hardly be introduced a more damaging character of evidence before a jury where the issue involved is a question on the validity of a promissory note. The evidence was very conflicting, and it is mandatory in the eyes of the law, that the instructions be accurate and that all improper evidence be excluded. As the case must be tried again, we refrain from a further discussion of the case on its merits.

For the errors indicated the judgment of the lower court is reversed and the cause remanded for further proceedings.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Johanna Timmerhoff, Plaintiff in Error, v. The Supreme Tent of the Knights of the Maccabees of the World, Defendant in Error.
    Gen. No. 14,926.
    1. Contracts—what essential to establish invalidity. The right to contract is not derived from the government or from the law but is inherent No contract is to be presumed as unlawful unless there be some statutory provision or principle of the common law inhibiting the same.
    2. Contracts—when fairness cannot be questioned at law. The fairness of a contract made between parties competent to contract is not a subject of inquiry in an action at law where no fraud or overreaching is claimed.
    3. Fraternal benefit societies—what by-laws prescribing conditions precedent to resort to courts valid. By-laws of a fraternal benefit society which form a part of the contract with a member are valid which provide as conditions precedent to the resort to the courts, the submission of certain ex parte proofs and the presentation of claims against benefit funds to certain tribunals of the order.
    4. Fraternal benefit societies—validity of by-laws fixing time for suit. A by-law of a fraternal benefit society forming a part of the contract with a member fixing the time within which suit must be brought, is valid.
    5. Fraternal benefit societies—what not commencement of suit within time fixed by by-law. If a suit brought within the time fixed by by-law of the society is dismissed, a new suit brought after the lapse of such time, is not a compliance with such by-law.
    6. Tribunal—meaning of term. The use of the term “Tribunal” implies in the body concerning which it is used the possession of power of decision of adjudicative effectiveness and the power of Adjudication is a governmental power—an exercise of the sovereign power of the State.
    7. Estoppel—effect of the decision of a non-judicial agency. The most conclusive effectiveness that can result from a submission of a claim or controversy to a non-judicial body or agency is an estoppel in pais.

    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.
    Statement by the Court. Plaintiff’s deceased husband was, in his lifetime, a member of the defendant fraternal benefit association. A benefit certificate was issued to him when he became such member, on November 20, 1900, whereby the association agreed, upon his ■death, to pay to plaintiff one assessment to be levied on the defendant’s membership, not to exceed in amount $2,000. The husband, Kasper Timmerhoff, ■died on November 8, 1901. The defendant refused to make any payment and plaintiff brought this suit on .July 7, 1904, which resulted in the judgment against the plaintiff now before this court for review.
    A declaration was filed consisting of one special ■count and the common counts. To this declaration defendant filed three pleas, namely, the general issue, plea of a contract limitation requiring suit to be brought within one year after final denial of the plaintiff’s claim and a plea that Kasper Timmerhoff committed suicide which, under the contract, absolved defendant from liability to pay anything upon his death.
    Plaintiff filed a similiter to the plea of general issue, obtained leave to and did reply double to the second plea by filing three replications, and denied that Timmerhoff committed suicide, as averred in the third plea, •and put herself upon the country thereupon. Defendant then withdrew its first and third pleas and filed a ■general demurrer to plaintiff’s three replications to the .second plea. These demurrers were sustained by the court and plaintiff electing to stand by her replications the court rendered judgment against her .and she now prosecutes this writ of error to reverse that judgment.
    Albert J. W. Appell and W. S. Johnsoh, for plaintiff in error.
    H. H. C. Miller and W. S. Oppehheim, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The Circuit Court having disposed of the ease by sustaining the demurrers to the plaintiff’s replications to the second plea, nothing is before us except the question of the sufficiency in law of the matters presented by those replications.

The second plea of the defendant, to which these replications are addressed, is, in substance, that plaintiff is not entitled to recover anything because when Kasper Timmerhoff became a member of defendant association, November 19,1900, he agreed that the laws of defendant should constitute part of the contract between defendant and himself; that among those laws there were two sections, namely, 485 and 496, as these sections are later herein set forth; that plaintiff’s claim was. submitted to the Board of Trustees mentioned in section 485 and that that Board examined, rejected and denied the claim on January 24, 1902; that immediately upon such rejection and denial the Board notified plaintiff thereof and no appeal was taken to the Court of Appeals mentioned in section 485; consequently, the decision of the Board of Trustees was a final denial of the claim; and that plaintiff did not institute her suit within one year next after the final denial of her claim by defendant association.

Plaintiff’s first replication to the second plea is that plaintiff ought not to be barfed from recovery because she says that the provisions of said sections 485 and 486 are unreasonable, against public policy, unlawful and void.

Her second replication is that she ought not to be barred because, on January 31, 1902, within a year of the rejection of her claim, she instituted a suit upon her claim in the Superior Court of Cook county. The suit this replication sets up was dismissed, in her absence, upon motion of the defendant, on April 8,1904.

The substance of her third replication is that, by reason of anything contained in said section 496, she was not required to bring suit to enforce collection of her claim until she had -submitted her claim to the “various” tribunals of defendant and these tribunals had rejected her claim; that the various tribunals of the defendant referred to in said section 496 were as designated and provided for in defendant’s by-laws in other sections, which other sections are hereafter set forth; that her claim was submitted to the Committee on Claims and was rejected by that Committee but it “was never submitted to any other tribunal” of the defendant and that her claim never was rejected by the various tribunals of defendant as required by the laws of defendant, wherefore she ought not to be barred of this her • action.

These three replications all concluded to' the country.

The by-laws of defendant set up by the pleadings are as follows:

‘ ‘ Sec. 474. On the death of a life benefit member in good standing, notice thereof shall be sent to the Supreme Record Keeper by the record keeper of the tent to which the member belonged.
“Sec. 475. On receipt of such notice the Supreme Record Keeper shall forward to the record keeper of the tent blank forms, in duplicate, for proofs of death, together with blanks for claimant’s affidavits, which must be filled out and sworn to by the beneficiary.
“Sec. 478. The proofs shall also include the affidavit of the attending physician or physicians, stating the disease of which the member died, the duration of illness and date of death; also the affidavits of the clergymen officiating at the funeral and the undertaker in charge, together with such other sworn testimony as may be required by the Supreme Eecord Keeper or Supreme Commander to fully establish the death and identity of such deceased member.
“Sec. 479. The proofs shall be forwarded without unnecessary delay to the Supreme Eecord Keeper, together with the deceased’s certificate of membership, and shall constitute the claim of the beneficiary against the life benefit fund. The Supreme Eecord Keeper shall present the proofs of the Committee on Claims as provided in the by-laws.
“Sec. 480. The Supreme Commander, Supreme Eecord Keeper and Supreme Counselor shall constitute the Committee on Claims of the Supreme Tent, to which shall be referred all claims against the benefit funds of the Association.
“Sec. 482. Claims not approved by the Committee on Claims, or a majority thereof, shall be referred to the Board of Trustees.
“Sec. 485. If the Board of Trustees approves a claim it shall be paid at once by warrant on the proper fund; if the Board rejects the claim, it shall give immediate notice thereof to the claimant, and unless the latter appeals to the Court of Appeals, as provided in these laws, such decision shall be a final disposition of the claim.
“Sec. 489. If the Court of Appeals rejects the ■claim, immediate notice thereof shall be given to the claimant. Such rejection shall be a final disposition of the claim unless the claimant appeals to the Supreme Tent. In case of an appeal by the Supreme Commander, from the action of the Court of Appeals on behalf of the Supreme Tent, notice thereof shall be given at once to the claimant.
“Sec. 493. No suit at law or in equity shall be commenced or maintained against the Supreme Tent by a member or by any beneficiary or any person claiming under any certificate of membership, until after such member, beneficiary or claimant shall have exhausted every remedy provided by these laws, and submitted his claim to the Committee on Claims, the Board of Trustees, the Court of Appeals and the Supreme Tent, in the manner in these laws provided.
“Sec. 496. In all claims against the Supreme Tent, that have been submitted and-denied by the various tribunals of the Association, no suit in law or equity shall be commenced or maintained unless the same is instituted .within one year after the final denial of such claim.”

The first and most important question arises upon plaintiff’s first replication. The defendant is a voluntary organization and not one for pecuniary profit to stockholders It is an organization for the mutual aid and benefit of the members thereof and to enable members to make some provision for their families at death. The nature of the organization, necessarily known to Kasper Timmerhoff when he joined and became a member, must be taken into consideration in construing the contract involved. This contract consists not only of the promise that upon his death a sum of not exceeding $2,000, to be raised by assessment upon the surviving members, would be paid to his beneficiary but, also, of the provisions in the by-laws as to the terms and conditions upon which it would be paid. The bylaws provide that upon the death of a member the record keeper of the tent, that is, the subordinate lodge, to which the member belonged, shall send a notice of the death to' the Supreme Record Keeper; that upon receipt of the notice the Supreme Record Keeper shall forward to the record keeper of the tent forms for proofs of death and for affidavits to be filled out and sworn to by the beneficiary and the proofs of death shall include certain specified papers, together with such other sworn testimony as may be required by the Supreme Record Keeper or Supreme Commander “to fully establish the death and identity” of the deceased member; that, without unnecessary delay, the proofs shall be forwarded to the Supreme Record Keeper, together with the decedent’s membership certificate and this “shall constitute the claim of the beneficiary”; that the Supreme Record Keeper shall present the proofs to the Committee on Claims and claims not approved by a majority of that committee shall be referred to the Board of Trustees; that if that Board rejects a claim it shall give immediate notice of the rejection to the claimant “and unless the latter appeals to the Court of Appeals, as provided in these law, such decision shall be a final disposition of the claim; ” that if the Court of Appeals rejects the claim immediate notice of such rejection shall be given to the claimant and “such rejection shall be a final disposition of the claim unless the claimant appeals to the Supreme Tent; ” that no suit shall be commenced or maintained against the Supreme Tent “by a member, or by any beneficiary or any person claiming under any certificate of membership, until after such member, beneficiary or claimant shall have exhausted every remedy provided by these by-laws and submitted his claim to the Committee on Claims, the Board of Trustees, the Court of Appeals and the Supreme Tent, in the manner in these laws provided”; and that “In all claims against the Supreme Tent that have been submitted and denied by the various tribunals of the Association no suit in law or equity shall be commenced or maintained unless the same is instituted within one year after the final denial of such claim.”

It is contended on behalf of plaintiff that this contract between the parties is unlawful and void because it abridges plaintiff’s right to resort to the courts. In argument plaintiff’s attorneys treat the provisions of the by-laws we are concerned with in this connection merely as by-laws of an insurance company. We think that in determining the questions raised in this case it is more accurate to regard the provisions as part of the contract between the decedent and the association.

It must be borne in mind that courts will not lightly lay hands upon and abrogate or destroy contracts between parties. In Mathews v. People, 202 Ill. 389, at page 401, our Supreme Court said: “It is now well settled that the privilege of contracting is both a liberty, and a property right,” and announced that “liberty” includes the right to make contracts and to have them enforced, because the right to make contracts and to enforce contracts is included in the right to acquire property. In that case the Supreme Court also pointed out that liberty of contract is guaranteed and protected both by the federal and the state constitutions. Indeed, it has been truly said by the Supreme Court of the United States that the right to contract is an inherent right and antedates the formation of governments and the enactment of laws. The right to enter into contracts is not derived from the government, but exists independent of government and of the laws. No contract is to be regarded as unlawful unless some statutory provision or principle of the common law inhibiting the same be pointed out. A wrongful abrogation or destruction of a contract by either a legislature or a court, or by any state agency, would be an unlawful invasion of a right protected by both the federal constitution and the constitution of this state.

After carefully considering the provisions in the bylaws presented to us, which are above set forth, we do not find that they are designed or intended to prevent parties, either the member or beneficiaries, from appealing to the courts for relief if not paid when they conceive themselves entitled to payment. On the contrary, the provisions contemplate possible application to the courts. True, it is provided, as a condition precedent to application the courts, certain ex parte proofs of claim, by way of affidavits and otherwise, shall first be submitted to the association; but we see nothing unlawful in parties embodying such provision in their contract if they choose. Certainly we cannot hold that such provision in a contract between parties sui juris is so- unreasonable that courts will not enforce it. There is no. general rule of law in this state to the effect that it is unlawful to embody in contracts conditions precedent to application to the courts in case of breach. On the contrary it is well established as the law here that parties may insert in their agreements conditions precedent to bringing suit; that such provisions are -not agreements to oust the courts of their jurisdiction and that such provisions will be respected by the courts. Niagara Fire Insurance Co. v. Bishop, 154 Ill. 9. The submission of the claim provided for in the contract involved in the case at bar is rather an ex parte proceeding upon evidence submitted by the claimant than a trial or hearing in the nature of a judicial proceeding or an arbitration; and this fact militates against the idea that the submission was designed to be such a determination or adjudication as would preclude the bringing of a suit. Considerable stress is, in argument, laid upon the fact that submission of the claim must be made to “tribunals of the society” as they are called, and that such requirement is unreasonable and against public policy and hence unlawful and void. True, the Committee on Claims, the Board of Trustees, the Court of Appeals, so-called, and the Supreme Tent are all agencies of the Association, but, as already stated, our construction of the contract is that the parties did not grant or invest these bodies collectively, or any of them, with power of decision conclusive upon the merits. These agencies are only to determine whether or not the association shall voluntarily pay the claim presented, that is, pay without suit. The association is not an organization for profit to owners or stockholders and, in view of its fraternal and mutual nature, it is particularly desirable that the investigation of claims presented should he most thorough and careful before payment. The members of the association in adopting these by-laws apparently acted upon the theory or policy that if one body alone possessed the power of determining what claims should be paid, the power of that body would be too great for the welfare of the association as a whole. We know of no principle of law under which such policy can be held unreasonable and void. In determining upon this policy of the association every member, undoubtedly, had an equal voice. In selecting the agencies referred to, also, every member, including the deceased, undoubterly had an equal voice. In a sense, each of the bodies represented each member, including the deceased, as well as the association. We see nothing so unreasonable as to be unlawful in an organization of a mutual nature, such as this defendant, requiring that claimants, whether members or the beneficiaries of deceased members, shall submit their claims not only to one but to two or three agencies, of the association to pass thereupon and determine whether the association shall voluntarily pay. It may be, to some extent, onerous upon the claimant but, according to the determination of the members of this association, including decedent, the best interests of all the members of defendant, collectively, demanded such rule. At all events the decedent by becoming one of the members of defendant and voluntarily contracting for such submission agreed thereto. The member’s beneficiary can have no greater right to repudiate the member’s contract than the member himself had. We do not find the contract for such submission to be either malum per se or malum prohibitum. In no manner and to no extent do the contract provisions complained of abridge the right to resort to the court except in that the claim must first be submitted to the mentioned agencies of the defendant association and in that there is a contractual limitation upon the time within which suit must be brought. In neither respect is there any violation of law.

It is a well-established principle of the common law that parties can by contract for life or fire insurance fix a time within which suit must be brought after death or fire. Baker v. Baker, 139 Ill. App. 217; Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386; Peoria M. and F. Ins. Co. v. Whitehill, 25 Ill. 382 (466). These contracts between mutual benefit associations and members are analogous and similar in their nature to life insurance contracts. There is no reason why the doctrine of validity of contractual limitations upon the time within which suit must be brought should not be applied to mutual benefit association contracts.

Plaintiff’s attorneys contend that C., B. & Q. Ry. Co. v. Hendricks, 125 Ill. App. 580; Great Hive L. of the M. M. v. Hodge, 130 Ill. App. 3, and Sup. C. of I. Order of Foresters v. Mutter, 105 Ill. App. 518, sustain plaintiff’s contention that the by-laws requiring her to submit her claim to defendant’s various tribunals before she could commence or maintain any suit at law or in equity are void. At the start, let us not be misled by the use of the. term i£tribunals.” The use of that term, speaking accurately, implies that bodies concerning which it is used possess power of decision of adjudicative effectiveness. Adjudication is a governmental function, the exercise of the sovereign power of the state. Kelly v. Fahrney, 145 Ill. App. 80, 99-100. Plaintiff’s attorneys, however, as we understand, mean that the by-laws requiring plaintiff to submit her claim to the various agencies or bodies selected and established by defendant, before she could commence or maintain any suit, are void. The most conclusive effectiveness that can result from a submission of a •claim or controversy to a non-judicial body or agency is an estoppel in pais. This estoppel is, however, in many instances but not in all, of equal preclusive effectiveness with an estoppel of record, i. e. the decision of a court.

Before taking up the above cases presented on behalf of plaintiff we will consider People v. Order of Foresters, 162 Ill. 78, and Supreme Lodge O. M. P. v. Meister, 204 Ill. 527, cited in the presented cases as sustaining the contention of plaintiff. It is our imperative duty to obey and our sincere respect inclines us to follow the decisions of our Supreme Court. At the same time we are burdened with the duty to differentiate between what that court has decided and what may be merely an expression in one of its opinions, not necessary to the decision of the particular ease. In the opinion in the celebrated case of Cohens v. Virginia, 6 Wheat. 264, Chief Justice Marshall, at page 399, said: “The counsel for the defendant in error urge, in opposition to this rule of construction, some dicta of the court in Marbury v. Madison.

“It is a maxim not to be disregarded that general expressions, in every opinion,- are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible-bearing on all other cases is seldom completely investigated.”

The case of People v. Order of Foresters involved the exercise of the power of expulsion by the Foresters, a fraternal benefit organization, i. e., the power of disciplining its members. That case was a mandamus proceeding whereby the relator, who had been expelled, sought reinstatement. The case, as therein stated, is one that “fairly presents the question, whether the relator could resort to the courts * * * without first exhausting the remedies secured to her by the constitution and by-laws of the order itself. ’ ’, The court carefully considered that question and held that the relator could not resort to the courts until she had first prosecuted the- appeals provided for in the by-laws of the order. In other words, as she had agreed to resort to such remedies as the constitution and the by-laws of the order provided, she must first exhaust those before she would have a standing in court. In the opinion in that ease (p. 83) it is said: “It is to be remembered, however, that there is a clear distinction between the obligation to appeal from the lower to the higher tribunals of the society itself resting upon one who presents a question of discipline, and such obligation so far as it concerns one who asserts a claim to money due upon a contract. Where the controversy is concerning the discipline or policy or doctrine of the order or fraternity, the member must resort to the method of procedure prescribed by the association including the remedy by appeal, before invoking the power of the courts. But it is otherwise, where a member claims money due from the society on its contract, or where the beneficiary of a deceased member claims money due from the society on its contract of insurance.” It will be observed that the same provisions in the same contract are in that case declared to be both valid and effectual and invalid and ineffectual, as contractual provisions, dependent upon the relief sought from the court under the contract. But what is declared in that case to be the law in instances where relief is sought upon “a claim to money due upon a contract” is clearly obiter dictum, for there was no such claim involved in the case.

The expression in the Meister case, 204 Ill. 527, favorable to plaintiff’s contention herein, is predicated wholly upon the authority of the Forester case. In the Meister case the court had before it a suit in assumpsit upon a benefit certificate similar to the one at bar. In that case the main controversy appears to have been in respect to a question of fact. The Supreme Court arrived at the conclusion that there was some evidence in the record which fairly sustained appellee’s contention and that therefore the judgment of the Appellate Court in respect of that question was conclusive upon the Supreme Court. After thus disposing of that question the court said: “It is also urged that the appellee is barred of a right to recover by reason of a failure to file proof of death according to' the by-laws of the appellant.” This contention the court disposed of by pointing out that after the member’s death the lodge had sent out a certain circular wherein it asserted its non-liability upon the benefit certificate in suit and holding that this amounted to a waiver of the by-law provisions requiring proof of death to be made within a specified time. And, continuing, in this same connection, the opinion further says: “Neither was it compulsory upon the appellee that she submit her claim for adjudication to the tribunal provided for in the by-laws of the appellant before she could resort to the courts by instituting suit upon said benefit certificate. People v. Order of Foresters, 162 Ill. 78. ’ ’ We have examined this Meister case with the greatest care, not only as it appears in the place -cited, but, also, as it appears in 105 Ill. App. 471, and in 78 Ill. App. 649, and nowhere do the shown facts indicate that any by-laws or contract provisions were involved similar to those we are here considering. What was said in the Meister case may, so far as we can see, have been said with reference to some tribunal, agency or body, or by-laws, entirely different from those we are now concerned with. Comprehensive as the expression used is, it could not have been intended to mean that no condition precedent to the bringing of ■suit upon an insurance contract can be valid and compulsory, for such conditions precedent have been held valid in fire insurance policies. Phenix Ins. Co. v. Stocks, 149 Ill. 319, 331-2, and Phenix Ins. Co. v. Lorton, 109 Ill. App. 63, 65. We know of no reason why, under the law, such conditions should be valid and a lawful subject-matter of contract in fire insurance contracts and not so in life insurance contracts.

The case of C., B. & Q. Ry. Co. v. Hendricks, 125 Ill. App. 580, is not at all in point upon the proposition involved in the present controversy. The provision there involved was one excluding the ordinary courts -of justice altogether. Such provisions were there held to be unreasonable. The provision here involved is different and is not designed altogether to exclude the courts.

The question in Great Hive, etc., v. Hodge, 130 Ill. App. 1, was a like question of totally excluding the ordinary courts of justice and that case is therefore not in point here. What is said in the opinion in that case regarding provisions which merely require claims to be submitted to some non-judicial body as a condition precedent to bringing suit is entirely obiter.

The case of Supreme Court of the Independent Order of Foresters v. Mutter, 105 Ill. App. 518, is in point and sustains the contention of plaintiff herein. That case involves a claim for money due upon a contract and the decision therein is based wholly upon what was said in the Forester ease first above mentioned. We regard the holding therein, so far as authority is concerned, to be founded upon an obiter dictum and as having no foundation in principle, and therefore feel obliged to differ from what is said in that case to the effect that a party to a contract or his privy may disregard a provision in the contract requiring a demand or submission of his claim, according to the contract, preliminary to bringing suit.

The fairness of a contract, made between parties fully competent to contract, is not a subject of inquiry in an action at law where- no fraud or overreaching is claimed.

Plaintiff’s second replication to the second plea, that she had begun a suit within the contractual limitation period but in her absence it was dismissed, presents no sufficient reply to that plea. Riddlesbarger v. Hartford Ins. Co., 7 Wall. (U. S.) 386, 391. What is said in the replication with reference to the court refusing to reinstate the dismissed suit is of no consequence, for this court cannot, upon this writ of error, investigate the soundness of any ruling of the trial court in that suit. Neither are we concerned with what is in that replication set up with the view of showing that the conduct of defendant’s counsel in opposing the motion made to reinstate the dismissed suit and in refusing to agree to a reinstatement thereof is unconscionable and should now operate to estop defendant from contend- . ing that the suit brought later was instituted too late. This matter does not present a reply to the second plea sufficient in law.

The third replication sets up matter in bar which, if it were sufficient for any purpose, would be matter in abatement of plaintiff’s own suit. What is there set up amounts, in substance, to this, that as yet plaintiff’s claim has not been rejected or denied by the agencies or bodies to which the contract between the parties requires it to be presented and by whom it must be rejected or denied before suit can be brought. Nothing appears in that replication which we regard as sufficient to defeat the second plea.

The record presents to us no reason for disturbing the judgment rendered and it must therefore be affirmed.

Affirmed.


text:
    Fannie J. Willard, Administratrix, Plaintiff in Error, v. The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, Defendant in Error.
    Gen. No. 14,930.
    1. Evidence—when question incompetent as catling for a conclusion. A question as follows is incompetent as calling for a conclusion: “Mr. Willard, what services were you to perform for the salary paid to you by the Pan Handle Railroad—the defendant company?”
    2. Contracts—when compensation in excess of salary cannot he recovered. If a contract upon a salary basis for legal services to be rendered in certain territory is shown, the burden is upon the claimant to show that it was the intention of the party that certain services rendered within such territory were not rendered under the salary arrangement before extra compensation can be obtained therefor.
    Assumpsit. Error to the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.
    Pliny B. Smith, for plaintiff in error.

      Loesoh, Scofield & Loesch, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This action of assumpsit was brought by plaintiff’s in error decedent. The suit is for legal services claimed to have been rendered, outside of services covered by a regular salarv received by decedent as defendant’s district solicitor. At the close of plaintiff’s ease the trial judge directed the jury to return a verdict for the defendant and upon the verdict returned accordingly rendered a judgment for the defendant. Plaintiff prosecutes this writ of error to reverse that judgment.

The controversy is whether the legal services in suit were in fact extra services, not embraced in plaintiff’s contract of employment as district solicitor, and this controversy necessarily involves an inquiry as to what the terms of the contract of employment were, with reference to the services to be rendered thereunder.

Defendant is a company, formed in 1890 by the consolidation of various railroads. One of the constituent companies is the Pittsburgh, Cincinnati & St. Louis Railway Company. In 1880 and for some time thereafter Mr. J. T. Brooks, now deceased, was general counsel for the Pennsylvania Company and for the Pittsburgh, Cincinnati & St. Louis Railway Company. Plaintiff’s decedent, Mr. Willard, was in that year engaged in the general practice of the law with offices in Chicago; and he so continued thereafter, during his employment as defendant’s district solicitor. In October, 1880, Brooks came to Chicago and engaged Willard as district solicitor for the Pennsylvania Company at a salary of $225 per month. This was a temporary employment. In February, 1881, this employment was made permanent and was extended to include the Pittsburgh, Cincinnati & St. Louis Railway Company. The employment continued after the consolidation until May, 1906. In 1892 the salaries were increased te $262.50 per month. After his appointment Willard continued the practice of the law in his own offices. Defendant furnished neither office room nor supplies, with the exception of some special stationery. The contract of employment appears to have been made verbally. Although Willard testified that his appointment was made both by letter and verbally, no letter or other written evidence of the contract of appointment was introduced in evidence.

During the trial plaintiff’s attorney, for the purpose ■of proving the scope of the contract of employment, asked the following question: “Mr. Willard, what services were you to perform for the salary paid to you by the Pan Handle Eailroad—the defendant company?” The question was objected to for various reasons and is decidedly objectionable because it called for the witness ’ conclusion and for his interpretation— not his recollection—of what was said, that is, of the language used by the parties when the contract of employment was made. In re Estate of Benton, 153 Pittsburgh, Cincinnati, Chicago & St. Louis Railway Co. App. 56. The court, however, overruled the objections made and permitted the witness to answer. Willard then answered: “Well, I was to attend to the prosecution and defense of suits to which the Company was a party. I attended to the prosecution and defense of law suits to which the railroad company was a party. I examined loss and damage claims, and heads of departments and agents of the company consulted with me whenever they had business of the company desiring my advice. That is the substance of my work.” Mr. Willard also testified that services for the company outside of those “mentioned” “were paid for by the company specially, that is, they were regarded and treated as additional to the salary fixed;” that in October, 1880, Mr. Brooks told him that the monthly salary for his services for “the Pennsylvania Company was $225 per month and that that did not include the entire benefit or compensation which would come with the office of solicitor, that outside of that regular business there would be a great deal of work which would not be paid for at a regular salary and the two taken together would be attractive;” and that in December following he had a conversation with Mr. Brooks, in Pittsburgh, in which Brooks “stated that he expected there would be a vacancy in the solicitorship of the Pan Handle Road in a short time and that the company, or he as general counsel, would add that road to my practice on the same terms that he had arranged with the Pennsylvania Company.”

On behalf of plaintiff a by-law of the defendant company, adopted September 18, 1890, relative to the duties and compensation of the district solicitors, was introduced in evidence. We see nothing material in that by-law, so far as the issues in the present suit are concerned.

As tending to prove that he was entitled to be paid for the legal services now in suit as extra services, not • included in the services he was obliged to render for the salary paid him, Willard enumerated the instances when he did work for either the Pan Handle Company (the defendant) or the Pennsylvania Company and was paid specially, outside of his salary. It appears that during the period of twenty-six years’ service by Willard upon salary, there were four such instances. The first instance was one where, at the request of the general counsel of defendant, he went to Springfield, Illinois, during a session of the legislature, to procure the passage of an amendment, which affected the charter of the defendant, to the general railroad corporation laws. This service was specially paid for by the defendant. The second instance was one where Willard rendered services at Chicago and at Springfield, in the Federal Court for the Southern District of Illinois, in a suit brought by the Keokuk and Hamilton Bridge Company against the Pennsylvania Company, the Columbus, Chicago and Indiana Central Railway Com-, pany and the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. In this instance Willard went out of Ms district in rendering services and Ms compensation, as he states, came through Brooks, the general counsel. The third instance was one where a bill for an injunction was filed against the Wabash Railroad Company and the defense was taken up by the Central Freight Association of wMch the Wabash, the Pennsylvania Company and the Pan Handle and qmte a number of other roads were members. At a meeting of the members of the association four or five lawyers were appointed to defend, and of these only three were active, one of them being Willard. For this service Willard was paid an extra compensation, which he states came through Brooks. The fourth instance was one where a sMpper of some lost freight was referred by Brooks to Willard, who prosecuted a claim therefor against the Indiana, Hlinois & Iowa Railroad Company. Willard retained his compensation for the services he rendered out of the proceeds of the collection. None of these instances have the slightest tendency or bearing in support of plaintiff’s position or claim. Particularly does this appear when it is borne in mind that Willard was appointed district solicitor for a district consisting of Cook county only and that, according to his own view, so far as suits were concerned, his salary contract only required him to prosecute and defend suits to which the company was a party.

There is no doubt that the contract was not such that Willard might not render services for defendant for which he would be entitled to special or extra compensation beyond Ms salary. Taking Ms own version of his contract, he was, nevertheless, clearly not entitled to recover special or extra compensation, beyond his salary, for the services for wMch tMs suit is brought. Those services were rendered in connection with claims against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company and the Pennsylvania Company, made or anticipated and arising out of the destruction of property in possession of those companies as freight ■during the Chicago riots, in June and July, 1894. The companies contended they were not liable to the shippers. A statute entitled “An act to indemnify the owners of property for damages occasioned by mobs and riots ’ ’ made the city of Chicago liable for the property for which claims against the companies were made or anticipated. In order to avoid suits against itself, under the direction of Brooks, general counsel, defendant procured powers of attorney from twenty-three of those who made claims against it to present and prosecute these claims against the city of Chicago, at the expense of the company, for destroyed property in defendant’s possession during' those riots. Notices to be served upon the city and these powers of attorney were sent to Willard from Pittsburgh, and Brooks directed him to attend to the claims. This was about August 1,1894. Willard instituted suits and filed declarations. The nature and character of all the claims .were the same. Some of the declarations were prepared by a manifolding process. The suits were brought in three batches. Two years elapsed before any of the cases were reached for trial. By agreement .one case, the Manhattan Company case, was tried by waiver of a jury and submission to the court. In that case a judgment for about $100 was rendered and the case was carried to the Supreme Court where the judgment was affirmed in February, 1899. Chicago v. Manhattan Cement Co., 178 Ill. 372. Two other cases were tried before juries and verdicts were returned for the defendant and set aside. None of the remaining cases was tried. Thus matters stood when Willard’s district solicitorship ceased, in May, 1906. There is no evidence of any express promise, either oral or in the correspondence, of special or extra compensation for the services rendered in these twenty-three suits. No charge against the defendant company was made by Willard in his account books for services rendered in ■connection with these claims or any of them. No claim for compensation was made by him for these services until some time after he had withdrawn his appearances at the request of the general solicitor and after the termination of his solicitorship. In explanation of these facts of no charge being made and of no claim being made until after the termination of his relation with the company, Willard testified that with reference to special or extra work it was the practice to uniformly postpone paying him therefor “until the work was entirely completed so that it could be included in-one item.” He also testified that during the ten years these cases were pending under his administration he devoted to them about one hundred days of work.

As already stated no express promise of special or extra compensation appears. In view, of the salary contract shown (the evidence of which is very unsatisfactory) and the fact that Willard was district solicitor of defendant for Cook county, the state of facts shown by this record, regarding the matters for which extra compensation is claimed, is not such as to be sufficient, to permit a jury to find an implied promise of extra compensation. While defendant herein was not a party in the twenty-three suits of record, yet it was a party directly in interest, indeed, so much so that in fact it undertook the prosecution of the suit without compensation. In order to avoid defending twenty-three suits against itself it was, as the evidence shows,, anxious to undertake the bringing of the suits against the city.

The evidence in the record does not disclose that the work for which recovery is sought was beyond the scope of the salary contract. The learned trial judge did not err in peremptorily directing the jury to return a verdict for the defendant. The judgment will be affirmed.

Affirmed.


author: Me. Presiding Justice Chtteaus

text:
    Illinois Brewing & Malting Company, Defendant in Error, v. John Ilmberger, Plaintiff in Error.
    Gen. No. 15,946.
    1. Municipal Court—what final and appealable order. An absolute order for the payment of money made by the Municipal Court in supplemental proceedings, is final and appealable.
    2. Municipal Court—when “statement of facts” stricken. If the “statement of facts” is not signed by the judge and filed in the cause within thirty days after the entry of the judgment appealed from, it will be stricken from the record. The recital of an extension of time for the signing and filing of the same contained in the certificate to the statement is not an equivalent of an order of extension contained in the record.
    Petition for citation. Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Dismissed.
    Opinion filed April 8, 1910
    Statement by the Court. Defendant in error, plaintiff below, now moves the court to strike from the record the “Statement of Facts and Questions of Law” and that these proceedings in error be dismissed.
    The record in this cause is a praecipe record. From that record it appears that this proceeding is one under section 64 of the Municipal Court Act supplemental to a judgment recovered. The proceeding was instituted by a petition filed by the plaintiff on August 11, 1909. That petition shows that plaintiff recovered a judgment against the respondent, John Ilmberger, on June 2,1909, for $170.66, and, after showing necessary jurisdictional facts, the petition prays for a citation against Ilmberger requiring him to attend and be examined under oath concerning his property. A citation was issued and Ilmberger appeared. After he had been examined the court, on September 3, 1909,.entered an order which, after finding that Ilmberger had property, money and assets which he should turn over in payment and satisfaction of the execution that had been issued, ordered and directed Ilmberger to “pay to the bailiff of this court on or before September 16, 1909, the full amount of the judgment and costs” and that the further hearing upon the citation be continued until September 17, 1909. Plaintiff in error procured the issuance, on October 2,1909, of this writ of error to reverse that judgment.
    On October 30,1909, the trial judge signed a “Statement of Facts and of Questions of Law” which was filed in the clerk’s office of the Municipal Court on November 3, 1909. The certificate of the judge to that Statement states that the Statement was presented by the defendant “pursuant to the order entered in the above cause on October 2,1909, extending the time for the Statement of Facts and Questions of Law herein for thirty days from October 2, 1909.” No order such as that referred to as being entered on October 2,1909, appears in the record.
    John C. Wilson, for plaintiff in error.
    Hollett, Sauteb & Henkel, for defendant in error.
   Me. Presiding Justice Chtteaus

delivered the opinion of the court.

Various grounds are advanced for granting the motions made. First: It is contended the order entered is not a final order. The Municipal Court Act provides for the review of the final orders and judgments of that court. As the order in question is an absolute order for the payment of money it is clearly a final order and plaintiff in error is entitled to prosecute a writ of error to procure its reversal.

Second: It is contended the correct statement of facts appearing upon the trial and of all questions of law involved which is filed herein to comply with clause sixth of section 23 of the Municipal Court Act is insufficient in various respects and was signed by the judge and filed too late. As it was clearly signed and filed too late we find it unnecessary to consider the question of its sufficiency. The clause referred to in the Municipal Court Act, inter alia, provides:

“Within thirty days after the entry of any final order or judgment, or within such further time as may, upon application therefor within said thirty days, be allowed by the court, it shall be the duty of the judge * * * to sign and place on file in the case * * * a correct statement * * * of the facts appearing upon the trial thereof and of all questions of law involved in such case and the decisions of the court upon such questions of law * * *. Such statement * * * together with a certified copy of the judgment * * * shall be certified to the Supreme Court or Appellate Court, as the case may be, as the record to be considered upon the review of such order or judgment by writ of error.”

The order was entered September 3, 1909. The statement was signed by the judge on October 30,1909, and was filed on November 3,1909. So far as the record shows no allowance of time, beyond the thirty days fixed by the statute, was made by the court. The recital of an order, real or supposed, such as appears in the certificate to the statement, is not the equivalent of an order in the record. Furthermore were there such an order in the record as the one referred to in the certificate, plaintiff in error would not be helped thereby. The filing of the statement would nevertheless have been one day too late.

The Statement of Facts must be stricken from the record. The only error assigned is that the court erred in entering the order of September 3, 1909, requiring plaintiff in error to pay the full amount of the judgment against him. Whether that error was well assigned cannot be ascertained upon the record remaining. The motion to dismiss these proceedings in error must therefore be allowed.

Motion to dismiss allowed.


author: Mr. Presiding Justice Ohytraus

text:
    David H. Roblin, Appellee, v. Illinois College of Commerce et al., On Appeal of Athenaeum Business College, Appellant.
    Gen. No. 16,472.
    1. Appeals and ebbobs—how joint appeal cannot he perfected. An appeal prayed for and allowed to two jointly cannot be prosecuted by one alone.
    2. Municipal Coubt—when without jurisdiction to amend record. After tbie lapse of thirty days after judgment the Municipal Court loses jurisdiction to amend its record unless the motion to amend is-upon notice and the amendment made is supported by a memorial.
    3. Amendment of eecobdí—jurisdiction to make amendment must appear, when made after close of term, When courts, after the parties have departed without day and after the judgment term amend a record, i. e., exercise their corrective power, the jurisdiction so to do must exist and the order or record of such proceeding, in order that the same be valid, must show the jurisdictional basis for making the -order, namely, notice or presence of parties, and the grounds or basis whereupon the court acted in amending.
    Appeal from the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard.in the Branch Appellate Court at the March term, 1910.
    Motion to dismiss allowed.
    Opinion filed April 8, 1910.
    Daniel W. Scanlan, for appellant. -
    Egbert A. Meier, Jr., and L. L. Smith, for appellee.
   Mr. Presiding Justice Ohytraus

delivered the opinion of the court.

David H. Eoblin, appellee, on March 10,1910, moved this court to dismiss this appeal because, as the record shows, the judgment appealed from, rendered on January 8, 1910, was rendered against two parties wh» jointly prayed for and were allowed an appeal, while this appeal is prosecuted by only one of them. An appeal prayed for and allowed to two jointly cannot be prosecuted by one alone. Bartlett v. Keating, 79 Ill. App. 642; Hileman v. Beale, 115 Ill. 355; Bamberger v. Golden, 87 Ill. App. 156, and numerous other cases. However, on March 11,1910, appellant suggested diminution of the record and obtained leave to supply. This was for the purpose of supplying an omission in the record which would show a correction of the record to.the effect that the appeal had been prayed for and allowed to the appellant Athenaeum Business College, only. Accordingly a supplemental record was filed on March 15,1910. The next day, March 16, appellee presented his additional motion herein to strike the supplemental record filed, on the ground that the same fails to show that the court below had either jurisdiction of the person of appellee, at the time the order was made, or the power or authority to make the order appearing thereby to have been made on March 11, 1910.

A judgment rendered in the Municipal Court is final after the expiration of thirty days from its rendition. A circuit court loses jurisdiction over the parties, the subject-matter and the case with the expiration of the term at which the judgment is rendered, likewise the Municipal Court with the expiration of the thirty days.

Courts, however, may, after the expiration of the term, by a nunc pro tunc order or otherwise, correct their records so that they will speak the truth. But this corrective jurisdiction, whereby judgments and orders previously made may be altered from what they appear to be, by which appearance third parties may have acquired rights, cannot be exercised without notice nor can it be exercised without the basis or foundation required by the law for making the correction. Wesley Hospital v. Strong, 233 Ill. 153; McKay v. People, 145 Ill. App. 277. And the parties having previously departed without day, the record of the pro- ' ceedings subsequent to the judgment must show proper notice as well as the bases or facts upon which the correction was made, that is, if upon memoranda kept, the nature of the memoranda so as to indicate that they were of the kind upon which the law permits corrections to be made. The order of March 11 fails in these respects. It neither shows that the court had jurisdiction of appellee by notice nor that the court had power to correct by reason of the existence of such memoranda as the law requires or otherwise. The service of requisite notices may be presumed while the court has jurisdiction generally over the parties, but not after the parties have been dismissed without day.

The supplemental record filed March 15, 1910, will be stricken and the motion to dismiss this appeal will be. allowed.

Motion to dismiss appeal allowed.


author: Mr. Justice Mack

text:
    Mervin M. Chesrown, Appellee, v. Henry M. Black et al., On Appeal of Jesse S. Young, Appellant.
    Gen. No. 14,921.
    1. Pleading—when declaration cured by verdict. In an action fop deceit predicated upon false representations as to the value of corporate stock a defective allegation in the declaration as to lack of value of such stock at the time of the filing of the declaration, is cured hy verdict.
    2. Deceit—what not material in action for. The question of the ownership of the property immediately prior to the conveyance thereof is not material if the fraudulent representations were made by the defendant and the plaintiffs money paid to the defendant.
    Action of deceit. Appeal from the Superior Court of Cook county; the Hon. R. W. Weight, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed April 8, 1910.
    Rehearing denied April 19, 1910.
    Statement by the Court. Jesse S. Young, the only defendant served in this cause, entered into a copartnership with his co-defendants Black and Coy under the firm name of Henry M. Black & Co., for the purchase and sale of stocks, promoting companies and a general brokerage business. Young was to be treasurer; the others were to be the active men, devoting their entire time to the business.

      A few months thereafter plaintiff called at the office of the firm, and in the course of his negotiations with Black for the purchase of stock in the Bector Mining & Developing Company, received from him a prospectus headed as follows:
    “Henry M. Black & Company Stocks and Bonds
    Suite, 503 Bector Building,
    122 Monroe Street,
    Chicago.
    The Bector Mining and Development Company Capital, $2,000,000.
    2,000,000 Shares, par value $1.00 each, full paid and non-assessable.
    1,000,000 shares in Treasury.
    Incorporated under the laws of Arizona.
    Chicago Office ....................Bector Building.
    Officers.
    Jesse S. Young, President. C. Helmer Johnson,
    Vice-President.
    Dr. Albert E. Coy, Secretary & Treasurer.
    Directors.
    J. S. Young, of W. H. Salisbury Co., Inc., 105,107,109
    Madison St., Chicago. * * * ”
    This prospectus contained, in addition to the usual glowing recommendations, the following statement:
    “The Company has acquired all the right, title and interest in five (5) mining claims, embracing 100 acres in the heart of the recent rich gold discoveries at Silver Bow, Nevada.
    “The prompt action of one of our Directors, Mr. John H. Pape, of Colorado Springs, Colorado, during his visit to Goldfield, Nevada, three months ago sending his Engineer to Silver Bow at the time, enabled this Company to secure five valuable claims. The Bector 60 acres, Magnus 20 acres and Old Trail 20 acres— a total of 100 acres.”
    Black verbally stated not only that every word of the statement was true, but specifically that the Company owned 100 acres of land in that particular section of Nevada. In fact, the Company never owned any land but, as defendant Young admitted later, had only a contract for it and having failed to make the payment provided for, had abandoned the property.
    In reliance upon the written and verbal statement, plaintiff gave Black his check for $1,000, payable to H. M. Black & Co., for 50,000 shares of the stock. The check was paid in the usual course. Plaintiff was unable to realize, anything out of the stock. The jury awarded him $1,000 in his action of deceit against the members of the firm of H. M. Black & Co.
    Harris F. Williams, for appellant; Eldon M. Votaw, of counsel.
    Charles R. Whitman, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The declaration specifically alleges the making of the representations; their falsity in fact and to the knowledge of defendants, that they were made for the purpose of defrauding plaintiff, and plaintiff’s reliance thereon. The conclusion is then stated that the capital ■stock has no value and is utterly worthless.

Appellant contends that the use of the present tense clearly indicates that the pleader meant that the stock had no value at the time the declaration was filed ;■ that for aught that appears it might have had full value at the time of the sale. In our judgment, the declaration states a substantially good cause of action; the defects or clerical errors, if any, have been cured by the verdict which, under the instructions, could have been rendered only on the theory that the damage of $1,000 was suffered at the time of the purchase because the stock was then worthless.

The contract for the purchase of the properties by the Mining Company was made September 27, 1905. It acknowledged that $1,000 cash had been paid and provided for further payments in cash on December 1 and monthly thereafter, aggregating $8,000. In addition to the cash payments a part of the capital stock was to be issued full paid to the vendor.

When the sale to plaintiff was made in October,-1905, the entire cash investment by the Company was at most $1,000, if indeed this had ever been paid. Unless the payments were kept up and the property acquired, the Company and its stock were utterly valueless. If the representations of ownership of the land had been true, the stock would have had a speculative value which, under the evidence, was at least $1,000, the amount paid. Of course, plaintiff knew that he was risking his $1,000; that he might lose it all if the venture turned out unsuccessful. But he was risking it, on the basis of the Company’s ownership of certain claims, not on a possible ownership. In our judgment, the amount of the verdict is fully justified by the evidence as the difference between the actual value at the time of the sale and the value if the representations had been true.

The case of Chrystal v. Level, 144 Ill. App. 533, contains nothing contrary to the views herein expressed. WThether the evidence supports the verdict depends, of course, upon the facts established in each case.

Complaint is made of the refusal to permit testimony as to the ownership of the stock sold to plaintiff. In our judgment this is immaterial. Plaintiff received a certificate in his own name, issued by the Company. He paid his money to H. M. Black & Co. He dealt with the firm through its active members. He bought from them. Whether they caused Black’s individual stock or the Company’s treasury stock or H. M. Black & Co.’s stock to be cancelled for the new certificate issued to him, their liability would be the same. They knowingly made the false and fraudulent representations which induced plaintiff to part with $1,000 for something that was utterly worthless. Proof that it was Black’s own stock would not in any way tend to show that plaintiff was dealing with Black as an individual, in the face of all the evidence in the case. Moreover there was no offer to prove that plaintiff' knew that it was Black’s individual stock.that he was purchasing.

Affirmed.


text:
    Charles F. Johnson, Appellant, v. Peter Herdien et al., Appellees.
    Gen. No. 14,925.

      Redemption—when HU graying sufficient. Held, that the bill in this case, which was to redeem from a deed absolute, was sufficient notwithstanding certain allegations which it was urged tended to show that such deed was made for the purpose of hindering creditors.
    Bill for accounting, etc. Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed April 8, 1910.
    Matthews S. Bradley, for appellant; Nils Olson, of counsel.
    Charles W. Espey, for appellees; William A..Cunnea, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

The question presented on this appeal is whether the court erred in sustaining a demurrer to the appellant’s bill of complaint. The bill alleges that appellant Johnson and appellee Walter Herdien purchased in equal shares from appellee Peter Herdien, Walter’s father, a certain lot, the price $9,600 to be secured by a second trust deed on the premises subject to a trust deed to secure sufficient money to be borrowed in order to build thereon a 22 apartment building; that they borrowed $50,000 for this purpose and gave a first trust deed therefor; that appellees conspired to get Johnson’s half, without consideration, into Peter’s possession and worked a scheme falsely and fraudulently representing that Walter was liable to have a large judgment entered against him encumbering title and preventing sale; that Peter falsely and fraudulently represented that a receiver would be appointed making it impossible to raise money to care for the unsecured debts on said property from the rents; that he wanted title conveyed to him and that he would protect complainant, collect rents, pay unsecured creditors, the second mortgage, taxes and interest and would reconvey or convey to a purchaser on demand when reimbursed; that all the statements were false and made to cheat complainant; that Peter, an old friend of complainant, had urged the conveyance so as to protect himself as well as complainant; that there was no srch claim against Walter and that the representations were made to cheat complainant and not to protect Walter from his creditors; that complainant had a bona fide offer of $70,000 for the property, notified Peter and demanded that he convey; that the price would have paid all indebtedness and advances and left about $6,000 profit; that he demanded an accounting which was refused; that while the deed was absolute, it was agreed that it was simply to secure the purchase price. The bill further offers to pay any balance found due on an accounting; that Peter pretends to hold the property in payment of the debt and refuses to account or to keep the property in good order. The prayer is for an accounting and reconveyance of complainant’s half on payment of anything found due.

It seems to be conceded by the parties that this would be a good bill to redeem from a deed absolute on its face but intended as security only, were it not for the allegations which, appellees contend, show that the conveyance was made to hinder and defraud creditors.

Whatever may have been Walter’s intention as to his half, Johnson should not lose his property, even if he joined Walter in conveying the whole piece in order to .hinder Walter’s creditors. They had no claim of any kind on Johnson’s half. So far as they were concerned he was free to do as he pleased with his half of the property; no act of Ms conld hinder them in reaching their debtor’s property. We are therefore of the opinion that even if the bill clearly alleged the motive wMch induced the conveyance by Johnson to have been to help defraud Walter’s creditors, it would not therefore be demurrable inasmuch as the design was impossible of accomplishment.

In our judgment, however, the bill does not allege .any such motive. It is perfectly clear that Johnson feared that a judgment against Walter might injure him, Johnson, and that to escape this danger and to protect Ms own creditors, and further to secure Peter, he joined in the conveyance. The allegation that Peter was to pay the unsecured debts against the property negatives 'the possibility that the conveyance was. made to defraud these, Johnson’s own creditors.

The case of Miller v. Marckle, 21 Ill. 151, has no application under tMs interpretation of. the allegations in the bill. Whether or not the conveyance was made hy appellant to hinder his creditors can be determined only on a full hearing after answer.

The decree will be reversed and the cause remanded with directions to overrule the demurrer.

Reversed and remanded with directions.


text:
    Frank M. Gray, Appellant, v. Chicago & Northwestern Railway Company, Appellee.
    Gen. No. 14,943.
    Contributory negligence—failure to loolc and listen. Seld, that the plaintiff in this case, who was injured while crossing railroad tracks in an automobile, was guilty of contributory negligence in failing properly to look for passing trains.

      Action in ease for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pickney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.
    - Statement by the Court. Oak Park avenue in Oak Park, Cook county, Illinois, a street running north and south, is crossed at or near grade by two tracks of the elevated railroad and 30 feet north thereof by two tracks of the defendant railroad. The elevated road keeps a flagman at the crossing; the defendant road has gates at the crossing operated with compressed air by a towerman from a tower about 100 to 150 feet west. Plaintiff lived in the neighborhood and was entirely familiar with the situation. About 6 P. M. on July 2,. 1904, accompanied by Ms wife, he drove a single cylinder single seated runabout automobile north, at the rate of two or three miles an hour, across these tracks. As he approached, the flagman, whom he knew to be solely in the employ of the elevated railroad, first waved him to stop and, after an elevated train had passed, waved him to go ahead. As the defendant’s gates were up, plaintiff drove Ms automobile up the slight incline of four or five feet in thirty toward the defendant’s tracks. Plaintiff testified that while starting he looked up to see if the tracks were clear. There was nothing to obstruct Ms view, but he saw notMng and heard no bell or signal. He thereafter kept looking straight ahead of him. Just as he was passing the south gate, it came down on him, whereupon he put on full speed and crashed through the north gate, thereby escaping a train which was approaching from the west, but injuring himself by the contact with the north gate. He did not see the gates coming down but drove through them, thinking he could make it and get through. He testifies further that the train was moving slowly, that his front automobile wheels were on the south track as the south gate came down on him, and that the gates when down were on the level of his breast. The action of the south gate dazed him, but he realized his dangerous position and without looking to see from what' direction the train was coming, ran the auto at full speed onward.
    On cross examination he testified: “ * * * I looked straight ahead where I was going; if I had been looking at the gates I could not have run my car. I did not see any trains at the time nor after I went under the first gate. I was outside on the second gate before I saw the train, just outside of it, I could not time it, and was the first I saw of that train. I couldn’t look to see if it was coming; I presumed it was coming by the gates hitting me on the head. I did not have blinders on; I never look to the right or left. I don’t pay any attention to the right or left when crossing a railroad track when the gates are up. I don’t look to see if a train is coming when the gates are up. I don’t look to see if a train is coming when the gates are down. I didn’t know any train was coming; I didn’t know upon which track the train was coming and didn’t try to ascertain upon which track the train was coming while I was going through. I didn’t see any trains at that time and didn’t try to stop my machine at any time. I didn’t try to stop my machine but when that first gate struck me on the head I put on full speed. * * * I did not look to the right or left as I was going up the incline, I was guiding my machine. After I had started and got across the elevated tracks I did not look to the right or left because the gates were up the last time I saw them, and I did not look to the right or left as I came up the incline to the gates. I don’t know how wide the street is, about fifty feet, something like that. I have gone over that crossing quite a number of times before but don’t remember ever hearing a bell before on other occasions. I had been along there when the gates came down before and knew how they came down. * * * ”
    The court directed the verdict for the defendant.
    Joseph Schneider, for appellant.

      W. S. Kies and Frederic Burnham, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

We find no error in the action of the trial court in directing a verdict for defendant. In our judgment there is no more than a mere scintilla of evidence, either that defendant was negligent or that plaintiff exercised due care. If the train was approaching slowly, as plaintiff testifies, there is no negligence shown in its management; if the towerman had failed to lower the gates, plaintiff would doubtless have been struck by the train; we cannot find the slightest evidence either that he lowered them too soon or too late or in a negligent manner.

On the other hand, plaintiff’s testimony demonstrates that while he may have looked for an approaching train while standing in front of the elevated train, he did not look for it while approaching defendant’s tracks. Had he done so, he must inevitably have seen it as there was nothing whatsoever to obstruct his view. This was, in our judgment, under all the circumstances ■clearly such contributory negligence as justified a direction of a verdict of not guilty.

Affirmed.


text:
    Paul Perkowitz et al., Appellees, v. George Stosskopf, Appellant.
    Gen. No. 14,948.
    Appeals and errors—when sufficiency of evidence not preserved for ■review. The sufficiency of the evidence to sustain the verdict is not preserved for review if no exception to the entry of the judgment is preserved in the hill of exceptions.
    Forcible detainer. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed April 8, 1910.

      Otto Fetting and Charles F. Glaeseb, for appellant; I. W. Foltz, of counsel.
    Charles S. Graves, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

This forcible detainer suit was on appeal to the Circuit Court tried by the judge without a jury by agreement of the parties. Judgment was rendered for the-plaintiffs. Ño exception to the entry of the judgment is preserved in the bill of exceptions. The sufficiency of the evidence to sustain the judgment cannot therefore be questioned in this court. Climax Tag Co. v. American Tag Co., 234 Ill. 179. Exceptions to evidence improperly received or rejected may, however, be considered. Inasmuch as the leases waived service-of notice, no notice was required after a default in payment of the rent. It is therefore unnecessary to determine the admissibility in evidence of a notice which, demanded more than the amount due.

While appellant claims an abrogation of the written lease and a holding under a new parol lease, no evidence to this effect was offered. The only question even remotely bearing thereon to which an objection was sustained and an exception preserved was, “How are the premises heated?” Appellant now claims in his brief that a new verbal lease relieved the landlord' from supplying heat and reduced the rent, but though this was asserted in argument in the trial court, no offer to prove it was made and no other questions in. any manner relating thereto were asked.

Affirmed.


text:
    Louis Derrwaldt, Administrator, Appellee, v. Beauregard F. Moseley et al., On Appeal of Beauregard F. Moseley, Appellant.
    Gen. No. 14,959.

      Bonds—what damages not recoverable. Damages cannot be recovered in an action upon a bond for a breach not assigned in the declaration.
    Action of debt. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed on remittitur.
    Opinion filed April 8, 1910.
    Edward H. Morris, for appellant.
    Josiah Burnham:, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

In ah action on an appeal bond given in a forcible detainer case, the jury awarded the plaintiff $447.40 damages.

The only breach assigned was the non-payment of rent during the period that the possession of the premises was withheld. It was ten and a half months before plaintiff recovered possession under a writ of restitution. The damages on this account were agreed to be $40 a month and amounted therefore to $420.

Evidence of the amount of court costs expended aggregating $27.40 and of repairs made due to damage caused to the premises during the time possession was withheld, was permitted to be introduced. This was-error, for while such payments could, on a proper declaration, have been recovered, no breach of the bond in these respects had been assigned.

It is, however, perfectly clear that the jury allowed nothing for the repairs. Inasmuch as a verdict for $420 could have been directed by the court, the error in admitting this testimony and in giving an instruction in relation thereto will be cured by a remittitur.

Although appellant in his brief claims that the court erred in refusing to receive proper evidence, an examination of the abstract fails to disclose that any of the defendants’ evidence was excluded.

If appellee will remit the excess over $420 within ten days the judgment for that amount will be affirmed; otherwise it will be reversed and remanded.

Affirmed, on remittitur.

Remittitur filed and judgment affirmed April' 13, 1910.


author: Mr. Justos Smith

text:
    Susie Brown, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,946.
    1. Contributory negligence—failure to look and listen A person seeking to cross a street car track after emerging from behind a street car from which such person has alighted, is guilty of contributory negligence, which bars a recovery, in failing to look for a car approaching from the opposite direction.
    2. Evidence—when uncontradicted may Be disregarded. Although evidence is uncontradicted it may be disregarded by the court and jury if it amounts to the statement of a physical impossibility.
    3. Evidence—relative value of positive and negative. Positive testimony that a gong was sounded is generally entitled to greater weight than negative testimony to the effect that it was not sounded.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John A. Gbay, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed April 8, 1910.
    George W. Miller, for appellant; John B. Harrington, of counsel.
    John F. "Waters and Joel Baker, for appellee.
   Mr. Justos Smith

delivered the opinion of the court.

A judgment was rendered in the Circuit Court for $2,000 in favor of the plaintiff, appellee, against the defendant for injuries sustained by her on October 20, 1904, on State street, at the intersection of Thirty-first street, in Chicago.

At the time of the accident the defendant was operating grip-trains on State street. Plaintiff was a passenger in the last car of a south-bound grip-train. The train stopped on the south side of Thirty-first street with the rear end of the train a little south of but near to the south cross-walk of Thirty-first street. After the train had stopped plaintiff alighted from the rear platform of the car, walked a little to the north, turned to the east and started across the car tracks behind the train and was struck by a north-bound train. The plaintiff claimed that when she reached the corner of the car she looked to see if a train was approaching from the south, but saw none. When she got upon the east track she looked again and saw the north-bound train when it was only five or six feet away from her and running very fast. It was a little after eight o ’clock in the evening and it was dark and rainy. The headlight on the train and the lights in the car were burning.

The claim and theory of the defendant is that the north-bound train approached Thirty-first street with its headlight and the lights in the train burning brightly. It stopped by the side of the south-bound train, with the front end a few feet south of the south cross-walk; that as the train approached the cross-walk the gong was rung and that jus,t before it started to continue north the gong was rung again. As the train started the plaintiff walked east from behind the southbound train, and was either caught by the northwest corner of the fender or collided with the northwest corner of the grip car, and was knocked to the ground between the tracks. The train stopped within a few feet of the point of the collision.

The question of liability, or more precisely the question as to whether the plaintiff was guilty of contributory negligence, is the primary and controlling one in the case.

Five witnesses testified to the accident. The plaintiff and a man by the name of Smith testified on behalf of the plaintiff, and White, the conductor of the northbound train, Elmer, a passenger on the south-bound train, and Eckstein, who was crossing State street at the place in question, on behalf of the defendant.

At the time of the accident defendant was operating street cars on State street over two parallel car tracks, by means of a cable. State street is a north and south street and Thirty-first street intersects it, running east and west. The cars going south on State street run on the westerly track, and those going north on the-easterly track. The cars had been operated in this-manner by cable for a long time prior to the accident.

The plaintiff testified that she entered the rear car of the train at Twenty-third and State streets, paid her fare and took a transfer on defendant’s Thirty-first street line. The train stopped at Thirty-first street with the reár end of the last car just south of the south cross-walk of Thirty-first street. She stepped off the rear platform of the car and walked east behind the car to a point near the northeast corner of it and looked around the corner of the car for a north-bound train but did not see any; that she then walked on east and upon the north-bound track and again looked and saw the north-bound train only five or six feet from her and traveling very fast. She tried to get off the track but could not and the car struck her. She says-that she was familiar with the way the cars ran, going north on the easterly track and south on the westerly track. The headlight of the north-bound train and the lights in the train were burning brightly, and the streets at that point were well lighted so that she could see a long distance north and south in State street. She says the car knocked her down and she was dragged along on the ground across the street to the north walk or north side of Thirty-first street.

Plaintiff’s witness Smith testified that he was on the east side of State street, and when he first saw the north-bound train and the plaintiff she was in the middle of the north-bound track in front of the northbound train, which was about six inches or a foot from her. She was facing and walking east. He says that the north-bound train stopped first at the south side of Thirty-first street, and as it started up again the fender knocked the plaintiff down and she was dragged on the ground clear across Thirty-first street and some distance north of the north line of that street or in all over one hundred feet. This witness testified that the headlight and the lights in the cars of the north-bound train were burning. He says that no bell was rung on the north-bound train and that it was going “pretty fast.” This witness further testified that at the time the south-bound car was passing over Thirty-first street the front end of the north-bound train and the south end of the south-bound train were less than ten feet apart, and both trains were moving. The south-bound car was moving when he first saw plaintiff. It was standing when he first saw her. This was the evidence on behalf of the plaintiff on the question of liability. Before discussing it we will briefly refer to the defendant’s evidence.

The witness White was the conductor on the northbound train. At the time of the trial he was a conductor in the employ of the Chicago Union Traction Co. At the time of the accident he was riding on the grip-car and was standing a little behind the gripman. He says he was in a position to see and did see the accident. As his train approached Thirty-first street the gripman rang his gong, and the train stopped on the south side of Thirty-first street while the southbound train was standing there; that the headlight and the lights in the cars were burning. As his train started up he heard the gripman shout, and looking up he saw a colored woman right at the corner of the fender, and that the grip-car knocked her down; that the train after striking her ran a distance of about three feet and stopped and the woman was not dragged at all. He testified that the gripman rang his bell before starting the train and when the accident happened the train was moving very slowly.

The witness Eckstein was a stationary engineer, employed by Bueckheim Bros, at the time of the trial. He testified he was on the southeast corner of the street intersection at the time of the accident, and had started to cross from the east to the west side of State street along the south cross-walk for the purpose of taking the south-bound train which was standing there. As he approached the east side of the north-bound track the north-bound train started; that the headlight of the north-bound train was burning. He saw two women “come running and one of them fell down, ” and he thought the footboard struck her; that the train ran probably two feet after she fell and she was not dragged at all. He testified that the north-bound car stopped four or five feet south of the south cross-walk. The gripman rang his bell as the train started, and the woman ran into the front end of the footboard.

The witness Elmer was a passenger on the southbound train riding on the rear platform of the rear car. He saw the two colored women get oft the car and pass around to the rear end of it, and start to cross the tracks. The ringing of the bell of the north-bound train first called his attention to that train, and when he first saw it the grip-car was just even with the rear end of his car and it was moving “very slowly. ’’ The woman ran into the forward part of the grip-car which struck her about the ankles. She was knocked down, and she was was not dragged at all. The car stopped almost immediately. This witness thought or was under the impression that the north-bound train did not stop south of Thirty-first street.

From the evidence of the plaintiff herself it appears that the north-bound train was right there at the crossing and in full view when she stepped upon the track in front of it. Even though it were moving as fast as she says it was (which we cannot believe), the train was in full view and near by, and there was nothing to obstruct her view, after she emerged from behind the car from which she had alighted, or from the northeast corner of the car. If she looked, as she says she did, before going upon the north-bound track, and did not see the train, it must have been when she was behind the south-bound train and when it was useless to look. It is clear from her testimony, when considered by itself, that if she had given the most casual glance and exercised the slightest care for her own safety when she emerged from behind the south-bound train, she would have seen the north-bound train with its headlight burning. She says, however, she did not look the second time until she was in the north-bound track, and the train was within four or five feet of her, and it was too late for her to escape. This was failing to observe due care, blindly walking into a danger which the observance of due care would have enabled, her to avoid, and in so doing she was guilty of contributory negligence. C., M. & St. P. Ry. Co. v. Halsey., 133 Ill. 248; Hornstein v. United Railways Co., 195 Mo,. 440; Doty v. Detroit Citizens Ry. Co., 129 Mich. 464. “The rule is perfectly plain that a person must look where he is going” (Buzby v. Phil. Traction Co., 126 Pa. St. 559) in a large city where double track lines of street cars are operated, and if he does not, when he has the opportunity and steps into a place of danger in attempting to cross a public street, it is evidence of a failure to exercise due and ordinary care. Lake Street El. R. R. v. Gormley, 108 Ill. App. 59.

When we consider the other testimony in the case, the proof amounts to a conclusive demonstration that plaintiff was guilty of negligence which directly caused her injury. The testimony of plaintiff’s witness Smith is both contradictory and unreasonable. His testimony is not entitled to much weight for that reason, ■except as to those statements in which he is corroborated by other witnesses. This witness is corroborated in his testimony as to two facts (1) that the lights on the north-bound train, including the headlight, were burning, and (2) that the train stopped just south of Thirty-first street and plainiff was struck as it started north. But these facts make it impossible that the train was going at a high rate of speed before it struck the plaintiff, and that it was not clearly and plainly to be seen by the plaintiff before she stepped upon the north-bound track. It is obvious that if the north-bound train stopped just south of the south cross-walk of Thirty-first street, as stated by Smith, "White and Eckstein, it could not have attained the rapid speed which plaintiff and Smith testified to in moving the few feet before it struck the plaintiff. That it was moving slowly is shown by the positive and direct testimony of White, Eckstein and Elmer, and also by the testimony of Smith when his testimony is analyzed and tested by the physical possibilities and impossibilities of the situation. And further, if the train stopped south of Thirty-first street before it struck the plaintiff, it is physically impossible that plaintiff could have failed to see it before she stepped in front of it. Hence, the testimony of plaintiff that she looked and did not see it, although uncontradicted may be disregarded by the court and jury. In Quock Ting v. United States, 140 U. S. 417, the court said: “Undoubtedly, as a general rule, positive testimony as to a particular fact, uncontradicted by anyone, should control the decision of the court, but that rule admits of many exceptions. There may be such an inherent improbability in the statements of a witness as to induce the court or jury to disregard his evidence, even in the absence of any direct conflicting testimony.” To the same effect are Highley v. American Exchange Nat. Bk., 86 Ill. App. 48, 57; C. P. & St. L. Ry. Co. v. De Freitas, 109 id. 104; C. & A. R. R. Co. v. Vremeister, 112 id. 346; Stafford v. Chippewa Valley E. R. R. Co., 110 Wis. 331; Thompson on Negligence, Vol. 2, Sec. 1445.

We are of the opinion from the evidence that the gong of the north-bound train was sounded when the train started and that plaintiff was near enough to it to have heard it if she had been listening. The positive testimony in the record that the gong was sounded is generally entitled to greater weight than the negative testimony that it was not sounded, in other words, that the witnesses did not hear it.

The only conclusion which we can draw from the evidence as reasonable men is that the plaintiff was guilty of contributory negligence and that she is therefore not entitled to recover. This conclusion upon the evidence necessarily disposes of the case and makes it unnecessary for us to consider the alleged errors of the trial court in refusing instructions tendered by the defendant.

The judgment of the Circuit Court is reversed with a finding of fact.

Reversed with finding of fact.