text:
    A. D. Fell, Administrator, Plaintiff in Error, v. Chicago Building & Special Construction Company and Oscar S. Eiger, Defendants in Error.
    Gen. No. 19,665.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed June 9, 1914.
    Statement of the Case.
    Action by A. D. Fell, administrator of the estate of Mathias 0. Fell, deceased, against Chicago Building & 'Special Construction Company and Oscar S. Eiger to recover for the death of deceased alleged to have been occasioned by the negligence of the defendants.
    A similar suit was also brought by the same plaintiff as administrator of the estate of Josephine M. Fell against the same defendants. (See Fell v. Chicago Building & Special Construction Co., p. 288, post.) The cases were tried together in the Circuit Court. In each of the cases there was a verdict for plaintiff— as administrator , of the estate of Josephine M. Fell in the sum of $7,500, and as administrator of the estate of Mathias 0. Fell in the sum of $8,500 against the defendant Building Company, upon each of which verdicts a judgment was rendered. There was also a verdict in each case by direction of the court in favor of defendant Eiger. From judgments for costs in the two cases in favor of Eiger, writs of error are prosecuted.
    Abstract of the Decision.
    1. Master and servant, § 856

      —rule as to determining whether builder is independent contractor. The question whether a building company is an independent contractor is to be determined by the court on its construction of the contract between the building company and the owner.
    2. Master and servant, § 856*—when building company is independent contractor. A building company, held to be an independent contractor where the contract provided that the company should provide all materials and perform all the work mentioned in the specifications and shown on the drawings prepared by an architect for the work complete on a two-story and basement building, the contract naming the architect as “superintendent of the work for the completion of the building,” and enumerating his duties with the usual provisions relationg thereto.
    3. Master and servant, § 866"—admissibility of evidence. In an action against a building contractor and the owner to recover for the death of a child caused by the falling of a terra cotta cornice, where plaintiff did not attempt to prove on the main case that there was any fault in the plans or specifications but relied wholly upon the doctrine or res ipsa loquitur, refusal to permit plaintiff to show on rebuttal, for the purpose of proving the owner’s liability that an employe or superintendent under the architect approved the plans adopted, held not error where no attempt was made to show that the change in plans was not made upon the written order of the architect as required by the contract, and the evidence did not tend to rebut anything brought out in defendants case.

      The death of the two children was caused by the falling of a terra cotta cornice on a building being constructed for the defendant Eiger by the defendant Building Company. That the accident was due to faulty construction was abundantly proved. The principal question presented by the writs of error is whether the trial judge correctly held that the Building Company was an independent contractor.
    Bither, Goff & Francis, for plaintiff in error.
    Adler & Lederer, for defendants in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    A. D. Fell, Administrator, Plaintiff in Error, v. Chicago Building & Special Construction Company and Oscar S. Eiger, Defendants in Error.
    Gen. No. 19,664.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed June 9, 1914.
    Statement of the Case.
    The facts in this case have been considered in the opinion filed in Fell v. Chicago Building & Special Construction Co., p. 286, ante, both cases having arisen out of the same accident. The decision in that case held controlling.
    Bither, Goff & Francis, for plaintiff in error.
    Adler & Lederer, for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

      See Illinois Notes Digest, Vols XX to XV, and Cumulative Quarterly, same topic and section number.


text:
    Columbia Insurance Company, Plaintiff in Error, v. Loeb’s Insurance Agency, Defendant in Error.
    Gen. No. 19,675.
    Abstract of the Decision.
    1. Insurance, § 63&emdash;when evidence insufficient to show "broker liable for premiums. In an action by an insurance company against á broker to recover premiums on policies delivered to it, where plaintiff claimed that defendant agreed to pay premiums thereon, held that the evidence was insufficient to establish such agreement or to show that defendant collected the premiums.
    2. Insurance, § 63*&emdash;when broker not liable for premiums. A broker who procures insurance for another is not liable for the premium unless he collects it.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed June 9, 1914.
    Rehearing denied June 23, 1914.
    Statement of tlie Case.
    Action by Columbia Insurance Company against Loeb’s Insurance Agency to recover premiums upon insurance policies issued by the plaintiff and delivered to defendant as a broker, which premiums, less a commission of fifteen per cent, allowed the defendant, it is alleged the defendant agreed to pay the plaintiff. To reverse a judgment entered on a finding in favor of defendant, plaintiff brings error.
    Kremer & Greenfield, for plaintiff in error.
    Newman, Poppenhusen & Stern, for defendant in error.

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, mwa topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.

3. Municipal Court op Chicago, § 26*—sufficiency of statement of facts. A statement of facts giving in narrative form what purports to be the testimony of the witnesses, held not such a statement as is contemplated by the statute.

4. Trial, § 295*—when filing of propositions of law may he refused. Refusal of propositions of law submitted by plaintiff after the finding and judgment were entered, held not error.


author: Mr. Presiding Justice Baker

text:
    J. J. McCormick, Defendant in Error, v. Louis Weber & Company, Plaintiff in Error.
    Gen. No. 19,422.
    1. Master and servant, § 872

      —when evidence insufficient to show a cause of action-for interference with plaintiff’s employment. In an action to recover damages for interference with plaintiff’s employment alleged to have resulted from defendant giving notice to plaintiff’s employer of an assignment to him of plaintiff’s wages, held, that the evidence was insufficient to show a cause of action, there being no evidence to show that plaintiff was discharged by reason of such notice nor to show that defendant had ever released its claim against plaintiff, and it appearing that defendant served said notice in good faith believing he had a valid claim against plaintiff.
    2. Malicious prosecution, § 4*—when action lies for malicious prosecution of a civil suit. In this State an action will not lie for malicious prosecution of a civil suit where there is no interference with person or property. «
    3. Damages, § 28*—when not allowed for mental distress or anxiety. In this State punitive damages may be recovered, but a plaintiff cannot recover for mental distress or anxiety not connected with physical injury.
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed June 15, 1914.
    Rehearing denied June 29, 1914.
    Bulkley, Gray & More, for plaintiff in error.
    Edward A. Zimmerman and Abram L. Myers, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Plaintiff, McCormick, bought of Louis Weber & Company, a corporation, in 1904,1905 and 1906, merchandise on the installment plan and to secure payment therefor executed several assignments of his wages. In December, 1907, plaintiff was in the employ of the Illinois Tunnel Company and the defendant gave notice to said company of such assignments. Plaintiff was notified by the Tunnel Company that he must have the matter straightened out before he could return to work. He spent considerable time in interviews with Johnson, the attorney of defendant, who at the end of three weeks withdrew the notice of assignment and plaintiff went back to his work. He testified that his wages during the time he was not at work would have amounted to fifty dollars or more.

November 16, 1911, plaintiff was in the employ of James A. Plew, and the defendant gave notice to Plew of the assignment by plaintiff to it of his wages. Plaintiff applied to defendant to waive or release the notice of the assignment of his wages, but the defendant refused to do so. He was not discharged by Plew and his pay was not withheld by Plew.

December 11,1911, plaintiff brought this suit, claiming that by reason of the acts and conduct of defendant he had lost a position where he was earning thirty-five dollars per week and since 1908 had to work at an average of twenty-four dollars a week; that he had suffered great trouble, annoyance, mental distress and anxiety to his damage one thousand dollars, etc.

There is no evidence tending to show that he was ever discharged or that he lost any position because of the acts or conduct of the defendant. He testified that he left the employ of the Tunnel Company about March, 1908, and that he was at the time of the trial in the employ of Plew. There is no evidence tending to show that the defendant ever cancelled or released its claim against the plaintiff. His testimony is that Johnson told tiim that he would “release his wages with the Tunnel Company,” but that is a very different thing from releasing defendant’s claim against the plaintiff. It clearly appears from the evidence that the defendant in good faith believed othat it had a valid claim against the plaintiff for a balance due from plaintiff for articles purchased by him or by his order. The distinction between this case and the case of London Guarantee & Accident Co. v. Horn, 206 Ill. 493, is that in that case the only motive moving the defendant, a third party, was a desire to injure the employe and benefit himself by compelling the latter to surrender an alleged cause of action for the satisfaction of which, in whole or in part, such third party was liable; while in this case the motive of the defendant was to collect from the plaintiff a sum of money alleged to be due from him by serving notices of the assignment by him of his wages to the defendant. No suit was brought or threatened against either of plaintiff’s employers. All that defendant did was to notify plaintiff’s employers that he had assigned his wages to it.

McCormick’s counsel cite and rely on the case of Lopes v. Connolly, 210 Mass. 487. In that case the defendant Connolly served on the employer of the plaintiff Lopes a notice of a supposed assignment by the plaintiff of his wages to the defendant, which in fact was made by a different person of the same name, and on being informed of the mistake unjustifiably refused to withdraw the notice and thereby caused the plaintiff’s discharge, and it was held that the defendant was liable to the plaintiff in an action of tort for the damages resulting from such unlawful interference with his employment.

In many of the States an action may be maintained for the malicious institution, without probable cause, of a civil action which has terminated in favor of the defendant,. although the process was by summons only and the defendant was not arrested or held to bail or his property attached. Cooley on Torts (3rd Ed.) 350.

It is laid down or assumed in all the cases where such an action is sustained that an action for the malicious prosecution of a civil suit is governed by the same principles as one for the malicious prosecution of a criminal action. That such an action may be maintained in Massachusetts clearly appears from the opinion in Allen v. Codman, 139 Mass. 136. That was an action for the malicious prosecution without probable cause of an action of ejectment; the judge ruled that there was probable cause for defendant’s action of ejectment, directed a verdict for defendant and the plaintiff alleged exceptions. In the Supreme Court it was said that the main question in the case was whether there was probable cause for the defendant’s suit in ejectment, and it was held on a review of the evidence that there was. It was also held that as defendant was advised by counsel that the action of ejectment could be maintained, if he believed the advice he had probable cause; that the failure of the ejectment suit was not of itself evidence of want of probable cause, and the exceptions were overruled. In this 'State an action will not lie for malicious prosecution of a civil suit when there is no interference with person or property. Smith v. Michigan Buggy Co., 175 Ill. 619.

In Massachusetts a statute provides that:

“Whoever -wilfully causes, or aids and abets in causing such wages for personal services as are exempt from attachment to be attached by the trustee process for the purpose of unlawfully hindering or delaying their payment to the person to whom they belong shall, on complaint of the person injured thereby or of the guardian or other person having the lawful custody of any such person who is incompetent to act, be punished by a fine of not more than $50 to the use of the person injured thereby.”

In this Stafe there is no similar statute.

In Massachusetts vindictive or punitive damages are never allowed, but damages are allowed for mental distress and anxiety. Burt v. Advertiser Newspaper Co., 154 Mass. 238; Markham v. Russell, 12 Allen 573.

In Lopes v. Connolly, supra, it was said, p. 495:

“The defendant’s persistent and wilful interference also subjected the plaintiff to the injustice and discouragement of having his earnings withheld, and to the perplexity of decision as to what course he must take not only to vindicate his rights, but to prevent the impending loss of his situation, and for this mental distress and anxiety reasonable compensation could be recovered.”

In this State punitive damages may be recovered, but a plaintiff cannot recover for mental distress or anxiety not connected with physical injury.

We think that this case is to be distinguished from the case of Lopes v. Connolly because of the difference in the decisions of the Supreme Courts of the two States on questions of law directly involved.

Our conclusion is that the evidence fails to show a cause of action in the plaintiff against the defendant, and that therefore the court erred in refusing to direct a verdict for the defendant, and for that error the judgment is reversed.

Reversed.


text:
    G. A. Buresh, Defendant in Error, v. E. M. Seymour, Plaintiff in Error.
    Gen. No. 19,635.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Fbatjd, § 26

      —when evidence insufficient to prove false assertion concerning income of a business. In an action by an attorney to recover money paid under a partnership agreement to his co-partner for a half interest in his business, on the ground that defendant made misrepresentations as to the income of the business, held that a verdict for plaintiff could not be sustained, where the evidence of plaintiff tended to show that the receipts of the firm after plaintiff became a partner were less than the amount represented but there was no evidence to show what the receipts were before he became a partner.

      Error to the Municipal Court of Chicago; the Hon. Joseph Sabath, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed June 15, 1914.
    Rehearing denied and opinion modified June 29, 1914.
    Statement of the Case.
    Action by Gr. A. Bnresh against E. M. Seymour in tort to recover money paid to defendant under a written agreement whereby plaintiff and defendant became equal partners in the practice of law. Defendant had been practicing law for fifteen years and plaintiff having no experience paid" defendant $750 for a half interest in his business. Plaintiff claimed the right to recover the sum so paid on the ground that defendant made misrepresentations as to the amount of his business. The jury returned a verdict of guilty and for $333 damages. To reverse a judgment entered on the verdict, defendant ^brings error.
    E. M. Seymour, pro se and William H. Fish, for plaintiff in error.
    Henry L. Bluim and Frank B. Teed, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baker

delivered the opinion of the court.

2. Fraud, § 113*—proof by circumstantial evidence. Fraud may be proved by circumstantial evidence as well as direct evidence; but there must be shown by a preponderance of the evidence inculpatory facts from which a legitimate inference of fraudulent intent may be drawn.

3. Fraud, § 26*—when misrepresentations concerning a business not actionable. Misrepresentations as to value, probable future business or earnings are not actionable.


author: Mr. Justice Brown

text:
    Stanislaus Kulik, Plaintiff in Error, v. Francis W. Adams, trading as Art Bedstead Company, Defendant in Error.
    Gen. No. 19,227.
    1. Master and servant, § 584

      —doctrine of res ipsa loquitur. Doctrine of res ipsa loquitur is not applicable to master and servant cases.
    2. Master and servant, § 763*—when direction of verdict for defendant not improper. In an action for personal injuries resulting from an explosion of a chill into which plaintiff as an employe of defendant was pouring molten metal, held that the direction of a verdict for defendant at the close of all the evidence was not error, where it appeared from the evidence that the explosion might have resulted from one or several causes other than a defect in the chill, and a recovery for plaintiff could only be possible by the inadmissible process of basing one presumption on another.
    Error to the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.

      Goodman Wallem and Johnson, Belasco & McCabe, for plaintiff in error.
    Ryan & Condon, for defendant in error; Irvin I. Livingston, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal by a plaintiff in a personal injury suit from a judgment of nil capiat and for costs against him by the Circuit Court of Cook County, rendered on the instructed verdict of a jury. The plaintiff, Stanislaus Kulik, had sued the defendant, Francis W. Adams, doing business as the Art Bedstead Company, for personal injuries resulting from an “explosion” or “blowing out” of a “chill” into which plaintiff, as a workman in the employ of Adams, was pouring molten iron.

After all the evidence for the plaintiff bad been heard, the defendant moved for peremptory instruction, but the motion was denied.

After the conclusion of all the evidence he renewed his motion and it was allowed. The jury were instructed to find the defendant not guilty and on this verdict the judgment appealed from was entered.

There are several assignments of error, but the only real question in the case is whether this peremptory instruction should have been given or the case allowed to go to the jury on the evidence.

We do not think the matter altogether free from doubt, but after thoroughly considering the evidence we are sufficiently inclined to the opinion that the trial judge was right to prevent our interference "with the judgment.

The argument for the insufficiency of the evidence to make a question for the jury is not unfairly stated in the printed argument for the defendant when it is said that since'the doctrine of res ipsa loquitur is definitely eliminated by the rulings of the court of last resort in cases of a servant against a master, the recovery of the plaintiff could only be possible by the inadmissible process of basing one presumption on another. The plaintiff, indeed, vigorously contends to the contrary, but he does not convince us. The existence of a rule exempting master and servant cases from the operation of the general principles of the doctrine expressed by “res ipsa loquitur” has been doubted and a logical reason for it is difficult often to see; but we are unable to escape from the conviction that it is the settled law of this State.

The rule declaring the exception has indeed been differently expressed, and it is only said to be “perhaps true” in Diamond Glue Co. v. Wietzychowski, 227 Ill. 338; but that case and many others announce it in effect. And this quotation from the opinion in the Diamond Glue Company case, supra, is sufficient for our inquiry here.

“The mere happening of the accident raises no presumption that it was caused by the negligence of the master. (Spring Valley Coal Co. v. Buzis, 213 Ill. 341.) It may have no tendency to show that the injury was the result of negligence on the part of the master, or it may have resulted from one of the risks which the servant assumed, or have occurred through the negligence of fellow-servants. In order to recover, the servant must go farther and aver and prove that the appliance was defective; that the master had notice thereof or knowledge, or ought to have had; that the servant did not know of the defect and had not equal means of knowing with the master, and that the defect was the proximate cause of the injury. (Chicago and Eastern Illinois R. R. Co. v. Heerey, 203 Ill. 492.)”

There was, in our opinion, no sufficient evidence in this case that there was any defect in the chill. There was testimony that if the chill was rusty inside, such an explosion or “blowing” as occurred might be expected; and there was testimony tending to show that if the vent was insufficient or choked the same result might follow; but there was no evidence that any such defect existed. There was testimony also that if there was water or moisture in the chill when the molten iron was poured into it, the same result might or probably would occur; but there 'was no evidence that there was any water or moisture in the chill at the time of the accident.

It is argued, however, that whether the “blowing out” occurred because of rust within the chill or because of an insufficient vent or because of moisture within the chill, the defendant would be equally liable, inasmuch as he owed a nondelegable duty to the plaintiff to use reasonable care to furnish him reasonably safe appliances with which to work—a duty which would in this case be proven to have been neglected by the mere existence of the defect or dangerous condition of the chill from either of the supposed causes. Whether this position would be sound, even if the evidence showed that nothing but one of these causes could have produced the accident, is rendered at least doubtful in consideration of the fellow-servant doctrine, and the peculiar conditions connected with the furnishing of the chills in proper condition to the pourers, of whom the plaintiff was one.

It is undoubtedly true, as a general principle, that the duty of reasonable care in the selection, furnishing and inspection of appliances to work with is nondelegable and that the master is liable for default in it whether he undertakes its performance personally or through another person. But it is also true that although the fellow-servant doctrine does not enter into this field of the selection and inspection of appliances, it does so enter constantly and materially into that of their use. In the case at bar, the evidence seems to indicate the necessity of constant and continuous care to keep the chills in safe condition and of such' a connection between the preparation of the chib and its immediate employment as to make both a “use” rather than one the “equipment” and the other the “use” of the appliance. The men who prepared and the men who poured the iron into the chill apparently worked to every intent in pairs. There was but “a couple of minutes” between the “preparation” and the “pouring” in each case, a witness said, and the repair man and the pourer (in this case the plaintiff) were but “a couple of feet apart.” They were, it is argued, co-operating in a single piece of work, and, as the evidence showed, in a position to affect strongly each other’s caution. But without deciding the doubtful question involved in this argument, there is another controlling factor to be considered. It is not true, in our opinion, that the evidence taken together showed or even tended to show that there could have been no other cause for the accident than one of these before mentioned, which depended on the condition of the chill. It showed that any one of those might have produced the accident, but not that it must have been one of them which did produce it. Apart from the undoubtedly correct statement of the plaintiff’s expert witness, Holt, that the iron is sometimes blown out when every precaution has been taken and that it is “pretty hard to say what will cause an explosion always,” the evidence shows, it seems to us, that the action of the pourer himself in pouring too fast or otherwise in an improper manner might cause a “blowing” out of the iron, of the character which occurred in this case. The defendant vigorously contests this, and insists that the evidence shows that no such “explosion” as here happened could possibly occur from a cause unconnected with a defect in the chill.

We are aware that some expressions of witnesses on redirect or recross examination would seem to minimize the possible effects or importance of a “blow” caused by improper pouring, but taken together we think it clear that the evidence (which showed among other things that the “chill” itself did not break nor was damaged, but was thereafter used in the regular course of business) must be held to have established that a “blow out” like that which injured the plaintiff is possible from another cause than a defective chill and may result from the incautious or unskilful actions of the “pourer.” When this is once admitted, it becomes evident that the defendant could only be held liable by the inadmissible process of basing a presumption upon a presumption. Globe Acc. Ins. Co. v. Gerisch, 163 Ill. 625. The presumption that the accident happened by reason of a defective or improper condition in the chill (because it might have happened from that cause) is based on the further presumption that there was a defective or improper condition in the chill (because there might have been such a condi tion). If it were proven either that there was a defective condition in the chill or that no other cause but a defective condition in the chill could have caused the accident, but one inference or presumption would be necessary; but with both these factors in the question problematical the process condemned in the Gerisch case supra, would be necessary to result in a verdict for the plaintiff.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    In re Estate of Henry E. Pridmore, Deceased. Emily M. Pridmore and Henry A. Pridmore, Appellants, v. Emily M. Pridmore and Dora C. Snow, Executrices, Appellees.
    Gen. No. 19,244.
    1. Wills, § 455

      —when ademption depends on intention of testator. Whether a sum furnished hy a testator in his lifetime to a legatee for the purchase and construction of a home for the latter should he held as lessening pro tanto the amount which he should receive as residuary legatee depends upon the intentions of the testator irrespective of any presumption of law that can arise in the case.
    2. Wills, § 455

      —when intention to make an ademption not presumed. The intention of a testator to make an ademption should not be presumed in the face of any reasonable evidence to the contrary.
    3. Tbial, §-293*—when submission of propositions of law not proper. A proceeding in the Circuit Court on appeal from a judgment in the Probate Court involving the question whether a sum paid by the testator was an advancement, gift or ademption is in the nature of a chancery suit in which the submission of propositions of law is neither necessary nor proper.
    Appeal from the Circuit Court of Cook County; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in this court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 15, 1914.
    Rehearing denied June 29, 1914.
    Statement by tbe Court. Henry E. Pridmore died in Glasgow, Scotland, September 25, 1908, while on a visit to that country which began in July, 1908. He was a resident of Chicago, where he had an extensive and profitable business in the manufacture of molding machines. For ten years prior to his death Miss Dora C. Snow was employed by him and at the time of his death she was his office manager. He left surviving him a widow, Emily M. Pridmore, and four sons, Edward A. Pridmore, the oldest, Henry A. Pridmore, the second, the two others who were minors at his death. His will was duly probated in the Probate Court, of Cook county November 16, 1908. It was dated Aug*ust 27, 1900. It devised a homestead, furniture and horses, etc., to his wife, Emily M. Pridmore, and then all the rest of his property to his wife, Emily M. Pridmore, and “his friends,” Cyrus H. McCormick and Dora C. Snow in trust (a) to pay Emily M. Pridmore $200 a month; (b) to pay each of his children during their minority $500 per year in quarterly payments to be made to their guardian. (The will later named their mother, Emily M. Pridmore, as guardian.) (e) To give each of his children $500 per year after his minority in case he desired a collegiate education; (d) to continue the testator’s manufacturing business and pay ont of the income the legacies heretofore mentioned until the youngest child should be twenty-one years old; (e) when his youngest child had attained the age of twenty-one years to turn over to his wife, Emily M. Pridmore, and his children the business and all property of every description connected therewith. “My said wife to have a one-third interest therein and my said children to have equal interests in two-thirds thereof.”
    The will further provided that the trustees should have power to sell real estate and invest the proceeds, and distribute them when the youngest child was twenty-one years old-one-third to his wife and two-thirds to his children, share and share alike. In case of the death of any of his children leaving child or children surviving, such child or children should take the parent’s share, and in case of the death of any child without issue his share should go to the survivors share and share alike.
    Other clauses of the will expressed a wish that as soon as any of his sons arrived at a suitable age he should be employed in the business by the trustees, requested that the trustees pay his father an annual income from the profits of the business, provided for a compensation to the trustees of one and one half per cent, of the net profits of the business, and appointed Emily M. Pridmore guardian of such children as might be minors at the time of his death, and Émily M. Pridmore, Cyrus H. McCormick and Dora C. Snow executors without bond. Mr. McCormick declined to act as executor.
    After the will was admitted to probate the widow, Emily M. Pridmore, renounced the provisions for her benefit and elected to take under the statute. This made necessary a sale of the business under the order of the Probate Court, in order that the widow’s statutory share might be set off to her. Emily M. Pridmore, the widow, and Henry A. Pridmore, the second son, bid in the plant and property connected with the business and continued to run it. Edward A. Pridmore, the eldest son, was a rival bidder, and after his mother and brother became the purchasers he secured the incorporation of another company for the same business, of which he and Dora C. Snow became employes and managers. Litigation and consequent family estrangement grew up. Emily M. Pridmore and Dora C. Snow, as executrices of the last will and testament of Henry E. Pridmore, each inventoried $6,645.05 as an account receivable by the estate from Edward A. Pridmore, this being a sum which appeared in the business ledger of Henry A. Pridmore as the balance on the debit side of an account called the E. A. Pridmore account at the time of the death of Henry E. Pridmore. The executrices, because they could not agree on some items, filed separate inventories. When in June, 1911, the executrices presented their final account preliminary to their discharge, this $6,645.05 (not having been collected) gave rise to a question and discussions thereon which have resulted in this appeal. The question was in effect whether the sum had been properly inventoried as a part of the estate and should be charged against Edward A. Pridmore either as an advancement on the share of the estate coming to him, or as a debt due from him, or whether it was a gift from Henry E. Pridmore to his son and should therefore, because it was debited to the executrices by the inventory, be credited on the final account by a countercharge.
    The Probate Court held, after a hearing of evidence and argument, that the amount was a gift and not an advancement, and accordingly the final account as originally drawn was amended by inserting on the credit side thereof this entry:
    “Amount shown in respective inventories as an advancement to Edward A. Pridmore and as an account receivable, decided by this Honorable Court on June 28, 1911 (upon the objections of Emily M. Pridmore to the current and final account of Dora C. Snow, executrix) to have been a gift and now credited by the executrices, pursuant to such decision of the Court, without prejudice, however, to the right of Emily M. Pridmore to appeal from the decision of said Court upon her objection to the allowance of this item.....$6,645.05.”
    The court then approved the final amended account, and reciting that the estate had been properly administered and distributed, with the exception of $2,215, retained by the executrices pending an appeal by the widow and one of the heirs at law of said decedent from the order of the court heretofore entered authorizing said executrices to credit themselves with the sum of $6,645.05 in their final account, which the court held to be a gift to Edward A. Pridmore in his lifetime, approved said report and declared the estate settled and ordered that the said executrices should be discharged upon the final disposition of said appeal and the lawful distribution of the sum so retained.
    Emily M. Pridmore and Henry A. Pridmore objected to the said allowance of a credit on the executrices’ account of $6,645.05, and, on the objection being overruled, excepted and prayed an appeal to the Circuit Court of Cook county “from the judgment and order allowing said item.” The appeal was allowed and was in October, 1912, heard by the Circuit Court without a jury, on which hearing the Circuit Court found:
    “That the money paid out by the testator Henry E. Pridmore for the benefit of his son Edward A. Pridmore was a gift by said decedent to said Edward A. Pridmore and that it was not the intention of said decedent to charge said sum specifically to said son and that an ademption of the legacy to said sum on account thereof should not be allowed,” and ordered “that said executrices credit themselves with the amount of said item of $6,645.05 '•* * * as they, have done in said amended final account, and that said amended final account be * * * approved.”

      From this order of the Circuit Court, Emily M. Pridmore and Henry A. Pridmore have appealed to this Court.
    Charles Henry Dummer and Herman W. Stillman for appellants.
    Holdom, Manierre & Pratt, for appellees.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

We have read and considered with great interest and much care the elaborate and exhaustive arguments with which counsel have assisted the court in this ease. But it.would be a needless labor to analyze in our opinion the many cases of high authority which have been cited to us on each side of the controversy.

The question itself is a simple one. It is whether the sum—between six and seven thousand dollars, out of an estate approximating half a million—which Henry E. Pridmore in his lifetime furnished to his son Edward A. Pridmore for the purchase and construction of a home for him, should be held as lessening pro tanto the amount which as a residuary devisee Edward A. is to receive from his father’s estate. That again resolves itself into the question— What was the intention of Henry E. Pridmore when he furnished this money to provide a home for his first and only married son?

Three intentions were possible, and, irrespective of any presumption, if either intention is established by the evidence it must prevail. In other words, there ■is no conclusive presumption of law that can arise in the case. Evidence of intention will overcome any technical rules concerning “portions,” or “unsatisfactions,” which, as Lord Chancellor Cottenham in 1841, in Pym v. Lockyer, 5 Mylne & Craig, 27, said, were “all intended to ascertain and to work out the intention of the giver.” As he said also: “All the decisions upon questions of double portions depend upon the declared or presumed intention of the donor.”

This supremacy of external evidence of intention over the presumption which, in the absence of such evidence the law recognizes, is shown to be the sound doctrine in such cases as Trimmer v. Bayne, 7 Vesey, Jr. (1802); In re Lacon, 2 ch. Div. (1891); and Carmichael v. Lathrop, 108 Mich. 473, cited and relied on by the appellants, as well as in many others. It has been declared by the Supreme Court of this State in Richardson v. Eveland, 126 Ill. 37. In the case at bar the money furnished for Edward A. Pridmore’s home by his father might have been intended (a) as a gift; (b) as a loan; (c) as a pro tanto “ademption” or, more properly, “satisfaction” of a residuary bequest.

Evidence both oral and written was presented on the hearing of this case before the Probate Court and in the trial de novo on the appeal to the Circuit Court on the question of which of these intentions existed. The written evidence was that of account books of the business of Henry E. Pridmore kept by or under the charge and supervision of the principal witness for the appellees, and the inventory of the estate made by that witness. So far as it went it may be considered as supporting the theory that the money was furnished as a loan. But as explained by the testimony of Miss Snow this written evidence amounted to very little, while her oral testimony was of great importance. That oral testimony was not contradicted—perhaps in the nature of things could not be—but it is argued that it is to be viewed with suspicion. Its credibility was passed upon favorably by the judge of the Probate Court and by the judge in the Circuit Court, and we do not see justification in the arguments that are made to us for refusing it credence here. It establishes, if true, by statements of the testator made not in answer “to impertinent inquiries, drawing angry answers,” as in Trimmer v. Bayne, supra, but to a person who apparently had his full confidence in the management of his business and pecuniary affairs, that the money which bought the lot and built the house was a gift to his son by the testator as fully as the $1,000 for furniture or the $435 for a cemetery lot, of which a different form of memorandum was made.

We think there is no reason in the face of this evidence to fall back on the rule of presumptions and the exceptions thereto laid down by authority as to “ademptions” and pro tanto satisfactions.

It is quite true, as pointed out by the appellants’ argument, that the provision of our.statute of descent, that “no gift or grant shall be deemed to have been made in advancement unless so expressed in writing or charged in writing by the intestate as an advancement or acknowledged in writing by the child or other descendant,” has nothing to do with the settlement of an estate under a will, and consequently has no effect whatever directly on the present case; but it is not without interest to note that it seems to throw some light on the policy of our law in relation to its care of a decedent’s intentions'and to justify the inference that the intention of a testator to make an ademption should not be presumed in the face of any reasonable evidence to the contrary.

Complaint is made that the court refused to pass on propositions of law. The Supreme Court expressly decides in Tanton v. Keller, 167 Ill. 144, that a proceeding like this is in the nature of a chancery suit, where no propositions of law are necessary or proper.

The order of the Circuit Court appealed from is affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    Arthur B. Wright, Appellee, v. Frederick W. Clark et al., Appellants.
    Gen. No. 19,303.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Attorney and client, § 95

      —fairness of contract. An attorney seeking to recover from a client on a contract drawn by the attorney at the time the relation exists must show that the client was fully informed of its nature and effect.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the March term, 1913.
    Reversed and remanded with directions.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Bill by Arthur B. Wright against Frederick W. Clark and others, trustees of two trusts, to establish and enforce a lien npon one or both trusts for attorney’s fees and expenses incurred in connection with a contest of the will of Jonathan Clark, deceased, and to set aside an alleged void arbitration award fixing complainant’s fees therein. From a decree entered in favor of complainant, defendants appeal.
    Scott, Bancroft & Stephens, William B. Hale and Edward G. Woods, for appellants; Frank H. Scott, William B. Hale and Edward G. Woods, of counsel.
    C. H. Poppenhusen, Joseph L. McNab and E. R. Johnston, for appellee; Elbridge Hanecy and S. S. Gregory, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

2. Attorney and client, § 138 —when instruments not construed as creating equitable lien for attorney’s fees. Instruments drawn by an attorney for his clients construed as not entitling the attorney to a lien for attorney’s fees enforceable in equity, where the instruments were silent as to any interest created thereby for the attorney’s benefit, and there was no evidence to show that his clients fully understood and agreed that the attorney should have a lien.

3. Arbitration and award, § 74*—when invalidity of award no ground for setting it aside in equity. A court of equity will not assume jurisdiction to set aside a void award of arbitration on the ground that the award is void, for the reason that the death of one of the arbitrators nullified the agreement to arbitrate.


author: Mr. Presiding Justice Fitch

text:
    E. C. Atkins & Company, Appellee, v. James G. Kirk, trading as J. G. Kirk & Company, Appellant.
    Gen. No. 19,272.
    (Not to foe reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by E. C. Atkins & Company, a corporation, against James G. Kirk, trading as J. G. Kirk & Company to recover an amount paid by the plaintiff as rent, for which plaintiff was primarily liable, but which it was alleged the defendant agreed to pay. The defense was, in substance, that while defendant had an offer to assume payment of the rent, such offer was withdrawn before any notice of its acceptance was communicated to the defendant. Upon a trial by the court without a jury, plaintiff had judgment. To reverse the judgment, defendant appeals.

      Abstract of the Decision.
    1. Contracts, § 39

      —when formal acceptance of offer necessary. Where it is apparent that the offer as made contemplates a formal written acceptance as a condition precedent, such formal acceptance is required.
    2. Contracts, § 39*—when acceptance of offer implied. Where an offer does not require a formal asent to its terms, an acceptance may be implied or inferred from the conduct of .the offeree. In such case proof that the act required to be done has been performed, or that its performance has been commenced in the manner prescribed by the terms of the offer, is ordinarily sufficient evidence of the acceptance of the offer.
    3. Contract, § 39*—when offer to assume lease of vacated premises accepted. Where a renting company in consideration that a corporation would lease certain premises offered to assume its liability on a lease under which it was occupying other premises, held that the offer did not require a formal written acceptance, and that the corporation, by executing the lease submitted by the renting company and by giving notice by letter that it had done so, complied with the conditions of the offer according to its terms, so that an |attempted revocation of the offer by a letter dated subsequent to such acceptance would have no effect.
    4. Contracts, § 39*—what constitutes a formal written acceptance. Where a company made an offer to assume a lease on vacated premises in consideration that the offeree would lease other premises, the offer' containing the words “we hereby accept the above proposition” and a line for a signature was typewritten, held that though such words would indicate that a formal written acceptance was necessary, that the closing, of the lease, and a letter to the offeror that the lease had been signed were equivalent to a formal written acceptance.
    5. Contracts, § 1008*—when failure to perform condition in time stipulated does not relieve from liability. A person contracting to assume a lease on vacated premises, with a condition that the other party should “clean walls and ceiling and put plumbing in condition if necessary” when it vacated the premises, held not exempted from liability if such work was not done exactly at the time stated in the agreement.

      W. A. Morrow, for appellant.
    Mason Brothers, for appellee; Olaf A. Olson, of counsel.

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

6. Evidence, § 185 —when conversations with agent since deceased inadmissible. In an action on a contract, conversations between defendant and plaintiff’s agent who has since died, held inadmissible.


text:
    Anna J. S. Harmon, Appellee, v. A. P. Callahan, Appellant.
    Gen. No. 19,293.
    (Not to he reported in full:)
    Appeal from the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by Anna J. S. Harmon against A. P. Callahan to recover rent on premises vacated by the lessee before the expiration of the lease. The suit is on an instrument in writing executed by the defendant guarantying the payment of the rent and all the covenants of the lessee, Mrs. Mary Foley, who leased the premises for three years from May 1,1910, and occupied the premises until March, 1911. To reverse a judgment in favor of plaintiff, defendant appeals.
    Harvey Strickler, for appellant.
    Wells M. Cook, for appéllee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and erbob, § 523 —when division of oral instructions for purpose of criticism improper. Treating each paragraph of an oral charge as a distinct and separate instruction for the purpose of criticism and objection is unwarranted where the instructions are given as a continuous and connected charge to the jury.

2. Guaranty, § 37*—when sentence in instruction not misleading. A sentence in an instruction stating that “the burden of proof is on the defendant, to show by a preponderance of the evidence that he is not liable,” held not misleading when read in connection with other sentences showing that the meaning intended to be conveyed was that the burden of proof was upon defendant to show by a preponderance of the evidence that he was discharged from liability upon his guaranty in the manner charged in his affidavit of merits.

3. Instructions, § 85*—when use of words “burden of proof’ not improper. A sentence in an instruction stating that “the burden of proof is on the defendant, to show by a preponderance of the evidence that he was not liable,” held not to use the words “burden of proof” in an improper sense.

4. Municipal Court oe Chicago, § 28*—when error of court in putting question to witness not saved for review. Error of a judge of the Municipal Court in putting a question to a witness is not saved for review where the abstract does not show that any objection was made to the question at the time, nor show that any motion was made to strike out the answer.

5. Municipal Court oe Chicago, § 28*—saving questions for review. While formal exceptions are unnecessary in trials in the Municipal Court, yet it must appear that a ruling was “made against the objection of the party complaining thereof,” before the ruling can be assailed on review.

6. Appeal and error, § 1474*—when error in admission of opinions harmless. Error in permitting witnesses to state their opinion as to certain facts, held harmless where such facts were fully shown by other evidence.


text:
    James Rogers, Appellee, v. William F. Weller, Appellant.
    Gen. No. 19,298.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Penalties, § 16

      —when verdict not a compromise verdict. A verdict in an action for a penalty, held not a compromise verdict, where there was no evidence that it was the result of any agreement among the jurors to reach a verdict by compromise and the amount thereof is within the range of the testimony of the witnesses as to value and is supported by some of such testimony.
    2. Chattel mortsages, § 267*—basis of value in determining penalty for failure of mortgagee to furnish mortgagor with statu

      tory statement. In an action to recover a penalty under section 2 of the Act of 1895, J. & A. f 7602, held that a verdict could not be complained of on the ground that the basis of value should have been the value of the property at the date of seizure instead of at the date of sale, where the property was sold five days after it was seized and it was shown to be in substantially the same condition at the time of sale as when it was seized, and there was no evidence of a change of value; but also held that the statute seems to require the value to be fixed as of the date of sale.

      Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action of debt by James Rogers against William F. Weller based upon section 2 of the Act of 1895 (Hurd’s R. S., ch. 95, § 26, J. & A. U 7602), for failure of a chattel mortgagee to furnish and deliver to the mortgagor a statement showing the items of property sold, expenses connected with the sale, etc. The jury returned a verdict finding the value of the property sold to be $1,950, and assessed plaintiff’s damages at one-third thereof, or $650. To reverse a judgment entered on the verdict, defendant appeals.
    Cole S. Everett, for appellant; Edward J. Kelley, of counsel.
    David K. Cochrane, for appellee.

      See Illinois Notes Digest, Vois XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vois. XI to XV, and Cumulated Quarterly, same topic and section number.

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

3. Chattel mobtgages, § 267 —when evidence insufficient to establish delivery of statutory statement to mortgagor. In an action of debt brought by a chattel mortgagor against the mortgagee to recover the penalty provided by section 2 of the Act of 1895, J. & A. If 7602, for failure of the mortgagee to deliver a statement showing the items of property sold, etc., under a power of sale contained in the mortgage, an attempt on the part of defendant to show that such statement had in fact been “delivered by mail,” held insufficient, where the witness testified he could not say when he mailed the letter nor to whom the letter was addressed, and it was admitted it was not mailed to plaintiff.

4. Appeal and errob, § 1241*—when party cannot complain of language in instructions. Appellant cannot complain of the language of instructions of his adversary where the instructions offered by himself contained the same language.


text:
    Joseph Bienias, Appellee, v. John Brucker and Henry Brucker, Appellants.
    Gen. No. 19,325.
    (Hot to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of facts.
    Opinion filed June 15, 1914.
    Rehearing denied June 29, 1914.
    Statement of the Case.
    Action by Joseph Bienias against John Brucker and Henry Brucker to recover damages for personal injuries sustained by plaintiff while employed by defendants as a “chipper” of castings. It appeared that plaintiff was using an emery wheel machine and that a foreman ordered him to grease certain belts which ran the machine; that in greasing the same he used a stick of graphite by placing it against the inside of the belt at a place where it was running towards a pulley and his hand caught between the belt and pulley. From a judgment in favor of plaintiff for $2,000, defendants appeal.
    Abstract of the Decision.
    1. Master and servant, § 410

      —when compliance with order of foreman does not relieve of assumption of risk. A servant Is not relieved from the doctrine of assumption of risk in doing work in obedience to an order of a foreman where he has complete knowledge of all the dangers attendant upon a compliance with the order.
    2. Master and servant, § 411*—when recovery for injuries resulting to employe while greasing belt not warranted by the evidence. In an action, by an employe for personal injuries caused by his hand catching between a belt and a pulley while attempting, in obedience to an order of a foreman, to grease a belt which operated an emery wheel machine at which he worked as a “chipper” of castings, held that a verdict for plaintiff was not sustained by the evidence, it appearing that the order of the foreman was a general one “to grease the belts,” that the dangers were plainly apparent and fully known to plaintiff and that he chose an unsafe method of greasing the belt.
    Charles F. Fritz and David A. Orebaugh for appellants.
    Royal W. Irwin and Frank W. Koraleski, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Marie R. Rice, Appellee, v. Warner Hotel Company, Appellant.
    Gen. No. 19,339.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1502

      —when improper questions ashed of jurors on voir dire reversible error. In an action for personal Injuries sustained hy reason of the unsafe condition of a window, during the examination of the jury plaintiff’s counsel asked a juror: “Do you know anyone connected with the Aetna Insurance Company?” and asked three other jurors: “Do you carry casualty insurance?” The questions were objected to as indicating and suggesting to the jury that the defendant was insured against liability by the insurance company and that the defense was conducted by it, and the objections were sustained, but a motion by defendant’s counsel to withdraw a juror and continue the case on the ground that the error was not cured merely by sustaining the objections were overruled. Held that the action of the court in overruling defendant’s motion was reversible error, that the fact that the court sustained objections to the questions indicated that the court did consider the examination as made for the purpose of enabling counsel to exercise the right of peremptory challenge and that the harm was done when the improper questions were asked.

      Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 15, 1914.
    Statement of the Case.
    Action by Marie R. Rice against Warner Hotel Company, a corporation, to recover for personal injuries sustained by plaintiff through defendant’s negligence in failing to use reasonable care to keep a window in a reasonably safe condition. To reverse a judgment in favor of plaintiff for four thousand five hundred dollars, defendant appeals.
    Calhoun, Lyford & Sheean, for appellant; Edward W. Rawlins, of counsel.
    Winston, Payne, Strawn & Shaw, for appellee; Edward W. Everett, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number,

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

2. Appeal and ebrob, § 1474*—when permitting expert testimony reversible error. In an action for personal injuries alleged to have resulted from the defective condition of a window, permitting experts to testify as to the effect upon a window pane of permitting the glass to become loose, held reversible error, as giving undue weight to plaintiff’s testimony.


author: Mr. Presiding Justice.

text:
    In re Estate of John Farson, Deceased. On Appeal of Mamie A. Farson, Executrix, Appellant, v. Gustavus A. Buder, Appellee.
    Gen. No. 19,349.
    1. Sales, § 374

      —when instruction defining market value of stock misleading. An instruction telling the jury that the market value of shares of stock “is the price at which such stock may be purchased by a purchaser using due diligence * * * at the time when such purchase is made for the current price,” held misleading in view of the admission of incompetent testimony of witnesses that in their opinion an attempt to buy or sell a block of such shares at one time would probably cause the market price to rise or fall.
    2. Sales, § 376*—market value defined. The market value of property is the price which it will bring in the market on a fair sale when the seller is willing but not obliged to sell, and the buyer is willing but not obliged to buy.
    3. Sales, § 374*—when instruction on measure of damages for nondelivery of stock erroneous. In an action for the breach of a contract to deliver shares of stock, an instruction telling the jury that the measure of damages is the difference between the contract price and the market price at the time of the seller’s failure to deliver, or within a reasonable time thereafter, held erroneous in so far as it used the phrase “or within a reasonable time thereafter.”

      4. Sales, § 372

      —where opinion evidence incompetent. In an action for breach of a contract to deliver shares of stock, testimony of witnesses that in their opinion an attempt to purchase or sell a block of 485 of such shares at one time would probably cause the market price to rise or fall “50 to 100 points,” held incompetent.
    5. Sales, § 376*—measure of damages for refusal to deliver shares of stock. On a breach of a contract to deliver personal property, the measure of damages is the difference, if any, between the contract price and the market value thereof at the time and place when and where they should have been delivered, together with interest upon such difference from the time of the breach to the time of the trial; and such rule applies where the subject-matter of the contract is shares of stock.
    6. Sales, § 372*—evidence competent to prove market value. In an action for refusal to deliver stock under a contract of sale, evidence of actual sales at the time of the breach is the best evidence of the market value at the time; but in the absence of such sales, evidence of other sales within a reasonable time before or after the breach is competent as tending to prove what the fair market value was on the day of the breach.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed June 15, 1914.
    Winston, Payne, Strawn & Shaw, for appellant; Johh D. Black and Garrard B. Winston, of counsel.
    Albert H. Meads, for appellee..

      See Illinois Notes Digest, Volg, XI to XV, and Cumulative Quarterly, samo ipic and section number,

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice.

Fitch delivered the opinion of the court.

Appellee filed a claim in the Probate Court for $33,950 against the estate of John Parson, deceased, for “the amount due by reason of breach of contract” for the sale of 485 shares of the capital stock of the Burroughs Adding Machine Company, a corporation having its principal place of business in Detroit, Michigan. The Probate Court allowed the claim to the extent of $16,975. Upon appeal to the Circuit Court, there were two jury trials. The first resulted in a disagreement and the second in a verdict in favor of appellee for $13,095. From a judgment entered on that verdict, the executrix has prosecuted this appeal.

It appears from the evidence that on June 7, 1909, Farson, Son & Co., of which firm John Farson was a member, made a bid of $163 a share for the stock in question, which was then owned by Helen Burroughs White, a minor residing in Seattle. Their bid was accepted by the guardian of the minor, subject to the approval of the Superior Court of Kings county, Washington. Apparently the court’s approval was never obtained, for the sale was never completed. On the same day the bid was made, Farson, Son & Co., through a stockbroker in Chicago, named Sardy, of-r fered the stock for sale to divers parties and received a bid of $165 per share from Buder & Buder, of St. Louis, Missouri, who (or one of whom, at least) had some interest in the Burroughs Company. The next day, Sardy had a telephone conversation with them, resulting in his accepting their bid, whereupon he wired his acceptance as follows: “I sell you four hundred eighty-five shares Burroughs Adding Machine at one hundred sixty-five net to you.” To this, G. A. Buder replied, on the same day: “Attach proxy for stockholders’ meeting Thursday to stock and draft.” Sardy communicated these facts by telephone to Farson, Son & Co., and at the same time wrote them: “Confirming conversation with you over the telephone, I have sold for your account to Buder & Buder, Granite Bldg., St. Louis, Mo., 485 shares Burroughs Adding Machine Stock at 165 net to the buyer, less % point commission to me. Kindly ship the stock direct to Buder ft Co. replied by mail: “W to you of 485 shares Burro Price 165 net to buyer, less have noted your instruction, The next day, Buder & Budt they had received informatioier.” Farson, Son & sed to confirm sale • Machine Stock, n to you. We o shipment.” lardy saying ick belonged to a minor and that the guardian had no authority to sell it, and requesting Sardy to “Please let us have your authority and the authority of your client for making sale,” adding that “in the meantime, we have instructed the Mercantile Trust Company not to pay draft with stock attached.” Sardy showed this letter to John Farson, who took a copy of it, said the stock was sold, that he expected “to make a good delivery,” and that the buyer would have to take it. No delivery was made, however, presumably because Far-son, Son & Co. did not have the stock to deliver and were unable to furnish proof of authority to sell the same. On July 2, 1909, G. A. Buder wrote to Sardy claiming the right to receive a dividend of two per cent., payable on June 30, 1909, on the shares “bought by me from you.” Sardy sent this letter to Farson, Son & Co., who replied: “You advised us some time ago that your party refused delivery. With our best respects, we are,” etc. To this Sardy rejoined that he had not so advised them, but had merely submitted a letter from the buyer asldng for their authority to make the sale. On July 29, 1909, Sardy saw John Farson in person and told him that “his customer demanded a delivery of the stock. ’ ’ Farson replied that the buyer had said “he didn’t want the stock,” and refused to further discuss the matter.

On November 18, 190.9, another guardian was appointed for the minor’s estate. Within sixty days after his appointment, he sold the stock, through brokers in New York City, at the price of $190 a share for 25 shares, and $192 a share for the remainder. It was shown that the Burroughs Company’s stock was not listed on any regular stock exchange, that it was “closely held,” that but few sales had been made in the open market and that its “book value” was about $162 a share. The following actual sales were shown, however, in addition to the sale to Farson, Son & Co. .and the sale by them to appellee, viz.: in August, 1909, 3% shares at $170 a share and 15 shares at $175; in September, 40 shares at $184; and in November, 52 shares at $183.33. .

The trial court instructed the jury, at the request of appellee, that if they found the issues for the plaintiff, the measure of damages was the difference between the contract price and the market price “at the time of the decedent’s failure to deliver such stock, or within a reasonable time thereafterand that the market value of stock is “the price at which such stock may be purchased by a purchaser using* due diligence under all the conditions to secure such stock at the time when such purchase is made for the current price.” As tending to prove the market value of the stock in question, as thus defined, appellee was permitted to prove by several witnesses that, in their opinion, an' attempt to purchase or sell a block of 485 of such shares at one time would probably cause the market price to rise or fall “50 to 100 points.” This evidence was clearly incompetent. The probable effect of such a supposed transaction was pure speculation. .The witnesses who so testified, clearly indicate by their answers that their opinions were mere conjectures as to what might happen in such a case. Such conjectures cannot be received as any evidence whatever tending to prove the value of the stock in question at any time. With this evidence before the jury, admitted, as it was, with the apparent sanction of the court, the instructions mentioned were very misleading. The jury may well have understood therefrom that if there was a breach of the contract, appellee was entitled under the evidence to recover, as damages, the difference between the contract price of the stock and the price which appellee might possibly have had to pay for it if he had been compelled to buy it all once at any price the holder of so large a “block” might choose to exact under such circumstances. It has repeatedly been held that the price paid at a forced or involuntary sale is not a fair criterion of market value. The market value of property is the price which it will •bring in the market on a fair sale when the seller is willing but not obliged to sell, and the buyer is willing but not obliged to buy. Brown v. Calumet River Ry. Co., 125 Ill. 600; Lanquist v. City of Chicago, 200 Ill. 69. While this definition, or its equivalent, is most frequently found in condemnation suits, where the market value of real estate is in question, yet the same rule was applied to the value of stocks in Walker v. People, 192 Ill. 106. In that case, the question arose as to the correct rule to apply in fixing the fair cash market value of stocks for appraisement under the Inheritance Tax Law. The Court there said: “As we understand the position of counsel for appellants, it is that the market price of these stocks should have been fixed at the market price as it would be on a certain day, in case the entire holdings were forced upon the market, and a forced sale of the same was made without regard to the actual value of the stock per share, or the ordinary method of doing business in reference to handling, purchasing or selling the same. We are unable to concur in the correctness of this view. * * * Fair market value, as applied to this case, is not what the stocks would bring at a forced sale, but what they would bring at a sale after due notice of the facts, and under fair conditions in the ordinary course of business. * * * The very fact, that the market would be depressed by forcing large blocks of stock upon it, and forcing such large blocks of stock to sale, indicates that such a sale is not a proper test of the fair cash value of the stock.”

Aside, however, from the misleading character of the instructions mentioned, we are of the opinion that the phrase “or within a reasonable time thereafter,” as used in the instructions, is an erroneous statement of the rule as to the measure of damages applicable to the facts in this case. That this clause was not used inadvisedly by the trial court is shown by the fact that the court modified one of appellant’s instructions on the same point by inserting that clause. The correet rule, as recognized in the courts of this State, is that on a breach of contract in failing to deliver articles of personal property, the measure of damages is the difference, if any, between the contract price of such articles and the market value thereof at the time and place when and where they should have been delivered. (Sleuter v. Wallbaum, 45 Ill. 43; Capen v. Du Steiger Glass Co., 105 Ill. 185; Smith v. Dunlap, 12 Ill. 184), together with interest upon such difference from the time of the breach to the time of the trial. Driggers v. Bell, 94 Ill. 223; Plumb v. Campbell, 129 Ill. 101. The mere fact that the subject-matter of the contract is stocks furnishes no exception to this rule. Sturges v. Keith, 57 Ill. 451. In Sleuter v. Wallbaum, supra, which was an action of assumpsit brought to recover damages for breach of a contract to deliver one million bricks, the trial court gave an instruction stating that if the jury find for the plaintiff, “the damages will be the difference between the contract price and the increased market price when the defendants refused to deliver them and when the plaintiff requested them, or within a reasonable time thereafter for procuring such a quantity; and, in finding what is a reasonable time, the jury may consider the state of the market, as to scarcity of brick, or otherwise, and may take also into consideration the quantity required to be purchased to fill the contract.” 'The Supreme Court held that the latter part of this instruction was erroneous and reversed the judgment for that reason, saying (p. 46): “This instruction gave the jury too great a latitude in ascertaining the amount of damages. By it, they were authorized to consider the price of brick for a reasonable time after a breach, to enable appellee to procure them, and to consider the state of the market, the scarcity of brick, and the quantity to be purchased. The question of how long would be reasonable, was at least very indefinite. It might be one month, six months, or even a year, for aught we can know. Under it the jury are authorized, at any rate for a considerable period after the breach, to select the highest market price as the measure. * * * The only safe rule is to confine the measure of damages to the market price at the time of the breach.” The remarks of Mr. Justice McAllister in Sturges v. Keith, supra, at pages 462, 463 of the opinion, are also in line with this reasoning and tend to the same conclusion.

We do not mean to intimate that the evidence which was offered as to actual sales of the stock in question, at or about the time of the alleged breach of the contract, was not admissible. Evidence of actual sales at the time of the breach is the best evidence of the market value at that time. But in the absence of such sales, evidence of other sales, within a reasonable time before and after the breach, is competent as tending to prove what the fair market value was on the day the breach occurred. Such evidence is sometimes the only evidence available, and therefore the best evidence of which the nature of the case is susceptible. It was upon this theory that in a recent decision of the Supreme Court even bona fide offers were held to be competent evidence of the market value of real estate, where there have been no actual sales. City of Chicago v. Lehmann, 262 Ill. 468.

It is also suggested that there is no evidence of any breach of contract on the part of Farson, and that the evidence shows that the contract was broken by appellee. As the judgment must be reversed on account of the errors already indicated, we express no opinion upon this question. Other alleged errors in the rulings of the court upon the admission of testimony are also assigned, but as such errors, if any, will doubtless be corrected upon a new trial, we deem it unnecessary to discuss them here.

The judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remcmded.


text:
    Thomas F. Hunt, Administrator, Appellee, v. L. Fish Furniture Company Appellant.
    Gen. No. 19,364.
    1. Master and servant, § 561

      —proof sufficient to sustain recovery upon a count alleging negligence in obstructing passageway to fire escape. In an action to recover for the death of an employe by fire in defendant’s building, a count in a declaration -alleging defendant was negligent “in obstructing the passageway leading to the fire escape,” held sufficient to sustain a recovery without proof that all the approaches or passageways were obstructed.
    2. Master and servant, § 615*—when ordinances relating to fire escapes admissible. In an action to recover for the death of an employe by fire in defendant’s building alleged to have been caused by the failure of defendant to comply with certain city ordinances relating to fire escapes, held that the ordinances were applicable to the case and properly admitted in evidence.
    3. Master and servant, § 538*—when count in declaration states cause of action for death of employe resulting from obstruction of access to fire escape. In an action against an employer to recover for the death of an employe by fire in defendant’s building resulting from obstruction of passageway to fire escape, a count in the declaration held to state a good cause of action under section 14 of the Factory Act of 1909, ch. 48, Hurd’s R. S., J. & A. 5404, and also to state a good cause of action at common law.
    4. Appeal and error, § 1447*—when refusal to disregard count in declaration harmless. Error of court in refusing to disregard a count in a declaration is harmless where there is proof sufficient to sustain a recovery on any other count.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed June 15, 1914.
    Rehearing denied June 29, 1914.
    Statement fey the Court. The plaintiff’s intestate, a girl sixteen years old, lost her life in a fire which occurred on March 25, 1910, in a building on Wabash avenue, Chicago, used and occupied by defendant for the storage, repair and sale of furniture. The building was six stories high, facing east on Wabash avenue, was fifty feet wide and one hundred sixty-five feet deep, and was flanked on both sides by fonr-story buildings, which were not so deep. On the outside of the rear wall of defendant’s building, about ten or twelve feet from the north wall, was an iron ladder fire escape, extending from the roof down to the first floor, and thence to the ground by means of a counterbalance. Attached to the ladder at each floor was. a metallic railed balcony, "the floor of which was about on a level with the window sills in the real wall. In the southwest corner of the building was a freight elevator. Adjoining this, to the north, was a wooden stairway. At a point about the center of and adjoining the south wall was a passenger elevator provided with an automatic device which, when a fire occurred, stopped the elevator and shut down trap doors at each floor to prevent the fire from spreading through the elevator shaft. In the back part of the fourth floor was a room in which were kept cans of shellac, alcohol, turpentine, benzine and varnish. The fifth floor was used for the storage of stoves. The sixth floor was used in part for defendant’s offices, and in part for the storage and repair of secondhand furniture. The office portion was separated from the furniture section by a wooden partition extending from a point on the north wall, twelve feet from the front of the building, south to a point twelve feet from the south wall of the building, thence west about one hundred feet to a point west of the passenger elevator, and thence south to the south wall. There was a sliding door in this partition near the elevator, and one other door about ten feet from the north wall. Eight girls, one of whom was the plaintiff’s intestate, and several men, worked in the office thus inclosed. There were two windows in the south wall of the office, eighteen or twenty feet above the roof of the building to the south, and,directly under these windows in the roof of that building was a skylight about six feet in width. Two windows in the north wall overlooked the building on that side, and directly under these windows were small skylights in the roof of that building.
    At the time of the fire, all of the sixth floor, except the “L” shaped space partitioned off for the office and the spaces occupied by the stairway and elevators, was filled with furniture of various kinds. This furniture was so arranged on the floor as to leave certain spaces for aisles or passageways. .Ordinarily a space of that character was kept open between the passenger and freight elevators along the south wall, but the evidence shows that shortly before the fire broke out, two or three loads of furniture, chairs, etc., were brought up in the freight elevator, and some or all of it had been left in that passageway. Several of defendant’s witnesses testified that at the time of the fire there was also an aisle running east and west, eight or ten feet from the north wall and about four feet wide. There is some evidence, however, to the effect that this aisle was also obstructed when the fire occurred Two work benches stood against, the west wall, one of which was directly in front of the window opening upon the fire escape. Bast of these benches there was a space in which repairing was done, and this space is also referred to by some of the witnesses as an aisle or passageway. Whether any of these aisles were wholly free from obstructions at the time of the fire is a question as to which there is much conflict in the evidence.
    About 8:30 a. m., on March 25, 1910, one of the cans of benzine in the room in the rear of the fourth floor tipped over and caught fire. An explosion followed and the flames spread in every direction. The passenger elevator was stopped between the fourth and fifth floors by the automatic device, and tlie trapdoors closed. One of the men working on the sixth floor ran to the freight elevator and was taken down in it. Another ran to the door opposite the passenger elevator, opened the door, cried out “Fire,” then made his way back to the rear of the room, where he stepped on a tool chest, and from it to the work bench which stood next to the fire escape, raised the window, stepped ont upon the iron balcony and went down the ladder of the fire escape. This witness testified that in going from the office to the fire escape he “pushed chiffoniers and things out of the way,” as he went along. Another man, who was at work in the rear of the room, testified that his first knowledge of the fire came when one of the men going down in the freight elevator shouted “Fire”; that he looked down the elevator shaft, and saw flames and smoke coming up “pretty fast” from- the fourth and fifth floors; that on looking towards the fire escape and stairs, he saw smoke coming up there as well; that he then went over to the passenger elevator, which “didn’t seem to be working,” so he went on into the office; that one of the men in the office was then- opening the south windows and all of the girl employes were standing near him; that all of them then went around to the Wabash avenue windows, but, seeing no, chance of escape in that direction, the witness opened the door leading from the office to the storeroom “and they all came out there;” that he “went right up to the first window from the door on the north side;” that one of the girls followed him that far, then turned back; that he then “went into the smoke,” reached the second window, and jumped out. He went down eighteen feet to the roof of the building adjoining, struck the skylight and “stuck there,” then scrambled out on the roof, and thus escaped. This witness further testified that when he jumped, the sixth floor was half full of smoke, and that “there was no way of getting out except jumping through the window.” None of the office employes escaped. After the fire, their bodies were found on the floor of the office near the front windows.
    The declaration, as originally filed, contained five counts. At the close of the plaintiff’s case, the court instructed the jury that there could be no recovery under the first two counts. The case went to the jury on the remaining counts.
    The third count charges that the death of the plaintiff’s intestate was caused by the negligence of the defendant “in obstructing the passageway leading to the fire escape,” contrary to the provisions of an ordinance of the city of Chicago, making it unlawful, under any circumstances, during the occupation of any building for business purposes, tó close up or obstruct the stairways or fire escapes, “or the approaches leading thereto. ’ ’
    The fourth count alleges that at the time of the fire another ordinance of the city of Chicago was in force, which provides that all buildings four or more stories in height, except private residences, shall be provided and equipped with one or more metallic standpipes and ladders combined, or stair fire escapes, with wrought iron or steel balconies, with suitable railings at each floor and firmly secured to the outer walls of the buildings; that the defendant had constructed a metallic ladder fire escape at the west end of the building, and that the entrance thereto from the sixth floor was through a window in the west wall; that by another ordinance then in force (which is set out in haec verba), it was provided that ‘ every building in the city -required by law to be equipped with metallic standpipes and wrought iron or steel balconies, or other fire escape devices, shall have displayed in conspicuous places on each floor of such building, notices sufficient in number and in plainly legible type at least six inches in height, indicating and showing the location of such metallic ladders, balconies and fire escapes and the easiest way to reach them;” that the defendant neglected to post any such notice on the sixth floor; that the deceased did not know there was a fire escape at the west end of the building, and because of such negligence of the defendant she was unable to escape.
    The fifth count alleges that the plaintiff’s intestate worked in the front part of the sixth floor, that the building was one hundred seventy-five feet in length and that the only fire escape upon the building was at the west end of the same; that defendant used in its business large quantities of benzine, naphtha and like substances, which were kept on the fourth floor; that defendant “had then and there large quantities of mattresses, made of wool, hair, straw and other inflammable material;” that because of the presence of such benzine, naphtha and other substances in the building “in close proximity to said mattresses,” etc., it was dangerous for persons to work there; that the danger from fire was known to defendant, and unknown to the plaintiff’s intestate; that it was the duty of the defendant to exercise reasonable care to furnish the plaintiff’s deceased with a reasonably safe place to work and to provide a reasonably safe exit from the sixth floor to the fire escape; that the defendant negligently failed to perform said duty, “but on the contrary, furnished the plaintiff’s deceased with a place that was highly dangerous, owing to the fact that if a fire originated within said building, no means of escape from such fire was furnished to the plaintiff’s deceased;” that defendant also negligently obstructed “the passageway or approach to the said fire escape,” and negligently piled-large quantities of furniture, mattresses and other materials on "the sixth floor, and at the west end thereof, “thereby obstructing access to said fire escape,” and rendering it impossible for those working in the office part of the sixth floor to reach the fire escape in case of fire; that on, etc., a fire originated below the sixth floor “by the said gasoline becoming ignited;” that the fire spread rapidly and immediately obstructed all stairways and elevator shafts leading from the sixth floor to the lower floors; and because of the negligence of defendant “in obstructing the approach or passageway leading to said fire escape” and making access thereto difficult and impossible, the plaintiff’s deceased was unable to escape and was burned to death.

      The jury returned a verdict in favor of the plaintiff for twenty-five hundred dollars, and from a judgment entered upon that verdict, the defendant appeals.
    Miller, Gorham & Wales, for appellant.
    David K. Tone, and H. M. Ashton, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly* samp topic and section.number,

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

It is urged that the third count of the declaration is not sustained by the evidence, and that the court erred in not instructing the jury to disregard it, as requested by defendant’s counsel. Counsel argue that because the only negligence therein charged is “in obstructing the passageway leading to the fire escape,” no recovery can be had upon that count without proof that all approaches or passageways on the sixth floor to the fire escape were obstructed at the time of the fire. We cannot agree with this contention. We think the plaintiff was entitled to recover under that count upon proof of facts from which a jury might reasonably find that the deceased came to her death without her fault because of the negligence of the defendant in obstructing any approach to the fire escape which would otherwise have afforded her a reasonably available means of egress. There was some evidence fairly tending to support that theory. But even if it could be held that so long as any approach to the fire escape, however inconvenient and difficult of access, was unobstructed, no recovery could be had upon this count, still we think, after an examination of the evidence in the record, that it cannot be said that there is no evidence fairly tending to support a finding that every approach to the fire escape was obstructed at the time of the fire. It was shown that direct access to the fire escape was obstructed, to some extent, at least, by a work bench and tool chest standing in front of the only window on the .sixth floor through which the fire escape could be reached. It was also shown that the south aisle was obstructed by furniture recently unloaded from the freight elevator. There is evidence tending to prove that all the aisles were used for the purpose of moving furniture in and out. One witness testified that at the time of the fire “there wasn’t any aisle running through, to my knowledge.” Another testified that at five o’clock of the afternoon preceding the fire, the north aisle (which appellant’s counsel claim was unobstructed) was filled with furniture. There is considerable evidence to the contrary, but that fact would not justify the giving of the peremptory instruction.

It is next urged that the court erred in admitting in evidence certain ordinances in support of the fourth count of the declaration. Two ordinances are set up in the fourth count, the first in substance and the second in haec verba. In support of this count, plaintiff’s counsel offered in evidence Section 675 of the Municipal Code of the city of Chicago, as in force in 1905. That section provides, in substance, that all buildings of four or more stories in height, except private residences shall be provided and equipped with one or more metallic standpipes and ladders combined, or stair fire escapes, with wrought iron or steel balconies, with suitable railings at each floor, and firmly secured to the outer wall. This ordinance was objected to upon the ground that it had been amended, and, in effect", repealed by an ordinance passed in 1907 which provides that all such buildings shall be equipped with one or more stairway fire escapes. The ordinance of 1907 contains a proviso, however, to the effect “that buildings * * * which are now equipped with ladder fire escapes, shall be exempt from the provision of this section; ’ ’ and it appears from the evidence, that the fire escape on defendant’s building was constructed prior to 1907. The original section and the amendment were both admitted in evidence. In connection therewith, section 684 was also offered and admitted over defendant’s objection. That section provides, in substance, that every building in the city “required by law to be equipped with metallic standpipes and wrought iron or steel balconies, or other fire escape devices,” shall have displayed in conspicuous places notices showing the location of such fire escapes and the easiest way to reach them. We think these ordinances were properly admitted in evidence. They are well pleaded in the fourth count and are applicable to the facts of the case. The building in question was one of those mentioned in the proviso to the amended section 675, and was within the class of buildings “required by law” to be equipped with a “fire escape device.” We are also of the opinion that there is some evidence in the record fairly tending to support the material allegations of the fourth count, and that therefore the court did not err in refusing to instruct the jury to disregard the same. But even if there was no competent evidence in support of this count, the alleged error in refusing to' instruct the jury to disregard it would be harmless, so long as there was proof sufficient to sustain a recovery on any other count. Scott v. Parlin & Orendorff Co., 245 Ill. 460.

It is next claimed that the fifth count does not declare upon a violation of the “Factory Act” of Illinois, nor does it state a cause of action at common law. Section 14 of the so-called Factory Act of 1909 (chapter 48, Hurd’s B. S., J. &. A. 5404) provides that “in all factories, mercantile establishments, mills or workshops, sufficient and reasonable means of escape in case of fire shall be provided, by more than one means of egress, and such means of escape shall at all times be kept free from any obstruction and shall be kept in good repair and ready for use, and shall be plainly marked as such.” We think the fifth count states a good cause of action under this statute. It .is true that the statute is not mentioned, but the negligence charged is, in effect, a failure to comply with the statutory requirements. The count states (with perhaps unnecessary particularity) facts which, if true, show that the defendant owed the plaintiff’s intestate a duty under the statute which it negligently failed to perform, and that she was injured without her fault by the defendant’s negligence in. that respect. The facts so alleged are, in substance, to the effect that defendant was operating a mercantile establishment and a workshop; that sufficient reasonable means of escape in case of fire, by more than one means of egress, were not provided by the defendant; that the sole means of escape in case of fire was one fire escape; that it was not kept free from obstructions and ready for use at the time of the fire, and that the plaintiff’s intestate, while in the exercise of due care for her own safety, lost her life because the defendant negligently obstructed the way to the fire escape in such a manner as to make it difficult for her to reach the same when the fire occurred. The count being sufficient under the statute, it is unnecessary perhaps for us to say that we think the count also states a good cause of action at common law. It is undoubtedly true that there was no duty at common law to provide a fire escape. But where it is alleged that a fire escape was in fact provided by an employer for the use of his employes in case of fire, we think the duty devolved upon such employer, apart from the statute, to use reasonable care to keep the means of escape thus provided reasonably free from obstructions so that it may be used as a means of escape when occasion requires. The presence of a fire escape is, in such case, an assurance of safety upon which the employe may rely to a reasonable extent, precisely as he is entitled to rely, to a reasonable extent, upon the apparent condition of any other instrumentality or place provided for his use in and about the work which he is engaged to perform.

It is next contended that the verdict is contrary to the preponderance of the evidence. After a careful examination of the evidence in the record, in the light of the very earnest argument of counsel, we think the evidence is such that we would not be justified in disturbing the verdict of the jury. In fact, we regard the evidence of several of the defendant’s witnesses as supporting the plaintiff’s theory of all the essential facts except as to the signs or notices.

It is finally urged that the court erred in not making an accurate statement of the law in two of the given instructions, and in refusing several instructions offered by the defendant. Without discussing each of these objections in detv’ we deem it sufficient to say that we have carefully considered the objections made and are of the opinion that none of them is well taken. The second refused instruction - was misleading, argumentative and assumes that the means of escape were cut off by the fire and not by the obstructions. We think the jury were fairly and fully instructed.

Finding no reversible error in the record, the judgment of the Superior Court will be affirmed.

Affirmed.