text:
    H. E. Purgett, Appellee, v. Jacob J. Weinrank, Appellant.
    Gen. No. 6,797.
    1. Principal and agent, § 8

      —what is essential to show agency. No particular form of words is necessary to constitute an employment as agent.
    2. Brokers, § 9-3*—when existence of relation is question for jury. In a suit to recover for services alleged to have been rendered as real estate agent, where the evidence as to whether or not plaintiff was defendant’s agent is conflicting, the question of the existence of the agency is for the jury.
    ' 3. Brokers, § 88*—what evidence shows existence of relation. In a suit to recover for services rendered as real estate agent in selling defendant’s farm, in which the evidence as to the employment of plaintiff as agent is conflicting, evidence that plaintiff asked defendant what he would take, for the farm and let plaintiff sell it for him and that he named a figure, and that plaintiff later informed him that plaintiff had advertised the farm for sale and defendant said "all right,” is sufficient to warrant a finding that a contract of agency existed.
    4. Brokers, § 19*—when employment cannot he revoiked. The principal cannot revoke the agency after the broker has procured a purchaser able, willing and ready to buy.
    5. Brokers, § 88*—when evidence does not show revocation of authority. In an action to recover for services as real estate agent, evidence held to warrant a finding that the agency had not been revoked.
    6. Vendor and purchaser, § 67*—when cash payment results from contract. Where neither the contract of agency for the sale of a farm nor the negotiations with a person desiring to purchase refers to any terms of payment except the price per acre, the terms of payment are cash on delivery of the deed, in the absence of .evidence to the contrary.
    7. Brokers, § 38*—when 'compensation of broker is earned. A broker employed by the owner to sell his property earns his commissions if he produces, within the time limited by his authority, a purchaser who is ready, willing and able to purchase the property upon the terms proposed by the owner, even though the owner refuses to perform.
    8. Brokers, § 64*—what is amount of compensation when not

      specified. A broker employed by the owner to sell his property who has produced within the time set, a purchaser ready, willing and able to purchase on the owner’s proposed terms is entitled, where the employment does not fix his compensation, to the usual and customary reasonable compensation for the services performed.
    9. Instructions, § 88

      —when instruction as to evidence is erroneous. In a suit by one natural person against another, it is not error to refuse to instruct that “while the law permits the plaintiff in the case to testify in his own behalf, nevertheless, the jury has the right, in weighing the evidence, to determine how much credit is to be given to it and to take into consideration that he is the plaintiff and interested in the result of the suit.”
    Appeal from the Circuit Court of Iroquois county; the Hon. Frank L,. Hooper, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    Pallissard & Benjamin, for appellant; A. F. Goodyear, of counsel.
    W. E. Lewis and Stephen C. Malo, for appellee.

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

      See Illinois Notes Digest, Vols. XI t# XV, and Cumulative Quarterly, game topic and section number.

   Mr. Justice Heard

delivered the opinion of the court.

Appellee brought suit in assumpsit in the circuit court of Iroquois county against appellant for services alleged to have been rendered for appellant by appellee as a real estate agent. A trial by jury resulted in a verdict for $480 in favor of appellee. Judgment was rendered on the verdict and from this judgment appellant appeals.

It is first contended by appellant that there was no contract of agency between appellant and appellee.

Appellee was engaged in the restaurant business in the Village of Woodland, but devoted a portion of his time to the real estate business. Appellant was the owner of a 240-acre farm and resided thereon, about one and one-half miles from Woodland.

On the evening of Saturday June 7, 1919, appellant came to appellee’s place of business. According to the testimony of appellee, he said to appellant “Jake, what will you take for your farm out there and let me sell it for you?” to which appellant replied, “$200 an acre.” Appellant denies that the words “and let me sell it for you” were used by appellee but appellee is corroborated by - a witness Boss Garfield who was present and took some part in the conversation. Appellee in that conversation told appellant of a «farm he had sold and of other farms he had in the neighborhood for sale and had had some conversation as to the commission he was deriving from sales. Appellee advertised the farm for sale in a local paper and testified that on the following Tuesday or Wednesday he told appellant that he had done so and that appellant said ‘ ‘ all right. ’ ’ This is denied by appellant.

No particular form of words is necessary to constitute an employment as agent. It was for the jury to determine from the evidence which party was telling the' truth, and if they believed appellee’s version of the conversation they were warranted in finding that a contract of agency had been entered into by the parties.

It is next contended that appellee did not produce a purchaser who was able, ready and willing to purchase the farm on terms satisfactory to appellant.

On June 14 appellee priced the farm to Oliver Gray at $200 per acre, and after some consultation with O. L. Gray, his father, Oliver Gray informed appellee that he and his father would take the farm at the price asked. On the following Monday appellee and Oliver Gray went to appellant’s home and informed him that they were ready to take the farm, when appellant refused to sell for $200 an acre, assigning as a reason that he had learned that there was a boom on in land and that prices were going up rapidly.

Appellant contends that prior to being informed by appellee that he had found a purchaser for the farm the agency had been revoked. There is a direct conflict in the testimony on this point. Appellee was partially corroborated by the witness, Stone. The principal cannot revoke the agency after the broker has procured a purchaser, able, ready and willing to buy. 19 Cyc. 193. The jury were warranted in finding from the evidence, as they evidently did, that the agency had not been revoked.

In neither the contract of agency nor the negotiations with the Grays were any terms of payment mentioned other than $200 per acre. In the absence of any evidence to the contrary this would be an agreement to pay cash on the delivery of the deed. Gray_ testifies that they were ready and willing to take the. farm and were able to pay the cash therefor.

In Fox v. Ryan, 240 Ill. 391, it was said: “Where a broker is employed to sell property by the owner, if he produces a purchaser within the time limited by his authority who is ready, willing and able to purchase the property upon the terms proposed by the seller he is entitled to his commissions, even though the seller refuses to perform the contract on his part. In such case, however, it is necessary for the broker to prove the readiness, willingness and ability of the purchaser to take the property on the terms proposed.” This rule was followed by this court in Faber v. Vaughan, 108 Ill. App. 553; Kilpatrick v. McLaughlin, 108 Ill. App. 463, and in other cases.

There was no compensation for appellee’s services fixed by the parties, but the evidence showed the usual, reasonable and customary commission for real estate sales at the time and place in question was $2 per acre, and that there were 240 acres in the farm.

In Monroe v. Snow, 131 Ill., on page 136, the rule in this class of cases is laid down as'follows: “A real estate broker employed to make sale of land, who finds a purchaser at the price fixed by the owner, who is ready, able and willing to take a conveyance and pay the purchase price, has earned the compensation agreed to be paid him; or if the compensation is not fixed by the parties, he will be entitled to recover the usual and customary reasonable compensation for the service performed.” Applying the above rule to this case, we are of the opinion that the jury were fully warranted in arriving at thd verdict which they found.

Appellant assigns as error the giving of appellee’s' third and fourth instructions. These instructions were in strict conformity to the views above expressed and their refusal would have been error.

Appellant complains of the refusal of the court to give the following instruction:

“The jury are instructed that while the law permits the plaintiff in the case to testify in his own behalf, nevertheless, the jury has the right, in weighing the evidence, to determine how much credit is to be given to it and to take into consideration that he is the plaintiff and interested in the result of the suit. ’ ’

Chicago & E. I. R. Co. v. Burridge, 211 Ill. 9, and West Chicago St. R. Co. v. Dougherty, 170 Ill. 379, are cited by appellant as holding the refusal of this instruction to be error. Both of these cases were suits of individuals against corporations and not suits between individuals. In Chicago & E. I. R. Co. v. Burridge, supra, in commenting on the refusal of the court to give this instruction, it was said: “It is urged that the instruction was properly refused for the reason that it identifies and singles out the plaintiff. Had the suit been against a natural person and had both plaintiff and defendant testified, this objection would be good.” In Hartshorn v. Hartshorn, 179 Ill. App. 421, in passing upon an instruction substantially the same as the one in question, this court made a careful review of the authorities and said: “The instruction is erroneous if both plaintiff and defendant are natural persons and have testified, because it singles out the testimony of one party and makes no reference to the testimony of the other equally interested party, and it is calculated to lead the jury to understand that the court considers that there is some reason why the evidence of the party referred to in the instruction is specially subject to criticism and should be particularly scrutinized by the jury. In the cases where the instruction was held good, the defendant was a corporation and could not testify, and asked the instruction, and any instruction in regard to the evidence of the parties could only apply to the one who was capable of testifying and who had testified, and even if the instruction had been made general in terms, it would be understood by the jury to apply only to the plaintiff, who had testified and for that reason it was not error to give the instruction which specially referred to the plaintiff.” The refusal to give this instruction was not error.

Complaint is made of the court’s modification of instructions and refusal to give others. The action of the court in these respects was in conformity with the views expressed in this opinion.

We find no reversible error in the record and the judgment of the circuit court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Heard

license: Public Domain

text:
    Goddard Tool Company, Appellant, v. Crown Electrical Manufacturing Company, Appellee.
    Gen. No. 6,805.
    1. Pleading, § 379

      —how issues are formed. Under section 55 of chapter 110, Rev. St. (J. &' A. If 8592), where plaintiff files an affidavit of claim with his declaration and defendant pleads the general issue and files an affidavit of merits, the respective parties are limited in their evidence to the matters controverted by the affidavits.
    2. Pleading, § 54*—anticipation of defenses. A plaintiff cannot properly anticipate a defense which may or may not be made.
    3. Contracts, ’ § 382*—what may not he shown in action on express contract. Where plaintiff, in an action on a contract, has proven an express contract that he was to receive a certain s,um per hour for the hours of labor actually performed in the manufacture of the articles called for by the contract, it is improper to permit him to show that while a certain number of hours of labor was actually employed, the number customarily and usually required to do such work exceeded that number and to claim compensation for the larger number.
    4. Account stated, § 4*—when rendition of statements operates as account stated. In a suit on a contract for the manufacture of articles on a basis of the cost of the material plus 10 per cent and a certain amount per hour of labor employed thereon, where the evidence shows that from time to time during the performance of the contract plaintiff sent defendant invoices describing the goods shipped, the amount charged for material, the number of hours for which charge was made and the total amount due on the shipment, and defendant retained the, bills without questioning them until pressed for payment, the account is an account stated and defendant has the burden of overcoming it by competent proof.
    5. Evidence, § 14*—what is matter of common knowledge. It is a matter of common knowledge that two workmen equally skilled in their trade will take different lengths of time to perform the same task, even when equipped with the same tools and machinery.
    5. Evidence, § 14*—what is matter of common knowledge as to employment. It is a matter of common knowledge that working conditions in factories differed in 1918 from conditions at any other time, by reason of the fact that so many. young men and skilled mechanics were drawn into military service and their places were taken by others not so vigorous or skilled.
    7. Master and servant, § 84

      —What evidence is insufficient to show hours of work. In an action on a contract for the manufacture of an article partly on a charge of a fixed sum per hour of labor, the opinions of witnesses not knowing the conditions in plaintiff’s plant at the time of performance and having no experience in making the article under such conditions as to the time reasonably necessary to produce articles differing from those called for by the contract, in other plants, under other conditions and according to other specifications, can shed no light on the question as to how many hours were employed by plaintiff on the work.
    8. Appeal and error, § 1618*—when error in admission of evidence cannot he complained of. A plaintiff who has been permitted to introduce inadmissible opinion evidence in rebuttal of similar inadmissible evidence offered by defendant, is in no position to complain that defendant was permitted to introduce such evidence.
    9. Trial, $ 78*—what is proper rebuttal evidence. Where a defendant has been permitted to introduce inadmissible opinion evidence, plaintiff should be permitted to introduce similar evidence in rebuttal.
    10. Contracts, § 384*—when evidence is insufficient. In a suit on a contract for the manufacture of a certain article at an agreed price for material and per hour for labor required, evidence held insufficient to sustain a judgment for defendant.
    11. Contracts, § 381*—what evidence as to cost of manufacture is improper. In a suit to recover on a contract for the manufacture of an article under which plaintiff was to receive a certain sum per hour for labor employed in manufacturing the article, it is error to permit defendant to introduce, over plaintiff’s objection, evidence as to the amount which defendant paid its employees per hour.
    12. Instructions, $ 115*—when instruction is misleading. It is error to give an instruction which is misleading because of Its introduction of matters not in issue.
    Appeal from the Circuit Court of Kane county; the Hon. C. F. Irwin, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Frank W. Shepherd and Ernest C. Luther, for appellant.

      Harry G. Hempstead and John K. Newhall, for appellee.

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

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

   Mr. Justice Heard

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee in a suit by the Goddard Tool Company, appellant, against the Crown Electrical Manufacturing Company, appellee, in assumpsit, brought in the circuit court of Kane county.

The declaration, in substance, alleged a contract entered into between plaintiff and defendant for the 'manufacturé by appellant for appellee of thread gauges; alleged that it was agreed between plaintiff and defendant that said gauges were to be manufactured and said work done on the basis of material plus 10 per cent, plus labor at $1.50 per hour; that plaintiff manufactured said thread gauges and delivered said thread gauges and work to defendant in pursuance to said agreement; that under said agreement the material plus 10 per cent amounted to $179.03, and the item of work at the rate of $1.50 per hour amounted to $14,686.35, being 9,790.9 hours at $1.50 per hour. With this declaration appellant filed its affidavit of claim, made by Paul Goddard, the president of appellant company, which specifically set out and verified the facts set up in the declaration.

Appellee filed its plea of general issue and with it its affidavit of merits, which was made by D. C. De-Lancey, treasurer and manager of appellee, and stated that about April 23, 1918, plaintiff entered into a verbal agreement with appellee whereby appellant agreed to manufacture for appellee about 160 thread gauges and deliver the same to appellee from time to time, as ordered and directed; that appellant agreed with appellee to furnish said thread gauges on the basis of actual cost of material plus 10 per cent and actual labor reasonably necessary to manufacture said gauges at the rate of $1.50 per hour; that appellant represented that it was fully equipped with skilled labor and" necessary tools and machinery to manufacture said thread gauges and agreed that it would keep accurate and correct time tickets showing in detail the amount of actual labor necessarily performed on each operation connected with the making and manufacturing of said gauges; that appellee before the final payment would be entitled .to reasonable opportunity to examine, audit and verify said time tickets and that the amount of such actual time and labor on each of said operations should be reasonable, just and fair; that pursuant to such verbal contract appellant did manufacture and deliver to appellee during the year 1918 the said gauges; that on August 30, 1919, appellee paid appellant $914.54 to apply on account, and on October 10, 1918, made and delivered to appellant its note for $4,500 due in 90 days, and which was paid at maturity; that said thread gauges were all finally completed by appellant some time during the month of October, 1918; that thereafter appellant submitted its bill to appellee, which defendant refused to pay, because it claimed and now claims that the charges for labor performed by the appellant were exorbitant, unfair and unreasonable; that appellee was permitted by appellant to inspect, audit and verify the time tickets; that said audit disclosed that appellant did not keep correct and actual time of each operation performed; that appellant represented it had furnished 10,350 hours of actual labor in the making of said thread gauges and affiant says that appellant has included therein more than 3,000 hours in fact not chargeable against appellee for the reason that such alleged services did not represent actual labor performed in making said thread gauges; that the reasonable time and labor reasonably necessary to make and manufacture all of said thread gauges would not exceed 2,200 hours of actual labor; that "appellant on said time ticket charged more than 2,000 hours for which an examination of said tickets discloses no labor performed; that said item of material at cost plus 10 per cent amounts to $179.03, and the item of work at the rate of $1.50 per hour for said gauges so manufactured all delivered by the appellant to appellee amounts to, not to exceed 2,200 hours at $1.50 per hour, making $3,300; that appellee has overpaid appellant $1,935.51.

We have set forth the affidavits of claim and of merits in so much detail for the reason that by section 55 of chapter 110, Rev. Stats. of Illinois (J. & A. ft 8592), the respective parties are limited in their evidence to the matters controverted by the affidavits. Reddig v. Looney, 208 Ill. App. 413; Miller v. Thomas, 200 Ill. App. 125.

It will be seen from an inspection of the affidavits that the gauges in question were manufactured and delivered under an express contract between appellant and appellee and that the only controversy in regard to the terms of the contract is whether appellant was to be paid $1.50 per hour for the number of hours of actual labor performed in the manufacture of the gauges, or to be paid for the number of hours reasonably necessary to manufacture said gauges.

There is, however, no controversy in the evidence as to the terms of the contract in this respect. The contract was made between George Monks, who had charge of appellant’s sales and order department, on behalf of appellant, and Daniel DeLancey, general manager of appellee, on behalf of appellee.

DeLancey testified as to the contract: “We told Mr. Monks we had these gauges to make and made the usual inquiry as to whether they were in a position to make them in a first-class workmanlike manner; they assured us they were; that they were making gauges for the government; were in first-class shape and thoroughly equipped to make them; asked him how soon they could make and deliver the lot of gauges in order 341. He stated they would begin delivering in 4 weeks and make complete delivery in 3 months. We asked him what the conditions would be and what price they would make us. He said they could not make us any price; they would furnish the material at an advance of 10 per cent and would charge for the actual labor on each operation at $1.50 an hour. I asked him if he could give me any estimate of the number of hours necessary to construct such a lot of gauges. He replied that he could not; that they would not give any idea whatever; that they run their business on a time-clock basis; every ticket was stamped and would be subject to inspection at any time; that they had government inspectors to inspect the gauges and our interests would be properly safeguarded, and would keep an accurate account of each operation on the time cards. Said they employed the best skilled mechanics; had the highest grade of machinery and were fully equipped to make them; do not remember anything further in particular that he said; we told bim we would give him the order, with the understanding that the time tickets were to be subject to oúr inspection.”

Monks testified to practically the same language with the following additional, which was not denied by Mr. DeLancey: “I explained to him thoroughly that these gauges would be a special order in small quantities and would be subject to government inspection; that it was not a commercial job. Told bim the only way we could take his order would be with the distinct understanding that he should O. K. the designs and would pay us at the rate of $1.50 per hour for labor and 10 per cent advance on the cost of the material. He said, ‘We shall practically have to depend on you.’ I said ‘Yes.’ ”

It will be seen from this testimony that both parties agree that the agreement was that appellant was to be paid $1.50 per hour for the actual labor on each operation, and that there was nothing said by either party as to the basis for payment being the number of hours reasonably necessary for the manufacture of the gauges.

It is contended by appellant that the court erred in the admission of testimony of appellee’s witnesses as to the reasonable and customary time required to manufacture the gauges and in refusing i testimony of like character offered by appellant in rebuttal.

Appellant in its case in chief introduced evidence as to the terms of the contract, the manufacture and delivery of the gauges, the cost of the material, the number of hours of labor actually performed upon the contract and the amount remaining unpaid. This was all appellant was called upon to prove in the first instance and all that was proper for it to prove. It could not properly anticipate a defense which might or might not be made. Having proven an express contract that appellant was to receive $1.50 per hour for the number of hours of labor actually performed, it would have been highly improper for the court to have, allowed appellant to prove that while the number of hours actually employed was only 9,790.9, that the number of hours usually and customarily required to do the same work was 15,000, or some other number, and to claim compensation therefor.

There can be no question from the evidence'that it was the intention of the parties that payment was to be made for the number of hours actually consumed. Appellant’s agent, when making the contract, refused to make an estimate or give any idea whatever as to the number of hours which would be required to make the gauges, but told DeLancey that they ran their business on a time-clock basis and that every ticket was stamped and would be subject to inspection at any time and DeLancey told him that appellee would give appellant the order, with the understanding the time tickets were to be subject to appellee’s inspection.

The evidence shows that appellant did conduct the business on a time-clock basis; that time cards were kept keeping an accurate count of the time employed on each operation; that such time cards were introduced in evidence; that they were open to inspection by appellee; that they were inspected by. the witness Modine, an employee of appellee, who was sent by De-Lancey to appellant’s factory for the purpose of auditing the time cards; that Modine spent 2 or 3 weeks in copying all the time cards, tabulating them; that the result of such audit and tabulation showed the total number of hours of labor actually performed as shown by the time cards to be 10,351.40

From time to time as the orders were filled and shipped, appellant sent to appellee invoices of the shipment, all substantially like the following, the items and amounts being different.

“7-18-18.

‘ ‘ Cash discount allowed ten days from July 31, 1918. Shipped via Wells Fargo Exp. 7-18-18. Your order 341:

(3) Double end Go and No Go Plug Thread Gauges for D/4" tube
(3) Adj. Master Bing Thread Gauges for the above plugs-Go end
(3) Adj. Master Bing Thread Gauges for the above plugs-No Go End.
Material plus 10% ........................ 4.80
447.3 Hours Labor at 1.50-................. 670.95
675.75”

The evidence shows that from about the middle of July, 1918, to October 1, 1918, appellant sent to appellee nineteen of these invoices or bills, each one giving a description of the goods shipped, the amount charged for material, the number of hours for which charge was made at $1.50 per hour and the total amount due upon the shipment. These bills were retained by appellee and no complaint whatever made as to their correctness until October 10, 1918, after appellant began to strenuously insist upon payment of the bills.

In B. S. Green Co. v. Smith, 52 Ill. App. 158, it was said: “The appellee, who-was a manufacturer of such goods, rendered his bills for goods sold tq appellant from time to time, in which bills the articles sold were itemized, process stated, and total amount given without allowing the discount claimed to have been contracted for. * * * The ease seems to fall within the rule of law that as between merchants an account rendered is deemed to be conclusive as to price given and amounts stated if not objected to within a reasonable time, unless some fraud, mistake, omission or inaccuracy is shown. McCord v. Manson, 17 Ill. App. 121; Mackin v. O’Brien, 33 Ill. App. 476.”

In Concord Apartment House Co. v. Alaska Refrigerator Co., 78 Ill. App. 682, it was said: “The jury were accurately and clearly instructed as to what in law constitutes a stated account, and its legal effect in an instruction given on behalf of the plaintiff, as follows:

“ ‘If the jury believed from the evidence that some time about the fifth of October, 1896, a statement of account was made by the plaintiff or its agent, and submitted to the defendant or its agent, and the latter acquiesced in its correctness, the jury are instructed that the law regards this as a stated account, by which both parties will be bound unless it can be shown that some error or mistake has been made or fraud practiced, and the burden of proving mistake or fraud is on the party alleging it.’ ”

In Rudolph Wurlitzer Co. v. Dickinson, 153 Ill. App. 36, the court said: “Furthermore, a statement of the account was rendered to defendant each month and the last statement, showing a balance of $602.89 to be due, was mailed to the defendant March 1, 1908. The evidence shows that at the time of the trial, June 1, 1908, no objection to the account rendered on March 1, 1908, had been made to the plaintiff. Under the circumstances of this case, this absence of objection for such a length of time made the account rendered an account stated and made the account and proof that the account had been so rendered admissible in evidence upon that theory. When a rendered statement of an account has been retained, without objection to the account or to the items contained therein, for such a length of time that the recipient has had a reasonable time within which to express objections, then he is in law regarded as having waived his objections, if any he had. Thereafter, if an action as upon an account stated be brought upon the claim, the original character or form of the debt, as well as' what kind of evidence was necessary to establish the same, is unimportant, for the cause of action is then not upon the original contract or transaction, but upon the promise, implied by the law where there is none expressed, to pay the balance. Dick v. Zimmerman, 207 Ill. 636. While the recipient of an account rendered, which through lack of objection on his part has ripened into an account stated, is precluded from opening up previous disputes between the parties regarding the various items of the account, he is not precluded from showing fraud or mistake; but if he raises any such issue the burden of proof is upon him to establish it. Standard Oil Co. v. Van Etten, 107 U. S. 325, 330-1.”

In Bailey v. Bensley, 87 Ill. 556, it was said: “During said two years, appellees rendered to appellant detailed accounts of some ninety-seven sales made by them on his account, wheifein are contained these items of charges for storage and insurance. No objection was made to any of these accounts rendered until since the commencement of this suit. Such account of sales rendered and unobjected to may be regarded as prima facie evidence of the correctness of the account. Mertens v. Nottebohms, 4 Grat. [Va.] 163; Shepard v. Bank of Missouri, 15 Mo. 143; Philips v. Belden, 2 Edw. Ch. [N. Y.] 1.” In State v. Illinois Cent. R. Co., 246 Ill. 188, on page 241, it was said: “A stated account is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. The terms ‘stated’ and ‘settled’ accounts are sometimes used as equivalent expressions. (1 Cyc. 364, and cases cited; 1 Words and Phrases, p. 93; 1 Encyc. of L. & P. 728, and cases cited; Chicago, M. & St. P. Ry. Co. v. Clark, 92 Fed. 968; McDow v. Brown, 2 S. C. 95.) * * * An accounting does not change the character of the claim, but simply settles the amount of the balance diie. It is not, strictly speaking, the statement of a new debt but merely the acknowledgment of an old one. (Chace v. Trafford, 116 Mass. 529; 1 Cyc. 450, and cases cited; 1 Encyc. of L. & P. 716, and cases cited.) An account stated is only prima facie evidence of its correctness. (Perkins v. Hart, 11 Wheat. [U. S.] 237; Gruby v. Smith, 13 Ill. App. 43; 1 Encyc. of L. & P. 723; 1 Cyc. 453.) It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff must either charge fraud or state particular errors. (Bruen v. Hone, 2 Barb. [N. Y.] 586.) * * * The general rule, however, that in order to open a stated account the bill must either charge fraud specifically or point out the particular errors, applies whether the parties have been dealing at arm’s length or occupy confidential relations, and the authorities seem to be a unit in holding that mistakes or errors must be specifically alleged and proved. The following are some of the many authorities so holding. 1 Daniell’s Ch. Pl. & Pr. (6th Ed.) 371; Seamans v. Burt, 11 R. I. 320; Chappedelaine v. Deschenaux, 4 Cranch. [U. S.] 306; Kronenberger v. Binz, 56 Mo. 121; Brown v. Welsh’s Ex’r, 27 N. J. Eq. 429; Leaycraft v. Dempsey, 15 Wend. [N. Y.] 83; Young v. Hill, 67 N. Y. 162; Kinsman v. Barker, 14 Ves. Jr. 578; Shepherd v. Morris, 4 Beav. 252; Taylor v. Hayling, 1 Cox 435; Johnson v. Curtis, 3 Brown’s Ch. 266 (Eng.).”

By appellee’s retention of the bills, the account between the parties having become .an account stated by reason of the appellee having failed to question the correctness of the bills and invoices, the burden rested upon it of overcoming it by proof competent for that purpose.

It is a matter of common knowledge that two workmen equally skilled in their trade will occupy different lengths of time in the performance of the same task, even when equipped with the same tools and machinery. Some men are rapid in their movements and some slow. It is also a matter of common knowledge that working conditions in factories differed in 1918 from conditions at any other time. Millions of young men between the’ages of 21 and. 30, the most vigorous time of life, were withdrawn from their usual pursuits of life; that thousands of the best skilled mechanics went to war and their places in factories were taken by other men, who, while perhaps having the same degree of skill, were, by reason of age or other reasons, able to turn out less work in a given length of time. The evidence shows that in appellant’s factory during the time this work was being performed men came and went frequently and they were always hiring new men.

By the contract entered into between the parties the work was to be performed in appellant’s factory under the conditions which existed there and appellee was to pay for the actual number of hours spent upon the work under the conditions then and there existing in that particular factory. The order for the gauges was a special order and not a commercial job. The gauges were made from designs and specifications prepared for this particular contract. The opinions of witnesses having no knowledge of the conditions existing in appellant’s plant at that particular time and having no experience in making gauges under those conditions as to the time reasonably necessary to produce gauges differing from the ones in question, in other plants, under other conditions and according to other specifications, could shed no light upon the question as to how many hours of labor were actually spent upon the work. Appellant is not in a position to complain as to the admission of this class of evidence as on rebuttal it offered evidence of the same character, which was not admitted. Of course if appellee was permitted to introduce its opinion evidence in defense, appellant should have been allowed to introduce the excluded evidence in rebuttal.

DeLaneey, on the witness stand, did not claim that the giving of the $4,500 note was a payment in full, but on the contrary expressly stated that it was a payment on account. In its affidavit of merits appellee only specifies 3,000 hours of the 9,790.9 sued for as not representing actual labor performed. Manifestly, the judgment for appellee cannot be sustained by the evidence.

Appellee- over appellant’s objection was allowed to prove the wage per hour paid by appellee to its workmen. This evidence was incompetent and could not help but be highly prejudicial.

At the request of appellee the court gave the jury the following instruction: “The court instructs the jury that when one holds himself out as specially qualified to perform work or manufacture goods of a particular character, or for a particular purpose, there is an implied warranty that the work which he undertakes to do will be performed in a reasonably skilful manner and within a reasonable time and at a reasonable price, and that the goods which he undertakes to manufacture will be of proper workmanship and reasonably fit for. their intended purpose.

“And in this case, if-you believe from the evidence that the plaintiff, the Goddard Tool Company, held itself out to the Crown Electrical Manufacturing Company as specially qualified to manufacture thread gauges in question, and that the Crown Electrical Manufacturing Company ordered said gauges from plaintiff, and that there was no agreement between the parties specifically fixing the quality of the work or the price to be paid therefor, then you are instructed that under the law the said Groddard Tool Company is required to manufacture said gauges in a reasonably skilful manner and that said gauges shall be reasonably suitable for the purpose intended and that they shall be manufactured for a reasonable price.”

There was no question in the case but what the work was performed in a reasonably skilful manner and there was no question of a reasonable price for the reason that the price per hour was fixed and agreed upon by the parties. The instruction was highly misleading and its giving was error. The cause is reversed and remanded to the circuit court of Kane county.

Reversed cmd remanded.


text:
    Frank Ehrhardt, Appellee, v. Connecticut Fire Insurance Company, Appellant.
    Gen. No. 6,819.
    1. Trial, § 174

      —what is effect of motion in nature of demurrer to- evidence. A motion to instruct the jury to find for defendant is in the nature of a demurrer to the evidence, and the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of plaintiff.
    2. Trial, § 203*—when refusal of motion to find for defendant is not error. In an action on an insurance policy on a stallion, where there is evidence that the horse was, at noon of the day on which he died, and had been for several months before, in an apparently healthy condition; that the plaintiff found the horse lying dead' in his stall immediately after a storm accompanied by much thunder and lightning; that there were no signs of struggle; that there was a mark on its forehead which veterinarians attributed to lightning; that a board on the barn was freshly split from top to bottom and a tree near the barn was split thróugh the trunk with splinters on the cut; that a post-mortem by veterinarians disclosed organic symptoms such as are found in the organs of animals which have been struck by lightning, it was held that it was not error to refuse to instruct the jury to find for defendant.
    3. Evidence, § 381*—what expert evidence is improper. It is not proper to allow an expert to testify that in his opinion a thing is “reasonably probable,” nor as to the “reasonably certain probable” cause of a condition.
    4. i Evidence, § 387*—what expert may testify to as to cause of injury or death. When there is a conflict in the evidence as to whether or not an injury was received in the manner charged, it is not competent for witnesses, though testifying as experts, to give their opinion as to the cause of the disability or death, hut when there is no dispute as to the cause or manner of the injury and no dispute that an injury was sustained, such witness may testify that a later malady or death was or was not caused by the accident or original injury.
    5. Evidence, § 387*—what evidence as to cause of death is improper. In an action on an insurance policy on a stallion, alleged to have been killed by lightning, where defendant contends that the death resulted from natural causes, it is not proper to permit a witness, though testifying as an expert, to express his opinion as to the cause of the death.
    6. Instructions, § 81

      —when instruction is erroneous as emphasizing fact. An instruction as to the amount recoverable on an insurance policy for the death of a stallion, held erroneous as singling out and calling the jury’s attention to plaintiff’s evidence as to the value of the horse and ignoring defendant’s evidence in regard thereto.
    Appeal from the City Court of Aurora; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the April term, 1920.
    Reversed and remanded.
    Opinion filed June 29, 1920.
    Seymour Edgerton, David J. Peeeers and Robert J. Wing, for appellant.
    John M. Raymond and John K. Newhall, for appellee.

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

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

   Mr. Justice Heard

delivered the opinion of the court.

This is an action upon an insurance policy brought by appellee against appellant in the city court of Aurora. The policy insured appellee in the sum of $1,800 against loss, by lightning, of his stallion Damphin. The stallion was found dead in appellee’s horse barn on the afternoon of Friday, April 4, 1919. A trial was had resulting in a verdict for appellee for $1,800, the full amount of the insurance upon the horse in question, and judgment was entered for appellee against appellant for this amount, from which judgment appellant prosecutes this appeal.

It is contended by appellant that the court should have instructed the jury to find for appellant.

There is evidence tending to show that about noon on the day in question, appellee took care of the horse, which at that time was in an apparently healthy condition and that he had been in such condition for several months prior thereto; that about 1:30 appellee left home to get a load of corn; that while he was gone there was a storm accompanied by much thunder and lightning; that when he returned home he found the horse lying dead in the box stall in which he was kept, with no signs of struggle and with a mark on its forehead, which was attributed by veterinarians to lightning; that a board of the bam on the south side of the stall was freshly split from top to bottom; that a tree about 50 feet from the bam was split right down through the trunk with splinters on the cut; and that a post-mortem examination made by two veterinarians disclosed organic symptoms such as are found in the organs of animals which have been struck by lightning.

In McCune v. Reynolds, 288 Ill. 188, it was said: “A motion to instruct the jury to find for the defendant is in the nature of a demurrer to the evidence, and the rule is that the testimony so demurred to, together with all reasonable inferences arising therefrom, must be taken most strongly in favor of the plaintiff. (Geiger v. Geiger, 247 Ill. 629; Lloyd v. Rush, 273 Ill. 489.) * * * The question presented on a motion to withdraw an issue from the jury, as in this case, is whether there is any evidence fairly tending to prove the issues involved. Yess v. Yess, 255 Ill. 414.”

Applying the rule above stated to tins case we are of the opinion that there was evidence which together with the reasonable inferences arising therefrom fairly tended to prove all the material allegations of plaintiff’s declaration, without basing a presumption upon a. presumption and that the court did not err in refus-. ing to instruct the jury for the defendant.

Three veterinarians gave expert medical testimony on behalf of appellee. Over the objection of appellant, counsel for appellee was allowed to ask these witnesses lengthy hypothetical questions terminating “from such a hypothetical case under these conditions, have you an opinion as to what was the reasonably certain probable cause of death?” and “from such a hypothetical case under these conditions, have you an opinion as to what was the reasonable probable cause of death?” Over appellant’s objection, the witnesses were allowed to answer that the probable cause of death was lightning. Appellant contends that these questions were speculative and conjebtural and therefore improper.

In 17 Oyc. 226, it is said: “The judgment of an expert must be more than a guess. A tribunal that is called upon to decide a definite issue of fact by the use of the reasoning faculty cannot be aided where no mental certainty is shown by a witness. That a judgment is based upon conjecture shows that little or no aid can be given the jury on this point by witnesses, however skilled, and therefore evidence of it is rejected.”

In Webster’s International Dictionary the word “probable” is defined as follows: “Having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; likely.” In Chicago City Ry. Co. v. Henry, 62 Ill. 142, it was said: “It is true, no one can determine with absolute certainty what the result of such an injury might be; but something more than mere conjecture, mere probabilities, should appear to warrant the giving of damages for future disabilities that may never be realized.”

In Lyons v. Chicago City Ry. Co., 258 Ill. 75, it was said: “While it is often difficult to draw the line between legitimate inferences and bare conjecture, only such inferences may be drawn as are rational and natural. (14 Encyc. of Evidence, 99, and cases cited.) Mere surmise or conjecture is never regarded as proof of a fact and the jury will not be allowed to base a verdict thereon. (14 Encyc. of Evidence, 76, and cases cited.) No one is permitted to testify to what he has never learned, whether it be ordinary or scientific facts. (Elliott v. Van Buren, 33 Mich. 49.) If a witness has not sufficient and adequate means of knowledge his evidence should not be considered. (Starkie on Evidence, 10th Am. Ed., 172.) A surgeon may testify as to the nature of a wound and as to the effects or consequences which may be reasonably expected to happen,—not mere speculative or possible. (1 Wharton on Evidence, sec. 441; Jones on Evidence. 2d Ed., sec. 378; 12 Am. & Eng. Encyc. of Law, 2d Ed., 447, and cases cited.) If it form a proper basis for recovery it is necessary that the consequences relied on must be reasonably certain to result. They cannot be purely speculative.” In Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 76, it was said: “Mere surmise or conjecture cannot be regarded as proof of an existing fact or of a future condition that will result. Expert witnesses can only testify or give their opinion as to future consequences that are shown to be reasonably certain to follow;” To the same effect are Amann v. Chicago Consol. Traction Co., 243 Ill. 263; Lauth v. Chicago Union Traction Co., 244 Ill. 244; Elward v. Illinois Cent. R. Co., 161 Ill. App. 630; Lisenbury v. St. Louis & S. Ry. Co., 184 Ill. App. 395; Eilers v. Peoria Ry. Co., 200 Ill. App. 487. We are of the opinion that it is not proper to allow an expert to testify that in his opinion a thing is “reasonably probable ” or as to the ‘ ‘ reasonably certain probable” cause of a condition, as such testimony falls far short of the reasonable certainty required by law.

It is also urged that these questions and others of a similar nature which over appellant’s objections allowed the witnesses to express their opinions as the cause of the stallion’s death were improper as calling for the opinions of the witnesses upon the ultimate facts of the case and invading the province of the jury.

For several years there was quite a little confusion in the trial courts on this subject occasioned by two lines of cases, apparently inconsistent, but not really so, one holding. questions as to the causes of death, somewhat similar to the one in this case, admissible, and the other line of cases holding the admission of snch testimony to be reversible error.

In Fellows-Kimbrough v. Chicago City Ry. Co., 272 Ill. 71, these two lines of cases were considered and the apparent inconsistency reconciled, and on page 77 it was said: “One of the objections of the plaintiff in error to the foregoing questions was that they were improper, as invading the province of the jury and calling for an opinion on an ultimate fact. Where there is a conflict in the evidence, as in this case, as to whether or not the party suing was injured in the manner charged, it is not competent for witnesses, even though testifying as experts, to give their opinion on the very fact the jury is to determine. Whether or not the collision or accident in this case caused traumatic neurasthenia in the defendant in error or caused the tumor in her breast are ultimate facts upon which the jury must make their findings. It is no more proper, legally, for physicians to settle those questions for the jury by their direct answers than it would be for a motorman of another street car company to settle the question of negligence by testifying in broad terms that the plaintiff in error was guilty of negligence because its motorman failed to cut off the power by use of the canopy switch in time to prevent the collision. The rule in such cases is not different where hypothetical questions are put to the expert witnesses. A physician may be asked whether the facts stated in a hypothetical question are sufficient, from a medical or surgical point of view, to cause and bring about a certain condition or malady, or he may be asked whether or not a given condition or malady of a person may or could result from and be caused by the facts stated in the hypothetical question, but he should not be asked whether or not such facts did cause and bring about such condition or malady. (Illinois Cent. R. Co. v. Smith, 208 Ill. 608; Keefe v. Armour & Co., 258 Ill. 28; People v. Schultz, 260 Ill. 35; Castanie v. United Rys. Co., 249 Mo. 195, 155 S. W. Rep. 38; Sever v. Minneapolis & St. L. R. Co., 156 Iowa 664, 137 N. W. Rep. 937, 44 L. R. A. (N. S.) 1200. In eases where there is no dispute as to the manner and cause of the injury and no dispute that there was an injury sustained by reason of the acts of which complaint is made, this court has held that a physician may then directly testify that a later malady was or was not caused by the accident or original injury, upon the same principle that he may testify that death resulted from a certain wound. Schlauder v. Chicago & Southern Traction Co., 253 Ill. 154; City of Chicago v. Didier, 227 Ill. 571.”

This rule announced in the language just quoted that when there is a conflict in the evidence as to whether or not the party suing was injured in the manner charged, it is not competent for witnesses, even though testifying as experts, to give their opinion as to the cause of disability or death, but that when there is no dispute as to the cause and manner of the injury and no dispute that an injury was sustained, that such witness may testify that a later malady or death was or was not caused by the accident or original injury, was followed by the Supreme Court in the later cases of Heineke v. Chicago Rys. Co., 279 Ill. 210; Squire-Dingee Co. v. Industrial Board, 281 Ill. 359; Hanrahan v. City of Chicago, 289 Ill. 400, and by this court in the ease of Holcomb v. Magee, 217 Ill. App. 272. Appellant observed this rule as the termination of its hypothetical questions.

In the present case appellant did not admit the manner of injury, but strenuously insisted that the stallion was not injured at all, but died from natural causes, and we must therefore hold, applying the above rule to the question here involved, that the court improperly admitted the evidence in question.

At the request of plaintiff the court gave the jury the following instruction: “The court instructs the jury that if you believe from a preponderance of all the evidence'under the instructions of the.court that the plaintiff was the owner of the horse in controversy in this suit; that said horse was insured by the defendant Company in the sum of Eighteen Hundred Dollars ($1800.00); that said horse was killed by lightning, as alleged in plaintiff’s declaration, and that due proofs of loss were made and delivered to the defendant in the manner and within the time provided for by the policy offered in evidence in this case; and that the actual fair cash market value of the horse at the time of its death was Eighteen Hundred Dollars ($1800), or more than that amount, if shown by a preponderance of the evidence; then your verdict should be for the plaintiff for the sum of Eighteen Hundred Dollars ($1800.00).”

Appellee introduced evidence to the effect that .the stallion was worth more than $1,800, while appellant introduced evidence to the effect that it was only worth from $150 to $400. The instruction was erroneous in ignoring appellant’s evidence and singling out and calling the jury’s attention to appellee’s evidence and in three times calling the attention of the jury to the specific amount of $1,800.

For the errors above indicated the judgment of the city court of Aurora will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Niehaus

text:
    John F. Golden et al., Appellants, v. William L. Ellwood et al., Appellees.
    Gen. No. 6,793.
    Banks and backing, § 23

      —when persons are not stockholders. The mere fact that certain persons, whose names never appeared on the books or records of the bank as stockholders therein and to whom the stock was never issued as executors of the estate, claimed to own the stock as executors of the estate, or retained as executors, or received and retained the dividends thereon as executors, does not make them stockholders of such bank within the meaning of article XI, sec. 6 of the Constitution, nor would the fact that they exchanged stock held by the estate for the stock in such bank without authority under the will be sufficient to render them so liable.
    Appeal from the Circuit Court of De Kalb county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed June 29, 1920.
    Thomas M. Clippe and Hiram T. Gilbert, for appellants. •
    Knapp & Campbell, for appellees; John B. Cochran and Leonard Ferris Martin, of counsel.

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

   Mr. Justice Niehaus

delivered the opinion of the court.

John F. Golden and Bernard Horwich as receivers of the Ashland-Twelfth State Bank, appellants, as creditors of the LaSalle Street Trust and Savings Bank, filed a bill in equity in the circuit court of DeKalb county to hold the appellees, William L. Ellwood, Edwin Perry Ellwood and Albert Wallace Fisk, liable as stockholders of the LaSalle Street Trust and Savr ings Bank under section 6, art; XI of the Constitution. The appellees filed a demurrer to the bill; the demurrer was sustained by the court, and the bill dismissed for want of equity. From the decree dismissing the bill, this appeal is prosecuted.

It is averred in the bill that the appellees were executors of the estate of Isaac L. Eliwood, who died testate in DeKalb county on September 11, 1910; that at the time of his death Eliwood was the owner of 50 shares of the capital stock of the LaSalle Street National Bank, and these 50 shares of stock were a part of the assets of his estate at that time. Afterwards, on November 1, 1912, after the organization of the LaSalle Street Trust and Savings Bank, the 50 shares of stock in the National Bank were exchanged for 50 shares of stock in the Trust and Savings Bank, and were issued by the Trust and Savings Bank to, and in the name of, the estate of Isaac L. Eliwood. There are no averments in the bill which show that the appellees as individuals were ever stockholders in the LaSalle Street Trust and Savings Bank, but the bill alleges that the appellees became stockholders because in their capacity as executors of the estate of Isaac L. Eliwood, but without power under the will of Isaac L. Elwood to acquire or hold bank stock as such executors they pretended to be so authorized by said last will and testament when they caused certificate No. 361 for 50 shares of said Trust and Savings Bank to be issued to the estate of Isaac L. Eliwood in exchange for the 50 shares of the capital stock of the LaSalle Street National Bank which the estate owned; and because they received said certificate, and thereafter, and until after the suspension of said Trust and Savings Bank, retained the same, claiming to be the owners and holders of said 50 shares of stock as executors ; and because in that capacity prior to the suspension of said Trust and Savings Bank, about April 25, 1914, they received from said Trust and Savings Bank the sum of $62.50 for and on account/of a dividend declared by the directors of said Trust and Savings Bank upon said stock, and as executors retained the said dividend.

It is clear from the averments of the bill that the stock in question was never issued to the appellees as executors of the estate, and that their names never appeared on the books or records of the bank as stockholders, but "the books of the bank showed that the estate of Isaac L. Ellwood was the stockholder of the shares of stock in question. It is distinctly held in Golden v. Cervenka, 278 Ill. 409, that a creditor under the section of the constitution referred to could only hold those persons liable who appeared on the books of the bank to be the holders of the stock. The mere fact that the appellees claimed to own the 50 shares of stock as executors of the estate of Isaac L. Ellwood, or the retention of the stock by them as executors, or the receipt and retention of dividends on' the stock by them as ekecutors, would not make them stockholders within «.the meaning of said section of the Constitution referred to; nor would the fact that they were without authority under the provisions of the will of Isaac L. Ellwood, to make the exchange of stock for the estate, make them stockholders of the bank. They cannot therefore be considered stockholders in fact or in law; and it follows that they could not be held or subjected to liability as stockholders. We are of opinion, therefore, that the court did not err in sustaining the demurrer to the bill, and that the bill was properly dismissed for want of equity. The decree is affirmed.

Decree affirmed.


author: Mr. Presiding Justice Dibell

text:
    John E. Swanson, Defendant in Error, v. Peoria & Pekin Union Railway Company, Plaintiff in Error.
    Gen. No. 6,768.
    1. Appeal and erbor, § 462

      —when order of Interstate Commerce Commission cannot he considered on appeal. An order of the Interstate Commerce Commission not offered in evidence on the trial, not contained in the bill of exceptions nor in the record and which does not appear to have been called to the trial court’s attention, cannot be availed of on appeal.
    2. Master and servant, § 143*—when railroad car is defective. In an action by a brakeman under the Federal Employers’ Liability Act and the Federal Safety Appliance Act and its amendments to recover for injuries alleged to havevbeen received through a sudden sideways movement of the wheel and staff of the hand brake which plaintiff was operating, causing plaintiff to lose his balance and fall, with the result that he was run over, evidence considered and held to warrant a finding that the car was an old one, the brake platform contained old cracks, that because of these cracks the brake shaft would move and that such movement would cause the top of the brake to shift sideways from 6 inches to 2 feet.
    3. Master and servant, § 142*—what railroad equipment must he furnished. Under the Federal Safety Appliance Act, the railroad company is required to furnish its cars with the several parts of the hand-braking appliances so securely connected that the brakes can be set with safety in the ordinary routine of a brakeman’s duties.
    4. Master and servant, § 145*—what hand brakes must he supplied hy railroads. For a hand brake to be efficient within the meaning of the Federal Safety Appliance Act and in order that it may be safely operated by the brakeman, it must be so attached to the car that it will remain upright, and a brake which is so attached that the wheel, while being operated, is liable to move suddenly sideways from 6 inches to 2 feet is not an efficient hand brake.
    5. Master and servant, § 565*—when variance is not shown. Where the declaration, in an action by a brakeman under the Federal Employers’ Liability Act and the Federal Safety Appliance Act and its amendments, avers that defendant negligently hauled upon its line a freight car with its hand brake in a dangerous, insecure and inefficient condition, so that, while plaintiff was releasing such hand brake in the due course of his employment, the wheel and staff of the brake suddenly moved sideways, causing him to lose his balance and fall, there is no variance between such declaration and evidence on plaintiff’s behalf going to show that the brake was so attached to the car that the wheel; while being operated, was liable to move suddenly sideways from 6 inches to 2 feet.
    6. Carriers, § 26

      —who may regulate appliances. The regulation of the installation of safety appliances on cars engaged in interstate commerce is under the control of Congress.
    7. Master and servant, § 110*—what is effect of defective appliances causing injury. Under the Federal Employers’ Liability Act and the Federal Safety Appliance Act, if the failure of the railroad company to have the brake on a car in working order contributed in whole or in part to cause the injury to plaintiff employee, the railroad company is liable, and neither the plaintiff’s contributory negligence nor his assumption of risk can avail defendant as a defense or in diminishing the damages.
    8. Master and servant, § 704*—when finding as to catise of injury is supported by evidence. In an action by a brakeman, under the Federal Employers’ Liability Act and under the Federal Safety Appliance Act and the amendments, to recover for injuries alleged to have been caused by his falling and being run over through defects in the fastening of a hand brake which he was releasing, a finding that evidence contained in a statement made by plaintiff while he was in the hospital after an amputation made necessary by the accident and while he was still suffering from bruises caused by the fall was not in conflict with his statement on the stand concerning the manner in which the accident occurred, held proper.
    9. Master and servant, § 823*—when instruction as to evidence is not erroneous. In an action to recover under the Federal Employers’ Liability Act and under the Federal Safety Appliance Act, an instruction which requires of the jury “a fair and candid consideration of all the 'facts and circumstances shown by the evidence in this case,” and requires that plaintiff, to recover, shall prove his case by the greater weight of the evidence as charged in the declaration, is not subject to the criticism that it does not require the jury to confine its consideration to the evidence or to find the facts from the evidence.
    10. Instructions, § 151 *'—when instruction is properly refused. A requested instruction restating, in slightly different language, another instruction given at the same party’s request is properly / refused.
    11. Instructions, § 58*—what instruction as to evidence is erroneous. An instruction, asked by defendant, to the effect that there can be no recovery under the circumstances stated therein is properly refused where all stated in the instruction may be true and yet plaintiff have a cause of action.
    12. Instructions, § 81

      —when instruction is properly refused as singling out evidence. An instruction requested by defendant which singles out one phase of the evidence and states that it does not entitle plaintiff to recover is properly refused.
    13. Damages, § 128*—when verdict is not excessive. A verdict of $11,000 is not excessive where plaintiff, who was 32 years old, in addition to being severely bruised and undergoing much pain and suffering, had to have his foot amputated above the ankle joint and was deprived for the rest of his life of his accustomed means of obtaining a livelihood.
    Error to the Circuit Court of Peoria county; the Hon. John M. Niehaus, Judge, presiding. Heard in this court at the April term, 19¿0.
    Affirmed.
    Opinion filed July 16, 1920.
    Rehearing denied October 12, 1920.
    Stevens, Miller & Elliott, for plaintiff in error.
    Daily, Miller, McCormick & Radley and Morse Ives, for defendant in error.

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

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

On December 21, 1917, John E. Swanson was working for the Peoria & Pekin Union Railway Company as a yard switchman and handling cars at the yards in Peoria in interstate commerce, and in the night of that day fell from the top of a freight car while operating a brake thereon and his right foot was crushed and amputation above the ankle became necessary. He brought this suit against the railway company and charged it with responsibility for the accident, and on a jury trial had a verdict for $15,000. On a motion for a new trial, one of the grounds of which was that the verdict was excessive, the trial judge required a remittitur of $4,000, and entered a judgment against defendant for $11,000. This is a writ of error sued out by defendant to review the record.

Defendant contends that there is a fatal variance between the declaration and the proofs. The declaration was in two counts and each count charged that the railway company was engaged in interstate commerce at the time in question, and employed plaintiff as a brakeman and switchman in a certain yard of defendant, and that in the due course of his employment he was releasing a hand brake on a freight car moving with other cars in said yard; that defendant negligently hauled upon its line a freight car with its hand brake in a dangerous, insecure and inefficient condition, so that, while plaintiff was working as aforesaid, the wheel and staff of said hand brake suddenly moved sideways and by reason thereof plaintiff lost his balance and was thrown and fell to the ground there and was run over by one of said cars and greatly injured, etc. The language of the two counts differs but slightly. Defendant contends that the brake was not defective; that the defect was in the sill step or platform upon which plaintiff stood while operating the wheel of the brake and, as no defect in the platform or sill step is averred, therefore plaintiff could not recover under this declaration. The suit is under the Federal Employers’ Liability Act and the Federal Safety Appliance Act and its supplements, especially the act of April 14, 1910, which reads in part as follows: “All cars must be equipped with secure sill steps and efficient hand brakes.” To sustain its contention here defendant in its brief quotes at length from what it claims to be an order of the Interstate Commerce Commission with reference to hand brakes on cars; and it argues that in that order the hand brake is treated separately from the various other appliances designated for use in connection with a hand brake on freight cars; and defendant argues that as the Interstate Commerce Commission divided the entire brake and apparatus connected therewith into many separate parts and treated the brake separately from the other appliances connected therewith, therefore in this suit the language of the declaration must be applied to the brake and to nothing else, and that the proof shows that the brake was not defective and therefore plaintiff must fail. This order of the Interstate Commerce Commission was not offered in evidence and is not in the bill of exceptions nor in the record before us, and our attention is not drawn to any place where this order was called to the attention of the trial court. Said order is not a statute passed by Congress, and we are of opinion that it could not be availed of by defendant without being in some way brought to the attention of the trial court, and that therefore it is not available to defendant here.

As above stated, the language of the declaration was that while plaintiff was working with the wheel and staff of the hand brake, the wheel and staff of the hand brake suddenly moved sideways and caused plaintiff to lose his balance and fall. Plaintiff testified that, as he released the pawl which held the brake, the platform was loose and the brake shaft wobbled and threw him to the ground; that the brake shaft went to one side about 2 feet out of line. Nelson, a half brother of plaintiff and a car inspector of defendant, heard of the accident during the night and the next morning went to the car in question and examined its hand brake. He testified that the brake shaft went through the platform; that the platform was split in two places; that there were two splits through the board, each split clear through, leaving the board in three pieces, completely severed; that the middle piece was loose and the brake staff went through it, and at the platform it could be moved about 3 inches to the side, and that at the top of the shaft the wheel would move 18 inches or 2 feet out of perpendicular; and that it was an old break or crack. Sheffler, a witness for plaintiff, testified that he examined the car the next morning; that he found that the shaft passed through the step, that the step was cracked clear across its length, that the plank was movable and the shaft with it, that the shaft moved sideways 2 or 3 inches at the point where the shaft came through the plank, and that the wheel would probably move a foot. Burke, a witness for defendant and its general car foreman, inspected this car the next morning and he testified there was a split through .the board which struck the outer edge of the brake-staff hole and extended through its entire length, that it was split in three pieces and that a step which moved two or three inches is not in good repair, and that this was an old car. Supensld, an inspector for defendant, and its witness, examined the car with Burke and testified for defendant that the brake platform was cracked from end to end in a wedge shape, that there was a movement of 2 or 3 inches at the platform and he estimated that the wheel would move 6 inches out of perpendicular. Though these witnesses for the defendant so testified, they also claim that the brake was in good condition. The jury were warranted in finding from the evideneé that this was an old car; that its. brake platform was cracked and that the cracks were old; that because of the cracks a brake shaft at the platform would move 2 or 3 inches out of perpendicular and that such a movement would cause the wheel at the top of the brake to move sideways from 6 inches to 2 feet. Defendant’s contention is that the requirement of the statute that the cars must be equipped with sufficient hand brakes does not cover this case. We think what was said in Armitage v. Chicago, M. & St. P. Ry. Co., 54 Mont. 38, 166 Pac. 301, by the Supreme Court of Montana is much in point. Speaking of the federal act there in question, the court there said:

“The act clearly requires that the carrier shall not only furnish the necessary parts of the braking apparatus, but it shall furnish them so properly ádjusted and connected that the brake will be efficient in the condition in which the ear is turned over to the employee. To make a more concrete application: The absolute duty was imposed upon defendant to furnish this car with the several parts of the hand-braking appliances so securely connected that the brakes could be set with safety in the ordinary routine of a brakeman’s duties.”

We are of the opinion that a hand brake, in order to be efficient and in order that it may be safely operated by the brakeman, must be so attached to the car that it will remain upright, and that a brake which is so attached to the car that the wheel, while being operated, is liable to suddenly move sideways from 6 inches to 2 feet is not an efficient hand brake, and that the evidence we have referred to and which is much more full in the record than we have stated, warranted the jury in finding for plaintiff under this declaration, so far as the question of variance is concerned, even if the order of the Interstate Commerce Commission be held applicable.

That this matter was under the control of Congress is held in Texas & Pac. Ry. Co. v. Rigsby, 241 U. S. 33. The liability of the employer under the federal acts referred to is stated in Union Pac. R. Co. v. Huxoll, 245 U. S. 535, and it was there said: “If the failure to have the power brake in working order contributed ‘in whole or in part’ to cause the death of deceased, the plaintiff in error would be liable in damages, and neither contributory negligence nor assumption of risk could avail the company as a defense or in diminishing the damages.”

After the accident plaintiff was taken to a hospital and his foot was amputated above the ankle joint. He obviously suffered great pain. He was also severely bruised otherwise by the fall. In this condition he was visited by an employee of defendant, who interrogated plaintiff and wrote down what plaintiff said and procured plaintiff to sign it. Defendant introduced that statement in evidence and claims that it differs from plaintiff’jj testimony. Plaintiff testified that he was suffering so severely that he knew very little of what was said or written, and that he does not remember what he said. A careful reading of the entire statement shows that he did say that the brake platform on which he stood seemed to be slightly loose or cracked, and that there was some motion in the platform. He had been at the brake but an instant when he fell. He was severely injured and was taken to a hospital and suffered a.n amputation with its attendant distress. It is not strange if he was confused and uncertain when he was so interrogated. If the statement taken in connection with the circumstances under which it was procured has any tendency to contradict plaintiff’s testimony, defendant had the advantage of that with the jury. Certainly plaintiff was well supported by other witnesses, and the most that can fairly be said is that the person who wrote the statement did not fully draw out from plaintiff the circumstances which would incriminate defendant.

Plaintiff was somewhat confused in testifying where he stood and which way he faced just before he fell. Defendant contends that if his first testimony on that subject is true he could not have fallen because of a defect in the brake, for then he would have fallen on the other rail, instead of the one on which his foot was crushed. Defendant had the full advantage of this apparent discrepancy on cross-examination and before the jury. The verdict, approved by the trial judge, must be regarded as correctly disposing of this contention adversely to defendant.

Defendant contends that the court erred in giving the fourth instruction requested by plaintiff, because it does not require the jury to Confine its consideration to the evidence or to find the facts from the evidence. The instruction required of the jury “a fair and candid consideration of all the facts and circumstances shown by the evidence in this case,” and required that the plaintiff, in order to recover, should prove his case by the greater weight of the evidence as charged in the declaration. We fail to see any ground for the criticism. The court refused four instructions requested by defendant. The first was a restatement, in slightly different language, of the fifth instruction given for defendant. The second said there could be no recovery under the circumstances stated in that instruction, but in fact all therein stated might be true and yet plaintiff have a cause of action. The third singled out one feature of the evidence and said that it did not entitle plaintiff to recover. Such instructions are calculated to mislead the jury, and have been frequently condemned. Weston v. Teufel, 213 Ill. 291. The fourth was covered by given instructions.

The damages for which judgment was rendered are not excessive. Not only was the pain and suffering to be considered, but also the fact that the plaintiff was deprived for the rest of his life of his accustomed means of obtaining a livelihood. He was about 32 years old when injured. In a case of a somewhat similar injury, a verdict for $25,000 was reduced by the trial court to $15,000, and the judgment was held not excessive in Chicago & G. T. Ry. Co. v. Spurney, 97 Ill. App. 570, and 197 Ill. 471.

The judgment is therefore affirmed.

Affirmed.

Niehaus, J., took no part.


text:
    Dora Sterenberg, Administratrix, Plaintiff in Error, v. D. E. Beach, Defendant in Error.
    Gen. No. 6,807.
    1. Pleading, $ 100

      —when demurrer is overruled by general issue. A demurrer to a count of a declaration is overruled by the plea of the general issue.
    2. Costs, § 64*—what is effect of judgment for costs. A judgment for costs in favor of defendant is not a judgment in bar, and where objection is made on that ground, the record will be returned by the Appellate Court for the entry of a proper judgment.
    3. Appeal and ebbob, § 422*—when lease is not part of declaration and cannot be considered oh appeal. In assumpsit to recover damages for ousting plaintiff from premises which she claims to hold by virtue of a lease, a copy of the lease attached to the declaration forms no part of the declaration though so treated by counsel on appeal, and where there is no bill of exceptions, the lease as a whole is not before the Appellate Court nor subject to discussion, but that court is confined to consideration of so much of the lease as is contained in the declaration.
    4. Appeal and ebbob, § 563*—when exception is unnecessary. It. is never necessary to save an exception to a ruling on demurrer.
    5. Appeal and ebbob, § 426*—what need not be contained in record. While one whose demurrer has been overruled must elect to stand by it, he is not required to have the record show that he so elects.
    6. Appeal and ebbob, $ 1307*—when party is presumed to stand by overruled pleading. If one whose demurrer is overruled takes no steps from which a waiver of his demurrer is to be presumed, such as asking to plead over, he is presumed to stand by the overruled pleading, and may urge the incorrectness of the ruling in a court of review.
    7. Pleading, § 117*—failure to deny as admission. All facts alleged in a law pleading and not traversed in the reply thereto are impliedly admitted.
    8. Fbauds, Statute oe, § 96*—what is effect of part performance. While the doctrine that part performance of a contract will take a case out of the Statute of Frauds in a case in' which such statute is pleaded as a defense to an action on an oral contract is unknown to courts of law, part performance will have such effect, under certain circumstances, in a shit in equity.

      9. Frauds, Statute of, § 104

      —what part performance is insufficient to take case out of statute. In assumpsit to recover damages for ousting plaintiff from possession of land claimed to be held under a valid oral lease, to which defendant pleaded the Statute of Frauds, undenied allegations of the declaration of part performance by taking possession, plowing, fertilizing, etc., held not to take the case out of the Statute of Frauds.
    10. Landlord and tenant, § 431*—when covenant to renew is invalid as indefinite. The provision in a lease that “the lease is to be extended if both parties agree,” is too vague and indefinite to constitute a valid covenant for renewal, and it is only in case that they afterwards agree to renew that there can be a renewal.
    11. Landlord and tenant, § 431*—what is effect of covenant to renew “if both parties agree.’’ The provision in a lease that it is “to be extended if both parties agree,” does not continue the lease in force after the expiration of the original term so as to prevent the Statute of Frauds from applying against the lessee, no written agreement for renewal having been entered into.
    12. Appeal and error, § 1309*—what will be presumed as to sufficiency of evidence. In assumpsit to recover damages for ousting plaintiff who claimed to hold under a valid agreement, in which she files the common counts and the plea of the Statute of Frauds is sustained as a defense, if the plaintiff is entitled to recover for work alleged to have been done on the property in reliance on the oral agreement, she may prove such claim under the common counts or the plea of set-off, and where the record does not contain such proof, the Appellate Court must assume that it was either insufficient or was overcome.
    Error to the Circuit Court of Whiteside county; the Hon. Frank D. Ramsay, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed July 16, 1920.
    Rehearing denied October 12, 1920.
    A. M. Blodgett, for plaintiff in error.
    Myron G. Rogers, for defendant in error.

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

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

   Mr. Presiding Justice Dibell

delivered the opinion of the court.

Dora Sterenberg, as administratrix of the estate of her deceased husband, Frederick G-. Sterenberg, brought this suit in assumpsit against D. E. Beach to recover damages for ousting her from certain premises which she claimed to be entitled to hold by-virtue of a valid lease between Beach and her husband. She filed a special count upon the alleged agreement and the common counts. Defendant pleaded nonassumpsit to the entire declaration and also a demurrer to the first count, which of course was overruled by the plea of the general issue. Defendant also filed a plea of the Statute of Frauds and also a plea of set-off made up of the consolidated common counts. Plaintiff demurred to the plea of the Statute of Frauds, which was overruled. The parties waived a jury and the cause was tried. The court found for defendant as to plaintiff’s alleged causes of action and for plaintiff as to defendant’s off-sets, and entered a judgment for costs in favor of defendant, to be paid in due course of administration. No bill of exceptions was taken. Plaintiff has sued out this writ of error to review said record.'

Several preliminary matters must be noticed. The state of the record left defendant entitled to a judgment in bar. No judgment in bar was entered. Town of Magnolia v. Kays, 200 Ill. App. 122. If this point had been raised by counsel, it would have been our duty to return the record to the court below for the entry of a proper judgment. Where a defendant in an action at law becomes entitled to a judgment in bar, his attorney ought to see to it that such a record is written. Whether it be the fault of the brevity of the minutes kept by or under the direction of the court, or of the carelessness of the clerk, such defective judgments seem to be increasingly frequent.

A copy of the lease relied upon in the first count of the declaration was attached to the declaration. The terms of the lease in the matter here in controversy as pleaded in the first count and' as shown in the copy do not entirely agree. Counsel have argued this case as if the copy were part of the record. It is no part of. the declaration, and as there is no bill of exceptions the lease itself is not before the court nor subject to discussion. The only question presented by this record is whether the court erred in overruling the demurrer to the plea of the Statute of Frauds, and the first count, of the declaration is the only part of the record at which the court can look for the terms of the lease.

Defendant claims that the ruling of the demurrer cannot be questioned here because the record contains no exception thereto. It is never necessary to save an exception to a ruling on demurrer. People v. Powell, 274 Ill. 222. Defendant also contends that as the record does not disclose that plaintiff elected to stand by the demurrer to the plea, plaintiff cannot avail of that demurrer. The party whose demurrer has been overruled must elect to stand by it, but he is not required to have the record show that he elects to stand thereby. If he takes no steps from which a waiver of his demurrer is to be presumed, such as asking leave to plead over, he is presumed to stand by his pleadings which have been overruled, and he may be heard to urge the incorrectness of that ruling in a court of review. Bennett v. Union Cent. Life Ins. Co., 203 Ill. 439.

The first count set up a written lease between defendant and plaintiff’s husband for the premises for the term of one year, from the first day of March, 1916, to the first day of March, 1917, and averred that the lease contained a provision that it “be extended if both parties agree for a longer term of one year, to-wit: From the first day of March, 1917, to the first day of March, 1918.” The count averred that plaintiff’s husband took possession of the premises on March 1, 1916, and continued in uninterrupted occupancy thereof until his death on December 2, 1.916, and that he kept all the agreements and covenants of the lease on his part to be performed. The count further averred that about August 1, 1916, defendant and plaintiff’s husband agreed that said lease be extended for a period of one year after March 1, 1917, “and according to the terms, tenor and effect thereof”; and that in pursuance of said extension plaintiff’s husband prepared the land for the farming season of 1917 by plowing part of the ground and hauling out and spreading manure over the premises, and did divers other things the benefit of which he was to receive after March 1, 1917. The count further averred that after the death of her husband on December 2, 1916, she was appointed and qualified as administratrix of his estate, and that in January, 1917, defendant refused to keep said agreement and so notified the plaintiff and ousted her from the premises and let ,them to another for a term to begin March 1, 1917. The plea of the Statute of Frauds set up that this agreement was not in writing as required by the statute, but did not deny the plowing and other things alleged to have been done by plaintiff’s husband in reliance upon that agreement. All facts alleged in a law pleading and not traversed in the reply thereto are impliedly admitted. Capital City Mut. Fire Ins. Co. v. Detwiler, 23 Ill. App. 656; Hanchett v. Buckley, 27 Ill. App. 159; Williams v. Boyden, 33 Ill. App. 477; McNeal v. Calkins, 50 Ill. App. 17; Morrill v. Baggott, 57 Ill. App. 530; Smith v. Bellrose, 200 Ill. App. 368; and People v. Hanson, 150 Ill. 122, where the point is not referred to in the headnotes. Perhaps the rule is most succinctly stated by McAllister, J., in Capital City Mut. Fire Ins. Co. v. Detwiler, supra, as follows. “Whatever is traversable and not traversed is admitted.” Therefore this plea admitted the allegations of work done on the land under the oral agreement to extend it for one year, and if these allegations take the case out of the Statute of Frauds, then the special plea was not good.

The doctrine that part performance of a contract will take a case ont of the Statute of Frauds, where the Statute of Frauds is pleaded as a defense to an action upon an oral contract, is unknown in courts of law, but under certain circumstances such part performance will have that effect in courts of equity. Warner v. Hale, 65 Ill. 395; Wheeler v. Frankenthal, 78 Ill. 124; Creighton v. Sanders, 89 Ill. 543; Dougherty v. Catlett, 129 Ill. 431; Chicago Attachment Co. v. Davis Sewing Machine Co., 142 Ill. 171; Leavitt v. Stern, 159 Ill. 526. Several of the above cases concerned leases of real estate. But counsel for plaintiff says he relied upon the decision of this" court in Doubet v. Doubet, 186 Ill. App. 316, where, on pages 323 et seq., we discussed the question what part performance will take an oral lease of real estate out of the Statute of Frauds, and he says that case was exactly like this. That case was in equity, and there were special equitable considerations which lead to the conclusion there reached. The authorities above cited show that in equity part performance may relieve an oral lease of' land from the operation of the Statute of Frauds. "We had no occasion there to discuss the question whether, in an action at law,- part performance had such a result. We therefore conclude that the allegations in the declaration, not denied by the special plea and therefore admitted, did not take the case out of the Statute of Frauds.

Plaintiff seems to claim that the written lease was really in force for the second year upon this oral agreement being made. We are of opinion that the words in' the lease as alleged in the declaration, “The lease to be extended if both parties agree,” are too vague and indefinite to constitute a valid covenant for renewal. The lease gave no right to a renewal. It was only in case the parties afterwards agreed to renew it that there could be a renewal. Streit v. Fay, 230 Ill. 319; La Salle Theatre v. Taft, 156 Ill. App. 356. We therefore conclude that the oral agreement was void because of the Statute of Frauds, and that it was not taken out of the statute by the part performance alleged in the first count of the declaration. The court therefore did not err in overruling the demurrer to said plea.

If plaintiff had any right to recover from defendant for the work alleged to have been done on said farm by her husband in reliance upon said oral agreement, she could make proof of such claim under the common counts in her plea of set-off, and if she offered such proof, which is not in the record, we must assume that it was insufficient or it was overcome, and that the court decided correctly upon that subject.

The judgment is therefore affirmed.

Affirmed.


text:
    Fred H. LaRocque, Conservator, Appellee, v. Martin Keigher, Appellant.
    Gen. No. 6,823.
    1. Compbomise and settlement, § 11

      —settlement of will contest. The law favors the settlement of will contests and family disputes.
    2. Compromise and settlement, § 11 *^-what is effect as to consideration given. Where an heir in good faith threatens to bring an action to contest the will and a compromise is entered into, in the absence of fraud or misrepresentation, a note given in furtherance of the compromise is not void for want of consideration, and the court will not inquire whether the claim of the party threatening the contest was well or ill founded.
    3. Compromise and settlement, § 11*—what is effect as to note given to settle will contest. A note given an heir in settlement of a threatened will contest, held, to have been given pursuant to a settlement made before the expiration of the time to contest, though the note was not, in fact, given until after the time had expired.
    4. Compromise and settlement, § 11

      —when note given in settlement is supported by consideration. An agreement to pay an heir threatening to contest the will a certain sum in settlement of the contest is sufficient consideration for a note though the note is for less than the agreed sum.
    Appeal from the Circuit Court of Kankakee county; the Hon. Arthur W. De Selm, Judge, presiding. Heard in this court at the April term, 1920.
    Affirmed.
    Opinion filed July 16, 1920.
    Rehearing denied October 12, 1920.
    Granger, Dougherty & Nourie, for appellant.
    Arthur B. Cowing and H. H. Whitmobe, for appellee.

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

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

   Mr. Justice Heard

delivered the opinion of the court.

This is a suit on a promissory note given by appellant to Katherine Keigher. While the suit was pending appellee was appointed conservator for Katherine Keigher. Appellant pleaded want of consideration. A trial resulted in a judgment for $2,499 against appellant, from which judgment this appeal was taken.

Bernard Keigher, father of Katherine Keigher and appellant, died in August, 1903, testate. His will was probated in the county court of Kankakee county on September 28, 1903. By the will he left his property to his widow and his children other than Katherine, to whom he gave nothing. Katherine was dissatisfied and threatened to bring suit to contest the will and consulted lawyers with that end in view. Family conferences were had and after the expiration of the time for bringing suit to contest the will, appellant executed the note in question.

It is contended by appellant that the note was given for love and affection or as a gift and therefore not binding on the maker. We are of the opinion that the court was warranted in finding that the note was not given for love and affection or as a gift, but as the consummation of a compromise of Katherine’s threatened suit.

It is contended by appellant that there is no evidence in the record showing that there ever was any ground for a contest of the will of Bernard Keigher. The law favors the settlement of will contests and family disputes and where an heir in good faith threatens to bring an action to contest a will and a compromise is entered into, in the absence of fraud or misrepresentations a note given in the furtherance of the compromise is not void for want of consideration and the court will not inquire whether the claim of the party threatening the contest was well or ill founded. 1 Chitty on Contracts, page 46; McKinley v. Watkins, 13 Ill. 140; Sigsworth v. Coulter, 18 Ill. 204; Miller v. Hawker, 66 Ill. 186; Honeyman v. Jarvis, 79 Ill. 318; Kronmeyer v. Buck, 258 Ill. 586. Probably the language most often quoted in the decisions on this subject is found in Stapleton v. Stapleton, 1 Atk. 12, where it was said: “An agreement entered into upon a supposition of a right, or of a doubtful right, though it after comes out that the right was on the other side, shall be binding, and the right shall not prevail against the agreement of the parties, for the right must always be on the one side or the óther, and therefore the compromise of a doubtful right is a sufficient foundation of an agreement. ’ ’

Appellant further contends that even if the note were given in settlement of a threatened contest of the will, it cannot be enforced as the time for contesting the will had expired prior to the giving of the note.

While the note in question was given after the expiration of the time for commencing a contest, we are of the opinion that the evidence in the case warranted the court in finding that it was given in pursuance of a settlement made prior to the expiration of the time for contest, whereby appellant agreed to pay $2,500 to Katherine. Such agreement to pay $2,500 would be a sufficient consideration for the note in question notwithstanding the fact that the note was for a lesser amount than agreed upon.

The judgment is affirmed.

Affirmed.