author: Mr.. Presiding Justice Brown

text:
    Elsie Annen, Appellee, v. W. F. McLaughlin and Company, Appellant.
    Gen. No. 19,988.
    1. Instructions, § 20

      —propriety of referring jury to declaration. Instructions which state, in substance, that plaintiff may recover if she has made out her case as charged in the declaration or in some or more counts thereof, though not commendable, are not erroneous unless the declaration has omitted reference to some substantial defense which is made.
    2. Master and servant, § 784

      —when instructions not erroneous as ignoring defenses. In an action by an employee for personal injuries, instructions given for plaintiff held not erroneous, for the reason that they ignored the defenses arising from the rules concerning assumed risk, fellow-servants and proximate cause, it appearing that the defense of assumed risk was not applicable to the case and that an instruction was given stating that the plaintiff must make out the case charged in the declaration which stated that the negligence was not that of a fellow-servant and alleged that the cause of the injury was the negligence of defendant.
    3. Master and servant, § 508

      —when employee not guilty of contributory negligence in falling down elevator shaft. In an action by an employee for personal injuries received by falling down an open elevator shaft alleged to have been caused by the negligence of defendant’s elevator man leaving the elevator door open in a room which was dimly lighted, held that a verdict for plaintiff was not against the weight of the evidence for the reason that it showed plaintiff guilty of contributory negligence.
    4. Master and servant, § 111

      —when leaving elevator door open proximate cause of injury. In an action by an employee of defendant for personal injuries received by falling down an elevator shaft, where it was alleged that defendant’s elevator man was negligent in leaving the elevator door open when the elevator was at a floor above, held under the defendant’s theory of the case that the accident happened while another employee was scuffling with plaintiff and that plaintiff fell down the shaft while struggling to free herself, that the defense of contributory negligence was eliminated, and that a verdict for plaintiff could he sustained on the theory that the negligence of defendant was one of the proximate causes of the injury.
    5. Negligence, § 53

      —proximate cause. Where an accident is the result of the concurrent negligence of two persons, without the negligence of both of which it would not have occurred, the negligence of each is a proximate cause, and each is liable.
    McSurely, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Holt, Cutting & Sidley, for appellant.
    Darrow & Baily, for appellee.

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

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

   Mr.. Presiding Justice Brown

delivered the opinion of the court.

The distressing occurrence from which this litigation arose happened August 10, 1910. The plaintiff and a man named Shiretski fell together through an elevator shaft from the third floor to the basement of the building of the defendant corporation, of which they were both employees. Shiretski was instantly killed, the plaintiff was severely injured and was carried to a hospital where she remained several weeks. From there as soon as she could be moved she was taken to testify at an inquest over Shiretski, and from thence home. She was permanently but not entirely crippled. This suit was begun in the Superior Court of Cook county February 24, 1911, and has been twice tried. At the first trial in December, 1912, the jury disagreed. At the second in April, 1913, the jury returned a verdict for the plaintiff for seventy-five hundred dollars. The plaintiff remitted to six thousand dollars and a motion for a new trial and a motion in arrest of judgment made' by the defendant having been overruled, judgment was entered upon the verdict.

The attribution by plaintiff of liability to 'the defendant corporation is based on allegations in those counts of the declaration which went to the jury—that she was employed at the time of the accident by the defendant and that it was its duty to furnish her a safe place to work; that there was a freight elevator used between the floors of the defendant’s building; that on the day of the accident the elevator door from the third floor, on which she was working, into the elevator and inclosed shaft was left open, and that the room through which the elevator ran was not sufficiently lighted so that she could not “in passing about said room in the exercise of ordinary care see that the door in said elevator shaft was open,” by reason of which, while in the exercise of ordinary care, she was going from one part of the third floor to another, she fell into said shaft and was injured.

The first of the three counts submitted to the jury declared the negligence to be not furnishing sufficient natural light, the windows being “negligently permitted to be covered with dirt, smoke and dust”; the second asserted the negligence to be the absence of artificial light alleged to have been necessary; while the third avers it to be the leaving open by a servant of the defendant, but not a fellow-servant (in legal parlance) of the plaintiff, of the existing elevator door on the third floor while the elevator was above that floor.

It is on the third count which went to the jury— the fourth of the declaration as filed—averring negligence in leaving the door in question open, that the plaintiff chiefly bases her assertion of right of recovery, although the alleged semiobscurity of the room and shaft is, it is argued, to be considered with reference to the defense made of contributory negligence on the part of the plaintiff.

We think there can be no doubt of the negligence of a servant of the defendant in leaving the door of the elevator open either when he left it to go to another room, or, as he says, after returning from that room and finding that while he was away the elevator had been hauled up from above.

While actual darkness in the room was not proven, we think there was evidence from which the jury could fairly infer that there was a greater or less murkiness and obscurity existing from the conditions which made it peculiarly wrong and dangerous to leave open and unguarded there an elevator shaft which was usually closed except when the elevator was on the floor. It would have been dangerous to employees who had to work there even if the light had been perfect.

Nor do we think that there is any evidence in this case tending to show that in The sense that the term is used in the law of this State, the elevator operator was a fellow-servant of the plaintiff, or that the doctrine of “Assumption of Risk” is in any way involved, or that if the defendant is liable the damages even before the remittitur can be considered excessive. By eliminating these matters at the outset we can more quickly come to the questions really involved in the litigation, especially as' doing so also removes, we think, from the case before us any serious question as to the instructions under which it went to the jury.

The complaint is made of three of the instructions, which, in substance, state if the plaintiff has made out her case as charged in her declaration or in some one or more counts thereof, she may recover. Such instructions are hardly commendable because vague and indefinite and practically useless in guiding a jury to the consideration of the real issues involved; but they are not erroneous unless the declaration has omitted reference to some substantial defense which is made. Illinois Terra Cotta Lumber Co. v. Hanley, 214 Ill. 243.

In the case at bar the position of the appellant is that the giving of the instructions ignored the defenses arising from the rules concerning (a) Assumed Risk, (b) Fellow-Servants, (c) Proximate Cause.

As we have said, we do not think there is any basis in the conceded circumstances of this case for the defense of assumed risk; and the fourth count of the declaration (the third of those submitted to the jury) avers that, “the servant of the defendant who left said elevator door open as aforesaid and plaintiff were not fellow-servants, ’ ’ thus making it one of the averments of the declaration to which the jury were referred.

It also says that it was “by reason of the negligence of the defendant in causing the elevator door to be left open” that the plaintiff fell into the elevator shaft.

The declaration therefore also raises the question of proximate cause.

We are thus brought to the gist of the controversy.

The statements of the facts of the accident on behalf of the plaintiff and on behalf of the defendant are diverse, and there is evidence in the record to sustain each. There are, moreover, differing defenses which it is insisted by the defendant are sufficient, whichever version of the accident may be accepted by us, or may have been presumed to have been accepted by the jury. It will be, therefore, well to treat of these versions separately.

The plaintiff’s version is supported by her own testimony, and, as we shall point out when discussing the alternative version, to a limited extent, we think, by another witness.

It is that on the day in question she was employed, as she had been for the greater part of a year before, in weighing and packing coffee in small packages, cans or cartons in the room in the McLaughlin building next east of the blending room in which the elevator door was so unfortunately left open. She was about twenty-two years old. .The weighing and packing were done by machinery, and on this particular day she was temporarily forewoman in charge of several girls who were working in the packing room. She needed cans and called one Paul Menninger, a general utility errand boy, and told him to go upstairs and get some cans. Paul left, went into the blending room and upstairs. Then the bell of a telephone attached to a post near the opening between the packing and blending room rang. The plaintiff left her work and answered the telephone call. Then thinking that Paul was not quick enough in bringing the cans, she stepped into the blending room, as she did so calling, “Oh,'Paul!” but receiving no answer. The door to the elevator shaft was open. The elevator shaft was west of the center of the room, was about seven feet square, and on this floor was entirely enclosed when the door was shut. The door was a sliding door which opened by being shoved to the west, and in the natural and proper order of things was only opened when the elevator was on that floor to unload or take on freight. The platform, of the elevator was not inclosed, but consisted of a platform hung on chains or ropes that worked up and down the elevator shaft and were operated from the inside of the elevator by an elevator man. The platform was made of old wooden planks dirty from use. The plaintiff seeing the door open and knowing that it ought not to be open except when the elevator was standing at the floor, believed the elevator was there. She was hurried, she says, “in order to keep the girls going,” and without speaking to anyone else she went to the door of the elevator shaft, took hold of the post of the shaft and called out, “Oh, Paul, are you coming down sometime today with those cans?” As she did it, she was looking up the elevator shaft, supposing Paul was gathering the cans or package holders near the shaft on the next floor to bring them down by the elevator. She had placed one hand on the post of the elevator shaft and had one foot ready to step into the elevator. She heard Shiretski shout, “Look out, Elsie, you will fall,” and remembered no more. She had fallen and with her had fallen Shiretski.

Shiretski was the only regular occupant of the blending room. He blended the coffee, and the work in the blending room had nothing to do with the work in the packing room and the plaintiff had no labor in connection with Shiretski. Shiretski’s desk was in the blending room not far from the elevator shaft. The plaintiff testified that she did not remember seeing him come into the packing room with a cup of coffee for one of the other girls—a Miss Miller—as she was at the telephone or leaving it, but that she might have done so. She knew he was in the habit of bringing coffee to Miss Miller every morning. Miss Miller testified that he brought her coffee just as the plaintiff went to answer the telephone, and went immediately back, whether preceding or following the plaintiff she does not know. The plaintiff also testified that she spoke to no one on the way from the telephone to the elevator shaft, and saw neither a man named McG-uire nor a boy named Dale, whose testimony will be hereafter mentioned.

The defendant maintains that if this story of the plaintiff is taken as true and accurate, it shows on its face contributory negligence on the part of the plaintiff which must bar her recovery. It is said there could be “no excuse for such heedless and reckless inattention to her surroundings and disregard for her own safety” as this story shows, and that on it the jury should have been peremptorily instructed for the defendant, on the ground on which the jury was so instructed, for example, in Browne v. Siegel, Cooper & Co., 191 Ill. 226, namely, that no reasonable minds could disagree on the subject of the plaintiff’s contributory negligence. After repeated and careful study of the testimony, the majority of the court are unable to assent to this conclusion.

We think that the character of the room and the elevator and its surroundings and use, and particularly that the plaintiff, in the absence of any evidence to the contrary, must be presumed to have always seen the. elevator door closed except when the elevator was at the floor, and that she was in her haste zealously and diligently attending to her employer’s business, distinguish the case at bar from Browne v. Siegel, Cooper & Co., supra, and other like cases. It cannot, we think, be justifiably said that no reasonable minds could come to any conclusion but that her action as narrated by herself was negligent and careless. If it cannot, then the defense of contributory negligence was a question for the jury and has been negatived by them on the assumption that they believed her story. The jury were properly and fully instructed on the subject. They were told that if they believed from the evidence that the plaintiff at and before the time of the happening of the accident complained of failed to exercise reasonable care and that such failure contributed however slightly to bring about the accident, the plaintiff could not recover.

But the defendant with even more insistence contends that this story of the plaintiff is not to he accepted as true; not only, it says, is it inconsistent with a right to recover if true, but it is overborne by the manifest weight of the evidence in favor of an entirely different version of what happened before the fall. On the assumption that the jury believed it, then it is argued that even if we should differ from defendant’s counsel’s position that it furnished ground for a peremptory instruction, we ought to set aside the verdict as against the evidence.

On the contrary assumption that the jury did not believe it, but gave credence to the.defendant’s version, it is urged again that there is no warrant for the verdict, which should then have been for the defendant as a matter of law.

The defendant’s version of the occurrence rests mainly on the testimony of a superintendent of the roasting department of the defendant’s coffee business, named McGuire, who has been in the employ of McLaughlin & Company for twenty-six years. He testified that on the morning in question he left his department on the fourth floor and came down a stairway leading to the blending room on the third floor. As he was coming down the stairway he saw the plaintiff coming through the passageway from the packing room, to the blending room pushing a crate in front of her with her knees and her hands. There was a door at the foot of the stairs going up only part way to the ceiling, however, and he spoke over the top of it to her, making some joking remark about its being a soft job for her, to which she made a like joking reply. She kept pushing the crate over to the door of the elevator and McGuire opened the door and came out into the room. While the plaintiff shoved the crate over to the elevator shaft, McGuire went to speak with Shiretski. Shiretski rose from his desk and .he and McGuire went together to a point about ten feet away from the elevator and stood talking. At that time, McGuire says, the plaintiff was calling up the elevator shaft for Paul, but she came back to where he and Shiretski were talking and Shiretski said to her, apparently joking, “Ton talk too much” or “You have too much to say. I will throw you down that hatch,” with some other “kidding” remarks about her being the forewoman that day. The plaintiff said, “You aint big enough to throw me down.” At that Shiretski put his arms around her in front, she scuffled a little “to wiggle out of that hold,” he carried her to the hatchway, she calling out, “Quit Joe; quit Joe,” and they both went down the shaft together. This story is corroborated by Dale, the elevator boy who left the door open. He says he had run the elevator to the third floor and left it there with the door into the shaft open to go to the roasting room to get a drink; that when he came back he found the door closed; that he opened it and found the elevator gone, but left the door open; that he stood by the side of the elevator three or four minutes; that he noticed the plaintiff, Shiretski and McGuire ten or twelve feet south of the elevator “joking and talking and laughing”; that all at once Shiretski said, “Look out! I will throw you down the hatch”; that he startéd carrying the plaintiff towards the .hatch, “and then they just fell over.” “He just took her over towards the hatch and they fell overboard”; that Shiretski’s manner in taking her to the hatch was playful; that the plaintiff did not stand close enough to the elevator shaft to look up in it, nor did she the instant before she fell call up, “Oh Paul,” nor did he reply,'“I am coming.”

The story of Paul Menninger, the boy whom the plaintiff sent to the fourth floor for the cans, is somewhat different. He says that after he had brought a crate of cans to the elevator shaft on the fourth floor he found the elevator was at the fifth floor; that on the fourth floor there were gates about four feet high to close the elevator shaft; that he stood by one of them and the plaintiff called to him from the third floor, saying also, “Are you coming with those cans!”; that he looked down and saw her head and arm and answered, “Yes, I will be down in a minute when I get the elevator”; that the plaintiff then drew away so that he could not see her; that during the next minute or two he heard the voices of the plaintiff and two men on the floor below. “Besides the talking,” he says, “I heard joking and laughing. I could not tell what was being said. The next thing that happened there was, I heard somebody say ‘Look out, you will fall.’ Then I looked down and I saw something falling in the shaft. At the same time when I heard the words ‘Look out, you will fall’ I heard shuffling, that was the same time, not after and not before.”

The theory of counsel for the plaintiff is that Shiretski, after carrying the coffee to Miss Miller, followed the plaintiff into the blending room; that the plaintiff stepped to the elevator to see if Paul was at the elevator on the floor above, and undertook to take a step onto the elevator platform, that she might be in a position to look up; that just as she was about to take that step Shiretski came from the packing room into the blending room, saw her, exclaimed, “Look out, you’ll fall,” grabbed for her from behind and in his effort to save her overbalanced himself and went down with her.

We are under no obligation to say which of the three stories of this accident—for there are really in the testimony we have recited three stories irreconcilable in some respects—we ourselves think the most reasonable or probable, if no one of them is impossible or inherently so improbable as to be unworthy of belief. The jury had under consideration not only the stories themselves, but the personality and manner of the witnesses as they were examined, and the majority of the court are not prepared to say that if to support the verdict it must be assumed that the jury believed the plaintiff’s story of the accident and disbelieved McGuire’s, we should be justified in setting that verdict aside. We think that taking all the evidence together it cannot be said that there is a clear and manifest preponderance against the plaintiff’s version, or that it is so inherently improbable that reasonable men cannot accept it.

But the majority of the court are also of the opinion that it is not essential to the support of the verdict to assume that the jury disbelieved McGuire’s story. That story eliminates the defense of contributory negligence. In the story that McGuire told there was nothing that showed negligence on the part of the plaintiff, no voluntary participation in the “romping” or “larking” of Shiretski which cost so dear. She called on him to stop; she struggled to free herself. Shiretski’s action was careless to the last degree, but that cannot be imputed to the plaintiff nor, under the circumstances of this case, can there be any question of “fellow-servants” as relating plaintiff to Shiretski’s negligence. No influence either by “direct co-operation” or “usual association” over Shiretski affecting this carelessness could be predicated, even had their usual duties brought them more in contact than they did.

The sole question, therefore, remaining in the cause on the assumption that McGuire’s story was accepted by the jury is that of “proximate cause.” It is not, we think, a simple or an easy one. The defendant’s view is well expressed in the argument of its counsel thus:

“It is conceded that the elevator door was open, but the open door was in no manner the cause of the plaintiff’s injuries. The cause was the foolish and foolhardy action of Joe (Shiretski). The open door was but a condition—a necessary one, it is true—but still merely a condition and not a cause.”

The court, however, instructed the jury quite as favorably in this regard as the defendant had the right to demand, by telling them that, “if an act on the part of one Shiretski intervened between the time when the door’ was left open and the plaintiff’s injury, and that such act was the immediate cause of the accident, and was of such a nature that no reasonable person would anticipate such conduct on Shiretski’s part, then the plaintiff cannot recover.”

It seems to the majority of the court that the leaving open of the elevator shaft in this dimly-lighted room, among the employees whose duties required them from time to time to communicate and to pass between the floors, was something more than a condition which allowed a third party’s negligence to be injurious. It was rather, under the circumstances of this case, if McGuire’s story is true, one proximate cause of the injury of which the concurrent carelessness of Shiretski was another. If the accident was the result of the concurrent negligence of two persons, without the negligence of both of which it would not have occurred, the negligence of each is a proximate cause, and each is liable. Wabash, St. L. & P. Ry. Co. v. Shacklet, 105 Ill. 364; Pullman Palace Car Co. v. Laack, 143 Ill. 242.

The judgment of the Superior Court is affirmed.

Affirmed.

Mr. Justice McSurely dissents.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Louis Rohmer, Appellee, v. Axel W. Anderson, Appellant.
    Gen. No. 19,961.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Louis Bohmer against Axel W. Anderson to recover for personal injuries. The first count of the declaration alleges that the plaintiff on a certain day mentioned was working at a certain place mentioned beside a perpendicular bank of sand, the top of which was a frozen crust, and was in the exercise of due care and without knowledge of the danger to which he was exposed, and that the defendant was also working by said bank and “knowingly, intentionally, carelessly, negligently and unlawfully” caused a large quantity of the frozen top to break off and slide down, although he well knew the plaintiff’s position, and that he was in a place of danger and likely to be struck by the same, and that the plaintiff was struck and injured by the same.
    The second count charges the same things without stigmatizing the action of the defendant in causing the crust to fall, by adverbs, but adding that although he caused the crust to fall, he “carelessly, negligently and unlawfully failed to notify or warn the plaintiff that the said bank was going to cave or slide off, although well knowing the plaintiff’s position and that he was in a place of danger and likely to be struck by the same.”
    Defendant urged as ground for reversal: That the declaration does not state a cause of action, and therefore the judgment should have been arrested; that the verdict is against the weight of the evidence, inasmuch as it is not shown that the fall of the frozen sand which broke the plaintiff’s leg—the injury involved in the suit—was caused by the act, negligent or otherwise, of the defendant; that the verdict is against the weight of the evidence because the weight of the evidence shows contributory negligence at least on the part of the plaintiff; that the court erred in giving an instruction to the jury.
    Abstract of the Decision.
    1. Negligence, § 123

      —when declaration states cause of action. In. an action for personal injuries resulting from the negligence of defendant in causing the frozen crust of a sand pile to fall on plaintiff, held that the counts in the declaration were sufficient to state a cause of action.
    2. Negligence, § 119

      -—when averment of duty may he inferred from facts stated. A count in a declaration averring that defendant had knowledge that plaintiff was in a place of danger and likely to be struck by the frozen crust of a sand pile and that he negligently caused it to fall on plaintiff without warning him, held not subject to the criticism that it did not charge defendant with the duty to warn plaintiff, since such duty may he inferred from the facts stated.
    3. Damages, § 71

      —when instruction authorizing recovery proper, though injury was improperly treated by physician. In an action for an injury to plaintiff’s leg, an instruction which told the jury, “that a person who is suffering from an injury is only required to use reasonable diligence to employ a physician of ordinary skill and experience to treat him, and that the law regards the injury, if any, resulting from the mistakes of the physician, if there are any such mistakes, or from the failure of the means employed to effect a cure, as a part of the immediate and direct damages flowing from the original injury,” held properly to state the law, and the giving of it justified on the ground that the cross-examination of plaintiff’s physician tended to suggest that the treatment of plaintiff was unskilful;- and also held that it was not necessary to show that the doctor, who had been practicing for twenty-six years, had especial experience in setting broken legs, to warrant the instruction.

      Lee & Lee, for appellant.
    B. J. Wellman and Richard J. Finn, for appellee.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

4. Negligence, § 185 —when recovery for personal injuries resulting from, fall of frozen crust of sand pile sustained by the evidence. A verdict allowing a recovery for personal injuries alleged to have resulted from defendant’s negligence in causing a frozen crust of a sand pile to fall on plaintiff, held not against the weight of the evidence, where the jury might have justifiably believed from the evidence that plaintiff was in the exercise of due care and justifiably ignorant of the manner in which defendant was working on the other side of the pile, that defendant’s method of doing the work on his side was not a careful one, that he had reason to believe conditions were dangerous and he did not warn plaintiff, and that the work on defendant’s side caused the crust to fall on plaintiff.


text:
    Charles Freeman, Appellee, v. New Illinois Athletic Club, Appellant.
    Gen. No. 19,983.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowdall, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Charles Freeman against New Illinois Athletic Club to recover for personal injuries. To reverse a judgment entered on a verdict for three thousand dollars, defendant appeals. The accident is described in one of the counts of plaintiff’s declaration, the purely formal parts being omitted and replaced by asterisks:

      ‘' The plaintiff * * * September 13, 1911, * * * was in the employment of the defendant in a certain building at * * * Chicago * * * and in pursuance of his said employment was * * * engaged in painting certain parts of the interior of said building and * * * the defendant by * * * a certain other servant * * * who was * * * plaintiff’s foreman and on behalf of the defendant in charge and control of the plaintiff in plaintiff’s certain employment ordered and directed the plaintiff to * * * ■ paint a certain portion of the inside of said building which * * * was * * * high above the floor; that as the defendant then and there well knew, the floor there under said * * * portion of the inside of said building was hard and slippery so that * * * it was dangerous for a person to ascend a ladder to a point necessary to reach said * * * portion * * * and there stand on said ladder and paint, in that * * * said ladder was liable while a person was * * * standing on the same to paint to slip and fall:
    Notwithstanding the defendant negligently and carelessly ordered * * * the plaintiff in discharge of plaintiff’s duties as defendant’s employe * * * to ascend a * * * ladder to said last mentioned point * * * and at that point to stand upon said * * * ladder and paint. * * * The plaintiff * * * protested to defendant and stated to defendant that the defendant should * * * for the purpose aforesaid provide scaffolding, but * * * the defendant by and through said * * * foreman * * * stated and promised to the plaintiff that if the plaintiff would ascend the * * * ladder and * * * there stand and paint, the defendant by and through said foreman would stand by and exercise reasonable care to do and be ready to do everything necessary to prevent or stop said ladder from slipping and throwing the plaintiff to the floor * * * and in pursuance of said * * * order and in reliance on said * * * promise, the plaintiff in pursuance of plaintiff’s said employment and without any negligence on the part of the plaintiff which proximately contributed to the happening hereinafter complained of, ascended said * * * ladder to said * * * point and at that point stood on said * * * ladder to paint, but the defendant * . * * while the plaintiff * * * was * * * standing on said ladder painting, negligently and carelessly failed and omitted to stand by and exercise reasonable care to do and be ready to do everything necessary to prevent or stop said * * * ladder from * * * slipping and throwing the plaintiff to the floor * * * and * * * failed and omitted to exercise reasonable care to prevent or stop said ladder * * * from then and there slipping and throwing the plaintiff to the floor, and * * * by means of the premises * * * the foot of said * * * ladder slipped on the floor and * * * said ladder fell and * * * the plaintiff was * * * thrown to the floor * * *."
    Abstract of the Decision.
    1. Master and servant, § 410

      —when assumption of risk and fellow-servant rule inapplicable. Where a person employed as a painter was injured by the legs of a ladder slipping when he was standing thereon for the purpose of painting the interior of a building under the orders of defendant’s foreman, held under the facts of the case the plaintiff did not assume the risk and that the foreman was not a fellow-servant, it appearing that plaintiff protested against using the ladder instead of a scaffold on account of the slippery condition of the floor, and the foreman promised to hold the foot of the ladder, and did hold it for a time and then left it without warning, whereupon the ladder slipped and plaintiff fell.

      Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    Henry Horner, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

2. Damages, § 115 —when verdict excessive. A verdict for three thousand dollars for the personal injuries proven in this case, held excessive to the extent of one thousand dollars.


author: Mr. Justice Baker

text:
    Charles D. Babcock, Administrator, Defendant in Error, v. John V. Farwell et al., Plaintiffs in Error.
    Gen. No. 19,580.
    1. Equity, § 345

      —when hill must he -dismissed for want of equity. Where the proofs fail to sustain a bill filed in a court of equity, no other course is open to the chancellor but to dismiss the bill for want of equity.
    2. Equity, § 482

      —when decree unauthorized after adverse finding as to jurisdictional facts. On a bill filed by a stockholder against a corporation and representatives of a copartnership to enforce the right of the corporation as against said representatives, on the sole ground that there was fraud and collusion on the part of the corporation and the copartnership in a certain transaction, held that upon a finding by the chancellor that the complainant failed to prove the alleged fraud and collusion, a decree was not authorized on such parts of the bill as standing alone would not give the court jurisdiction.
    3. Equity, § 493

      —necessity of cross-hill for affirmative relief as between codefendants. A decree granting affirmative relief to a defendant against his codefendant, not based on or supported by a cross-bill or answer in the nature of a cross-bill, cannot be sustained.
    Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded with directions.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Horace Kent Tenney and George T. Rogers, for plaintiffs in error.
    Everett L. Millard, for minor plaintiffs in error and for certain others; Horace Kent Tenney and George T. Rogers, of counsel.

      Munroe & Noyes, for the Capitol Company; M. Paul Noyes, of counsel.
    Kraus, Alschuler & Holden, for defendant in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

The bill in this case was filed August 12, 1909, in the Circuit Court, while an appeal from the decree of the Superior Court dismissing a similar bill was pending in the Supreme Court on an appeal from this court. Both suits are stockholders’ suits brought by complainant Babcock as the holder of shares of the Capitol Freehold Land and Investment Company, Limited, an English corporation, against the corporation, the executors of the will of John V. Farwell, the surviving executors of the will of Charles B. Farwell and the devisees and legatees under his will, to enforce the right of the corporation, called in the briefs the Company, against the other defendants as the representatives of a copartnership, called in the briefs the Syndicate. The original members of the Syndicate were John V. Farwell, Charles B. Farwell and Abner Taylor. Taylor transferred all his interest in the co-partnership to John V. and Charles B. Farwell, who assumed all his obligations on the contracts of the co-partnership. Charles B. Farwell died in 1903, and John V. Farwell died August 20, 1908. The rights of the Company, which complainant sought by her bill to have enforced, grew out of a contract between the Company and the Syndicate dated July 12, 1894. The transactions between the parties both before and after the making of the contract are set out in detail in Babcock v. Farwell, 146 Ill. App. 307, and in the same case on appeal, 245 Ill. 14. The Company was the owner of three millions of acres of land in Texas, for which it had built a State House for the State of Texas. The Syndicate, under previous arrangements with the Company, was at the date of the contract in possession of the land and of a herd of cattle thereon, and the contract among other things provided that the Syndicate should at the end of fifteen years from January 1, 1893, return to the Company 120,000 head of cattle of the same grade, age, breeding and condition as those that were on the land January 1, 1893. There was also a provision as to the Company sharing in extraordinary losses and another for the payment for improvements made by the Syndicate on the land. The Company alone had power to sell the lands of the Company, and the Company, by resolution of its board of directors declared that the Syndicate should have from the Company an equitable adjustment of -the losses it might sustain by being deprived of the use of the lands sold. The Syndicate improved the grade and value of the herd by buying and using Angus and Hereford bulls at a cost of more than $300,-000 and claimed that the personal representatives of the Farwells were entitled to an allowance based on the difference in value between the long-horned cattle received in 1893 and the grade cattle returned to the Company January 1, 1908. There was also a disagreement as to the price to be paid for improvements, the amount the Company should allow for extraordinary losses, and the allowance to be made on the losses sustained by the Syndicate from the sale of lands by the Company. The claims of the Syndicate against the Company and of the Company against the Syndicate amount in the aggregate to hundreds of thousands of dollars. January 1, 1908, at the close of the fifteen years term, John V. Farwell, the surviving member of the Syndicate, delivered the ranches and cattle to the Company under an arrangement that such delivery by him and acceptance by the Company should be without prejudice to the right of either as against the other. The Company filed September 21, 1909, a bill in the United States District Court for the Northern District of Illinois against the executors of the will of John V. Farwell, for an accounting of the rights of the parties under the contract under which the Company might have a decree against the Syndicate or the Syndicate a decree against the Company.

It is not contended by complainant that any act of the directors of the Company was illegal or ultra vires. The only other ground on which complainant could maintain a bill against the Company in behalf of herself and other stockholders to enforce the claims of the Company against the Syndicate, is that the Company refused to bring an action against the Syndicate and that such refusal was a fraudulent perversion of their power, and not the exercise of the discretion vested in them to determine whether they would or would not bring an action to enforce a supposed claim of the corporation. The chancellor found by the decree:

" That all charges of fraud and collusion between the Syndicate and the representatives or agents of the Syndicate on one side and the directors of the Company on the other side, and all charges of control and domination by the Syndicate and the personal representatives of Charles B. Farwell, deceased, and of John V. Farwell, deceased, of the Company and its acting directors are untrue. * * * That no fraud, actual or constructive, and no collusion or over-reaching, and no substantial mistake of fact in regard to the rights of the parties which it would be fraudulent on the part of the directors not to correct, is proven, and that all concluded transactions between the Syndicate and the Company have been fairly and honestly conducted and must stand and be held to be final.”

When the proofs fail to sustain the bill no course is open to the chancellor but to dismiss the bill for want of equity. Leahy v. Nolan, 261 Ill. 219.

The chancellor-in place of dismissing the bill proceeded to adjudicate the right of the Company as against the executors of John V. Farwell, and as .a basis of such adjudication made certain findings of fact against the complainant in favor of all the defendants and certain other findings in favor of the Company and against the executors of John V. Far-well.

We concur in the findings of fact of the chancellor against the complainant above stated, but not in his conclusion to retain the bill for the purpose of adjudicating the respective rights of the Company and of the executors of John V. Farwell as against each other. The decree refers the. case to a master to take and state an account between the Company and Far-well’s executors and contains a large number of findings and directions, which we do not deem it necessary, in view of the conclusion reached by us, to state in detail. One of the findings is that the Syndicate were not entitled to have allowed them as against the Company the increased value, if any, on January 1, 1908, of the cattle then returned to the Company over the value on January 1, 1908, of cattle of the age, grade, breeding and condition of the cattle on the ranches January 1, 1893. The decree contains other findings which amount to adjudications of controverted questions between the Company and the Syndicate.

The decree against Farwell’s executors in favor of the Company, their codefendant, is not based on or supported by a cross-bill or answer in the nature of a cross-bill of the Company to either the amended or supplemental bill. The answer of the Company to the amended bill concludes as follows:

“And this defendant says, by the advice of its counsel, that said bill as amended does not, nor does it in connection with said complainant’s supplemental bill, show any right in said complainant to sue for or in or upon the right of this defendant, as respects any of the matters complained of by said complainant; that said complainant made no proper or reasonable demand upon this defendant to bring suit for any of said matters, and shows by her pleadings no reason why she should be permitted to assert in her own name causes of action which both at law and in equity reside in this defendant.
And this defendant having fully answered said bill as amended, prays to be hence dismissed with its costs, and that said bill as amended be dismissed at said complainant’s costs.”

The answer of the Company to the supplemental bill concludes with a prayer that the defendant be “hence dismissed with its costs.” No claim for relief against Farwell’s executors is made or stated in the answer to either bill.

The effect of the decree is to give to the Company affirmative relief against its codefendants, the executors of John V. Farwell. This cannot be done under an answer. Skahen v. Irving, 206 Ill. 597. In Mason v. McGirr, 28 Ill. 322, Mr. Justice Walker said: “The practice has been long and uniformly settled, and it must be regarded as the established practice of this court, that such relief can never be given, unless it be on bill or cross-bill praying relief. Ballance v. Underhill, 3 Scam. 453; Edwards v. Helm, 4 Scam. 142; Tarleton v. Vietes, 1 Gilm. 470; Rowan v. Bowles, 21 Ill. 17; McConnel v. Smith, 23 Ill. 611.” In Purdy v. Henslee, 97 Ill. 389, it was held, and a large number of cases cited in support of the rule, that a court has no power to decree affirmative relief on an answer; that this can only be done on a bill or cross-bill. In the opinion Mr. Justice Scholfield said, p. 394:

“There was here no distinct statement of matters for a cross-bill, after the conclusion of the answer— no parties were required to answer a cross-bill, and no specific relief was prayed. So that, if this answer shall be held to be a cross-bill, no reason is perceived why every answer which, in addition to denying the right of the complainant, sets up some affirmative right in the defendant, shall not be held a cross-bill, thus overruling the long line of decisions to which we have referred.”

Talbot v. McGee, 4 T. B. Monroe (Ky.) 375, was a bill of McGee against Talbot, Logan and Burks, with an injunction against a judgment at law in favor of Burks, assignee of Logan, assignee of Talbot, against McGee, on the ground that McGee had paid $90 on the note to Talbot before it was assigned. The chancellor gave McGee an injunction as to $90 of the judgment and also gave to Logan a decree against his codefendant, Talbot, for the amount of the decree in favor of McGee, and to Burks a like decree against his codefendant, Logan. The Court of Appeals affirmed the decree in favor of McGee against Burks, but reversed the decree in favor of Logan against Talbot and that in favor of Burks against Logan. In the opinion Mr. Chief Justice Bibb said:

“But the decree over against Talbot, in favor of Logan, his codefendant, is not warranted by the proceedings ; and so of the decree against Logan, in favor of Burks. There is no cross bill, nor process, nor ground work for a decree between the codefendants. This is not a question open; it is settled by former adjudications. In the case of Morehead v. Prater and Smiley, in 1809, 1 Bibb, 316, the question whether, as between codefendants, a decree could be made without a cross bill and process, was fully considered and decided by Chief Justice Edwards, and Judges Boyle and Wallace. The luminous discussion in the opinion of the court delivered by the Chief Justice, renders any other or farther explanation useless. In Shelby and Roberts v. Smith’s heirs and executor, 2 Marsh." 514, the same question occurred, and was ruled according to the decision in Morehead v. Prather and Smiley. We do not mean that an answer which, after making a response to the original bill, proceeds to charge his codefendant, and to require him to answer, and to ask a decree, containing the substantials of a cross bill, may not authorize a decree over against such codefendants, if it be proceeded in as upon a cross bill, by process to answer, and regular proceedings. We do not mean any technical distinction between a cross bill and an answer in nature of a cross bill. We do not mean there must be a paper called a cross bill, separate and distinct from the paper called the answer. But we mean that if one defendant uses his answer for greater convenience and brevity, to frame thereon a prayer for relief against a co defendant, he must take care that he engraft upon such answer the substantial parts of the bill, and proceed on it as in á suit instituted, and treat it as such.”

The allegations of the amended bill as to the rights and equities of the Company against the Syndicate, standing alone, would not authorize the chancellor to give relief either to the complainant or to the Company against the Syndicate. The complainant, to show herself entitled to relief, must prove the allegations of her bill as to fraud and collusion on the part of the Company and the Syndicate. She failed to make such proof and no relief was decreed to her, and such allegations in her bill will not authorize a decree on such parts of the-bill as standing alone would not give the court jurisdiction. Tarr v. Stearman, 264 Ill. 110. In the case last cited it was also held that the defendant, the appellee, not having filed a cross-bill, no. relief could be granted to him. on his cross-errors, even if it be conceded that he is entitled to such relief.

It is not sufficient that one defendant in his answer to the bill states facts which constitute a defense to the bill and at the same time show a right in the defendant to relief against a codefendant. Two defendants may be willing to unite in making their defense against the complainant and unwilling in that suit to submit the controversy between themselves. In this case the Company might prefer to settle the controversies between it and Farwell’s executors in the suit begun by the Company against the executors, in a suit which it controlled, rather than to have such controversies settled in this suit, which if it can be maintained will be managed and controlled by the complainant.

We see no reason why the controversies between the Company and Farwell’s executors should not be settled in the suit pending in the Federal Court, but if for any reason the chancellor proposed to adjudicate the controversies between the Company and Far-well ’s executors, he should have directed the Company to file a cross-bill against Farwell’s executors so that they might have pleaded or answered such facts as they deemed necessary to their defense against the claims of the Company.

The decree of the Circuit Court is reversed and the cause remanded to that court with directions to dismiss the bill for want of equity.

Reversed, and remanded with directions.


text:
    Sidney E. Pritz and Carl B. Pritz, surviving partnerof Benjamin Pritz et al., trading as Strauss, Pritz and Company, Defendants in Error, v. Consolidated Adjustment Company, Plaintiff in Error.
    Gen. No. 19,616.
    Guaranty, § 16

      —when contract not void for indefiniteness. Where a collection agency executed a written contract to give a client the benefit of the agency for three years in consideration of the payment of a certain sum, and also executed a written guaranty to collect from the claims intrusted to it the sum of seven hundred dollars within and under the terms of the contract or to refund the initial fee paid, reserving therein the right to continue the service until after said three years until said sum was collected, held that though the contract did not provide that the agency should continue the service for any definite time, the guaranty was not void for indefiniteness, hut that the reserving clause merely secured to the agency a reasonable time after the lapse of three years to collect the sum guarantied, and that there was a breach of the guaranty if said sum was not collected within such time.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Delevan B. Cole, for plaintiff in error.
    Mayer, Meyer, Austrian & Platt, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

In an action of contract in the Municipal Court, plaintiffs had judgment against defendant for $675.40 and costs, to reverse which defendant prosecutes this writ of error. The material parts of the contract between the parties are as follows:

“This certifies that Strauss, Pritz & Co. of Cincinnati, O., and assigns paid the Consolidated Adjustment Company $235 for a three year service from this date, with all benefits and privileges of its business system in its various departments, and the Consolidated Adjustment Co. agrees to promptly and faithfully prosecute any and all claims listed with it for adjustment under terms of this contract.”
‘ ‘ Guarantee. ’ ’
“This company agrees to recover in cash or secured net settlement, from the claims of the above client, at least $700 within and under the terms of the above contract; or to refund the initial fee paid, reserving the right to cancel the contract, refund the initial fee and surrender the claims of the above client at any time after six months from this date; or to continue such service beyond the term first in this instrument mentioned, and until said last mentioned sum shall have been so recovered, without additional cost to the above client, except commissions on adjustments effected, on said claims or any additional claims in favor of said client, which may be forwarded. * * * Cost of contract $235.00. Amount contracted for $20,000.00.”
“Received of Strauss, Pritz & Co. Two Hundred and Thirty-five Dollars ($235.00) as payment in full on a three year $20,000.00 contract and guarantee from August 4, 1904, to August 4, 1907.
Consolidated Adjustment Co.,
By T. Hopper, Treas. Mgr.”
“Dated August 4, 1904.
Note: This contract to be valid must have a coupon attached at time of issue which must correspond in every particular with terms of contract and guarantee and be signed by client and mailed direct to Chicago office. (The printed terms and conditions of this contract are not subject to any change or modification whatever.) ”
Attached to the contract was the following coupon:
“August 4, 1904.
We have today paid your Mr. T. Hopper $235.00 for a three year service contract, and agree to pay commissions on all adjustments effected according to printed terms of contract of even date. Amount of contract, $20,000. Contract guaranty, $700.00. Number of contract, 28,204.
(Signed) Strauss, Pritz & Co.”

The defendant collected on the claims given to it for collection by the plaintiffs between August 4, 1904, when the contract was made, and April 26, 1911, when the suit was brought, only $24.60. The written contract does not prescribe or specify the nature of the claims the plaintiffs were to give defendant for collection, but only requires that they shall amount to $20,000. Hopper signed the receipt for $235 for the defendant §,s “Treas. Mgr.,” and stated to one of the plaintiffs that defendant expected plaintiffs to give to defendant what plaintiffs considered “absolutely desperate accounts,” and when one of the plaintiffs said that plaintiffs would give them accounts which they considered absolutely lost, Hopper replied: “Well, give me those accounts and I will take the contract.”

From the evidence the jury might properly find that plaintiffs gave to defendant at the time the contract was made accounts amounting to more than $20,000.

August 14, 1907, after the expiration of the three years’ term of service provided for in the contract, defendant wrote plaintiffs that the claims given it by plaintiffs were not of the amount or character provided for in the contract, requesting that plaintiffs send other claims and notifying them that defendant had elected to continue its service to the plaintiffs until the sum guarantied should be recovered.

The contention of plaintiff in error is that under the last provision of the contract it will not be violated so long as the defendant renders service to the plaintiffs by attempting to collect the claims plaintiffs gave it for collection. If this contention can be sustained, then the guaranty to collect $700 on the claims the plaintiffs gave to defendant was not a contract to collect the money within any specified time or within a reasonable time, but only to continue the service indefinitely. Such a construction of the guaranty would make it void for uncertainty and would make the business carried on by the defendant merely a snare to defraud and deceive its clients by inducing them to enter into a contract and pay an initial fee for a guaranty that defendant would collect a certain amount on claims intrusted to it for collection, when because of certain conditions cunningly inserted in the contract in such manner as to deceive the unwary, the defendant retained the power to defeat the enforcement of the guaranty. The contract does not provide that defendant shall continue the service for any definite time, but that it may do so until the amount of the guaranty shall be recovered. This stipulation secured to the defendant a reasonable time after the lapse of three years within which to collect the amount guarantied to be collected, and after the lapse of such time there was a breach of the guaranty. We find no reversible error in the rulings of the court on questions of .evidence or instructions, and we think the jury reached the proper conclusion on the evidence, and the judgment is affirmed.

Affirmed.


text:
    George W. Ripley and Augusta Hultman, Defendants in Error, v. Cross S. Farming Company and C. A. Philips, Plaintiffs in Error.
    Gen. No. 19,705.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with judgment here.
    Opinion filed October 13, 1914.
    Rehearing denied October 27, 1914.
    Statement of the Case.
    Action by George W. Ripley and Augusta Hultman against Cross S. Farming Company, a corporation, and C. A. Philips to recover three hundred and sixty dollars paid on a contract for the conveyance of land and alleged to be due the plaintiffs for failure of defendants to comply with their oral agreement to improve the land.
    The facts showed that the defendant Farming Company delivered to plaintiffs, in pursuance of previous verbal negotiations between the parties conducted for said Farming Company by C. A. Philips, a deed conveying to them eighteen acres of land in Texas at the price of one thousand and eighty dollars, three hundred and sixty dollars of which was paid in cash and three notes for two hundred and forty dollars each given for the remainder of the purchase price by the plaintiffs, payable to the Farming Company or order. The testimony of the plaintiffs was to the effect that the buyers of the lands in the section expected to sink a well for irrigation purposes at their own expense; that each purchaser was to pay in advance towards the expense of sinking such well four dollars per acre on the land bought by him, and the remainder of the expense was to be paid by the purchasers pro rata. Plaintiffs advanced to Philips seventy-two dollars, and took from him a receipt for said sum, “to apply on the well to be drilled on Sec. 95 Cross S. Ranch, bal. of said well and outfit to be paid when well is completed.” This receipt was given at the same time the deed was delivered. The deed recited the terms of the purchaser, acknowledged the receipt of three hundred and sixty dollars in money and three vendor’s lien notes for two hundred and forty dollars each, and contained a general covenant of warranty. Philips returned to the plaintiffs the seventy-two dollars given to him by them to pay towards the cost of sinking a well.
    Abstract of the Decision.
    1. Set-off and recoupment, § 14

      —right to set off individual demands against joint demands. A note made payable to the order of one or two joint defendants, and not indorsed, cannot be set off in a suit by plaintiffs on a demand against the defendants jointly.
    2. Vendor and purchaser, § 25

      —when verbal agreements merged in deed. Verbal negotiations or agreements relating to the purchase' of land, held not to become- a contract until the deed was delivered and the consideration furnished.
    3. Vendor and purchaser, § 25

      —when oral contract not enforceable. An oral promise to improve land conveyed, made by the grantors to the grantee at the same time and for the same consideration as the deed, where such deed contains general covenants of warranty, will not support an action.

      Defendants sought to recover under their claim of set-off the amount due on a note of plaintiffs for two hundred and forty dollars due at the time the suit was brought. To reverse a judgment in favor of plaintiffs, defendants prosecute a writ of error.
    Frederick A. Brown and William R. T. Ewen, Jr., for plaintiffs in error; Raymond S. Pruitt, of counsel.
    Chilton P. Wilson, for defendants in error.

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

   Mr. Justice Baker

delivered the opinion of the court.

4. Evidence, § 345 —when parol evidence of prior verbal agreements inadmissible. Where a deed constitutes the contract for the purchase of land, parol evidence of an antecedent or contemporaneous verbal agreement by the grantors to improve the land by digging an irrigation well thereon is not admissible.


text:
    Stark Music Printing and Publishing Company, Appellee, v. M. Witmark and Sons, Appellant.
    Gen. No. 19,788.
    1. Sales, § 108

      —necessity of rescission in toto. To rescind a contract of sale, a party must do so in toto; he cannot affirm the contract in part and rescind in part.
    2. Sales, § 108

      —what essential for rescission by buyer. To entitle the buyer to a rescission of the contract of sale, he must put the seller in as good condition as he was before the sale, by a return of the property purchased, unless it is entirely worthless.
    3. Sales, § 105

      -—when buyer loses right to rescind. A buyer of copies of sheet music and a certain song, including the music, musical composition, copyright and plates therefor, etc., held to have lost his right to rescind on the ground that the articles were not of the quality or description called for by the contract, where he did not return or offer to return the articles but printed from the plates and sold a great number of copies of the song and music.
    4. Sales, § 244

      —implied warranty. As a general rule when a written contract contains express warranties no others will be implied.
    5. Sales, § 244

      —when oral statements cannot be added to written warranties. Oral statements made prior or at the time of the making of a written contract of sale cannot add to the warranties contained therein.
    6. Sales, § 283

      —when construction of contract as to warranty is for court. It is for the court to construe a written contract to determine whether the language used constitutes a warranty.
    7. Sales, § 401

      —when evidence insufficient to justify allowance of damages for breach of warranty. In an action for the purchase price of articles sold, damages cannot be allowed for a breach of warranty where there is no evidence to show the value of the property at the time of the sale and what its value would have been as warranted.
    8. Sales, § 404

      —measure of damages for breach of warranty. The rule of damages in actions for the purchase price, where a breach of warranty is shown, is the difference between the value of the property at the time of the sale and what the value would have been had it been as warranted.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Benjamin C. Bachrach, for appellant.
    Adler & Lederer, for appellee.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court for the plaintiff for $5861.37, entered on a directed verdict. The action was brought to recover on two promissory notes of defendant to plaintiff and for the purchase price of 14,793 copies of sheet music sold and delivered by plaintiff to defendant at the price of one cent per sheet. The principal and interest of the notes and the purchase price of the sheet music amount to $5,861.37, the sum for which the court directed a verdict.

Plaintiff sold and delivered to defendant a certain song, the music, musical composition and copyright upon the same, plates for printing the music, the title, instrumental arrangement in manuscript, plates for orchestration, advertising matter, zinc etchings, and everything pertaining to the printing and publishing of the song and music, for which the defendant paid plaintiff $2,500 and gave the two promissory notes sued on.

The contention of the defendant on the trial was that the musical composition was not original and that the contract had been rescinded, and also that the plaintiff warranted the musical composition to be original when it was not, and that therefore the plaintiff could not recover on the notes given in part payment of the purchase price.

The doctrine has been repeatedly announced by the Supreme Court that a party cannot affirm a contract in part and rescind in part. If he rescinds he must do so in toto. He must put the opposite party in as good condition as he was before the sale, by a return of the property purchased, unless it is entirely worthless. America Theatre Co. v. Siegel, Cooper & Co., 221 Ill. 145.

Appellant did not return or offer to return the 14,793 copies of the song and music, nor the plates and other articles intended for use in printing the song and music, but printed from the plates and sold 200,-000 copies of the song and music. By such act defendant lost its right, if any it had, to rescind, or to defend an action for the purchase price on the ground that the articles sold were not of the exact quality or description called for by the contract.

In the bill of sale the description is: “A certain original song, words, music and musical composition, written and composed by Webb M. Oungst and Cy. Perkins, bearing the name of ‘They Gotta Quit Kickin’ My Dawg Aroun’.” Then follow a number of express warranties which did not include a warranty that the song or music was an original composition. As a general rule, when there are in a written instrument express warranties, none will be implied. The oral statements of an officer of plaintiff made prior to or at the time of the making of the written contract cannot add to the warranties contained therein. Fuchs & Lang Mfg. Co. v. R. J. Kittredge & Co., 146 Ill. App. 350; affirmed 242 Ill. 88; Telluride Power Transmission Co. v. Crane Co., 208 Ill. 218; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631.

■ It was for the court to construe the written contract and decide whether the language used constituted a warranty. But if it be conceded that the contract contained a warranty that the song and music were original compositions, and that they were not original compositions, ,the evidence fails to show sufficient facts to entitle the defendant to an allowance of damages for a breach of such warranty, for the rule of damages in actions for the purchase price, where a breach of warranty is shown, is the difference between the value of the property at the time of the sale and what the value would have been had it been as warranted, and in this record there is neither evidence tending to show the value of the property at the time of the sale nor what its value would have been had it been as warranted.

We find no error in the rulings of the court on questions of evidence.

The record is, we think, free from error, and the judgment is affirmed.

Affirmed.


text:
    Continental and Commercial Trust and Savings Bank, formerly The American Trust and Savings Bank, Trustee for Contractors Supply and Equipment Company, Appellant, v. The Lantry Contracting Company, Appellee.
    Gen. No. 19,818.
    1. Notice, § 3

      —when doctrine of constructive notice cannot be invoked. The doctrine of constructive notice is resorted to for the purpose of preventing a person from doing an act which will work injury to another, and cannot be invoked to charge a person with assent to a fraud practiced upon him.
    2. Appeal and error, § 1725

      —when decision on former appeal not conclusive on a subsequent one. A decision of the Appellate Court on a former appeal is not conclusive on a subsequent appeal, where there is nothing in the abstract or opinion on the former appeal to show that the evidence on the second trial was substantially the same as on the first.
    3. Compromise and settlement, § 5

      —when arrangement does not .constitute compromise agreement. An arrangement between debtor and creditor with reference to a statement of an account sent to the debtor, where the creditor reduced the amount by making certain corrections but refused to make any allowance that the debtor insisted should be made, held not to constitute a compromise agreement.
    4. Payment, § 29

      —when evidence sufficient to show payment by third person. In an action by a supply company against a contracting company to recover a sum claimed to be due on account for machinery and supplies furnished, where the defense was that a certain person connected with the defendant company had, by an arrangement with an officer of the plaintiff company, directed that a part of a sum paid the latter company for him should be credited to the defendant company, held that a verdict for the defendant company was sustained by the evidence.
    Appeal from the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Frank T. Murray and Bither, Goff & Francis, for appellant.
    Helmer, Moulton, Whitman & Whitman, for appellee; Roland D. Whitman, of counsel.

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

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

   Mr. Justice Baker

delivered the opinion of the court.

This is an appeal by plaintiff, the trustee in bankruptcy of the Contractors Supply and Equipment Company, called herein the Supply Company, from a judgment of nil capiat in an action brought against The Lantry Contracting Company, called herein the Contracting Company, on the following instrument:

“The Lantry Contracting Co.
Paola, Kansas, Aug. 29th, 1908.
C. A. Morse, Chief Engineer,
Topeka, Kansas.
Dear Sir:—
Please pay to The Contractors Supply & Equipment Company, Thirty-eight Hundred Seventeen 69/100 Dollars, same being in full of all claims against The Lantry Contracting Company, and charge to our account.
It is understood that the garnishment suit brought by said Contractors Supply & Equipment Company is to be dismissed at cost of said Company.
The Lantry Contracting Company,
By T. T. Kelly,
Secretary & Treasurer.”

The defendant corporation in 1907 and the first two months of 1908 was engaged in constructing a tunnel through the Baton Mountains and received machinery and supplies for such work at Lynn, New Mexico. Of this corporation Charles I. Lantry was president up to January 1, 1908. The Lantry Construction Company, another corporation, in September, 1907, and afterwards, carried on business as a contractor at Duluth, Minn., and of this corporation Lantry was an officer. In August, 1907, and afterwards, Lantry, under the name of Lantry Ballast Company, had a contract to do certain work for the Tidewater Construction Company in Virginia. The two corporations and Lantry as an individual, trading under the name of the Lantry Ballast Company, ordered machinery and supplies from the Supply Company and that Company charged all the articles furnished on such order to the defendant, the Contracting Company. The Supply Company sent the following statement or voucher to the Tidewater Company about September 14, 1907:

“To Contractors Supply & Equipment Co.
Old Colony Bldg.
Please receipt and return promptly to
Assistant Treasurer
Tidewater Construction Company, Norfolk, Va.
Address Chicago, Ill.
Tidewater Construction Co.
Norfolk, Virginia, Sept. 18, 1907.
P-5933.
9/14 For 2-150 HP Tubular Boiler complete with fittings, pipe connections and stacks..........'...............$2,200.00
1-175 H.P.-Buckeye Automatic Engine with all fittings................ 1,500.00
1-Cross compound two stage Lane & Bodly Air Compressor, complete with Fittings and Air receiver........... 1,500.00
l-#7½ Symons Gyratory Car....... 2,600.00
l-#5 Symons Gyratory Car......... 1,500.00
I.A.B. $9,300.00
The above is a correct statement of account as audited.
F. C. Uhlman John J. Correll,
Assistant Treasurer.
Received Chicago 9/21 1907 of Tidewater Construction Company Ninety-three Hundred... .Dollars
In full for the above account.
Sign here
Contractors Supply & Equip. Co.
................Witness By Geo. L. Smith, Secretary.”

and received from that Company $9,300 September 21st as stated in the receipt above set forth. The first articles shipped by the Supply Company to the Lantry Construction Company at Duluth were shipped and charged September 21, 1907, and all the articles ■ shipped to Duluth were paid for by the Lantry Construction Company. Prior to September 14th the Supply Company had made but one shipment to the Tidewater Company, and this was charged August 24th and amounted to $649.50; there had been no communication between the two corporations and it is clear the $9,300 paid by the Tidewater Company to the Supply Company was paid under some arrangement or agreement between the Tidewater Company and Lantry.

"We "think that from the evidence the jury might properly find that the arrangement was that the Tidewater Company should render financial aid to Lantry by advancing to him the cost of machinery provided by him for the work, and that this included not only advances for machinery actually delivered on the ground, hut machinery purchased by Lantry and shipped to Virginia for use in the work; that in forwarding the voucher to the Tidewater Company, the Supply Company acted for and represented Lantry, and that the $9,300 paid by the Tidewater Company to the Supply Company was paid to that Company for Lantry; that the two tube boilers charged in the voucher at $2,200 were bought by Lantry August 20th of the Interstate Equipment & Engineering Company for- $1,400; that the Buckeye Engine charged in the voucher at $1,500 was bought by Lantry of the same Company August 20th for $1,000; that the air compressor charged in the voucher at $1,500 was bought by Lantry of the same Company August 20th for $1,450; that Marsh was the general manager and treasurer of the Supply Company and president of the Interstate Company, and that Smith was the treasurer of both Companies; that Marsh for the Supply Company claimed that $4,399.60 was due from the Contracting Company to the Supply Company, and Lantry directed the Supply Company to pay the amount due the Supply Company from the Contracting Company out of the $9,300 to be received by it from the Tidewater Company, and that he would come in later and adjust the balance; that Lantry made a draft on the Contracting Company for $4,399.60 to reimburse himself for the money he had directed the Supply Company to take from the $9,300 so to be received from the Tidewater Company and apply it in payment of the indebtedness due from the Contracting Company to the Supply Company, and the Contracting Company paid the draft.

Lantry suffered a nervous breakdown in October, 1907, and spent much of the time between that date and August 29, 1908, in a sanitarium. He ceased to be president of the Contracting Company January 1, 1908, and the evidence tends to show that he was unable to transact business between that date and August 29th; so no one connected with the Supply Company other than Lantry knew before August 30, 1908, either of the arrangement of Lantry with the Tidewater Company under which the $9,300 was advanced to Lantry, or of the arrangement between Lantry and Marsh for the collection of the $9,300 by the Supply Company from the Tidewater Company, and Lantry’s direction to apply $4,399.60 of the money so collected to the credit of the Contracting Company. The Supply Company made demand on Lantry for the payment of money on account and January 24, 1908, Trevor, assistant general manager of the Company, stated to John H. Maley, the personal representative of Lantry, that the Supply Company had no claim against the Contracting Company. Soon after that time the officers of the Supply Company learned that Lantry was insolvent and from that time the claim was made that the Contracting Company, and not Lantry, trading under the name of the Lantry Ballast Company, was indebted to the Supply Company. T. T. Kelly, the secretary and treasurer of the Contracting Company, took charge of the business and affairs of that Company and of its office at Paola, Kansas, after Lantry ceased to be president. In August, 1908, he sent Stephen A. Maley, who had been a foreman for the Contracting Company in New Mexico and a foreman for Lantry, trading as the Lantry Ballast Company in Virginia, to Chicago to see the Supply Company about the claim of that Company against the Contracting Company. August 28th Maley called on Marsh, the general manager and treasurer of the Supply Company and the president of the Interstate Engineering & Equipment Company. It was with Marsh that Lantry, September 14, 1907, made the arrangement by which the Supply Company, acting for and representing Lantry, as has been said, received the $9,300 from the Tidewater Company. Marsh on-cross-examination testified that he could not say that Lantry did not direct that $4,399.60 out of the $9,300 received from the Tidewater Company should be credited on the Contracting Company’s account. He further testified that he told Maley that Lantry had not paid $4,399.60 to apply on the Contracting Company’s account. Maley and Marsh agreed August 28th that certain reductions should be made from the claim of the Supply Company, but did not conclude their examination of the entire account, and it was arranged that Maley should return the next day to resume the examination. When he returned the next morning he found that Marsh had been discharged and that George D. Smith, who had been secretary of the Supply Company, was in charge of its office and affairs. Smith refused to talk with Maley and took him to the offices of the Company’s attorneys, who had begun for the Supply Company a suit in attachment against the Contracting Company, in which was garnished a large sum of money due from the Santa Fe Railroad Company to the Contracting Company. It was then agreed that the Supply Company would allow certain credits which reduced the amount claimed to $3,817.69. Maley then, with the knowledge of Smith and King, who assisted in drafting the telegram, telegraphed Kelly to send a" draft to the Supply Company for $3,817.69, and that it was understood that the garnishment suit should be dismissed. On the receipt of this telegram Kelly drew and forwarded to the Supply Company the instrument sued on. Maley did not know where Lantry was until August 30th, when he received a letter from him and found him at a hotel in Chicago where he was stopping under the name of Charles J. Lawler. He told Lantry that the Supply Company found that Lantry had paid the $4,399.60, and Lantry then told him of the arrangement he. made with Marsh to place $4,399 out of the $9,300 which Marsh was to collect for him from the Tidewater Company to the credit of the Contracting Company. On receiving this information Maley telegraphed Kelly at Paola, Kansas, that he had better take immediate steps to stop payment on the order. Payment was stopped but the suit of the Supply Company was not dismissed until May 18, 1909, after the present suit was begun.

From the evidence the jury might properly find that both Marsh and Smith represented and said to Maley that the Supply Company had not, on the order of Lantry, applied $4,399.60, or any other sum out of the $9,300 collected by the Supply Company from the Tidewater Company, on the amount due that Company from the Contracting Company, when in truth and in fact it had applied $4,399.60 of the $9,300 collected on the indebtedness due the Supply Company from the Contracting Company, and that the Contracting Company relied on the statements so made to Kelly and Maley. It is true that the arrangement was made by Lantry, the president of the Company, and the Company therefore had constructive notice of the arrangement, but the doctrine of constructive notice is resorted to for the purpose of preventing a person from doing an act which will work injury to another, and cannot be invoked to charge a person with assent to a fraud practiced on him.

The contention of appellee is that the jury might from the evidence properly find the issues joined on the plea that the instrument sued on was made and delivered under the erroneous conviction that Lantry had not prior thereto paid or caused to be paid to the plaintiff Company on behalf of the defendant $4,399.60,' when in fact Lantry had made such payment, and also that the jury might properly find for the defendant on the issues joined on the plea that the plaintiff falsely and fraudulently, with intent to deceive the defendant, represented to it that Lantry had not paid to plaintiff in behalf of defendant $4,399.60, when in fact he had made such payment, and that defendant relied on such representation, etc.; and also that the jury might properly find for the defendant on the issue joined on the plea that there had been paid by plaintiff to defendant $4,399.60, and at the time when the instrument sued on was made and delivered the defendant was not indebted to the plaintiff, and that the consideration for said instrument has failed, etc.

■ The first contention of appellant, that the decision on the former appeal, American Trust & Sav. Bank v. Lantry Contracting Co., 171 Ill. App. 626, is conclusive on the parties on this appeal, is without merit. The transcript of the- record on the former appeal was removed to the Supreme Court and has not been brought before us. Lantry died before the second trial and his testimony on the former trial was read on the second trial; but all the other witnesses testified on the second trial, and there is nothing in the abstract or opinion on the former appeal to show that the evidence on the second trial was substantially the same as on the first.

The second contention, that the merits of the controversy cannot be inquired into because the agreement in relation to the instrument sued on was a compromise agreement, is also without merit. The arrangement made between Smith and King representing the plaintiff and Maley representing the defendant was not a compromise agreement. Smith and King made certain corrections in the statement of account sent to defendant to correct errors, and they refused to make allowances that Maley insisted should be made, and denied positively that the plaintiff had received $4,399.60 from the Tidewater Company for Lantry with directions to place the same to the credit of the defendant. As was said in Mulholland v. Bartlett, 74 Ill. 58-63: “A compromise implies the yielding of a part of a claim.” There is nothing of that kind in this case.

Lantry, as has been said, testified that he directed that the Supply Company should apply $4,399.60 of the money that Company was to collect for him from the Tidewater Company to the credit of the Contracting Company. The testimony of Marsh not only does not contradict but, on the contrary, tends to corroborate the testimony of Lantry. The $9,300 which the Supply Company collected from the Tidewater Company was Lantry’s money and he had the right to control its application. There is no evidence tending to show that Lantry authorized or directed the Supply Company to apply any part of the $9,300 on his indebtedness to the Interstate Equipment and Engineering Company, but without such authority, and in violation of the direction of Lantry, the Supply Company applied the greater part of the $9,300 to payment of Lantry’s indebtedness to the Interstate Company.

It is not disputed that if the $4,399.60 had been placed by the Supply Company to the credit of the Contracting Company nothing would have been due from the Contracting Company to the Supply Company at the time the instrument sued on was executed.

The contention of appellant that the $9,300 was paid to it by the Tidewater Company to pay appellant for goods ordered by Lantry of appellant is not supported by the evidence. The voucher on which the Tidewater Company paid the Supply Company $9,300 contains three items, amounting to $5,200, which the evidence shows Lantry had bought of the Interstate Equipment & Engineering Company for $3,850, and paid for prior to September 14, 1907. The Supply Company was not entitled to apply any part of the $9,300 it received from the Tidewater Company in payment of the articles Lantry bought from the Interstate Company, first, because Lantry had paid for such articles before the Supply Company received the $9,300, and second, because no authority from Lantry to make such application is shown by the evidence.

We find no reversible error in the instructions, and we cannot say that the verdict is so manifestly against the evidence as to warrant a reversal of the judgment, and it will be affirmed.

'Affirmed.


text:
    Albert Kozak, Appellee, v. Western Iron Company et al., Appellants.
    Gen. No. 19,831.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Action by Albert Kozak against Western Iron Company, Joseph Ulrich, Carrie Ulrich and others to recover damages for personal injuries sustained plaintiff by falling from a scaffold supported by trestles in a street. The accident was caused by a wheel of a wagon striking one of the trestles. To reverse a judgment against the defendants, Western Iron Company, Joseph Ulrich and Carrie Ulrich, said defendants appeal.
    Abstract of the Decision.
    Judgment, § 193

      —when joint judgment cannot be sustained. A judgment against joint defendants cannot be sustained where the evidence is insufficient to sustain a verdict against one of the defendants.
    Joel C. Carlson, for appellants.
    Frank S. Burgess and Edward Maher, for appellee.

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

   Mr. Justice Baker

delivered the opinion of the court.


text:
    Roy Prickett by John W. Prickett, Appellee, v. Sarah Pardridge et al., Appellants.
    Gen. No. 19,847.
    1. Landlord and tenant, § 230

      —when owners not liable for injury to child of tenant by falling from roof. Where a child of a tenant went upon the roof of a three-story tenement building and in attempting to jump from it to the roof of an adjoining building fell and was injured, held 'that the owners of the buildings were not liable on the theory that they owed to the tenants and their families the duty to exercise care to keep the roof in a reasonably safe condition, it appearing that there were steps leading to the roof and that the roof was used by the tenants for drying clothes, but it not appearing that the owners had knowledge that children went upon the roof, or that the roof was used as a playground or breathing place by the invitation or with the knowledge and consent of the owners.
    . 2. Negligence, § 45

      —when owners of building not liable on theory of maintaining dangerous roof attractive to children. Where a child went upon the roof of a three-story tenement building and in attempting to jump from it to the roof of an adjoining building fell and was injured, held, that the owners of the buildings were not liable on the theory that the roof was a dangerous thing attractive to children, for the reason that the roof was not so located as to attract children from a street or other public place, and for the further reason that neither the roof nor anything connected with it was the proximate cause of the injury.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed with finding of fact.
    Opinion filed October 13, 1914.
    Rehearing denied October 28, 1914.
    John S. Hummer, for appellants; James E. McGrath, of counsel.
    Alexander H. Heyman, for appellee; Francis W. Walker, of counsel.

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

   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff, a child four years old, went on the roof of the three-story tenement house number 167 West Superior street and attempted to jump from the roof across a court four and a half feet wide to the roof of number 165, and in so doing fell and was injured. The defendants owned and were in control of the buildings numbers 167 and 165, and also of a four-story tenement house fronting on Wells street and extending back to the side of the building number 167 Superior street. Plaintiff in an action of tort for negligence recovered a judgment for eighty-five hundred dollars, to reverse which the defendants prosecute this appeal.

The parents of plaintiffs occupied, under a verbal lease from defendants, rooms in the basement of the building number 167 Superior street. At the rear of the building fronting on Wells street and along the side of the building No. 167 Superior street was a stairway which led to the roof of 167 Superior street. The tenants in the buildings were accustomed to take clothes up the stairway and hang them on lines on the roof of number 167. Near the top of the stairway was a gate which was fastened with a hook and staple, but in the gate was a hole through which plaintiff could thrust his arm and unfasten the hook and through which he could pass. A girl living at number 165 carried a basket of clothes up the stairway onto the roof of number 167. She saw the plaintiff unfasten the hook, told him to go downstairs, but he proceeded through the gate onto the roof near the court. She told him again to go downstairs, but he climbed on the coping at the edge of the roof and saying, “Watch me jump,” attempted to jump across the open space and fell to the bottom of the court, a distance of about forty-five feet.

If the plaintiff was a trespasser on the roof then the defendants owed no duty to him to keep the roof in safe condition. But if the roof was used by the tenants as a breathing place, a place for rest, recreation and play by the express or implied inducement or wish of the defendants, in other words, by their invitation, then the defendants owed to the tenants and their families the duty to exercise reasonable care to keep the roof in reasonably safe condition.

That some of the tenants were in the habit of hanging clothes to dry on the roofs was known to the defendants, but no permission, express or implied, was given to any of the tenants to make any other use of the roof. There is evidence that boys went on the roof, played there and threw pebbles on persons passing along the street, but no evidence that the defendants or any of them had any knowledge, actual or constructive, that children ever went on the roof to play or for any other purpose. It is shown by the evidence that some of the tenants, when they saw boys playing on the roof, drove them down. Plaintiff’s father testified that he had driven boys down from the roof, and his mother testified that she had often done so, “for fear that they would get my little boy up there”; that she hung her clothes on the roof when she first lived in the building, but quit on account of her children.

Passing for the present the question whether the facts bring the case within the doctrine of the “turntable” or “attractive nuisance” cases under which it is held that the maintenance of a dangerous thing attractive to children under certain circumstances may amount to an invitation to them, so that they cannot be regarded as voluntary trespassers, we do not think that from the facts proved the jury might properly draw the inference that any of the tenants used the roof as a playground or breathing place by the invitation or with the knowledge or consent of the defendants, or that the defendants were guilty of an actionable breach of duty to the plaintiff in failing to keep the roof in safe condition for á child of his age to go on.

It remains to consider whether the judgment can be sustained under the doctrine of the “turntable” or “attractive nuisance” cases. The rules in such cases are very fully stated in McDermott v. Burke, 256 Ill. 401. In that case it was held that the owner or occupant of private grounds is under no obligation to keep them in any particular condition to promote the safety of trespassers, bare licensees or others who come upon them without any express or implied invitation; and this general rule applies equally to adults and children; that in Illinois if the owner or occupant of premises leaves a dangerous machine or thing exposed under such conditions that it may reasonably be anticipated that children of such tender age as to be incapable of exercising proper care for their safety may, by their own instincts, be attracted to the dangerous thing and thereby injured, he will be liable for such injury; that it is a necessary element of the liability of the owner of premises for 'an injury to a child playing with a dangerous appliance, that the appliance be such a thing as the owner might reasonably anticipate would be attractive to children and be so located as to attract them from the public street or some public place where they had a right to be, and he is not liable for maintaining a dangerous thing for his own use which could only be found by children going upon the premises as trespassers; that another essential condition to liability is that the attractive, thing or something inseparably connected with it must be the proximate cause of the injury. Seymour v. Union Stock Yards & Transit Co., 224 Ill. 579.

In the McDermott case, supra, the attractive thing was a sand pile, but that was not dangerous and caused no injury. The injury was caused by the plaintiff leaving the sand pile and going fourteen feet away to a hoisting appliance in which a cable passed under a sheave and placing his hand on the cable, whereby his hand came between the cable and sheave, and it was held the sand pile was not the proximate cause of the injury. In the Seymour case, supra, the attractive thing was a. pile of clay alongside of a railroad track. The plaintiff, a child, went on the pile to play. While playing there he was in no danger, but he quit playing with the clay and began to run alongside of a passing train, touching the cars, and fell under a car and was injured, and it was held that the proximate cause of the injury was the conduct of the plaintiff in placing his hands upon. and running alongside of the cars. In this case the injury was proximately caused by the act of the plaintiff in jumping from the roof. In Kansas City, Ft. S. & M. R. Co. v. Matson, 68 Kan. 815, the plaintiff was shaken by a passing train from a pile of wood alongside of a railroad track, and it was held that he could recover. The Seymour case is distinguished from that case by Mr. Chief Justice Scott in the opinion, on the ground the pile of wood was so located that in yielding to its allurements the child, without such intervention of another element as breaks the relation of cause and effect, is brought directly in contact with danger from some independent source which occasions the injury.

In this case it cannot be said that the stairway was alluring, and it is not alleged to be alluring. The most favorable view that can he taken of the declaration is that it alleges that the roof was alluring and therefore the defendants should, by means of a gate or door through which children could not pass, have prevented children from going on the roof: But the roof was not near the street, but‘ three stories above it. and could only be reached from the street by climbing-three flights of stairs. The evidence also fails to prove what is held in McDermott v. Burke, supra, to be a necessary element of liability, viz., that the dangerous thing must be so located as to attract children from the street or some public place where they may be expected to be. In St. Louis, V. & T. H. Co. v. Bell, 81 Ill. 76, cited with approval in McDermott v. Burke, it is held that when the turntable was not near a pub-' lie street, nor in a place where the public were in the habit of passing, the defendant was not liable for injuries to a child received in playing- on such turntable.

Our conclusion on a careful review of the evidence is that the facts proved do not bring the case within the doctrine of the “turntable” or “attractive nuisance” cases as announced by the Supreme Court of this State, and that the evidence fails to show a right of action in the plaintiff against the defendants. For the reason indicated the judgment of the Circuit court is reversed.

Judgment reversed with finding of fact.

Finding of fact.—The court finds as a fact that the evidence in the record in this case fails to show that the defendants were guilty of any negligence which caused or contributed to the injury of plaintiff for which he recovered in this case.