text:
    Chicago Title & Trust Co., Trustee, Defendant in Error, v. The Kemler Lumber Co., Plaintiff in Error.
    Gen. No. 14,676.
    1. Landlord and tenant—when estoppel to question validity of lease arises. If a lease is defectively executed on the part of the lessor, the lessee, by accepting it and in virtue of its condition taking possession of the premises demised and paying rent therefor in accord with its terms, is estopped to challenge the method of its execution by the lessor.
    2. Landlord and tenant—effect of assignment to validate execution. A defective execution by the lessor is validated by the assignment under seal of the lease by the lessee.
    3. Corporations—what does not invalidate execution by. The execution of a lease by a corporation is not invalidated because the corporate seal does not exactly correspond with the corporate name.
    4. Municipal Court—when plea of set-off inappropriate. A plea of set-off is inappropriate if not conformable to the practice regarding the particular class of cases in which it is filed.
    5. Municipal Court—when judgments not subject to review. In the manner of review the Appellate Court has yielded its judgment to the observance of the distinctions as to the classes of actions under the Municipal Court Act, and denied the right to such review where the plaintiff in error has failed to invoke the court’s jurisdiction within the time provided for in cases of the fourth class.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the. October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Gustav E. Beekly, for plaintiff in error; Edward Maher, of counsel.
    John S. Stevens, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

James B. Hobbs leased to defendant certain premises in Chicago for a term of five years from November 15,1903, at a rental of $166.66 per month after the first two years of the term. This action is for rent for the month of November, 1907. The lease was offered in evidence and appears to have been executed by the parties in the following manner:

1 ‘ Schloeder and Kemler Co. James B. Hobbs (seal)

Corporate Seal. by Fred W. Cornish, Agt.

Chicago, Ill. by W. W. Rathborne, President.

Attest. Geo. J. Kemler, Secretary. ’ ’

Under this lease defendant took possession of the premises demised and enjoyed the same and paid rent according to the terms of the lease to the lessor until he parted with his title to the plaintiff, and thereafter paid rent to plaintiff until the month’s rent in suit was due. The deed from Hobbs to plaintiff was, together with the lease and its assignment, offered and received in evidence. The assignment of the lease is in these words:

“Chicago, Nov. 13, ’06.

For value received I hereby assign all my right, title and interest in the within lease to the Chicago Title & Trust Company, Trustee, and to the rentals from Dec. 1st, 1906.

James B. Hobbs. (Seal) ” ■

Defendant pleaded non assumpsit and set-off in the sum of $2000. The plea of set-off on motion of plaintiff was stricken from the files.

- A jury was impaneled to try the cause, and after all the proofs were concluded the court instructed the jury to find a verdict for plaintiff for the amount of its claim, and entered judgment thereon after overruling a motion for a new trial.

It is urged for reversal tiiat the lease was not admissible in evidence as not being formally executed by Hobbs or by defendant, and that defendant’s plea of set-off should have been retained and his claim tried in this suit. While the lease is defectively executed on the part of Hohbs, yet defendant, by accepting it and in virtue of its conditions taking possession of the premises demised and paying rent therefor, in accord with its terms, is estopped to challenge the method of its execution by the lessor. Moreover, from the facts last recited and the receiving of rent by the lessor, he ratified-and adopted as his own the execution of the lease in his name by his agent. To further validate the execution by Hobbs, his assignment under seal of the lease to plaintiff was a sufficient recognition of the act of his agent to forever estop him from calling it in question. Eoby v. Oossitt, 78 Ill. 638.

The execution by defendant was not invalidated because the corporate seal did not exactly tally with the corporate name of defendant. It was its corporate seal, and it had a right to adopt a seal in such form as it might choose. On the other hand, if the lease is not well executed in form, it became binding upon defendant by acceptance of the lease, the going into possession of the premises described in the lease and the paying of rent in accord with the rent reserved to be paid by the terms of the lease. Defendant attorned to plaintiff by paying all rent due under the lease from the time of its assignment to plaintiff until the accruing of the month’s rent the subject of this litigation.

This action is of the fourth class in the Municipal .Court and the claim of set-off would come within those causes cognizable as of the first class. Had the plea of set-off been such as to have brought the cross cause into the fourth class under the Municipal Court Act, then the plea should have been allowed to stand; but it clearly came within another class and was not, for that reason, germane to the main suit or a proper subject of counterclaim. No written pleadings were required in the main suit, while such pleadings are made necessary in cases of the first class, of which class was defendant’s counterclaim. In the two classes different scales of costs obtain. The. Municipal Court Act preserves the distinctions between actions or claims cognizable in the Municipal Court and has divided them into classes. These distinctions must be given effect and each action confined within the class designated by the Act. Such rule should be held to govern cross actions as strictly as original actions. In the matter of review this court has yielded its judgment to the observance of the distinctions as t,o classes of actions under the Municipal Court Act, and denied the right to such review where the plaintiff in error had failed to invoke the court’s jurisdiction within the time provided for cases of the “fourth class.” Schindler v. Edwards, 134 Ill. App. 637; Benjamin v. Chicago, Ind. & Louis. By. Co., Gen. No. 13802, not reported.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Holdom

license: Public Domain

text:
    John M. Scanlan, Defendant in Error, v. Joseph Hoerth, Plaintiff in Error.
    Gen. No. 14,713.
    1. Landlord and tenant—what does not establish surrender. The testimony of the lessee as to conversations with a rent collecting agent of the lessor to the effect that such agent said that such lessor had told him (the agent) that he mi'ght accept from the lessee the keys to the premises and the surrender of the same, does not establish a legal surrender. The burden of proving a surrender rests upon the lessee.

      2. Landlord and tenant—when agent not authorised to surrender. An authority to collect rent does not presumptively carry with it the power to cancel a renting contract under seal.
    3. Landlord and tenant—obligation of landlord to re-rent upon abandonment. In case of abandonment by the tenant, the authorities are that the landlord may re-enter and re-rent if he can, but he is under no legal obligation to re-rent if he can; having an opportunity to re-rent and not doing it does not deprive him of his remedy upon the lease.
    Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Richabd S. Tuthill, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Rehearing denied December 6, 1909.
    Howard E. Leach, for plaintiff in error.
    Kickham Scanlan, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This action originated in the court of a Cook county justice of the peace and was tried de novo on appeal to the Circuit Court by the defendant, whose defenses were unavailing in both courts to prevent plaintiff from recovering his demand. This demand is for rent for the months of November and December, 1904, at thirty dollars per month, for the first floor of 2111 West Harrison street, Chicago, and both judgments were for sixty dollars. The trial judge in the Circuit Court directed the jury to find the verdict which they did, and after overruling a motion for a new trial the court entered judgment upon the verdict, and defendant sues out this writ of error, which has been made to operate as a supersedeas by the order of this court, and asks a reversal of the Circuit Court judgment and urges as reasons for such request that the court erred in directing a verdict and that the premises for which rent was sought had been surrendered prior to its accruing; that plaintiff evicted defendant from the premises, and that plaintiff maliciously refused to re-rent the premises to a prospective tenant.

Whether it was error to direct a verdict depends upon the disposition of the other reasons assigned as error, and whether the evidence of defendant, if true, presented any legal defense to plaintiff’s claim.

The surrender claimed rests for its support in the testimony of defendant as to conversations with the rent collecting agent of plaintiff, the agent saying to defendant that plaintiff had told him, the agent, that he might accept from defendant the keys to the premises and the surrender of the same. This testimony was clearly hearsay and inadmissible. The burden of proving a surrender rested upon defendant as an affirmative defense by competent proof. The only proof in the record as to the agent’s authority was that he was authorized to collect rent. Such authority does not presumptively carry with it the power to cancel a renting contract under seal. Robinson v. Henaghan, 92 Ill. App. 620. Moreover it is axiomatic that agency cannot be established by the declaration of the agent. There was an utter lack of evidence tending to prove that the rent collecting agent of plaintiff had authority to accept a surrender of the leased premises and terminate the lease thereof to defendant. The acceptance of the key by the agent of plaintiff for the purpose of procuring access to the shop to stop an overflow of water did not operate as an acceptance of a surrender of the premises and a cancellation of the lease. The proof shows that defendant erected a building during his tenancy of plaintiff’s premises, and moved into it therefrom. It appears that quarrels occurred between plaintiff and defendant, and that assaults were committed upon defendant, his wife and daughter, by plaintiff; that so serious were these occurrences that they culminated in the arrest of plaintiff and the imposition of a fine for his illegal conduct. This conduct of plaintiff is said to constitute an eviction of defendant sufficient to justify his abandonment of the premises and the termination of his lease. We do not wish to be understood as in any way palliating or condoning the reprehensible conduct of plaintiff in his assaults upon his tenant and family; but nevertheless such violence, inexcusable as it may have been, did not constitute an eviction of defendant nor justify an abandonment by him of the premises. Moreover, it is patent that he moved to occupy -his own building, which he assumedly had in mind to do when he built it. He made no claim to his landlord that he moved because of his aggressiveness, amounting to an eviction, but assigned a different reason entirely, namely, an acceptance by plaintiff of a surrender of the possession; and finally defended on the ground of plaintiff’s failure to accept a new tenant for the two months for which rent is claimed. These positions are inconsistent, and more particularly so in light of the fact that defendant continued in possession of the premises and paid rent therefor after the last assault made upon him or his family. Furthermore, he was just as capable of repelling plaintiff’s assaults from the leased premises as from his own across the street, where he moved, for his possession of the leased premises was as conclusive against any right of reprisal by plaintiff as of the rest of the world. The fact that plaintiff committed assaults upon the tenant, whose landlord he was, in no way excused such illegal conduct or minimized his liability to answer either civilly or criminally for such assaults. His liability was no more and no less than it would have been had the assaults been committed upon the premises of a stranger.

Defendant contends that it was the duty of plaintiff to re-rent the premises to one Westcott, who was willing to become the tenant of plaintiff prior to the accruing of the rent recovered. Aside from the fact that at the time Westcott sought to rent the premises, defendant still retained possession, it is insisted under the authority of W. S. A. H. Co. v. Conn. Mut. Life Ins. Co., 186 Ill. 156, that it was plaintiff’s duty to re-

232. Consequently the word embraces the listening to rent them. While some remarks made by the court, in that case may be interpreted as announcing such a doctrine, they are clearly obiter diota. The court held in that case that the delivery of the keys to the landlord and the putting up by him of “to rent” signs did not work a cancellation of the lease as to the balance of the term or relieve the lessee from the payment of the stipulated rent. This court -said in Ran v. Baker, 118 Ill. App. 150, speaking through Mr.. Justice Adams: “In Humiston, Keeling Co. v. Wheeler, 175 Ill. 514, 516, the court say: ‘In case of an abandonment, without fault of the landlord, or as the result of his acts, he may re-enter and again rent the premises and credit the lessee with the proceeds; and his so taking possession does not relieve from the payment of rent.’ This was said in answer to the claim by the tenant that the landlord’s entry was an eviction. While in case of abandonment by the tenant the authorities are that the landlord may re-enter and re-rent if he can, we know of no case in which it has been held that the landlord must, if he can, re-rent, or lose his remedy against the lessee on the lease; nor do we think any such case can be found. The contract remains in force notwithstanding the abandonment of the premises by the tenant, and the tenant’s covenant to pay rent is unimpaired; and we cannot understand how the tenant, by his own wrongful act, can impose on the landlord the alternative of diligently seeking another tenant or losing his remedy on the covenant.”

There being no evidence fairly tending to prove the defenses offered, the court properly instructed the jury to render a verdict for plaintiff for the rent claimed.

The judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Hohdom

text:
    Ralph Alexander, Defendant in Error, v. Jack Potts, Plaintiff in Error.
    Gen. No. 14,725.
    1. Masteb and servant—what ground for discharge. A servant must use his best efforts and be diligent to serve the interests of the master in the business in which he is employed, and when the servant’s conduct is such as to he detrimental to his master’s business, resulting from wilful acts of misconduct on his part, such misconduct becomes just grounds for his discharge by the master.
    2. Municipal Cotjbt—when exceptions not essential. In fourth class cases, rulings are preserved for purposes of review without the saving of exceptions.
    3. Res adjudicata—when bar to further action. If a judgment has been rendered determinative of a controversy arising under a contract, a .second action upon such contract does not lie.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon.' John W. Houston, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 22, 1909.
    John B. Philp and W. S. Johnson, for plaintiff in error.
    Henry 0. Adams, for defendant in error.
   Mr. Presiding Justice Hohdom

delivered the opinion of the court.

Plaintiff claims that he was employed hy the defendant and his wife, Effie H. Potts, to serve them in the retail millinery business managed hy Mrs. Potts in the Venetian Building, Chicago, Mr. Potts carrying on at the same time a wholesale business at 9O’ Wabash avenue, Chicago. The time of employment, plaintiff claims, was from August 29, 1907, to December 20, 1907, and the wage $35 per week. On the trial Mrs. Potts was dismissed out of the case. This review is sought from a judgment for $219.50 against defendant, with costs.

Defendant contends that the time of employment was for the season covering substantially between the dates claimed as the time of employment, but only so long as plaintiff was satisfactory to defendant, at $35 per week; that defendant was discharged because he was not satisfactory; that a prior recovery of a judgment for one week’s unearned wage is a bar to any further recovery. That plaintiff’s conduct was unseemly he tacitly admits. Once he apologized to Mrs. Potts for his impertinence. It is plain that his conduct was subversive of discipline among the other employes and detrimental and hurtful to defendant’s business. On one occasion he called Mrs. Potts “crazy” in the presence of workers and customers. For this, it is true, he apologized to Mrs. Potts, but this conduct, taken with the unwarrantable familiarity inferable from his addressing Mrs. Potts in the presence of customers as “Honey dear,” the female employes as “honey,” and some of the customers as “girlie,” did not condone his offenses. This is not all. On Mrs. Potts leaving a customer with plaintiff to wait upon, as Mrs. Potts departed he remarked to the customer, “I hope I won’t see that face again,” referring to Mrs. Potts. On this same customer expressing her displeasure at her hat not being ready, he said to her in reply, “Oh, you cannot depend upon Mrs. Potts; she is too unreliable.” Such behavior on the. part of plaintiff was all sufficient in our opinion to justify his discharge, contract or no contract. A servant must use his best efforts and be diligent to serve the interests of the master in the business about which he is employed, and when the servant’s conduct is such as to be detrimental to his master’s business, resulting, from wilful acts and misconduct on his part, such misconduct becomes just grounds for his discharge by the master. Shields v. Carson, 102 Ill. App1. 38; Hamlin v. Race, 78 Ill. 422.

Plaintiff failed to maintain his contention that he was employed for a definite and fixed time by the greater weight of the evidence. On this point he is flatly contradicted by defendant and his wife. The case of Kenyon v. Hampton, 70 Ill. App. 80, is decisive on this point.

Prior to the bringing of this suit plaintiff sued upon the contract here involved and recovered a judgment for the amount of one week’s unearned wages. This judgment was paid by defendant and satisfied of record. Defendant’s counsel, after making proof to that purport by the records of the Municipal Court, moved for a judgment in favor of defendant on the ground that the former recovery and satisfaction was a bar to any further action. This motion the court denied, and such denial is assigned and argued as error. Plaintiff contends that no exception being preserved tó' the ruling of the court in denying such motion, our review cannot be invoked as to this action of the court. This case is of the fourth class under the Municipal Court Act, which under paragraph 8, section 23, provides “nor shall any exceptions to tbe ruling aid decisions of the Municipal Court upon the trial * * * be necessary to the right of either party to a review of such rulings and decisions in the Supreme Court or Appellate Court on their merits.” No exception to this vital ruling of the court was essential to a review .of its correctness by this court. Under well-settled doctrine, the former recovery was a bar to any further suit on that contract. The motion to dismiss should have been allowed. There was no question of fact for submission to the jury. In a case of this character Mr. Presiding Justice McAllister in a concurring opinion said on this point, in Jones v. Dunton, 7 Ill. App. 580: “Whatever might be the measure of damages where the action was brought before the contract expired, •as it must be founded on the wrongful discharge, and be to recover damages for such wrongful discharge, it is clear to my mind that he cannot bring an action and recover before the time expired and then maintain another after the contract time had expired, and recover for the same breach.' Although the present suit was brought after the time of hiring had expired, yet it appears that the plaintiff had, soon after his discharge, brought suit, not for wages previously earned, but necessarily, as damages for such discharge, and recovered forty dollars damages. No matter how those damages were measured, the gist of the action must have been the illegal discharge. That judgment I regard as a bar to any further recovery; and on that ground am for affirming the judgment below.” The first judgment of plaintiff not being for wages earned, must necessarily be for damages for illegal discharge, and is by parity of reasoning a bar to the suit now being reviewed, or any other action involving the hiring contract. Weill v. Fontanel, 31 ibid. 615; Monarch Cycle v. Mueller, 83 ibid. 359, and authorities cited in the*. Mueller case.

There being no question of fact for the jury, but one of law for the court—that the cause before us for review is barred by a former recovery—the judgment of the Municipal Court is reversed and judgment entered in this court for defendant.

Reversed and judgment for defendant here.


author: Mr. Justice Baker

text:
    William F. Wiemers et al., Defendants in Error, v. Calumet Publishing Company et al., Plaintiffs in Error.
    Gen. No. 14,672.
    Appeals and erbors—when finding set aside. The finding of the court when against the evidence should be set aside upon review.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 22. 1909.

      Poyhtoh & Poyntoh, for plaintiffs in error.
    William F. Wiemers, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action brought in the Municipal Court by defendants in error against plaintiffs in error to recover rent of an office in a certain building in Chicago from June 1, to September 30,1907, at the monthly rental of $35, plaintiffs had judgment for $130, to reverse which this writ of error is prosecuted. There was no lease in writing, and the defendants did not take possession of the premises. Defendant Mather was engaged in the business of special advertising and had advertised in a paper published by the other defendant, the Calumet Publishing Company. Of that company George W. Bolling was manager. In May, 1907, Mather told Bolling that he intended to move his office and asked Bolling to go with him, and Bolling said that he would do so if M'ather found a suitable office. About June 1 Mather called on Nees, one of the plaintiffs, and was shown two rooms. As to the conversation then had between Nees and Mather, Nees testified that: About June 1st Mr. Mather came to our office with a view to renting a couple of rooms that we had vacant, paid us two dollars and asked us to hold them while he looked around. In a few days Mather paid us eight dollars more and we gave him a receipt for that amount. And Mather testified in substance as follows: I told Mr. Nees that I had no power to contract other than for myself, and I would pay him a deposit to hold them for a few days until Mr. Bolling could see them and pass on them, and I agreed to pay him $10. I only had a few dollars in my pocket. I gave him $2 and the following day I gave him $8 and he made a receipt for me to Frank L. Mather for $10, and it stated in the receipt the offices were to be held for three or four days. Bolling testified that Mather showed him the receipt and asked him to go and look at the offices, and that he told him that he did! not want the offices;.that Mather replied that he thought he would move there; that some time afterward one of the plaintiffs asked, him to sign a lease for the offices, and that he refused and said he did not want the rooms.

There is no evidence tending to show that in the first conversation Mather, either for himself or for himself and the Calumet Publishing Company, agreed with Nees on the terms of a lease, nor is there any evidence tending to show that Mather had any authority from the Publishing Company to lease offices either for the Publishing Company or for himself and the Publishing Company. June 21 plaintiffs wrote the “Daily Calumet” asking for a check for the June rent, $25, “for the two offices you rented from us through your Mr. Mather.” June 21 plaintiffs again wrote the “Daily-Calumet” that: “Tour Mr. Mather, acting on your behalf, rented from us two offices,” etc., and asking for a check and that the lease be signed, and neither of said letters was answered. Nees further testified that some time in June he called at the office of the Publishing Company and was told by some one, he did not know who, that Bolling was out of town, but was ready to sign the lease.

The statement of some unknown person, then in the office of the Publishing Company, that Bolling was ready to sign the lease, was not evidence tending to show that either the Publishing Company, or the Publishing Company and Mather, had leased the premises in question from the plaintiffs.

The statement in each letter was that the Publishing Company through Mather had rented the offices. There is no evidence even tending to show such renting, and the fact that said letters were not answered will not warrant or support an inference that Mather and the Publishing Company had rented the offices from the plaintiffs.

The evidence in the record is not, in onr opinion, sufficient to support the finding and judgment against the Publishing Company, and the judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    The People of The State of Illinois, Defendant in Error, v. G. J. Hyer, Plaintiff in Error.
    Gen. No. 14,682.
    Appeals and errors—when questions cannot he raised in Appellate Court. The question of the validity of an act of the Legislature cannot be urged on review in the Appellate Court.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. Frank P. Sadler, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Vail & Vette, for plaintiff in error.
    Charles Alling, Jr., and Charles Gr. Hoffman, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

This is an action of debt brought by defendant in error against plaintiff in error to recover the penalty for practicing medicine without a license from the State Board of Health, imposed by section.of an Act entitled, “An Act to regulate the practice of medicine in the State of Illinois and to repeal an Act therein named,” in force July 1, 1899. Laws of 18991, p. 273. There was a trial by a jury and a verdict for the plaintiff for $100' debt, which found, “the defendant guilty of practicing medicine without a license in the State of Illinois.” Defendant’s motion for a new trial was denied, and judgment entered on the verdict for $100 debt and costs, to reverse which the defendant prosecutes this writ of error.

The act regulating the practice of medicine provides for the organization of the State Board of Health and the granting by said board of licenses to practice medicine in this State. There were two previous acts regulating the practice of medicine, the first in force July 1,1877, and the second July 1,1887, each of which provided for the granting of licenses or certificates from the State Board of Health and prohibited the practice of medicine without such license or certificate, with an exception in the first,act in favor of those who had been practicing ten years before the passage of the act. Both of the previous acts made it a penal offense to practice medicine without a license or certificate. Section 9 of the present act, under which this suit was instituted, contains the following provisions: “Any person practicing medicine or surgery or treating human ailments in the State without a certificate issued by this board in compliance with the provisions of this act * * * shall, for each and every instance of such practice or violation, forfeit and pay to the People of the State of Illinois, for the use of the said hoard of health,” certain penalties therein mentioned, and the section concludes with this proviso: “Provided,, that this section shall not apply to physicians who hold unrevoked certificates from the State Board of Health issued prior to the time of the taking effect of this act.”

From the evidence in the record the jury might, we think, properly find the following facts: That defendant practiced medicine in Chicago after July 1, 1899; that he was not the graduate of any medical college; that he did not hold an unrevoked certificate from the State Board of Health issued prior to the time of the taking effect of the Act of 1899.

In People v. Langdon, 219 Ill. 189, it was held that a person practicing medicine in Illinois before the Medicine and Surgery Act of 1899 took effect, and who continues to practice medicine thereafter without obtaining a certificate from the State Board of Health under such act, or without holding an unrevoked certificate from the State Board o'f Health issued prior to the taking effect of the act, is within the terms of the act and subject to its penalties. Many of the contentions of plaintiff in error must be regarded' as settled adversely to such contentions by the decision of the Supreme Court in People v. Langdon. To bring defendant within the proviso of the Act of 1899 he must hold an unrevoked certificate of the State Board of Health issued prior to the time of the taking effect of said act. It is immaterial what efforts the defendant may have made to procure such a certificate, nor how long he had practiced medicine in the State before the Act of 1899 took effect. The trial court therefore did not err in excluding the evidence offered by the defendant to show that he had practiced medicine in Illinois since 1867, and applied to the State Board of Health for a certificate after July 1, 1899.

The question of the validity of any of the provisions of the Act of 1899 cannot be raised in this court.

We think that the evidence is sufficient to warrant and support the verdict, and that the court did not err in denying defendant’s motion for a new trial and entering judgment on the verdict. Finding no error in the record, the judgment of the Municipal Court will be affirmed. .

Affirmed.


text:
    P. J. Weber, Appellee, v. La Verne W. Noyes, Appellant.
    Gen. No. 14,704.
    1. Contracts—when custom, controls. It is proper for the jury to find that an architect is entitled to recover for his services at the usual and customary rate of charge, if the evidence tends to establish that his services were reasonably worth such an amount.
    2. Trial—when contention of counsel not ground for reversal. Held, that the asking of the following question: “You had some difficulty, did you not, with non-union labor concerning the filling under that floor?” though not pertinent to any issue in the case, did not constitute such conduct as would justify a reversal where the question was objected to and the objection immediately acquiesced in by counsel asking the objectionable question.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William: N. Gemmill, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Jones, Addington & Ames, for appellant.
    Dunn & Hayes, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Appellee as plaintiff brought assumpsit in the Municipal Court to recover $1047.37 claimed to be due bim from the defendant for his services as an architect in drawing plans and specifications for and superintending the construction of a building for the defendant in Chicago. Plaintiff had a verdict for $800. A motion for new trial was denied and judgment entered on the verdict, and the defendant appealed. But two grounds of reversal are argued in the brief for appellant. The first is that, ‘1 The appellee should have been restricted in his recovery to four per centum of the cost of construction;” the second that, “The reversal should be awarded because of the misconduct of appellee’s counsel.” Plaintiff’s compensation on a basis of four per cent of the cost of the building, $65,949.47, would be $2637.89, on a basis of five per cent $3297.47, and he had been paid $2250.

The contract of employment was verbal and there was no express agreement as to the compensation of the plaintiff. Nothing was said on that subject by either party. The evidence for the plaintiff tended to show that the customary fees or charges of architects in Chicago was five per cent of the cost of the building. On this basis the balance due plaintiff would be $1047.37. Plaintiff had, a few months before the construction of the building in question, designed and superintended the construction of another building for the defendant, for which he charged four per cent of the cost for his services. The two buildings were part of the same general plant. The defendant offered no evidence as to the customary charges of architects. The contention of appellant is that as plaintiff had charged defendant but four per cent for the first building, by his conduct in accepting the order for the second building and proceeding under such' order, without indicating that his charges for that building would be at a different or higher rate per cent of the cost than he had charged and accepted for the first building, he was restricted to the same rate per cent of the cost of the second building that he had charged and accepted for the first. With this contention we cannot agree. To so hold would be to hold that without any special agreement of the parties to that effect it was a part of the agreement for the second building that plaintiff should receive for his services compensation at the same rate per cent of the cost that he had charged and accepted for the first. The two agreements were separate and distinct agreements, and we cannot, by implication, put into the second agreement anything that the parties did not make a part of such agreement. The parties having failed to agree as to the compensation of the plaintiff for his services in respeet to the second building, the law implies a promise by the defendant to pay the plaintiff the fair and reasonable value of such services. From the undisputed evidence that the customary charges for such services as the plaintiff rendered in respect to the second building are five per cent of the cost, the jury might properly have found that the reasonable value of plaintiff’s services in respect to the second building was five per cent of its cost. The amount of plaintiff’s compensation remaining unpaid, on á basis of five per cent of the cost, is greater than the amount of the verdict, and appellant has no just reason to complain of the amount of the judgment.

One of the contentions of defendant on the trial was that the plaintiff had neglected his duty to properly superintend the construction of the building, to the damage of the defendant. On this question much testimony was introduced by each party. Such testimony is conflicting, and it is conceded by appellant’s counsel that the judgment should not be reversed on the ground that the verdict, on that issue, was against the weight of the evidence. But appellant contends that the evidence being conflicting, the judgment should be reversed because of the misconduct of plaintiff’s counsel on the trial. Defendant at the trial contended that through the fault of the plaintiff the floor of the forge room was defective and faulty; that its pitch was neither proper nor uniform, and introduced testimony tending to support such contention. Defendant was called as a witness in his own behalf, and testified to conversations with plaintiff in reference to the proper pitch of the forge room floor, hut not as to the construction of the floor or the filling under the floor. On his cross-examination he was asked by plaintiff’s counsel the following question: £<Q. You had some difficulty, did you not, with non-union labor concerning the filling under that floor?” The defendant objected to the question and the objection was sustained by the court. The conduct of plaintiff’s counsel complained of is the asking of the question above set forth. The cinder filling under the cement floor of the forge room was put in by the cement contractor, the Imperial Company, not by the defendant. The question did not relate to any matter to which the defendant had testified in chief, and for that reason was not proper cross-examination, and we are unable to perceive the relevancy of the subject-matter of the question to any issue in the case. While we think the question was not proper and that the objection to it was properly sustained, we are unable to perceive in the question, or in any conduct of plaintiff’s counsel, any purpose to prejudice the jury against the defendant. Counsel at once acquiesced in the ruling of the court and did not further pursue the inquiry.

We think the trial court did not err in refusing to grant a new trial because of the asking of said question by plaintiff’s counsel. The record is, we think, free from error, and the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Elizabeth Laingor, Defendant in Error v. Sidney S. Lowenthal, et al., Plaintiffs in Error.
    Gen. No. 14,708.

      Suretyship—when past consideration "binds guarantor. As a general rule, the consideration which hinds a guarantor or surety must he executory, but when the thing was done at the request of the surety or guarantor, a past consideration hinds him.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. F. L. Fake, Jr., Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Rehearing denied December 6, 1909.

      Statement by the Court. -The defendant in error, the owner and holder of the promissory notes mentioned in the instrument hereinafter set forth, brought her action in the Municipal Court against plaintiffs in error on said instrument and the guaranty thereof by the defendants. Said instrument and guaranty are as follows:
    “Know all men by these presents: That whereas, heretofore, Tilly Cohn, Sophie Lowenthal and Solomon Lowenthal, being indebted in the sum of twenty-five hundred dollars ($2500), executed and delivered their certain principal promissory note for twenty-five hundred dollars ($2500), together with interest notes relating thereto,—all dated December 14, 1894, and secured by a trust deed to Theodore H. Schintz, conveying real estate in Cook County, Illinois, bearing date the 14th day of December, A. D. 1894, and recorded in the Recorder’s Office of Cook County, Illinois, in Book 4936 of Records, at page- 427, as Document No. 2,151,064, and which said indebtedness was thereafter from time to time, by the request of said parties, or the survivors of them, extended (all of the covenants and agreements of the said Trust Deed, except as expressly modified by the said extension agreement, being expressly retained, and incorporated as a part of the said extension agreement) until December 14, A. D. 1904.
    “And whereas, the said Tilly Cohn and Solomon Lowenthal are now deceased, and it is the wish and request of the said Sophie Lowenthal, claiming to be the owner of the premises conveyed by said trust deed (excepting one, only, parcel hereof, which has heretofore been conveyed by a master in chancery under the foreclosure proceedings of a prior trust deed), that the said principal indebtedness and note be extended beyond the said 14th day of December, A. D. 1904, as follows, viz.:
    “Bight hundred dollars ($800) thereof for a period of three years from and after the 14th day of December, A. D. 1904; and the remainder of seventeen hundred dollars ($1700) for a period of five years from and after the 14th day of December, A. D. 1904, and

      “ Whereas, Leo. B. Lowenthal and Sidney Lowenthal also desire that the said extension be granted as stated in the preceding paragraph hereof, and, in consideration of the said extension, propose and agree with the said Sophie Lowenthal and with the legal owner and holder of the said note that they will be bound for the payment of the said sum of Eight Hundred Dollars ($800) portion of the said indebtedness so extended, and interest thereon as evidenced by their guaranty as to the payment of the said sum of $800 and interest thereon, and covering this extension agreement;
    “Now, Therefore, this Agreement Witnesseth, that in consideration of the premises, and of the sum of one dollar in hand paid to the said Sophie Lowenthal by the legal owner and holder of the said note, receipt of which is hereby acknowledged, and of the said separate undertaking on the part of the said Leo B. Lowenthal and Sidney Lowenthal, and at the request of the said Lowenthals, and each of them, it is agreed that the said principal sum, represented by the said principal note of $2500 is this day renewed and extended by the legal holder of said note and indebtedness as follows : Eight hundred dollars thereof for the period of three years from and after the said 14th day of December, A. D. 1904, and the remainder of the said amount, seventeen hundred dollars, for the period of five years from and after the 14th day of December, A. D. 1904, with interest on the said deferred payments at the rate of six per cent (6%) per annum, payable half yearly, to-wit: on the 14th day of June and December in each year hereafter, as evidenced by ten (10) interest notes, or coupons, the first six of which are for the sum of $75 each, _and the last four for the sum of $51 each, all of even date herewith and all payable to the order of the said Sophie Lowenthal, and by her duly executed, endorsed and delivered, it being expressly agreed betwen the parties hereto that all of the covenants and agreements of the original trust deed, and of the notes hereby secured and hereinbefore mentioned, except as herein modified, are hereby expressly renewed, adopted and incorporated as a part hereof, the same as though set out in full herein.

      “The consent of the legal holder of the said notes and indebtedness to this agreement is evidenced by the acceptance of the said interest coupons and the said guaranty of the said Leo. B. Lowenthal and Sidney Lowenthal.
    “Witness the hand and seal of the said Sophie Lowenthal on this 14th day of December, A. D. 1904.
    (Signed) Mrs. Sophie X. Lowenthal (Seal).
    Witnesses to signature of said Sophie Lowenthal:
    (Signed) E. C. Morse..
    (Signed) F. M. Lowe.
    Chicago, Ill., December 14, ’04.
    “In consideration of the above and foregoing Extension Agreement, and of one dollar to each of us in hand paid by the legal holder of the note therein referred to, the receipt of which is acknowledged, and of other good and valuable consideration to each of us passing, the receipt of which is also acknowledged, we and each of us do hereby guarantee the payment of eight hundred dollars ($800), and interest thereon of the amount mentioned in the above and foregoing extension agreement, the payment of which said sum of eight hundred dollars ($800*) of the amount mentioned in the above and foregoing extension agreement was to be extended under the terms and provisions of the said trust deed and indebtedness, and the extension agreement, for the period of three years from and after the 14th day of December, A. D. 1904.
    Witness our hands and seals.
    (Signed) Sidney S. Lowenthal. (Seal).
    (Signed) Leo B. Lowenthal. (Seal).”
    At the trial plaintiff introduced said instrument and guaranty and evidence that plaintiff was the owner of the promissory notes mentioned in said instrument, and that the interest falling due December, 1907, and thereafter had not been paid, and! rested. The defendant then offered to prove by Sidney Lowenthal that at the time he executed the guaranty he told Henry B. Baldwin, plaintiff’s attorney, that his co-defendant, Leo Lowenthal, had instructed him to say that he would not sign the guaranty; that Mr. Baldwin replied, “We will go ahead without him;” that Sophie Lowenthal then signed the extension agreement and Sidney Lowenthal signed the guaranty and the agreement and guaranty were then delivered to Mr. Baldwin ; that Leo Lowenthal did not sign said guaranty in the presence of either the said Sophie or Sidney Lowenthal. The defendants further offered to prove by said Leo B. Lowenthal that he told said Sophie and Sidney Lowenthal that he would not sign the guaranty and to so inform Mr. Baldwin; that two weeks after the guaranty was signed by said Sidney he, said Leo Lowenthal, signed the same at the request of Mr. Baldwin, and that he received no money or other consideration for signing said guaranty. The court excluded all of the evidence so offered and instructed the jury to find a verdict for the plaintiff. The jury returned a verdict for the plaintiff for $838.14, the plaintiff remitted $2 and the court overruled defendants’ motion for a new trial and entered judgment on the verdict for $836.14, to reverse which the defendants prosecute this writ of error.
    David G-. Einstein and Josiah Burnham, for plaintiffs in error.
    Henry R. Baldwin, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The contention of plaintiff in error, Leo B. Lowenthal, is that evidence that he did not sign the guaranty until two weeks after the extension agreement had been signed by Sophie Lowenthal and the guaranty by Sidney Lowenthal, and both instruments delivered to and accepted by the attorney of the plaintiff, tended to prove that as to said Leo B. Lowenthal the guaranty was without consideration, and that therefore the court erred in excluding such evidence. The extension contract signed by Sophie Lowenthal is referred to in the guaranty thereof executed by plaintiffs in error, and the two instruments are therefore to be read together. The extension agreement recites that, “Leo B. Lowenthal and Sidney Lowenthal also desire that the said extension be granted as stated in the preceding paragraph hereof, and, in consideration of the said extension, propose and agree with the said Sophie Lowenthal and with the legal owner and holder of the said note that they will be" bound for the payment of the said sum of eight hundred dollars ($800) portion of the said indebtedness so extended, and interest thereon as evidenced by their guaranty as to the payment of the said sum of $800 and interest thereon, and covering this extension agreement.” The consent of plaintiff to said extension agreement is shown by the following provision thereof: ‘ ‘ The consent of the legal holder of the said notes and indebtedness to this agreement is evidenced by the acceptance of the said interest coupons and the said guaranty of the said Leo. B. Lowenthal and Sidney Lowenthal.”

It is true as a general rule that the consideration which binds a guarantor or other surety must be ex-ecutory; but where the thing was done at the instance or request of the surety or guarantor, a past consideration binds him. Paul v. Stackhouse, 38 Pa. S. 302; Smith v. Molleson, 148 N. Y. 241; Brandt on Surety-ship and Guaranty, 3rd ed., sec. 23; Pitman on Principal and Surety, 40 Law Library, 57.

In Paul v. Stackhouse, supra, one loaned money to another on the promised security of a third person, taking a note from the borrower payable in one year, which, three days after the year had expired, was signed by the one who had promised to become surety on the note, and it was held that the money having been loaned at the request of the surety, the consideration for his promise, although past, was continuing and valuable, and that his signature to the note was a completion and full execution of the promise on that consideration.

A consideration which is executed, says Pitman in his treatise on Principal and Surety, 40 Law Library, 57, “is not sufficient to support a subsequent promise, unless indeed the act was done at the request of the party promising, for then the promise is not a naked one, but couples itself with the preceding request, and is therefore founded on a good consideration.”

The plaintiff agreed to extend the time of payment of the money mentioned in the extension agreement and guaranty at the request of plaintiffs in error, on the agreement of the debtor that plaintiffs in error would guarantee the payment thereof, and they executed the guaranty sued on, and we hold them both bound by their guaranty, although it may have been signed by Leo B. Lowenthal subsequent to its delivery to plaintiffs ’ attorney. The subsequent promise of Leo B. Lowenthal is to lie coupled with his preceding request, and is therefore founded on a good consideration.

We think the court did not err either in excluding the evidence offered by the defendants or in instructing the jury to find a verdict for the plaintiff, and the judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Samuel R. Hurford, Defendant in Error, v. Ida M. Rosie, Plaintiff in Error.
    Gen. No. 14,718.
    1. Municipal Court—when additional report unauthorised. Meld, that the additional report filed in this case designed as supplementary to the statement of facts previously signed by the judge, both instruments having been filed, was unauthorized. The manner and occasions when such an additional report may properly be signed and filed are fully set forth in the opinion.

      2. Municipal Court—what essential to review of fourth class case. To authorize such review, the trial judge must sign and place on file in the case “either a correct statement of facts appearing on the trial” or a “correct stenographic report of the proceedings at the trial.” When neither of these alternative provisions is observed, and the document filed is not such as will enable the Appellate Court to ascertain whether the judgment is contrary to the law and the evidence or resulted from substantial errors of the court, judgment Will be affirmed.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Mancha Bbuggemeyeb, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    John 0. Wilson, for plaintiff in error.
    James Linden, for defendant in error; E. J. Mc-Ardle, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of forcible detainer by defendant in error against plaintiff in error a verdict for the plaintiff was directed and returned by the jury. May 9, 1908, judgment was entered on the verdict. June 8 an order was entered extending the time for filing “the bill of exceptions” to June 13. June 13 an instrument entitled “Statement of Facts” was presented to the trial judge, and the fact of such presentation on said date noted thereon by him over his signature. June 15, 1908, the same was signed by the trial judge, and on the same day was filed. A motion by defendant in error to strike said instrument from the transcript of the record filed in this court was reserved to the hearing.

• November 12, 1908', there was filed in this court a certified transcript of an “order together with a certain original additional report” in said cause. The order set forth in said transcript was entered November 5,1908, and denies each of plaintiff’s motions then made, one of which was to amend the said statement signed and filed June 15. Said transcript also contains a certificate signed by the trial judge November 5,1908, of the proceedings on the hearing of said motion, and the evidence introduced in support thereof, which states that the court held that he “had no jurisdiction or power at this time to set aside or vary, alter or change said orders or to strike from record, or correct errors in said statement of facts filed June 15, 1908, on the ground that while the court had a distinct recollection of said trial and of said contract, and the evidence offered in the trial, and while said statement evidently was erroneous, he had no memoranda by which he could correct said statement, and thereupon denied each of said motions.”

On the same day the trial judge signed another instrument entitled, “Additional report requested by the plaintiff,” certified to contain, “all the testimony offered or received on the trial,” etc., which instrument was filed on said day and is the instrument contained in the additional transcript filed in this court November 12. Plaintiff in error moved in this court to strike from the record said additional report, and December 14 his motion was denied. No order was entered at any time extending the time within which the plaintiff might file an additional report.

Clause 6 of section ,23 of the Municipal Court Act contains the following provision:

“Upon application made at any time within thirty (30) days after the entry of any final order or judgment, or within such further time as may, upon application therefor within said thirty days, lie allowed by the court, it shall be the duty of the judge by whom such final order or judgment was entered, to sign and place on file in the case in which the same was entered, if so requested by either of the parties to the suit, either a correct statement, to be prepared by the party requesting the signing of the same, of the facts appearing upon the trial thereof, and of all questions of law involved in such case, and the decisions of the court upon such questions of law, or, if such party shall so elect, a correct stenographic report of the proceedings at the trial, and a correct statement of such other proceedings in the case as such party may desire to have reviewed by the Supreme Court or the Appellate Court, omitting therefrom, with the approval of the judge, so much of the arguments of counsel and of the other proceedings, other than the evidence and rulings of the court with respect thereto, and the charge of the court, as the judge may deem unnecessary for the presentation to the Supreme Court or the Appellate Court of the merits of the case: Provided, however, that the opposite party may, if he so elect, cause the parts so omitted to be signed by the judge as an additional report, and cause the same to be certified by the clerk and filed in the Supreme Court or Appellate Court, as the case may be, as a part of the record to be considered upon such writ of error.”

■ This clause only authorizes an “additional report” in a case where a “stenographic report of the proceedings on the trial” has been prepared1 by one party and signed by the trial judge, from which, “with the approval of the judge,” certain proceedings “other than the evidence and rulings of the court in respect thereto,” etc., have been omitted. In such case the adverse party may cause “the parts so omitted to be signed by the judge as an additional report.” The instrument signed and filed June 15> entitled “Statement of Facts,” does not purport to be a “stenographic report.” It contains only four pages. The “Additional Report” contains fifty-seven pages of testimony and several pages of exhibits. The “Statement of Facts” is certified to contain all the “evidence offered on the hearing of the cause,” and the “Additional Report” is certified to contain “all the testimony offered or received on the trial.” It does not appear from said “Statement of Facts” or from any order made in the cause that anything was omitted therefrom, “with the approval of the judge, ’ ’ nor does the ‘ ‘ Additional Report” purport to contain anything that was omitted from the “Statement of Facts,” “with the approval of the judge.”

The instrument designated an “Additional Report,” signed November 5, cannot be held an “Additional Report” within the meaning of the statute, first, because the “Statement of Facts” signed and filed June 15 does not purport to be “a correct stenographic report of the proceedings on the trial,” etc., and it is only where such a report is signed by the judge that an “Additional Report” may be signed by him; second, because it does not appear either from said “Statement of Facts” or from the common law record that anything whs omitted from such “Statement of Facts,” “with the approval of the judge,” and the “Additional Report” does not purport to set out anything which was omitted from such “Statement of Facts,” “with the approval of the judge,” and it is only where some part of the proceedings on the trial are omitted “with the approval of the judge” that he is authorized to sign an additional report; third, the statute only authorizes the omission from a “stenographic report,” “with the approval of the judge” of “proceedings other than the evidence and the rulings of the court with respect thereto and the charge of the court,” and the “Additional Report” only purports to set out the evidence and the rulings of the court in respect thereto; fourth, because the time for filing a “Bill of Exceptions” expired, at the latest, June 15, there was no order giving the plaintiff time to file an additional report after that time, the “Additional Report” was not signed until November 5, and the “Additional Report” must be signed within the time allowed for the signing the original report, or within such time as the court may, by order entered before the time for signing the original report has expired, grant for the signing the additional report. ■

Independent of the provisions of the Municipal Court Act the trial judge had no authority on November 5 to sign the “Additional Beport” of a cause tried May 9. It appears affirmatively from his certificate “that he had no memoranda by which he could correct said statement,” (the statement of facts). He properly held that without such memoranda he could not correct the statement. But without such memoranda he was without authority to sign a new report of the proceedings and evidence on the trial.

We think that the motion of plaintiff in error to strike from the transcript filed in the cause November 12, 1908, the “Original Additional Beport” filed in the Municipal Court November 5, 1908, should have been allowed. The order entered December 12, 1908, denying said motion will be vacated and the motion will be allowed.

The instrument signed June 15 and designated a “Statement of Facts” begins with the statement that there was evidence on the part of the plaintiff that on a certain day plaintiff and one John D. Bosie entered into a contract in writing, which contained certain provisions which are set out. The instrument is not set out, nor is it stated that it was admitted in evidence. It then states that the evidence on the part of the plaintiff showed that certain payments, and none other, had been made on the contract; that it appeared from the evidence that John D. Bosie assigned said contract to defendant, and that plaintiff assented thereto; that defendant was in possession of said premises under said contract, and that a demand on her by plaintiff for possession was served on a certain day, and the same is set out; that on behalf of the defendant it appeared that plaintiff executed a certain deed to said premises, purporting to convey the same to her, and that the defendant executed certain promissory notes, describing them. Then follow certain offers of proof by defendant, which proofs were excluded by the court.

The instrument does not purport to he a “correct statement of the facts appearing on the trial, and of all questions of law involved therein.;” it is not certified to be such “correct statement,” and its contents show that it is not a correct statement of facts.

The instrument is not and does not purport to be, “A correct stenographic report of the proceedings on the trial. ’ ’ While it is certified that the evidence therein set forth “on the evidence offered on the hearing of the cause,” the instrument itself does not purport to set out the evidence, and cannot, therefore, be regarded as in substance, “A stenographic report of the proceedings on the trial,” or a substantial equivalent therefor.

The statute prescribes the condition for the review by this court of a judgment of the Municipal Court in cases of the fourth class. To authorize such review, the trial judge must sign and place on file in the case, either “a correct statement of the facts appearing on the trial,” or a “correct stenographic report of the proceedings at the trial.” Clause seven of said section 23 provides that, “No order or judgment sought to be reviewed shall be reversed unless the Supreme Court or Appellate Court, as the case may be, shall be satisfied from said statement or stenographic report, or reports, signed by said judge, that such order or judgment is contrary to law .and the evidence, or that such order and judgment resulted from substantial errors, ’ ’ etc. Under this provision we can look only into such statement or stenographic report as the act provides for and requires to ascertain whether the judgment is contrary to the law and evidence, or resulted from substantial errors of the court, and it follows, that unless there is in the record such statement or stenographic report, the judgment must be affirmed. In this record there is no such statement or stenographic report as the statute provides for and requires, and the judgment must therefore be affirmed.

The order of this court of December 14, 1908, denying the motion of plaintiff in error to strike from the additional transcript filed November 12,1908, the “Additional Report,” signed November 5, 1908, will be vacated and said motion will be allowed; the judgment of the Municipal Court will be affirmed, but neither the costs of the transcript filed November 12,1908, nor of the abstract thereof, will be taxed against plaintiff in error.

Affirmed.


author: Mr. Justice Freeman

text:
    Albert Fuchs, Defendant in Error, v. Henry Koropp et al., Plaintiffs in Error.
    Gen. No. 14,652.
    Landloed and tenant—what not part of demised premises. Held, under the terms of the lease in question in this case and under the evidence, that a barn and the privilege of access to an alley through the back door of a greenhouse were not included in “appurtenances” and that the removal of such barn and the, exclusion of such privilege of access amounted to neither a total nor partial eviction which would defeat the recovery of rent.
    Forcible detainer. Error to Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Statement by the Court. This is an action in forcible detainer brought by defendant in error, herein called plaintiff, against the plaintiffs in error, herein called defendants, to recover possession, because of non-payment of rent, of certain premises leased to defendants in June, 1905. The defendants admit nonpayment of rent after the month of February, 1908, and refusal to pay the rent subsequently due under the lease, claiming that they have been evicted from a substantial part of the demised premises and were not liable for rent until restored to full possession of the premises in dispute.
    The lease dated June 22, 1905, conveyed premises described as follows:
    “The green houses, palm house and store as they are today, together with all appurtenances situated on Lots 4 and 5 in Kerfoot’s Subdivision of part of the northeast quarter of Section 20, Township 40 North, Range 14 East of the third principal meridian, for the term of five years beginning the first day of July, 1905, and ending the 30th day of June, 1910, at a monthly rental of sixty-five dollars for the first three months and seventy dollars for the remaining fifty-seven months of said term. ’ ’
    There are other provisions not now material. In addition to the greenhouses, palm house and store mentioned in the description of the demised premises there.was a wooden building with a shed or sheds which had been used previously by the lessor as a stable and as a wagon and potting shed, in which he had kept among other things a horse and wagon which were sold to the defendant Koropp by the plaintiff and conveyed by a bill of sale of the same date as the lease. These buildings, referred to hereinafter as the barn, were about fifty feet south of the premises specifically described in the lease. On the day after the date of the lease the defendant Koropp took possession of the leased premises and also occupied, without objection from the lessor, the barn in controversy. There was no interference with defendant’s use of this barn for some months, until a contractor putting up a building for the plaintiff began tearing down the barn. The defendant objected to tearing it away, claiming that it was included as an appurtenance in the premises leased to him. The barn was however taken away and the plaintiff erected a large apartment building in part over the ground formerly occupied by the barn. The bam was not the only structure on said lots four and five at the time the lease was made. There was a residence occupied at the time and also “an old shack” in the rear occupied by a tenant in the employ of the plaintiff. It is not claimed that these last mentioned structures were included as appurtenances or otherwise in the lease.
    In January, 1908, the defendant Koropp assigned the lease to the defendant Illingworth. The Municipal Court entered judgment in favor of the plaintiff for possession of the premises, from which the defendants prosecute this writ of error.
    George W. Hess, for plaintiffs in error.
    Campe & Koebel, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of the defendant that the barn referred to was a part of the leased premises and that the tailing possession of it and removing it constituted an eviction of the defendant from a substantial part thereof. It is further claimed that the act of the plaintiff about the time the lease was made, in barring egress from a rear door of the greenhouse included in the premises described in the lease, from which door a cement walk then extended to an alley in the rear of the lots mentioned in the lease, thus excluding the defendant from access to the alley, amounted to a partial eviction.

The lease in question demised “the greenhouses, palm house and store as they are today, together with all appurtenances, situated on Lots 4 and 5,” and it is claimed that the barn and the privileges of access to the alley through a back door of the greenhouse were included in these ‘ ‘ appurtenances. ’ ’ Whether they were such appurtenances or not is a question of fact. It appears from the evidence that the plaintiff has erected a large apartment building which covers the rear 75 feet of lots 4 and 5, upon the front part of which lots are the demised premises, and that said building also covers the site of the barn. It is admitted by the defendant Koropp in his testimony that “when we made the lease Mr. Fuchs told me he was going to put a big apartment building there.” He states, however, that he did not know where the building was to be placed^ although he knew one was to be put “on the corner here,” but did not know where the other was to be. If he considered the barn in his rear and access to the alley as appurtenances under his lease, it is singular that he did not seek definite information. He occupied the premises and paid the rent provided for by the lease for more than two years after the plaintiff took away the barn in controversy and barred egress from the back door of the greenhouse, without making any.objection apparently during that time, and until after expensive buildings had been erected on the premises where the barn originally stood. It does not appear therefore that the barn was at all necessary to the prosecution of the defendant’s business upon the premises described in the lease.. It was used by him at first for a few weeks with plaintiff’s apparent consent to keep his horse and wagon in, as the plaintiff had done before him when carrying on business in the greenhouses that then stood on the adjacent grounds. The defendant Koropp testifies that plaintiff told him when the lease was made the barn was included, that “the barn went with it and I could use the whole place until he put up the building.” He knew therefore that the proposed building would interfere with his use of a part of the “place.” There is testimony tending to show that the barn was only “partly on lot 5, with the lowest part of it, the north line of it, about three or four feet, the rest of it on lot 6.” It is said this is disputed by the testimony of a mason contractor, but his testimony set forth in the abstract does not so indicate. The lease does not purport to demise any part of lot 6 nor any struotures that might be on it. It is rather a violent presumption that the “appurtenances” of the premises described in this lease included adjoining land not therein referred to.

The plaintiff did not lease to the defendant all the premises which he had used in the business formerly conducted by him on part of the leased premises before he sold out to the defendant Koropp. Plaintiff’s business had been conducted in a “very large greenhouse” covering “several lots 4, 5, 6 and 7,” and he removed this large greenhouse and other buildings before the lease in question was made. It is not possible therefore to reach the intention of the parties as to this barn “by showing a previous holding of the premises and what the plaintiff enjoyed under it,” as in Thomas v. Wiggers, 41 Ill. 470, cited by defendant’s attorneys. While it is generally true that a demise of premises for residence purposes, describing them by street and number, would probably include as appurtenances a barn and stables on the rear of the lot ->n which the residence stood, the same rule would not necessarily apply to business property, especially where as in the case at bar, the barn and shed were apparently only partly on the land described in the lease. We think the rule here applicable is correctly stated in Patterson v. Graham, 140 Ill. 531, viz.: “that by construction the lease carried so much of the lot on which the building stood as was necessary to the complete enjoyment of the building for the purpose for which it was rented.” Applying this rule, it is we think apparent that the barn and buildings in question were not necessary to the complete enjoyment of the leased premises. The defendants have carried on their business there for years since the barn was removed without complaint and with no claim based on evidence that their enjoyment of the premises described in the lease has not been complete, notwithstanding the taking away of the barn and the shutting off of access to the alley by the rear door of the greenhouse and later by the erection of the building now covering the rear of the lots.

We are of opinion therefore for reasons indicated that the buildings and privileges in controversy were not appurtenances of the leased premises and were not within the meaning of that term as used in the lease. It follows there was no eviction and the judgment of the Municipal Court will be affirmed.

Affirmed.


author: ' Mr. Justice Freeman

text:
    H. H. Strohm, Defendant in Error, v. Alfred Holzman Company et al., Plaintiffs in Error.
    Gen. No. 14,674.
    Actions and defenses—when proof of joint liability need not be made. In the absence of pleas or affidavit by the defendants denying joint liability, no obligation arises upon the plaintiff in the first instance to prove such joint liability.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Feeeman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Irwin R-. Hazen, for plaintiffs in error.
    Otto G-. Ryden, for defendant in error; Hoyne, 0 ’Connor & Irwin, of counsel.
   ' Mr. Justice Freeman

delivered the opinion of the court.

This is a suit brought to recover for certain “booklets” alleged to have been sold by the defendant in error, herein called plaintiff, to plaintiffs in error, herein called defendants, upon an order as follows:

“Order.

Sept. 11th, 1907. Alfred Holzman Co.

340 Dearborn. St., H. H. Strohm.

Chicago, Ill. City.

25,000 booklets, juvenile series, 5 different styles at $25.00 per 1,000—net.

Alfred Holzman Co.,

per A. Holzman.”

It appears that 16,500 of these booklets were delivered on or before November 25th following and upon November 26th the remaining 8,500 booklets were offered to Alfred Holzman and were refused on the alleged ground they were not according to specifications. At the time the order referred to was given the defendant Alfred Holzman was trading under the name of Alfred Holzman Company and was at the same time, it is claimed, president of the corporation Alfred Holzman Company. It is said that both he and the corporation were carrying on the same kind of business at the same place in the same name. The suit was brought against the corporation and Alfred Holzman individually. Evidence was introduced by the defendants for the purpose of showing that the booklets were defective. The issues were submitted to a jury, which found in favor of the plaintiff for the- amount claimed.

The defendants seek to set aside the judgment entered by the Municipal Court on the verdict upon the alleged ground that there is no evidence of the joint liability of Alfred Holzman Company, the corporation, and1 Alfred Holzman trading under the same name. Both defendants were served with summons and both contested plaintiff’s right to recover, but so far as we discover did not claim at the trial and offered no evidence to prove that they were not jointly liable, if liable at all. There was no plea nor affidavit filed in their behalf denying joint liability. Under such circumstances the plaintiff was not obliged to offer evidence in the first instance to prove that the defendants were jointly liable. Schwartz v. Southerland, 51 Ill. App. 175. Readey v. Schwanzenbach, 46 Ill. App. 348; Moore v. Francis, 136 Ill. App. 19.

It is urged in behalf of defendants, however, that there can be no recovery against both of them even though the issue of joint liability was not raised by plea or otherwise, since, as it is claimed, the evidence shows the contract sued upon was not joint but several. It is asserted by defendants’ counsel that when the contract sued on was signed the corporation Alfred Holzman Company was not in existence. On the other hand, plaintiff’s attorneys state just as positively that when Alfred Holzman gave the order he was president of the corporation “which was engaged in the same business as Alfred Holzman, the individual, at the same time and at the same place and under exactly the same name.” The vice-president of the corporation testified that he had held that office for two years and a half. This would tend to show that the corporation was in business at least that length of time. The original order for the goods in controversy was signed “Alfred Holzman Co. per A. Holzman.” So far as appears this signature might represent either the corporation or the individual trading in that name. The order, for aught that appears on its face, may have been given for either or both of them. There is evidence tending to show that it was given for both. It is claimed by the defendants that the goods were delivered to Holzman, the individual. There is in evidence a letter addressed to the Company which printed the booklets for the plaintiff, which letter is signed “Alfred Holzman Company.” In it the writer uses the term “we” throughout the letter, and states that the booklets in question are not what the plaintiff “sold us” and that plaintiff “misrepresented these booklets to us.” If the sale was to the individual Holzman alone, there was no apparent necessity for referring to him as “we” and “us” in that communication. Furthermore the vice-president of the corporation Alfred Holzman Company testifies that he .received the first two packages of the booklets which plaintiff brought or sent to the office, and that he called Mr! Holzman’s attention to them, Tout that the latter was very busy at the time “and he put me off, telling me not to bother him, that he was busy and had not time to look at them.” He states that “Mr. Strohom left them there.” This would tend to justify an inference that they were left in the hands of a representative of the corporation. It appears also that when plaintiff’s counsel was proceeding apparently to prove the number of booklets delivered, the counsel for defendants interposed with the statement that “the defendants will admit they received packages purporting to contain these numbers, but we don’t know the number. We cannot admit that, because we haven’t used them;” and further “that there were packages delivered there to these defendants,” and receipts for them were given at the time. The defendants did not attempt to prove that if liable at all they were not jointly liable, and we are of opinion there was evidence which fully justifies the verdict against both of them.

For reasons indicated the judgment of the Municipal Court must be affirmed.

Affirmed.


text:
    B. A. L. Thomson, Defendant in Error, v. Charles E. Gill et al., Plaintiffs in Error.
    Gen. Nos. 14,683, 14,692.
    Consolidated for Hearing.
    Justice of the peace—what essential to confer jurisdiction of appeal from. In order that the Circuit Court may acquire jurisdiction of an appeal from a judgment of a justice of the peace, it is essential that a transcript in due form, signed by the justice, shall be filed in such Circuit Court.

      Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 22, 1909.
    Whitman & Horner, for plaintiffs in error.
    George I. Haight and Alexander Collins, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit originally begun before a justice of the peace who rendered judgment in favor of the defendant in error, hereinafter referred to as plaintiff. From this judgment the plaintiffs in error, hereinafter called defendants, appealed to the Circuit Court of Cook county. Upon the hearing in the Circuit Court, that court January 28, 1908, dismissed the appeal and gave judgment against defendants awarding $20- as damages for delay and costs with procedendo to the Municipal Court. From that judgment this writ of error is prosecuted, and by a separate writ of error defendants bring up an order of the Circuit Court entered March 7, 1908, denying a motion to vacate the judgment of January 28th preceding. The causes have been consolidated for hearing and are presented here upon one set of briefs.

It appears that on the 23rd of February, 1905, the plaintiffs undertook to perfect an appeal from the judgment of the justice and filed in the office of the clerk of the Circuit Court an appeal bond, the summons issued by the justice and what purported to be a transcript of the proceedings before the justice. It is not necessary to recite the subsequent proceedings in the cause, since it appears from the record before us that the document filed as a transcript of the proceedings before the justice is not signed by the justice, and is not a transcript such as the law requires to be filed in the Circuit Court, without which the Circuit Court was without jurisdiction of the cause. This has been decided frequently. In Demilly v. Grosrenaud, 201 Ill. 272-274, the court says: “Proceedings in the Circuit Court are based on the transcript, and it has uniformly been held that without a transcript of the proceedings before the justice, the Circuit Court has no jurisdiction of the subject-matter.” In the case at bar, as in that case, “there was no transcript. There was a paper on file which indicated that there had been some proceedings before a justice of the peace without the name of any party to identify the litigation and without any certificate in compliance with the law. * * * The Circuit Court was wanting in jurisdiction of the subject-matter and that was an objection which could not be waived.” There are a number of other cases of like import, some of which are referred to in the case above cited. In Smith v. McCandless, 101 Ill. App. 143-144, an appeal was taken to the County Court and the court said: “It was error to dismiss the appeal and award a procedendo. There was no transcript of the proceedings in the County Court. Without it the court had no jurisdiction of the subject-matter, and no procedendo could issue, ’ ’ citing cases.

It is apparently contended in behalf of the plaintiff that the transcript in question was originally a proper transcript, but that the certificate was torn off and the transcript mutilated. There is no evidence in the record supporting any such contention, and it is the record which governs.

The conclusion indicated makes it unnecessary to consider other questions. The judgment of the Circuit Court in case 14683 and the order appealed from in 14692 will each be reversed and the cause remanded.

Judgment and order reversed and catuse remanded.


text:
    Erick L. Sandberg, Plaintiff in Error, v. Brinks Chicago City Express Company, Defendant in Error.
    Gen. No. 14,711
    1. Evidence—when question leading as assuming fact. A question as follows is leading as assuming the existence of a fact in dispute: “And at the same time you settled your claim for damages with the Union Traction Company for $75, didn’t you?”
    2. Appeals and errors—when errors will not reverse. If substantial justice has been done between the parties, a judgment will not be reversed even where there may have been errors committed at the trial in admitting or excluding evidence or in the instructions.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 22, 1909.
    Statement by the Court. This is an action to recover for personal injuries alleged to have been suffered by the plaintiff by reason of the defendant’s negligence.
    The plaintiff was in the employ of the Chicago Union Traction Company at the time of the accident. At that time the motive power by which a street railway was operated by the said Traction Company on Madison street, Chicago, was furnished by an underground cable. At a point on West Madison street near Fortieth avenue the Traction Company had constructed a vault or underground room extending under both the east-bound and parallel west-bound tracks of the railway. This room was about 65 feet in length, 13 feet wide and 14 feet deep. Access to it was had through a manhole covered by a wooden trapdoor situated in the middle of the space separating the east and west-bound tracks. This trap door was about 29 inches in length north and south and 27 inches in width east and west. It opened on hinges placed at its east end. The north side of the trap door when shut down was 26 inches south of the south rail of the west-bound track, which track was the northern of the two parallel tracks. The vault or underground room being fourteen feet in depth, the trap door above was reached by a stairway extending up from the floor of the vault to a platform and thence up toward the east side of the trap door. In this vault the cables, by which the cars were operated, were received on what are called “shives,” upon which the cables were turned or reversed, running thence back in the direction from which they entered. It was the duty of the plaintiff to watch these cables in order to discover and repair any broken strands and also to oil the “shives.”
    About 8:30 a. m. the day of the accident plaintiff started to go up out of the vault for the purpose, it is said, of oiling a “shive” in the street. He testifies that he ascended the stairway in the vault to a point just under the trap door, that he raised and lowered the trap door four or five times, raised his head and looked westward along the surface of the street, and then holding the trap door open and at right angles with the surface he ascended the stairway until he could look eastward over the upper edge of the door. As he did so he saw the defendant’s team approaching from the east, the wheels of the wagon in the rails of the west-bound or northerly of the two tracks, the horses’ heads about five or six feet away from him and the team approaching at a slow trot. The south horse of the team was travelling partly at least south of the south rail of the north track, between that track and the manhole where plaintiff was standing.
    Plaintiff testifies that when the team was about half way by the manhole, the driver swung his team to the southwest, causing both the front and rear wheels of the wagon to strike the trap door which plaintiff was still holding open and forcing the door down upon him, causing the injuries complained of.

      The issues were submitted to a jury which returned a verdict in favor of defendant. Judgment was entered accordingly and the plaintiff prosecutes this writ of error.
    Johnson & Molthrop, for plaintiff in error.
    Frank M. Cox and B. J. Fellingham, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is urged in behalf of plaintiff, that the trial court admitted improper evidence, erroneously instructed the jury, and that the verdict is against the weight of the evidence.

The evidence objected to is a part of the testimony of the plaintiff drawn out op the cross-examination. He was asked the question: “And at the same time you settled your claim for damages with the Union Traction Company for $75, didn’t you?” To this question the witness answered “Yes.” The purpose of this line of questions was, as stated by the defendant’s attorney, to lay a foundation for the contention that as a matter of law there had been a release of one joint tort-feasor, and that this released the defendants. The court permitted the testimony to go in subject to objection as a foundation upon which to base the argument of the question" of law, a ruling upon which was reserved, and also upon the ground that the evidence tended to show the plaintiff’s earning capacity after the accident. The objection to the question was we think well taken. The question assumed there had been a “settlement” and called for a conclusion of the witness instead of what was done and said at the time referred to. Subsequently, however, the court sustained objections to further questions on that line and held them immaterial except as above stated. Our attention is not called to any evidence tending to show any negligence of the Traction Company contributing to the proximate cause of the plaintiff’s injuries. In its absence the question of law referred to was not involved. We do not, however, regard the introduction of the testimony objected to as constituting reversible error. It had no reference to and no bearing on the accident itself, the manner in which it occurred, nor upon the determination of the real question at issue, namely, whether negligence of the defendants was responsible for the plaintiff’s injuries. It could not in our judgment have influenced the verdict upon that question.

Objection is made to certain instructions. One of these was to the effect that negligence of the Traction Company, if any there was, should be considered, as between the plaintiff and the defendants, the negligence of the plaintiff. There being no evidence tending to show that negligence of the Traction Company was in any way responsible for the injuries, the instruction should we think have been refused, but nevertheless we are at a loss to discover wherein it was injurious. We think it was also erroneous to submit to the jury whether the existence of the trap door at the place of the accident was lawful. Questions of law are for the court, not for the jury, and in the case at bar the question of law was not material.

The controlling question in this case, however, is not alone whether there was error in procedure, but whether or not the evidence would have justified the court in permitting a verdict in plaintiff’s favor to stand. If substantial justice has been done between the parties the judgment will not be reversed even where there may have been errors committed at the trial in admitting or excluding evidence or in the instructions. O’Fallon Coal Co. v. Laquet, 198 Ill. 125-129; Newkirk v. Cone, 18 Ill. 449-454; Burling v. I. C. R. R. Co., 85 Ill. 18-20; Horn v. Arnold Schwinn & Company, 150 Ill. App. 559.

We are of opinion after a careful examination of the evidence, that the plaintiff’s testimony considered by itself fails to sustain the contention that the injuries complained of were the result of defendant’s negligence. It is urged that when the plaintiff first looked east over the top of the trap door, the wheels of the approaching wagon were tracking in the west-bound track and had they remained there would have passed by without striking the trap door; that plaintiff was in a safe position and had a right to presume the driver of the wagon “in the ordinary exercise of his seeing faculties” would do nothing to cause him injury. At the time plaintiff’s head appeared' above the trap door the horses of the approaching team were five or six feet from him and approaching at a slow trot. He says that in a second or two the horses had reached and were half way past him, and it is argued that the driver had ample time to have observed the preliminary raising and lowering of the trap door and to see that plaintiff was standing in the manhole behind it with his head appearing just above it. It was not, however, a mere question of time. He might have had ample time to so observe without being negligent in failing to do so. It was held upon a former appeal (Sandberg v. Brinks, 126 Ill. App. 175-179) that the evidence was “not so clear that all reasonable minds would arrive” at the same conclusion; and therefore there were questions of fact for the consideration of the jury. In that case the trial court had directed a verdict for defendant. The issues have now been submitted to a jury and their finding is against plaintiff as to whether it was negligent on the part of the driver not to have seen the movements of the trap door and avoided turning his horses to the left, causing the wheels to strike against and upon the door behind which the plaintiff was standing. There is no evidence on the part of the plaintiff tending to show that the driver did' see either the preliminary or subsequent openings of the trap door, nor that in the exercise of due car© he should have seen them. The driver’s testimony is that he did not see such movements. It does not appear from the plaintiff’s evidence whether or not the trap door was in the line of the driver’s unobstructed vision at the time when the plaintiff moved or raised the door. Indeed it is a matter of mere inference based on no actual evidence whether the driver could have seen the movements of the trap door under the circumstances in time to avoid the accident.' To hold the driver guilty of negligence there must be actual evidence and not mere inferences unsupported by evidence. Plaintiff’s attorneys in their brief express the belief that the driver did not see plaintiff at all, because they say he was not “paying any attention as to where he was going, for the reason that as he testified on cross-examination, he was cutting across the east-bound track ahead of an approaching car.” Assuming that the driver did not see the plaintiff, the fact alone would furnish no evidence of negligence on his part, nor is it of itself evidence of negligence that his attention was given to directing his team in. the conditions • then existing and in a crowded city street. The evidence of two witnesses for the defendant—the driver and a passenger on the gripear ahead of the team—is to the effect that the driver of the wagon turned out to the southwest to get around cars ahead, which had stopped in front of him on the track. The only witness of the accident who testified in behalf of the plaintiff, other than the plaintiff, “did not see any part of the accident until the wagon had about passed over this trap' door,” when he saw the trap door “raised up some” and “the man kind of under it.”

For the reasons stated we are unable to agree with the plaintiff’s attorneys that the verdict “is so clearly against the weight of the evidence that it ought to be reversed.” We are on the other hand of the opinion that the plaintiff has failed to support by his own evidence the averments of his declaration charging the defendant with negligence causing the injuries complained of. The judgment of the Superior Court will therefore be affirmed.

Affirmed.