text:
    W. A. Koneman, Defendant in Error, v. William Seymour, Plaintiff in Error.
    Gen. No. 17,698.
    1. Landlord and tenant—when evidence of conversation does not vary terms of written lease. Where a tenant kept out of possession by failure of the landlord to complete repairs sues for the failure to deliver possession, and a written lease obligates the landlord to make the repairs, but says nothing as to the time they should be completed, evidence by the tenant that before the signing ef the lease the agent promised that the repairs would be finished by the day the term was to begin is admissible, not as varying the terms of the lease, but for the purpose of aiding an inference which may be deduced from the lease.
    2. Landlord and tenant—damages recoverable for failure to deliver possession. In an action by a tenant against a landlord for damages from failure to deliver possession, a month’s rent paid in advance and the drayage on goods sent to the property may be recovered, but a month’s rent of a lesser amount paid for other quarters and the salary of employees for such month may not be recovered.
    3. Landlord and tenant—when tenant not obtaining possession may recover excess rent of other premises. Where, in an action by a tenant against a landlord for failure to deliver possession, the tenant testifies that he was compelled to pay more rent for other premises and that he endeavored to find premises as near like the leased premises as possible and took the cheapest ones he could find, he may recover the excess per month which he was obliged to pay for the other premises.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed upon remittitur; otherwise reversed and remanded.
    Opinion filed January 23, 1913.
    Rehearing denied February 6, 1913.
    William E. Mason and Lewis F. Mason, for plaintiff in error.
    Fred W. Kraft, for defendant in error; David Jetzinger, of counsel.
   Mr. Justice McSurely

delivered'the opinion of the court.

Defendant in error, W. A. Koneman, brought suit in the municipal court against plaintiff in error, William Seymour, claiming damages for failure to deliver possession of certain premises. The case was tried by a jury, which returned a verdict for plaintiff and fixed the damages at $446.50, upon which judgment was entered. We are asked to reverse this judgment.

The facts appearing are that Seymour was the owner of a building in Chicago which had been partially destroyed by fire but was in process of being reconstructed. On April 10th one Welsh, renting agent for Seymour, talked with Koneman with reference to leasing a portion of the floor space in Seymour’s building. They agreed upon terms and also upon certain repairs and alterations in the premises, to be made by Seymour, and a written lease was signed by the parties on April 18, 1910, which contained the undertaking of Seymour to make these repairs and alterations; but the written lease says nothing about the time when such repairs should be completed. Koneman testified, and it does not seem to be disputed, that before the signing of the lease Welsh repeatedly promised that these repairs and alterations would be finished by April 25th, and in no event later than May 1, 1910, the day the term of said lease was to begin. It also appears that Seymour himself on two different days during the month of May promised that the premises should be ready the next day. It is conceded to be the fact that said repairs and alterations were not finished by May 1st, nor were they finished by June 2nd.

Koneman had paid Seymour one month’s rent in advance, being for the month of May, 1910, amounting to $57.50. He also paid rent for the month of May in the Boyleston Building amounting to thirty dollars. In addition to these items he claims as damages the salary of two employees for the month of May amounting to $108; drayage on goods sent to the Seymour property $3.50; and the “difference in rental between the amount stipulated in the lease referred to and that the plaintiff was obliged to pay for other quarters for a period of eleven months at the sum of $22.50 each month—$247.50.”

It is claimed by plaintiff in error that the court should not have permitted the introduction of the conversation touching the time when the repairs and alterations should be completed. We think that the testimony was admissible, not as tending to vary or contradict the terms of the written lease, but for the purpose of aiding an inference which may be deduced from the written instrument.

However, we cannot agree that plaintiff was entitled to recover all of the items contained in his statement of claim. Taking the items in their order, he is clearly entitled to the recovery of the month’s rent paid in advance, amounting to $57.50. This is conceded in argument by plaintiff in error. We cannot approve the allowance of the rent for the month of May in the Boyleston Building, amounting to thirty dollars, nor the item of salary of two employees for this month amounting to $108. We fail to see the reason why these two items should be charged up to Seymour, for they were expenditures which inured to the benefit of Koneman. The item of $3.50 for drayage on goods is a proper item and should be allowed.

Counsel for plaintiff in error protest strongly against the allowance of the item of $247.50, being the difference for eleven months between the rent of the Seymour property and that of the other premises rented by Koneman. We agree with the statement that the measure of damages is not merely the difference in rent between the property leased and any other property that the plaintiff may desire to move to, but on examining the record we find that plaintiff testified in substance that he was compelled to rent other premises costing eighty dollars a month, instead of premises which were equally suitable for his purposes at $57.50 a month; that he made an endeavor to find premises as near like the Seymour premises as possible, and took the cheapest premises which he could find. This not being disputed, we think plaintiff was entitled to recover the excess per month which he was obliged to pay for the other premises. The proper amount allowable to plaintiff, for which judgment should have been entered, was $308.50. If, therefore, plaintiff will within ten days from the filing of this opinion remit from said judgment $138, the judgment will be affirmed; otherwise it will be reversed and the cause remanded. If the remittitur is filed and the judgment affirmed, each party will pay his own costs in this court; otherwise the entire costs to be taxed against the defendant in error.

Affirmed upon remittitur, otherwise reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Imperial Steel Cabinet Company, Plaintiff in Error, v. Edgar M. Snow and Robert C. Butzow, Trading as Edgar M. Snow & Company, Defendants in Error.
    Gen. No. 17,756.
    Action in assumpsit for goods sold, finding affirmed without de- ■ tailing evidence.
    Error to the Municipal Court of Chicago; the Hon. Isidoee H. Himes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed January 23, 1913.
    Michael Koch, for plaintiff in error.
    Kraus, Alschuler & Holden, for defendants in error.
   Mr. Justice McSurely

delivered the opinion of the court.

Defendants in error, Snow & Co., hereinafter called defendant, purchased some vault cases and paid the agreed price to one Julin; plaintiff in error, the Imperial Steel Cabinet Co., claims that the defendant should have paid it instead of Julin, and it brought suit against the defendant for the price of the case. Upon the trial the court held that plaintiff was not entitled to collect anything from the defendant, and in this court it is urged that this finding is wrong.

We shall not undertake to narrate any of the testimony presented at the trial. To do so would unduly extend this opinion and give the parties in the ease no more information as to the facts than they now have. It is sufficient to say that after careful consideration we are of the opinion that the trial court was justified in concluding that Julin was not an agent for plaintiff but was an independent contractor; that defendant’s agreement for the purchase of the cases was with Julin and not with plaintiff, and that the payment made by defendant was made to the party entitled to receive it, and therefore defendant owes plaintiff nothing on account of this transaction.

We have examined the errors alleged to have been committed by the court, and are of the opinion that nothing requiring that this ease should be reversed appeared in the record. Therefore the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Smith

text:
    T. M. Dromgold, Defendant in Error, v. Royal Neighbors of America, Plaintiff in Error.
    Gen. No. 16,380.
    1. Fraternal benefit societies—payment of assessment by suspended member in impaired health. Where the by-laws of a fraternal insurance organization provide that if a member suspended for failure to pay assessments shall pay arrearages within sixty days “and the member’s health is not impaired,” he shall be restored to membership, the health of the insured in such case is a material condition of the contract, and payment made while in impaired health does not restore membership.
    2. Fraternal benefit societies—waiver by local agent. Under the rule in this state the local camp of a fraternal beneficiary society is the agent of the central camp, but when the by-laws limit the authority of the local recorder and expressly provide that his waiver of any provision shall not bind the society, such limitation of agency is not so unreasonable as to be held unlawful, and is binding on the insured.
    3. Fraternal benefit societies—members bound by rules and by-laws. • Under the statute and decisions it is well settled that members of fraternal beneficiary societies are bound by all lawful rules and by-laws.

      Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed.
    Opinion filed January 27, 1913.
    Rehearing denied February 10, 1913.
    E. A. Enright and A. W. Fulton, for plaintiff in srror.
    Thomas G. Vent, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought suit in the Municipal Court of Chicago to recover from the defendant, here the plaintiff in error, one thousand dollars on a certificate of membership issued December 21, 1896, by the defendant, a fraternal beneficiary society organized under the laws of Illinois, to Ella Bell Dromgold as a member of Crystal Camp No. 468, Seneca, Illinois, payable on her death to the plaintiff, her husband, as beneficiary. On a trial before the Court a judgment for one thousand dollars was entered against the defendant, who comes here on writ of error.

Ella Bell Dromgold was a charter member of said camp and in her application to become a member thereof stated:

“I agree to make payment of all dues and assessments legally levied within the limit of time provided by the order’s law and to conform in all respects to the laws, rules and usages of the order now in force, or which may hereafter be enacted and adopted by the the same, and that this application and the laws of this order shall form the sole basis of my admission to and membership therein, and of the benefit certificate to be issued me by said Boyal Neighbors of America; that * *° * my being suspended or expelled from or voluntarily severing my connection with the order, or the beneficiary department thereof, shall forfeit the rights of myself and that of my beneficiaries to any and all benefits and privileges therein or arising therefrom.”
“Paragraph 7. Do you understand that the laws of this order now in force or hereafter enacted enter into and become a part of every contract of indemnity by and between the members and the order and govern all rights thereunder? Answer: Yes.”

The said certificate signed by said Ella Bell Dromgold contained the following provision:

“If payments assessed against the person named in this Certificate are not paid to the Local Recorder on or before the first day of the month following the levy of the same, then this Certificate shall be null and void, and continue so until payment is made and the requirements if the Laws and Rules of this Fraternity have been complied with, in which event it shall become restored. * * *
“I hereby accept the above Benefit Certificate, and agree to all conditions therein contained.”

The January 1909 assessment was $1.20, and the last day for its payment was January 31, 1909. It was not paid until February 4th, 1909. The insured died March 13th, 1909, and the defendant refused to pay the beneficiary on the ground that the insured failing to pay the January assessment on or before the last day of January, she was thereby suspended; and not being in good health on February 4th, when payment of the said assessment was made, she was not thereby restored to membership in the said defendant society and the said certificate was therefore null and void.

The by-laws of the defendant provided:

“If a member neglect or fail to pay to the local camp recorder any regular or special assessment within the calendar month for which it is levied, such neglect or failure shall suspend the member, and during 'such suspension the benefit certificate of the member shall be null and void.
“Members, When Liable to Suspension. If the member fail or neglect to pay an assessment to the local recorder within the limit of. time provided for in these laws, the member shall stand suspended. During such suspension the benefit certificate of such member shall be void. The Supreme Becorder shall address to all suspended members a notice of such suspension, together with a statement of the requirements for reinstatement; provided, that the giving of such notice of such suspension shall not be deemed to be a prerequisite of suspension and shall not have the effect of waiving suspension, or leaving the Society liable to such suspended member or his beneficiary or beneficiaries.
“How to Reinstate Beneficial Members. If arrearages of every kind are paid up within sixty days after suspension, together with current assessment, and one advance assessment, and the member’s health is not impaired, the member shall thereby be restored to membership and his or her benefit certificate made binding as soon as such payment is received and recorded by the local camp recorder.
“Reinstatement ip Suspended More than Sixty Days.. Should a beneficial member be suspended more than sixty days and less than six months, and desire to-reinstate, such suspended member shall make application for reinstatement in form prescribed by the Board of Supreme Managers, truthfully answering all questions therein propounded, accompanied by certificate of present good health, executed by the camp physician after a personal examination. If said statement and physicians certificate is approved by the Beneficiary Committee, and all arrearages since suspension, both to the local camp and Supreme Camp, together with current assessment and one assessment in advance, are paid, the member’s certificate shall be fully restored and made binding as soon as the local camp recorder-is notified by the Supreme Recorder. But thereafter the rate of assessment shall be for the age at reinstatement. If the suspension is for a longer period than six months, the member, if again admitted, must make application as a new member.”
“No Waiver of Any By-Laws. No officer of this Society nor any local camp officer, is authorized or permitted to waive any of the provisions of the laws of this Society which relate to the contract for the payment of benefits between the member and the Society, whether the same be now in force or hereafter enacted.”
“Recorder Declared to be Agent of Camp. The Recorder of a local camp is hereby made and declared to be the agent of such camp, and not the agent of the Supreme Camp, and no act or omission on her part shall have the effect of creating a liability on the part of the Society or of waiving any right or immunity belonging to it.”

The undisputed evidence was that the insured had been ill for some time previous to February 4th, and on that date she had diabetes and died therefrom on March 13th. Mrs. Wilcox was elected recorder of said camp in November, 1908. As such recorder it was her duty to receive all assessments. She had known of Mrs. Dromgold’s illness for about three years. In November, after her election as recorder, the plaintiff had a talk with her and told her, “My wife.is pretty sick and I probably might neglect to pay my dues,” and asked Mrs. Wilcox to look after same and see that they were paid and he would repay her, to which she agreed. After paying said January assessment on February 4th no notice of suspension or communication of any kind was received from the defendant by the plaintiff or his wife prior to her death. It was further shown that it was the custom of Mrs. Wilcox, as recorder, and also the custom of other recorders for years previous thereto, to remit to the Supreme Recorder the assessments collected for a given month between the 5th and 10th of the month following, and that if any member paid an assessment for the previous month, before the assessments paid in were remitted to the Supreme Recorder, the same were accepted and said members were not reported suspended or any action taken thereon.

The recorder, Mrs. Wilcox, remitted to the defendant the assessment paid her February 4th, at which time the insured’s health was seriously impaired, but no notice or information of same was given to the Supreme Recorder or other Supreme Officer.

The foregoing facts are not in dispute, and the question is the application of the law thereto.

Under the by-laws the assessment for January not being paid during that month, the insured stood suspended, and we think under all the facts and circumstances, that by the payment of the said assessment February 4th, the insured would have been restored to membership in good standing if her health had not been at that time impaired. That it was on the said date seriously impaired is clear, and it would seem that under the authority of Court of Honor v. Dinger, 221 Ill. 176, and Johnson v. Royal Neighbors of America, 253 Ill. 570, the insured was not, under the circumstances and the terms of her contract, restored to membership in good standing by the payment of her said assessment, unless there was a waiver of the condition that her health be not then impaired.

The plaintiff contends in an exhaustive and learned brief that under the well settled rule of this state announced in Jones v. Knights of Honor, 236 Ill. 113, with the authorities there given, that “the subordinate lodge or council of a fraternal benefit society is the agent of the supreme lodge or council, and that such subordinate lodge may waive forfeiture or suspension upon' failure to pay assessments and dues promptly,” the local camp was the agent of the supreme camp, the defendant, and the recorder of the local camp having knowledge of the impaired health of the insured and agreeing not to allow her suspension, and thereafter, with the said knowledge of the insured’s impaired health, accepting and turning over to the defendant the assessment for January, the knowledge and conduct of the said recorder was that of the defendant, and it accordingly waived the provisions of the contract as contained in the by-laws as to the impaired health of the insured. The reply of the defendant is in substance that the by-laws expressly provided that the recorder of a local camp was not authorized and had no power to waive any of the laws of the defendant society or any of the defendant’s rights, and the said by-laws being a part of the contract understood and entered into by the insured, there could be no waiver through and by the said recorder of the said provision of the by-laws pertaining to the insured’s good health, and the defendant having no knowledge of the insured’s impaired health, the insured at the time of her death, because of her impaired health, stood suspended and the said certificate was void, and no ■ right of recovery could be predicated thereon.

We are of the opinion that if the defendant, with knowledge of the impaired health of the insured, on February 4th accepted and retained the said assessment, it thereby waived the said condition requiring the insured’s health be not impaired in order to be restored to membership. Under the rule of this state the local camp was the agent of the Supreme Camp, and we think that the defendant is liable herein, unless the limitation of the agency of the recorder of the local camp expressly made in the by-laws hereinbefore quoted was binding on the insured. The said by-laws were expressly made a part of the contract of insurance, and was so understood by the insured. The contract provided that upon a failure of the insured to pay her assessments during the month same were due and payable, she would stand suspended. This by-law was self-executing, so that without action by the defendant the insured was suspended February 1st for failure to pay the January assessment. Under the contract and the usual custom, if the insured was not in impaired health she would have been restored to membership in the defendant society upon the payment of the said assessment on February 4th. That the insured’s health be not at that time impaired was a material condition of the contract. We think that the recorder of the local camp waived this condition, but that under the terms of the said contract of insurance by the express agreement of the parties the recorder had no authority or power to bind the defendant by the said waiver. To hold that the insured is not bound by the express terms of her contract, we must hold the by-laws limiting the authority of said recorder invalid. We are advised of no decision so holding.

The statute of this state on Fraternal Beneficiary Societies (Chap. 73, Hurd’s Stat. 1911), under which the defendant was organized and doing business, contains in section 258, inter alia the following: “The payments of such benefits in all cases being subject to compliance by the member with the contract, rules and laws of (the) Society.” That members of the defendant society are bound by all lawful rules and by-laws is well settled. Scow v. Royal League, 223 Ill. 32, and authorities there cited. As a general proposition there is nothing unlawful in a principal limiting the authority of an agent, and a person dealing with the agent under an express agreement between the parties that the agent’s authority is limited, will be bound thereby. So in the case at bar, if the limitation of the recorder’s authority contained in the by-laws be not so unreasonable as to be held unlawful, it is binding on the insured. In Schmidt v. Supreme Tent Knights of Maccabees, 97 Wis. 528, the court held a similar by-law binding on the insured. To the same effect is Coughlin v. Knights of Columbus, 79 Conn. 218.

Much may be said for and against the reasonableness of the by-law in question. In theory the by-laws of a fraternal beneficiary society are for the common good and best interests of all its members. From a practical and business point of view, the interests of the officers of a subordinate lodge in the members of that particular lodge may be considered in the nature of things, generally speaking, of greater importance than and paramount to the interests of the society as a whole, and to hold that the officers of the subordinate lodge, as agents of the supreme lodge, could not be limited in authority, might work great injustice to other subordinate lodges, whose officers faithfully and conscientiously adhered to and enforced the rules and laws of the society, and might ultimately lead to the destruction of the organization. From a legal aspect of the reasonableness of such a by-law we can see no good reason to hold that such a limitation of authority of the agency, when known and understood by the insured, is not subject to the operation of the ordinary rules applicable to agencies of the same general character.

We have not discussed the question of whether the recorder was the agent of the insured or the defendant, but consider the question on the assumption that she was the agent of the defendant society. Being of the opinion that the by-law in question limiting the authority of the recorder is a reasonable one and was binding on the insured, it follows that under the circumstances of the case at bar, the condition that the insured’s health be not impaired was not waived by the defendant society, and therefore the insured was not a member of said defendant society at her death, and there can be no recovery on said certificate of membership.

Reversed.


text:
    Joseph W. O’Brien, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 16,488.
    1. Master and servant—condition of railroad yards. Where plaintiff, a rear switchman, had been told by the conductor that a string of freight cars would be set on a switch track number 9, and while plaintiff, in crossing over to said track, was opening a closed coupler on a track number 13, the conductor had the cars switched on track 13, and plaintiff, in jumping to escape being struck, had his foot caught by a large clinker and in consequence lost his right leg, the yard having been ballasted by rough slag ahd similar large lumps being scattered on the tracks, the questions of contributory negligence and assumed risk were for the jury, and verdict for $10,000 affirmed.
    2. Master and servant—negligence in hallast of railroad yards. Where a switching yard is ballasted with rough lumps of slag, some a foot or more across and projecting above the ties, negligence is manifest.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Rehearing denied February 10, 1913.
    Winston, Payne, Strawn & Shaw, for appellant; John D. Black and John C. Slade, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the appellee, was employed by the defendant, here the appellant, at the time of his injury, as a switchman in the switch yards at Stickney, Illinois. In the northwest part of the said yards a lead track extended northwesterly and southeasterly. From this lead extending east was a series of twenty-five switch tracks parallel to each other and numbered 1 to 25 from north to south. Tracks numbered 1 to 8 inclusive were receiving tracks and 9 to 25 inclusive delivery tracks, each of said tracks holding from 60 to 100 cars. The cars were taken from the receiving tracks out onto the lead, in what were called “cuts” of about fifteen cars each, and then placed from the lead onto the proper delivery tracks. The switching crew consisted of the enginéer, fireman, conductor (or foreman), head and rear switchman. The plaintiff was the rear switchman, with many years’ experience, but the night in question, January 2nd, was the third time he had worked at the said yards. The other two occasions being during the days just before the accident. The crew left 47th street, Chicago, about ten o’clock in the evening and went to the said yards, about ten miles, reaching there between 10:30 and 11:00 o’clock. It was a rainy night, and in switching the last cut, about six o’clock in the morning, the accident occurred. A car had been set on track 17, leaving only three cars attached to the engine, which were Wabash cars, to go on track 9, the receiving track for Wabash cars. The conductor had told plaintiff that these three cars would be set on track 9 and then they would be through. After setting the car on track 17 the engine pulled out on the lead track with the three Wabash cars, and O’Brien, being the rear or field man, started to cross the yard from track 17 to track 9, where the three Wabash cars were to be set. On crossing track 13 he found an opening between the cars standing on said track 13, and observing the coupler was closed attempted to open same, and while so engaged, supposing that the switching crew was about to put the Wabash cars on track 9, the Wabash track, the conductor changed his mind and set the Wabash cars in on track 13, the C. & E. I. receiving track, without notice or warning to the plaintiff. In a statement made by the conductor and introduced in evidence, he says: “I did not tell Switchman O’Brien that I was going to set these three Wabash cars in on No. 13 track, but decided to do this after I had got through with the switch of one car in on No. 17 track, and then decided, instead of holding on to these three Wabash cars, that I would set them away on No. 13 and go in and finish switching out the remainder of string on No. 9, after which it was my intention to get these three Wabash cars off of No. 13 and put them back on No. 9 track, for which track I had chalked them for. After the movement in on No. 17 track of the one car, the fourth car, I saw Switchman O’Brien going down across yard. I saw him by the lantern he was carrying. I did not at this time personally know where he was going, but took it for granted that he was headed for the other end of No. 9. At the time of this accident it was just breaking day, it was misty. We were all carrying lanterns and all signals were given by lantern.” It was the duty of switchmen when they found cars were uncoupled and both knuckles closed to open at least one of them so that upon the impact they could couple together. It was in the performance of this duty that plaintiff was injured as described by him as follows: “I went over to the coupler and got hold of the chain, and took my lead pencil to see if it was caught, to try to work the chain loose so that the knuckle would open. I heard a crash of some cars striking together, and I naturally jumped. I jumped toward the north and east. A great big cinder caught my foot, and I was thrown between the rails. I seen the cars coming and I rolled as fast as I could to try to get out from between them. My whole body was inside the rails when I was thrown. I rolled over the rail to the north. All except my right leg. The cars I was standing at did not move at the first crash. When I fell down I seen the cars making a jump for me, just as I fell. I should judge the car went pretty near a car-length; a half a car-length or a little over, towards the east. It ran over me right above the knee of my right leg.” The plaintiff suffered two amputations of his leg, leaving about five or six inches of the bone below the hip. The description of the yard in the language of counsel for defendant is as follows: “The yard was ballasted with rolling mill cinders. Several witnesses called it slag ballast. This ballast covered the entire yard, except that along the lead and for a distance of three or four car lengths away from it, ordinary cinder ballast had been used. The slag ballast was much rougher, and, according to all of plaintiff’s witnesses, there were lumps of slag scattered throughout the yard, many several inches square and some even a foot or more across. There was no particular place where these lumps were found. Besides this, it was not surfaced up between the ties. In some places the ballast projected above the tops of the ties, and in others it did not come up to within several inches of the tops. This was the way the yard was made. There were no foreign substances on or near the tracks.”

The case went to the jury on two counts. The first of said counts alleging negligence of the defendant in that it set the said Wabash cars in on track. 13 under the circumstances, detailing them, without warning or notice to the plaintiff thereof; and the second of said counts averring the negligence of the defendant in permitting track 13 to be and remain in an unsafe and improper condition, in that the spaces between the ties of said track were unfilled and there were large clinkers and other obstructions upon and near the said track. The jury found defendant guilty and assessed the plaintiff’s damages at the sum of ten thousand dollars, and the court entered judgment therefor.

' The defendant insists that it was guilty of no negligence; that the plaintiff was guilty of contributory negligence; that the plaintiff assumed the risk of the conditions existing in the yard and the method of doing the work; that the court erred in denying the defendant’s motion to exclude the evidence on the ground of variance; that the court erred in ruling on certain instructions and plaintiff’s counsel made improper remarks in his argument to the jury.

After a careful study of the evidence and the photographs of the yards in evidence, we are of the opinion that the only question under the first count open to discussion is the negligence of the defendant; and as to the second count, the assumption of the risk by the plaintiff. The negligence averred and proven under the second count is so manifest that it might be considered under all the circumstances almost wilful. The case was bitterly contested and the learned counsel for both parties have here filed interesting and exhaustive arguments in support of their respective contentions.

Upon the two controverted questions that we have indicated, we think there is evidence tending to support the plaintiff’s averments; and an analysis of the evidence and the arguments in support of and also in opposition thereto would subserve no good purpose. Suffice it to say that both were questions of fact for the jury, and under all the evidence we are not disposed to disturb the verdict of the jury thereon.

It seems to us that the other objections urged as reversible error, the variance, the instructions and re- - marks of counsel in argument, are all untenable and require no discussion.

The judgment is affirmed.

Affirmed.


text:
    August Budnik, Defendant in Error, v. Metropolitan Life Insurance Company, Plaintiff in Error.
    Gen. No. 16,681.

      Insurance—reinstatement of policy. Where a life insurance policy has lapsed for nonpayment of premium and an application for revival is made to an agent, subject to acceptance by the company, the requisite premium being paid, and the company’s examining physician delays the examination several days, the right of the company to insist on the forfeiture is not thereby 'waived, and there exists no contract of insurance until the new proposal is accepted by the company and the minds of the parties meet.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed January 27, 1913.
    Hoyne, O’Connor, Hoyne & Irwin, for plaintiff in error; Carl J. Appell, of counsel.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error; Ernest A. Linderholm, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought suit against the defendant, here- the plaintiff in error, on a life insurance policy, No. 1077933C., issued by the defendant to Frances Budnik payable to the plaintiff, her father, as beneficiary, and recovered judgment thereon for the sum of five hundred dollars.

The policy was dated October 2nd, 1907, and thereunder the insured agreed to pay therefor a quarterly premium of $5.69. The premium due and payable April 2nd, 1909, was not paid, and after a grace of 31 days to pay same the policy lapsed. On J une 25th, 1909, the insured made a written application to the defendant in part as follows: “Application to the Metropolitan Life Insurance Company is hereby made for the restoration of Policy No. 1077933C., which policy lapsed for the non-payment of Premium due April 2, ’09, and to induce said Company to restore the same, it is hereby declared that;” then follows statements of the insured as to her residence, good health, sober and temperate habits, etc. The application was signed by the insured and witnessed by the defendant’s agent, to whom the insured’s mother paid the quarterly dues of $5.69 payable April 2, 1909, who gave her the following receipt, No. 130:

“No. 130 E. Hermann,
Chicago, North, Ill.
Form C169
PROVISIONAL RECEIPT. Nov.1907

I acknowledge to have received as the agent of Francis Budnick the former insured under Policy No. 1077933C in the Metropolitan Life Insurance Co., ($5.69) Five 69/100 Dollars, as a deposit, said deposit to be applied to the payment of premium due on said Policy Apr. 2, 1909, for the' non-payment of which at due date this Policy was lapsed, provided that the Metropolitan. Life Insurance Company at its Home Office approves the application for the restoration of said Policy submitted this day. If so approved I agree to pay to the Company the said money and to deliver to the said former insured the regular Home Office receipt in exchange for this receipt; if not so approved I agree to return said deposit to the person making it. It is understood that no obligation under said Policy is assumed until the application for restoration has been approved.

Ed. Hermann.

Date June 25, 1909.

If within 30 days you do not receive the official Home Office receipt or your money back, notify nearest Branch Office.”

On July 7th the insured’s mother paid to the defendant’s agent $5.69, the premium due July 2nd, and received therefor the following receipt:

“Received from Miss F. Bndnick $5.69 Dollars on account of Application about to be made for insurance in the Metropolitan Life Insurance Company. Said amount is to be applied- on account of the Policy, if one be issued by said Company, or to be returned to applicant if the Company shall decline the Application. No insurance is in force upon the application unless and until a Receipt be issued thereon and delivered in accordance with its terms.
Revival Receipt. V. Waclewski.
July 7, 1909.
District Chicago N.”

She also paid at this time the sum of one dollar for physician’s examination fee. The physician called to examine the insured on July 16th, but she was not at home. He again called July 20th, but she had died that day, after an illness of three days. The said payments to the defendant’s agents were turned in to the defendant company’s office and by the defendant returned to Mrs. Budnik Jnly 31st. It was the rule of the defendant that all premiums in arrears must be paid before passing upon an application for revival of a lapsed policy.

The defendant insists that the policy had lapsed and there was no liability thereunder. We think that this record clearly shows that the said policy had lapsed, and further that the parties thereto so treated and so considered the same. The plaintiff, however, says that the only question here presented in the case is: “Did the company by its conduct waive its right to insist on a forfeiture?” It is argued that the insured was in good health and had the physician called as he should, without so long a delay, the company would have approved the application and the insurance would have been in force; but the unreasonable delay in making a medical examination and passing’ upon the application. after the collection of the premiums and turning them over to the company was a waiver of its right to insist upon a forfeiture, and therefore the policy was in force on the death of the insured. The answer to this argument is the fact that the policy had been forfeited and it was so accepted and understood by the parties thereto. The application and payments were made for the purpose of securing a restoration of the policy. In other words, it was sought by the ■ insured in making the application and payments, that an agreement be made whereby the said forfeiture would be considered void and the policy restored and again in force. Until that proposal was in some manner accepted, we cannot see how there existed under the circumstances a contract of insurance. Even if it be assumed that the defendant waited an unreasonable time in acting on the said application, that can not here be held to have established a contract of insurance. In Herman v. Phoenix Mut. Life Ins. Co., 17 Minn. 127, the court say: “The application for insurance is a mere proposal on the part of the applicant when the insurer signifies his acceptance of it to the proposer, and not before, the minds of the parties meet and the contract is made. Taylor v. Merch. F. Ins. Co., 9 Haw. 390; Flanders, Ins. 109.” To the same effect are Insurance Co. v. Johnson, 23 Pa. St. 72; Brink v. Merchants’ & F. U. Mut. Ins. Ass’n, 17 S. D. 235; and Fidelity Mut. Life Ins. Co. v. Price, 117 Ky. 25.

The said policy on which the suit was brought and a recovery had not being in force at the time of the insured’s death, there was no liability thereon and the judgment is therefore reversed.

'Reversed.


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    Myron D. Smith for use of T. F. Laramie, Plaintiff in Error, v. Nyberg Automobile Works, Defendant in Error.
    Gen. No. 16,722.
    1. Replevin—essentials to judgment in the alternative. To sustain an alternative judgment under the Replevin Act, § 22, which provides that if the property was held for payment of money the judgment may require the plaintiff to pay the amount for which it was rightfully held or return the property, it must appear that the property was being rightfully held for the payment of money.
    2. Replevin—when judgment in the alternative is improper. Where a person acquires an automobile from a purchaser at an execution sale, takes it apart, claims it as an owner, refuses to return it to the chattel mortgagee and on selling it to the mortgagee’s assignee makes repairs and does work to again assemble the car to make the sale, on the machine being replevied by the assignee, it was not rightfully held for the payment of the repairs and work, and it is error to enter an alternative judgment as provided by the Replevin Act, § 22, that the plaintiff pay a sum of money for the repairs and work done or return the machine.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed January 27, 1913.
    D. A. Levy, for plaintiff in error.
    William A. Jennings, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

A. E. Smith of Chicago gave a mortgage, duly acknowledged and recorded, to his brother, Myron D. Smith, on a “Pope Toledo Automobile, Factory No. 1642 and State No. 18730.” Subsequently a judgment was rendered in the Municipal Court of Chicago against the said A. E. Smith and under an execution thereon the said automobile was sold and purchased from one Tagney by the defendant in error, hereinafter called defendant, subject of course to the said chattel mortgage of record in the recorder’s office of Cook County. Subsequently Myron D. Smith assigned said chattel mortgagee to T. F. Laramie, who thereupon made a demand upon the defendant under the said chattel mortgage for the said automobile. The defendant claiming that he did not know whether or not he had in his possession the said automobile, did not deliver same upon the said demand, although he in fact had said machine in his possession at the time. An action of replevin was then begun by the said Myron D. Smith for the use of the said Laramie, and the said automobile was taken from the defendant under the-writ issued therein. On a hearing before the court without a jury the court entered a judgment as follows:

“This day come the parties, by their attorneys respectively, and the trial of this cause is now here resumed, and the court after hearing the evidence and argument of counsel, and being fully advised in the premises, finds the defendant guilty, and that the right of property herein is in the plaintiff, conditioned upon the payment to the defendant, by the plaintiff, the sum of three hundred and eighty-seven ($387) dollars, within twenty-five days from this date. Thereupon it is-ordered by the court that the amount of the bond herein be fixed at the sum of five hundred dollars.”

The said $387 not being paid on June 6th, 1910, the court entered another judgment as follows:

“This day again come the parties, and it appearing to the court that the plaintiff herein has failed to make payment of the sum of three hundred and eighty-seven dollars ($387) in accordance with the finding of court of May 11,1910.
“It is therefore considered by the court that the defendant have and recover of and from the plaintiff the possession of said property mentioned in the writ of replevin in this cause, and that a writ of retorno habendo issue herein for the return thereof.
“It is further considered by the court that the defendant have and recover of and from the plaintiff costs by the defendant herein expended, and that execution issue therefor.”

To reverse this judgment said Myron D. Smith, for the use of said T. F. Laramie, hereinafter called plaintiff, sued out this writ of error.

That the plaintiff was entitled to the possession of the said automobile, the court found in its judgment entered May 11. The correctness of the judgment of June 6th that the defendant recover the possession of said automobile, depends of course upon the correctness of the judgment in the alternative entered May 11th.

Section 22 of the Replevin Act provides: “If the property was held for the payment of any money, the judgment may be in the alternative that the plaintiff pay the amount for which.the same was rightfully held, with proper damages, within a given time, or make return of the property.” Lamping Bros. v. Payne, 83 Ill. 463, and Janes v. Gilbert, 168 Ill. 627, discuss this provision, and we are of the opinion that to sustain an alternative judgment thereunder it must appear that the property was being rightfully held for the payment of money. In the case at bar there was no evidence that the defendant was holding the said automobile for the payment of money. On the contrary he was holding the machine claiming the same as owner and attempting to sell the same. Mr. Levy, the law partner of Mr. Laramie, finding the said automobile, more or less taken apart, at the defendant’s place of business, had some talk about purchasing the same, and, it is claimed by the defendant, did purchase it and gave T. F. Laramie’s check for $100 (upon which payment was stopped) as part of the purchase price thereof; and it was for the repairs, etc., with the work done thereon to again assemble the car and put it in shape to make the sale to Levy that the trial court entered the alternative judgment for the sum of $387. On the merits of the controversy on this phase of the case as to the liability of Levy and Laramie, or either of them, for said work and repairs, we express no opinion. The action was replevin and we hold that there is no evidence on which an alternative judgment against Laramie could be based as provided by the statute. The alternative judgment being erroneous, the judgment of the trial court is reversed; and it clearly appearing that the plaintiff had the right of possession of the said automobile and the defendant wrongly detained same, judgment is here entered that the plaintiff have the possession of the said automobile above described.

Reversed.


text:
    C. L. Hy. Meissner, Defendant in Error, v. George Reichhold, Plaintiff in Error.
    Gen. No. 16,815.
    1. Architects and engineers—when defense that plans were incomplete is irrelevant. Where an architect sues to recover for services in drawing plans and specifications and preparing estimates of the cost of a building, and it is established that the plans were only preliminary and for the purpose of obtaining an estimate of cost, testimony tending to establish a defense that the plans were incomplete and defective is irrelevant.
    2. Architects and engineers—amount of compensation. Where in an action by an architect to recover for drawing plans and specifications and preparing estimates of the cost of a building, it appears that the plans were only preliminary and for the purpose of obtaining an estimate of cost, and witnesses on both sides testify that one per cent, of the estimated cost is the proper price for such services, only such amount can be recovered.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and judgment here.
    Opinion filed January 27, 1913.

      Roman Gr. Lewis and McInerney, Power & Byrnes, for plaintiff in error.
    John H. Sturgeon and S. Dabelstein, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought suit against the defendant, here the plaintiff in error, in the Municipal Court of Chicago to recover for services rendered to the defendant by the plaintiff. The case was submitted to the court without a jury. The court found the issues for the plaintiff and assessed his damages at $339.29', and entering judgment on the finding, the defendant sued out this writ of error.

The plaintiff was an architect and testified that the defendant employed him to draw plans and specifications and prepare estimates for the building of a theatre the defendant considered constructing on a certain lot owned by the defendant, and shown plaintiff; and the defendant told him “that he did not want to go ahead with the building before he knew what it would cost him;” that he accordingly prepared certain plans and specifications and the estimated cost of such building was $14,643.00. For this service he claimed compensation on the basis of 3 per cent, of the said estimated cost.

The defendant admitted an employment of the plaintiff to make preliminary drawings and furnish an estimate of the cost of a building constructed accordingly. The estimate being too high, he declined to proceed with the building. The parties had been friends for many years, but not being able to-agree upon,the amount to be paid for said services, the plaintiff brought suit to recover therefor.

On the trial the defendant contended that the plans were incomplete and defective. On the defendant’s testimony that the plans were only preliminary and for the purpose of obtaining an estimate of the cost of building a theatre on said lot, and all of the evidence on both sides clearly establishing that such was the contract, the testimony tending to establish said defense must be here held irrelevant. The further contention that the defendant was not liable under the evidence for the amount fixed by the court, we think is correct. An expert witness called by the plaintiff to prove the value of his said services, testified on cross-examination in substance that for furnishing preliminary plans and information on the cost of the building, the “generally accepted price” was one per cent, of the estimated cost. The testimony for the defendant was that the reasonable and customary price for such services was one per cent, of the estimated cost. The case was tried by the court without a jury; the contract being established, the work required thereunder having been performed, and the reasonable and customary charges therefor appearing fixed, we think the court should have entered judgment therefor. Accordingly the judgment is reversed and a judgment here entered for the plaintiff against the defendant for $146.43, being one per cent, of the estimated cost.

Reversed and judgment here.


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    Harry S. Mecartney, Appellant, v. City of Chicago, Appellee.
    Gen. No. 16,876.
    Appeals and errors—second appeal. Questions passed upon in a former appeal will not he discussed, since the former decision is binding on the trial court and court of review.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.

      Oliver & Mecartney and Enoch J. Price, for appellant.
    George A. Mason and Edgar R. Hart, for appellee; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

In this case the plaintiff, here the appellant, obtained a judgment in the Circuit Court of Cook county against the defendant, here the appellee, for $5,650.29. On an appeal therefrom by the City of Chicago this court reversed the said judgment' on the ground that the amended declaration stated no cause of action, and remanded the cause to the Circuit Court with directions to that court to sustain the demurrer to the said amended declaration; Mecartney v. City of Chicago, 150 Ill. App. 275, to which we refer for a full and complete statement of the case. The Circuit Court in compliance with said directions sustained said demurrer and, the plaintiff electing to stand by his said amended declaration, entered judgment against the plaintiff, from which said judgment the plaintiff prosecutes this appeal.

The questions presented on this appeal need not be discussed, for they are the same questions passed’ upon by the court on the former appeal. The decision of this court thereon is the law of the case, not only binding on the trial court, but also on this court. Delta Bag Co. v. Kearns, 160 Ill. App. 93, and cases there cited.

The judgment is accordingly affirmed.

Affirmed.


text:
    George D. Phelps for use of Harry S. Mecartney, Appellant, v. City of Chicago, Appellee.
    Gen. No. 16,877.
    Appeals and errors—former appeal. Where a case comes before court of review the second time and the questions involved are the same, the former decision is binding and the judgment is affirmed.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    George A. Mason and Edgar R. Hart, for appellee; Edward J. Brundage, of counsel.
    Oliver & Mecartney and Enoch J. Price, for appellant.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This case was before this court on a former appeal and the opinion therein is reported in 150 Ill. App. 281. The situation is the same as that in Mecartney v. City of Chicago, ante, 23, in which an opinion is this day filed. The questions involved were decided on said former appeal against the appellant, and the law there announced is the law of the case on this appeal, and the judgment is therefore affirmed.

Affirmed.


text:
    Nina Thomasson and Gwynn Garnett for use of Harry S. Mecartney, Appellants, v. City of Chicago, Appellee.
    Gen. No. 16,878.
    Appeals and errors—former appeal. Where a case comes before court of review the second timé and questions involved are the same, the former decision is binding and the judgment is affirmed.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Oliver & Mecartney and Enoch J. Price, for appellants.
    George A. Mason and Edgar E. Hart, for appellee; Edward J. Brundage, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This case was before this court on a former appeal and the opinion therein is reported in 150 Ill. App. 281. The situation is. the same as that in Mecartney v. City of Chicago, ante, 23, in which an opinion is this day filed. The questions involved were decided on said former appeal against the appellant, and the law there announced is the law of the case on this appeal, and the judgment is therefore affirmed.

Affirmed.


text:
    Felix Hon, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 16,896.
    Street railroads—when proper to direct a verdict. In a personal injury action, where plaintiff was struck by defendant’s street car while crossing eighty or ninety feet from the cross walk, there being no evidence that defendant’s servants saw or in the exercise of reasonable care should have seen plaintiff in time to stop, and no evidence as to the speed of the car or what was being done except that the gong was not ringing, it is not error to direct a verdict of not guilty.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Marcus Kavahagh, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Pease, Smietanka & Polkey, for plaintiff in error.
    Franklin B. Hussey and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the plaintiff in error, was on a car of the Chicago Railways Company that had come east on Lake street, Chicago, to State street, where it turned south to go one block to Randolph street, where it would again turn and go west. Another car ahead of it stopping before turning west on Randolph street, caused the car in question to stop so that the rear end thereof was about one hundred feet north of Randolph street. On State street, between Lake and Randolph streets, were two other street car tracks. One track, next east of the said track, was a Chicago Railways Company track for north-bound cars making the turn from Randolph street. East of the said north-bound track was a third track on which the Chicago City Railway Company, the defendant, here the defendant in error, ran sonth-bonnd cars. These tracks were about four and a half feet apart.

The plaintiff wished to go to the Illinois Central station at the east ■ end of Randolph street, and not knowing the way there, the street car conductor indicated to him the direction to go, and the plaintiff got off the rear end of the car when it stopped as above described. The counsel for .the plaintiff states in his brief what then took place, as follows:

“When plaintiff stepped off the rear platform of the car he started around the end of the car. Plaintiff had never been down town but three times before, although he had lived in South Chicago ten years. On these occasions he was always accompanied by his wife. He could not read or write and was wholly unfamiliar with the situation and the movements of the cars. The conductor, when he observed plaintiff going around the rear of the car, spoke to him, telling him to go the other way, but plaintiff evidently did not understand him. As plaintiff stepped around the end of the car from which he had gotten off, a car of the Chicago Railways Company was coming north on the middle track and was almost upon him. The conductor saw it about the same time that plaintiff did and yelled to him to look out. Plaintiff made a jump in the direction in which he was going, in order to get out of the way of that car and jumped into the space between the middle track and the east track. A car of the Chicago City Railway Company was coming south on the east track and was not far away and plaintiff was thereupon confronted with the danger of being caught between these cars and crushed. He could not then go back, for the car on the middle track had blocked his retreat. He therefore jumped straight ahead, striving to escape, but the Chicago City Railway Company’s car caught him just as he was on the east rail and almost in a place of safety. He was caught by the east side of the fender of the car, was thrown down and his left ankle was broken. Defendant’s motorman had rung no gong prior to that time and plaintiff had not seen the car, for when he went around the rear end of the car which he left, he looked towards the southeast and as soon as he observed the Chicago ¡Railways car, which was close upon him, his attention, of course, was attracted to that car and to getting out of the way of it.”

The court instructed the jury at the close of the plaintiff’s case to find the defendant not guilty, and the jury so finding, judgment was entered on the verdict.

It is here urged that the questions of the parties’ negligence were questions of fact that should have been submitted to the jury. Whether the plaintiff was guilty of contributory negligence is unnecessary to consider, for we think that there is no evidence in this record tending to prove negligence on the part of the defendant. The plaintiff suddenly came upon the track in front of the defendant’s car, some eighty or ninety feet north of the cross-walk over State street. There is no evidence that the defendant’s servants saw, or in the exercise of reasonable care should have seen, the plaintiff in time to have thereafter, in the exercise of reasonable care, stopped said car before striking plaintiff. There is no evidence of the speed of the car, or what the defendant’s servants operating the said car were doing or not doing, except that the gong was not ringing. We are of the opinion that all the evidence, with all the inferences fairly deducible therefrom, do not prove any negligence on the part of the defendant, and the trial court properly instructed the jury to find for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

The judgment is affirmed.

Affirmed.


author: Mr. Justice Brown

text:
    Day-Luellwitz Lumber Company, Defendant in Error, v. Wallace L. Serrell, Plaintiff in Error.
    Gen. No. 16,620.
    1. Accord and satisfaction—where remittance “to close” disputed account is retained an unreasonable time. Where a draft of a third person is sent, by a debtor to a creditor, together with a statement of an account which is in dispute, and the statement and an accompanying letter show that the remittance is to be in full settlement, and the draft is retained by the creditor over three months without notifying the debtor of his refusal so to accept it, it is retained an unreasonable time as matter of law, and the creditor must be held to have accepted the remittance in full accord and satisfaction.
    2. Accord and satisfaction—where check to “be in full" is cashed. Where a debtor sends a check or draft, whether his own or that of a third party or a bank, for a less amount than claimed,, with a statement that it is in full of the account, and the creditor reduces it to money, he will be held to have acceded to “the accord and satisfaction.” If he is not willing to take the lesser amount in full, he must return the remittance without using it, and although it is not his intention to receive a bankers’ or other third person’s draft in full payment, if he retains it an unreasonable time 'without repudiation, the law infers such intention.
    3. Accord and satisfaction—where bona fide dispute. The law of Illinois recognizes an accord and satisfaction by the payment and acceptance of a sum less than that due if there be a bona fide dispute as to the sum which should be paid by the debtor to the creditor.
    4. Questions of law and fact—reasonable time. While the term “reasonable” is a relative term and the facts of the particular controversy must be considered before the question of what constitutes a reasonable time can be determined, yet, when the facts of the case are clearly established or undisputed, the question of what is a reasonable time within which an act should have been done becomes a question of law.
    5. Evidence—effect of conversations after commencement of suit. A conversation during the pendency of a suit does not alter the rights of the parties at the commencement of the cause.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed January 27, 1913.
    Rehearing denied February 10, 1913.

      Statement by the Court. April 2, 1910, a judgment was rendered by the Municipal Court of Chicago on the verdict of a jury for $805.50 in favor of the Day-Luellwitz Lumber Company, a corporation having its headquarters in the State of Washington, defendant in error here, plaintiff below, against Wallace L. Serrell, plaintiff in error here, defendant below. To reverse this judgment a writ of error has been sued out from this court.
    The suit was brought by the Lumber Company against Serrell, who is a wholesale lumber dealer in Chicago, for the contract price of certain lumber sold by it to him, amounting to $1,066.50, from which was to be deducted freight paid by the defendant Serrell in the sum of $261.00. The balance was $805.50, for which this judgment was rendered. There was no dispute as to the amounts above indicated, but the defendant claimed that he had settled this balance of $805.00 by the credit of various claims held by him for damages against the plaintiff arising out of former relations and transactions, and contemporaneously therewith the payment of the equivalent in cash of $428.50 by a draft of that amount of the First National Bank of Chicago on Dexter, Horton & Co. of Seattle. This draft the defendant sent by registered mail to the plaintiff, together with the following statement of account:
    “Chicago, Ill., Oct. 22,1907.
    “W. L. Serrell,
    1112-1113 Monadnock Block,
    '' Chicago, Ill.
    To Day-Luellwitz Lumber Co. Dr.
    Voucher No! 1288 Spokane, Wash.
    Invoice May 18, 1907, N. P. 41216 $1,066.50
    Freight, 261.00
    $ 805.50
    Charged back on non-shipment our orders,
    . (See our letter to-day) 377.00
    $428.50

      “Memorandum, of Charge Back.
    Order # 1044
    One car estimated 20,000 est. profit $3.50 70.00
    Order # 1064
    3 cars due estimated 23,000 each 69,000 $2.00 138.00
    Order # 1071 Penalty charge back 100.00
    2 cars due estimated 23,000 each 46,000 $1.50 69.00
    $ 377.00
    “Received of W. L. Serrell
    Four Hundred Twenty Eight and 50/100 Dollars in full of above account.
    $428.50.
    (Sign here)-
    “Sign and Return Voucher promptly. Papers must not be detached.”
    At the same time and in the same enclosure was a letter from the defendant to the plaintiff, in which he states that he is attaching the statement before given, “showing losses to our account” and Seattle exchange for balance due on the account, “as we deem this is the only right and proper way to close the matter up.” The letter explained further the claims defendant was making against the plaintiff, and said: “In making this statement and remittance we are acting upon the advice of counsel.” It concluded: “We certainly think that we are treating you very just in the matter. ’ ’
    It was formally admitted on the trial by the counsel for the plaintiff, that at the time this check was sent there was a dispute between the plaintiff Company and the defendant as to the amount which the defendant should pay the plaintiff.
    The registered envelope containing the drafts, statement of account and letter was received by the DayLuellwitz Lumber Company at Spokane, Washington, October 26, 1907, as appears by the Post Office Registry receipt of that date, which was returned to the defendant and was received by him on October 30, 1907. Nothing further seems to have been said or done in the matter either in the way of correspondence or otherwise, by either of the parties, until February 10. 1908.
    Assuming the evidence offered for the plaintiff to be correct as well in the rather immaterial particulars in which it differs from the defendant’s as in those in which it agrees with it, the first mention of this draft after its reception was about February 8, 1908, in a conversation between Mr. Wilcox, a collecting agent for the plaintiff, and the defendant. Wilcox, who was collection manager for a Lumbermen’s Association, called on the defendant for payment of the account in full, ignoring the check. “I knew about the check,” Wilcox says, “but it wasn’t attached to the papers then sent to me by the Company.” Mr. Serrell’s version of the conversation about the draft is that he (Serrell) referred to having sent it and Wilcox told him he didn’t know of it.
    The next conversation about the draft, according to Wilcox’s testimony (offered for the plaintiff) was in the latter part of April, 1908, in Serrell’s office. Wilcox called there, apparently with the papers pertaining to the desired collection, this time including the draft. He says: “I told Mr. Serrell that the DayLuellwitz Lumber Company informed me that they could not accept this $428.50 draft, and that under the circumstances we would return it. He said, ‘I have no use for the money and you can keep it,’ so I left the draft in the files.”
    Mr. Serrell’s testimony concerning this conversation is: “Wilcox wanted to know if I wouldn’t take the check and deposit it in my bank account and have the benefit of the use of the money until the case was settled. I told him my books showed the account entirely closed and I wasn’t interested in it.”
    June 8, 1908, the present suit was brought by the Lumber Company against Serrell. Mr. Wilcox testified that in August, 1909, which was more than a year after the suit was brought in the Municipal Court, but more than six months before it was tried, Mr. Serrell in his (Wilcox’s) office said that if “we” (apparently meaning the collection agency of which Wilcox was manager) “still had that check, he could use it.” Wilcox says, “I told him that we did not have it—he would have to see you; it was in your possession,” that is, in the hands of the lawyers who had brought and were conducting the suit.
    Serrell made what we think was probably intended as a denial of having used this language at any time, but which counsel for plaintiff construe as referring only to a conversation prior to August, 1909. But this is immaterial. The alleged conversation, if it took place, could not alter the rights of the parties at the beginning of this suit.
    Counsel for the defendant gave to counsel for plaintiff the statutory notice to produce the draft and accompanying papers necessary to justify secondary evidence. This notice the counsel for plaintiff offered in evidence and the court allowed it to be read to the jury, but afterwards struck it out and on the request of counsel for defendant instructed the jury that it was not in evidence and must be disregarded.
    The papers themselves—draft, statement of account and letter—were produced by the plaintiff in obedience to the notice and offered in evidence by the defendant. They were marked as exhibits and copies of them appear in the transcript of the evidence. There is no showing as to the present custody of the originals.
    , At the opening of their case, before introducing any evidence, counsel for the plaintiff tendered the three papers to the defendant, whose counsel answered, “We decline them.”
    The court submitted the cause ta the jury with oral instructions which left it to them as a question of fact whether “the plaintiff received this check and the claim for damages and retained it with the intention
      of settling the account between the plaintiff or defendant,” but further told them that if plaintiff received the check “without the intention of its becoming a settlement between the parties, yet if he retained it an unreasonable time in his possession without returning it or offering to return it to the defendant,” then that “would amount to an intention” or “disclose an intention” *' * * “upon the part of the plaintiff to accept that check in full settlement of the account between the plaintiff and the defendant.” He left it to the jury to determine whether the check was “retained by the plaintiff an unreasonable time without notifying the defendant or returning it.”
    After the finding by the jury in favor of the plaintiff the defendant moved for a new trial. This was denied, and as before stated, judgment entered on the verdict.
    In this court it is chiefly argued by the plaintiff in error that the verdict and judgment were against the law and the evidence, in that “the undisputed fact's show as a matter of law that there was an accord and satisfaction. Therefore the defendant’s motion for a peremptory instruction in his favor should have been allowed.”
    Plaintiff in error calls attention, however, to the improper reading to the jury, as evidence, of the notice for production of the papers involved and suggests that the ruling of the court striking it from the evidence might not have cured the error.
    The defendant in error, to sustain the judgment insists that if there was any error in the introduction of this evidence, it was cured by the subsequent ruling of the court, that it was a question of fact to submit to the jury whether the passive retention of a draft without cashing it or complying with the stated conditions on which the sender said it should be received could constitute an accord and satisfaction, and that if the case turned on the time during which the check was retained, it was for the jury to say whether such time was unreasonable,—that therefore no peremptory instruction should have been given for the defendant, as maintained by him, and that the verdict and judgment are in accordance with and not against the law and the evidence.
    George C. Otto, for plaintiff in error.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for defendant in error; Burrell J. Cramer, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The law of Illinois recognizes an accord and satisfaction by the payment and acceptance of a less sum than that due, if there be a bona fide dispute as to the sum which should be paid by the debtor to the creditor. Hayes v. Massachusetts Mut. Life Ins. Co., 125 Ill. 626; Ostrander v. Scott, 161 Ill. 339; Lapp v. Smith, 183 Ill. 179; Canton Union Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244.

If the less sum is sent in a check or draft of the debtor, with the statement that it is in full of the account, and the creditor reduces it to money, he will be held to have acceded to “the accord and satisfaction.” If he is not willing to take the lesser sum in full, he must return the check without using it. This seems to be the law of Illinois as declared by the Supreme Court. Ostrander v. Scott, supra; Lapp v. Smith, supra; Canton Union Coal Co. v. Parlin & Orendorff Co., supra; Stan v. Regelin, 147 Ill. App. 550.

The case at bar turns entirely on two questions. The first is whether, when the check' or draft, sent on these conditions by the debtor to the creditor is not that of the sender, but a bank draft or cashier’s check drawn by one banking institution on another, the retention for an unreasonable time of the same by the creditor, without presentation, but without notice to the debtor that it is repudiated or any offer made to return it, is equivalent to the use of it. This question we answer in the affirmative. A draft or check of any third person and a fortiori of a banking institution is not the same thing in fact, and we do not think it is the same thing in law, when so sent, as the debtor’s own check or draft. In the case of the sender’s own check or draft, it is but his order on funds which can not be disturbed or withdrawn from his control and use until it is presented; but if it be a cashier’s check it is something for which the debtor has paid consideration and which has tied up out of his use and control the amount which he paid or is charged for it unless and until it is returned to him. Therefore, while it may well be that some affirmative use of the debtor’s check or draft may be necessary to bind the creditor, the mere neglect or refusal promptly to return the check of a third party, and thus place the debtor in statu quo, might with equal reason be held to foreclose such a creditor from subsequent action. The return of the cashier’s check after an unreasonable delay practically changes the condition of things no more than would the voluntary refunding to the debtor after the same length of time of the amount for which his own check had been cashed promptly on reception.

This was also the theory on which the case was submitted to the jury by the judge below. Although we should differ from the implication made in his instructions, that it was entirely a question of intention, but that the intention must be inferred from an unreasonable retention, and deem the more accurate statement to be that although there was no intention on the part of the creditor at any time to receive the draft in question as full payment, the law would hold that he had so taken it if he had retained it an unreasonable time without repudiation; yet this difference in statement would lead to no practical difference in the disposition of the cause.

The whole practical effect of the court’s instructions under the evidence was to leave to the jury the single question: Did the defendant in error retain the bank draft in question an unreasonable time without repudiating or returning it? And the second question, on which this writ of-error turns is, whether this question was one of fact for the jury or of law for the court. In answering this question we are constrained to differ from the learned judge below and from counsel for defendant in error.

While it is true, as has been said, that “to give a specific meaning to the word ‘reasonable’ is like trying to count what is not number and measure what is not space;” Altschuler v. Coburn, 38 Neb. 881, 890.

And that “reasonable is a relative term and the facts of the particular controversy must be considered before the question as to what constitutes a reasonable delay can be determined;” In re Nice v. Schreiber, 123 Fed. 987, 988.

Tet we think that the' weight of authority supports the proposition that when the facts of a case are clearly established or undisputed—a condition which we think practically exists in this case—the question of what is a reasonable time within which an act should have been done becomes a question of law. Hill v. Hobart, 16 Me. 164, 168; Morse v. Bellows, 7 N. H. 549; McFadden v. Henderson, 128 Ala. 221, 230, 231; Hickman v. Shimp, 109 Pa. St. 16, 20.

If it was a question of law in this case for the court below, it is a question for us to decide here, and in doing so to dispose finally of the cause.

No questions of fact exists in it. It depends on the application of the law to undisputed facts.

The defendant in error is not shown to have intended to accept in full settlement the bank draft sent to it by the plaintiff in error, but it received it and held it practically three months and a half at least without returning or offering to return it or notifying the plaintiff in error of an intention or want of intention to accept it as the settlement it was insisted by the plaintiff in error that it must be, if accepted.

In our opinion the court below, with this state of thing’s clearly established, might consistently have instructed the jury peremptorily for the plaintiff or for the defendant, accordingly as he held this three months and a half a reasonable or an unreasonable time for the retention of the draft. We think he should have held it an unreasonable time and instructed the jury therefore peremptorily for the defendants. We hold it an unreasonable time under the circumstances of this case. To hold it reasonable would be against all the analogies of the law of negotiable paper. A check or draft of this sort is not intended for indefinite circulation or hoarding. It is supposed to be negotiated promptly or presented promptly. If held but a short time even, the holder incurs the risk of the intermediately accruing insolvency of the drawee and drawer. The neglect of the defendant in error to return or act in any way on the draft was equivalent in its effect on the plaintiff in error to cashing it, holding the money for three months or more and then offering to return it. The defendant in error must be held to have accepted the draft in payment of its account against the plaintiff in error, and the jury should have been so instructed.

The judgment of the Municipal Court is therefore reversed.

Reversed.


text:
    City of Chicago, Defendant in Error, v. Alwart Bros. Coal Company, Plaintiff in Error.
    Gen. No. 16,673.
    1. Weights and meastjbes—Chicago ordinance. Section 2844 of the Code of the City of Chicago, passed March 13, 1911, providing that any person who shall sell any commodity in quantities of less weight than that represented shall be fined, etc., is designed to meet cases of selling by short and false weights and measures of goods to be delivered when sold, as complete acts, and not cases of fraud in delivery from wagons of short weights of goods in considerable bulk which have been previously contracted for and are to be subsequently paid for.
    2. Municipal cobpobations—weights and measures. Fraudulent deliveries of coal having been made the subject of particular municipal legislation in the City of Chicago by section 741 of the Revised Municipal Code as amended Nov. 4, 1907, providing that any person selling and delivering coal without a delivery ticket being in possession of the person in charge of the wagon, or delivering less' th^n called for by the ticket, is to be fined, etc., this ordinance governs cases of short weight of coal sold for future delivery, and is exclusive, and contradistinguished from section 2844, these ordinances not being cumulative.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed.
    Opinion filed January 27, 1913.
    Underwood & Smyser and John F. Geeting, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

Alwart Bros. Coal Co., the defendant below, the plaintiff in error here, was found guilty in the Municipal Court of the violation of an ordinance of the City of Chicago and a judgment of twenty-five dollars in favor of the city was entered against it. To reverse this judgment this writ of error has been sued out. Several questions have been raised and argued before us in the cause, but we shall discuss only one, the correct decision of which in our opinion renders necessary the reversal of the judgment.

The ordinance under which the prosecution of the defendant was brought was one approved April 4, 1907, amending Section 2478 of the Revised Municipal Code of Chicago of 1905, as the same had been previously amended. The matter of the ordinance stands now as Section 2844 of the Chicago Code of 1911, passed March 13, 1911. It was in force in the same words at the time the matters complained of in this prosecution took place and when the action was brought. It is as follows:

“All corn in the ear, potatoes, coal, large fruits, coarse vegetables, and all bulky articles sold or offered for sale by dry measure shall be sold by heaped measure, and all commodities sold by heaped measure shall be duly heaped up in said measure in the form of a cone, the top of the outside measure by which the same shall be measured to be the limit of the base of such cone, and such cone to be as high as the nature of the article to be measured will admit the cone to be heaped.
“Any person or corporation who shall sell or offer for sale any commodity or article of merchandise of any kind whatsoever, whether sold by dry measurement, liquid measurement, lineal measurement, superficial measurement or cubic measurement, or by weight or by any unit of enumeration used in determining or measuring quantity, in quantities of less weight or measure or enumeration than the weight or measure or enumeration represented by the vendor or his agent or employe upon such sale or offer for sale, or who shall sell or offer for sale any commodity in any receptacle containing a less quantity than it is represented at the time of such offer or sale to contain, or any article measured by dry measure that shall not be a heaped up measure in accordance with the provisions of this Section, or who shall sell or offer for sale any article of dry measurement in other than a legal dry measure, or any article of liquid measurement in other than a legal liquid measure or in any measure which has not been inspected and sealed by the inspector of weights and measures in accordance with and pursuant to the provisions of this Chapter shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense.”

We do not think, for reasons hereinafter stated, that this ordinance applies to the matter involved in this case, even if all questions of fact put in issue by the defendant and all other questions of law were decided against it.

On the theory of the prosecution, the default or offense of the corporation sued occurred thus:

September 25, 1908, the County of Cook, as party of the first part, and Alwart Brothers Coal Company as party of the second part, entered into a written contract, by which the Coal Company, in consideration of certain payments to be made by the County of Cook, did “covenant, promise and agree to furnish and deliver to said County of Cook” from the date of the contract to March 31, 1909, and for a further period pot exceeding ninety days, should the County of Cook so elect, certain kinds of coal within certain defined territorial districts in the City of Chicago, at certain differing prices for the different kinds of coal, per net ton of two thousand pounds, to be “accepted by said County of Cook and delivered on order of the County Agent of said Districts.” In the contract were these provisions:

“All coal delivered under this contract shall be forked dry, free from slate and other impurities, and shall be a good stove coal in every respect and shall be delivered in bags or baskets of one hundred pounds each filled in yard at such times and in such quantities and at such places as the Superintendent of Public Service of Cook County may direct. A ton shall be two thousand pounds full weight, and unless otherwise directed an order shall mean the delivery of one thousand pounds of coal, at any one address.
“It is further agreed by and between the parties hereto that if said party of the second part shall fail, neglect or refuse to deliver the said coal or any part thereof of such quality as herein provided or in such quantities or at such times as may be designated by the Superintendent of Public Service, then the party of the second part, by its Board of Commissioners of Cook County, may declare this contract forfeited, either as to a portion of the same or as to the whole thereof, and procure by contract from other parties so much of said coal as said second party shall refuse or fail to deliver, and all costs and expenses occasioned by such default shall be charged against and deducted from any money on hand due and owing to said second party, and in case such cost and expense shall exceed the amount on hand so due and owing second party, then such balance shall be deemed a valid and subsisting claim against said second party and its bondsmen.
“It is expressly agreed that said party shall furnish to the Superintendent of Public Service original bills of lading for cars, from which said coal was delivered, and shall attach thereto an affidavit that the coal was delivered by team and was taken from the car mentioned in said bill of lading.
“It is further understood and agreed that said second party shall furnish to the Superintendent of Public Service invoices of each shipment of coal and contract price thereof, and upon approval of the same by the Board of Commissioners of Cook County the same shall be paid in the manner and form provided by law.”

This coal for future delivery was bought by the county for the relief of poor persons in the various districts named in the contract, and was to be delivered to them as ordered by the County Agent.

Assuming that all that the evidence with the legitimate inferences from it tended to prove against the defendant is to be taken by us as established fact in this ease, the County Agent ordered, under the contract, a half ton of coal delivered to a certain recipient of this relief, and the defendant, through its driver, delivered but 840 pounds, although the lot was delivered as a half ton or a thousand pounds, for which amount the county would be charged.

On the wagon from which this “short” half ton was delivered in eleven bags there were, when the wagon left the yards of the defendant, 89 bags in all. Eight deliveries, supposed to be of half a ton each, were to be made on similar orders, but there were less than four tons on the wagon.

Assuming thus all the charges of the prosecution concerning the transaction proven, we think, nevertheless, that in any event it would be difficult to hold it an offense against the ordinance before set forth.

The first paragraph of the ordinance concerning heaped measures is certainly not involved. By elimination in the second paragraph it is indeed provided that “any * * * corporation who shall sell or offer for sale any commodity, * * * by weight * * * in quantities of less weight * * * than the weight represented by the vendor or his agent or employee upon said sale or offer for sale * * * shall be fined not less than twenty-five dollars * * * for each offense;” and it is this provision alone that could by any construction said to be applicable to the offense here charged. But it is quite evident, we think, that the ordinance in question taken together was designed to meet cases of selling by false weights and measures on the street or in the shop or market place of goods to be delivered when sold; and not eases of fraud in the delivery from wagons of short weights of goods in considerable bulk previously contracted for and to be subsequently paid for.

But whatever might be the applicability of the ordinance in question to other merchandise in which fraud in delivery of this kind is perpetrated, we do not think it is applicable to frauds in the delivery from wagons of coal, charcoal or coke previously contracted for. Such fraudulent deliveries had been made the subject of particular municipal legislation before the ordinance of April 4, 1907, hereinbefore quoted, was passed, and continued to be so afterward. In the Revised Municipal Code of Chicag’o of 1905 (sec. 741), it was provided that any person or corporation engaged in the business of selling coal in the city to be delivered in the city who should deliver to any purchaser a less quantity than two thousand pounds of coal for each ton purchased (or a proportionate amount for any part of a ton), or who should practice any fraud or deceit in the sale or delivery of any coal purchased to be delivered in the city should be fined, etc. On November 4, 1907, this section of the ordinance was' amended, and on February 8, 1909, when the transactions involved took place, there were in force and there are today in force provisions of the Municipal Code requiring that any person or corporation selling and delivering or attempting to sell and deliver coal, charcoal or coke, without having a delivery ticket showing the net weight to be delivered in the possession of the person in charge of the wagon, shall be fined not less than five nor more than fifty dollars for each offense, and ordaining that “any person, firm or corporation delivering or attempting to deliver coal, charcoal or coke within the city who shall have upon the wagon or conveyance coal, charcoal or coke of a quantity less than called for by the delivery ticket” provided for “shall be fined not less than twenty-five dollars nor more than two hundred dollars for each offense.”

This ordinance, we think, governs such cases as the evidence for the prosecution tended to prove the one at bar to be. We do not think that the ordinances are cumulative, but mutually exclusive and contradistinguished, the one referring to sales made as complete acts by short measure from wagons, shops, markets and the like; the other to deliveries like the one involved here on contracts previously made. The wrong ordinance being made the basis of the prosecution in the bill of particulars in the evidence, and in the finding of the court on which the judgment was entered, it follows that the judgment is erroneous and it is reversed. .

Reversed.


text:
    Valentine Wagner and John Hauschild, Defendants in Error, v. Richard Guthman Transfer Company, Plaintiff in Error.
    Gen. No. 16,804.
    1. Negligence—destruction of unlawful structure. In an action for the negligent destruction of a storm door, it is no defense that the construction was unlawful under a city ordinance.
    2. Master and servant—liability for acts of employee. Where a driver for a transfer company, acting within the line of his employment, negligently destroys a storm door, the company is responsible.
    3. Negligence—management of team. In an action for damages from destruction of a storm door, where it is showti. that the door was struck by a load of timber in charge of defendant’s driver, there is sufficient evidence of negligence to raise a question of fact.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed January 27, 1913.
    Adolph Marks, for plaintiff in error.
    Saul C. Erbstein, for defendants in error.
   Mr. Justice Brown

delivered the opinion of the court.

One Harry Rice was on January 16th, 1909, driving a team of horses hitched to a large truck wagon fourteen feet long, which was loaded with timbers which stuck out from ten to twelve feet behind the wagon. Rice was working for the Guthman Transfer Company, which was paying him. Guthman of the Transfer Company, or Ms barn boss, gave orders to Rice in the morning to go to the Gas Company’s building and haul away whatever other persons there (presumably persons who held with the Transfer Company a contract for the use of the team and wagon) might direct, and to take it to the court house or city hall, where certain excavation was going on.. At the court house or city hall Rice took orders from the persons in charge there of the business carried on by the person who had contracted for the team. Rice had not been a teamster long, and says he never was much of a driver, that he had been a helper on an ice wagon. On the trip with which this litigation is concerned he had taken one loaded wagon to the court house, delivered the wagon and load, and in accordance with directions given him, hitched the team of horses to the wagon loaded with timbers (which stood in the street), in order to drag it into the enclosure where the work on the public building was going on.

While turning around, his wagon or its load struck and demolished a construction which served as the side entrance of a dramshop belonging to Wagner & Hauschild on the southwest corner of Clark and Washington streets. This was a storm door or storm house made of art glass and wood and projected on the sidewalk of Washington street two feet and a half from the main building line. It contained an electric chandelier wMch was destroyed. The defendants in error claim this all happened through the negligence of Rice. Hence the suit in the. Municipal Court, which resulted in the judgment for the defendants in error, Wagner and HauscMld, for $150 against the plaintiff in error, the Richard Guthman Transfer Company, which the plaintiffs in error are attacking in tMs court.

The first contention of plaintiffs in error is that the construction was unlawful under the ordinances of the City of Chicago. This is no defense, even assuming, which is doubtful, that it was sufficiently proved in the case. The plaintiff in error had no commission from any authority to abate this storm door as a nuisance or a purpresture or. an offense against the law, and must answer for its destruction by the negligence of a servant, even if it was improperly located.

The second contention is that the Gruthman Transfer Company is not responsible for the negligence of Bice. Under the evidence we think it is. Bice was its servant, paid by it, employed with its agencies and for its profit, and it is responsible for his negligence in acts within the line of his employment.

The third contention is that there is no evidence showing that Bice was guilty of any negligence. We think that the evidence presented at least a fair question of fact for the judge below to pass on, and that his finding is not without support or against the weight of the evidence.

The fourth and final contention of the plaintiff in error is that a wrong measure of damages was adopted by the judge below; that he gave judgment for the cost of replacing by a new construction an old and deteriorated one. Taking all the evidence together, we cannot say that the cost of construction of the new entrance was the only factor entering into his assessment of damages, or that the amount given was not under the evidence a proper one.

The judgment of the Municipal Court is therefore affirmed.

Affirmed.