author: Mr. Justice 'Brown

text:
    Philip Amsterdam, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 15,559.
    Nuisances—power of court to remove. If an injunction be prayed for to prevent a municipality from interfering with the use of grand stands located upon tops of buildings for the purpose of enabling ball games to be witnessed, the court may upon finding that such grand stands did not meet the requirements of the city ordinances and constitute nuisances, grant the relief prayed for by a cross-bill and order the removal thereof.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the March term, 1909.
    Reversed and remanded with instructions.
    Opinion filed March 16, 1911.
    Edward J. Brundage, for appellants; William S. Stahl, of counsel.
    Adler, Lederer & Schoenbrun, for appellee.
   Mr. Justice 'Brown

delivered the opinion of the court.

The appellee in this case, Philip Amsterdam, complainant and cross defendant below, is the owner of two three story brick flat buildings of ordinary construction, from the flat roofs of which people can overlook the West Side National Ball Park. One of them, at 451 South Wood street, had on the roof when he bought it “a grand stand,” as the same is defined in section 656 of the Municipal Code of Chicago; that is tiers of wooden seats rising one above the other. Seats on these stands were presumably rented by the former owners, as they were by appellee in 1905 and 1906 and 1907, to persons desirous of seeing the base hall games in the park without paying therefor as much as was demanded for admission to the park for equally good seats. The other building is at 805 West Taylor street, and was built by tbe appellee in 1907. On it he built a grand stand similar to that on tbe building at 451 South Wood street, but larger, and used it for tbe same purposes.

Permits to Amsterdam “to use roof” of 451 South Wood street as a “grand stand” were issued to him by a deputy commissioner of buildings for tbe city in tbe spring of 1905 and of 1906, and one for tbe “erection of a grand stand on tbe roof” of said building in April, 1907. Tbe permits were on blank forms used for permits for tbe erection of buildings, and all contained tbe clause:

“This permit is granted on tbe express condition that tbe said P. Amsterdam in tbe erection of said building shall conform in all respects to tbe ordinances of tbe city of Chicago regulating tbe construction of buildings in tbe city limits, and may be revoked at any time upon tbe violation of any of the provisions of said ordinances.”

A permit apparently was issued for tbe building at 805 West Taylor street, including a grand stand on tbe roof, on July 19, 1907. At all events tbe evidence shows that on that date plans for tbe building, showing tbe proposed grand stand on tbe roof, were approved by a deputy building commissioner, and the court below in its decree hereinafter described so found.

It is, however, not disputed that tbe permits for tbe erection or use of “grand stands” on both buildings were revoked in tbe fall of 1907, and notice given to tbe appellee by tbe city of Chicago through a deputy commissioner of buildings. This tbe court below also found in its decree, and counsel for appellee in their argument concede that no question is raised by tbe record as to tbe estoppel of tbe city because of the issuance of said permits.

But after that revocation tbe police made objection to people going upon these roofs, and tbe appellee Amsterdam thereupon filed a bill in chancery making' the city of Chicago, its chief of police and its commissioner of buildings defendants, setting forth his ownership of the buildings, the construction of the grand stands upon the roofs, and the profitable use by him for four years of the one on South Wood street. He alleged further by his bill that he had complied with all the regulations of the building department of the city and with all suggestions, additions and improvements required by the city for the purpose of rendering the roofs safe, and that they and the stands were safe; that the building department of Chicago, though admitting the fact that the stands and roofs were safe, were threatening to stop the use of the roofs on the ground that “the corporation counsel had ordered no permits to be issued for stands in the future near the base ball park;” that the police were interfering to prevent persons from going up on the roofs and threatening to arrest the complainant; and “that in the construction of said stands on the roofs and each of them” the complainant had strictly followed the laws and city ordinances. He therefore prayed the court to enjoin the defendants from in any manner interfering with bis premises or with tbe use of tbe roofs of said premises for tbe purpose of placing and seating persons thereon.

A temporary injunction in accordance with the prayer of the bill was granted. The defendants then answered, denying that the buildings and constructions thereon were safe or that the grand stands were erected in accordance with the ordinances and regulations of the city of Chicago, and denying any admission to the contrary by said city or its officers. They denied also that the reason for the refusal for the permit for the building at 805 West Taylor street was that the corporation counsel had ordered that no permit be issued for stands in the future near base ball parks, and alleged that the true reason was that to issue such a permit would be in violation of certain ordinances of the city of Chicago, and especially section 656 of the Kevised Municipal Code of Chicago of 1905.

Said section 656 is set forth in full in the answer and as we think the decision of this case properly turns upon it, we quote it.

“Wooden grand stands or tiers of seats, commonly known and described as grand stands, may be erected within the fire limits where no part of any such structure shall be within sixty feet of any other building or structure, provided that the person or corporation desiring a permit for the construction of such a grand stand shall first obtain the consent in writing of the owners of a majority of the frontage on both sides of the street or streets on each side of the block or square in which it is desired to erect such grand stand.”

With their answer the defendants filed a cross bill against Amsterdam, in which they allege that the two “grand stands” in question are unsafe, and continuing nuisances and menaces to the community, and that they were erected in violation of section 656 of the Municipal Code as there set forth. The bill sets out various ordinances of the city bearing on the subject of dangerous constructions and the power of officers of the city to compel their abatement, and prays that the “grand stands” erected upon the roofs of said premises at 451 South Wood street and 805 West Taylor street be declared in violation of law and the city ordinances, and that an order be entered on the defendant Amsterdam to remove the said grand stands from the roofs of his said buildings.

This cross bill Amsterdam answered formally, praying for strict proof of all its allegations.

The cause was heard before a chancellor in the Circuit Court, and much evidence taken concerning the actual condition of the constructions and their safety and the danger incurred by persons occupying them in case of fire in the building beneath; all which is rendered immaterial by the view that we take of the case, and which we need not therefore discuss.

The court below entered a somewhat elaborate decree, which found in detail the construction of the “grand stands” on the two buildings and of the means of access to and egress from them, and then ordered that Amsterdam should not use said tiers of seats known as grand stands' constructed on the roof of his building at 451 South Wood street until he had complied with “the ordinances of the city of Chicago for buildings known as tenement houses combined with roofs used for spectatorial purposes.”

It may be noted in passing that we agree with counsel for appellee that no ordinances properly to be described “as ordinances for buildings known as tenement houses combined with roofs used for spectatorial purposes” are shown by this record to exist.

The decree further proceeded to order that Amsterdam should be permitted to use the grand stand erected upon the roof of the building known as 805 West Taylor street for spectatorial purposes when he should have made various changes and additions in construction on the roof and on the grand stand itself and in his building proper, and in the language of the decree “should have complied with the ordinances of the city of Chicago governing the use of tenement buildings combined with a roof used for spectatorial purposes under section 722 of the Revised Municipal Code of Chicago of 1905.” The decree proceeds: “As soon as he shall have complied with said provisions, complainant in the bill shall be permitted to use said roof on said building at 805 West Taylor street, together with the grand stand erected thereon for spectatorial purposes for the viewing of said base ball games.”

The defendants to the original bill and cross complainants appealed from this decree.

The reference of the decree to “the ordinances for buildings known as tenement houses combined with roofs used for spectatorial purposes,” and the practical identification of such supposed ordinances with section 722 of the Revised Municipal Code of 1905, makes desirable the recital herein of that section, the relation of which to section 656, heretofore quoted, is the turning point of this case as we view it.

Section 722 is as follows:

“It shall be unlawful for any person, whether owner, lessee, manager or person in control or having charge of any building within the City to permit the use of the roof of any house or building, 'whether free of charge or through admission fee to any person, as a place of observation or for spectatorial purposes unless he has first obtained from the commissioner of buildings of the City a permit; Provided, however, it shall not be unlawful for any person, whether owner, lessee or the person in control or having charge of such house or building, to permit the roof of any such house or building to be used as a place of observation or for spectatorial purposes for a number of persons not exceeding ten and when no admission fee is charged. ’ ’

Section 723, which is also alluded to in the findings of the decree, hereinafter to be mentioned as involved in this litigation, is as follows:

“Before issuing the permit as provided for in the foregoing section the Commissioner of Buildings shall make an investigation as to whether such building is safe and secure enough to permit the presence of an estimated number of persons to be permitted on such roof. The Commissioner of Buildings shall see to it that every such roof is surrounded and enclosed with a railing or balustrade of sufficient height and strength to afford adequate protection.”

The court below in its decree included among its findings the following:

“The court doth further find that defendant to the bill and complainant to the cross bill introduced Section 656 Revised Municipal Code of Chicago of 1905, and doth find that said section 656 of said Revised Municipal Code of Chicago of 1905 is not applicable to this structure, to which findings defendants to the bill of complaint and complainants to the cross bill excepted, and the court doth further find that complainants to the bill and defendants to the cross bill introduced sections 722 and 723 Bevised Municipal Code of Chicago, and the court doth find that said sections 722 and 723 of said Bevised Municipal Code of Chicago of 1905 applied to said building and the grand stand used on the roof thereof for spectatorial purposes, to which finding defendants to the bill and complainants to the cross bill excepted.”

We disagree with these findings, and it follows from such disagreement that we think the court below erred as well in the ordering part of its decree.

It is found by the court below in its decree, and the finding is acquiesced in by appellee, that the grand stands are within less than sixty feet of another building and are within the fire limits of the city, and that the appellee did not obtain the consent in writing of the owners of a majority of the frontage on both sides of the street on each side of the block or square in which said stands are respectively located.

It therefore is plain that if section 656 applies to them both, the grand stands in question are in violation of the ordinance and the appellants should not be enjoined under any condition from enforcing the ordinance.

The basis of the argument of appellee and of the finding of the court is the proposition that section 656 of the Code does not apply to grand stands erected on the roofs of brick buildings, “as it is,” counsel says, “a portion of Article 17, which is specifically designated as relating to frame buildings.” The» stands in question, they say, are part of a brick building.

Again it is said that sections 722 and 723 “relate specifically to stands on buildingsand must control the inconsistent provision in relation to such stands in section 656 if that section should otherwise be held to apply.

Both these propositions are fallacious.

Tiers of wooden seats rising one above tbe other are “grand stands” regulated by section 656 of the Code just as much when they are erected on the roof of a brick building as when they are erected on the ground. They are not in the former case “parts of a brick building.” The position of the section in an article headed “Frame Buildings” ha's no bearing on the subject. Such stands are, however, in themselves “frame buildings,” “frame constructions,” and the ordinance about them is properly enough placed in a chapter thus entitled.

Nor is there any inconsistency between section 656 on the one hand and sections 722 and 723 on the other which calls for any reconciliation or which makes 722 and 723 applicable to the grand stands here involved. Those sections instead of “specifically relating” to stands on buildings, say nothing about stands on buildings. They apply to “the use of roofs as a place of observation,” whether there are grand stands on them or not; but they leave the matter of erecting and maintaining grand stands on them where it is placed by section 656.

Our conclusion is, therefore, that this decree should be reversed and the cause remanded with instructions to the court below to dismiss the bill of the complainant, and inasmuch as the complainant chose the equity forum in which to assert his supposed rights and litigate the entire question, to grant the relief prayed by the appellants in their cross bill. Had their bill been an original one there might have been doubt of the jurisdiction of the court to make such a decree as is therein prayed for. The chancellor, however, in his decree made a finding which is not questioned, that the grand stand on the Wood street house was a continuing nuisance as then used, and that the grand stand on the Taylor street house needed changes to make it safe for the purposes for which it was used, which must be considered as tantamount to the same finding in relation to it. As the stands cannot be made legal or in compliance with the ordinances by any changes, we think the court should order their removal as continuing nuisances in accordance with the prayer of the cross bill.

Reversed and remanded with instructions.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    William K. Marshall, Appellee, v. Canadian Cordage and Manufacturing Company, Limited, Appellant.
    Gen. No. 15,493.
    1. Agency—when principal liable for violation of exclusive grant. Where there is an exclusive agency and the principal violates the contract by making sales directly and knowingly within the exclusive territory, he is clearly liable.
    2. Measure oe damages-—in action for selling by principal within exclusive territory. If a principal sells merchandise within territory which it has exclusively granted to an agent upon commission it is liable to such agent for the commissions which would have accrued to him if he had made the sale in person.
    Bill for accounting. Appeal from the Superior Court of Cook county; the Hon. Wielard M. McBwen, Judge, presiding. Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed March 16, 1911.
    Shope, Zane, Busby & Weber, for appellant.
    George W. Brown and J. Kentnor Elliott, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee filed a hill in the Superior Court of Cook county, setting out an agreement entered into with appellant November 21, 1905, whereby appellee was made general agent and sales manager of appellant, with headquarters at Chicago, for one year from December 1, 1905, for the sale of binder twine on a commission basis, “covering the States of Minnesota, North Dakota, South Dakota, Wisconsin, Iowa, Nebraska, Illinois, Missouri, Kansas, Oklahoma, Manitoba and the North West Canadian Provinces.”

The contract provided: “The said second party” (appellee) “shall on December 1, 1905, open an office at Chicago and conduct the business in the name of the first party” (appellant) “and all sales of the first party” (appellant) “in said territory shall be handled through the said office at Chicago.” The appellee was to bear all the expenses in maintaining said agency and selling twine and was to keep in stock at Chicago a small quantity of twine to fill small orders, but the greater portion sold was to be shipped in carload lots direct from appellant’s factory at Peterborough in the Province of Ontario. The bill alleges that the appellant had sold large quantities of twine in his said exclusive territory and had not reported same to or paid appellee his commission on same, and prayed an accounting. The appellant answered, denying it had sold twine directly or through other agencies in the territory covered by said contract. Replication was filed and on a hearing by the chancellor there was a finding and a decree that there was due appellee the sum of $583.80, with interest at the rate of five per centum per annum from May 20, 1907.

Two cross-errors have been assigned by appellee. The first is that the court erred in finding that the commission due appellee on a sale of a large order of twine to Montgomery Ward & Co. was not within the said contract, but controlled by a special contract entered into by the parties pertaining to said sale. It appears to us that the chancellor was correct in holding that the greater weight of the testimony showed that the parties subsequently entered into a special contract and agreed upon a certain commission to be paid appellee on the sale to Montgomery Ward & Co., and accordingly allowed the proper amount on the accounting. The second cross-error is that there was an improper credit given appellant, for twine sold, hut after-wards returned, hut if credit be given on same the computation was wrong. On the hearing reference was made to conditional sales where the parties reserved the right to return the twine, and the computation was made at the rate of five per cent commission on the total amount of twine returned. It is claimed by the appellee that if any allowance is to be made on twine returned, a portion thereof should be figured on a three per cent commission instead of five per cent, which would make a difference of $80.79 in favor of the appellee. Although counsel have indulged in an abundance of abstracts in this case, we are unable, after a careful examination of all three abstracts, to discover which sales, if any, were conditional, or which shipments of twine were returned on which the appellee was not allowed a commission. In such a state of the record we are not able to determine this question.

The main controversy in this case was over the Massey-Harris Company contract. The. essential facts pertaining to said contract were not in controversy. The Massey-Harris Company was a corporation manufacturing implements located in Toronto, Province of Ontario, with branch houses and agencies in said Province, the Canadian Northwest, Europe and Australia. Massey-Harris Company did not make twine, but had done a binding twine business since 1885 by buying from some manufacturer and selling the same as Massey-Harris Company twine through its various branches and agencies, and had purchased twine from the appellant for three seasons prior to 1905-6, but not for the season of 1904-5. The appellant began negotiations with the Massey-Harris Company in September, 1905, which culminated in a contract with said company January 19, 1906, for a large amount of twine to "be tagged and shipped by appellant from its factory as directed by Massey-Harris Company. The Province of Ontario was not within the territory specified in appellee’s contract. The principal place of business of both of said companies was in said Province; their contract of January 19,1906, was made therein; the directions by Massey-Harris Co. pertaining to shipments under said contract were given therein, and the shipments on said directions were made by appellant from their factory in said Province; at the time of entering into said contract appellant had no information where the twine so purchased would he shipped; appellant did tag and ship under the directions of Massey-Harris Company, about three hundred and sixty tons of twine into the territory specified in the contract with appellee.

Appellee had sold twine for about sixteen years and had a large personal acquaintance with dealers and jobbers throughout the territory covered by his contract, which was substantially the great wheat growing territory of North America. Immediately on entering into the contract, appellee had opened an office in Chicago, engaged office help, traveling men, and industriously prosecuted the business of selling appellant’s twine. Appellee called upon the Massey-Harris Company agent at Winnipeg early in January, 1906, and learned that negotiations were then pending between appellant and Massey-Harris Company, and recommended appellant’s twine and so notified appellant by letter, hut never made further mention of same until after he filed his hill. The court found, and we think properly, that appellee had nothing to do with making the sale to Massey-Harris Company.

The season for selling twine begins in January and continues until June. April 9, 1906, appellant wrote appellee in part: “There is no use of your spending a lot of money traveling around the country and our being unable to fill the orders when they come in here.” April 18, 1906, “in part owing to onr output being fully sold up, we are considering the matter of calling you in. * * * We feel that this is going to crowd us very much to fill the orders we now have on hand. ’ ’

Appellant also claims that the appellee converted two certain collections to his own use and filed the bill,not in good faith, but to gain time. While it may be that the conduct of appellee was not in all respects commendable, yet in the accounting the two collections so made were charged to appellee, and the question is: Was the learned chancellor right in holding that under all the circumstances the appellant should pay to the appellee the commissions on the twine shipped under the Massey-Harris Company contract into the territory specified in the contract with appellee? The question is not, by any means, free from difficulty. The appellant made some sales within appellee’s territory, and each time gave appellee credit for his commissions thereon. "It seems clear that from the contract and the construction of it by the parties, the territory was exclusive,''and counsel for appellant in their brief state that the clear intent of the parties was that appellee should have a commission on all sales made in said territory, whether made by him or the company direct.

It is not claimed that the Massey-Harris Company contract was a fraud or a subterfuge to evade payment of commissions, but it seems to be conceded that said contract was made by appellant, supposing it had a right to make same without concern as to where the said twine was to be shipped. ^Should a court of equity hold that under the circumstances the appellant could do indirectly what it had no right to do directly? /

The appellant cites and relies on four cases: Gilbert v. Coons, 37 Ill. App. 448; LaFavorite Rubber Mfg. Co. v. Channon Co., 113 Ill. App. 491; Roberts v. Minneapolis Threshing Machine Co., 67 N. W. Rep. 607; Wyckoff, Seaman & Benedict v. Bishop, 115 Mich. 414. On a careful examination of these cases, we think none can he held decisive of the question in the case at bar. Where there is an exclusive agency and the principal violates the contract by making sales directly and knowingly within the exclusive territory, he is clearly liable. The question of damages, however, is not so well settled. It appears to us that there is a distinction between a contract creating an agency with an exclusive right for the sale of goods within a certain territory on a commission, and a contract giving a party an exclusive right of purchase and resale of goods for a certain territory. In the first ease if there be a breach of the contract by the sale of goods in the agent’s territory, the damages are fixed by the contract; in the other case, the damages, if any, are to be proven under the rule announced in LaFavorite Rubber Mfg. Co. v. Channon Co., supra, and cases there cited.

In Cincinnati Gas Co. v. Western Siemens Co., 152 U. S. 200, one of the parties contracted to sell exclusively to the other party for use in a designated territory certain patented articles, and agreed that it “will not knowingly sell or permit other parties to sell for use in said territory” the said articles. The testimony showed that sales were made by the plaintiff within the exclusive territory, but inadvertently and in ignorance that the same were within said exclusive territory. The Circuit Court held that the sales were made inadvertently and in ignorance of the fact that they were within the exclusive territory, yet they were in direct violation of the terms of the contract, and therefore gave a right to damages. It will be observed that the provision of the contract was that the party would not “knowingly sell,” yet the Supreme Court approved the rulings of the Circuit Court.

In Garfield v. Peerless Motor Car Co., 189 Mass. 395, the plaintiff was the exclusive agent for the sale of defendant’s cars in Worcester and vicinity. Orndorff, a resident of Worcester, while temporarily residing at Gloucester, purchased a car at the branch office of the defendant company at Boston and the car was delivered to Orndorff at Gloucester. The court held plaintiff was entitled to his commission and said: “The defendant’s first contention is that the sale to Orndorff was outside the plaintiff’s territory because the contract of sale was made in Boston and the car sold was delivered in Gloucester. His position is that the place where the sale is made, not the residence of the purchaser, is the test. But we do not think that it is so. It is manifest that the contract contemplates that persons buying cars or supplies shall buy them in the territory in which they belong. It is expressly provided that if the agent receives inquiries from territory other than his own, he shall refer them, promptly to the defendant. This, coupled with his appointment as exclusive agent for Worcester and vicinity, implies that all inquiries from Worcester and vicinity shall be referred to him.”

In the case at bar it is manifest that the contract contemplated that all the twine of the Cordage Co. sold in the territory specified in the contract with Marshall should be sold and the business transacted in the name of the Cordage Co. by its agent Marshall, and that he should be paid a commission on all said sales.

In Thompson-Houston Electric Co. v. Berg, 10 Texas Civil Appeals, 200, Berg claimed commissions for goods sold in the territory for which he was exclusive agent. On one item of more than five thousand dollars it appeared Berg had nothing to do with making the sale. The court held he was entitled to compensation therefor under the contract giving him an exclusive agency and also said, p. 218: “That the terms of the sale were agreed upon outside of the State of Texas would not, in our opinion, militate against appellee’s right to his commissions.”

It appears that the test is not necessarily where appellant entered into the contract with Massey-Harris Company, or where the goods were delivered, or even the intention of not violating the terms of the contract with appellee. We conclude that under all the circumstances of the case at bar, the controlling-fact is the knowledge of appellant that the destination of the twine, or the larger part thereof, sold Massey-Harris Company, was to be, and in fact was, shipped by appellant to points within the exclusive territory covered by its contract with appellee.

The chancellor who heard the case in the Superior Court in giving his decision stated that the Cordage Co. knew that the twine was going- into Marshall’s territory, and that the agency there was an exclusive one, and because some of the twine sold the Massey-Harris Company would not go into the said territory, that would not excuse them. It is true the testimony is that the appellant had no information at the time of signing the Massey-Harris contract to what points the twine so sold would be shipped, yet it had notice that one of the agencies of Massey-Harris Company within appellee’s territory had been consulted about said twine and its quality, and from its previous dealings, experience and knowledge of the extensive business of Massey-Harris Co. throughout appellee’s territory it would seem that the appellant must have known that the Massey-Harris Co. would in the usual course of events, sell and ship a large amount of said twine within the territory covered by appellee’s contract. From the evidence there can be no other reasonable conclusion. We therefore think that the appellant when entering into the contract with the Massey-Harris Co. should have in some way protected appellee, but not choosing so to do, should, under all the facts and circumstances of the case, be held liable, and the decree of the Superior Court will be affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Mathis Brothers Company, Appellant.
    Gen. No. 15,510.
    1. Master and servant—effect of order of master. “When the servant is directed hy the master, or one who stands to the servant in the place of the master, to encounter a danger, and the servant, hy reason of such directions, does encounter the danger and is injured, the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.”
    2. Contributory negligence—when servant not guilty of. The verdict of the jury upon the question of contributory negligence will not be disturbed where it appears that they were justified in finding from the facts and circumstances that the deceased as an ordinarily prudent man, under the circumstances, did not know or appreciate or in the exercise of ordinary care would not know or appreciate that the instrumentality which resulted in his death was of such a character as might result in his injury.
    3. Evidence—when expert testimony competent. Evidence as to a proposition in physics, held, competent in determining questions of negligence involved where the accident resulted from an excessive strain applied to a plank.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding. Heard in this court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 16, 1911.
    Frank M. Cox and R. J. Fellingham, for appellant.
    James C. McShane, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The decedent, Arthur J. Immekus, was employed by the appellant in the installation of a heating system in the plant of the Pnllman Company at Pullman, Illinois. The building in question was a one story ear shop about a block long and about two hundred feet wide. Skylights about twelve feet wide and six or seven feet above the roof extended nearly across the building. A ventilator house about fifteen feet square was located on the roof at the south end of one of the skylights. A door opened from the south side of the ventilator house onto the roof. A window was in the north side of the ventilator house opening into the area under the skylight. On the day of the accident the appellant with a foreman and five workmen were installing heaters in the ventilator house. A heater consisted of five sections of radiator coils. Each section was seven feet high, six and one-half feet long, eight inches wide and weighed about eight hundred pounds. In placing in position the south heater, consisting of five sections fastened together, it was necessary to raise it to put a roller under it so they could move it. The foreman, Larson, told the men on the morning of the day of the accident to go and get a couple of planks. Four of the men, including decedent, went onto the roof and got two planks. Some said the planks were the best and strongest of four or five planks to select from, and one witness for the defendant said there were only the two planks. The planks were two inches thick, ten inches wide and one about twelve feet long and the other about ten and one-half feet long. The workmen then used the said planks to pry up the south heater, and with them and two iron bars the south heater was raised and put on a roller and put into position. In this work the decedent used both planks as prys, sometimes alone and sometimes with a fellow workman on the plank with him, but the planks then extended through the door and over the flat roof, where there was no danger. After placing the south heater in position the foreman told the men, including decedent, to take the planks and put them under the north side. The north heater then had only three sections fastened together—the other two being detached. The heater was about eighteen or twenty inches from the wall, and in order to use the planks as prys it was necessary to take the window out and put the planks through the window, and one witness said the foreman ordered them to stick the planks out of the window. The plank in question was put under the heater about four inches and then rested on a two by four on the window sill for a fulcrum, extending at an angle through the window about ten feet into the area of the skylight twenty-five feet above the floor. The foreman then ordered the three men out onto the planks. The decedent and Zoubeck went out onto the said plank and Olson went out on the shorter one and with the other two workmen, using iron bars, attempted to pry up the north heater. Zoubeck stood with his right foot on a beam five inches wide and six inches to a foot east and parallel with the plank, with his left knee raised about two feet or more pressing down near the end of the plank and at the same time holding onto a six by six inch timber east of and adjacent to the said horizontal beam and extending up diagonally toward the north. The decedent was sitting on the plank about a foot and a half north of Zoubeck facing west. After about twenty minutes, at about four o’clock in the afternoon, the plank broke at about the window sill and decedent fell with the plank, struck on his head at the temple on a hand car and died immediately.

The appellant contends that the decedent assumed the risk. We think that the greater weight of the testimony shows that the foreman ordered the decedent and others to take the two planks, up to that time used in a safe place, put them under the north heater out through the window into the area under the skylight, and also ordered decedent and Zoubeck to go out onto the longer plank. In Springfield Boiler Co. v. Parks, 222 Ill. 355, the court said, p. 359: “When the servant is directed by the master, or one who stands to the servant in the place of the master, to encounter a danger, and the servant, by reason of such direction, does encounter the danger and is injured, the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk.” Citing many cases. It follows that the decedent in obeying the order of the foreman did not assume the risk.

Was, then, the decedent guilty of contributory negligence? The counsel for appellant insists very earnestly and ably that he was. It is urged that decedent did not exercise ordinary care because he did not hold onto an iron rod just above him nor hold onto the diagonal timber Zoubeck held onto, nor stand upon a plank laid on the two horizontal beams and reaching across the space beneath him. There is testimony tending to show that the iron rod was above his reach; also that the decedent had to extend his body full length and bend over horizontally toward Zoubeck to reach the said six by six inch diagonal timber; also that deceased had attempted to and did hold onto said timber for about five minutes and complained that it was a tiresome job. There was also testimony tending to show that the plank mentioned for him to stand on was not there the day of the accident, but was placed there the next day. After a careful consideration of all the testimony and examination of the photographs in evidence, showing the location of the iron rod, beams, timbers, etc., we are not disposed to say that the decedent was guilty of contributory negligence in these respects.

It seems clear to us that the manner of raising the north heater by extending planks through the window into the area beneath the skylight twenty-five feet above the floor and ordering men ont onto them to use as prys was dangerous. However, was it so dangerous that an ordinarily prudent man would not have encountered it? The decedent was twenty-one years of age. He had worked in different stores and had been employed twice by appellant for several weeks each time. The day of the accident was the third day he had worked on the job in question. He spoke to Zoubeck about the danger of falling, cautioned Zoubeck and said that to fall would be sure death. He undoubtedly knew and appreciated the danger of falling off the plank and that he was working in a dangerous place, and must have known the danger if the plank should break. There was no patent defect in the plank; it was a clean, fresh break, and in the ordinary use of the plank it may be that the decedent would be held to have had equal means of knowledge with the appellant of its adaptability for such ordinary use; but to be used as a pry on the order of the foreman in such a dangerous place we do not consider an ordinary use, or at least it was a question of fact for the jury.

As we understand the law, it was appellant’s duty to exercise reasonable care to see that the plank used as a pry in a dangerous place was reasonably safe for the specific use to which it was put by order of appellant; and the decedent, in the absence of notice, had the right to rely upon the performance of such duty by appellant’s foreman before he gave the order to use said plank in said dangerous manner and place. We think that from all the facts and circumstances the jury might properly find that the decedent, as an ordinarily prudent man, under the circumstances, did not know or appreciate, or in the exercise of ordinary care would not know or appreciate, that the plank so used as a pry was not of sufficient strength to bear the strain put upon it, and that the appellant knew, or in the exercise of ordinary care in a situation of such danger should have known, of the latent defect, in that it had not sufficient strength to bear the strain put upon it as a pry by order of the foreman.

Labatt on Master and Servant, vol. 1, sec. 141, in writing of the duty of the master, says: “So also he must take into account the properties of such substances as he employs for the purposes of his business, and the operation of familiar physical laws upon these substances.” He then says that the master is chargeable with knowledge of the following facts: “That

certain materials will not support more than a certain weight; that ropes and cables will break if subjected to a certain tensional strain; that a certain kind of a timber is r.A suitable for use in the manufacture of some particular tool.” Citing cases.

In speaking of the duty of the master to the servant in the Jenney Electric Light Co. v. Murphy, 115 Ind. 566, the court said, p. 569: “What he especially engages is, that he will not expose the employe to danger which is not obvious, or of which the latter has no knowledge or adequate comprehension, and which is not reasonably and fairly incident to and within the ordinary risks of the service which he has undertaken. ’ ’ We conclude that the jury might properly find from the evidence that the danger of obeying the order of appellant was not so imminent that an ordinarily prudent man would refuse to incur it.

Testimony of a witness, for thirty years an architect and engineer, was introduced by the appellee, over the objection of the appellant, that the bearing down weight on the fulcrum, including 127 pounds, the weight of the decedent, and 145 pounds, the weight of Zoubeck, was 3,971 pounds, and appellant urges the same was error. We .see no objection to this testimony. A knowledge of a law of physics is often proper and necessary in determining what inferences should be drawn from an existing state of things. Hicks v. Silliman et al., 93 Ill. 255.

The appellant complains that the court improperly modified five of its instructions, and erred in refusing seventeen others. The court gave twenty-nine instructions offered by the appellant and five in behalf of the appellee. We think the appellant has no just ground for complaint. The jury were fully, fairly and, in many respects, repeatedly instructed on every proper theory submitted in behalf of the appellant. •

There was a judgment for appellee for $5,000, and appellant insists this is excessive. It is certainly a large amount for the pecuniary damages under the evidence in this case, but the pecuniary value of life is so uncertain and problematical, so serious and difficult a question, that we cannot hold said sum to be excessive, although we agree that the same-is a large sum for damages under the evidence.

The judgment will be affirmed.

Affirmed.


text:
    Albert S. C. Pennington, Appellee, v. Illinois Central Railroad Company, Appellant.
    Gen. No. 15,525.
    1. Evidence—What part of res gestae. The statements of the keeper of a turn-stile that a ticket presented was as he understood it good, accompanying the act of unlocking the turn-stile, is competent as a part of the res gestae.

    2. Verdicts—when not excessive. Held, that a verdict for $4,500 in an action on the case for personal injuries was not excessive where it appeared that the plaintiff was ejected from a railroad train on a cold night and before finding shelter had his ears, fingers and feet frozen and upon reaching home was taken sick and suffered a long and serious illness from which he was not entirely recovered fourteen years after the occurrence.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in this court at the March term, 1909.
    'Affirmed.
    Opinion filed March 16, 1911.

      Calhoun, Lyford & Sheean, for appellant; John G. Drennan, of counsel.
    John C. Trainor, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

A judgment of $4,500 was entered in this case in favor of the appellee against the appellant, from which it appeals.

The case has been tried several times and has been twice, before in this court, reported in 69 Ill. App. 628, and 131 Ill. App. 622, wherein the facts are set forth substantially the same as here presented, and not necessary to be restated, with perhaps the one exception that the trial court last hearing, the case permitted, over the appellant’s objection, the appellee to testify that on the presentation of the ticket to the agent she said to him, “The ticket is good, it is all right; it is good and all right as I understand.”

The appellant contends this testimony was the statement of one with no authority to bind the company, and was error. At the time of making the statement the ticket agent returned the ticket to the appellee and unlocked the turnstile through which he had to and did pass to reach the train. We think the testimony proper as a declaration accompanying an act as a part of the res gestae.

The complaint made to the instruction given on behalf of the appellee on the measure of damages we do not think tenable. The errors claimed because of the refusal of five instructions offered by appellant are principally in effect questioning the law heretofore announced controlling this case. We consider the law of this case as stated by the former decisions in the same, supra, conclusive on this court as well as on the trial court.

The appellant insists that the damages are excessive.

If the testimony given by and on behalf of appellee be true,—the jury so found and we see no reason to believe otherwise—the appellee was ejected on a cold night and before finding shelter his ears, fingers and feet were frozen. On reaching home the same night he was taken sick and suffered a long and serious illness, from which he had not entirely recovered at the time of the last trial, fourteen years after the occurrence. His prior good health and the details of his subsequent disabilities need not be recited; suffice it to say his damages were substantial, and we cannot say the amount allowed is excessive.

The judgment will be affirmed.

Affirmed.


author: Mr. Justice Baldwin

text:
    Boyle Ice Company, Appellee, v. California Ice Company, Appellant.
    Gen. No. 15,257.

      Contracts—when purchase price of merchandise cannot he re-. covered. The purchase price of merchandise not delivered cannot be recovered for, where the contract provides that if such merchandise be not delivered at a specified time it shall become the property of the vendor, and where such vendor did not at the time when delivery was provided to he made have on hand sufficient merchandise to comply with the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Reversed and remanded.
    Opinion filed March 21, 1911.
    Rehearing denied April 18, 1911.
    Statement by the Court. Boyle Ice Company brought a suit in the Municipal Court of Chicago against the California Ice Company upon a contract between the parties, by which the defendant agreed to purchase and the plaintiff agreed to sell and deliver at its ice house, a quantity of ice at a specified price per ton. A jury trial was had, at the close of which the defendant requested the court to instruct for it, and a like motion was made on behalf of the plaintiff. Both motions were denied, after which the court instructed the jury, which (by agreement) consisted of eleven men, and sent them out. The jury returned into court three separate papers; the first, signed by seven jurors, read “We the jury find the issues for the defendant.” The second one, signed by the other four, found the issues for the plaintiff and assessed the damages at $3,801.98. The third, which was signed by eleven, read “We the jury agree to disagree.” Thereupon, the plaintiff renewed its motion for the court to exclude the evidence of the defendant and to instruct the jury to find for the plaintiff in the sum of $3,801.98, which motion was granted and a verdict was rendered by the jury in accordance therewith, upon which the court entered judgment. To review this judgment the defendant was allowed an appeal to this court.
    On the 11th of February, 1907, the parties entered into a written contract, providing in its first paragraph that the California Company “agrees to purchase” and the Boyle Company “agrees to sell” from its ice houses located at Silver Lake, Wisconsin, 12,000 (afterwards reduced to 10,000) tons of ice, f. o. b. cars at its Silver Lake houses, at the price of 90 cents per ton. The contract further provided that the ice should be loaded during the season of 1907, which the parties agreed should begin April 1st and end December 1st, of that year, and deliveries should be made on the written orders of the California Company, which should be given at least two days before the loading of the cars should be required at the ice house, and if in carload lots, then not exceeding six days notice.
    The contract further provided that :
    “Payment for all of said ice should be made as follows ; viz: $1,350.00 is paid on the making and signing hereof, and shall be applied on the last moneys becoming and falling due hereunder and payments hereafter shall be made at the office of second party at Chicago, on Monday of each week for all ice loaded under this contract up to and including the preceding Saturday; and on the 1st day of December, 1907, there shall be payable and paid to second party the balance for all ice contracted for under this contract. And it is understood that if any of said twelve thousand (12,000) tons be not loaded on or prior to December 1, 1907, the portion thereof remaining shall be the property of second party, the intent being that first party shall call for said ice in such quantities not exceeding six cars per day during the season, that said twelve thousand (12,000) tons shall be delivered on or before the 1st of December, 1907, to the end that second party’s houses shall be available for next season’s ice crop at the earliest moment ice harvesting might begin, which is hereby fixed as of December 2, 1907.”
    A bill of particulars was filed on behalf of plaintiff, showing the claim to be “for the price of 5,724.38 tons at ninety cents per ton, less a credit of $1,350.00, leaving a balance of $3,801.98.” The defendant pleaded the general issue and gave notice of a set-off, alleging that the plaintiff had $1,350, for which it had given no consideration, and owed that amount to the defendant. There were numerous counts in the declaration alleging plaintiff’s readiness and willingness to perform the terms of its contract, and failure on the part of the defendant. The claim of plaintiff is substantially that the defendant ordered and took'but 4,275.62 tons of the 10,000 tons contracted for, leaving in the possession of plaintiff on the 1st day of December, 1907, 5,724.38 tons, for the price of which, at ninety cents per ton (less the $1,350 paid when the contract was executed), the suit was brought.
    Appellant contends, first, that plaintiff could not recover the price of the ice which remained undelivered on the 1st of December, and which by the terms of the contract, therefore, belonged to it, but that it must sue in damages for the violation of the contract, and in such suit the burden was on the plaintiff to establish its damages; second, that the court erred in refusing to admit evidence offered in behalf of the defendant, and third, that the court erroneously instructed the jury to find for the plaintiff.
    Lackner, Butz & Miller, for appellant.
    McAedle & McArdle, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

It must be conceded that the contract sued upon is awkwardly drawn, and is obscure. After mature consideration we have reached the conclusion that plaintiff’s proper remedy was by the suit for the damages which it has sustained by reason of the non-compliance of the defendant with the terms of the contract. Plaintiff undertook to sell, and defendant to buy 10,000 tons of ice, all of it to be delivered and accepted on or before December 1, 1907. The defendant failed to take the ice, and for its failure to keep its contract it is liable to the plaintiff.

By the terms of the contract, so much of the ice as was not thus taken on or before the 1st of December remained and was the property of the plaintiff, which it was at liberty to resell or not as it pleased, and we think the plaintiff could not recover the full contract price of the ice which it owned prior to and continued to own after the expiration of the time fixed in the contract. The contract did not constitute a sale of any particular ice. It required one party to sell and deliver, and the other to purchase and accept by a given date a certain quantity of ice, and as the defendant failed to keep this contract it is unquestionably liable to the plaintiff for such damages as resulted therefrom.

Under the contract, defendant was entitled to merchantable ice, and, therefore, it was entitled to show, if it conld, that the ice delivered to it, and that on hand by the plaintiff at the expiration of the contract was not of that character, thus to establish, if it could, a basis of an off-set, and, also, a reason for not taking the remainder. Plaintiff could only recover damages for the failure of defendant to take as much of the quantity contracted for as it had there, and which was of a merchantable character on December 1st, and the court erred in refusing to allow the defendant, if it could, to show that the plaintiff had on hand on December- 1st less ice, of merchantable quality, than it was suing for.

Defendant offered testimony tending to establish a partial or complete defense, and we think the court erred in excluding it, and instructing for the plaintiff.

Accordingly the judgment must be reversed and the cause remanded for another trial.

jReversed and remanded.


text:
    Nicholas Nudelman, Plaintiff in Error, v. Nellie G. Wildes et al., Defendants in Error.
    Gen. No. 15,305.
    Brokers and factors—when real estate agent not entitled to commissions. If the owner provide that he shall receive a certain sum before the broker is entitled to any commissions, the broker must complete the sale and the owner must realize such specified sum before the broker can recover anything by way of commissions.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 21, 1911.
    Rehearing denied April 5, 1911.

      Statement by tbe Court. Plaintiff in error, Nudelman, brought suit in the Municipal Court of Chicago to recover $912.50, alleged to be due as commissions for the sale of certain real estate belonging to defendants in error.
    A trial was had before the court without a jury and resulted in a judgment for the defendants, from which judgment the plaintiff by a writ of error has brought the case to this court.
    Plaintiff was a licensed real estate broker in Chicago and defendants owned certain real estate, also in Chicago, for the sale of which they gave to plaintiff exclusive agency for ten days. The contract provided that the property might be sold by the plaintiff for $16,287.50, net to the sellers, and expressly provided that the sellers were not to pay any commission.
    Plaintiff succeeded within the ten days in securing as purchasers Abraham Bernstein and Henry Wolf, and a contract of sale was entered into by which they agreed to purchase and the seller to sell at the price of $17,200,—the contract of sale making usual provisions with respect to merchantable title.
    It appeared from oral testimony, admitted over objéction of defendants, that, before the contract of sale was executed, the frontage of the premises in question had been represented by the sellers to be fifty feet, whereas, after the contract of sale was made and upon the examination of the abstract, the frontage was found to be but forty-four feet. The prospective purchasers objected to this discrepancy, and endeavored, through the plaintiff, to get the defendants to consent to a proportionate rebate in the price of the property, and refused to accept it unless that was done.
    Upon refusal of the defendants, the purchasers declined to take the property, not only on account of the discrepancy in the frontage, but because of various other alleged objections to the title.
    Thus matters stood until a fire occurred on the premises, when the prospective purchasers proposed that they would take the premises as they stood, waiving their objections to the title and the discrepancy as to frontage, provided the insurance be assigned to them. This was refused, whereupon, the prospective purchasers filed a bill for the cancellation of the contract and a return of the deposit, to which the plaintiff and defendants were all made parties. The contract was ordered cancelled, and the earnest money was ordered returned to the purchasers by Nudelman. Plaintiff’s claim here is that defendants are liable to him for the difference between $17,200 and $16,287.50, by way of commissions.
    Blum & Blum, James C. Hood and Hutchins & Rippel, for plaintiff in error.
    Jesse B. Barton and Thomas M. Butters, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

The written contract upon which the rights of the parties depend is clear and unambiguous. It is expressly provided that the defendants shall not pay any commissions to the plaintiff, and that the defendants are to receive $16,287.50 net before plaintiff is entitled to any compensation. The language being so clear, there is no room for construction. It is manifest that plaintiff’s compensation was to be such an amount as was realized from the property in excess of the $16,287.50, which should be actually paid to the defendants. Under the plaintiff’s contract he was compelled to complete a sale, including the payment of the purchase price, before his commissions became earned and payable. Burnett v. Potts, 236 Ill. 499.

Under the facts in this case the court below could have reached no different conclusion, and the judgment is, therefore, affirmed.

'Affirmed.


text:
    David Levi, Plaintiff in Error, v. Charles R. Beadles, Defendant in Error.
    Gen. No. 15,323.
    Landlord and tenant—when latter cannot deny title of former. So long as the relation of landlord and tenant exists and is fixed by an outstanding lease under seal the tenant cannot deny the title of his landlord.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of facts.
    Opinion filed March 21, 1911.
    Statement by the Court. Defendant in error, Beadles, was defendant in an action in forcible detainer brought against him in the Municipal Court by plaintiff in error, to recover possession of the first flat at 540 East Fiftieth place, Chicago, which was one of twenty-four apartments in the building. A trial by the court below, without a jury, resulted in a judgment for the defendant, and Levi brings the case here upon a writ of error.
    Beadles being the owner of the land, and having partially erected the apartment building in question, borrowed money from Levi to complete it, giving him by way of security therefor, among other things, a deed to the property, in which his wife joined. It is conceded that though absolute in form, it was in fact a deed of trust to secure the money loaned. Subsequently Levi brought suit to foreclose, and on April 2, 1906, Beadles being then, as he had for several months theretofore been, in possession of one of the twenty-four apartments in the building, a written lease for the flat was executed by Levi and Beadles, under seal, covering the period from April 1 to October 31, 1906, at $33 per month.
    No rent in money was in fact ever paid, it being claimed by Levi, and not denied by Beadles, that Beadles’ rent should be paid by his services in collecting and turning over to Levi the rent from the other twenty-three apartments, and by caring for the building. No change in the situation occurred until September 1, 1908, after which nothing was done by Beadles by way of caring for the building or collecting rents; and on September 12, 1908, Levi served a five days’ notice upon Beadles, demanding payment of $33 rent for the flat for September, and notifying him that unless it was paid on or before September 17, 1908, the lease would be terminated. On the 18th day of September, 1908, this action was brought.
    Grossberg & Kompel and C. B. Hoeeenberg, for plaintiff in error.
    Henry W. Leman and Frank H. Culver, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error, Beadles, while admitting that he himself made out, signed and delivered the written lease in question to Levi, claims that it was without vitality as a lease, because, he asserts, that he prepared, executed and delivered, upon the request of Levi, who told him that it was a mere matter of form.

Beadles testifies: “Mr. Levi said, ‘This is in the courts now and I may be called upon to show twenty-four leases on twenty-four flats, and I guess I will have to have you sign a lease.’ I said, ‘I am not paying any rent and I own the property, and I don’t care to sign a lease.’ ‘Well,’ he said, ‘it is a mere matter of form; the master may require me to show twenty-four leases.’ I said, ‘I don’t expect to pay any rent; I haven’t paid any rent, and I don’t care to sign a lease,’ ‘But,’ he said, ‘I would like to have you sign this lease. You can make it out for six months or a year or any way you like.’ ”

Beadles does not even claim that he did not understand the effect of the written lease so under seal, nor that he was in any way over-reached or deceived by Levi, except as indicated in the above testimony.

Levi concededly had the legal title to the property. Beadles saw fit to assume, by the execution and delivery of the lease, the relation of tenant, and he cannot be heard, in a proceeding at law, to deny the relationship created by the lease, until, by some act of the parties, or by operation of law, a new and different relationship is created.

Ryan v. Cooke, 172 Ill. 302, is sufficient authority for sustaining the objection to Beadles’ testimony concerning his alleged conversation with Levi when the purpose of the lease was talked about.

Under section 8, chapter 80, Hurd’s Statutes, the demand was sufficient.

We are satisfied that the court below erred in finding for the defendant, and the judgment is reversed and judgment entered here upon a finding of facts in favor of the plaintiff in error, for possession and costs.

We may add that it appears from the abstract and briefs that the questions involved here, as to the right of possession, are likely to be speedily determined in a chancery proceeding, and, therefore, the action of this court in this proceeding is less important.

Reversed with finding of facts.


text:
    Alphons Custodis Chimney Construction Company, Appellee, v. Aetna Indemnity Company, and Edwin M. Campfield, Appellant.
    Gen. No. 15,365.

      Practice—when application for nonsuit properly allowed. After a demurrer sustained and leave given to amend it is not error to apply for and be entitled to a nonsuit, no submission for trial upon the merits having been made.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 21, 1911.
    Statement by the Court. The sole question presented for our consideration in this case is the proper construction of section 70, Hurd’s Revised Statutes, chapter 110, known as “The New Practice Act,” which reads as follows:
    “Every person desirous of suffering a non-suit shall he barred therefrom, unless he do so before the jury retire from the bar, or if the case is tried before the court without a jury, before the case is submitted for final decision.”

    Appellee (plaintiff in the court below) in the Municipal Court filed its declaration, which was subsequently amended, and on the 17th day of December, 1908, a hearing was had upon the demurrer of appellant (defendant in the court below) to the amended declaration, at the conclusion of which the court entered the following order:
    “This day again come the parties, by their attorneys respectively, and thereupon the defendant demurs to plaintiff’s amended declaration, and the court after hearing the argument of counsel and being fully advised in the premises, sustains said demurrer.
    “Thereupon on motion of plaintiff, it is ordered by the court that the plaintiff have thirty days in which to amend its declaration herein.”

      On the 16th of January following, the court entered an order of which the following is part:
    “This day again come the parties, by their attorneys respectively, and thereupon the plaintiff moves the court for leave to take a non-suit herein, and the court hearing the argument of counsel and being fully advised in the premises, the court sustains said motion and a non-suit herein is allowed.
    “It is therefore considered by the court that the defendant have and recover of the plaintiff its costs and charges by it herein expended, taxed at eleven ($11) dollars and that execution issue therefor.
    “Thereupon the defendant prays an appeal to the Appellate Court, which is allowed * * *” etc.
    Appellant contends that the case had been submitted to the court for final decision upon a general demurrer and that, therefore, it was too late for appellee to take a non-suit. Cross-errors were assigned by appellee to the court’s order in sustaining the demurrer to the amended declaration as amended, but such cross-errors have been practically abandoned, so that we are concerned merely with the one question raised by appellant.
    Fyfee & Adcock, for appellant; Edmund D. Adcock and Ira Byner, of counsel.
    Zeisler & Friedman, for appellee.
   Mr. Justice Baldwin

delivered the opinion of the court.

If the hearing in the lower court upon the demurrer to the amended declaration as amended was a trial “before the court without a jury,” or if the hearing upon the demurrer to the amended declaration as amended was a submission of the case “for final decision,” then appellee was too late in applying for a non-suit. Appellant so contends, and to support such contention cites: Alley v. Nott, 111 U. S. 472; Lookout Mountain R. R. Co. v. Houston, 32 Fed. 711; Beaumont et al. v. Herrick, 24 Ohio State 445; State v. Scott, 22 Neb. 628; Crowley v. Chamberlain Co., 6 Ohio Decisions (Reprint) 982; Nashville, Chattanooga & St. Louis Ry. v. Sansom, 113 Tenn. 683; Bee Building Co. v. Dalton, 68 Neb. 38; Day v. Mountin, 89 Minn. 297; Goldtree v. Spreckels, 135 Cal. 666; State v. District, 32 Mont. 37.

Upon examination, we find that numbers 1 and 2, are Federal eases, and are manifestly limited in their application, to construing the words of the so-called “removal statutes.” The first of these held that the argument and disposition of a general demurrer constitutes a trial of the cause within the meaning of the removal statute, and held that the attempted removal was applied for too late. In the second case, the Act of Congress then in force required the petition for removal to be filed “at any time before the defendant is required by the laws of the state or the rule in the state court in which the suit is brought to answer or plead to the declaration or complaint,” etc., and the court held that, after the demurrer had been sustained and the bill ordered dismissed by the state courts, an application for removal under this Act came too late.

The decisions in Nebraska, Ohio and Minnesota are not very persuasive because of the wording of the statutes of these respective states, in which “trial” is defined as the “judicial examination of the issues, whether of law or of fact.”

The decision in the Montana case was rendered under the provisions of the code of that state, which provide that, “if the answer contains new material and the plaintiff fails to reply or demur thereto within the time allowed by law, the defendant may move on notice for such judgment as he may be entitled to upon such statement, and the court may thereupon render judgment.

“An action may be dismissed or a judgment of non-suit entered in the following cases: 1. By the plaintiff himself at any time before trial,” etc.

In that case, the defendant moved for judgment under these provisions of the code. Some days after argument upon the answer, plaintiff moved to dismiss the suit, but the court held the application too late, saying:

“We hold, then, that the submission of the motion for judgment on the pleadings in this case was a trial of the case within the meaning of Section 1004, above, and the application made to dismiss after the submission of the motion for judgment on the pleadings came too late.”

In its decision the court had occasion to refer to the California code of Civil Procedure, under which Goldtree v. Spreckels, supra, was decided, and stated, that the language of the California code was identical with that of Montana with respect to the phraseology “at any time before trial,” and the Montana court bases its decision in part upon the decision of the California court in the Goldtree case, in deciding which the California court said: “If the demurrer is sustained, he stands on his pleading, and submits to judgment on the demurrer, and, if not satisfied, has his remedy by appeal. In such a case we think there would be a trial within the meaning of the code, and the judgment would cut off the right of dismissal unless it was first set aside, or leave given to amend.”

In Illinois there is no statutory definition as to what is meant by the term “trial.” We have carefully examined the authorities submitted, and find ourselves unable to hold, upon the record in this case, and under the wording of section 70 of the-new Practice Act, that appellee was too late in its application for a non-suit. We think it clear that a distinction should be made between settling the pleadings in a given case, and a submission of the case for final decision to a jury, or, for a final decision by the court without a jury, if a jury is waived. The general use of the word “trial” imports a very different meaning than that here sought to be ascribed to it. In ordinary practice when causes are being called “for trial” upon the calendars the question is frequently raised, “Is the cause at issue,—Have the pleadings been settled,—that is, is it ready ‘for trial?’ ”

By allowing the motion of plaintiff in this case to amend after the hearing, upon the demurrer, the court did precisely what the decision in the California case held would be sufficient to.take it out of the construction of the statute of their code, which they were then applying. In this case, no final judgment was entered. The court merely made an interlocutory order, sustaining the demurrer and giving leave to amend.

We conclude, therefore, that upon this record, the court below committed no error in allowing the non-suit, and its judgment is, therefore, affirmed.

Affirmed.


author: Me. Justice Clark

text:
    J. Frank Caldwell, Plaintiff in Error, v. Hannah Sliter, Defendant in Error.
    Gen. No. 15,263.
    Statute of Frauds—when defense applies. A promise to pay the debt of another cannot be enforced if the defense of the Statute of Frauds be relied upon unless such promise is evidenced by a writing signed by the party to be charged therewith.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 21, 1911.
    John W. Burdette, for plaintiff in error.
    Byron C. Thorpe, for defendant in error; Homer C. Van Aken, of counsel.
   Me. Justice Clark

delivered the opinion of the court.

This is a suit brought by the plaintiff in error against the defendant in error to recover for services extending over two weeks "time in Michigan, alleged to have been rendered by him to the defendant, and for his expenses during that time, these items amounting to $69.45; also for the sum of $30 alleged to have been disbursed by the plaintiff in error in perfecting the title to some property in Chicago which was owned by the husband of the defendant in error in his lifetime; and for $75 alleged to have been paid by the plaintiff in error to one Kleckner, as commissions for perfecting the sale of the property; also for the sum of $62.50 claimed by the plaintiff in error to have been “due from Samuel F. Caldwell, deceased, and not filed in the Probate Court at her request and on her promise to pay it if not so filed.”

Samuel F. Caldwell was in his lifetime the husband of the defendant, and a brother of plaintiff.

The defendant in error claimed an off-set of $121.24. The set-off consisted principally of money collected on account of rent due to the wards of the defendant and not to her, and to that extent was disallowed by the court. Twenty-seven dollars, however, of the amount was for money paid out by her for repairs upon the real estate held in common by the estate of which she is administratrix and the plaintiff.

The court below held that the plaintiff in error had not established his case, and that defendant in error had established her right to this sum of $27, and gave judgment for that amount in favor of the defendant in error and against the plaintiff in error.

Claims for other amounts than those heretofore referred to were made by the plaintiff in error, but they were withdrawn and they do not need to be considered.

As to the first item mentioned, defendant denied that she had asked him to come to Battle Creek, where she was living; and further set up the Statute of Limitations of Michigan, under which the action should have been commenced within six years next after the cause of action accrued, and not afterwards.

Whether the trial judge based his conclusion upon the proposition that the preponderance of evidence was not with the plaintiff in error on this item, or upon the Statute of Limitations, does not appear. However, we have examined the record and are of the opinion that this item was properly disallowed on either ground.

The two items of $30 and $75 respectively, arose in this wise: S. F. Caldwell, husband of the defendant in error, negotiated with Kleckner for the sale of a piece of property in Chicago. After his death his widow continued the negotiations. It was found, however, that title to the property could not be . given except through the Probate Court, and the plaintiff in error was made administrator of his brother’s estate. At a sale of the property under order of the Probate Court, it was disposed of to the same person wffh whom Kleckner had been negotiating on behalf of the wife, and from whom he had received $100 on the purchase price. The amount paid, however, for the “equity” in the property was $600 instead of $900.

Without any authority from the Probate Court, so far as the record shows, plaintiff in error paid Kleckner $75 as his commissions, and Kleckner turned over to him the $100 theretofore deposited by the purchaser with him. The $30 was alleged to have been paid by the plaintiff in error for attorney’s fees in perfecting the title to the real estate. It would seem to us that these items, if due at all to the plaintiff in error, should have been allowed him by the Probate Court.

It may be said in passing that the plaintiff in error was discharged as administrator by the Probate Court, and these claims were disallowed by the court in the final account.

The sale of the real estate was had on April 2, 1904, and the balance in the hands of the plaintiff in error as administrator was turned over to the administrator de bonis non on or after July 6, 1908, at which time the objections to the two items of $75 and $30 respectively were sustained.

The remainder of demand of plaintiff in error consists of claims which he alleges he had against his deceased brother and did not file against the estate, on the agreement of the defendant in error to pay him the amount, viz. $62.50. She denies that she ever agreed to pay him the amount. She also insists that if any such promise was made by her it was void under the Michigan Statute of Frauds, as being an agreement to pay the debt of another, which, under the statute of Michigan, as in Illinois, should be in writing. We agree with the trial judge in the disallowance of this portion of the plaintiff’s demand.

We think that the evidence supports the finding of the trial judge in allowing her the off-set of $27, as heretofore stated, and the judgment in her favor for that amount.

Judgment affirmed.


author: Mr. Justice Clark

text:
    Emily E. Warner, Defendant in Error, v. Charles Wadsworth, Plaintiff in Error. Two Cases Consolidated for Hearing.
    Gen. Nos. 15,289 and 15,366.
    Landlord and tenant—effect of agreement for lease. An agreement for a written lease not eventuating in a written lease does not establish a basis for the recovery of rent.
    No. 15289. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed March 21, 1911.

      No. 15366. Error to the Municipal Court of Chicago; the Hon. Sheridan E. Frye, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Reversed and remanded. Opinion filed March 21, 1911.
    Franklin E. Vaughan, for plaintiff in error.
    Louis A. Heile, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Two cases were brought by the defendant in error to recover two installments of rent under the terms of a lease alleged to have been made, and were heard together in this court.

The sole question to be determined is whether the conversation between the parties constituted a verbal lease or a contract for a lease to be made thereafter.

Negotiations were begun October 5, 1908, when it appears that the defendant talked with the plaintiff by telephone, and arranged to look at a furnished flat which she had for rent in the Exmoor Apartment Building, in the city of Chicago. On the following day he examined the flat, but no decision was made. Later on he and his wife examined the apartment, and still later, the exact time being a matter of dispute between the parties, Wadsworth stated to Mrs. Warner that he would take the flat; that the price was to be $60 per month, $30 for the half month ending October 1st and $60 per month thereafter until the first of May following. Nothing was said as to on what dates the rent should be paid.

Mrs. Warner testified: “He said, ‘Have your son-in-law make out the lease;’ that his place of business was in the First National Bank Building. I said, ‘My son-in-law is in that building too and can call you up.’ Nothing was said about sending the leases down to his office except that. He said, ‘You can have your son-in-law make out the leases.’ There were to be leases; he was to have them signed; they were to be written leases. He said three times before and I said now, ‘Mr. Wadsworth, is that definite? Can I depend upon yonr word?’ He said, ‘Certainly.’ He said nothing about giving me a check for the first month’s rent; nothing was said about how the rent was to be paid, as to whether it was to be paid in check or not. There was to be a written lease.”

Plaintiff in error did not take possession of the flat, but after the conversation referred to informed Mrs. Warner that he had rented another flat.

We think it is only necessary to read the testimony of Mrs. Warner to come to the conclusion that she understood that a written lease, which should fully express the intention of the parties with respect to the amount to be paid, when same was to be paid, and possibly whether all or only a portion of her furniture, etc., was to be used by the lessee, should be prepared by her son-in-law and signed by Mr. Wadsworth and herself.

Our conclusion is that the conversation between the parties amounted to an agreement for a lease, and not to a lease in prcesenti.

Reversed and remanded.


text:
    The Aetna Indemnity Company, Appellee, v. Paul F. P. Mueller, Appellant.
    Gen. No. 15,372.
    1. Evidence—what not proper upon cross-examination. Cross-examination is properly restricted to interrogation as to those matters elicited upon direct examination.
    2. Interest—when allowable as upon money due under a written instrument. If a document is signed in blank -which blank is subsequently filled in by another acting as the agent for the signer, money due thereunder is due as upon a written instrument and interest may he allowed pursuant to statute.

      3. Witnesses—who not competent Toy virtue of interest. A party defendant is incompetent to testify as to a conversation had with a deceased agent of the plaintiff.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 21, 1911.
    Chester Firebaugh and Henry W. Huttmann, for appellant.
    Lamborn & Guernsey, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This is a suit brought to recover the premium contracted to be paid to the appellee by the appellant in consideration of the appellee becoming surety upon the bond of the appellant for the building of an office building in Buffalo, N. T. The case was tried before a court and jury, the court on the closing of testimony, at the request of appellee, instructing the jury to find the issues for the appellee and assess its damages at $1,145.14. From the judgment on such verdict the appellant appeals to this court.

There is no contention on the part of the appellant but that the bond was furnished in accordance with the contract. He insists, however, that his counsel should have been allowed to cross-examine him more fully in regard to the facts and circumstances connected with the signing of the agreement, and also that interest should not have been allowed.

Appellee put the appellant upon the stand to prove his signatures, and he testified that the signatures to the documents in question were his. Counsel for appellant insist that they had the right to cross-examine him with respect to all matters connected wit1- the making of this contract. The court did permit him to testify to certain facts, among others that the papers were filled out without his reading them; that none of the writing on the documents as distinguished from the printed parts was there when he signed them; that the agent of the Indemnity Company was there; that he had never seen the blank before, and that there were other persons present, who were clerks in the office. The question then was asked, “Will you state what was said there and state all the facts and circumstances in connection with your writing your name down at the bottom of this instrument?” The court held that if this evidence could be admitted at all, it must be 'as evidence offered on the part of the defense and must properly be brought out, if at all, after plaintiff had rested its case.

It seems that the testimony particularly sought to be adduced was a conversation between one Benson, who was the agent for appellee and who had died after the contract was made and before the beginning of the suit.

The court properly held that under such circumstances the plaintiff, when his testimony was offered as a defense, could not testify as to the conversation between himself and Benson. Although the appellant states that there were clerks in his office at the time, none of these clerks were placed upon the stand in his behalf. We are not advised by the record whether or not they were in such position that they could have heard the conversation.

The appellant insists that the inclusion of interest in the amount of the judgment cannot be justified, because that was an invasion of the province of the jury.

It is admitted that the two instruments forming the basis of this suit were signed, with certain blanks in the printed form not having been filled in, and the contention of the appellant is that that made the contract partly in writing and partly oral and therefore, under the rule, it should be treated as a contract not in writing. If this contention is well founded, then the question as to whether or not there was unreasonable and vexatious delay in payment was a question for the jury and not for the court. Davis v. Kenaga, 51 Ill. 170. We hold however that the suit is upon a written instrument within the meaning of the statute and therefore the question of interest was not a matter for the jury exclusively to determine. Appellant by signing the contract with the blanks not filled in, impliedly created the Indemnity Company his agent- to fill in these blanks. If the blanks had not been filled in properly the appellant would have been allowed to show that fact, if he had introduced proper testimony. He would not be allowed to do so by his own testimony, in so far as that related to the conversation between himself and the deceased agent of the appellee; and that was the only kind of evidence offered.

On October 11, 1906, the appellant wrote the appellee, stating that the appellee was on his bond for the construction of the building for the Larkin Soap Company, and asking it for authority to waive the “15% clause” in the contract. In that letter appellant says: “You will oblige me by sending this immediately to me to pay you the $500 claimed as earned by you for the period of this additional time consumed in attending to these changes.” The sentence last quoted would seem to be an admission by the appellant that he owed the appellee the amount of its demand.

We have carefully examined the record in this case, and see no reason for disturbing the judgment.

Judgment affirmed.


text:
    Woman’s Temperance Building Association, Appellant, v. Anna Evans Devore, Executrix, Appellee.
    Gen. No. 15,380.
    1. Corporations—what not essential to enforcement by creditor of stock liability. A call by the directors of a corporation for tbe payment of a stock subscription is not essential to a recovery thereof by a creditor of such corporation.
    2. Corporations—what not defense to action at law by creditor to enforce stock liability. Fraud by a corporation or its representatives in obtaining a stock subscription is not a defense to an action by a creditor of such corporation to enforce a stock liability.
    3. Appeals and errors—when final judgment entered for plaintiff. If the trial court should have entered a judgment for the plaintiff for a certain sum the Appellate Court in reversing a judgment against the plaintiff may render a judgment in his favor for the proper amount.
    Attachment. Appeal from the Circuit Court of Cook county; the Hon. John A. Gray, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and judgment here.
    Opinion filed March 21, 1911.
    Statement by tbe Court. Attachment suit was brought by appellant against the Mutual Reserve Contract Company, a corporation of the State of West Virginia, which was authorized by its charter to keep its principal office and place of business in Chicago. John A. Devore, together with other subscribers to the capital stock of the last named corporation, was made a garnishee defendant and duly served. He filed his answer hut died before the hearing of the case, and the appellee, as executrix of his will, was substituted as garnishee defendant.
    The eighth interrogatory reads as follows: “Did you, or any or either of you, subscribe to any capital stock of the defendant, Mutual Reserve Contract Company? If so, state when, for how many shares, at how much per share, and when payable. ’ ’
    A plea was filed by all of the garnishee def endants, to which a demurrer was sustained. Afterwards answers were filed, and the question comes before us upon the answer to the eighth interrogatory above set forth. In answer to this interrogatory Mr. Devore admitted that he subscribed for ten shares of the stock at the par value of $100 each; that he made the subscription subsequent to the 12th day of November, A. D. 1894, and prior to the 1st day of February, A. D. 1895. He then sets up the incorporation of the company in West Virginia, which shows that the original amount of capital stock was $10,000, which was subscribed for by five men other than himself. He states that he has learned from a creditors’ bill filed against the company that at a stockholders’ meeting a certain resolution was adopted which provided for the increase of the capital stock to $500,000; that 250 shares of stock were to be issued to one William S. Fell, as fully paid and as compensation for the services and disbursements of Fell in promoting and organizing the company; that he, Devore, did not know of this resolution ; that he was falsely and fraudulently persuaded to subscribe for the stock; that subsequently on July 11, 1895, the Contract Company became wholly insolvent, and a creditor’s bill was filed against it in the Circuit Court of Cook county, and that until the commencement of the suit in attachment and the service upon him of the garnishee process he did not know that the representations of the Contract Company, through which he was induced to subscribe for the stock, were false and fraudulent. He therefore claimed that he was discharged from any and all liability to the Contract- Company by or through his subscription to the stock.
    In answer to the ninth interrogatory the garnishee states, that he has paid to the Contract Company $600 upon his subscription.
    Judgment was rendered in the attachment suit against the Contract Company, upon which there was personal service for $3,042.32. Execution was issued thereon and a return of nulla bona was made thereon by the sheriff. Afterwards a judgment was rendered against the appellee, as executrix of John A. Devore, deceased, upon the answer, for $650 to be paid in due course of administration. This was set aside, and on a second hearing the jury, under instructions from the court, found a verdict in favor of the executrix.
    Appellant asks this court to reverse the judgment, and to enter a judgment in this court for the unpaid balance of the subscription with interest.
    Edwin Terwilliger, Jr., for appellant; Pringle, Northup & Terwilliger, of counsel.
    Fred A. Bangs, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

This case seems to have been tried in part upon the theory that a demand must be made before a suit can be instituted upon a stock subscription, and it is insisted by the appellee that in order to entitle appellant to recover it must show that the call had been made upon the stockholders by the board of directors. In the case of Edwards v. Schillinger, 245 Ill. 231, the Supreme Court of this state held “the liability of a stockholder for unpaid subscriptions is several and not joint, and the creditor is not bound to settle up affairs of the corporation in order to obtain his dues. (Hatch v. Dana, 101 U. S. 205.)

“A creditor of a corporation seeking satisfaction of his debt, need look no further than to find a solvent stockholder, who is liable for it, and he sustains no relation to the corporation which requires him to adjust equities between stockholders or even the corporation and others (Ogilvie v. Knox Ins. Co., 22 How. 380).”

As we hold upon the foregoing authority that no call was necessary, especially as Mr. Devore had already paid part of the subscription, it is unnecessary for us to discuss the question of secondary evidence in reference to what was done by the hoard of directors with regard to a call upon the subscription for stock.

Another reason assigned by the appellee why the appellant should not recover is that the subscription of Mr. Devore to the stock was obtained by fraud. The only evidence in the record that we have been able to discover of this alleged fraud, is the statement made in the answer to the eighth interrogatory set forth in the foregoing statement, and it will be noticed that this is stated on information derived by the garnishee from a hill filed in the Circuit Court- of Cook county. If we accept this portion of the answer as evidence, notwithstanding the fact that it was on information and belief, still we find that the stockholders voted the 250 shares to Fell as remuneration for his services, and prior to the subscription made by Mr. Devore. Our opinion is that under the circumstances this defense in a suit brought by a creditor of the corporation, as is the one before us, is not available.

Inasmuch as the trial court should have instructed the jury to find a verdict for the plaintiff in the court below for the sum of $400, together with interest from the date of the subscription, we think a judgment should he entered in this court in favor of the appellant against the appellee under the authority of Commercial Ins. Co. v. Scammon, 123 Ill. 601.

The order will therefore be that the case he reversed and that judgment he rendered in this court upon the ■finfling in favor of the Woman’s Temperance Building Association against Anna Evans Devore, executrix of the last will and testament of John A. Devore, deceased, in the sum of $722.22, to he paid in due course of administration.

jReversed and judgment here.