text:
    Ida Karolinsky, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 15,754.
    1. Writs of error—how statute of limitations must he relied upon. In order to urge a failure to sue out a writ of error within the period fixed by the statute, a plea setting up such defense should be filed.
    2. Writs of error—amendment of statute of limitations not retroactive. The amendment of 1907, which reduced the period of time in which writs of error must be sued out, is not retroactive and does not apply to judgments rendered before its passage.
    3. Contributory negligence—what does not affect question of. The fact that the plaintiff claimed that her attention was distracted in the use of a driveway with which she was familiar by a man of whom she was afraid, is not material on the question of contributory negligence.
    4. Trial—when remarles of court will not reverse. A remark made to a witness after he had indicated a certain lack of knowledge, as follows, “Then you cannot be heard to say much of anything,” is not harmful where it was not made to appear that the statement of the court was contrary to the fact.

      5. Instructions—defendant’s theory should he presented. The defendant’s theory of a ease should be presented by instructions, and instructions which do this and nothing more are proper.

      6. Negligence—failure 4o construct sidewalk according to ordinance. A city is not necessarily liable for failure to construct a sidewalk in strict conformity to an ordinance.
    7. Negligence—what not required of city in construction of sidewalks. It is not incumbent on the city to establish sidewalks and crossings of such a character as to present a smooth, even surface for foot passengers throughout the city.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Henry B. Willis, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    John C. King and James D. Power, for plaintiff in error.
    Edward J. Brundage, John R. Caverly and R. R. Baldwin, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the plaintiff in error for injuries alleged to have been sustained by her on March 8, 1900, by reason of the alleged negligence of the defendant in error in permitting a certain driveway to be improperly constructed from the curb into the premises adjoining a sidewalk over which the city had control, which driveway is alleged to have been lower than the sidewalk, making a drop from the sidewalk to the driveway of about one foot in depth.

The declaration is in two counts and has the usual averments as to the lack of negligence on the part of the plaintiff, etc., the second count being based on the ordinance of the city hereinafter referred to.

There was a trial before the court and a jury, which resulted in a verdict for the defendant, together with a special finding of the jury to the effect that the plaintiff was not in the exercise of due care for her owm safety at the time she fell. Judgment was rendered upon the verdict on July 26, 1904, and a writ of error was sued out of this court on June 19,1909. In 1907 the limitation of the time within which a writ of error may he sued out was changed by the Legislature to three years from the rendition of the decree or judgment complained of, the limitation formerly being five years. It will be noticed that in the present case the writ was not sued out within three years, and a motion had been made by the defendant in error to dismiss it on that ground. This motion must be denied for two reasons: first, the question can only be raised by a plea (Burnap v. Wight, 14 Ill. 303; Hanger v. Gage, 168 Ill. 365); and second, the amended statute does not apply to judgments rendered before it became the law (Ryan v. Supreme Council Catholic Knights of America, 146 Ill. App. 384).

Three grounds are urged for a reversal of the judgment, to-wit: that the court erred in the exclusion of evidence; that the court erred in its instructions; that the verdict is contrary to the weight of the evidence. It is admitted that the plaintiff in error had knowledge of the existence of the driveway in question, but it is claimed that she was not thinking of it at the time of the accident, and by reason of the darkness was prevented from seeing it. It also appears that at the time her attention was attracted to two men who were on the opposite side of the driveway. She testified that when she “looked at the man” she was afraid of him. This statement on motion of defendant was stricken out over the objection of the plaintiff in error. We do not agree with the plaintiff in error in her contention that this was erroneous, but even if it be admitted that the court erred in striking out the testimony we think that the error was a harmless one because, in our opinion, no judgment for the plaintiff in error could be sustained upon the facts as they appear in the record in this case. Herman Weingarten, a witness on behalf of the plaintiff, was asked if he knew what the condition of the sidewalk was at the time of the accident. He replied that he did not know. The court remarked: “Then you cannot be heard to say much of-anything,” and there was an exception by the plaintiff. Proper foundation was not laid for the exception. In our opinion to preserve the point evidently attempted to be made by the plaintiff in error other questions should have been asked by her counsel and rulings by the court had thereon. The mere exception by the plaintiff to the remark of the court that the witness could not be heard to say much of anything, presents no ground for the reversal of the judgment by us.

At the request of the defendant in error the following instruction was given:

‘ ‘ The jury are instructed that if you believe from the evidence that the plaintiff’s alleged injury was caused by the slippery condition of the sidewalk occasioned by ice or snow, and if you further believe from the evidence that the ice or snow, if such there was, was not accumulated so as to cause an obstruction to travel, then you should find the defendant not guilty.”

This instruction is alleged to be erroneous because it assumes the existence of “the slippery condition of the sidewalk occasioned by ice or snow.” The contention of the city was that the slippery condition of the sidewalk was what caused the plaintiff to fall. The city therefore had the right to request the instruction and the court properly gave it, basing it upon the theory of the defendant.

The evidence tended to show that there was a depression in the sidewalk, and it is claimed that this depression was contrary to the ordinance of the city of Chicago, which provides: “Sidewalks shall be constructed so as to incline upwards from the outer edge of the sidewalk towards the buildings or boundary of the lot at a gradient of one inch in every three feet. ’ ’ In our opinion the city cannot be held to damages in all cases of personal injury where persons are injured upon sidewalks which are not constructed in strict conformity with this ordinance. In the case of the City of Chicago v. Boston, 117 Ill. App. 430, Mr. Presiding Justice Baker, speaking for the court, says:

' If the city is liable in this case, then it is liable- to every one who, without negligence, shall slip, fall and be injured in stepping from a roadway of a street, over a gutter eight inches wide, to a sidewalk four inches higher than the roadway, for, as we have seen in this case, neither the fact that the roadway had not been paved, nor that the gutter was at the time of more than the usual depth, caused or contributed to the fall of the plaintiff. From a gutter only eight inches wide, with the sidewalk curb on one side of it only four inches higher than the gutter curb on the other side of it, danger to one passing from the roadway over the gutter to the sidewalk is not in common experience to be anticipated, and the city can only be found guilty of negligence when the defect in a street is such that a reasonably prudent man should' anticipate some danger to persons passing over it.”

We agree with counsel for defendant that it is not incumbent on the city to establish sidewalks and crossings of such a character as to present a smooth, even surface for foot passengers throughout the city. We think that the construction of the sidewalk and driveway, as shown by the record in this case, was not of such a character as to subject the city to the charge of negligence. • That appears to have been the view of the jury and the court before whom the case was tried, although the jury by its special verdict also found that the plaintiff herself was guilty of negligence.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    J. A. Peterson, Defendant in Error, v. Harry Lubliner and Joseph Trinz, Plaintiffs in Error.
    Gen. No. 15,761.
    Municipal Court—when judgment set aside. A judgment of the Municipal Court will be set aside by the Appellate Court if it is satisfied that the finding is not justified by tho evidence.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 3, 1911.
    Laramie & Levy, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendant in error against the plaintiffs in error for the value of certain garden plants sold by the former to the latter. There was a trial before the court without a jury, and a finding for the defendant in error and judgment upon the finding.

We are asked to reverse the judgment upon the ground that it is against the weight of the evidence. The judgment is for $56.75. Defendants admit an indebtedness of $18.75, and insist that the plants were sold by by sample, that the goods received were not up to the sample, with the exception of a portion of them which amounted in value to $18.75, and that the remainder were returned to the defendant in error.

The testimony on the part of the defendant in error consisted of a deposition made by J. A. Peterson, the defendant in error, and the answers to interrogatories propounded to the defendants below, which answers were made part of the case of the plaintiff below, who is the defendant in error here.

Upon examination of the record we are satsified that the finding of the court is not justified by the evidence. It is apparent that there should be a judgment for some amount in favor of the defendant in error, but we are unable to say just what this amount should he. Additional evidence on a hew trial should disclose it.

The judgment is therefore reversed and the cause remanded.

Reversed and demanded.


text:
    Anthony Rebak, Executor, Defendant in Error, v. Chicago Terminal Transfer Railroad Company, Plaintiff in Error.
    Gen. No. 15,783.

      Instbuctions—when upon right of recovery erroneous. If the court instruct the jury to the effect that if the jury believe from the preponderance of the evidence that the defendant was guilty of the negligence charged in the declaration, or either count thereof, then the plaintiff is entitled to recover, error is committed if there was no evidence to sustain one or more of the counts of the plaintiff’s declaration.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 3, 1911.
    Jesse B. Barton, for plaintiff in error.
    Frank H. Novak and Charles E. Milroy, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought in his lifetime by Frank Matyszyk against the plaintiff in error for damages on account of injury to his health alleged to have been occasioned by negligence of the plaintiff in error while Matyszyk was a passenger upon its railroad. Suit was brought in June, 1905. Before the trial, which was had in March, 1909, Matyszyk died, and in February, 1909, his death was suggested of record and an order entered that the cause proceed in the name of Anthony Bebak, the executor of his estate.'

The record discloses that February 14, 1905, was a cold, stormy day, with a large amount of snow falling. In the afternoon.Matyszyk with two others left their home, which was three and a half or four miles from the station used by the defendant in the city of Chicago, and went by street car to this station, where they remained for some time and then bought tickets to Chicago Heights, a station on the defendant’s railroad. Some time, perhaps an hour, after buying the tickets, they boarded the train of the defendant, expecting to be taken to their destination. There is testimony on behalf of the defendant to the effect that as passengers were boarding the train they were told that it would not go beyond Harvey, and that employes of the defendant went through the train advising all passengers that the train would not go beyond Harvey on account of the storm and a blockade. The announcements were made in English. Matyszyk and his companions are said to have been unable to speak English, and the testimony tends to show that they did not understand the announcements, if such were given. The train left about five o’clock in the afternoon and within an hour was at Harvey, a station intermediate between Chicago and Chicago Heights. Matyszyk and his companions were told with the other passengers to get off the train. There is some evidence offered by the defendant to the effect that the passengers were told at Harvey that the train would not proceed and that they would be taken back to Chicago if they so desired, and it appears undisputed by the evidence that some passengers were taken hack by the train to Chicago. On the other hand, there is testimony offered by the plaintiff to the effect that Matyszyk and his companions were told that they would not be taken to Chicago. Matyszyk and his companions then stayed in the depot at Plarvey until between 9 and 10 o’clock in the evening, when an employe of the defendant in charge of the station is said to have required them to leave the station so that it might be closed for the night. Matyszyk and his companions were then taken by another employe of defendant to a small house or shanty in which there was a stove, which did not keep them warm as they slept, and remained there until 6 o ’clock on the following morning when they returned to the station at Harvey, and about the middle of the afternoon were taken by a train to Chicago Heights. Matyszyk remained in Chicago Heights for one or possibly two days and then returned to Chicago. It appears that soon after getting to Chicago he was attended by a physician who testified at the trial that he found him suffering with double lobar pneumonia, both lungs being affected, the right one more than the left. The physician further testified that Matyszyk remained in bed for about twelve days, and at the expiration of three weeks “he was about all right. ’’ His death, which apparently occurred some years afterward, is not charged to have been caused by the effects of the pneumonia.

The present suit is brought upon the theory that the defendant was negligent in its care of Matyszyk while at Harvey in not providing him with a suitable place in which to stay, and that to such negligence the attack of pneumonia is directly attributable. There was a trial before the court and a jury and a verdict against the defendant in the sum of $2,000, upon which judgment was entered, which judgment is sought to be reversed in this proceeding.

The declaration is in five counts. The first, second, and fourth counts, after setting up the relation of the parties, etc., deal with the treatment of Matyszyk at Harvey and allege as negligence the action of the defendant in failing to care for him properly there as well as its action in stopping the train at Harvey and requiring Matyszyk to alight at that point.

The third count of the declaration charges the negligence of the defendant to be that it allowed its engine which was used upon the train to become old, wornout and defective and incapable of hauling the train to its destination, whereby the train was stopped at a small station a long distance from the destination of Matyszyk and unable to proceed, by means whereof Matyszyk was compelled by the defendant to take up his temporary abode in an uninhabited house without sufficient heat, and thereby contracted an illness of a permanent and lasting nature, etc.

The fifth count of the declaration alleges that it was the duty of the defendant to furnish and equip its train with a locomotive engine of sufficient power and strength to pull the train to the destination of plaintiff’s testator, but that the defendant negligently and carelessly furnished and attempted to haul said train with a small, weak and insufficient engine over the snow .and ice covered rails of the railroad, and that the engine was incapable of hauling said train and was compelled to stop a long distance from the destination of the plaintiff’s testator, etc.

The record does not contain any proof tending to sustain the allegations of either of the two counts last mentioned. One of the. instructions asked by the plaintiff and given by the court to the jury is to the effect that if the jury believed from a preponderance of the evidence that the defendant was guilty of the negligence charged in the declaration, or either count thereof, and that the injury to Matyszyk complained of and alleged in the declaration resulted directly therefrom, and that he was in the exercise of ordinary care for his own safety before and at the time of the injury, if any, the defendant is liable and the plaintiff is entitled to a verdict.

The same language was used in another instruction in connection with other matters therein set forth. These instructions were objected to by the defendant and exceptions taken to the action of the court in giving them. Inasmuch as there was no evidence to sustain the third or the fifth count of the declaration, the giving of these two instructions which permitted a recovery upon either or both of them was erroneous, and the judgment must be reversed for that reason. Ewing v. Runkle, 20 Ill. 448; Piatt, etc., v. People ex rel, etc., 29 Ill. 54.

The court was asked by the defendant to instruct the jury to find the defendant not guilty under the third and also under the fifth count of the declaration filed in the cause, and refused to give such instructions. While! it was not erroneous for the court to refuse to give the two instructions last referred to, no error would have been committed if he had given them, and by his doing so the error in giving the two instructions on behalf of the plantiff as above mentioned might have been rendered harmless. North Chicago Street Railway Co. v. Hutchinson, 191 Ill. 104.

Inasmuch as the case must be reversed for the errors suggested, it is unnecessary to pass upon the other points raised by the plaintiff in error in its brief, and we have refrained from discussing them. The judgment wll be reversed and the cause remanded.

Reversed and remanded.


text:
    Matteo Zustovich, Defendant in Error, v. Charles E. Morrison, Plaintiff in Error.
    Gen. No. 15,798.
    1. Municipal Court—effect of failure to file amendment to statement of claim. If an amendment to a statement of claim is not filed notwithstanding leave of court granted so to do, the omission is unavailing on appeal in the absence of its having been pointed out in the trial court.
    2. Landlord and tenant—when original lessee and not intervening assignee entitled to interest upon deposit. Meld, that the interposition during a temporary period of an assignee of the original lessee did not entitle him as against the original lessee, to whom the premises were ultimately surrendered, to the interest upon a sum which had been deposited with the landlord as security for rent upon which interest was to be paid at the end of the term in the event of full compliance by the lessee with the terms of the lease.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Buell & Abbey, for plaintiff in error.
    Arthur C. Bachrach, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

On December 7, 1905, the defendant in error, hereinafter called the plaintiff, leased from the plaintiff in error, hereinafter called the defendant, a store and basement in the city of Chicago, the term of the lease being from January 1, 1906, to April 30, 1909.

Among others, the lease contained a provision whereby the plaintiff was required to deposit with the defendant the sum of $1,350 to apply on the rent for the last three months of the term. In respect to this matter the lease contains the following:

“Said amount is received and shall be applied as rent of said months providing the terms and conditions of this lease are promptly complied with. Should the party of the second part fail to carry out the covenants and conditions of this lease the thirteen hundred and fifty ($1,350) dollars deposited shall be forfeited to the party of the first part as liquidated damages. In case the party of the second part complies with all the covenants and conditions of this lease, party of the first part hereby agrees to pay party of the second part interest at the rate of three (3 per cent, per annum upon said thirteen hundred and fifty ($1,350) dollars from the first (1st) day of May, 1906, to the first (1st) day of February, 1909. Said interest to be payable February 1,1909.”

Suit was brought against Charles E. Morrison, individually, and Charles J. Carter. Later it was dismissed as to Carter, and by leave of court the name of defendant was amended to read: “Charles E. Morrison, Trustee of the Estate of Ezekiel Morrison.”

The case was submitted on the following statement of facts:

“That the plaintiff on or about said day duly signed cember, A. D. 1905, executed, sealed and delivered to the plaintiff a lease in the words and figures following, to wit: (Then follows lease in the same form as “Exhibit A” attached to defendant’s affidavit of merits.)
That the plaintiff on or about said day duly signed and sealed said lease; that the plaintiff, pursuant to said lease on the 1st day of January, 1906, entered into possession of the premises described in said lease and continued to occupy the same until on or about May 1, 1906, and during said period paid the amount of rent specified in said lease for said period; that on the 1st day of May, 1906, the plaintiff executed the assignment attached to said lease and that one Charles J. Carter signed the assignment and acceptance appearing on said lease and that on said day the defendant signed the consent to assignment appearing on said lease; that on or about the 1st day of May, 1906, the said Charles J. Carter entered into possession of the premises described in said lease and paid to the defendant the amount of rent specified in said lease for the month of May, 1906; that pursuant to said lease plaintiff at the time of execution of same deposited with the defendant $1,350 to be applied in accordance with the terms expressed in said lease; that on or about the 1st day of June, 1906, the said Charles J. Carter gave up the possession of said premises and plaintiff again entered into possession of same and so remained in possession for about four months with the knowledge of the defendant and during said time paid the rent specified in said lease to the defendant; that the defendant executed a receipt each month for said rent and delivered the same to the plaintiff, said receipt reciting that said rent has been paid by the said Charles J. Carter; that after the expiration of said four months, one Samuel Schwartz, with the knowledge of the defendant entered into possession of said premises; said possession was under an agreement between said Schwartz and the plaintiff, and said Schwartz paid the monthly rental to defendant until the 1st day of February, 1909; that at the time when such monthly payments were made to defendant he executed a receipt reciting that said rent had been paid by Charles J. Carter; that for the months of February, March and April, 1909, no one paid rent for said premises; that the defendant applied the said $1,350 placed in his hands in payment of the rent for said three months; that at the expiration of said lease a new lease was made to said Schwartz. That the only question involved in this suit is whether or not the plaintiff or said Carter is entitled to the three per cent, interest upon said deposit of $1,350 specified in said lease.”

In addition to this statement the testimony of the plaintiff was introduced, and also that of the defendant. The plaintiff testified that on June 1, 1906, the date that Carter vacated the premises, he went to the office of the defendant with Carter; that Carter said that he was unable to make the business go, and asked the plaintiff to take back the lease and fixtures; that the plaintiff consented to the request and that Carter gave the lease back to the plaintiff and that the plaintiff then exhibited the lease to the defendant and requested the defendant to fix it up so that he could immediately resume possession; that the defendant said: “That’s all right. I always look to you for the rent anyway. ’ ’

The testimony of the defendant is to the effect that Carter was not with the plaintiff at the time, and the defendant denied that he had made the statement which the plaintiff testified he made, and testified further that all he said to the plaintiff was that he (the plaintiff) was liable for the payment of the rent and that the defendant had no interest in the matter, and would look to the plaintiff for the payment of the rent if Carter did not pay the same.

There was a hearing before the court without a jury and a finding and judgment for the plaintiff.

We are asked to reverse this judgment on the ground, first, that the process and statement of claim were not amended, although an order was entered permitting that to be done. We see no merit in this contention. The point does not seem to have been raised during the trial and, in our opinion, cannot be raised for the first time after judgment has been entered. In the Municipal Court there are no written pleadings, and therefore the large number of cases referred to by counsel for defendant which have to do with amendments to declarations do not apply. In the case of Chicago & Alton R. R. Co. v. Heinrich, 157 Ill. 388, it appeared that in the introductory part of the declaration the railroad company was designated as the Chicago, Alton & St. Louis R. R. Co., and the court held that as the company had pleaded by its right name in bar it waived the misnomer, and that in addition the defect was cured after verdict by the Statute of Amendments and Jeofails. In addition to that we are concluded upon the point raised by the provisions of sub-sections 7 and 8 of section 23 of the Municipal Court Act, which in substance provide that no judgment shall be reversed except for substantial errors of the Municipal Court directly affecting the matters at issue between the parties, and that the case must be decided upon its merits as they may appear from the statement or stenographic report signed by the judge.

It is urged secondly that we should reverse the case because the interest on the deposit, which is all that is at issue in the case, if payable to anyone is payable to Carter, as assignee, and not to Zustovich. It would appear from the stipulated facts as shown above that on or about the first of June, 1906, the assignee, Carter, gave up possession of the premises and that the plaintiff entered into possession of the same and remained in possession for about four months, with the knowledge of the defendant, and during that time paid the rent specified in the lease. Eeceipts, however, were made out to Carter. After that time the plaintiff turned over the possession to one Schwartz, who continued to meet the monthly payment of rents to February 1, 1909, the defendant continuing to give receipts therefor in the name of Carter. It further appears that Carter was in possession of the premises for only one month and that he then surrendered them to the plaintiff with the knowledge and consent of the defendant, who thereafter accepted the rent from the plaintiff and Schwartz. We think the record clearly shows that the defendant practically treated the lease as having been reassigned by Carter to the plaintiff. Whether that is so or not, we do not agree with the defendant that by the ássignment of the lease Carter was to receive the benefit of the $1,350 which had been deposited. It is quite clear that the deposit was made to guarantee the performance of the lease by the lessee, and by the lease the defendant agreed that he would pay Zustovich interest upon it at 3 per cent. The terms of the lease having been complied with it follows that the interest upon the fund is now due the lessee, and the judgment will be affirmed.

Affirmed.


text:
    Republic Manufacturing Company et al., Appellees, v. J. W. Strackbein et al., On Appeal of J. W. Strackbein, Appellant.
    Gen. No. 15,816.
    Mechanic’s liens—when performance of contract to he completed. Where no time is fixed in a contract for performance the law will imply that it is to be performed within a reasonable time.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    Michael D. Dolan, for appellant.
    Dunn & Hayes, for appellees.
   Mr. Justice Clark

delivered the opinion of the court.

The appellees, Werdell & Thumm, are intervening petitioners in a suit for a mechanic’s lien filed against the appellants, the appellees being the contractors for the plumbing, heating, draining and gas fitting in an apartment house constructed by the appellants.

The court below approved the report of the master in chancery, fixing the lien of appellees at $885.22, and entered a decree thereon.

The points raised by the assignments of error reduce themselves to one, namely, that the master’s report and the decree entered thereon are against the weight of the evidence. The principal contention is that there should have been some amount awarded to the appellants for damages occasioned by delay in construction. The contract did not fix any time for the completion of the work. The appellants invoke the well-known principle that where no time is fixed in the contract for performance the law will imply that it is to be performed within a reasonable time, and we agree that such is the law.

The master in chancery and the chancellor, who seem to have considered the evidence with care, reached the conclusion that the proof did not show unreasonable delay on the part of appellees, at least that the delay in the construction of the building was not shown to have been wholly due to the appellees, and further that there was no evidence from which the damag’e to appellants by reason of delay in the construction could be ascertained. We have carefully read the testimony as it appears in the abstract and we agree with them in this conclusion. It is true that there was exasperating and what would seem to be unnecessary delay in the construction of the building, but appellees were not the only contractors. There is testimony in the record tending to show that the appellees were delayed by the carpenter contractors and that changes were made in the specifications by the architects, at least one of which was suggested by appellants, and that these changes caused delay. The architects Issued a final certificate to the appellees without making any deduction because of delay, and the superintending architect testified to the effect that while'there was delay it was not of such a character as could be properly chargeable to any one of the contractors. The architects were bv the contract made umpires as between the parties, and their attitude in this matter undoubtedly influenced the master and the chancellor, as we think it properly should have done.

The appellants further insist that too large an amount was awarded for “extras.” The master in chancery deducted about $90 from the amount allowed by the architects for these extras, and his finding was approved by the chancellor. We agree that this deduction was all to 'which the appellants were entitled. The decree is affirmed.

Affirmed.


text:
    E. G. Hamlin, Appellee, v. Thomas Piser et al., Appellants.
    Gen. No. 15,826.
    1. Suretyship—parol evidence competent to identify instrument referred to in contract of guaranty. If a guaranty purports to guarantee the partial payment of a note to an extent described with accuracy, parol evidence is competent to fully connect the instrument of guaranty with the note referred to therein.
    2. Suretyship—what consideration sufficient to support guaranty. Forbearance in the enforcement of an antecedent debt is a good consideration for the guaranty of a note given to represent the same which note is made payable in the future.
    3. Suretyship—when lack of diligence no defense to action upon guaranty. The unconditional guarantor of an indebtedness may not require that the owner institute proceedings against the maker.
    4. Statute of Frauds—when guaranty not within. A written guaranty which does not on its face state a consideration is not within the Statute of Frauds if actually supported by a valid consideration.
    5. Interest—in action again guarantor. If a contract of guaranty is not performed interest may be recovered against the guarantor to the same extent that it could be recovered against the principal debtor.
    6. Municipal Court—when objection of variance unavailing. If the statement of claim sufficiently advised the defendant of the nature . of the plaintiff’s action, an objection of variance will not be considered.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Hornstein & Fisher, for appellants.
    Pringle, Northup & Terwilliger, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Recovery was had in this case upon'a guaranty which reads as follows:

“Chicago, Jan. 11, 1906.
We the undersigned hereby guarantee payment of one-third viz.: $700.00 of the note of $2100.00 drawn in favor of E. G-. Hamlin of Three Oaks, Mich., and bearing even date herewith.
(Signed) Thos. Piser.
Max Gutkowsky.
Sam S. Piser.
The above $2100.00 is due in three payments, viz.:
One-third Jan. 11,1907.
One-third June 11,1907.
One-third Jan. 11,1908.”

There was also introduced in evidence a note bearing the same date for $2100, made by the Rossuck Manufacturing Company to the order of the appellee, and testimony was introduced tending to show that the note for $2,100 mentioned in the guaranty is the note last referred to.

The cause was submitted to the court without a jury and there was a finding for the appellee and against the appellants, the damages being fixed at the sum of $700 and interest thereon at 6 per cent., and a judgment upon such finding.

The points relied upon by appellants for reversal, as shown in their brief, are that the parol evidence offered for the purpose of connecting the two instruments above referred to was inadmissible; that the guaranty, being a guaranty of a pre-existing debt, not being based upon a new consideration, is therefore not enforceable; that the instrument was void under the Statute of Frauds; that the appellee failed to exercise due diligence; that there is a variance between the declaration and the proof; that interest should not have been allowed.

It will be noticed that the guaranty by its terms describes with accuracy the note for $2,100, the payment of one-third of which was guaranteed, excepting that it does not state the name of the maker. In such circumstances, we think that parol evidence to connect the two instruments was proper (Myers v. Munson, 65 Ia. 425; Lee v. Butler, 167 Mass. 426). We think that the guaranty expressed the substance of the contract with reasonable certainty by reference to the other note, and that the case is thus distinguished from that of Fraser v. Howe, 106 Ill. 563, cited by appellants.

With regard to the claim of lack of consideration, we would say that the evidence tends to show that the note for $2,100 was given for an antecedent indebtedness, the payment of which was postponed for two years, the note being payable “on or before two years after date.” This, in our opinion, is a good consideration (Webbe v. Romona Co., 58 Ill. App. 227; Harris v. Harris, 180 Ill. 157).

We do not think that the guaranty is open to the objection that it was void under the Statute of Frauds. While it is true that the guaranty itself did not state the consideration, that, under the Statute of Frauds which is now in force, is not necessary (Patmore v. Haggard, 78 Ill. 607). The essential thing is that the promise to answer for the debt of another be in writing.

The next point urged by the appellants is that the appellee did not show diligence in the collection of the note. Their argument on this point is based upon numerous authorities, none of which we think is in point. In Dillman v. Nadelhoffer, 160 Ill. 121, the endorsement on the note was in these words: “I guarantee the collection of the within note.” To guarantee the collection of a note is one thing, and to guarantee the,payment is another. It may well be that one who merely guarantees the collection of a note—a conditional guarantor—may insist that the owner of the note use diligence in attempting to collect it; but the unconditional guarantor of an indebtedness may not require that the owner institute any proceedings against the maker (Penny v. Crane Bros. Mfg. Co., 80 Ill. 244).

The next point insisted" upon by appellants is that there is a variance between the declaration and the proof. With respect to this matter it is sufficient to say that no pleadings are required in the Municipal Court. The statement of claim sued on it is true contained both the note and the guaranty. As the appellants were not the makers of the note it is quite apparent that the document sued on was the guaranty itself, copy of which appeared in the statement of claim underneath the copy of the note. In our opinion the statement of claim sufficiently advised the appellants of the nature of appellee’s claim.

Nor, in our opinion, can there be any question that the appellants are liable for the interest. In the case of Gridley v. Capen, 72 Ill. 11, the language of the guaranty was: “For value received we guarantee the payment of the within note when due, ’ ’ etc. In that case it appears that the note contained a provision to the effect that if not paid at maturity the maker should forfeit and pay 20 per cent, interest per annum till paid, as liquidated, agreed and assessed damages thereon for the detention and nonpayment. The court held that the guarantor was liable for this 20 per cent, and this language is used: “He (the guarantor) would certainly be liable for the interest which would be given on suit brought, by way of damages; then why not for stipulated damages?” It is true that in the case last referred to the guaranty was for the payment of the whole of the note. In the case before us the guaranty is for the payment of one-third of the note, and, in our opinion, the same rule should govern.

No error appearing in the record, the judgment is affirmed.

Affirmed.


author: Mb. Justice Clabk

text:
    The People of the State of Illinois, Defendant in Error, v. Abe Weinstein, Plaintiff in Error.
    Gen. No. 15,838.
    Municipal Court—how record may he amended. The record of the Municipal Court may be amended after such court has lost jurisdiction of the judgment if a contemporaneous memorandum of the judge exists which establishes the misprision and supplies the information to correct it.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 17, 1911.
    Rehearing denied October 17, 1911.
    Egbert E. Cantwell, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mb. Justice Clabk

delivered the opinion of the court.

In this case information was filed August 3, 1909, charging the defendant with the crime of pandering, under the provisions of “An Act in relation to pandering,” which became in force July 1,1909.

There was a trial before the court and a jury. The defendant was found guilty and judgment was entered on the verdict, the defendant being sentenced to ten months’ imprisonment in the House of Correction and to pay a fine of $500 and costs.

The grounds urged for the reversal of the judgment are that the information is fatally defective and that there was no testimony to sustain the verdict. The record filed in the cause by the plaintiff in error showed that the information was sworn to on July 3, 1909, while the crime was charged to have been committed on July 18, 1909, and it is upon this discrepancy in the dates that the principal argument is made upon the proposition advanced by the plaintiff in error that the information is defective. An additional transcript of the proceedings, however, has been filed by the state’s attorney, from which it appears that the original record in the Municipal Court was erroneous—that the date of filing the information was August 3rd and not July 3rd, and also that'the record in that court has been by order of the court amended and corrected to conform with the facts; that minutes were kept by the judge and that the order amending the record was made so that the record should speak the truth as shown by these minutes. This order is stated to have been entered upon an inspection of the minutes kept by the presiding judge as to proceedings before him on the third day of August, 1909, and on the third day of July, 1909, and the daily report of the clerk of the Municipal Court for July 3, 1909, included in the transcript of the proceedings so filed by the state’s attor- ■ ney.

We think that the correction of the record in the court below, and the action of the court therein, was in consonance with the rules laid down in Tynan v. Weinhard, 153 Ill. 598, and in Hubbard v. People, 197 Ill. 15.

We next have to consider the point raised by the plaintiff in error that the verdict is against the evidence. We have carefully read the testimony as it appears in the record, and are of the opinion that the conviction is fully sustained. We do not feel that it is incumbent upon us to set out the testimony in this opinion. It is sufficient to say that no testimony was offered on behalf of the defendant, and that his guilt, was fully established by the testimony of six witnesses called by the state.

We find no error in the record, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Henry M. H. Bolander et al., Appellants, v. Robert A. Childs et al., Appellees.
    Gen. No. 15,483.

      Injunctions-—when assessment of damages upon dissolution premature. Where the only prayer of the bill is for an injunction an assessment of damages on the dissolution of a temporary injunction is «premature if the complainant’s right to a permanent injunction remains undisposed of.
    Bill for injunction. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed.
    Original opinion filed May 5, 1911.
    Opinion on rehearing filed October 3, 1911.

      Peckham, Packard, Ap Madoc & Walsh, Sherman M. Booth and Ragnar Oberg, for appellants.
    Roger Sherman and Percy B. Eckhart, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This is an appeal prosecuted from a decree of the Superior Court awarding damages against, appellants upon the dissolution of a temporary injunction.

The bill of complaint was filed by Henry M. H. Bolander and Ida C. Bolander, his wife, appellants, September 28, 1908, against Bobert A. Childs and others, appellees. Complainants allege that they are the owners of about 1,259,001 shares (of a total capitalization of 2,500,000 shares) of the Scandia Mining Syndicate, a South Dakota corporation, which owns valuable placer gold mines near Nome, Alaska, from several of which alone, more than $2,500,000 in gold has been extracted.

The bill names all the officers and seven of the nine directors of the corporation, and also Bobert A. Childs, attorney for said corporation, as defendants. Inasmuch as the equities of the case are not before us on this appeal, it is not necessary for us to state the averments of the bill.

. The bill prays.for an injunction, restraining the defendants from passing any resolution for the payment to B. A. Childs of any additional fees; or for the abandonment of any claims; or for the leasing of any property; or for the granting authority to the agent at Nome to lease any property, etc.; and from obtaining possession of funds in the Nome banks.

The bill also prays for general relief, and is sworn to by both complainants.

On the filing of the bill the court granted a temporary .injunction as prayed in the bill, on the complainants filing an injunction bond.

A motion was made to dissolve the injunction, and at the same time answers were filed by the defendants. The motion, however, appears to have been based on the bill and affidavits alone. The answers were not used on the motion. The record shows that no final order or decree was entered disposing of the case. No other order was entered, except an order giving leave to the defendants to file suggestions of damages and the decree appealed from fixing the damages.

Many errors are assigned, but the ground for reversal mainly relied upon in argument is that where the only prayer of the bill is for an injunction, an assessment of damages on the dissolution of a temporary injunction is premature if the complainants’ right to a permanent injunction remains undisposed of.

In Terry v. Hamilton Primary School, 72 Ill. 476, a temporary injunction was granted on a bill filed for injunction, and upon the coming in of the answer the temporary injunction was dissolved, but no decree was rendered disposing of the case upon its merits. The court, however, assessed damages on the dissolution of the injunction. In reversing the decree assessing the damages the court said, at page 479:

“Again, it was improper to assess damages until there was a final hearing, and it was determined whether the relief sought should be granted. The only prayer of the bill was for an injunction, and although, by affidavits and other proofs, it might appear to be eminently proper to dissolve the injunction temporarily granted, still, on a final hearing evidence might have been adduced requiring that there should be a perpetual injunction. We find no decree in the record dismissing or otherwise disposing of the bill; nor do we find that the case was ready for a hearing on the merits. We cannot act on a mere recital in the certificate of evidence, that the bill was dismissed. That is not a decree, nor can it be treated as such. It has none of the elements of a decree, and cannot be so regarded. Hence we refrain from discussing the merits of the case. ’ ’

And in the recent case of Dempster v. Lansingh, 234 Ill. 381, the court recognizes the distinction pointed out in the Terry case as follows:

“It is contended by the appellant that it was improper for the court to hear suggestions of damages until the cause was before the court on final hearing, and until it was determined whether relief sought should be granted. In support of this position, Terry v. Hamilton Primary School, 72 Ill. 476, is cited and relied on. That case is not like the one at bar. There the sole object of the proceeding was to obtain a perpetual injunction, and a temporary injunction was granted to protect the interests of the parties until the cause could be heard on the bill and answer. Here the bill was for a different purpose, and the temporary injunction was merely ancillary to the main cause. In such case the statute is plain that the court may hear suggestions of damages, and allow the same before final hearing. ”

Keith v. Henkleman, 173 Ill. 137; Wing v. Dodge, 80 id. 564; Darst v. Gale, 83 id. 136, are cited and relied upon by appellees as authorities sustaining the action of the trial court. Keith v. Henkleman involved the reformation of an injunction bond. Wing v. Dodge involved the setting aside and cancellation of a judicial sale, as well as an injunction against the collection of notes. In that case, furthermore, cross-errors were assigned upon the action of the court in refusing to permit appellees therein to file suggestions of damages on dissolving the injunction and dismissing the bill; and the court held it was error. These cases differ from the case at bar. Darst v. Gale involved, besides an injunction from selling real estate, a declaration or decree that the trust deed was void and that it be set aside as a cloud upon the title. There was a final decree. The language used by the court in construing the statute was so broad that Mr. Justice Breese was compelled to dissent on that question. In the case of Dempster v. Lansingh, supra, is a later expression of the court on the question before us, and it expressly recognizes the distinction made in the Terry case and the reason of it.

It is urged in a petiton for rehearing that under the statute (Hurd’s R. S., sec. 12, chap. 69) damages must be assessed before final disposition of the case. We agree with this contention. It is further claimed, however, that upon the dissolution of an injunction the defendants had the absolute right in this case to have their damages assessed at once. This we cannot accede to under Terry v. Hamilton Primary School, supra.

It is further contended that the bill in this case is not for an injunction alone, because the bill prays for general relief in addition to the injunction prayed for, and that under the prayer for general relief a decree might be entered denying the special relief and yet awarding such general relief as the allegations of the bill and the proofs warrant. This contention is, we think, too broad under the authorities. Speaking of the prayer of the bill, Daniell’s Chancery Pleadings and Practice, vol. 1, pg. 379, (5th ed.), says:

“This part of the bill, therefore, should contain an accurate specification of the matters to be decreed; and in complicated cases, the framing of it requires great care and attention; for although where the prayer does not extend to embrace all the relief to which the plaintiff may at the hearing show a right, the deficient relief may be supplied under the general prayer, yet such relief must be consistent with that specifically prayed, as well as with the case made by the bill; for the court will not suffer a defendant to be taken by surprise, and permit a plaintiff to neglect and pass over the prayer he has made, and take another decree, even though it be according to the case made by his bill.”

(Hiern v. Mill, 13 Ves., 119; Cook v. Martyn, 2 Atk., 2, 3; Grimes v. French, ib., 141; Partridge v. Haycroft, 11 Ves., 570, 574.)

The rule is accurately stated in Hopkins vs. Snedaker, 71 Ill. 449, in the following terms:

“Where a bill contains a prayer for general relief, and also a prayer for specific relief, the complainant may have other specific relief," provided it be consistent with the case made by the bill and with proofs. Wilkin v. Wilkin, 1 Johns. Ch., 111; Bailey v. Burton, 8 Wend., 339.”

Upon the authorities we cannot reach the conclusion that the prayer for general relief changes the character of the bill from a bill for injunction to one for general relief, if it can be said that there is such a bill known to our practice. It is the special relief prayed for and the averments supporting that relief which gives character to the bill, not the prayer for general relief. The latter prayer does not neutralize the specific prayer. It strengthens and makes more elastic the specific prayer, but does not detract from its force or change its essential character.

It is further contended that so far as the injunction feature is concerned the suit is finally disposed of. We cannot agree with this contention. It may well be that upon a final hearing on the merits upon the issues presented, the trial court may issue properly a permanent injunction substantially as prayed in the bill.

In our opinion the assessment of damages in this case was premature, and for that error the decree is reversed.

Reversed.


text:
    Michael Rostad, Plaintiff in Error, v. Chicago Suburban Water and Light Company, Defendant in Error.
    Gen. No. 15,599.
    Waterworks companies—when action for breach of contract does not lie. If a water company is under obligation by virtue of contract to supply water to a municipality for fire protection and it fails so to do, in consequence of which failure the dwelling house of a resident is destroyed by fire, an action sounding in contract does not lie by such resident against such company where no privity of contract appears.
    Assumpsit. Error to the Superior Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Alexander J. Strom, Stahl & Lewald and Darrow & Masters, for plaintiff in error.
    Wood & Oakley, for defendant in error; Horace S. Oakley and Albert M. Kales, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

From the evidence offered and excluded by the court on the trial, it appears that on August 1, 1899, the defendant in error, Chicago Suburban Water and Light Company, an Illinois corporation, purchased and succeeded to all the property, franchises and rights of the Cicero Water, Gras and Electric Light Company, an Illinois corporation. On February 18,1900, a few months after this purchase, by virtue of certain franchises which had been granted to defendant in error by the incorporated town of Cicero and accepted by it, and by virtue of certain contracts made between the town of Cicero and the original company which was in control and operation of water works supplying the town of Cicero with water for public and domestic uses, including fire protection, defendant in error came into control of all the water works pipes and hydrants in the town used for those purposes.

Plaintiff in error, Michael Eostad, on February 18, 1900, was and had been for many years an inhabitant of the town of Cicero and a taxpayer both as to real and personal property, and owned a dwelling house where he resided with his family within the incorporated limits of the town of Cicero, and in a part of the town supplied with hydrants used in furnishing water in eases of fire, and for other public uses. On this last mentioned date a fire started in the house adjacent to that of plaintiff in error, and an alarm was promptly sent to the fire department of the town, and also to the Chicago fire department. The fire companies responded without delay with adequate equipments for extinguishing the fire, attached their hose to the nearest hydrant, but could not obtain water, there being a pressure of only three pounds to the square inch. Other hydrants were tried with no better results.

By the terms of a contract made May 25, 1889, between the town of Cicero and the Cicero Water, Gas and Electric Light Company it was provided among other things that: ‘ ‘ The said company shall keep at all times a pressure of water of at least 35 pounds per square inch on the water pipes, and in case of fire the pressure of water shall at once be increased to at least 40 pounds per square inch on said water pipes.” By reason of defendant in error’s negligence and wrongful act and failure to perform its contract the fire spread from the building where it started to plaintiff in error’s residence, and the building and contents were completely destroyed.

Plaintiff in error instituted this action in assumpsit against defendant in error to recover damages for the loss of property, and filed the common counts. Subsequently by leave of court, plaintiff set forth in an amended declaration the franchises acquired by defendant under the original grant to its predecessor, and the contracts made between the town and defendant’s predecessor, and the transfer thereof to defendant, and that by virtue thereof defendant was operating the water works of the town of Cicero on the date of the fire, and failed to perform its contract as to keeping and maintaining at all times the prescribed pressure of water, and that by means thereof plaintiff’s building and the contents thereof were destroyed.

Defendant filed the general issue to the amended declaration and the cause went to trial on these pleadings. The trial court sustained defendant’s objections to the various franchises and contracts and the deed transferring the same to defendant, and plaintiff’s offer of proof of the above facts, and excluded the proffered evidence and directed a verdict for defendant.

On the main question presented by the record plaintiff in error states his position in his brief thus:

‘ ‘ That this is a case of the violation of public duties created by public laws and franchises and evidenced by the ordinances and contracts offered—a case of negligence. That the appellee has undertaken duties otherwise entrusted to officers and employees of a municipality; that such officers and employees are liable to the individual who has been injured by their negligence. That a corporation occupying their place and likewise receiving pay and compensation, cannot be absolved from the duties and obligations imposed upon the officers and agents of the municipality. ’ ’

This is an action of assumpsit based upon a contract, and not a tort action for negligence. The praecipe, summons and narr first filed are in assumpsit. No change in the form of action was ordered. The additional count sets up contracts and alleges a breach of them by defendant. We find, therefore, no basis in the record for the contention that this is an action of tort for negligence.

The fundamental question then is: Does an action in contract in favor of plaintiff arise upon the averments of the declaration and the evidence offered by plaintiff and excluded by the court?

Looking to the declaration as abstracted for the contract or contracts set up therein and the assignment of a breach thereof, we find set up an ordinance of the town of Cicero adopted on November 12, 1887, authorizing the Cicero Water, Gras and Electric Light Company to construct, maintain and operate water works, gas works and electric light works for the purpose of supplying to the inhabitants of the town water, gas and electric light and defining the rights, privileges and powers of the company, and the acceptance of the ordinance by the company. We find nothing in the ordinance by way of special provisions bearing upon the question here involved, and nothing of that nature is pointed out to us in the brief of plaintiff in error. The declaration also sets up a contract between the town of Cicero and the same company, dated June 25,1888. In this contract the above mentioned ordinance is referred to and certain clauses of it are recited. The contract then provides inter alia for the compensation to be paid by the town to the company for steam fire hydrants thereafter to be put in by the company, and clause 4 thereof contains the provision quoted above as to the pressure of water on the water pipes. The declaration then sets up a contract dated May 25, 1889, between the same parties, which refers to the above mentioned ordinance and contract, and provides for the extension of a main from Central avenue to Forty-eighth street and the manner in which it shall be laid, and that in connection with all pipes thereafter to be laid certain described fire hydrants shall be put in all street intersections and in all blocks over 600 feet in length, and the compensation to be paid by the town to the company therefor. The contract repeats the provision above quoted as to the pressure of water to be maintained on the pipes. The only breach of any of the provisions of the ordinance and contracts assigned in the declaration is the failure of defendant in error to maintain or furnish the pressure of forty pounds per square inch as provided in the ordinance and contracts. The right then of plaintiff in error to recover, in an action in contract, on the evidence offered for this alleged breach of the contract is the precise question presented by the record.

The question whether the evidence offered and excluded was admissible under the common counts may be dismissed, we think, without argument. The claim of plaintiff in error is that defendant in error respond in damages for failure to keep an express promise to do something other than the payment of money. For this and for other reasons it is too clear for argument or the citation of authorities that the evidence excluded was not admissible under the common counts.

Coming now to the main question presented by the special count and the evidence, we find on an examination of the ordinance and contracts that they contain no provisions which create such a privity of relation between plaintiff and defendant as will authorize a suit by the former against the latter to recover damages for a breach of the contract. There is nothing in the contract formed by the ordinance and contracts which either directly or by necessary inference identifies or designates plaintiff as the party to be benefited thereby. Peck v. Sterling Water Co., 118 Ill. App. 533; City of Galena v. Galena Water Co., 132 Ill. App. 332; Rodhouse v. C. & A. Ry. Co., 219 Ill. 596. Apart from any question of the non-fulfillment of a condition precedent, such as the giving of notice of the fire, or that notice thereof ever came to defendant, or such facts existed as would make it negligence on the part of defendant not to take notice of the existence of the fire, plaintiff can predicate no right to recover, we think, upon the promises or contracts to furnish a certain amount of water pressure offered in evidence, for the reasons given and upon the authorities cited in the cases above referred to. Plaintiff in error is here attempting to recover on a contract to which he is not a party. A person not a party to a contract cannot sue upon it, unless he comes within certain well defined exceptions. Harriman on Contracts, 2nd ed. 210; Pollock on Contracts, 2nd ed. pp. 201; 7th ed. pp. 211-213; Exchange Bank v. Rice, 107 Mass. 37; Borden v. Boardman, 157 Mass. 410; Warren v. Batchelder, 15 N. H. 129; Wheeler v. Stewart, 94 Mich. 445. There are only two exceptions to the rule—the doctrine of Lawrence v. Fox, 20 N. Y. 268, and the sole beneficiary theory, and appellant’s case does not fall( within either exception. Rodhouse v. C. & A. Ry. Co., supra.

There are courts which have expressed views contrary to those stated in the above cases. We do not deem it necessary to undertake the labor of discriminating the cases holding contrary views on the liability question, but content ourselves by referring to the clear and able note to Mugge v. Tampa Waterworks Co., 6 L. R. A. (N. S.) 1171, where that work is so well done that little can be said in addition thereto or by way of supplement.

In our opinion the court did not err in excluding the evidence and directing a verdict for appellee.

The judgment is affirmed.

Affirmed.


text:
    William H. Swanson, Defendant in Error, v. James L. Lederer and George B. Levee Amusement Company, Plaintiff in Error.
    Gen. No. 15,628.
    1. Contracts—when mutual consent essential to extension. Held, upon construction of the ensuing provision, that the contract in question in this ease could not be extended except by mutual consent of the parties thereto:
    “It is further agreed that should both parties be desirous of continuing this agreement after September 30, 1908, the prolongation of this contract for the term of one year on the same terms and conditions may be had by either parties giving to the other notice of two weeks before the expiration of this agreement.”
    2. Assumpsit—when implied does not arise. If moneys come into the hands of the owner of premises by virtue of the continued use of such premises against the will of the owner who has been enjoined from interference, such owner cannot after such use has been determined as improper be called to account for the money so derived by him.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed October 3, 1911.
    Rehearing denied October 17, 1911.
    Mayer, Meyer & Austrian, for plaintiff in error.
    Douglas C. Gregg, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

William H. Swanson, doing business as William H. Swanson & Company, hereinafter referred to as plaintiff, on May 18,1908, entered into a contract with James L. Lederer and George B. Levee Amusement Company, a corporation, hereinafter referred to as defendant, whereby the latter as lessee and manager of the Royal Theatre, situate at 1071 Lincoln avenue, Chicago, for and in consideration of the promises and agreements of the plaintiff to offer and produce at said theatre a first class, high grade, moving picture show with illustrated songs and other talent as might become necessary in the production of the picture show, specifying the nature and particulars of the entertainment to be made, while expressly reserving unto itself the possession of the theatre and building and leasehold thereof, agreed to pay to the plaintiff as compensation for the full performance of the agreement a sum equal to 50 per cent, of the gross receipts of said performances at the theatre, the money to be due and payable by the defendant on the Mondays of each and every week during the continuance of the agreements, and to furnish the theatre free of rent and the license thereof, and to light the theatre and to furnish the electric current for the operation of the moving picture machine and to keep the theatre clean at its own expense.

The agreement contained the following clause:

“It is further agreed that should both parties be desirous of continuing this agreement after September 30, A. D. 1908, the prolongation of this contract for the term of one year on the same terms and conditions may be had by either parties giving to the other notice of two weeks before the expiration of this agreement.” On September 11, 1908, the defendant served notice on the plaintiff that it was not desirous of extending the time of the contract beyond September 30, 1908.

On October 1, 1908, the plaintiff filed a bill in equity in the Superior Court of Cook county alleging that he had in all respects complied with and performed the terms of the contract; that prior to September 15,1908, he had informed defendant of his desire to continue the business another year; that in contemplation of such extension he had expended a large amount of money and incurred liabilities, but that defendant had informed bim that after September 30, 1908, the contract was no longer in force.

The bill further alleged that by the termination of the agreement on September 30, 1908, plaintiff will suffer g’reat and irreparable loss, and that such loss cannot be measured. The bill prayed that an injunction issue restraining the defendant from carrying out its threat to deprive the plaintiff of said business. A preliminary injunction was issued the day the bill was filed in accordance with the prayer of the bill. On October 26, 1908, a motion to dissolve the injunction.was sustained and the bill was dismissed for want of equity. Plaintiff thereupon prayed an appeal to this court where the decree of the chancellor was affirmed, a motion having been made in this court to continue the injunction in force, and denied.

An action was instituted in the Municipal Court of Chicago on February 10, 1909, to recover $872.15 being one-half of the receipts of the Boyal Theatre for three weeks commencing Monday, September 28, 1908, to Sunday, October 18,1908, and one-half the costs of the talking pictures during the same period; that is the period during which the injunction remained in force.

The defendant appeared and filed an affidavit of merits in the Municipal Court setting up the contract and the equity proceedings injunction, and that the plaintiff had wrongfully occupied the premises during the time for which his claim was based without right or license and solely under the protection of the injunctional order, and that plaintiff had collected and retained $706.20, the entire proceeds of the performances given for one week of the period during which plaintiff occupied the premises under the protection of the injunction.

At the trial it was stipulated by the parties that one half of the receipts for the four weeks during which the injunction was in force amounted to $1,455.83; that plaintiff retained one week’s proceeds, amounting to $706.20, and that the remainder of half of the proceeds for the four weeks was $749.63. In addition to this sum the plaintiff claims $120 as half the costs of producing the so-called talking pictures during the four weeks, making a total of $869.63.

The Municipal Court found the issues in .favor of the plaintiff, and assessed plaintiff’s damages át $869.63, and entered judgment in favor of the plaintiff and against the defendant for that amount and costs. From that judgment this writ of error is prosecuted.

The contention of the plaintiff below is that while the word “both” is used in the paragraph of the contract above quoted it was evidently meant to provide that either party might extend the contract for another year by giving two weeks’ notice. An attempt is made to justify this substitution of the word “either” for “both” by referring to the latter part of the same paragraph in which it is provided that, ‘1 a prolongation of this contract for the term of one year on the same terms and conditions may be had by either party giving to the other notice two weeks before the expiration of this agreement. ’ ’

The plaintiff below further contends that the defendant, plaintiff in error here, ratified and accepted the extension of the contract by accepting the benefits while the performances were being conducted under the protection of the injunctional order, urging that it was an active and not a passive acceptance. The real contention, however, of the plaintiff below was and is, that the contract in question was extended verbally in the months of August and September, 1908.

On the part of the defendants, plaintiff in error, it was contended, and is here contended, that while the language of the contract may not be particularly apt yet it is without ambiguity, and it is clear that the extension of the contract was dependent upon the desire of both parties, and that even though the contract were ambiguous, which it is denied, a reasonable construction in accordance with the phraseology of the contract was placed upon it by the conduct of the parties, and should be adopted by the court,

It is further contended that where a person has protested against, or is powerless to prevent, the bestowal of a benefit upon it, defendant cannot be compelled to compensate for such benefits; in other words that while the defendant was powerless during the period that the injunction remained in force to prevent plaintiff, defendant in error, from continuing the entertainment given at the theatre, it is now under no legal obligation to the plaintiff to pay over to it a sum equal to one-half the receipts; that the plaintiff was occupying the defendant’s premises and giving his performances therein over the protest of the defendant, and solely under the protection of an injunction, which was after-wards dissolved, and thus the defendant was prevented from asserting his rights to dispossess plaintiff, such circumstances can impose no obligation on the plaintiff to reimburse the defendant for any services he may have performed, even though such services may have been beneficial to the defendant.

Upon a careful consideration of the terms of the contract and of the interpretation placed thereon by the parties to it, we are of the opinion that the parties agreed, as expressed in the contract, that the continuation of the agreement after September 30, 1908, for a term of one year thereafter was dependent upon the mutual agreement of both parties, and that neither party had the right to effect an extension of the contract for a term of one year without the consent of the other. The negotiations conducted between the parties for an extension of the contract in August and September shows very clearly that the parties so construed the contract at that time.

Upon the question as to whether an agreement was made in August and September whereby the contract was continued in force for another year we are of the opinion that the evidence wholly fails to establish any such agreement. Nothing was said or done by the defendant below, plaintiff in error, whereby its assent to such an extension of the contract can be inferred. We cannot regard the contract as indefinite or uncertain in its terms, but even if it can be so regarded, as held in Walker v. Illinois Central Railroad Company, 215 Ill. 610, 619:

“It is allowable always to look at the interpretation the contracting parties placed on their agreement either contemporaneously or in its performance for assistance in ascertaining its true meaning. No extrinsic aid can be more valuable (Vermont St. M. E. Church v. Brose, 104 Ill. 206). A reasonable construction placed upon an indefinite or uncertain contract by the conduct of the parties will be adopted by the courts. Work v. Welsh, 160 Ill. 468.”

We agree with the contention of the defendant, that even though the benefit was bestowed upon it by the plaintiff, where the defendant protested or was powerless to prevent the action which resulted in such benefit, the defendant cannot be held to have obligated itself to pay therefor.

The plaintiff filed a bill in equity and secured an injunction whereby the hands of the defendant were tied so that it could not prevent plaintiff from proceeding with the entertainments given by it in the theatre, and as a result thereof certain moneys came into the hands of the defendant, but the mere fact that the moneys came into the hands of the defendant by reason of the use of its property without authority can create no obligation on the part of the defendant, in our opinion, to respond to the plaintiff for the moneys thus received. We think Thornton v. Sturgis, 38 Mich. 639; Earle v. Coburn, 130 Mass. 596, and 15 Am. and Eng. Enc. of Law, 1094, sustain this legal position.

Ag to the claim of $120 made by the plaintiff against the defendant for one-half of the expenses of the talking pictures for the four weeks during which the injunction was in force, we are of the opinion that the evidence fails to support it, and that insofar as the judgment includes that it is also wrong.

The judgment of the court below was clearly erroneous, and it is therefore reversed with finding of fact.

jReversed with finding of fact.


text:
    Charles F. Bates et al., Appellees, v. John Worthington, Appellant.
    Gen. No. 15,637.
    Negotiable instruments—what contract of guaranty. A person who is not a party to a promissory note which is to become a valid obligation against the maker upon its delivery to the payee, by writing his name upon the back of the note is presumed to assent to the obligation of a guarantor. He is not entitled to notice of protest and dishonor and is not discharged by reason of insufficient presentment for payment, protest and notice of dishonor.
    Appeal from the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Adams & Froehlich, for appellant.
    Cunningham & Cunningham, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by the appellees against The New Fowler Dry Goods Comapny, a corporation, and John Worthington, appellant, upon a promissory note executed in Kansas City, Missouri, payable to the order of appellees February 1, 1908. Before the delivery of the note appellant guaranteed payment thereof, and wrote his name on the back of the note as evidence of his contract. The note was not paid at maturity, and this action was brought to recover the amount due thereon. Before trial the action was dismissed as to the Dry Goods Company.

On the trial the plaintiffs proved the execution and guarantee of the note and the consideration therefor and the amount due thereon, and offered the note and guarantee in evidence. Appellant offered no evidence on the trial. The court instructed the jury to find the issues for the plaintiffs and assess their damages at $956.23, the amount shown by the evidence to be due on the note. Upon the verdict so returned the judgment was entered from which this appeal is prosecuted.

We find no merit in this appeal. It was competent to show by parol the character of appellant’s contract with reference to the note. Kingman & Co. v. Cornell T. U. & B. Co., 150 Mo. 282. It has been the settled law of this state for a long period of time that a person who is not a party to a promissory note which is to become a valid obligation against the maker upon its delivery to the payee, by writing his name upon the back of the note, is presumed to assent to the obligation of a guarantor. This presumption was supported in this case by positive and undisputed evidence. Apellant was not entitled to notice of protest and dishonor, and was not discharged by reason of insufficient presentment for payment, protest and notice of dishonor.

The judgment of the trial court is just, and it is affirmed.

Affirmed.


text:
    Benjamin Epstein, Defendant in Error, v. George B. Levee et al., Plaintiffs in Error.
    Gen. No. 15,659.
    Municipal Couet—when judgment not disturbed. A judgment in an action for damages for assault and battery will not be set aside on review if the Appellate Court is of opinion that substantial justice as between the parties is expressed by the verdict and judgment.
    Error to the Municipal Court of Chicago; the Host. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    McArdle & McArdle, for plaintiffs in error.
    No appearance for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment in a fourth class action in the Municipal Court of Chicago for damages for an assault and battery brought by Ben. Epstein against George B. Levee and Ben Levee. Epstein was employed by the George B. Levee Co., a corporation, and was in charge of its candy business at the Great Northern Theatre, Chicago. The plaintiff, defendant in error, became involved in a dispute and controversy with the defendants, George B. Levee and Ben Levee, plaintiffs in error, in the office of the Company as to the accounts of the plaintiff with the George B. Levee Company, in which some strong language was used, and according to the testimony of the plaintiff Benjamin Levee struck him a severe blow in the eye from behind him. Thereupon the plaintiff turned to George B. Levee and said: “That is a low, dastardly trick for a man to do,” and then George B. Levee hit him on the other side of his head, knocking him down, when both the defendants jumped upon the plaintiff and kicked him and beat him while he was lying on the floor. This is denied by the defendants’ testimony. The defendants claim that the plaintiff struck the first blow. The plaintiff was seriously injured.

It is urged that the preponderance of the evidence is against the verdict and judgment; that prejudicial remarks were made by the plaintiff’s attorney to the jury; that the court ruled erroneously in the admission and exclusion of evidence; and that the court erred in its charge to the jury.

Upon a review of the evidence we find no clear ground for setting aside the verdict of the jury. The evidence is conflicting, and it was a question for the jury to decide whether the defendants assaulted the plaintiff or the plaintiff assaulted the defendants. The verdict is not so clearly against the weight of the evidence as to justify this court in setting aside the. verdict and judgment. Upon the merits of the controversy we are of the opinion that substantial justice as between the parties is expressed by the verdict and judgment.

In our opinion no substantial error affecting the result of the trial was made by the court in its rulings on evidence, or in its charge to the jury. The judgment is affirmed.

Affirmed.


text:
    Gertrude Glaspy, Plaintiff in Error, v. United Brotherhood, Defendant in Error.
    Gen. No. 15,664.
    1. Fraternal benefit societies—when suspension ipso facto. If the by-laws so provide, a member of a fraternal order may be ipso facto suspended without any action of the order or any officer thereof.
    2. Fraternal benefit societies—when suspension not waived. If the suspension of a member has taken place ipso facto by virtue of nonpayment of dues, an officer of the order has no authority to waive such .suspension where the constitution and by-laws of the order specifically exclude such authority.
    Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Alfred Livingston and William S. Newburger, for plaintiff in error.
    Edward E. Wilson, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

In February, 1902, Belvert Glaspy, deceased, became a member of Maceo Council, one of the subordinate councils of the United Brotherhood, a fraternal organization. At the same time the Imperial Council of the United Brotherhood issued a policy of insurance on the life of Glaspy in the sum of $648, in which the plaintiff in error, Gertrude Glaspy, is named as the beneficiary.

For a number of years prior to his death on June 16, 1908, Glaspy had been treasurer of the Imperial Council of the Organization, and also treasurer of Maceo Council. In December, 1907, being ill, Glaspy sent for the Imperial Begent or President of the organization and told him he was so ill that the work of the treasuryship was a hardship on him and he wished to resign. In February following the Imperial Begent went to Glaspy’s home for the purpose of checking up the Glaspy cash book with the book of the Imperial Secretary, which the Begent brought with him. After comparing the books in Glaspy’s presence, Mr. Smith, the Begent, claimed that Glaspy owed the organization $192.88, while both Mr. and Mrs. Glaspy maintained that the amount due was $70. Mr. Glaspy finally said that he was willing to settle for whatever the books called for, and this was satisfactory to both parties. Matters were left in this condition until Glaspy’s death.

Glaspy was also in arrears with his dues as a member of the order. The evidence shows that Grlaspy paid his April, 1908, dues on April 4,1908. He paid no dues in May 1908, and on the first day of June, 1908, under Section 21 of the by-laws of the organization, he was suspended as a member by that fact. That section provides as follows:

“Section 21. On the first day of each and every month each member shall pay in cash to the collector of his Council, or to the Imperial Secretary, if the member is an unattached member-at-large, a sum sufficient to cover for such month all assessments, dues, fees, taxes, fines and other demands of the order, required under the Constitution and Laws of the Order, to be paid by such member, or such payments shall be in default, provided, that each member shall have thirty days grace within which to make such payments, and upon failure to pay within the said time, the member shall ipso facto stand suspended from the order; provided, also, that a member may pay in advance for as many months as he likes; provided, further, that the foregoing provisions of this Section as to the time of payment shall not apply to the initial or first assessment. Council dues, fees, taxes and, other demands of the Order which must be paid on or before the last day of the month in which a member is initiated or otherwise admitted or reinstated or the member shall ipso facto stand suspended from the Order on the first day of the month succeeding initiation or admission or reinstatement.”

If the by-laws so provide a member of a fraternal order may be ipso facto suspended without any action of the order or any officer thereof. Benevolent Society v. Baldwin, 86 Ill. 479; Nat. Council Knights & Ladies of Security v. Burch, 126 Ill. App. 15.

In our opinion Grlaspy at the time of his death stood suspended from the order for non-payment of dues in May, 1908, and for not paying over funds in his hands as treasurer of the Imperial Council, under and by force of Section 141 of the by-laws of the Order. The books of the Imperial Council, and of Maceo Council were in Grlaspy’s possession, and after his death they were in the possession of the plaintiff in error. Smith, the Imperial Begent, testified that he demanded the books and she did not turn them oyer to the order. Grlaspy’s cash book showing his account with the Imperial Council was afterwards presented in court during the trial, and introduced in evidence. It appears attached to the record in the case. It apparently shows total cash received $5,080.10, and total amount paid out $4895.19, showing a balance of $184.91 in Glaspy’s hands at the time of his death. This was never paid over by him. Section 141 of the By-Laws of the order provides:

“Section 141. Any officer of a Grand Council, or of a subordinate Council, or of a cq-operative Council, or any deputy, or any member, who has received any funds whatsoever paid by any member or candidate, either for the Charter fee, or for any benefit fund of the order, or for any tax or dues or for any other funds, fees or dues whatsoever, and failing to pay same or any part thereof to the Imperial Council, or to the Grand Council, or to the subordinate Council, or to the co-operative Council, as the case may be, at the time directed in the Constitution and Laws of the Order, shall ipso facto stand suspended and he may be dealt with summarily or otherwise by and at the direction of the Imperial Begent or the Executive Council. ’ ’

The Imperial Begent, in our opinion, had no authority under the constitution and by-laws of the defendant in error to waive Glaspy’s suspension as a member, and the letter dated June 20, 1908, offered in evidence by plaintiff in error, had no such effect. Section 1 of Article 5 of the Constitution and Laws of the order provides: “No officer of the Imperial Council, Grand Council or subordinate Council has or shall have power to waive any part of the Constitution or Laws of the United Brotherhood. ’ ’

We find no material error in the propositions of law held applicable to the case by the court. The court found the issues in the case for the defendant. We think upon the evidence the judgment of the Municipal Court is just, and the judgment is therefore affirmed.

Affirmed.


author: Mb. Justice Smith

text:
    Joseph R. Noel, Plaintiff in Error, v. Security Bank of Chicago, Defendant in Error.
    Gen. No. 15,675.
    Negotiable instruments'—when title to checlc passes. If the maker of a check drawn on his own funds endorses the name of the payee thereon, the check becomes payable to bearer, and this notwithstanding the cheek was before endorsement countersigned by a third party pursuant to an understanding with the bank upon which it was drawn, it appearing that the check had never been in the hands of the payee named therein and that title thereto had never passed to such payee; title to such a check passes after delivery.
    Error to the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 3, 1911.
    Leon Zolotkoff, for plaintiff in error.
    Weissenbach, Shbimski & Meloan, for defendant in error.
   Mb. Justice Smith

delivered the opinion of the court.

Plaintiff in error, Joseph E. Noel, proprietor of and doing business as the Northwest Savings Bank, in the city of Chicago, sued the Security Bank of Chicago in the Municipal Court of Chicago, to recover back $508.84, the amount paid by the plaintiff on a certain check drawn by David Goldstein. The plaintiff claimed that Goldstein had forged the name of the payee of the check in the endorsement thereon. On the trial the Municipal Court found the issues for the defendant and entered judgment for costs against the plaintiff.

The evidence tends to show that Goldstein had an account at the plaintiff’s bank prior to January 11, 1908, and on that date applied to the plaintiff to reopen his account in his bank and loan him $1,000 on his note. This the plaintiff agreed to do after taking from Gold-stein a written statement of assets and liabilities, and stipulating that all checks against Goldstein’s account must be countersigned by either E. H. Brunkhorst or A. Danielson, clerks in plaintiff’s bank. Plaintiff loaned Goldstein $1,000 which, less the discount, amounted to $981. This amount together with the sum of $253.31 deposited by Goldstein was placed to Gold-stein’s credit. On January 13, 1908, Goldstein drew a check to the order of L. Schenitz, a creditor of Gold-stein’s named in'his written statement, and the check was countersigned by Brunkhorst. Goldstein procured the check to be certified by plaintiff and then endorsed the name of the payee on the check and delivered it to the defendant in error, which collected the amount of the check from plaintiff in error. The payee never received the check and never had any interest in it. G old-stein testified that he did not intend the payee should have any interest in the check, and that he owed the amount thereof to the Security Bank of Chicago for a note which he had discounted there. Goldstein had to his credit with plaintiff in error when the check was drawn $1,234.31.

The facts in this case are not in controversy. The questions presented are therefore questions of law. Counsel for plaintiff in error in his brief states the ultimate question presented very concisely as follows: “All the issues raised in this case might be properly reduced to the following simple question of law-—Was the delivery of the check by Goldstein to the Security Bank of Chicago such a delivery as would pass title to the check?”

In support of his contention that the delivery to defendant in error did not pass title to the check, counsel for plaintiff in error urges that Goldstein was not the maker of the check, but was only a co-maker with Brunkhorst the countersigner, and that Goldstein could' not alone change the purpose of the instrument after it was countersigned by Brunkhorst. With this contention we cannot agree. On the evidence in the record the countersigning of the check by Brunkhorst did not make him a co-maker of the check or give him any authority over it. By his acceptance written on the face of the check plaintiff in error agreed that he would pay it according to the tenor of his acceptance, and by Section 62 of the Negotiable Instruments Act, admitted the existence of the drawee, the genuineness of his signature, his capacity and authority to draw the check, and the existence of the payee and his then capacity to endorse it.

The question then remains whether the check by Goldstein’s endorsement of the name of the payee upon the back thereof made the instrument payable to bearer so that the title to it passed to the Security Bank, defendant in error, by mere delivery by Goldstein in payment of his indebtedness to defendant in error.

The evidence shows that Goldstein had no authority from the payee to endorse his name on the check; that Goldstein did not intend that the payee should have any interest in the check, and the payee never received it and had no interest in it. Under these facts which are not controverted the endorsement of the payee’s name by Goldstein rendered the check payable to bearer and the title thereto passed to the Security Bank, defendant in error, when Goldstein delivered it (Bartlett v. First National Bank, 247 Ill. 490).

By paragraph 3 of section 9 of the Negotiable Instrument Act of 1907, an instrument is payable to bearer, when it is payable to the order of a person known by the drawer or maker to be fictitious or nonexistent or of a living person not intended to have any interest in it. By this prpvision of the statute the check on the evidence in the record became payable to bearer upon the endorsement by Goldstein of the name of the payee who he intended should have no interest in it, and the title passed to the defendant in error by the delivery of the check to it.

Error is assigned and urged in argument that the court erred in excluding Goldstein’s written statement to plaintiff in error showing his liability to the payee of the note. We do not think the ruling of the court was erroneous. The statement was immaterial to the issues.

Errors are assigned upon the refusal of the trial court to hold the propositions of law submitted on behalf of plaintiff in error, and in holding each of the propositions of law submitted on behalf of defendant in error. In our opinion the court did not err in its rulings on the proposition of law submitted, but we do not take the time to discuss these rulings further than we have discussed them above for the reason that regardless of whether the holdings of the court were correct or incorrect we.are required by section 23, paragraph 8 of the Municipal Court Act to decide the case upon the merits, and in our opinion the case was correctly decided by the trial court, and the judgment is affirmed.

Affirmed.