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    Peter Bartzen, Defendant in Error, v. William H. Schroeder, Plaintiff in Error.
    Gen. No. 14,720.
    Forcible entry and detainer—what relief obtainable in Municipal Court. In an action in forcible entry and detainer in the Municipal Court, the landlord may recover as well the possession to which he is entitled as the money due to him.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Statement by the Court. This is an action by defendant in error to recover possession of premises leased to the plaintiff in error January 17, 1907, at a rental of fifty dollars a month, and with his claim for possession plaintiff united a claim for rent or damages for withholding possession. The rent for the months of March and April, 1908, had not been paid. The term of the lease expired April 30, 1908. This suit was begun April 29> 1908. The lease in question contained a provision granting the lessee a privilege or option of renewing the lease for an additional term of two years at a rental of sixty dollars a month.
    On the 11th of April, 1908, the plaintiff served a five day notice upon the defendant, requiring payment of the overdue rent for the two' months above mentioned, amounting to $100. The five days expired April 16, 1908. The defendant did not pay the rent dne and np to that time had made no tender of it. After the expiration of the five days and before this suit was begun the attorney for the plaintiff called on the defendant and was informed by the latter that he intended to vacate the premises the first of May following, but might need an additional day or two to complete the removal of his effects. The defendant was told, it is said, that no action would be instituted against him if he gave up possession within a day or two after the' first of May. There is evidence tending to show that the defendant also told the plaintiff’s son and agent that he had no intention of remaining in possession of the leased premises after May 1st. Acting, it is claimed, upon these statements of the defendant, the plaintiff on April 19,1908, leased the premises for a term beginning May 1, 1908, to a third party. It is claimed on behalf of the plaintiff that this fact became known to the defendant and he thereupon undertook to extort a hundred dollars from the plaintiff before he would give up> the premises. It is claimed on the other hand by the defendant that the plaintiff’s attorney agreed to pay defendant $100 for his option to renew, the payment to be made by giving defendant a receipt for the hundred dollars due for the March and April rent; that thereupon the defendant agreed to surrender the premises upon delivery to him of such receipt, and began preparations for moving. Defendant claims to have waited for this receipt until April 30, 1908, when not having received it, he says he called up the plaintiff and notified him that he had the rent ready and that as he had not received the receipt, he would renew the lease and would pay the overdue rent the next day. He did make the tender the next day, May 1, 1908, and it was refused. The defendant renewed the tender in open court when this suit was called for trial, and tendered also an additional sum of sixty dollars to cover a month’s rent "which would have been due had1 he exercised his option in proper time and renewed the lease.
    The issues were submitted to a jury, which found in favor of plaintiff, awarding him possession of the premises and fixing his damages at one hundred dollars. Judgment was entered accordingly and the defendant prosecutes this writ of error.
    J. Marion Miller, for plaintiff in error.
    O ’Shaughnessy & 0 ’Shaughnessy, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of défendant that the plaintiff cannot maintain an action in the Municipal Court for the possession of the premises and in the same action recover for the rent due. The claim seems to be that the two remedies were inconsistent, that the plaintiff should have been compelled to elect which remedy to pursue and that the election of one would be a waiver of the other. This contention cannot be sustained in view of the provision of the Municipal Court Act as follows: “In forcible detainer cases the plaintiff may unite with his claim for possession of the property any claim for rent or damages for withholding possession of the same.” Par. 3 of sec. 311, chap. 37, R, S. This suit was brought before the end of the month of April, but by the terms of the lease the rent was due and payable in advance on the first of that month. In Schumann Piano Co. v. Mark, 208 Ill. 282-288, cited by defendant’s attorney, it is said that “a pending action for use and occupation will not invalidate a notice of the termination of the lease, for the landlord may only recover in his action for rent due at the time of the expiration of the notice, although he may claim rent to a later period.” That was a suit in forcible entry and detainer alone and was brought before the passage of the Municipal Court Act.

It is argued that the plaintiff waived the forfeiture of the lease, and defendant testifies that plaintiff told him to “let the rent go until the lease was settled,” and that this was after the service of the five day notice. It is claimed that this is not denied by the plaintiff. We are of opinion, however, that the testimony for the plaintiff is inconsistent with defendant’s claim in this respect, and that the jury was amply justified by the evidence as a whole in finding against defendant’s contention.

It is further urged that inasmuch as the plaintiff had leased the premises from May 1, 1908, to a third party he cannot maintain an action of forcible detainer, because it is said he was not entitled to possession of the premises. That new lease, however, was for a term beginning May 1,1908. This suit was begun on the 29th of April, 1908, at which time the right of possession of the premises was still in the plaintiff.

Finding no error in the record the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    Rodman B. Ellison et al., Plaintiffs in Error, v. Adams Express Company, Defendant in Error.
    Gen. No. 14,741.
    1. Common cabbiebs—effect of limitations in receipt of express company. Limitations in an express company’s receipt by which the amount limited in the receipt can only be recovered in the event of loss (the true value of the merchandise not having been set forth), are contrary to the statute and will not prevent a recovery of the full market value.
    2. Common cabbiebs—what does not reiut presumption of negligence. An express company sued for loss of merchandise in carriage, does not rebut the presumption of negligence which arises against it by showing destruction of such merchandise while in its possession by a fire the cause of which appears from the evidence was unknown.
    Baker, J., dissenting.
    Action on the case. Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 6, 1909.
    Rehearing denied December 20, 1909.
    Statement by the Court. Plaintiffs on February 2, 1907, shipped from Philadelphia through defendant, a common carrier engaged in interstate traffic, two bales of woolens, one directed to John B. Ellison Sons, Chicago, and the other to Herkka Bros, of the same place. Bach shipment was distinct, separate receipts being given for each bale by different drivers of defendant’s express wagons. The market values of the woolens in the bales were respectively $349.95 and $229.50. The receipts were exactly alike in their provisions, being written by the shipping clerk of plaintiffs on a printed form in a book supplied by defendant. These receipts contain this provision: “The
    Company’s charge is based upon the value of the property which must be declared by the shipper.” In the column for value is stamped: “Value was asked and not given,” and “that the property was received subject to the terms and conditions of the company’s regular form of receipt printed in the inside front cover of the book. Liability limited to $50 unless a greater value is declared.” One of the conditions on the cover referred to in the receipts is this:
    “1. In consideration of the rate charged for carrying said property, which is regulated by the value thereof and is based upon a valuation of not exceeding fifty dollars unless a greater value is declared, the shipper agrees that the value of said property is not more than fifty dollars, unless a greater value is stated herein, and that the Company shall not be liable in any event for more than the value so stated, nor for more than fifty dollars if no value is stated herein.”
    The shipping clerk knew of this provision in relation to limitation of value and, so knowing, did not state the value. His action in this regard was in obedience to the order of his employers. He further knew that the purpose of declaring value of shipment was to fix the charge for carrying; that shipments exceeding in value $50 were subject to an increased rate over those of not more than that value; that many hundreds of packages exceeding in value $50 were frequently shipped through defendant, the usual receipt taken and values never given to or specially requested by defendant. Had the true value of the bales been declared by the shipper, the carrying charges would have been increased to the amount of seventy cents. The hales arrived in Chicago safely, but before the car in which they were shipped had been unloaded, and on February 4, 1907, from some cause unknown and unexplained, the car was burned and the goods totally destroyed. Defendant, contending that its liability was limited to $50 for each bale, paid into court $116.50, the amount so due, including costs of suit to date of payment. The plaintiffs refusing to accept this, the cause proceeded to trial with a jury and resulted in a verdict and judgment for defendant. The market value of the woolens so shipped and destroyed by fire was $579.45. Each party moved for an instructed verdict upon its several theories, which the trial judge denied. Plaintiffs seek this review and ask a reversal of the judgment upon the contention that the limitation of liability contained in the receipts is ineffectual to bind them, and that defendant was, under the evidence, negligent, and that such negligence resulted in the destruction of plaintiffs’ goods was imputable to defendant under the law, which negligence it failed to rebut by proof, and that as a consequence of such negligence it ia answerable to plaintiffs for the market value of the goods at the time of their destruction, and that such market value is $579.45.
    Frederick L. Goee, for plaintiffs in error.
    Charles B. Elder, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Defendant seeks to sustain the judgment of the Municipal Court upon theories which proved unavailing in Cutter v. Wells Fargo Co., 237 Ill. 247. The statutes of this state, chapter 27, R. S., make it unlawful for the carrier to limit its common law liability by any stipulation or limitation expressed in the receipt given for such property. The limitations in the receipts found in the record, and which are here invoked as a defense, are contrary to this statute and therefore must he disregarded and treated as impotent to defeat the recovery of the market value of the goods destroyed before delivery. The liability of defendant is that cast upon it by the common law to pay the value of the property received for transportation and not delivered at the point to which it was received for delivery. It is true that plaintiffs knew of this limitation in the receipts, but we do not think such fact necessarily changes the operation of the prohibition against it found in the statute. While plaintiffs knew of the condition in the receipts, the defendant made no demand or request for a valuation and received the bales for shipment with the assumed knowledge of the liability which the law imposed upon it. We know of no law compelling defendant to accept the bales for transportation without a valuation being stated by the shippers, if it had seen fit to refuse to accept them without such valuation. We do not think that the knowledge of plaintiffs of the limitation of value in the receipts, unsupported by other proof, can be construed as an assent to their terms. In case supra the court say: “This court has frequently held provisions identical in meaning with the one now under consideration, when contained in the receipt given for the property, to be an attempt by the carrier to limit its common law liability. (Adams Express Co. v. Haynes, 42 Ill. 89; Adams Express Co. v. Stettaners, 61 id. 184; Boscowitz v. Adams Express Co., 93 id. 523; Chicago & Northwestern Railway Co. v. Chapman, 133 id. 96). Appellant concedes this to be true, but states that the case of Oppenheimer v. United States Express Co., 69 Ill. 62, and the greater weight of authority in other jurisdictions, both English and American, is to the contrary effect, and seeks to have this court improve this opportunity to make the law of this state harmonize with the greater trend of legal opinion in reference to this matter. The Oppenheimer case was explained in Boscowitz v. Adams Express Co., supra, and as there explained is not in conflict with the other Illinois cases cited above. While the authorities outside of this state are not uniform, it is true, as stated by appellant, that by far the greater array thereof supports the doctrine for which it contends. We have so long held the law to be the other way, however, that we do not think we should now change the rule in Illinois.” This case was an affirmance of the judgment of this court in 140 Ill. App. 324, Mr. Justice Freeman voicing the opinion of the court. Walker-Edmund Company v. Adams Express Co., 146 Ill. App. 176.

By like reasoning the common carrier cannot be relieved against damage to the shipper resulting from its own negligence, notwithstanding the terms of a hill of lading so provide. Such a provision will not suffice to abrogate the salutary rules of the common law to the extent of absolving the carrier from the exercise-of reasonable and ordinary care. In the absence of a .special contract the common carrier cannot limit the amount of its liability, and not even by contract can it exempt itself from the exercise of reasonable care. The rule of evidence in this state is that failure of goods to arrive at their destination raises the presumption against the carrier of want of ordinary care, and the burden shifts to the carrier to rebut such presumption by proof sufficient to exculpate it from the negligence attributable to it from the fact of non-arrival at destination. Such is the trend of judicial holding of our courts. As said in Adams Express Co. v. Stettaners, 61 Ill. 184, ‘6 this rule is reasonable and just. The carrier alone has it in his power to show what has become of the goods, or why they were not duly delivered. He has the means of tracing them from the moment of their shipment. The shipper has not. He can only show that he delivered them safely to the carrier, and unless the rule in question is applied, the shipper would practically have no remedy, even though his goods had been plundered by the very servants of the carrier. It would very rarely be in his power to make the necessary proof.”

The goods, so defendant’s proof establishes, were, while in the car in which they were transported and while such car was at its terminal in Chicago, destroyed by fire, and that the cause of the fire was unknown. This is not sufficient to rebut the presumption of negligence which the law raises against the carrier from the fact of the fire, without explanation as to how it occurred, for, as said in L. & N. R. R. v. Touart, 97 Ala. 514. “The defendant being a common carrier, did not meet its responsibility by simply showing the destruction of the cotton by fire and that it did not know what caused it.” The court say in G. C. & S. F. Ry. v. Zimmerman, 81 Texas 608, “From the fact that the cotton was burned while in transit and in the car of appellant, the presumption obtains that the fire and the consequent loss were caused by the negligence of appellant.” The origin of the fire which destroyed plaintiffs’ woolens being unknown is utterly insufficient to rebut the presumption of negligence infer-able from the fact of their destruction before delivery, while in the custody of defendant. Whether defendant was negligent is a question of fact for the jury. Erie v. Wilcox, 84 Ill. 239. On the question of negligence there is not in this record any rebutting proof overcoming the negligence attributable to defendant from the unexplained cause of the fire which destroyed plaintiffs’ woolens. The verdict of the jury is therefore only solvable on the theory that they were of the opinion that the valuation in the receipts bound the parties, and that the amount tendered was the limit of plaintiffs’ right of recovery and the corresponding extent of defendant’s responsibility. Such apparently was the attitude of the trial judge. What has already been said sufficiently disposes of the case on this review, and the many other questions, forcefully argued by counsel for defendant at some considerable length, lose their importance as controlling factors in view of the conclusions to which we have arrived.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.

Mr. Justice Baker, dissenting.


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    R. Hasselgren & Company, Plaintiff in Error, v. T. A. Esser, Defendant in Error.
    Gen. No. 14,747.
    1. Municipal Court—when without jurisdiction to extend time for filing of “stenographic report”. After the lapse of thirty days from the entry of the final order appealed from, the Municipal Court loses jurisdiction to extend the time for the filing of the “stenographic report” provided for hy statute for purposes of review.
    2. Municipal Court—of what Appellate Court will take judicial notice. Notwithstanding the writ of error proceeding is undefended, the Appellate Court will take notice, of its own motion, of jurisdictional defects in the transcript.
    Baker, J., dissenting.
    1 Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    H. C. Lust, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The record in this case presents no question calling for our review.

On the trial of the case before the court, without the intervention of a jury, a judgment of nil capiat and for costs was entered on the findings of the trial judge May 5, 1908. TMs writ of error has been sued out in an effort to reverse that judgment.

On the 2nd day of June, 1908, an order was entered granting plaintiff time until July 5, 1908, in which to file a bill of exceptions. On July 1, 1908, the time for filing a bill of exceptions was by an order then entered of record extended to August 15, 1908. On August 12, 1908, a document certified by the trial judge as “a correct stenographic report of the proceedings at the trial” was signed by the judge and filed with the clerk of the Municipal Court.

This case comes under the designation of the “fourth class” by the terms of the Municipal Court Act. Paragraph 6 of section 286, chapter 37, R. S., title “Municipal Court’5, provides: “Upon application made at any time 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 by whom said final order or judgment was entered to sign and place on file in the case in which the same was entered, if so requested by either of the parties to the suit, either a correct statement, to be prepared by the party requesting the signing of the same, 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; or if such party shall so select, a correct stenographic report of the proceedings at the trial. * * *” The court had jurisdiction to enter the order of June 2, 1908, extending the time for filing any document provided for in the section of the Municipal Court Act above quoted, but was without jurisdiction to enter any other order subsequent to thirty days after the date of the judgment, and consequently no jurisdiction to sign the stenographic report signed by the trial judge and filed with the clerk August 12, 1908. We held to this effect in Lassers v. North German Lloyd Steamship Co., 150 Ill. App. 273, in which we say: “We think the statute is plain and free from ambiguity and circumscribed the power of the court to enter an order fixing the time for the filing of the bill of exceptions or stenographic report within thirty days from the date upon which the judgment was entered. In that regard the practice in the Municipal Court is different from that which obtains in the Circuit Courts of this State. While the Municipal Court has power to grant time in which to file such stenographic report or bill of exceptions beyond thirty days from the date of the entry of the judgment, the order must be entered by the court within thirty days of the entry of judgment. To hold otherwise would nullify the meaning of the words, ‘or within such further time as may upon application therefor within said thirty days be allowed by the court. ’ ”

The writ of error in this case is undefended, yet the question being jurisdictional is one of which we must take judicial notice. The lack of jurisdiction appears from a reading of the record sought to be reviewed, in which, under the statute supra, the so-called stenographic report has no place The assignments of error present no questions involving the integrity of the common law record. The stenographic report is therefore stricken from the record and the judgment of the Municipal Court is affirmed.

Stenographic report stricken and judgment affirmed.

Mr. Justice Baker, dissenting.


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    Bessie Hershowitz, Defendant in Error, v. The Royal Tailors, Plaintiff in Error.
    Gen. No. 14,755.
    This case is controlled hy the decision in Lassers v. North German Lloyd Steamship Co., 150 Ill. App. 263, and Hasselgren & Co. v. Esser, ante, p. 7.
    Baker, J., dissenting.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. F. L. Fake, Jb., Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    I. W. Baker and W. G. Shockey, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

We regard the record in this cause as presenting in principle substantially the same defects which led us in Lassers v. North German Lloyd Steamship Co., 150 Ill. App. 273, and Hasselgren & Company v. Esser, ante, p. 7, to hold that no reviewable question was presented by the records in those cases. Neither do we find in this record any question calling for our review. A judgment for $250 upon the verdict of a jury was entered May 22, 1908. On July 10, 1908, the trial judge signed what he certifies to be a “bill of exceptions”, which on the next day was filed with the clerk of the court. For the purpose of this decision, as the trial judge certifies that the so-called “bill of exceptions” contains all the “evidence heard, offered or received” on the trial, we shall regard it as fulfilling the office of the “stenographic report” provided for by paragraph 6, section 23, of chapter 37, R. S., title “Municipal Court”. Thereafter and on July 14, 1908, the following order was entered: “Upon reading the stipulation of the parties herein filed, upon motion of attorney for defendant it is ordered that time for filing the bill of exceptions herein be, and it is, hereby extended to and including the 15th day of July, 1908”. The only knowledge we have of the contents of the stipulation recited in the foregoing order is the recitation in regard to it. It is not found in the so-called “bill of exceptions”, where it properly belongs. Neither is it found or referred to in any other part of the record. When the “bill of exceptions” was signed by the trial judge the court had lost jurisdiction to enter that or any like order, much more than thirty days having then elapsed since the entry of final judgment. So far as the order recites, it had no retroactive effect. It spoke in futuro, the time in which to file the document being extended to a future date. There is no suggestion that the stipulation was to sanction or validate any prior action of the court, so that the question of the power of the parties to reinvest the court with that jurisdiction over the case which it had lost, is not involved. The case therefore rests on the power of the court to sign the bill of exceptions upon the record as it stood at the time the trial judge so signed it.

In Hance v. Miller, 21 Ill. 636, the court say: “The bill of exceptions was filed in this case two months and a half after the trial was had, and there was no agreement that it might then be filed, nor was there any order of court extending the time of filing the same. This was not filed in time to render it any portion of the record. Dickhut v. Durrell, 11 Ill. 72. The assignment of error questions the correctness of the decision in admitting the evidence, and as the bill of exceptions was not filed in apt time, the judgment should be affirmed for want of a proper bill of exceptions, if for no other. The presumption being that the evidence sustains the judgment”. This is, on all the points stated in that part of the opinion quoted, as nearly akin to those appearing in the case at bar as one case can reasonably be found alike to another. Hake v. Strubel, 121 Ill. 321; Village of Marseilles v. Howland, 34 Ill. App. 350; same case affirmed in 136 Ill. 81.

In Dickey v. Town of Bruce, 21 Ill. App. 445, it was held that where the term had passed in which the court had ordered the bill of exceptions to be filed, that after the lapse of such time and the term in which such time had expired, the court was without jurisdiction to further extend the time for filing the bill of exceptions. So in the case at bar, by analogy, the jurisdiction of the Municipal Court to sign the so-called bill of exceptions found in the record ceased thirty days after the entry of the final judgment order.

As no assignment of error challenges the integrity of the common law record, the so-called bill of exceptions is stricken from the record and the judgment of the Municipal Court is affirmed.

Affirmed.

Me. Justice Baker, dissenting.


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    Albert C. Banker, Defendant in Error, v. Nicholas E. Ford, Plaintiff in Error.
    Gen. No. 14,776.
    1. Malicious prosecution—what part of res gestae. In actions for malicious prosecution, as part of the res gestae, the defendant should he allowed to prove all the circumstances out of which the prosecution arose and the various steps taken before the warrant of arrest was issued. Such defendant might prove his own good character as an element to ward off any suspicion that he might have acted without probable cause, and, on the other hand, he might prove the bad character of the accused as some justification for his action and for entertaining the honest belief that such accused was guilty of the offense charged.
    2. Malicious prosecution—what not competent. Irregular proceedings by the justice before whom the criminal prosecution was initiated are not competent to affect the defendant In an action for malicious prosecution.
    3. Evidence-—what competent upon direct impeachment. Witnesses who know the party sought to be impeached in the community in which he resides are competent though they do not live in the immediate neighborhood of such party.
    Action for malicious prosecution. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 6, 1909.
    Statement by tbe Court. The record brought here for our review discloses that the cause of action is malicious prosecution, and that a trial before court and jury resulted-in a verdict and judgment for $750 in favor of plaintiff and against defendant, the latter of whom asks a reversal of the judgment.
    The circumstances involved in this controversy are in substance that defendant was assignee of plaintiff’s note secured by a mortage on chattels owned by him at the time the note and mortage were given, and at the time of the arrest hereinafter alluded to were in the possession of plaintiff at his place of business on the second floor of 1424 Michigan avenue, Chicago. The mortgage contained, among other prolusions what is designated among lawyers as an “insecurity clause”. In reliance upon this clause of the mortgage defendant sought to foreclose his lien on the chattel property. Such purpose he made known to plaintiff. An employe of plaintiff was by agreement of the parties made custodian of the mortgaged chattels pending-some negotiations for a settlement. After plaintiff concluded he was unable to comply with defendant’s proposed terms of settlement he consented that the chattels described in the mortage might be removed from 1424 Michigan avenue and sold. Defendant in writing waived notice of sale and stipulated that the chattels might be sold April 6,1908. While defendant was engaged in moving the chattels on March 30, 1908, plaintiff locked the door of a small room containing a switch which operated an elevator, by means of which defendant desired to carry the chattels out of the building. Defendant protested against this action of plaintiff and set up a claim that some of the property covered by the mortgage was in that room. This plaintiff denied and defendant still insisted on his right of access and threatened to break into the room unless plaintiff opened it. To intimidate defendant and deter him from getting into the closed room to operate the switch which controlled the elevator and from taking the goods out of the building by way of the elevator, plaintiff procured a gun and exhibited it" to defendant and handled the gun in such a way that it was seen by others, and used language from which those present might conclude that the gun would be fired if defendant persisted in his purpose of breaking into the locked room. Defendant left the premises, proceeded to a police station and there made complaint against plaintiff, for whom a “peace warrant” was issued, under which he was arrested by a Chicago policeman, who, finding the gun upon his person, took it away from him. Plaintiff gave bail at the station and was released without having been put into a cell. He was tried for making “threats to kill” and was discharged. Bulings of court on the evidence and in its instructions to the jury are principally relied upon for a reversal.
    John M. Humphrey and J. Marion Miller, for plaintiff in error.
    Howard Ames, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In actions for malicious prosecution, to entitle a plaintiff to prevail he must, in the first instance, establish by his proofs a want of probable cause for commencing the prosecution complained about. Such is an elementary principle in actions of this character and cannot be dispensed with. From a want of probable cause malice may be inferred. But proof of malice without proof of want of probable cause is insufficient to warrant a recovery. Or, in other words, want of probable cause is not inferable from malice, notwithstanding the converse of this proposition is the law. These fundamental propositions plaintiff’s counsel has ignored in his brief and argument. He apparently does not regard them as being of any controlling importance to a decision.

The early case of Israel v. Brooks, 23 Ill. 526, is instructive as applied to the facts and law of the case at bar. Mr. Justice Breese, speaking for the court, said: “The action for malicious prosecution is nec-

essarily viewed by the courts with great jealousy, from public considerations, as few men could be found who would be willing to originate a criminal prosecution if, on failure to establish the guilt of the accused, he himself was to be subjected to an onerous and expensive suit. Anciently it was doubted if the action would lie unless founded upon conspiracy. It is now, however, well established such actions will be maintained, but at the same time the onus is upon the party bringing the action to show that the criminal prosecution was the offspring of malice and without any probable cause to justify it—that the prosecutor had no sufficient reason to believe the accused guilty. If these are wanting—if malice and want of probable cause do not exist—the action must fail. * *' * If there be probable cause for the prosecution, the malice of the prosecutor weighs nothing, though the accused be innocent.”

The rulings of the trial judge upon the admission of much testimony offered by defendant were altogether too narrow and resulted in excluding important evidence tending to exculpate him from the charge made. As a general proposition in cases of this nature, as part of the res gestae, defendant ought to be allowed to prove all the circumstances out of which the prosecution arose and the various steps taken before the warrant of arrest was issued. He might prove his own good character as an element to ward off any suspicion that he might have acted without probable cause, and on the other hand he might prove the bad character of the accused as some justification for his action and for entertaining the honest belief that plaintiff was guilty of the offense charged.

The admitted circumstances of the occurrence leading to the arrest amount to a breach of the peace by plaintiff, if anything. He was tried for and acquitted of “making threats to kill”, which is not a crime by either the common or statute law. The warrant under which plaintiff was apprehended was a “peace warrant”, and if he was amenable to discipline at all it was in being held in bonds to keep the peace. Vide secs. 1 to 6, div. 5, chap. 38, R. S. The failure of the magistrate before whom plaintiff was brought to proceed in pursuance of the statute supra is in no way, nor for any reason, imputable to defendant.

While the proceedings before the magistrate were admissible as evidence of the prosecution and discharge of plaintiff, they in no way tended to establish a want of probable cause, but merely the right of plaintiff to maintain the suit. The note and chattel mortgage should not have been received in evidence when offered by plaintiff, as they did not tend to throw any light upon the question either of malice or want of probable cause. Their admission at the instance of plaintiff may have had the effect of prejudicing the jury against defendant. If the right of defendant to be upon the premises of plaintiff when the gun episode occurred had been disputed, then defendant might have justified such right under the provisions of the chattel mortgage, but that it was not admissible on the part of plaintiff we think clear.

Defendant attempted to prove the bad character of plaintiff by impeaching his reputation for truth and veracity, and asked of several witnesses questions substantially in the form of this one: “Are you acquainted with plaintiff’s general reputation for truth and veracity among his neighbors and friends and business associates in the city of Chicago?” Objections to this and similar questions by counsel for plaintiff were sustained. We think such rulings were erroneous and prejudicial to defendant’s defense. In this day of congested urban population, neighborhood of a person’s residence is hard to define. In cities like London, New York and Chicago a man may be absolutely unknown to his next door neighbor and have no acquaintance with any who dwell near him, and yet he may the city round have a very extensive acquaintance and be well known in business and social circles. The former limitation of neighborhood in the sense in which it was at one time understood, is no longer of pratical application. Wigmore in his admirable work on evidence, at page 1616, in discussing this subject says, inter alia: “What the law then and now desired was a trustworthy reputation; if that is to be found among a circle of persons other than the circle of neighbors about a sleeping place, it should be received”. “The rules of evidence must expand according to the exigencies of society”, said Lord Ellenborough in Pritt v. Fairclough, 2 Camp. 305; State v. Henderson, 29 W. Va. 147.

The instructions as .a whole are bad and were given upon an erroneous theory of the case. The jury should have been informed in some one of the instructions that plaintiff could not recover unless they believed from the evidence that defendant, in instituting the prosecution, had no probable cause to believe plaintiff guilty of the offense charged against him. •

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.


text:
    Edwin C. Hansen v. Adolph Bruckman. Adolph Bruckman, for use of Edwin C. Hansen, Plaintiff in Error, v. Isaac Horner et al., Defendants in Error.
    Gen. No. 14,793.
    1. Chattel mortgages—effect of possession. If a mortgagee take possession under a chattel mortgage, a provision thereof covering stock in -trade becomes effective against third parties whose rights have not attached prior to the taking of such possession.
    2. Chattel mortgages—when cover after-acquired property. Held, that the language of the chattel mortgage in this cause was sufficiently broad and comprehensive to cover after-acquired property.
    Attachment. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Leopold Saltiel, for plaintiff in error.
    Whitman & Hornee, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The initial action was in attachment, in which defendants in error were summoned as garnishees. A trial before the court of the garnishee proceedings resulted in a judgment of nil capiat and for costs.

The statement of fact in the record discloses that Bruckman, October 18, 1907, executed and delivered to defendants in error a chattel mortgage securing an indebtedness to defendants in error of $650, which was acknowledged and recorded pursuant to the statute governing chattel mortgages. The mortgage contained this clause: “together with the entire stock of groceries consisting of canned goods, teas, coffees, spices, cereals, etc.; smoked meats, etc.; and all other personal property of whatsoever kind or natur e which may now or at any future period be contained in the premises known as 1419 W. Madison street, Chicago, Illinois”. Prior to the commencement of the attachment suit defendants in error took possession of the mortgaged property and under the terms of the mortgage sold the same, the proceeds of which sale Hansen, a creditor of Bruckman, sought to reach and subject to the payment of Bruckman ?s debt to him, through the garnishee proceeding. After the delivery of the mortgage and to the time of defendants in error taking possession, the mortgaged property remained in the possession of Bruckman, who trafficked with them in the usual way, selling some and adding new goods to the stock. The trial judge certifies, and counsel for plaintiff in error argue, that the contention of plaintiff in error is that the clause above quoted would not include “after acquired property”.

A chattel mortgage of the character of the one found in the record is binding and valid as between the parties at all times, but is void only as against purchasers, judgment creditors and lien holders of the mortgage. Possession, in virtue of the mortgage, by the mortgagee, of the mortgaged chattels, before any lien of third parties attaches or intervenes, validates such mortgage as against such third parties. We think the language of the clause quoted is in purport and legal effect tantamount to, and by implication means, “after acquired property”. We think the language of the court in Hock v. Magerstadt, 124 Ill. App. 140, —“Considering the language used and the general scope of the contract, the intent of the parties was, we think, to create a lien upon the stock of merchandise then and thereafter to be kept in the store room specified, as well as upon the tools and fixtures used in connection with the business”—is of equal force in this ease, and that the words in the mortgage, “and all other personal property which may now or at any future period be contained in the premises 1419 W. Madison street”, was, by intent of the parties as well as by legal interpretation, sufficient to include “after acquired property”. The possession of the property under the terms of the mortgage, prior to the intervention of the rights of third parties, vested defendants in error with a valid lien, according to the conditions of the mortgage.

The judgment of the Municipal Court being right is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    O. F. W. Schulze, Defendant in Error, v. Albert Wesley Gottschalk, Plaintiff in Error.
    Gen. No. 14,728.
    Municipal Coxjbt—when hill of particulars in fourth class case sufficient. The bill of particulars in a fourth class ease need only-state the nature of the plaintiff’s demand; it is not essential that it set up the facts showing a cause of action.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Albert Wesley Gottschalk, for plaintiff in error.
    Harry Brown and Josiah Burnham, for defendant in error.
   Mr. Justice Baker

delivered the opinion óf the court.

In an action of the fourth class in the Municipal Court, tried without a jury, plaintiff had judgment for $45, to reverse which defendant prosecutes this writ of error. The statement of plaintiff’s claim in the bill of particulars is as follows:

“Plaintiff’s claim is for work performed for and material furnished to defendant by plaintiff; painting and paperhanging in premises known as No. 560 Armitage avenue, Chicago; amount due as per contract, $48.75, and for extras furnished at request of defendant, $6.61.”

_ Plaintiff in error contends that the “bill of particulars of plaintiff’s claim” in actions of the fourth class takes the place of a common law declaration, and therefore must state facts which constitute a cause of action; that the bill of particulars in this case does not state facts which constitute a cause of action, and therefore is not sufficient to authorize or support the judgment. Section 40 of the Municipal Court Act provides: “That every case of the fourth class # * * shall be commenced by the filing, by the plaintiff with the clerk, of a praecipe * * * and a statement of the plaintiff’s claim, which statement, if the suit be upon a contract, express or implied, shall consist of a statement of the account or of the nature of the demand * * * but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in a declaration at the common law. * * *” This section does not require the plaintiff to state the facts constituting his cause of action, but only to state the nature of his demand. In this ease there is a sufficient statement of the nature of plaintiff’s demand, and the contention that such statement will not authorize and support the judgment is without merit.

Plaintiff in error also contends that the judgment is against the evidence. Plaintiff was employed by defendant to paper the ceiling and walls and grain the woodwork in a certain room at the agreed price of $48.75. The evidence for the plaintiff tended to show a substantial performance of the contract by the plaintiff. The evidence for the defendant tended to show that plaintiff failed to do a part of the work required by the contract, and that some of the work done was not done in a good or workmanlike manner. The evidence was conflicting. The judgment was for $3.75 less than the price agreed on for the work.

We cannot say, on the evidence in the record, that the trial court did not make a sufficient allowance for the omissions or defects in the work, or that the judgment is against the evidence, and the judgment is affirmed.

Affirmed.


text:
    Kaestner & Company, Defendant in Error, v. Charles Pope, Plaintiff in Error.
    Gen. No. 14,743.
    Municipal Court—section S3 of act construed. This section only applies to those persons specifically defined thereby.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Statement by .the Court. In an action of the fourth class in the Municipal Court plaintiff had judgment for $235.10, to reverse which the defendant prosecutes this writ of error. In June, 1904, an elevator in defendant’s building was wrecked, and plaintiff, a corporation, was employed by defendant to repair the same. About August 1st, plaintiff was employed by defendant to make certain additions to the equipment of said elevator. No price was agreed on in either case. Plaintiff performed labor and furnished materials under each employment and rendered bills therefor to defendant. The amount of the bill for the repairs, dated June 21, 1904, was $177.70, and the amount of the bill for the additional equipment, dated August 4, 1904, was $80.40. This action was brought to recover the reasonable value of such labor and materials. In the spring of 1905 defendant added two stories to his building, and employed plaintiff to make the necessary changes in the elevator. Later defendant employed plaintiff to make other changes and additions to the elevator. Defendant paid plaintiff for all of the work done in 1905, and the transactions of that year are only material in so far as they relate to or affect the transactions of the previous year.
    Mather & Hutsoh, for plaintiff in error.
    Elbert C. Fergusou, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

We think that from the evidence the jury might properly find that the reasonable value of the labor done and materials furnished by plaintiff to defendant stated in the bills of June 21 and August 4, 1904, was equal to the amount of the verdict and judgment.

Plaintiff in error contends that the only just conclusion that can be drawn from the evidence is, that said bills were paid in connection with or as a part of the transactions between the parties in 1905. Plaintiff called as a witness Hodgkins, who, as the architect of defendant, had charge of the alterations made in defendant’s building in 1905, and stated that he called him under the statute. Section 33 of the Municipal Court Act only provides that a party in interest and certain officers and the managing agent of a corporation may be examined by the adverse party. Hodgkins was neither a party in interest nor the agent of a corporation, and cannot therefore be held to have been called under the statute, but must be held to be a witness called by the plaintiff. While plaintiff might not therefore impeach Hodgkins, it might contradict him by other evidence.

Hodgkins testified that in February, 1905, he applied to plaintiff to extend the elevators; that his talk was with Mr. Snowden; that Snowden said that plaintiff had bills against defendant which were unpaid, and would “refuse to do any work for Mr. Pope on that building until these bills were settled;” that he finally told Snowden that if plaintiff would proceed with the work he “would see that all accounts were squared up in a satisfactory manner to both parties.” The compensation agreed on was seventy-five cents per hour for mechanics, fifty for helpers, materials at cost and ten per cent additional. Hodgkins issued to plaintiff two certificates on account of the extension of the elevators, one for $1,000 May 5, 1905, the other, a final certificate, for $708.91 July 27, 1905, and both were paid by defendant to plaintiff. Before said certificates were issued plaintiff had delivered to Hodgkins bills for labor and materials used and employed in such extension exceeding the aggregate amount of said certificates. Said final certificate is as follows:

“Bldg. No................ Certificate No. 27. By day $1708.91/100 Extra Work $.................... Total, $1708.91/100 Former Certificates $1000.00/100 Present Certificate $708.91/100 Total $1708.91/100 Balance $ None

$708 and 91/100

Chicago July 27 1905 To Mr. Charles Pope, 110 LaSalle St.

THIS IS TO CERTIFY, That Kaestner & Co., Contractor for the elevator work of addition of your building at Nos. 121-127 Plymouth Ct. City is entitled to a final payment of Seven Hundred Eight and 91/100 Dollars by the terms of contract in full.

Howard Gr. Hodgkins, Architect.”

Hodgkins further testified that the old or unsettled bills claimed by plaintiff to be due from defendant were taken into consideration in the adjustment of 1905, and an allowance made therefor to plaintiff, which was included in the final certificate; that to the best of his recollection $100, $108, $125, or something like that was included to cover such old bills. He further testified that Sollitt was the original contractor for the construction of the building and plaintiff was subcontractor for the elevators. Snowden testifled that his conversation with Hodgkins was about another bill for $50.50 for the services of an operator to elevate material and assist tenants in moving, which Hodgldns insisted should be paid by Sollitt. Defendant put in evidence the following letter from plaintiff to Hodgkins dated March 23, 1905: ‘ Complying with your valued favor of the 22d, we have entered your order for the change on the Pope Building Elevators, as per our proposition of the 11th, it being understood that our former bill is to be included with bills for this work as arranged by you and our Mr. Snowden.” Also another letter from plaintiff to Hodgkins, dated July 25, 1905, which begins as follows: “ Referring to our charge for time and material on the Pope building and which shows a balance due us of $738.09, we beg to state” that unless a certificate for that amount is issued a lien will be filed, etc. Also another letter from plaintiff to Hodgkins, dated July 26, 1905, which begins as follows: “For purpose of settlement of your account with us for the elevators erected in the Pope' building we have decided to accept your figure made to our representative today of $708.91,” etc. September 20, 1905, plaintiff sent defendant a statement of account, claiming a balance due from, defendant of $309.75. This balance was made up of the following items:

June 21, 1904, $177.70.

Aug. 4, 80.40.

July 25, 1905, 51.65

309.75.

Defendant testified that Wilson had charge of .the building in question with authority to make repairs and conduct correspondence for him, and that he did not personally attend to repairs .or the management of the building. November 25, 1905, Wilson, in the name of defendant, wrote plaintiff as follows:

“In reply to your letter of the 22nd, I do not see why you persist in writing about this amount. I have told you several times that if you would send in a corrected bill that I would mail you a check. The first two items in your statement, $177.70 and $80.40, I do not consider I am liable for, and that it is up to R. and S. Sollitt Co. to pay. The last item, July 25th, $51.65, you agreed to do for $45.00, and if you will send me a corrected bill for this amount, I will send you a check. Tours truly,

Chas. Pope,

Per Wilson.”

The last item of $51.65 was afterwards adjusted and paid. The first two items are the bills sued for in this action.

The claim of defendant in November, 1905, was that these bills should be paid by Sollitt. This claim he abandoned at the trial and claimed that these bills were included in the final certificate of July 27, 1905, which he paid. The burden of proving payment was on the defendant. The defense of payment is supported only by the testimony of Hodgkins, who was called as a witness by plaintiff. His testimony as to a verbal agreement with Snowden that the bills of June 21 and August 4, 1904, should be included in the certificate for the new work' was contradicted by Snowden. It finds no support in the certificate he issued for the new work or in the correspondence between him and plaintiff in reference to that certificate. If the bills were paid in July, it is remarkable that in November, when they were again presented by plaintiff to defendant, that defendant should not have said that they had been paid instead of saying that he was not liable for them and that it was up to the Sollitts to pay them.

We cannot, on the evidence in this record, say that • the jury might not properly find against the defendant on his claim that the bills sued for had been paid. Finding in the record no reversible error, the judgment is affirmed.

Affirmed.


text:
    Jerry Lynch, Defendant in Error, v. Montgomery Ward & Company, Plaintiff in Error.
    Gen. No. 14,749.
    M&STER AND 5ERVANT-'WlieTh doctrine of assumed risk applies. If the defect which resulted in the injury complained of was known to plaintiff and was open and obvious to any person of ordinary intelligence and if the servant with knowledge of such defect and appreciating the danger thereof remained in the employ of his master, he assumed the risk and cannot recover0
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. EDWARD DICNER, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed December 6, 1909.
    P. J. CANTY and B. J. P0LONIE, for plaintiff in error.
    J. D. RYAN, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is a writ of error prosecuted by defendant to reverse a judgment for $578 recovered by plaintiff in the Municipal Court for personal injuries, Plaintiff was in the service of defendant, engaged in unloading boxes of goods from wagons and sending them down, through a hatchway in the sidewalk, to the basement of defenda0nt's building. Heavy iron doors which opened upward from the middle, north and south, were used to close the hatchway, and iron lattice work gates were provided to bar entrance to the hatchway, from the east and west. These gates were removed when the hatchway wa~ closed, When the hatchway was open, the south door stood perpendicular, the north door stood inclined outward, or to the north, and the gates were in place. To keep the south door in position when open an iron rod about three feet long was provided, which ran from near the top of the door, at its west end, to near the middle of the west side of the hatchway. The upper end of this rod was fastened to the door and the lower end was bent, so as to form a hook, and was hooked into a screw eye or staple in the frame of the hatchway. A similar rod and staple were provided to hold the north door in position. Near the top of each door when open was a ledge, and to further prevent the doors from falling inward a scantling was used which ran from one door to the other, near the west end of the doors, and rested on said ledges. To prevent the doors from falling outward a chain ran from one door to the other and was attached to the top of each door near its west end. All of the appliances for keeping the doors in position when open were near the west end of the doors. At the time plaintiff was injured the chain above mentioned was slack and had been thrown over the west gate.

Plaintiff, at the close of work, for the purpose of closing the hatchway for the night, removed the plank which was between the tops of the doors, and took hold of the chain to lift it from the gate, in order to remove the gate, and while he had hold of the chain, the north door fell inward and his fingers were caught between the end of the door and the gate and injured.

Plaintiff and Denihan had been sending goods down through the hatchway for five or six weeks before plaintiff was injured, and during that time had opened the hatchway in the morning and closed it at night. As a rule Denihan took the west end and plaintiff the east, but plaintiff had some times, both in opening and closing the hatchway, taken the west end and hooked the rods into the staples in opening and unhooked them in closing the hatchway. Two or three weeks before the accident a box struck the rod that held the south door in place, just above the hook and bent it. After the rod was bent it was difficult to hook it into the staple, the hook sometimes had to bé forced into the staple and it sometimes came out of the staple after it had been hooked into it. About two weeks before the accident plaintiff fastened the hook in the staple with a string. From the time the rod was struck by the box and bent until the accident, plaintiff and Denihan, and they only, opened and closed the hatchway and used it during the day.

Denihan, called by the plaintiff, testified in chief as follows:

“Q. What was the condition of those hooks, say for two weeks before the accident happened to Jerry Lynch?

A. One of the hooks was bent and we often had to hammer it in there to keep it in the staple.

Q. Which hook? A. The south hook.

Q. After it became bent what effect did that have on its going into the staple?

A. It wouldn’t fit in there very well; it wouldn’t stay there.

Q. During that two weeks did that hook remain in the staple most of the time or out of it?

A. It was out of the staple some times.

Q. That was because of its being bent?

A. We couldn’t set it in”.

Plaintiff testified that the last time he took the west end in assisting to close the doors, was about a week before the accident; that he tied the hook which held the south door in place into the staple a couple of weeks before the accident. He gave no testimony tending to contradict the testimony of Denihan, or to show that the condition of the hook was not known to him before the day of the accident.

A careful examination of the evidence has led us to the conclusion that the condition of the hook was known to plaintiff before the day of his injury.

The conclusion most favorable to the plaintiff, that can properly be drawn from the evidence is, that the rod which, if in place, would have held the south door in position was bent, and therefore defective; that because of such defect it had worked out of the staple; that by reason thereof the door fell and injured the plaintiff, and that therefore the defective condition of the rod or hook directly contributed to plaintiff’s injury.

But the defective conditions of the rod or hook was known to the plaintiff; the danger of the use of the rod and hook in such defective condition was open and obvious to any person of ordinary intelligence, and with knowledge of the defect and danger plaintiff continued in the employment of the defendant, and therefore must be held to have assumed the risk attendant upon the use of rod or hook in such defective condition. Galloway v. C., R. I. & P. Ry. Co., 234 Ill. 474.

The judgment will be reversed with a finding of fact, and the cause will not be remanded.

Reversed tuitli finding of fact.


text:
    John W. Anderson, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 14,764.

      Verdicts—when set aside and final judgment rendered. A verdict for the plaintiff will he set aside on review and final judgment rendered for the defendant if the record shows that such should have been the result in the trial court and that no other result could be sustained on appeal.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed December 6, 1909.
    Mark E. Guerin and Ferdinand Goss, for plaintiff in error; John R. Harrington, of counsel.
    Gustav E. Beerly, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This writ of error brings before us for review a judgment for $650 recovered by the plaintiff in the Municipal Court for personal injuries alleged to have been caused by defendant negligently starting its street car while plaintiff was getting on said car. Plaintiff was a passenger on a south-bound car in Cottage Grove avenue, intending to ride to a point south of 55th street. His car turned east in 55th street, and he then obtained a transfer, went back to Cottage Grove avenue to take a car that ran south beyond 55th street, and it was when attempting to get on such car that he was injured. The south-bound car was what is called a “Pay as you enter” car, and a passenger could enter it only from the west over the rear platform. A railing divided the platform so that a person desiring to enter could only do so by getting on behind such jailing, and passengers leaving the car passed out in front of the railing. At the west end of the platform was a hand-rail or handle, and at the outer end of the rail a rod extending from the platform to the roof, so that a passenger in going on the car might take hold of the handle with his left hand and the rod with his right. The car in question stopped at 55th street. Only one person was there waiting to take the car, George Chisholm, who was called as a witness by defendant. Chisholm stepped on the platform, the conductor rang the bell and the car started forward The conductor stood in his proper position forward of the rail and facing the rear end of the car.

The contention of plaintiff at the trial was that before the car started he came around the rear end of the car to the west side of the rear platform, took hold of the handle with his left hand, placed his left foot on the step, and started to pull himself onto the platform; that although the conductor was looking at him, he started up the car while plaintiff had still one foot on the ground^; that plaintiff was unable to pull himself up, but held onto the car with both hands and was dragged by the car; that the conductor stood looking at him while the car dragged him between 75 and 100 feet without making any effort to stop the car, and he then called to the conductor to stop the car, and he then stopped it.

The contention of defendant was that the plaintiff did not come from behind the car, or into the view of the conductor, until after the car had started; that the conductor saw his hand when he took hold of the handle of the car and at once gave the emergency signal to stop, and the car was stopped; that the car did not run farther than twenty feet from the time it started until it stopped.

Plaintiff’s connection was supported only by his own testimony. He testified in chief that he came around the rear end of the car while it was standing still, got hold of the handle at the rear end of the platform with his left hand, put his left foot on the step, and just as he started to pull himself up . the conductor rang the bell and the car started forward with such a sudden jerk that it swung him around and he slipped off from the step; that the car dragged him between 75 and 100 feet; that the conductor stood there looking at him while the car was dragging him; that he then “hollered” to the conductor to stop the car and he stopped it; that he then had hold of the car with both hands. On his cross-examination he testified that he was only a few feet from the car when it stopped; that he went past the back end of the car, came on the west side of the car, and then took hold of the handle at the rear end of the platform; that he then had come clear around the rear end of the car and was facing east. He was asked if the conductor did not give the signal to start so soon as he took hold of the handle, and answered, “No, I did not say that. As soon as I got hold of the handle and put my foot on the platform and tried to pull myself up, he rang the bell twice as a signal to go ahead”. Opposed to plaintiff’s testimony is the testimony of Chisholm, a passenger, and of the conductor and motorman. Chisholm testified that he stood west of the track and south of 55th street, waiting for a car, and got on the car when it stopped; that the bell was rung immediately after he got on and the car started np; that when it started up no one was getting on the car; that after he had received a transfer he turned around and saw a man being dragged by the car; that the conductor was then ringing the bell to stop and the car stopped; that it ran between ten and twenty feet from the time it started until it stopped. The motorman testified that he stopped at 55th street to take on a young man who was standing there; that the car just stopped and picked up the man and then the conductor gave the signal to start, and he started the car; that almost immediately after he got the signal to start he got a signal to stop, and stopped the car; that the car only ran 15 to 20 feet before it stopped. The conductor testified that he was in his sixtieth year and had been a conductor seventeen years; that he stopped his car at 55th street and one man was there, who got on, and he gave the signal to go ahead; that the ear had only got started when he saw a man’s hand reach around the corner of the car; that that was the first he saw of anybody there, and that he did not then see his body; that he immediately gave the emergency bell to stop the car, and the car ran only a few feet and stopped; that he was standing inside of the railing facing the rear end of the car; that the car ran only from 15 to 20 feet from the time it started until it stopped. Both the plaintiff and the conductor testified that the conductor was facing the rear end of the car and looking at plaintiff when he attempted to board the car.

The plaintiff in his testimony imputed to the conductor conduct that was not merely negligent, but was inhuman. It is hard to believe that a man of sixty should see another man, but little younger than himself, in a position of great peril and not at once make use of the means in his power to protect or release the other from such peril. Plaintiff, ■ as he passed behind the car, walked so close to it that he could not be seen by the conductor until he had passed west of and beyond the car.

A careful examination of the evidence has led us to conclude that when the conductor gave the signal to start the car, he had not seen, and could not see, the plaintiff, and had no reason to suppose that any one desired or intended to take the car at the place where it then was; that the plaintiff put his hand on the handle of the car after the signal to start the car had been given and just as the car started; that the conductor, so soon as he knew or had any reason to suppose that the plaintiff intended to board the car, gave the emergency signal to stop the car, and the car was then stopped so soon as it could be stopped; and that the defendant was not therefore guilty of negligence in respect to the starting or operation of the car.

The judgment will be reversed, and the cause will not be remanded.

Reversed.


text:
    George Kahreman et al., Defendants in Error, v. Charles Dunbar et al., Plaintiffs in Error.
    Gen. No. 14,770.
    Chattel mortgages—effect of Knowledge of unrecorded. An unrecorded chattel mortgage is void as to third persons notwithstanding actual notice.
    Tort. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Statement by the Court. In an action in the Municipal Court to recover the value of a wagon peanut 'roaster of the plaintiffs, alleged to have been wrongfully taken by defendants from the possession of the plaintiffs and converted, etc., plaintiffs had judgment for $200, to reverse which the defendants prosecute this writ of error. April 20, 1907, defendants agreed with one Piskos to sell him said roaster at the price of $280. Plaintiff made a deposit of $25, and it was agreed that the title should remain in the defendants until Piskos should pay a further sum of $50 and give his promissory notes for the remainder for $20 each, one payable on the 20th day of each month thereafter, and a chattel mortgage on said roaster duly executed and acknowledged, to secure such notes. The next day Piskos executed and delivered to the defendants the notes and mortgage, paid $50, and defendants delivered to him the roaster. The mortgage was not acknowledged. May 27 Piskos paid to defendants the note due May 20. The defendants made from time to time various unsuccessful efforts to have Piskos acknowledge the "mortgage.
    Francis Borrelli, for plaintiffs in error.
    George I. Haight, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

In Van Duzor v. Allen, 90 Ill. 499, there was an agreement to sell a threshing machine, the buyer to give the seller notes for the price, • either with personal security or secured by chattel mortgage, and with the consent of the seller the buyer obtained possession of the machine without giving such notes or security of any kind, and it was held: that as between 'the parties the trade was not so far executed as to pass the title to the machine to the buyer. In this case the buyer, April 21, the day after the agreement to sell was made, paid the sellers $50 and executed and delivered to them his promissory note, for the remainder of the purchase money and a chattel mortgage on the property to secure the same, valid as between the parties. The sellers accepted the money, notes and mortgage, and May 27 the buyer paid the sellers the note due May 20. We think that the agreement to sell was so far executed as to pass the title to the property to the buyer, and that the only right in the property that remained in the sellers was such right as they had under the unacknowledged and unrecorded chattel mortgage.

The plaintiffs bought the property of the mortgagor with actual knowledge of the existence of the mortgage and with knowledge that the mortgage had not been acknowledged. The law is well settled in this state that an unacknowledged chattel mortgage is void as to third persons, notwithstanding actual notice. Long v. Cockern, 128 Ill. 36, and cases there cited.

Referring to the case of Hathorn v. Lewis, 22 Ill. 395, cited and relied on by counsel for plaintiff in error in this case, Mr. Justice Lawrence said in Sage v. Browning, 51 Ill. 217, 219, that case “was decided on the ground that the purchaser in that case in buying from the mortgagor was understood to be buying only his equity of redemption and did not pay the full value of the property, but allowed for the mortgage. The court evidently considered him under an implied promise to pay the mortgage. This case cannot therefore be regarded as in substantial conflict with the late decisions.” In this case there is no evidence tending to show that it was understood that plaintiffs were buying from Piskos only the equity of redemption, or that in the purchase any allowance was made for the mortgage.

The record is, in our opinion, free from error, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Henry Schumacher, Defendant in Error, v. John Claney, Plaintiff in Error.
    Gen. No. 14,752.
    Municipal Court—when “statement of facts” not sufficient for purposes of review. A “statement of facts” certified as substantially correct, is not sufficient for purposes of review. The statement of facts should be certified to contain “the facts appearing upon the trial.”
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Adams & Froehlich, for plaintiff in error.
    Castle, Williams, Long & Castle, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a writ of error from the Municipal Court in which judgment was entered for eighty dollars against plaintiff in error on a claim for wages. The plaintiff had been employed as a watchman by the foreman of The Flagler Iron & Steel Co., a corporation then in possession of a plant, which plant was soon after by the said corporation 16 surrendered back to the Chicago Highlands Association.” Subsequently the defendant and another entered into a contract with that Association “by which,” as stated by plaintiff’s attorneys in their brief, “they were given an option to purchase the plant and were given immediate possession to alter, equip and operate the same forthwith.” Plaintiff was paid for his services as watchman up to the end of March, 1906, and seeks to recover for April and May following, during which time he claims to have continued to serve as watchman at the plant. After May, 1906, the plaintiff continued to act as watchman and was paid therefor by the Highlands Association. The abstract of record states that “the sole question in dispute is, whether the defendant * * * is liable personally to the plaintiff for the work performed during April and May, 1906.”

We are unable satisfactorily to consider this question in the state of the record. The statutory requirements of the Municipal Court Act (R. S. chapter 37, section 286, 6th paragraph) in cases such as this are as follows: “Upon application made at any time 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 by whom such final order or judgment was entered to sign and place on file in the case in which the same was entered, if so requested by either of the parties to the suit, either a correct statement to be prepared by the party requesting the signing of the same, 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, or, if such party shall so elect a correct stenographic report of the proceedings at the trial and a correct statement of such other proceedings in the case as such party may desire to have reviewed by the Supreme Court or the Appellate Court, omitting therefrom” certain matters not now in question.

There is in the record of the case at bar neither “a correct statement * * * of the facts appearing upon the trial” nor “a correct stenographic report of the proceedings at the trial.” The statement signed by the judge purports to be “a substantially correct statement of the facts which appeared to be proven.” The statute calls for a “correct” statement of facts, not one that is merely substantially correct. It is not a proper compliance with the statute unless the certificate shows the statement to contain “the facts appearing upon the trial.” The distinction is not fanciful. It is real and material. It is one thing for the trial judge to certify to a state of facts which he finds from the evidence have appeared on the trial and upon which the verdict or judgment is based, and another thing to certify to facts which have merely “appeared to be proven.” The one is a finding of facts such as the statute requires. The other is a mere expression of opinion to the effect that the statement certified to contains what appeared to be proven as substantially correct facts, but which nevertheless the trial judge is unable from the evidence to find were proven. If the trial court cannot determine from the evidence what the facts are, a reviewing court cannot be expected to so determine without the evidence. We hold then that “a correct statement of the facts appearing on the trial” means a correct statement of the facts which the trial court has found from the evidence to be “the facts appearing on the trial.” If the parties are unable or unwilling to rely on the facts as the trial court finds and states them, then the statute affords an alternative. Either party may present “a correct stenographic report of the proceedings” to be signed by the judge and placed on file in the case, thus furnishing “the record to be considered upon the review of such order or judgment by writ of error.”

In the case at bar we have what is called a “bill of exceptions.” The first part of this instrument contains an apparent statement of certain of the facts. Then we are informed that a certain witness “testified” as to certain matters; and again that “evidence was offered and received on behalf of the plaintiff tending to show” certain things. The instrument is called a “bill of exceptions,” but does not purport to be such on its face. In this class of cases no bill of exceptions is required and the title is a misnomer.

The instrument is not a correct statement of the facts appearing on the trial, such as the statute contemplates, nor is it a correct stenographic report of the proceedings, and in the absence from the record of such statement or report .we are unable to review the case upon the merits. The judgment of the Municipal Court must therefore be affirmed.

Affirmed.


text:
    Harry Richman, Defendant in Error, v. Abraham Levine, Plaintiff in Error.
    Gen. No. 14,765.

      Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Rehearing denied December 16, 1909.
    Grossberg, Shaeffer & Kompel, for plaintiff in error.
    Samuel J. Richman, for defendant in error; Benjamin J. Samuels, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit in which the plaintiff, defendant in error here, seeks to recover commissions alleged to be due him as a real estate broker for effecting the sale of certain real estate for the defendant. The plaintiff’s testimony tends to show that in July, 1907, he met the defendant, who told him that his building upon the premises in controversy was completed; that the defendant said he wanted $15,000 for the property, and was told by plaintiff that the latter would .get a buyer as soon as he could and the commission would be two and a half per cent. Some days after one Lazerovitz of the firm of Lazerovitz and Jacobson made an appointment with the plaintiff and expressed a wish to buy the property. The plaintiff took him through and showed him the building and made an appointment with him and Jacobson to meet the defendant. Accordingly plaintiff in company with Lazerovitz and Jacobson met the defendant, whom they found waiting at the building. The proposed purchasers said they would give $14,000 for the property and it was finally agreed between them and the defendant that the price should be $14,500. The parties separated with that understanding. When however plaintiff met the defendant some days afterwards and told him that Lazerovitz and Jacobson had made an appointment to sign the contract, the defendant replied that he did not want to sell. Two days later the plaintiff met the defendant and asked the latter what he was going to do, to which he testifies the- defendant replied, “I am sorry for you Mr. Bichman. I know you worked very hard on the deal, but I do not want to sell any more. I am going to get a second mortgage and I would not sell.” A few days later plaintiff discovered that the property had been conveyed to one Harry H. Marks and by him conveyed to Lazerovitz and Jacobson for $14,500.

Marks testified that he was in the employ of Maun & Goodman,' real estate agents, that he bought the property for himself and paid $14,500 for it, less a commission of $300, of which he retained $100 and the rest was paid to Maun & Goodman. It is now claimed in behalf of the defendant that the purchasers were customers of Maun & Goodman, and that the latter were the first brokers to submit the property to the parties who finally bought it.

The issues were submitted to a jury, which returned a verdict in favor of the plaintiff for the full amount of commissions claimed. It is unnecessary to discuss the evidence at length. The fact that the property was promptly conveyed as it was through the medium of the witness Marks to the same purchasers, who, as there is evidence tending to show, were actively interested in the purchase by the plaintiff, certainly justified the jury in believing that the transaction with Marks was a subterfuge. There is conflict in the testimony as to whether the plaintiff or Maun & Goodman first introduced the purchasers to the defendant. The defendant apparently contradicts himself as to this, and it is the province of the jury to settle disputed questions of fact. It is not apparently denied however that the plaintiff actively interested the subsequent purchasers in the property and brought about the negotiations in the course of which the price was agreed upon and arrangements made for a meeting to sign the contract. The defendant then suddenly concluded that he did not want to sell, but proceeded nevertheless to make a sale, conveying the property to Marks, by whom it is forthwith conveyed for the price before agreed upon to the same parties who at the instance of the plaintiff had been actively interested in its purchase. The defendant’s contention is that when the defendant changed his mind and concluded not to sell, the transaction in which plaintiff was interested was then at an end, that the defendant was then at liberty to change his mind again and make a new sale, and that this is what he did. Whether the alleged change of mind was in good faith or not, whether the final sale was the result of the plaintiff’s efforts, and whether the sale to Marks was a subterfuge, were questions of fact which the jury have decided adversely to defendant’s contention upon evidence which we think justified their conclusion.

Finding no material error in the record, the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Morrison Hotel & Restaurant Company, Defendant in Error, v. Julius Kirsner et al., Plaintiffs in Error.
    Gen. No. 14,773.
    Municipal Court—when demand for jury ineffectual. A demand by the defendant for a trial by jury not made in the Municipal Court at the time of entering appearance, is ineffectual as not a compliance with the statute.
    Judgment by confession. Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed December 6, 1909.
    Rehearing denied December 16, 1909.
    A. G. Dicus, for plaintiffs in error.
    David R. Levy, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a proceeding by the plaintiff to recover rent alleged' to be due under a written lease. Judgment by confession was entered against defendants, under a power of attorney, upon January 21, 1908, for the amount of rent claimed to be due. Upon the 25th of the same month the defendants moved to vacate the judgment and on the 8th of February following the motion was argued by counsel and the judgment was “vacated and set aside.” Leave was given to the plaintiff to amend the statement of claim by increasing the ad damnum to $1,000 and to defendants “to file their set-off.” At the same time—the 8th of February—the defendants moved for a trial by jury, made written demand and tendered to the clerk the fees for a jury. The court overruled this last motion on the ground that the demand for a jury trial was not made as the statute requires, at the time the defendants entered their appearance. Municipal Court Act, R. S. chap. 37, section 293. The denial of this motion is the alleged error relied on by the defendants as a ground for reversing the judgment entered against them by the court, which tried the cause without a jury.

It is argued that the appearance of the defendants, entered by the attorney who signed the cognovit when the judgment by confession was entered, was, by the act of the court in setting aside the judgment by confession, adjudged to have been void and unauthorized. The ground for this contention is stated by defendants’ attorney to be that the Constitution provides “the right of trial by jury as heretofore enjoyed shall remain inviolate” (Const, of 1870, art. 2, sec. 5), and that “the case being at common law, both parties had a constitutional right to a trial by jury, which could be waived only by mutual consent appearing by the record.” In the first place, even if it could be conceded that when the court set aside the judgment by confession it vacated the entry of defendants’ appearance made by their attorney in signing the cognovit, it yet appears from the record that the appearance of the defendants was again entered by the attorney of their own choice, when on January 25, 1908, the motion was made in their behalf to vacate the judgment by confession. The demand for a jury trial was not made until February 8th following. The requirement of the statute was not complied with. The failure to make the demand at any time when the defendants’ appearance was entered, as the statute requires, was in effect a waiver of the right of trial by jury.

The judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Presiding Justice Chytraus

text:
    John A. Ordway et al., Plaintiffs in Error, v. William F. Buckingham et al., Defendants in Error.
    Gen. No. 14,484.
    1. Pleading—what competent upon rebuttal. A plaintiff may prove his case regardless of the defendant’s theory of defense and is entitled, after the defendant has developed his theory by evidence, to rebut such evidence of the defendant.
    2. Evidence—how question in rebuttal should be framed. Questions in rebuttal should either be limited to the specific matter sought to be admitted or denied, or else should be so framed as to call for a categorical admission or denial of the specific statement sought to be rebutted.
    Assumpsit. Appeal from the County Court of Cook county; the Hon. W. H. Hinebaugh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed December 7, 1909.
    Rehearing denied December 21, 1909.
    Ferguson & Goodnow, for plaintiffs in error.
    Defress, Buckingham, Ritter & Campbell, for defendants in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

We are obliged to reverse and remand this cause for another trial because the learned trial judge erroneously excluded competent evidence offered by plaintiffs below, now plaintiffs in error, and thereby prevented their obtaining such full and fair hearing by the jury, upon the merits, as they were entitled to under the law.

Plaintiffs sold, with certain other goods, seventy pieces of French voile, to defendants. This suit is for the purchase price, or, rather, a part of the purchase price not recovered through an attachment suit prosecuted in Massachusetts. It is contended that at the time of the sale, September 9, 1903, which was made for future delivery, it was agreed that the voile should be of a specified quality, and that fifty pieces of the goods should be black and twenty blue. Sometime subsequent to the sale the goods were shipped from Boston and delivered at the factory of defendants at La Porte, Indiana. At the trial defendants claimed that the goods were not of the quality ordered and did not correspond to sample 'and that, therefore, they had a right to rescind the contract and return the goods. The goods were shipped back but plaintiffs refused to receive them.

Upon their case in chief plaintiffs introduced evidence to the effect that defendants had given an order for the seventy pieces of voile of specified colors and that the goods were shipped in pursuance of this order. In the defense defendants did not dispute these matters, but introduced evidence tending to show that when the order was given it was given under a guaranty as to the quality of the goods and that, when received, the goods were far below the guaranty in quality. The contract of sale was made by Mr. Mumford, acting for plaintiffs, and Mr. Bae acting for defendants. For the purpose of contradicting the evidence introduced on behalf of defendants, in regard to the guaranty of quality, Mr. Mumford was called, in rebuttal, by plaintiffs. He was then asked: “Will you kindly state, as near as you can, the exact conversation which you had with Mr. Bae, on the ninth day of September, 1903, relative to the sale of the voiles in question, sold by Blodgett, Ordway & Weber to Buckingham Brothers & Company?” The attorney for defendants interposed an objection, saying: “We object on the ground that it is part of the plaintiffs’ case in chief.” This objection was sustained by the court and an exception to the ruling was duly taken. The case went to the jury, a verdict was returned in favor of defendants and the court rendered judgment upon the verdict.

There can be no dispute but what the answer called for by the question went to the merits of the controversy and might have changed the result of the trial. The theory of the plaintiffs’ case was that there was a sale without any guaranty. A plaintiff has an absolute right to prove his case according to his own theory of his right to recover and in total disregard of any theory of the defendant in respect to the case. Accordingly the plaintiffs, here, proved their case without undertaking, by their case in chief, to prove the negative that there was no guaranty. The proposition that there was a guaranty given at the time of the sale was an entirely new matter introduced by the defendants. “As a matter of right a party holding the affirmative can introduce in rebuttal only such evidence as tends to answer new affirmative matter introduced by his adversary.” Gray v. Bonfield, 59 Ill. App. 381, 383, cited by defendants in error. Under this rule plaintiffs were entitled, as a matter of right, to controvert the evidence of guaranty introduced by defendants as new matter in defense. No further authority for this elementary rule need be cited.

True, the question as put by the attorney for plaintiffs was obviously obnoxious to a specific objection because too broad and comprehensive in its scope, for a rebuttal question, in calling for the conversation on that day between the two gentlemen. The question should have been so framed as only to call for what was said upon the subject of guaranty or to call for an answer which would directly admit or contradict some specific statement made by the defendants’ witness upon that subject. But the objection, as put, only specified that the subject-matter called for was part of plaintiffs’ case in chief and waived other objections.

We are obliged to reverse the judgment of the court below and to remand the case for a new trial.

Reversed and remanded.


text:
    Polina Skarkowska, Defendant in Error, v. Bartholomae & Roesing Brewing & Malting Company, Plaintiff in Error.
    Gen. No. 14,644.
    1. Evidence—when admissions do not hind principal. An admission by an alleged agent does not bind his alleged principal in the absence of proof of the authority of such agent to make it.
    2. Landlord and tenant—burden to show execution and delivery of lease. In action for rent claimed as due under a demise, the burden is upon the plaintiff to establish the execution and delivery of the lease sued on.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed December 7, 1909.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; Walter H. Jacobs, of counsel.
    Coburn & Case, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

To reverse a judgment for seventy dollars, as rent for the months of January and February, 1908, rendered against it, the brewing company prosecutes this writ of error. The judgment was rendered in a trial by the court without a jury. The claim was made that there was a written lease made in October, 1907, for one year beginning with January, 1908. The defense was that the lease, although drafted, was not executed or delivered. The burden of proof was upon plaintiff.

The saloon premises in question were not occupied during the period involved and no rent was ever paid therefor by defendant. Plaintiff testified that an agent of defendant called upon her one day, when the amount of rent was agreed upon, and that the next day he brought a “lease” which she, not being able to read or write, then had her daughter sign for her. She is corroborated by her daughter. The agent took the “leases,” the daughter testified, and said he would bring back the leases and $35, the first month’s rent, on January 1, 1908. She also testified the name “Bartholomae & Roesing Brewing Company” was signed to the lease. Upon cross-examination, when asked whether the signature was “Bartholomae & Roesing Malting & Brewing Company” or that name “by somebody else,” she answered “Bartholomae & Roesing Company,” that “I didn’t read no further down” and that she did not remember. It appears that one Mallinger, whose business it was to solicit trade for defendant, was the “agent” who called upon plaintiff. His version of the negotiation with her is somewhat different and, if- correct, would furnish an additional ground for reversing the judgment of the trial court. This is, however, immaterial, because in nowise is the execution or the delivery of the “lease” by defendant shown. It is quite possible that the “leases” referred to had the name of defendant printed at the bottom. It does not even appear that Mallinger had authority to execute or deliver the lease for the defendant. True, one John Krook, on behalf of plaintiff, went to the office of defendant, where he spoke to Mallinger, whom he calls “general agent.” Krook testifies Mallinger told him he was the person that “rented” plaintiff’s place for a saloon and that he also said: “Well, we got the leases here and we rent the place but we can’t get any license.” Still the execution or delivery of a lease by defendant remained unproven; and the record does not show that Mallinger was in such position that he could make an admission, binding upon defendant, that defendant had rented the premises. Furthermore, were what Mallinger said to be considered as an admission of a rental by the company, the contract shown would be void under the statute of fraud.

The judgment of the Municipal Court must be reversed, and we see no reason for remanding the case.

Reversed.