text:
    The Order of Columbian Knights, Plaintiff in Error, v. Matilda Schwemm, Defendant in Error.
    Gen. No. 16,192.

      Insurance—when suicide established. Held, notwithstanding a coroner’s verdict finding that the insured came to his death accidentally, a verdict not otherwise supported will be set aside and a finding of the fact of suicide will be entered where the evidence clearly demonstrates -that such was the cause of the death of the insured.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of fact and judgment here.
    Opinion filed February 21, 1912.
    Charles A. Warren, for plaintiff in error.
    William S. Newburger, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In December, 1902, plaintiff in error issued to Charles F. Schwemm, the husband of defendant in error, its benefit certificate for $1,000, payable to defendant in error. Schwemm died December 9, 1908, and plaintiff in error, having refused to pay the full amount of said certificate, upon the ground that the insured came to his death by suicide, suit was instituted against it in the Municipal Court to recover the same. There have been three trials of the case and three verdicts against plaintiff in error for the full amount of the certificate. The first two verdicts were set aside, but the last verdict was permitted to stand and judgment was entered thereon for $1,000.

Section 333 of the general laws of plaintiff in error, which, it is conceded, entered into and became a part of the contract of insurance, is as follows:

“Sec. 333. Suicide.
It is particularly stipulated that death by suicide,, whether the member be sane or insane, is a risk which this society does not assume, and which it expressly declares is not contemplated or covered by the contract between itself and the member; but, as a benefit which the order bestows upon the beneficiary as. carrying out its charitable objects and purposes, it will pay to such beneficiary of a member dying by suicide after three years from the date of such member’s initiation, a sum of money equivalent to one-half of the amount which the beneficiary would have been entitled to receive had the member died a natural death or otherwise than by his own hand or act; and in the event of such death by suicide, whether the member be sane or insane, within said period of three years, there shall be payable to the beneficiary a sum of money equal to all the assessments paid by the member to this society and no more. ’ ’

The only question presented for our consideration is whether or not the insured came to his death by suicide.

It is uncontroverted that on the day preceding his. death the insured drank chloroform, and that the direct cause of his death was poisoning by the chloroform so drunk by him.

As bearing upon the question of the cause of the insured’s death, the only evidence in the record offered on behalf of defendant in error is the verdict of the coroner’s jury finding that the insured, “came to his death * * * from chloroform poisoning; from the evidence offered^ the jury are of opinion that this is an accidental case, the deceased using the said drug on October 8, 1908, as was his custom for the alleviar tion or with the view of stopping a ease of tooth ache, from which he was suffering at the time.”

On behalf of plaintiff in error, the competent evidence in the record is substantially as follows:

John Doody, a police officer, testifies:

“On October 8, 1908, I was stationed at Randolph and Michigan avenue. I met Charles F. Schwemm on October 8, 1908, at the corner of Randolph and Michigan avenue, about 3:15 or 3:20 in the afternoon. He was sitting on a stone step on the sidewalk. I went and asked what was the matter. I thought, perhaps, he was under the influence of liquor. He says, ‘Officer, I am after taking a dose of poison.’ I said, ‘Where is the bottleV He said: ‘I threw it over the viaduct.’ He said: ‘I am tired of living and I want to do away with myself.’ He didn’t state how much he took. He said he had taken poison. I wanted his name and where he lived. He said: ‘Officer, don’t ask me.’ He pulled a card out of his pocket. He said: ‘Notify this man, he is a friend of mine; I am liable to drop in five minutes. ’ It was an undertaker ’s card. I told him to put it back in to his pocket and see what the wagon men would do. Then I went to the station precinct patrol box and called a wagon in a hurry. We put Schwemm in the wagon with officer Flannigan.”

Charles P. Flannigan, a police officer, testifies:

“I saw Charles F. Schwemm on the day in question that he was taken to the county hospital, the 8th of October. It was in the afternoon, about 3:20, the police patrol wagon received a call to come to Randolph and Michigan avenue and I responded. I had charge of the patrol wagon. Arriving there, I found the deceased in charge of Officer Doody. He told me that the man had taken chloroform and I placed him in the patrol wagon and ordered the driver to go to the county hospital. On the wav to the hospital I asked what the matter was. He said: ‘I took chloroform.’ I asked him why he took it; he said he wanted to die. At first he refused to tell me; he didn’t want to tell me what the trouble was. He gave me a card and wanted me to notify an undertaker. I told him that he was not going to die; that he didn’t need an undertaker; that he needed a doctor; so I proceeded to the county hospital and delivered him there. He said it was a small bottle of chloroform, and that he threw it over the Illinois Central viaduct. We hurried him to the County Hospital and turned him over to the doctors in the receiving ward.”

Edward Flannigan, a police officer, testifies:

“I met Charles F. Sehwemm on October 8 or 9 at the icorner of Randolph and Michigan avenue. We took him to the County Hospital. He said he had taken poison—said he had taken chloroform. There was some remark that he had taken two ounces, but I don’t know that he said so. He said he threw the bottle over the viaduct. That was about 3:15 or 3:20 p. m. I did not assist Sehwemm to the patrol wagon. I was just in the wagon. Officers Flannigan and Dugan took him to the patrol wagon. He sat in the wagon on the side. I got off at Paulina street. I was not on duty. I did not converse with Sehwemm on the way to the hospital, but .1 heard him and Officer Flannigan talk. Flannigan asked him what was the matter. Pie said he had taken chloroform; that he was tired of living and wanted to die.”

William H. Dugan, a police officer, testifies:

“I heard Sehwemm say in the wagon that he took poison, drank chloroform. He said he wanted to •die. ’ ’

Dr. George T. Johnson, an attending physician at the Cook County Hospital, testifies:

“1 saw Charles F. Sehwemm in Ward 26 of the County Hospital on the date before his death, about the middle of the afternoon. He was brought to the ward in a wheel «hair and Dr. Courtenay and I were up there at the time. He was brought into the examining room and was asked what the trouble was. He said he had taken chloroform, about an ounce and a half. His breath smelled very strong of alcohol, more of alcohol than of chloroform. I asked him if he had been drinking and he said he had been drinking quite heavily of late. Preparations were made to. wash out his stomach and this was done and he was put to bed and medicine given him. The usual treatment in such cases was given him. Dr. Courtenay was present. The stomach pump was used. His stomach was washed out. He objected to the use of the stomach pump.”

Dr. Cordon Courtenay, also an attending physician, at the same hospital, testifies:

“I met Charles F. Sehwemm on the afternoon of October 8th in the county hospital. The ward was. shared by Dr. Johnson and Dr. Wellington, on one service, and myself and a senior, on the other, and T happened to be in the ward at the time attending to. my work when Sehwemm was brought in. He was taken into the examining room and I went in to assist Dr. Johnson. I helped to pass the stomach pump upon Sehwemm and helped to treat him for chloroform poisoning. When I went into the room, I asked what was the matter with the man, and he and Dr. Johnson may have said it about the same time, said" that he had taken chloroform. Sehwemm said so too; said he had taken an ounce and a half. He said he wanted to die; that he was tired of living. I helped Dr. Johnson and the lady nurse to pass the stomach pump on him and after that he was taken in and put to bed. I said he ought to have the stomach pump passed to relieve him. He said he didn’t want it, he wanted to die.”

A mere cursory examination and consideration of the evidence irresistibly compels us to the conclusion, that the insured icame to his death by suicide, and it is incomprehensible how three juries could have arrived at any other conclusion, save upon the theory that they were improperly influenced by the wholly unwarranted attack on" plaintiff in error’s witnesses.

An effort is made on behalf of defendant in error in this court to discredit the witnesses for plaintiff in error by showing that they had been paid by plaintiff in error for their attendance as witnesses upon the previous trials of the case, but the evidence discloses that the amount so paid said witnesses, was not more than they were legally entitled to receive for the number of days they were actually in attendance as such witnesses.

The judgment is reversed with a finding of fact to be incorporated in the judgment of this court, that Charles F. Schwemm came to his death by suicide, and upon such finding of fact judgment will be entered in this court in favor of defendant in error and against plaintiff in error for $500, being the amount which defendant in error, by reason of the death of the insured by suicide, is entitled to recover under the contract of insurance sued on.

Defendant in error will pay the costs in this court.

Reversed with finding of fact, and judgment here.


source: Caselaw Access Project

author: Mr. Presiding Justice Baums

license: Public Domain

text:
    The People of the State of Illinois, ex rel. Charles L. Hinton, Defendant in Error, v. J. P. E. Heintz, Plaintiff in Error.
    Gen. No. 16,208.

      Contempt—failure to obey subpoena duces tecum. In the absence of a showing of the materiality of the books, documents and papers designated, a party failing to obey a subpoena duces tecum cannot be adjudged in contempt and punished therefor.
    Error to the Municipal Court of Chicago; the Hon. Shebidan E. Pbt, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed February 21, 1912.
    I. W. Foltz, for plaintiff in error.
    ISTo appearance for defendant in error.
   Mr. Presiding Justice Baums

delivered the opinion of the court.

On May 13, 1909, Charles L. Hinton, recovered a judgment in the Municipal Court against The Heintz Pepsin Food Company, an Oklahoma corporation, for $216.25.

Thereafter, in a certain proceeding supplemental to said judgment, a subpoena duces tecum was issued out of said court on June 12,1909, and served on the same day upon the plaintiff in error, J. P. E. Heintz, commanding him to attend before said court on June 26th following, to testify and that he also diligently search for, examine and inquire after and bring with him and produce at said time and place the certain stock book of the Heintz Pepsin Food Company, and also the cash book, ledger and all other books showing cash receipts and disbursements and shares of stock issued, also the minute book or record of said corporation showing the minutes of meetings of directors and stockholders, together with all copies, drafts and vouchers relating to the said documents, and all other documents, letters and paper writings whatsoever, that can or may afford any information or evidence in said cause.

June 26, 1909, upon motion of the plaintiff in said judgment, a rule was entered on plaintiff in error “to show cause for failure to produce in court upon trial of said cause in supplemental proceedings the books and documents mentioned and described in the subpoena duces tecum, duly served on said respondent J. P. E. Heintz,” which said rule was made returnable in said court on July 10th- following, and was then and there served upon plaintiff in error. After two postponements a hearing was had on July 24, 1909, wherein, after the examination of plaintiff in error, he was adjudged to be in contempt of court for his wilful, knowing and malicious removal of the corporate records and documents of said corporation from the jurisdiction of the court and without the state and for his failure to produce said corporate books, records and documents before the court, and for such contempt was fined $235.25, which he was directed to pay to the bailiff of the court on or before July 29, 1909, and in default of such payment, was ordered to be committed to the county jail for a period of six months. . This writ of error is prosecuted to reverse such order and judgment.

The evidence taken upon the hearing discloses that plaintiff in error was the president of the Heintz Pepsin Food Company, and that H. W. Pentecost and G. Y. Pattis on, residing in Guthrie, Oklahoma, were stockholders and directors of said corporation; that said corporation was not authorized to do business in this state; that on May 20, 1909, plaintiff in error sent his resignation as president of said corporation to said Pentecost by mail, and also then advised him by mail that he has sent the books of said corporation to him at Gfuthrie by express; that all the books, documents and papers belonging to said corporation, in the custody and control of plaintiff in error were by him shipped by express to said Pentecost at Guthrie on June 4th, or 5th, 1909; that immediately after the service upon him on July 12, 1909, of the said subpoena duces tecum, plaintiff in error sought by correspondence with said Pentecost and Pattison to have said books,, documents and papers returned to him for the purpose of producing the same in court in compliance with said subpoena, but that said Pentecost and Patti-son refused to forward or deliver the same to him.

If the proceedings, upon which the judgment against plaintiff in error for contempt was predicated, had been strictly formal, it may well be doubted whether it was warranted by the facts disclosed in the record.

There is an entire absence of any showing in the record that the books, documents and papers designated in the subpoena duces tecum, were in any wise pertinent or material to the issues involved in the proceedings supplemental to judgment. In the absence of such showing, a party failing to obey a subpoena duces tecum cannot be adjudged in contempt and punished therefor. Bentley v. People, 104 Ill. App. 353; Same v. Same, 107 Ill. App. 245; Consolidated Coal Co. v. Jones & Adams Co., 120 Ill. App. 139.

The judgment of the Municipal Court is reversed.

Judgment reversed.


author: Mr. Presiding Justice Baume

text:
    August Krumholz, Defendant in Error, v. Jacob Tobias, Plaintiff in Error.
    Gen. No. 16,218.

      Contracts—when substantial compliance sufficient. A substantial compliance with a contract calling for the installation of a steam heating plant is sufficient to justify a recovery.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    Gtrossberg, Shaefeer & Kompel, for plaintiff in error.
    Charles M. Foell and Earl J. Walker, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In a suit brought by defendant in error against plaintiff in error in the Municipal Court to recover for labor performed and materials furnished in installing a steam heating plant, under the terms of a written contract entered into between the parties, a trial by the court without a jury resulted in a finding and judgment against plaintiff in error for $682.40, to reverse which judgment he prosecutes this writ of error.

The contract price of the job was $750. During the final installation .of the plant defendant in error was unable to procure the services of union workmen, and at the suggestion of plaintiff in error, Charles Kummerow was employed to finish the work, and entered into a contract with defendant in error to do so for $49. This contract was fully performed. The court found that defendant in error had in good faith complied with the terms of the contract in all material and substantial particulars, and was entitled to recover the contract price less the expense of installing certain radiation.

The doctrine of substantial compliance is too firmly established in this State to be overturned upon the authority of New York decisions to the contrary. Peterson v. Pusey, 237 Ill. 204.

The other questions involved are purely of fact, as to which the evidence is in hopeless conflict. We are unable to say that the finding of the trial court was against the clear preponderance of the evidence, and the judgment will be affirmed.

Judgment affirmed.


text:
    Fred Ponow, Defendant in Error, v. Fred Siller, Plaintiff in Error.
    Gen. No. 16,224.
    Appeals and errors—when sufficiency of evidence not presented for review. The sufficiency of the evidence to support the finding and judgment is not presented for review if neither the record nor the abstract of the same contains a statement of the facts appearing upon the trial or a stenographic report of the proceedings at the trial.
    Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeter, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    George E. Brannan and M. L. Igoe, for plaintiff in ■error.
    Prystalski & Dahlberg, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In this ease of the fourth class, a trial in the Municipal Court, by the Court without a jury, resulted in a finding and judgment against plaintiff in error for $109.75, to reverse which judgment he prosecutes this writ of error.

The assignments of error question the sufficiency of the evidence to support the finding and judgment, and the application by the court of the law to the facts in evidence.

Neither the record nor the abstract of the same contains a statement of the facts appearing upon the trial, or a stenographic report of the proceedings at the trial. The .questions involved are, therefore, not preserved for review and the judgment is affirmed.

Judgment affirmed.


text:
    William A. Doyle, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 16,239.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.

      Charles J. Gould and Paul W. Wemple, for plaintiff in error.
    Joseph J. Thompson, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

At about 9 o’clock in the forenoon on November 17, 1908, an automobile belonging to defendant in error was struck, at the intersection of 37th street and Went-worth avenue, by a street car of plaintiff in error, running north on Wentworth' avenue, and defendant in error thereafter brought suit against plaintiff in error in the Municipal Court to recover damages for injuries to the automobile. A trial by the court without a jury resulted in a finding and judgment against plaintiff in error for $226, to reverse which judgment this writ' of error is prosecuted.

It is practically conceded, and abundantly sustained by the evidence that as the icar approached and passed the intersection of 37th street, it was running at a speed of about 20 miles an hour and that the gong was not sounded. The negligence of plaintiff in error is clearly established.

A reversal of the judgment is urged solely upon the ground that Paul Baeck, the chauffeur employed by defendant in error, was guilty of contributory negligence precluding a . recovery.

There is evidence tending to show, and the court was warranted in finding, that when Baeck, who was alone in the automobile, driving west on 37th street, approached the intersection of Wentworth avenue, he stopped the automobile at or about the east crossing of said avenue, and sounded the horn; that from his then position in the automobile, a distance of 10 or 12 feet east of said crossing, he was unable to see a car approaching 37th street from the south, until it reached a point from 40 to 50 feet south of the south line of said street; that when the automobile came to a stop Baeck looked to the south and to the north on Went-worth avenue, and saw no car approaching the street intersection; that he then proceeded to drive the automobile west at a speed of about 5 miles an hour and thus almost reached the east rail of the north bound track, when the car suddenly appeared from the left and in front of him; that he immediately shut off the steam, applied the brakes and attempted to turn the automobile to the right, or north, to avoid impact with the car, but without avail. Upon this state of facts we are unable to say that the finding of the trial court, that Baeck was not guilty of contributory negligence, is against the manifest weight .of the evidence and unwarranted.

The judgment is affirmed.

Judgment affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. John V. Paul, Plaintiff in Error.
    Gen. No. 16,314.
    1. Information—effect of absence of endorsement. Seld, inferentially, that a plea of guilty waives the endorsement by a judge of the municipal court required by statute, as well as other irregularities.
    2. Information—when sufficiently charges crime of pandering. An information in the language of the statute is sufficient. Interpolating the name of the person charged to have been procured as an inmate for a house of prostitution does not operate to change the character of the offense named in the statute.
    3. Appeals and errors—what abstract should show. Upon appeal the abstract should show the matters upon which error is assigned.
    4. Judgment—when form of judgment in prosecution for pandering will not reverse. If the information charges pandering and a plea of guilty to such information is interposed, and the sentence imposed upon the defendant was the sentence authorized by the statute to be imposed upon conviction of the offense charged in the information, the fact that through carelessness the record is made to say that the defendant “is guilty of the criminal offense of causing, inducing, persuading or encouraging a female person to become an inmate of a house of prostitution on said plea of guilty,” does not change the effect of the plea of the defendant and the improper language of the judgment will be-rejected as surplusage.
    5. Municipal Court—what within criminal jurisdiction since amendment of 1907. The municipal court has jurisdiction in criminal cases-wherein the punishment upon conviction must be by both fine and imprisonment.
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    W. Gr. Anderson, for plaintiff in error.
    John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

To an information filed in the Municipal Court charging that plaintiff in error on or about November 6, 1909, “did knowingly and unlawfully procure, persuade and encourage a female inmate, to wit: Marie Thiel, for a house of prostitution,” the plaintiff in error entered his plea of guilty, and was thereupon sentenced to imprisonment in the house of correction for six months and to pay a fine of $300 and costs of prosecution.

The judgment of the court as entered recites in part that plaintiff in error “is guilty of the criminal offense of causing, inducing, persuading or encouraging a female person to become an inmate of a house of prostitution, on said plea of guilty.” This writ of error is prosecuted to reverse such judgment of conviction.

It is claimed that the information was sworn to by a private citizen and does not bear the endorsement of a judge of the Municipal Court, as provided by section 27 of the Municipal Court Act, as follows: “Before an information is filed by any person other than the Attorney General or State’s Attorney, one of the judges of the Municipal Court,shall examine the information and may examine the person presenting the same and require other evidence and satisfy himself that there is probable cause for filing the same and so endorse the same.” Predicated upon this iclaim it is insisted that the information was void and did not give the court jurisdiction of. the case. While we are disposed to hold that such irregularity, if it existed, was waived by plaintiff in error by his plea of guilty, the abstract of the record does not present the question for review. The abstract does not disclose that the information was verified by a private person, or that it was filed by any person other than Attorney General or State’s Attorney, or that it was not endorsed by a judge of the Municipal Court.

The abstract of the record is the pleading of the party seeking to have such record reviewed upon appeal or by writ of error, and the error relied upon to effect a reversal of the judgment must be made to appear by such abstract. Gage v. City of Chicago, 211 Ill. 109.

It is next urged that, “the information charges no offense and that it is repugnant to and at variance with the finding and judgment of the court.” The information charges that plaintiff in error did “procure, persuade and encourage a female inmate, to wit: Marie Thiel, for a house of prostitution.” The act in relation to pandering, provides in part as follows: “Any person who shall procure a female inmate for a house of prostitution * * * shall be guilty of pandering, and * * * shall be punished,” etc. B. S. (1909), 763.

The information is in the language of the statute, with the words, “persuade and encourage,” added, and the name of the female interpolated. It formally charges that plaintiff in error procured a female inmate, to wit: Marie Thiel, for a house of prostitution. Interpolating the name of the person icharged to have been procured as an inmate for a house of prostitution, did not operate to change the character of the offense named in the statute.

The record discloses that upon being arraigned to plead to the information, plaintiff in error pleaded thereto, that he was “guilty in manner and form as charged in said information.” The sentence imposed upon plaintiff in error is the sentence authorized by the statute to be imposed upon conviction of the offense charged ,in the information. The fact that through carelessness, inadvertence or ignorance the record is made to say that plaintiff in error “is guilty of the criminal offense of causing, inducing, persuading or encouraging a female person to become an inmate of a house of prostitution, on said plea of guilty,” does not change the effect of the plea of plaintiff in error, theretofore entered, to the information. The portion of the record last quoted may be wholly disregarded as surplusage. The judgment of conviction was upon the plea to the information alone, and is responsive to such plea.

It is finally urged that the Municipal Court is without jurisdiction in criminal cases wherein the punishment upon conviction must be by both fine and imprisonment, and People v. Dada, 141 Ill. App. 557, is cited in support of such position. The record involved in the Dada case was made prior to the amendment in 1907 of the Municipal Court Act, whereby the jurisdiction of said court was extended to include, all other criminal cases which the laws in force from time to time may permit to be prosecuted otherwise than on indictment by a grand jury.”

The jurisdiction of the Municipal Court in criminal prosecutions under the statute here involved was expressly recognized and upheld in People v. Braun, 246 Ill. 428, and People v. Jacobson, 247 Ill. 394.

The judgment is affirmed.

Judgment affirmed.


author: Mr. Justice Duncan

text:
    Angelina M. Beeson, Appellee, v. The H. W. Gossard Company, Appellant.
    Gen. No. 16,025.
    1. Slander and libel—how question of character of publication determined. In an action for libel it is always a question of law for the court, in the first instance, to determine whether or hot the proved publication is libelous. Where the whole publication is susceptible of only one meaning and is libelous per se, it is the duty of the court to instruct the jury that the publication is actionable, if made, and no evidence of a different intent is admissible in such case to prove the defendant’s innocence. It is also the province of the court to determine whether the language of the alleged libel is ambiguous, or double in meaning, one of which is libelous. In determining whether the alleged libel is double in meaning, one of which is libelous, the court must not separate it into parts, and construe each part separately, but must construe each part of the alleged libel in connection with all the rest of it. When the court has so determined that it will bear such double meaning, it is then the province of the jury to determine in which sense the language was used, and for such determination the whole publication should go to the jury.
    2. Slander and libel—when malice implied. Erom the publishing or speaking of actionable words, malice is implied, which will justify the assessment of exemplary damages.
    3. Slander and libel—what considered in determining actionable character. When the meaning of slanderous words spoken is made doubtful by reason of other words used at the same time, or in the same conversation, everything said in connection with the slanderous words must be considered in determining if the words were slanderous.
    4. Slander and libel—how intent may be shown. If the intent of the defendant in an action for slander or libel be doubtful the witnesses may be asked their opinion as to the intent of the defendant. The opinions given are not conclusive upon the jury, but such testimony is admissible as tending to show what meaning hearers of common understanding would and did ascribe to the alleged libelous matter.
    5. Instructions—when upon damages in action for libel erroneous. An instruction in such an action is vicious which, tells the jury that they may assess against the defendant such damages as the jury "believe the defendant ought to pay" under all the evidence in the ease instead of closing with the proper conclusion "such damages, if any, as you shall find from all the evidence in the case, that she is entitled to recover against the defendant."
    6. Instructions—when upon damages in action for libel erroneous. An instruction which virtually submits to the jury the question of the pecuniary ability of the defendant in determining the amount of the damages to be awarded, is erroneous in the absence of any evidence as to the pecuniary worth ■ of the defendant.
    7. Instructions—effect of failure to. define malice in action of libel. In an action of libel it is not error for the court to fail to define malice—especially malice in fact.
    8. Damages—what not essential to recovery of exemplary. Express malice, or malice in fact, is not necessary to authorize exemplary damages in an action of libel. Proof of express malice may be made in any libel case to enhance the plaintiff's damages, and the defendant may offer proof showing the absence of express malice in mitigation of damages, but not as barring the right of the plaintiff to recover exemplary damages.
    Action for libel. Appeal from the Superior Court of Cook county; the; Hon. Willard M. MgEwen, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 21, 1912.
    Statement by the Court. In this action for libel Angeline M. Beeson, appellee, recovered a judgment in the sum of $5,000 against The H. W. Gossard Company, appellant, a corporation and manufacturer and dealer in women’s icorsets. The declaration charges, in substance, that appellee had been a resident of Chicago for thirteen years and for many years had been engaged in administering treatments to invalids under direction of their physicians, having prepared herself therefor by a course of study at various medical institutions, and that she had enjoyed the friendship and patronage of the leading medical practitioners of Chicago; that appellant, with its principal store and office in Chicago, had employed appellee to attend an exhibit of its corsets at the annual convention of the American Medical Association, an organization of physicians and surgeons residing in different parts of the United States, held in Chicago on the 2nd to-the 5th days of June, 1908, and there to lecture and explain to the attending physicians the hygienic and therapeutic merits and uses of such corsets; that in pursuance of such employment she did attend said exhibit and so explained and demonstrated the uses of said corsets in the treatment of diseases, by oral lectures illustrated by another woman employed by appellant and acting as model; that appellant, June 25, 1908, published in the form of a printed circular of and concerning appellee a certain scandalous, malicious and defamatory libel, containing certain false, scandalous, malicious and defamatory matter which purported to be an account of the conduct of appellee at. and of certain happenings in connection with, the-said corset exhibit; that appellant had sent said circular by mail to a large number of physicians in different parts of the United States, whereby appelleehad been greatly injured in her good name, credit and reputation and brought into scandal and disgrace,, and had been shunned and avoided by divers persons- and otherwise injured. The alleged false, scandalous- and defamatory circular with proper innuendoes is set forth in the declaration in haec verba. The said circular, with the innuendoes omitted, reads as follows :
    ‘ ‘ RECORD-HERALD-
    Morning, June 4, 1908. Chicago
    EIE! DOCTORS HAUGHTY
    Graze on Shapely Corset Model Until Wives Cause Her To be Exiled.

      CURVES SHOWN IN ARMORY.
    Living Venus in a Knit-Top-Petticoat and Girdle Cynosure at Medical Convention.
    “Pie on the naughty corset model and fie on the peeping doctors!”
    Mrs. A. M. Beeson, a demonstrator of girdle appliances, is the model. Thousands of members of the American Medical Association now in session are the peepers. The wives of the medical men are the criers of “Pie!”
    When the exhibit in connection with the medical ■convention opened at the Armory last Tuesday the wives of the visiting doctors noticed that their husbands kept tugging them toward one part of the big hall, where a delighted circle of men were gathered. There stood a living Venus, girdling and ungirdling • herself with a modern whalebone, steel and silk combination.
    Mrs. Beeson was the Venus and the doctors’ wives present declared she had little more raiment on than had her equally lovely predecessor when she arose from the mythological waves a few years ago.
    “Ah!” cried the medical men, and their eyes flashed.
    “Oh!” sniffed the medical men’s wives, and their eyes flashed, too.
    WIVES BECOME PETULANT.
    “Come away! Come away!” urged the wives impatiently. “The exhibition is indecent. This is no place for you. She ought to be ashamed.”
    “Looks good to me,” muttered a meek-looking little doctor as his amazon helpmeet whisked him along. Then he got indignant enough to speak up in protest.
    “Why, there’s nothing indecent about that corset •demonstration,” he insisted. “Look at these charts on the walls. They’ve got outlines of things belonging to the human body that you couldn’t even find in a cayenne pepper artist’s studio. Look at those jars. They’ve got things on exhibition in them that I never saw in a hospital.”
    “Those charts and those things in the jars are not alive,” said his wife significantly.
    Then the doctors’ wives got busy. They went to-the ladies’ committee, who had arranged the ladies’ end of the convention programme. The committee, headed by Mrs. Albert J. Ochsner, went to Manager Braun. They got him in motion at once. He descended upon Venus.
    “I’m afraid you’ll have to modify your demonstration somewhat” said he to Mrs. Beeson, with a glance of lingering and admiring character at the corset.
    “I also am a lady,” said Mrs. Beeson, “but if you desire to seclude the exhibit we’ll put up a screen.”
    So the screen was put up. To the dismay of many of the. doctors ’ wives it was noticed that the screen arrangement tickled their husbands most to death.
    CORSET STRINGS BREAK.
    Yesterday at 10 a. m. the strings of the corset storm broke again. The ladies’ committee insisted that the entire exhibit on the living model be stopped at once. It was so ordered and so done.
    Then the corset company brought down a wax figure and demonstrated on that. Immediately the doctors altered their trail through the hall, sniffing-with disgust as they walked by the inanimate Venus-The star glory of the exhibition had departed.
    “There was nothing at all objectionable in our exhibit,” said II. P. Junkins, manager for the H. W. Grossard Corset Company. “When our corset is laced on the living woman it demonstrates by the-manner in which it encircles the waist and enfolds the abdominal cavity that it cannot hurt. The living-body moves beneath the corset’s curves. How can. you show this on a wax figure?
    “To-morrow morning at the Second Presbyterian Church Dr. A. Ernest Grallant of New York will deliver an address on the corset as a remedy for movable kidney and other troubles. I expect to demonstrate with Mrs. Beeson. ■
    “Mrs. Beeson had on, when she demonstrated our ■corset, a knitted top petticoat. It is -tight fitting, of ■course, being put on and taken off by stretching. It •showed the”
    The defendant pléaded only the general issue.
    On the trial plaintiff put in evidence two printed ■circulars identified as exhibits “A” and “B.” s Exhibit “A” consists of a fac simile reproduction, in parallel columns on the same sheet, of -two newspaper ■clippings, one from the Inter Ocean and the other from the Record-Herald, newspapers of date, June 4, 1908, and both purporting to give an account of happenings at said corset exhibition. The clipping from ihe Record-Herald is the article set forth in appellee’s declaration as the alleged libel. The clipping from the Inter Ocean does not name nor in any wise refer to appellee; but its language describing the happenings at said corset exhibit is similar in character to that in the alleged libel, except that it names as the corset model a certain Miss Clarkson. The clipping from the Inter Ocean contained also at the top of the article a purported picture of the corset model, Miss Clarkson, as she appeared at the corset exhibition, and she is further portrayed by the Inter Ocean article in the following language:
    “Hidden behind curtains in an attractive booth, Miss Clarkson gave her exhibitions clad in a union suit and a close fitting knit petticoat. Miss Clarkson, it may be observed incidentally, is a young woman of piquant face with a figure of faultless outlines and soft undulant curves.”
    Exhibit “B” is a circular letter written on paper bearing the letter-head of appellant, and reads as follows:

      ‘ ‘ Chicago,
    Dear Doctor:—
    While attending the convention this month, you probably saw the articles which appeared in the Chicago Record-Herald and Inter Ocean, reproductions of which we attach hereto.
    We feel that we have been greatly injured by these articles, which are in part, untruthful, and we desire to present our evidence and rest our case with the members of the Association. Mrs. A. M. Beeson, whose name is mentioned, was our lecturer, and did not act as model. The model was, in our opinion, properly clothed, being dressed in a waist and skirt. We believed that in giving an exhibition before the scientific men we could show the exceptional merit of our corset by having a properly clad model put it on and take it off without offending anyone’s sense of propriety.
    We very much regret that the ladies who were members of the Executive Committee offered objections to the demonstration. We believe that there was nothing about our exhibition to which the most modest woman could justly object.
    We send you under separate icover a copy of our booklet entitled “Corsets from a Medical Standpoint” which we trust you will find time to read carefully. Physicians have written in the past many articles condemning corsets. Now that there is one on the market which they can conscientiously recommend to patients, they are saying as much in favor of The Gossard Front Laced Corset as they have against the injurious style of garments which have been offered by manufacturers in the past.
    Yours very truly,
    The H. W. Gossard Co.
    Sten. 2 • H. W. Gossard,
    President. ’ ’
    The evidence also showed that two physicians residing in Chicago had each received by mail and had read copies of said Exhibits “A” and “B”; that appellant had caused between two and three thousand copies of said exhibits to be printed and had mailed them to physicians in different parts of the United States, postage prepaid, and addressed according to the registry of such physicians at said Medical Convention, single copies of both exhibits being enclosed together in the same envelope; that appellant was a trained nurse and masseuse and had worked at her calling with physicians at hospitals; that she attended the said medical convention and there demonstrated defendant’s corsets by means of a properly clothed woman acting as model, but had never acted as model herself; that no complaint had been made of the manner of such demonstration or of her own conduct at the convention; and that so much of the contents of exhibit “A” as referred to her was false. Appellant did. not deny the publication of the exhibit aforesaid, but introduced evidence to prove that its only purpose in publishing the same was to deny the truth of the newspaper articles and to correct the false impressions created thereby. It also introduced evidence to the effect that appellee had consented that such publication might be made, and appellee denied that such consent had been given.
    Edmund S. Carr, for appellant.
    Hineb, Bunch & Latimer, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The court did not commit error, as. contended by appellant, in refusing appellant’s request at the close of the evidence to direct a verdict of not guilty. In an action for a libel, it is always a question of law for the court, in the first instance, whether or not the proved publication of the defendant is libelous. If such publication of the defendant is not susceptible of a libelous meaning, there is no question for the consideration of the jury and a verdict of not guilty should be directed by the court. Where the whole publication is susceptible of only one meaning and is libelous per se, it is the duty of the court to instruct the jury that the publication is actionable, if made, and no evidence of a different intent is admissible in such case to prove the defendant’s innocence. From the publishing or speaking of actionable words malice is implied, which will justify the assessment of exemplary damages. Gerald v. Inter Ocean Pub. Co., 90 Ill. App. 205; Schmisseur v. Kreilich, 92 Ill. 347; Miller v. Johnson, 79 Ill. 58; Berger v. Pub. Co., 132 Iowa, 290; Dowie v. Priddle, 216 Ill. 553, 558.

It is also the province of the court to determine whether the language of the alleged libel is ambiguous, or double in meaning, one of which is libelous. In determining whether the alleged libel is double in meaning, one of which is libelous, the court must not separate it into parts, and construe each part separately, but must construe each part of the alleged libel in connection with all the rest of it. When the court has so determined that it will bear such double meaning, it is then the province of the jury to determine in which sense the language was used, and for such determination the whole publication should go to the jury. Van Vactor v. Walkup, 46 Cal. 124; Berger v. Pub. Co., 132 Iowa, 290; Graves v. Waller, 19 Conn. 89; Hunt v. Algar, 6 Carr. & Payne, 245, (25 Eng. Com. Law, 415); Young v. Gilbert, 93 Ill. 595.

When the meaning of slanderous words spoken is made doubtful by reason of other words used at the same time or in the same conversation, everything said in connection with the slanderous words must be considered in determining if the words were slanderous. Want of malice is a defense. McKee v. Ingalls, 4 Scam. 30; Nelson v. Borchenius, 52 Ill. 236; Zuckerman v. Sonnenschein, 62 Ill. 115; Waller v. Butler, 15 Bradwell, 209; Sollitt v. Moore, 107 Ill. App. 479.

A libel, as defined by our statute, is a malicious defamation, expressed either by printing, or by signs or pictures, or the like, tending to blacken the memory of one who is dead, or to impeach the honesty, integrity, virtue or reputation, or publish the natural defects of one who is alive, and thereby to expose him to public hatred, contempt, ridicule or financial injury. By applying the foregoing rules to the facts in this case it is clear, we think, that' the alleged libelous matter, as proved in this case, is susceptible of a double meaning, one of which is libelous, and that it was the province of the jury to determine from the evidence whether or not the appellant was guilty of libeling appellee. If the jury should find from the evidence that the intent and purpose of appellant as to the appellee, in republishing the slanderous article of the Record-Herald was in good faith to vindicate her and to thereby repel the slanderous charge against her character, and that the readers of the whole publication must have so understood it, then the defendant should be found not guilty. If, on the other hand, the jury should find that the mailing of the alleged libelous matter was for the purpose of advertising its ■ corsets, and that the denial of the libelous charges of the Record-Herald was merely a pretense for the purpose of using it and the Inter Ocean article and picture of the model woman in the advertising of its corsets, without regard to appellee’s rights in the matter, and appellee was thereby libeled, then appellant in such case should be found guilty. In making this finding it is proper and necessary for the jury to consider both exhibits “A” and B,” and even the booklet referred to, if in evidence, together with all the other evidence in the case. We do not deem it proper to discuss the probative force of each part of these exhibits in reaching our conclusion that the meaning of the publication is double, one of which is libelous, in view of our decision to revérse the judgment, and particularly as we think it apparent from an inspection of the exhibits and the evidence that such discussion is unnecessary.

For the foregoing reasons appellee’s instruction No. 1, as read to the jury, is erroneous. It reads as follows:

“You are instructed that any publication, the necessary tendency of which is to expose a person to hatred, contempt or ridicule is a libel, and if you find from the evidence that the defendant caused the article set forth in the declaration to be printed, and mailed it to a number of persons and that it was received and read by one of such persons, and if you also believe from the evidence that plaintiff did not consent that such article should be so printed and mailed, and if you find from the evidence that said article as mailed to such persons by defendant had a necessary tendency to expose the plaintiff to hatred, contempt or ridicule, you will find the issues for the plaintiff.”

The vice of this instruction will be readily seen by mere inspection of the instruction. Only the article as published by the Record-Herald is “set forth in the declaration,” and the jury are told, in substance, by this instruction that if they found from the evidence “that said .article” (set forth in the declaration) “as mailed to such persons by defendant had a necessary tendency to expose the plaintiff to hatred,” etc., “you will find the issues for the plaintiff.” The article published in the Record-Herald, when considered alone, is libelous per se. The instruction violated the rule that the whole publication must be considered in determining the question of whether or not there is a libel. This instruction is necessarily misleading and there was no other instruction given in the case that had any tendency to correct this error, that is to say, that called the attention of the jury to the fact that the whole publication must be considered in determining the meaning of appellant.

Appellee’s second instruction is erroneous. It tells the jury that “if you find the issues for the plaintiff and believe from the evidence that the publication was made maliciously or wantonly and under circumstances evincing disregard for the rights of the plaintiff, and with malice, then in assessing her damages you are not confined to such damages as will simply compensate plaintiff for such injuries as the evidence-shows she has received by reason of the publication of the defamatory words set forth in the declaration, but you may in addition thereto assess against the defendant by way of punishment to it and as an example to others such damages as the jury in their sound judgment under all the evidence in the case, believe the defendant ought to pay.” This instruction is subject to two objections. In the first place, by the language of the instruction, it is absolutely assumed that the evidence shows that appellee has been injured by reason of the publication of “the defamatory words set forth in the declaration.” The instruction is also vicious in telling the jury they may assess against the defendant such damages as the jury “believe the defendant ought to pay,” under all the evidence in the case, instead of closing with the proper conclusion, “such damages, if any, as you shall find from all the evidence in the ease that she is entitled to recover against the defendant.” It should always be borne in mind when formulating instructions to the jury that a plaintiff can only recover “such actual damages as he has sustainedand, if it is a proper case for exemplary damages, that he can then only recover such damages as he is entitled to under the evidence, and that it must not be assumed by an instruction that he has sustained damages when the question is controverted. “The jury are to inquire not what the defendant can pay (or ought to pay) but what the plaintiff ought to receive.” Holmes v. Holmes, 64 Ill. 294; Smith v. Wunderlich, 70 Ill. 426; Dady v. Condit, 188 Ill. 234.

There was no evidence in this case of the pecuniary ability of the defendant, and the question of such ability is virtually submitted to the jury by the above instruction, and the damages made to depend solely on that - question. Where such evidence of pecuniary worth is not proved the jury have no right to give any more damages than they would if it had affirmatively appeared that the defendant, was without pecuniary resources. T. W. & W. Ry. Co. v. Smith, 57 Ill. 517; Mullin v. Spangenberg, 112 Ill. 140, 146.

Appellant’s contention, however, that appellee’s second instruction attempts to submit the question of actual or express malice as the basis of exemplary damages, is not tenable, if it means thereby an actual intent on the part of appellant to do appellee an injury. Express malice, or malice in fact, is not necessary to authorize exemplary damages. Proof of express malice may be made in any libel case to enhance the plaintiff’s damages, and the defendant may offer proof showing the absence of express malice in mitigation of damages, but not as barring the right of the plaintiff to recover exemplary damages. Hintz v. Graupner, 138 Ill. 158. Express malice, or malice in fact, is so commonly understood that a definition thereof would not seem to be necessary in an instruction to the jury. The failure of the court to define malice, and especially malice in fact, could not have injured appellant in our judgment. Implied malice, or malice in law, was not in express terms referred to in the instructions.

If the intent of the defendant in a suit for a libel or for slander be doubtful, the witnesses may be asked their opinion as to the intent of the defendant. Their answers are not conclusive upon the jury, but such testimony is admissible as tending to show what meaning hearers of common understanding would and did ascribe to the alleged libelous matter. Particularly is this rule applicable where the witnesses are also parties who read the alleged libelous matter. We think the court was in error in excluding testimony of the above character in this case. McKee v. Ingalls, 4 Scammon, 30; Nelson v. Borchenins, 52 Ill. 236; Dexter v. Harrison, 146 Ill. 169; Dexter v. Taber, 12 Johns. (N. Y.) 238; 2 Greenleaf on Evidence, Sec. 417.

It is also argued by appellant that the damages awarded by the jury-are excessive. We do not think' it necessary or proper to discuss this question, or the merits of the case. For the errors indicated the judgment of the court is reversed and the cause remanded.

.Reversed and remanded.


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    Leon D. Buaso, Defendant in Error, v. Wells Bros. Company, Plaintiff in Error.
    Gen. No. 16,150.
    1. Master and servant—what essential to recovery by latter. Before a servant can recover against the master for a failure to provide-Mm with a reasonably safe place in which to work, or with reasonably safe appliances with which to work, he must prove that the defect complained of existed, that the master had notice thereof, or might have had by the exercise of ordinary care, and that the employe did not know of the defect and had not an equal means of knowledge with the master.
    2. Master and servant—when duty of inspection does not exist. The duty of inspection by the master of appliances used by his servants does not extend to small and common tools in everyday use, of the fitness of which the servants using them may be reasonably supposed to be competent judges.
    3. Master and servant—when doctrine of assumed risk applies. The servant assumes the risks of injuries from simple and ordinary appliances and methods, the nature of which he understands, or which is easily understood.
    Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of fact.
    Opinion filed February 21, 1912.
    F. J. Canty, for plaintiff in error; E. J. Folonie and E. P. Garrett, of counsel.
    Morris Loeef and E. M. Seymour, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the -court.

Judgment was rendered in the court below for $10(1 in favor of Leon D. Buaso against Wells Brothers Company, plaintiff in error, for personal injuries sustained by reason of the head of a sledge-hammer, which was being swung by another laborer, flying off the handle and striking appellee on the arm. Feb. 3, 1909, defendant in error and a fellow servant, Joseph Deoro, were employed by plaintiff in error in the destruction of certain concrete used in the erection of the Commonwealth Edison Building in Chicago. The work was being done by three shifts of men of eight hours each, defendant in error starting to work about midnight. The tools with which the work was done, including the sledge-hammer in question, were left on the work by the gang of men preceding the gang of defendant in error. Defendant in error was holding a wedge or chisel that was being struck with the sledge by Deoro, and without warning the sledge flew off the handle and struck defendant in error on the arm and injured him. This writ of error is prosecuted to reverse the judgment of the Municipal Court.

There are two well grounded reasons urged by plaintiff in error for the reversal of the judgment:

First. No evidence was introduced tending to show any defect in the hammer or in the handle of the same, and there was no evidence showing knowledge of plaintiff in error that said hammer was likely to come off, or that by the exercise of ordinary care it would have had such knowledge. The evidence is simply to the effect that the hammer came off while being so wielded by Deoro and struck Buaso on the arm and injured him ; that the hammer was left on the work by the previous shift of men, and that the hammer had never been known to come off prior to this time.

Before an employe can recover against the master for a failure to provide him with a reasonably safe place in which to work, or with reasonably safe appliances with which to work, he must prove that the defect complained of existed, that the master had notice thereof or might have had by the exercise of ordinary care, and that the employe did not know of the defect and had not an equal means of knowledge with the master. L. E. & W. Ry. Co. v. Wilson, 189 Ill. 89; The Diamond Glue Co. v. Wietzychowski, 227 Ill. 338.

It is' suggested by defendant in error that the plaintiff in error was in duty bound to inspect the hammer and that an inspection would have revealed the danger. The evidence does not show any defect, nor that an inspection would have revealed the danger. Besides, the duty of inspection by an employer, of the appliances used by his employes, does not extend to the small and common tools in every-day use, such as a hammer, a hoe, an ax, etc., of the fitness of which the employes using them may be reasonably supposed to be competent judges. Wachsmuth v. Shaw Electric C. Co., 118 Mich. 275.

Second. An employe assumes the risks of injuries from simple and ordinary appliances and methods, the nature of which he understands, or which is easily understood. Sims v. East, etc., Ry. Co., 84 Ga. 152; Henggler v. Cohn, 68 N. J. L. 240; Plunkett v. Donovan, 36 N. Y. St. Rep. 91; Olsen v. Doherty L. Co., 102 Wis. 264; Webster Mfg. Co. v. Nisbett, 205 Ill. 273; Riley v. Am. S. & W. Co., 129 Ill. App. 123, 127.

Defendant in error had used the sledge-hammer frequently himself, was apparently familiar with it and all parts of the work being done which was of the simplest kind. No case was proved by the defendant in error, and a verdict of not guilty should have been directed.

The judgment is reversed.

Judgment reversed with finding of fact.

Finding of fact to be incorporated in the judgment:

We find as an ultimate fact, that the plaintiff in error is not guilty of the negligence charged against it by defendant in error.


text:
    A. E. Ziehme, doing business as St. Louis Jewelry Company, Plaintiff in Error, v. L. B. McInerney, Defendant in Error.
    Gen. No. 16,203.
    1. Vendor and vendee—when rescission unauthorized. After the acceptance of a proposed contract, it becomes binding upon both parties, and the vendee cannot cancel the same without the consent of the vendor.

      2. Contracts'—how cannot he varied hy parol. A stipulation in a written contract that no statement made by the vendor or its salesman will be a part of the agreement, unless written in the original order, is binding on the vendee, and parol evidence is inadmissible to contradict ■or enlarge the terms of the contract as it existed when signed by the vendee and accepted by the vendor.

      3. Sales—what delivery passes title. A delivery of merchandise ordered to a common carrier is a delivery to the vendee, and upon such delivery title passes to the vendee, and authorizes recovery of the purchase price by the vendor.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 21, 1912.
    Albert 0. Olson, for plaintiff in error; .James J. Leahy, of counsel.
    Francis A. Harper and Ode L. Rankin, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This is a suit brought in the Municipal Court by A. E. Ziehme, doing business as the St. Louis Jewelry Company, plaintiff in error, against Mrs. L. B. MeInerney, defendant in error, to recover the purchase price of a consignment of jewelry alleged to have been sold and delivered to her in compliance with her written order to plaintiff in error. The material facts are that on June 16, 1908, a salesman of plaintiff in error called on defendant in error at her place of business in Chicago, and after some conversation about the proposition he had, he induced her to sign the written order for the jewelry in question. After an itemized list of the various articles of jewelry, together with prices of the same, followed by printed provisions with reference to warranty, privilege of exchange, explanation of a coupon system, etc., the order concludes as follows:

“Date 6-16-’08.
St. Louis Jewelry Co.,
St. Louis, Mo.
Gentlemen:—On your approval of the terms and conditions of the above order, please deliver to us, at your earliest convenience, F. O. B. factory or distributing point, the goods above listed on the above terms. We agree that no statement made by ourselves or the salesman will be a part of this agreement, unless written in the original order received and accepted by you.
W. C. Block, Mrs. L. B. Mclnerney,
Salesman. Customer.”

The 'contract was signed by the defendant in error on the evening of June 16, 1908, about five o’clock, and delivered to salesman, Block. It was received by plaintiff in error at his St. Louis office about 10 A. M. on the following day, June 17th. Upon receiving the order and investigating defendant in error’s credit standing, plaintiff in error at once properly addressed and mailed to defendant in error on the same day, June 17th, a letter with proper postage, notifying her of his acceptance of the order and the shipment of the goods by express accordingly. The letter was received by her in the usual course of the mails. About 9 o’clock A. M. of June 17th, the day the goods were shipped, defendant in error wrote a letter of cancellation to plaintiff in error, properly addressed and mailed, in which she said to him: “I want you to cancel my order of yesterday given your Mr. Block. I have considered the matter and decided I won’t try that Coupon Scheme just now.” This letter was received by plaintiff in error about 10 o’clock A. M. of June 18th, and he replied at once that the goods were already shipped and that he could not, therefore, accommodate her by cancelling the order. Defendant in error refused to accept the goods from the express company, and they were never returned to plaintiff in error. A verdict and judgment were rendered in a jury trial in favor of defendant in error, and this writ of error is prosecuted to reverse the judgment. The defense of defendant in error was based solely upon an oral statement of the salesman put in evidence by the defendant in error against the objections of plaintiff in ■error. The statement of the agent was made, as she testified, before she signed the contract, and is as follows : “If you do decide not to take it (the goods), it will only cost you a two cent stamp to cancel this order. ’ ’

After the acceptance by the plaintiff in error of the proposed contract of defendant in error, it became binding upon both parties thereto, and the defendant in error could not cancel the same without consent of plaintiff in error. The stipulation in the written contract that no statement made by defendant in error or the salesman will be a part of the agreement, unless written in the original order, is binding on her, and parol evidence was not admissible to contradict or to ■enlarge the terms of the contract as it existed when signed by her and accepted by plaintiff in error. Davis v. The Fidelity F. Ins. Co., 208 Ill. 375; Union S. Sewing M. Co. v. Lockwood, 110 Ill. App. 387.

The delivery of the goods, consigned to defendant in error, to the express company at St. Louis, was a delivery thereof to defendant in error, and upon such delivery, title thereto and responsibility therefor, passed from plaintiff in error to defendant in error. The refusal of defendant in error to accept the goods from the carrier could not defeat an action for the purchase price. Earl Mfg. Co. v. Summit Lumber Co., 125 Ill. App. 391; City of Carthage v. Duvall, 202 Ill. 234.

The delivery of the goods to the carrier was an act of acceptance of the contract, and no notice of revocation had been received by plaintiff in error until after such delivery was made. Besides, the plaintiff in error had previously accepted or approved the contract by letter properly mailed and addressed to defendant in error. Haas v. Myers, 111 Ill. 421; Chytraus v. Smith, 141 Ill. 231; Byrne v. Van Tienhoven, 5 Com. Pleas Div., 344 (Eng.).

There was only required of plaintiff in error the simple act of approval or acceptance of said contract, to make it binding on both parties. It was not required to be by mail or even in writing. There is no force in the contention of defendant in error that the mail service was the selected agency of plaintiff in error by which the contract was to be completed, and that, therefore, when defendant in error mailed her letter of cancellation, plaintiff in error at that moment, received notice of the cancellation. Both used the mail service voluntarily and without agreement or suggestion by the other, she for the purpose of giving notice of cancellation, and he for the purpose of giving notice of an acceptance, that had already been made.

The mail service was the common agency of both parties, and there was no notice to plaintiff in error of defendant in error’s desire to cancel the order until it was delivered at St. Louis; and at that time the contract had already been completed by the plaintiff in. error’s approval thereof and delivery of the goods to the carrier. There being no evidence offered tending to establish a defense to the claim of the plaintiff in error, and he having proved his case in every particular, a verdict should have been directed in his favor.

The judgment is, therefore, reversed, and a judgment will be entered in this court in favor of plaintiff' in error and against the defendant in error in the sum of $288, the contract price of the goods, and for costs.

Judgment reversed.


text:
    Helen B. McWhinney, Executrix, Defendant in Error, v. Ethelyn A. Gill, Plaintiff in Error.
    Gen. No. 16,226.
    Municipal Coubt—when authorised to enter default. Under the statute and adopted rules of the municipal court, .which authorizes the requiring of an affidavit of merits, the municipal court may, in advance ■of the trial, notwithstanding the defendant has entered his appearance, require him to file an affidavit of merits, and may in the absence of such an affidavit enter default and judgment without having the cause set for trial.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed February 21, 1912.
    Clair D. Vallette, for plaintiff in error.
    George E. Dawson, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the ■court.

Ethelyn A. Gill prosecutes this writ of error to review a judgment of the Municipal Court against her in the sum of $96.88" in a case of the fourth class.

The defendant in error filed wih her statement of claim an affidavit of merits. Plaintiff in error entered her appearance. On return day defendant in error moved for a rule on plaintiff in error to file an affidavit of merits in three days, which the court allowed. At the expiration of the rule the court on motion entered said judgment by default in favor of defendant in error, for want of said affidavit of merits.

The sole ground urged for the reversal of the judgment is that in the Municipal Court in cases of the fourth class a judgment as in case of default cannot be entered where the defendant has filed his appearanee. The provisions of the Municipal Court Act hearing directly upon the question for decision in this case are found in the following sections thereof, to wit, sections 19, 40, 43 and 45. Those provisions are as follows: “That until otherwise determined, * * * the practice in the Municipal Court shall he the same, as near as may be, as that which may from time to time be prescribed by law for similar suits or proceedings in Circuit Courts, excepting that in cases of the fourth class * * * the issues shall be determined without other forms of written pleadings than those hereinafter expressly prescribed. Said Municipal Court shall be the sole judge of the applicability to the proceedings of said court of the rules of practice prescribed by law for similar cases in the Circuit Courts and its decisions in respect thereto shall not be subject to review upon writ of error. * * * That every case of the fourth class * * * shall be commenced by the filing by the plaintiff with the clerk of a praecipe for a summons, specifying the names of the parties to the suit, the amount of the plaintiff’s claim, * * * and a statement of the plaintiff’s claim, which statement, if the suit" be upon a contract, shall consist of a statement of the account or of the nature of the demand. * * * In cases of the fourth class, * * * the Municipal Court may adopt such rules and regulations as it may deem necessary to enable the parties, in advance of the trial, to ascertain the nature of the plaintiff’s claim, or of the defendant’s defense. * * * That upon the return of any such summons duly served, the plaintiff shall be entitled to judgment as in case of default, unless the defendant shall either appear in person * * * or shall file his appearance in writing * * * . In case the defendant shall desire upon the trial to present any set-off or counter-claim, he shall file a statement thereof with his appearance. * * * That if * * * the defendant shall appear at the time specified in the summons, * * * the court shall, at such time, * * * fix a time for the trial thereof and such case shall be tried at the time so fixed.”

The Municipal Court adopted by a rule the provisions of sections 55 and 56 of the Practice Act, in so far as the same are applicable to its procedure, as follows :

“If the plaintiff in any suit upon a contract, * * * for the payment of money, shall file with * * * his statement of claim, if the case be a fourth class case, an affidavit showing the nature of his demand, and the amount due him from the defendant, * * * he shall be entitled to judgment, as in case of default, unless the defendant * * * shall file with his appearance, * * * an affidavit stating that he verily believes the defendant has a good defense to said suit upon the merits .to the whole or a portion of the plaintiff’s demands and specifying the nature of such defense and if a portion, specifying the amount (according to the best of his judgment and belief).”

We think it is very clear from the provisions of the Municipal Court Act above quoted that the court had ample power to adopt the said rule, and that it is entirely in harmony, and not in conflict with, the other provisions of the statute in regard to actions of the fourth class. It is a necessary rule to carry out the specific provision of the statute that the court may by rule ‘ ‘ enable the parties, in advance of the trial, to ascertain the nature of the plaintiff’s claim, or the defendant’s defense.” The rule does not, as insisted by plaintiff in error, compel a defendant to adopt any more elaborate system of pleading than that contemplated by the statute in cases of the fourth class. Neither does the statute contemplate or provide that .a defendant shall have the case set for trial before he shall be required to state the nature of his defense, if he has one. On the contrary, it expressly provides that the court may rule him to do this “in advance of the trial.” If he has no defense, or fails to file his affidavit of merits disclosing the nature of his defense as ruled, the court is not bound to set it for trial at all. The statute and all its parts must be construed together, and no part of it rendered meaningless and useless by a strict or strained construction. When it develops that a defendant, after he has entered his appearance, has no defense to offer, the court’s action in setting his case for another day for trial, if it should do so, would be a mere act of delaying the plaintiff in his right to a default and judgment which the defendant, by his act of refusing or neglecting to file his affidavit of merits, confesses. The plaintiff in error was not entitled to a trial, or setting of her case for trial, by merely entering her appearance, unless the court had used its discretion in overruling defendant in error’s motion to require her to file the affidavit of merits. Plaintiff in error admits that the court had the right and power to make the rule requiring an affidavit of merits, but insists that whether she complied with the rule or not she was entitled to a trial because she had entered her appearance, as provided by the statute. The bare statement of the proposition is a sufficient answer to the same. The power in a court to make a rule necessarily carries with it the power to enforce it. Koch v. Dickinson, 152 Ill. App. 413.

Plaintiff in error made no showing that she had any meritorious defense to this action in the lower court, and makes no such claim here. No reason is offered why she did not comply with the rule of the court to file an affidavit of merits. If the rulings of the court complained of by her were erroneous, and we hold that they are not, we would not feel warranted, by her showing in this record, in reversing the judgment merely for the sake of giving her an opportunity for a trial.

The judgment is affirmed.

Judgment affirmed.


author: Mb. Justice Duncan

text:
    Jacob Heeringa et al., Plaintiffs in Error, v. William Ortlepp et al., Defendants in Error.
    Gen. No. 16,242.
    1. Suretyship—when instrument continuing guarantee. Held, that the instrument set forth in the opinion in this ease fixing no limit as to the amount of credit that should be given the debtor by reason of the limitation as to the amount guaranteed, and which further fixed no limit of time, although the amount of the guarantee was limited, was continuing in character.
    2. Suretyship—effect of failure to notify guarantor of debtor’s default. The failure of the creditor to notify a guarantor promptly as to the debtor’s default is only a defense in so far as such guarantor suffers loss in consequence.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhmr, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed.
    Opinion filed February 21, 1912.
    Charles Daniels and Sumner C. Palmer, for plaintiffs in error.
    Ño appearance for defendant in error.
   Mb. Justice Duncan

delivered the opinion of the court.

Plaintiffs in error, doing business as Michigan Tea Busk Company, sued William Ortlepp and Samuel Hoffman, defendants in error, upon an account for goods sold and delivered to Hoffman, March 25, 1908, to September 24, 1908; The suit, on motion of plaintiffs in error, was dismissed as to Hoffman. In a trial without a jury the court rendered judgment against the plaintiffs in error, who ask a reversal of the judgment.

Defendant in error, Ortlepp, was sued as guarantor. Prior to July 23,1908, the traveling salesman of plaintiffs in error, in their behalf, told Ortlepp that he would not sell Hoffman any more goods unless somebody guaranteed the pay. A few days thereafter the salesman received and accepted for plaintiffs in error the following letter of guaranty, to wit:

“Chicago, July 23rd, 1908.
Michigan Tea Busk Company,
Grentlemen:
I guarantee Mr. Hoffman’s account for the sum of Two Hundred and Fifty ($250.00) Dollars for goods. In case of non-payment I want to be notified right away.
Tours,
William Ortlepp.”

Following the acceptance of the said guaranty, plaintiffs in error sold and delivered to Hoffman six bills of tea, amounting to $611. Hoffman made five payments thereon during the running of the account, amounting to $323.13, leaving a balance due of $288.13. Shortly after the selling of the last bill to Hoffman, i. e., shortly after September 24, 1908, the salesman told Ortlepp that Hoffman had bought several bills and had paid part; that he had not paid for the last bill and two other prior bills, and that he owed a balance of $288.31. Ortlepp replied that he would go and see Hoffman about it.

The court refused to hold as a proposition of law that the guaranty of Ortlepp was a continuing guaranty. The court also held as a proposition of law that the plaintiff in error was not bound to give notice to Ortlepp of non-payment by Hoffman until he owed $250, but was bound to do so right away after said amount was due. There is no dispute that Hoffman owed said balance, and it was well proved, and no further evidence of defense was offered by defendant in error.

Following the rule in such cases of giving to the instrument the effect which best accords with the intentions of the parties, as manifested by the terms of the guaranty when taken in connection with the subject-matter, and read in the light of the surrounding circumstances, we must hold that the contract is a continuing guaranty. It appears that it was the intention of the parties to look to a course of dealing in the future. Hoffman’s “account for the sum of $250’ was guaranteed, and the term, account, is usually applied not to the result of a single item or transaction, but to the condition or result of a number of transactions in which there are different items of charge and credit. No limitation of time is fixed in the contract, although the amount of the guaranty is limited. There was no limit fixed as to the amount of credit that should be given Hoffman, by reason of the limitation as to the amount guaranteed. The evidence therefore establishes clearly a contract of continuing guaranty, and a liability against Ortiepp in the sum of $250, unless his defense of want of timely notice shall prevail. Taussig v. Reid, 145 Ill. 488; The Malleable Iron Range Co. v. Pusey, 244 Ill. 184; Pearsell Mfg. Co. v. Jeffreys, 105 Am. St. 522, and notes.

The purpose of notice in such a case, generally, is to enable the guarantor, if he elects, to pay the guaranty and proceed at once against the principal. Defendants in error received notice of default, and if not timely enough under the contract, it had no other effect than to afford Ortiepp a defense to the extent he sustained loss thereby. Swisher v. Deering, 204 Ill. 203.

As there was no proof of loss to Ortiepp by reason of a want of prompt notice to him of Hoffman’s failure to pay, the plaintiffs ’ right to judgment is clear. The judgment of the Municipal Court is, therefore, reversed, and judgment will be entered in this court in favor of plaintiffs in error against defendants. in error in the sum of $250-and for costs.

Judgment reversed.