author: Mr. Justice McSukely

text:
    The People of the State of Illinois, Defendant in Error, v. William Sweeney, Plaintiff in Error.
    Gen. No. 19,441.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hugh R. Stewabt, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against William Sweeney under the Vagrancy Act. From a judgment finding him guilty of vagrancy, defendant brings error.
    James C. 0 ’Brier, for plaintiff in error.
    Maolay Hoyre, for defendant in error; Frarcis E. Hirckley, of counsel.

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

   Mr. Justice McSukely

delivered the opinion of the court.

Abstract of the Decision.

Vagrancy, § 1 —when evidence insufficient to sustain conviction. Under the Vagrancy Act (Criminal- Code, ch. 38, sec. 270, J. & A. If 3962) an essential ingredient of the offense is that the person charged shall have “no lawful means of support” and shall be “habitually found prowling around any steamboat landing, railroad depot * * * store, shop or crowded thoroughfare, car or omnibus,” etc., hence where three police officers testified that defendant was a thief, but as to whether he had any lawful means of support they had no knowledge, there being no evidence that he was habitually found prowling about any of the places named, and defendant’s evidence showed' that he lived with his wife, children and mother, had been employed as a railroad laborer for several months preceding his arrest, had worked until noon on the day of his arrest and was arrested while sitting, in a cigar store about four o’clock in the afternoon, the evidence was held insufficient to sustain a conviction.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Warren, alias Clarence Warren, Plaintiff in Error.
    Gen. No. 19,546.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding,
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Charles Warren, alias Clarence Warren, on a charge of vagrancy. From a judgment of conviction, defendant brings error.
    John F. Tyrrell, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Abstract of the Decision.

Vagrancy, § 1*—when evidence insufficient to sustain a conviction. In a prosecution for vagrancy under Criminal Code, ch. 38, sec. 270, J. &. A. If 3962, the fact that defendant was without lawful means of support must be proved affirmatively as any other fact, and negative evidence, consisting of testimony that the witnesses had no knowledge upon the subject, is insufficient to sustain a conviction.


author: Mr. Justice MoSurely

text:
    The People of the State of Illinois, Defendant in Error, v. Charles Norton, alias James Norton, Plaintiff in Error.
    Gen. No. 19,547.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Vagrancy, § 1

      —what proof required to convict. To establish the crime of vagrancy, affirmative proof that defendent was without lawful means of support is required.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Charles Norton, alias James Norton, on a charge of vagrancy. From a judgment of conviction, on trial by the court, defendant brings error.
    John F. Tyrrell, for plaintiff in error.
    Maglay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

      See niinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice MoSurely

delivered the opinion of the court.

2. Vagrancy, § 1*—when evidence insufficient to convict. In a prosecution for vagrancy,, where the witnesses testifying for the People did not undertake to state, of their own knowledge, whether defendant was without lawful means of support, except one witness who testified that defendant operated about fifty peanut machines in saloons, and that he filled the machines every few days, gathering the money out of them, a conviction was not sustained by the evidence.


text:
    The People of the State of Illinois, Defendant in Error, v. Gustave Anders, Plaintiff in Error.
    Gen. No. 19,755.
    Assault and battery, § 38

      —when sentence erroneous. Where on trial of an indictment for assault to murder and for assault with a deadly weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with intent to do bodily injury, the felony charged was waived and defendant pleaded guilty “of assault with intent to do bodily injury in manner and form as charged therein,” it was held that defendant’s plea of guilty was only as to an assault with intent to do bodily injury, and a judgment on such plea that defendant was “guilty of the crime of assault with a deadly weapon, instrument or other thing, with intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned or malignant heart,” was erroneous and a sentence to a year’s confinement in the county jail, a fine of $25 and costs, amounting to $213.15, was in excess of the statutory penalty for the offense to which he pleaded guilty.
    Error to the Criminal Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed March 9, 1914.
    Maclay Hoyne, for defendant in error; Francis E. Hinckley, of counsel.

      James E. Callahan and Francis J. Callahan, for plaintiff in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice McSurely

delivered the opinion of the court.

Defendant was indicted for assault with intent to murder, and for assault with a deadly weapon, without any considerable provocation and under circumstances showing an abandoned and malignant heart, with intent to do bodily injury. To this indictment he pleaded not guilty, and a jury was impaneled and heard evidence, but before the trial was concluded, apparently by agreement between the attorneys for the defendant and the attorney representing the People, the jury was discharged. On motion of the State’s Attorney the felony charge in the indictment was waived. Thereupon the defendant withdrew his plea of not guilty and entered a plea saying that he was 11 guilty of assault with intent to do bodily injury in manner and form as charged therein. ’ ’ It was thereupon ‘ ‘ ordered and adjudged by the court that the defendant is guilty of the crime of assault with a deadly weapon, instrument or other thing, with intent to inflict upon the person of another a bodily injury where no considerable provocation appears, or where the circumstances of the assault show an abandoned „or malignant heart, upon the indictment, on the said plea of guilty,” and he was sentenced to be confined in jail for the term of one year and to pay a fine of $25 and costs, which, it is said, were taxed at $213.15.

It is apparent that the plea entered by the defendant was only as to an assault with intent to do bodily injury, for which the statute provides that the punishment shall be a fine of not less than $3 nor more than $100. Upon this plea he was found guilty of a crime of a higher degree than he had confessed, and the sentence of punishment was larger than justified by his plea. Under this condition of the record it is clear that such a judgment, and sentence were improper. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Smith

text:
    German American Savings, Loan and Building Association et al., Appellants, v. John C. Trainor, Appellee.
    Gen. Nos. 18,901, 18902.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Bill in equity by German American Savings, Loan and Building Association and others against John C. Trainor to foreclose a mortgage executed by defendant to one Ernst Ammon, as trustee. From a decree stating the account between the parties, finding that the deduction of a twenty per cent, premium without complying with law rendered the loan usurious, that defendant was chargeable with only the amounts actually advanced, and the insurance, taxes and interest thereon paid by complainant, that the amount paid by defendant together with the earnings on his stock was in excess of the amount with which he was chargeable, and forfeiting all interest on the amount actually advanced to defendant, complainant appeals.
    A former appeal in this case is reported in Trainor v. German-American Bldg. Ass’n, 204 Ill. 616.

      Abstract of the Decision.
    1. Building and loan associations, § 8

      —when by-laws invalid. A by-law of a building and loan association providing for the deduction of a twenty per cent, premium from all loans is invalid.
    2. Building and loan associations, § 58

      —when loan usurious. Where a twenty per cent, premium was deducted from a loan by a building and loan association under an invalid by-law without first offering the loans to the highest bidders, the loan is usurious and a decree forfeiting interest on the money actually advanced is proper.
    W. J. Lavery and Charles B. Stafford, for appellants.
    Charles J. Trainor, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Caroline Wolff, Individually and Trustee, Defendant in Error, v. Anthony Jurgenson, Plaintiff in Error.
    Gen. No. 19,005.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action of forcible detainer in the Municipal Court of Chicago by Caroline Wolff, individually and as trustee under the will of Frederick Wolff, deceased, against Anthony Jurgenson. From a judgment for plaintiff, defendant brings error.

      Abstract of the Decision.
    1. Forcible entry and detainer, § 20

      —necessity for proof of possession in plaintiff. In forcible detainer proceedings plaintiff must show actual possession of the premises upon which the forcible entry is alleged to have been made, and mere constructive possession arising from the ownership of the fee is not sufficient.
    2. Forcible entry and detainer, § 1

      —elements of action. In forcible detainer proceedings the title is not involved, the issue being confined to possession by plaintiff and unlawful invasion and detention by defendant.
    3. Forcible entry and detainer, § 84

      —where evidence insufficient to sustain recovery. In forcible detainer proceedings, where there was no evidence to show that plaintiff was ever in possession of the premises in question, nor that defendant ever made any forcible entry thereon, nor as to when or how defendant acquired possession, nor that they were vacant and unoccupied at the time he entered, it was error to deny a peremptory instruction for defendant.
    Adams, Crews, Bobb & Wescott, for plaintiff in error.
    John Leo Fat and Albert H. Meads, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Caroline Wolff, Individually and Trustee, Defendant in Error, v. Anthony Jurgenson, Plaintiff in Error.
    Gen. No. 19,006.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action of forcible detainer in the Municipal Court of Chicago by Caroline Wolff, individually and as trustee under the will of Frederick Wolff, deceased, against Anthony Jnrgenson. From a judgment for plaintiff, defendant brings error.
    Abstract of the Decision.
    1. Forcible entry and detainer, g 54

      —when complaint sufficient. In forcible detainer proceedings the fact that complainant’s name was not signed to the complaint does not render it insufficient.
    2. Forcible entry and detainer, § 108

      —when sufficiency of complaint not reviewable. The insufficiency of a complaint in forcible entry proceedings cannot be raised for the first time an appeal.
    Adams, Crews, Bobb & Wescott, for plaintiff in error.
    John Leo Fat and Albert H. Meads, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Industrial Manufacturing Company, Defendant in Error, v. Simon Deutsch and Edward L. Gross, trading as Electro-Mechanical Engineering Company, Plaintiffs in Error.
    Gen. No. 19,034.
    (Mot to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Industrial Manufacturing Company against Simon Deutsch and Edward L. Gross, copartners trading as Electro-Mechanical Engineering Company, to recover a balance claimed to be due under a written contract for the construction of a safety pin machine. From a judgment in favor of plaintiff for $694.50, defendants bring error.
    Abstract of the Decision.
    1. Building and construction contracts, § 103

      —When evidence sufficient to sustain recovery for construction of machine. In an action to recover a balance claimed to be due under a written contract with the defendants'for the construction of a safety pin machine according to blue prints furnished by the defendants and their oral instructions from time to time, it appeared that the machine when completed would not make pins as per samples submitted, held that the question whether the failure of the machine to make pins conforming with samples was due to error in the fundamental ideas or principles incorporated in the drawings of the defendants was for the jury, and that a judgment in favor of plaintiff was sustained by the evidence.
    2. Building and construction contracts, § 105

      —tohen instruction not directory. In an action to recover for a balance due under a contract for the construction of a safety pin machine according to blue prints furnished by the defendants, part of an oral instruction given for plaintiff to the effect that if the jury believes that the plaintiff manufactured the machine according to the blue prints and oral instruction furnished by . defendant, and if they further believe that the failure of the machine to make pins as per sample was on account of errors in the fundamental ideas or principles incorporated in the drawings of defendants and not through any fault of the plaintiffs, then the jury is instructed as a matter of law that the plaintiff .was relieved from its agreement that it would make pins to conform to the samples submitted, held not a directory instruction, and the giving of same not reversible error.
    Pollock, Sullivan & Livingston, for plaintiffs in error.
    Harry Bierma, for defendant in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    C. F. Lund for use of J. E. Richards, Defendant in Error, v. The Dole Valve Company, Plaintiff in Error.
    Gen. No. 19,073.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Garnishment proceeding in the Municipal Court by C. F. Lund for the use of J. E. Richards in which a summons was issued and served upon The Dole Valve Company as garnishee. The garnishee, after the time for answering was extended, filed an answer setting up that there were no rights, credits, etc., in his hands belonging to the said Lund, but that at the time of the commencement of the suit there was due and owing from him to Lund, on account of wag’es, salary or compensation, the sum of $10.50, which was subject to a notice of assignment previously served upon him by one L. H. Bronte, which sum was paid pursuant to said notice. An order was thereupon entered making Bronte a party to the suit as adverse claimant, and he was served with notice and he appeared and filed a statement of claim, claiming the wages due by virtue of the assignment. The court found in the hands of the garnishee $169.53, of which sum it found $61 subject to the claim of Bronte and $109.53 subject to the garnishment writ. The court overruled the garnishee’s objection to the finding and entered judgment. To reverse the judgment, the garnishee brings error.
    Robert E. Pendarvis, for plaintiff in error.
    Clark & Clark, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Municipal Court of Chicago, § 26 —sufficiency of statement of facts. Certification of statement of facts held to substantially comply with clause 6 of section 23 of the Municipal Court Act, J. & A. 1Í3335, where the judge before whom the case was tried “certifies the foregoing to be a true and correct statement of the facts appearing upon the hearing in said cause, and the questions of law presented to the court during said hearing upon said facts,” it not appearing that any propositions of law were submitted by either party.

2. Garnishment, § 100 —necessity of proof of judgment and an execution. Proof of the judgment and the issue and return of an execution is a condition precedent to garnishment proceedings, and in the absence of such proof a judgment in garnishment cannot be sustained.

3. Garnishment, § 100 —proof of judgment. In garnishment, the judgment debtor cannot waive proof of the judgment upon which the proceedings are based, for any one except himself.

4. Garnishment, § 35 —unearned salary. Section 5 of the Garnishment Act, J. & A. K 5940 does not authorize garnishment process against unearned .salary, and cannot be construed to reach the salary to be earned after answer made.

5. Garnishment, § 35 —wages' earned after service of writ. Under section 14 of the Garnishment Act as amended in 1901, J. & A. U 5949, the employer is not required to answer for wages earned by a "wage earner" after the service of the writ.

6. Garnishment, § 100 —when evidence as to earnings of employe after answer filed incompetent. In garnishment, evidence as to the earnings of the judgment debtor as an employe of the garnishee after answer filed is incompetent.


text:
    The City of Chicago, Defendant in Error, v. Edith Murray, Plaintiff in Error.
    Gen. No. 19,099.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    -Reversed and remanded.
    Opinion filed March 10, 1914.

      Abstract of the Decision.
    1. Municipal Court op Chicago, § 36

      —proof of venue of offense. The Municipal Court Act limits the jurisdiction of the Municipal Court of the City of Chicago to offenses committed within the corporate limits of the City, and the evidence must show that the offense of violating an ordinance of the City was committed within the corporate limits in order to confer jurisdiction.
    2. Disorderly house, § 2

      —when proof insufficient to sustain conviction for maintaining house of ill fame. On complaint in the Municipal Court charging the defendant with maintaining a house of ill fame in violation of an ordinance, held, that a judgment finding defendant guilty could not he sustained, where there was no proof that the offense was committed within the corporate limits of the City.
    Statement of the Case.
    Complaint by the City of Chicago against Edith Murray, charging the defendant with keeping a house of ill fame or assignation in violation of section 2014, of the Municipal Code of Chicago. To reverse a judgment finding defendant guilty, defendant prosecutes a writ of error.
    L. J. Haigler, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Mary Kaszmierczak, Defendant in Error, v. Tony Jamrosz, Plaintiff in Error.
    Gen. No. 19,142.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Abstract of the Decision.
    Attachment, § 265*—when judgment will he reversed. Where the record contains no proof to sustain the issues in attachment, a judgment in favor of plaintiff will he reversed.
    Reversed.
    Opinion filed March 10, 1914.
    Rehearing denied March 24, 1914.
    Statement of the Case.
    Action in attachment by Mary Kaszmierczak against 'Tony Jamrosz. From a judgment for plaintiff, defendant brings error.
    Albert L. Hopkins, for plaintiff in error.
    Frank Foster, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Matej Cigler, Plaintiff in Error, v. Mary Keinath et al., Defendants in Error.
    Gen. No. 19,155.
    Appeal and error, § 1856

      —when surety liable for rents and profits pending appeal from order for writ of assistance. Bond on appeal from order granting a writ of assistance construed as rendering the surety liable for the rental value of the premises during the pendency of the appeal, court costs on appeal and the sheriff’s fees for the execution of an alias writ of assistance after the affirmance on appeal, hut not as including the amount spent for the printing of briefs nor for attorney’s fees on appeal.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and judgment here.
    Opinion filed March 10, 1914.

      Charles T. Faeson, for plaintiff in error.
    John C. Wilson, for defendants in error.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

An action was brought by plaintiff in error, Cigler, in the Municipal Court of Chicago against the defendants in error on an appeal bond. The court below entered judgment for $43.70, covering certain items of damages conceded to be within the condition of the appeal bond. Other items of damages claimed by the plaintiff below were disallowed by the court. The facts were stipulated upon the trial of the cause and this writ of error presents only a question of law as to the construction of the bond.

The circumstances under which the appeal bond was given were as follows:

On January 1, 1906, one Thomas Eudolph was the owner of certain real estate in the city of Chicago, known as No. 4630 Lincoln street. On that day he entered into a contract with Cigler, the plaintiff below, to construct an addition to a building, agreeing to pay therefor $870 upon the completion of the work. The building addition was completed about September 1, 1906. Thomas Eudolph died intestate about September 23, 1906, leaving no children, and leaving, as his heirs at law, Mary Keinath, wife of Ernest Keinath, Frances Collins, wife of John Collins, and Peter and Henry Eudolph, the two last named being minors.

On December 19, 1906, Cigler filed a bill in the Superior Court of Cook county to enforce a mechanic’s lien for the building of the addition. The heirs of Thomas Eudolph were made parties to the bill. The record in that case shows that appearance was entered for the adult defendants, and service of summons was had on the infant defendants, \pril 12,1907, a decree of sale was entered in the ca ;, and subsequently a sale was had. The period < ' redemption expired without redemption having been made by any person interested, and a master’s deed of the premises in question was made to Cigler, the complainant in that suit and plaintiff in error here. Cigler demanded possession of the premises, exhibiting his master’s deed, etc., and, possession being refused, made application to the Superior Court for a writ of assistance. March 30, 1909, the Superior Court entered an order for a writ of assistance, directing the sheriff to remove from the possession of said real estate any of the defendants to the cause who might be in possession thereof, and put the complainant in possession.

From the order of the 'Superior Court granting the writ, an appeal was taken to this court by Mary Keinath and Ernest Keinath, her husband, Frances Collins and John Collins, her husband, and Peter Rudolph, and the appeal bond sued on in the court below was given. The bond is made by Mary Keinath, Ernest Keinath and Peter Rudolph as principals, and Joseph Spevak and others as sureties, in the penal sum of $1,000. The bond recites the entry of the order granting the writ of assistance, and recites the appeal taken therefrom. The condition of the bond is as follows:

“Now therefore, if.the said Mary Keinath, Ernest Keinath and Peter Rudolph shall duly prosecute their said appeal with effect, and pay the costs and damages rendered or to be hereafter rendered against them in case said order shall be affirmed in said Appellate Court, then the above obligation to be void, otherwise to remain in full force and effect.”

The case was pending in this court for about three years, the appellants therein remaining in possession of the premises in the meantime. The order granting the writ of assistance was affirmed by this court, and upon the case being redocketed in the Superior Court, an order for an alias writ of assistance was made under which the plaintiff in error, Cigler, finally obtained possession of the premises on March 18, 1912.

The plaintiff in error claims the right in this case to recover upon the bond for the rental value of the premises during the time the possession was withheld from him by the taking of the appeal, namely, from March 30, 1909, to March 18, 1912.

It was agreed by the parties that the rental value should be computed at $15 per month. Plaintiff in error also claims to recover his attorney’s fees in the Appellate Court, $150; also the amount paid for printing briefs in the Appellate Court, $27; and taxed costs in this court,. $18.20; also the sheriff’s costs on the writ of assistance, $25.50.

It was the contention of the defendants in error on the trial that no recovery could be had on the bond for the use and occupation, or rental value, of the premises during the pendency of the appeal, because said use, occupation and rental value is not specifically mentioned in the bond; in other words, the contention of the defendants below is that under the condition of the bond the word “damages” means costs, and the condition is to pay the costs only,—thus the question arises as to the construction of the condition of the bond.

"While the language used in the bond is general, it must be presumed that it was intended to have some real effect and to give plaintiff in error some security for the damages resulting from the delay attending upon a fruitless appeal, if the appeal described in the bond should be without avail. The whole bond and every word and phrase therein, together with the circumstances surrounding the parties at the time it was given, should be looked to for the purpose of determining what the contract is and what the real intention of the parties was, taking the terms of the bond in their plain, ordinary and popular sense. One of the parties to the bond being a surety, his liability must undoubtedly be determined in accordance with the rules of law applicable to a surety. A rule universally recognized by the courts is that a surety has a right to stand upon the strict terms of his obligation, and that his liability is not to be extended by implication beyond the terms of the contract. In Shreffler v. Nadelhoffer, 133 Ill. 536, there was before the court an appeal bond, the construction of which was involved. The court in its opinion, after referring to the strict construction of a contract of a surety and the holdings of the Supreme Court with reference thereto, states that it has long been the settled law of this State that the contract of a surety is to be strictly construed, and that his liability is not to be extended by implication. The court, however, proceeds to say:

“It is not meant by this rule, however, that the courts, in endeavoring to ascertain the precise terms of the contract actually made by a surety, may not resort to the same aids, and invoke the same canons of interpretation which apply in ease of other contracts. Thus in Stull v. Hance, 62 Ill. 52, the rule that in construing contracts and written agreements, the whole context should be considered, and the intention of the parties ascertained from it, was applied to the interpretation of the contract of a surety; and in Mix v. Singleton, 86 id. 194, where a similar contract was under consideration, the rule that the words used should be construed as ordinarily understood was applied.”

The court quotes with approval from Kastner v. Winsterley, 20 Up. Can. C. P. 101, where various English authorities were reviewed, the following:

“The rule of construction, then, of a contract of this description, is, to construe it as all other contracts, not giving a strict meaning to the words used against the party using them, nor yet as against the party in whose favor they are used, but to collect the real intention of the parties from the terms used in the contract, taking them in their plain, ordinary and popular sense, unless by the known usage of the trade they have acquired a peculiar sense, and from the surrounding circumstances.”

After reviewing the authorities in other jurisdictions, the court, in the Shreffler case, supra, recognizes that the condition of the bond before it, when read by itself and without reference to surrounding circumstances, is of doubtful meaning, which, the court thinks, was the result of the effort of the draftsman in preparing the bond to combine the provisions of an injunction bond and an appeal bond, and that either of two different readings of the bond might be adopted without doing violence to any of the language of the condition. Nevertheless, the court proceeds to hold that when it viewed the condition of the bond in the light of surrounding circumstances, there could be no reasonable doubt as to which of the meanings was within the purpose and intent of the parties, and the court gave the bond before it the construction which would give effect to the purpose and intent of the parties, taking into consideration the circumstances under which the appeal was taken and the bond was given, and what must have been the purpose of the court in requiring a bond and the purpose in giving it, and held that the language, though general, was sufficiently definite to require the obligors on the bond to pay the damages that the obligee on the bond might suffer from the continuance of the injunction.

Under the doctrine of the Shreffier case, supra, and the authorities cited therein, we are of the opinion that the bond in the case at bar was intended by the parties, and must be construed, to cover the damages which the plaintiff in error might suffer by reason of being deprived of the possession of the premises in question during the pendency of the appeal, and that the court below erred in excluding the rents and profits of the premises withheld by the obligors on the bond during the time of the pendency of the appeal.

No question is made in the briefs and arguments of the parties but that the rental value of the premises withheld is the correct measure of damages. Plaintiff in error was held to be entitled to immediate possession of the premises, and that possession being withheld, he suffered the loss of the rents and profits thereof. In other jurisdictions it has been frequently held that under a bond, such as the one before us, the rental value of the premises may be recovered in a suit on the bond as “damages rendered or to be rendered.” St. Louis S. & R. Co. v. Wyman, 22 Fed. 184; Stults v. Zahn, 117 Ind. 297; Green v. Sternberg, 15 Mo. App. 32.

We do not construe the bond, however, as covering the cost of printing the plaintiff in error’s briefs in this court or the amount claimed by plaintiff in error for counsel fees in this court on the appeal. The bond does cover the court costs in this court on the appeal and the sheriff’s fees for the execution of the alias writ of assistance. In our opinion, the plaintiff below, plaintiff in error here, was entitled to recover the stipulated fair rental value of the premises from March 30, 1909, to March 18, 1912, which amounted to $534, and the costs above named, $43.70, making in all $577.70, together with interest thereon from December 21, 1912, at five per cent., amounting in all to $612.70. The judgment below is reversed and judgment is entered here for the amount above named, $612.70.

Reversed and judgment here.


text:
    Thomas Smith, Defendant in Error, v. Martin Fligel, Plaintiff in Error.
    Gen. No. 19,174.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rattebty, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Thomas Smith against Martin Fligel to recover the value of lumber wrongfully converted. From a judgment for plaintiff for fifty dollars, defendant brings error.

      Abstract of the Decision.
    Bailment, § 10

      —when gratuitous bailee not liable. In an action for the conversion of lumber placed by plaintiff on the property of defendant, with the latter’s consent, there being no evidence to show that any of the lumber was taken by defendant, it was held that defendant was merely a gratuitous bailee, and, in the absence of evidence of gross negligence on his part, was not liable.
    Blum & Blum, for plaintiff in error.
    Harry Brown, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XV, same topic and section numbed

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice Barres

text:
    Cross and Banta Show Printing Company, Defendant in Error, v. Edward H. Marhoefer et al., trading as Col. W. A. Thompson Company (not Inc.), Plaintiffs in Error.
    Gen. No. 18,718.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Cross and Banta Show Printing Company against Edward H. Marhoefer, W. A. Thompson and Wellington T. Stewart, as copartners, trading as Col. W. A. Thompson Company (not Inc.), to recover for printing furnished defendants. Judgment was rendered against defendants below and defendant Marhoefer brings error.

      Abstract of the Decision.
    Corporations, § 27*—when person advancing money to proposed corporation not considered a partner. Agreement with a view to corporate organization held to contemplate the advance of certain funds by one of the parties as a'loan for the payment of the company’s debts, to be secured by a lien upon the corporate property, in part consideration therefor, such party to receive a stock bonus and to become one of the directors, and not as a stock subscription agreement, and, hence, such party was not liable as a partner where the agreement was not carried out, and the corporation was not formed.
    Burge, Harbour & Chadwick, for plaintiffs in error.
    Adolph Marks, for defendant in error.
   Mr. Justice Barres

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    Henry J. Patry, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 18,790.
    1. Master and servant; § 826

      —when inconsistent findings construed as finding contributory negligence. In an action by a switchman for personal injuries a special finding deducting the sum of $5,000 from the total amount of damages, stating that it was “the proportion or just share thereof attributable to the negligence of plaintiff,” is necessarily a finding of contributory negligence, although the jury specifically found otherwise in another special finding, hence the verdict cannot stand on a common-law count.
    2. Commerce, § 4

      —when relation of accident to interstate commerce must be shown. Where in an action under the Federal Employers’ Liability Act the effect which the accident had or tended to have upon interstate commerce is left wholly to conjecture, a verdict for plaintiff will not be permitted to stand.
    3. Commerce, § 4

      —when employe not engaged in interstate commerce. The mere fact that a switching crew, of which plaintiff was a member, was engaged during the greater portion of the time in moving empty coaches engaged in interstate commerce does not bring the case within the Federal Employers’ Liability Act, where at the time of the injury plaintiff was engaged in moving to a coach yard, cars employed in intrastate commerce, and the accident, which occurred at a terminal station, in no way interfered with trains engaged in interstate commerce, entering or leaving the station.
    4. Commerce, § 3

      —what is test under Federal Employers' Liability Act. In an action under the Federal Employers’ Liability Act the test of liability is not whether the carrier is one that engages in interstate commerce, but whether the act in which it was engaged at the time of injury to its employe constitutes or affects interstate commerce.
    5. Commerce, § 4

      —when interstate commerce not involved in action under Federal Employers’ Liability Act. Where in an action by a switchman under the Federal Employers’ Liability Act it was shown that at the time of the injury plaintiff was engaged in moving from a railway terminal, at which interstate trains arrived and departed, certain empty cars used only in intrastate commerce, that the movement was on tracks in which there were no trains at the time engaged in interstate commerce, and that neither the movement nor the accident occasioned thereby tended in any way to impede or interfere with the movement of any train engaged in interstate commerce, it was held that the case was not within the act.
    6. Commerce, § 4

      —when interstate commerce not affected by injury to employe. Where at the time of his injury, a switchman was employed in the movement of empty cars engaged only in intrastate commerce, the fact that under the usual schedule in the yards he would, if he had not been injured, have been engaged in the movement of trains engaged in interstate commerce about a half hour later, raises no presumption of itself, that his injury affected or had a tendency to affect interstate commerce.
    7. Appeal and error, § 1250

      —when requesting special findings not a waiver of refusal of instruction.—Where in an action under the Federal Employers’ Liability Act defendants request that the court instruct the jury that it was not engaged in interstate commerce at the time of plaintiff’s injury was denied, error in denying same is not waived by the submission of special interrogatories thereon at defendants’ request.
    Clark, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Sltjsseb, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion on rehearing filed March 10, 1914.

      C. G. Austin and Beverly W. Howe, for appellant; William S. Kies, of counsel.
    James C. McShane, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, samo topic and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This is an appeal from a judgment awarding damages on account of an injury sustained by appellee while working as a switchman for appellant. In view of the fact that the jury deducted from the total amount of damages, which it found appellee sustained, the sum of five thousand dollars, stating in a special finding that it was “the proportion or just share thereof attributable to the negligence of plaintiff,” it necessarily found that appellee was guilty of contributory negligence, even though it specifically found otherwise in another special finding. The verdict ánd judgment, therefore, cannot stand on a common-law count. They must stand, if at all, on the theory on which the case was apparently tried, that it comes within the provisions of the Act of Congress of April 22, 1908 (35 Stat. 65, c. 149), known as the “Employers’ Liability Act,” which provides for a diminution of damages where there is contributory negligence. We shall first state the facts essential to the consideration of that theory.

The accident occurred at the Dearborn railway station, Chicago, used by appellant and its several tenant lines. Appellant furnished them terminal facilities, trackage rights, and the use of said station, which it maintained together with the approaches thereto, the yards and other facilities. For brevity, the companies to which it furnished such service may be designated as the Grand Trunk, Wabash, Monon, Erie, Santa Fe and Ohio, respectively. All of them engaged in interstate commerce. Suburban or local trains, engaging only in intrastate passenger service, were run in and out of that station by the Grand Trunk, Wabash and appellant, respectively.

Appellant’s tracks are all in the State of Illinois. They intersect and connect with practically all the railroads entering Chicago. A portion of the trackage is leased to and operated by the Belt Railway Company of Chicago. Whether or not it is engaged in interstate traffic, its business and appellant’s are entirely separate. The only business conducted by appellant as a common carrier is the operation of its suburban trains aforesaid. None of the trains, engines and cars used in such service go outside of the State.

In the city, about five miles south of the station, appellant has a coach yard and roundhouse. After the arrival of a train of a tenant company in the station, its engine is uncoupled and taken by its own crew to the roundhouse, and appellant’s engine, with its crew consisting of an engineer, fireman, conductor and two switchmen, hauls the coaches of said train to the coach yard, where they are cared for until hauled back by appellant’s engine and crew to await the engine of the tenant company, which is usually attached to the coaches a short time prior to the departure of the train. Appellant has nothing to do with any of the tenant’s passenger trains while in service, and not until their trip is completed. It merely handles their empty coaches. It had another yard just south of the station, in which it usually handled, switched and stored cars engaged in suburban service.

The train shed at said station is about five hundred feet long. The tracks within it are numbered, from west to east, one to ten respectively. About four hundred and fifty feet from the shed is what is called a “puzzle” switch through which engines and coaches, as they approach, may be turned into these tracks.

Appellant had a force of men working day and night with about seven engines, removing empty cars to and from their respective yards. At 6:00 p. m. on the evening of the accident the crew to which appellee belonged began as usual its period of twelve hours’ work. They were accustomed first to put in thirty to forty-five minutes on suburban or local trains and the rest of the night on interstate trains. The trains in the station at the time of the accident were arranged on the several tracks as follows: A Wabash local on track 1; a Grand Trunk local on track 2; a “made-up’’ appellant’s local on track 4, ready to depart at 6:18 p. m., and in front of it two of appellant’s local coaches. The record shows no other trains in the station at the time, except on tracks 6 and 8, one an Erie, the other a Monon train.

The first work of the evening was to remove the Wabash local on track 1, and appellant’s two local coaches on track 4, to the yard nearby (which ordinarily took about ten to fifteen minutes), so that the local train on the latter track, ready to depart at 6:18, could get out of the station.

None of the cars engaged in or affected by this movement, or on the tracks used in it, were operated in anything except intrastate commerce.

The engine in question, going north, ran into the shed on track 1, coupled to the two Wabash coaches thereon, backed and- switched to track 4, and went north thereon to couple said coaches to appellant’s two suburban coaches. On account of negligence by appellee or the engineer (which it is unnecessary to consider) to observe signals and the consequent failure to control the engine, the cars were brought together under the shed with considerable force, causing the injury to appellee.

The accident happened shortly after 6:00 p. m. The time of the departure of the trains from the station up to 9:00 p. m. was as follows: A Santa Fe interstate train at 6:00 (which appears to have left before the accident); a Wabash local at 6:20; one of appellant’s locals at 6:23; a Grand Trunk local at 6:25; a Santa Fe interstate at 8:00; a Monon interstate at 9:00. The arrivals up to 9:00 p. m. were as follows: One of appellant’s locals at 6:02; a Grand Trunk interstate at 6:30; one of appellant’s locals at 7:25; a Wabash local at 7:50; a Monon interstate at 8:05; and a Grand Trunk interstate at 8.55. What tracks these trains used the record does not show. It does appear, however, that the yardmaster could and often didr turn them in on any of the ten tracks as was to the greatest advantage. The accident did not prevent the use of any one of the other nine tracks or the operation of the switch. It does not even appear that it occasioned any delay in removing the coaches that were the subject of the accident, or their use, or the usual use of the track they were on, or the departure of the local train back of them on schedule time. In fact, there was no attempt to show that any train, local or interstate, failed to arrive or depart on schedule time in consequence of the accident. It will be observed from the foregoing schedule that no interstate train was due to arrive or depart until about two hours thereafter except a Grank Trunk due to arrive at 6:30, whose movement, for aught the record shows, was on schedule time.

On such a state of facts the court was asked by appellant in due order to direct a verdict for it on the counts based on the Federal statute, to instruct the jury as a matter of law that neither appellant nor appellee was engaged in interstate commerce, and to grant a new trial. As the facts bearing upon the question of interstate commerce were undisputed, it became a question of law, and error is assigned on the court’s refusal of these several requests. It becomes necessary, therefore, to consider whether the evidence tends to show that appellant and appellee were engaged in interstate commerce at the time of the accident. As conceded by appellee, this presents the question whether the evidence tends to show that the nature of the act engaged in at that time had any direct, real or substantial relation or connection with interstate commerce, it being said by the United States Supreme Court in the Second Employers’ Liability Cases (223 U. S. 1), that the power of Congress over commerce “does not extend to any matter or thing which does not have a real or substantial relation to some part of such commerce.” (P. 47.)

It clearly appears from the foregoing facts that the work engaged in at the time pertained wholly and directly to the movement of intrastate trains and that their movement in no way involved or affected the movement of an interstate train.

' The only possible relation, therefore, the accident could have to interstate commerce was such as might ensue from disabling appellee, as one of the alleged instrumentalities thereof, from rendering further service, which, in the regular course of employment, would in a half hour or so have been connected with the movement of empty cars used for interstate trains. But it does not appear that the elimination of his service tended to delay or interfere with the movement of those trains or those cars. As far as the record shows, they continued to move as usual. If the accident had or tended to have any effect on interstate commerce, it does not affirmatively appear, but is left wholly to conjecture, and “mere surmise or conjecture is never regarded as proof of a fact and the jury will not be allowed to base a verdict thereon.” Lyons v. Chicago City Ry. Co., 258 Ill. 75, 81; 14 Encyc. of Evidence, 99.

The claim of such a relation is based mainly on the fact that for the greater part of the time the engine and its crew were employed in moving empty coaches used in interstate commerce. But, assuming such movements constituted interstate commerce, or that appellant was engaged in interstate commerce in any other branch of its service, such facts would not be controlling. The test of liability under the statute is not whether the common carrier is one that engages in interstate commerce, bnt whether the act, in which it may be engaged at the time of injury to its employe, constitutes or affects interstate commerce. To quote the most recent expression of the United States Supreme Court on this subject: “The true test always is: Is the work in question a part of the interstate commerce in which the carrier is engaged 1 ’ ’ Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 152.

Because of the failure of the original Employers’ Liability Act, passed in 1906, to observe this distinction, the Supreme Court of the United States declared it unconstitutional. Employers’ Liability Cases, 207 U. S. 463. 'That statute was addressed to every common carrier engaged in interstate commerce, without limitation as to whether its business was at all time's of that character. In the case last cited, Mr. Chief Justice White, referring to its failure to observe such limitation, said that it imposed a liability on railroads “without qualification or restriction as to the business in which the carriers or their employes may be engaged at the time of the injury.” (Id. p. 498.)

Beferring to the present act passed to cure such defect, the Court said in the Pedersen case, supra: “There can be no doubt that a right of recovery thereunder arises only where the injury is suffered while the carrier is engaged in interstate commerce and while the employe is employed by the carrier in such commerce.” (P. 150.)

The record before us contains no evidence tending to establish such a state of facts. The essential and undisputed facts, when summarized, are: (1) The act engaged in at the time of the injury was a movement of coaches used only in intrastate commerce; (2) the movement was on tracks on which there were no trains at the time engaged in interstate commerce; (3) neither the movement nor the accident occasioned thereby tended in any way to impede or interfere with the movement of any train engaged in interstate commerce.

We recognize that the statute in question is given the broadest construction, and that the meaning given to the term “interstate commerce” in the Federal courts is sufficiently elastic to include acts which have such a substantial and close relation to it as directly tend to affect it. But in the Federal cases where this statute has been applied, that relation clearly appears, and does not rest on mere speculation or possible situations. Inasmuch as these cases are cited to support appellee’s contentions, we shall briefly point out the features that in our judgment clearly distinguish them from the case at bar.

In the Pedersen case, supra, the carrier’s employe was injured by one of its trains while he was carrying bolts to be used in putting a girder into a bridge that was out of repair and used for interstate as well as intrastate commerce. The act being essential to the keeping of an instrumentality of interstate commerce in a proper state of repair, it was held to be so clearly related thereto as to be in practice and legal contemplation a part of it.

In St. Louis, S. F. & T. Ry. Co. v. Seale, 229 U. S. 156, the carrier’s employe was injured by one of its trains while he was engaged in an act directly connected with an incomplete interstate transportation in which the carrier was engaged, namely, while going through its railroad yard to meet an incoming interstate freight train for the purpose of performing his duty of ascertaining the numbers and initials of cars for the guidance of the- switching crews, it being necessary that the trains be broken up and the cars taken to appropriate tracks for making up outgoing trains or unloading freight. ' The act was held to be connected directly and immediately with the movement of interstate freight.

In Norfolk & W. Ry. Co. v. Earnest, 229 U. S. 114, the employe was injured while piloting the carrier’s locomotive through several switches to a main track where it was to be attached to an interstate train to assist in moving it to another station. The connection with interstate commerce was so obvious as not to be questioned.

In Lamphere v. Oregon R. & Nav. Co., 116 C. C. A. 156, 196 Fed. 336, the employe was killed by a train of the carrier engag’ed in interstate commerce while he was proceeding under its imperative command on his way to relieve, in the capacity of fireman, the crew of an interstate train. As held by the court, the accident had the direct effect of hindering and delaying the movement of that train.

In Zikos v. Oregon R. & Nav. Co., 179 Fed. 893, the employe was injured while engaged in repairing the carrier’s main track used in interstate commerce, an act manifestly connected therewith.

In Central R. Co. of New Jersey v. Colasurdo, 113 C. C. A. 379, 192 Fed. 901, the carrier’s employe was struck by its train engaged in interstate commerce while he was repairing an interstate road over which interstate passengers, freight, cars and engines engaged in interstate commerce were constantly passing.

In Northern Pac. Ry. Co. v. Maerkl, 117 C. C. A. 237, 198 Fed. 1, the carrier’s employe was injured while engag’ed in repairing a car used by it indiscriminately in both interstate and intrastate commerce.

In each of the foregoing cases there is little, if any, room for controversy that with respect to the act in which the employe was engaged at the time of his injury or death, both he and the carrier were engaged in interstate commerce. In each the act being performed directly contributed to carrying on interstate commerce, either by repairing or putting to practical use therefor a necessary instrumentality thereof, or in obstructing or impeding the operation of a train engaged therein. Under one or the other of these classifications fall all of the cases to which our attention has been directed. Others cited are: Carr v. New York Cent, & H. R. R. Co., 77 Misc. (N. Y.) 346; Jones v. Chesapeake & O. Ry. Co., 149 Ky. 566; Horton v. Oregon-Washington R. & Nav. Co., 72 Wash. 503; Montgomery v. Southern Pac. Co., 64 Ore. 597; Behrens v. Illinois Cent. R. Co., 192 Fed. 581.

In some eases, notably the Behrens case, supra, the relation of the act engaged in to interstate commerce was held to exist mainly because of the indiscriminate character of the work. But no such feature is presented here. Appellee was not moving trains indiscriminately. For the first half hour or so he was regularly employed in nothing else than the movement of intrastate trains. The fact remains that neither he nor appellant was, at the time of his injury, engaged in an act of interstate commerce or one that in any wise related or contributed thereto.

It appearing, therefore, that appellee was injured while engaged in an act that was distinctly one of intrastate commerce, having no relation to the acts in which he might have been engaged later in connection with interstate commerce, no liability was established under the Employers’ Liability Act in the absence of proof that the injury he suffered had or tended to have some real, and not merely imaginary effect on the latter. The fact that he might have been employed in interstate commerce half an hour or so later had he not been injured, raises no presumption of itself that his injury actually affected or had a tendency to affect interstate commerce. If it be otherwise, then the power of Congress over interstate commerce, which extends to a matter or thing that has a “real or substantial relation” thereto, will be construed to rest, not on the actual existence of such relation but the possibility of it. Thus the line of demarcation between intrastate and interstate commerce would become so obscure as to render more theoretical than practical the distinction upon which the first Employers’ Liability Act was held unconstitutional.

But it is urged by appellee that because the court, at appellant’s request, submitted special interrogatories requiring’ the jury to answer whether either appellant or appellee was engaged in interstate commerce at the time of the injury, and because appellant made no specific objection or motion with respect to the jury’s adverse finding thereon, it cannot be heard here to deny that it was a question of fact. The court having refused to instruct the jury that appellant was not engaged in interstate commerce as a matter of law, to which appellant excepted, and having thereby ruled adversely to appellant’s contention, “appellant company was not,” as said in North Chicago Electric Ry. Co. v. Peuser, 190 Ill. 67, “required to abandon all chances of a favorable verdict because the court would not grant an instruction to which it believed it was entitled.” The case having been submitted to the jury on appellee’s theory that it was a question of fact and not of law, appellant had the right to any benefit it might obtain thereunder, without waiving its theory that the question was one of law. This is quite a different proposition from that urged by appellee, namely, the right to question in this court the sufficiency of evidence to support a special finding of fact where that question was not raised on a motion for new trial.

Cases are cited by appellee to the effect that whether parties are engaged in interstate commerce is a question of fact. In those cases there was evidence tending to support the fact in controversy, but in the absence of evidence tending to show a fact essential to a verdict for a plaintiff, there is nothing for the jury to consider. Had the motions for directed verdicts on the counts predicated on the federal statute, which we tbinV the record shows to have been duly presented, been granted, or had said refused instructions been given as they should have been, the jury’s deliberations would have been confined to the question of liability at common law, as to which their finding, as above stated, was adverse to appellee. The judgment must be reversed with the necessary consequence of a finding here of nonliability on the part of appellant.

Reversed.

Mr. Justice Clark

dissenting: The record is in such condition that it perhaps must be assumed, so far as this case is concerned, that passenger cars used in so-called suburban trains, plying only between points within the State, are at no time. instrumentalities of interstate commerce, notwithstanding the well-known fact that passengers traveling upon interstate journeys, using through tickets sold at suburban stations, are, with their baggage, often transported for a part of the way in such cars, and that passengers also frequently are transported upon through tickets to suburban stations, having begun their journeys at points outside the State. In a great terminal station like the one in which this accident occurred, switch engines, the men who work upon and with them, the tracks, switches, buildings, etc., are used very largely, and often principally, in what is concededly interstate commerce. Clearly, under the authorities, the switch engines, tracks, switches, buildings, etc., are at all times instrumentalities of interstate commerce, and the work of keeping them in repair, “is so closely related to such commerce as to be in practice and in legal contemplation a part of it.” Pedersen v. Delaware, L. & W. R. Co., 229 U. S. 146, 151.

The duties of a switchman who is required to use these instrumentalities, whatever may be the character of his immediate work, would also seem to be “so closely related to such commerce as to be a part of it.”

In Southern Ry. Co. v. United States, 222 U. S. 20, 27, it is said:

“Speaking only of railjroads which are highways of both interstate and intrastate commerce, these things are of common knowledge: Both classes of traffic are at times carried in the same car and when this is not the case the cars in which they are carried are frequently commingled in the same train and in the switching and other movements at terminals. Cars are seldom set apart for exclusive use in moving either class of traffic, but generally are used interchangeably in moving both; and the situation is much the same with trainmen, switchmen and like employes, for they usually, if not necessarily, have to do with both classes of traffic. Besides, the several trains on the same railroad are not independent in point of movement and safety, but are interdependent, for whatever brings delay or disaster to one, or results in disabling one of its operatives, is calculated to impede the progress and imperil the safety of other trains.”

In my opinion the facts as disclosed by the record show that the nature of the act engaged in at the time of plaintiff’s accident had a very direct, real and substantial connection with interstate commerce.

In the case of Behrens v. Illinois Cent. R. Co., 192 Fed. 582, the Court says:

“In this view of the case, I consider that the usual and ordinary employment of the decedent in interstate commerce, mingled though it may be with employment in commerce which is wholly intrastate, fixes his status, and fixes the status of the railroad, and the mere fact that the accident occurred while he was engaged in work on an intrastate train, rather than a few minutes earlier or later when he might have been engaged on an interstate train is immaterial. If he was engaged in two occupations that are so blended as to be inseparable, and where the employe himself has no control over his own actions and cannot elect as to his employment, the court should not attempt to separate and distinguish between them.”

The case last referred to does not appear to have been considered by a court of review. The opinion expressed, however, is in my judgment in consonance with the purpose of Congress in enacting the ameliorative legislation upon which this suit is based. That Congress had the power to enact such legislation is no longer a matter of doubt. Second Employers’ Liability Cases, 223 U. S. 1. -(-aí

The term “intrastate train,’- -,s used in many cases, is misleading if the idea conv ed is that such trains may not be mediums or instru ntalities of interstate commerce.


author: Mr. Justice Barnes

text:
    Charles P. Bradley, Appellee, v. Western Casket and Undertaking Company, Appellant.
    Gen. No. 18,936.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 29

      —when objection to want of proof untenable. Where in an action on an oral agreement substituted for a prior written contract the statement of claim alleged the “cancellation” of the written contract and plaintiff’s property was to he “appraised,” an objection that there was no proof of either is untenable where the record clearly showed that the terms “cancellation” and “appraised” were understood as meaning “terminated” and “estimated,” respectively, and the case was tried on that theory, and defendant admitted the termination of the written contract, taking issue upon the fact as to the agreed valuation of the property.
    2. Municipal Court of Chicago, § 29

      —when sufficiency of statement of claim will not be reviewed. Where the sufficiency of plaintiff’s statement of claim was not questioned before the trial and was sufficient to inform defendant of the nature of the claim which it had to meet, and the record indicates that defendant understood it, ths. court on appeal will not consider whether there were omissions from the statement of averments essential to the statement of a legal cause of action.

      Appeal from the Municipal Court of Chicago; the Hon Judson P. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Charles P. Bradley against Western Casket and Undertaking Company in the Municipal Court of Chicago upon an oral agreement. From a judgment for plaintiff, defendant appeals.
    Bastrup & 0 ’Neill, for appellant.
    Stedman & Soelice, for appellee.

      See IUinois Notes Digest, Veis. XI to XV, same topic and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

3. Evidence, § 94 —when evidence immaterial. Where the statement of claim alleged that under the contract sued on plaintiff’s property was to he appraised at a certain sum, “as a reasonable cash value thereof,” proof that such sum was the reasonable cash value of the property is immaterial.

4. Contracts, § 71 —what constitutes sufficient, consideration for a novation. Where a written contract providing for the payment by defendant to plaintiff of a certain sum per month for livery service was, because defendant was losing money thereunder, terminated by the parties by a parol agreement, under the terms of which plaintiff’s equipment was to be sold at public auction, defendant «agreeing to pay the difference between the estimated value and the amount realized on the sale, together with the costs of the sale, plaintiff to be appointed one of its managers at a fixed salary, it was held that the new agreement was founded on a sufficient consideration.

5. Trial, § 68 —when court may require showing of relevancy of items of books of account. Under a general offer of books of account and a bundle of loose sheets therefrom it is not error for the court to require counsel to point out the specific items deemed relevant as a condition to their admission in evidence.

6. Trial, § 68 —when materiality must be shown on offer of proof. The court is not required to receive proof offered in such form that its materiality cannot be determined.

7. Evidence, § 265 —when memoranda by auctioneer’s clerk admissible. Pads made by an auctioneer’s clerk containing original memoranda of an auction sale held pursuant to an agreement between plaintiff and defendant are admissible in behalf of plaintiff to show the amount of the sale where there is evidence that the clerk acted as agent of both parties.

8. Appeal and error, § 1473 —when admission of erroneous evidence harmless. The admission of improper evidence as to an undisputed fact fully proved by competent evidence is harmless error.

9. Contracts, § 377 —when prior contract admissible in action upon substituted agreement. In an action upon a parol contract between the parties terminating a prior written contract between plaintiff and defendant’s predecessor in business, whose obligations it had assumed, such prior contract is relevant upon the question of the consideration for the subsequent agreement and is admissible against defendant, although the latter was not a party thereto.

10. Trial, § 270 —when special findings properly refused. Special findings which do not call for the finding of an ultimate or controlling fact are properly refused.


text:
      Leroy R. Parker, Appellee, v. Crane Company et al., on appeal of Crane Company, Appellant.

    Gen. No. 18,959.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and ebbob, § 1512

      —when remarks of court not error. Remarks of court on cross-examination of plaintiff’s expert witnesses in response to the insistence of defendant’s counsel as to the propriety of questions asked, held not error where the remarks merely expressed the views upon what the court based its ruling, and the only real question was as to the correctness of its rulings and not its reasons therefor.

      Appeal from the Circuit Court of Cook county; the Hon Chables H. Bowles, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed March 10, 1914.
    Modified in opinion filed March 14, 1914.
    Statement of the Case.
    Action by Leroy E. Parker against Crane Company et al. to recover for personal injuries sustained by plaintiff resulting from the negligent driving of an automobile truck owned by defendant. The automobile truck ran into a street car, on the rear platform of which plaintiff was standing, the jolt causing his body to lose its balance and strike the controller or some other part of the car. From a judgment in favor of plaintiff for one thousand dollars, defendant Crane Company appeals.
    Alden, Latham: & Young, for appellant.
    Henry E. Eathbone and Epstein & Mars, for appellee.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number,

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

      fSee Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.

2. Evidence, § 436 —sufficiency of hypothetical questions. A party is not obliged in his hypothetical question to assume all the facts in evidence that may bear on the answer sought; the course is always open to the other party to supply, on cross-examination, an omission deemed material.

3. Witnesses, § 210 '—when hypothetical questions do not invade province of jury. Questions calling for answers upon a hypothetical state of facts and not for ultimate facts, held not to invade the province of the jury.

4. Witnesses, § 218 —when sustaining objection to question as submission to physical examination harmless. In an action for personal injuries, where plaintiff was asked by defendant’s counsel, “Will you submit to a physical examination of doctors that I select,” and the plaintiff answered, “yes * * * if you can arrange it with the attorneys,” action of court in sustaining an objection to a further question, “Regardless of what your attorneys say, will you or will you not submit to a physical examination,” held harmless.

5. Witnesses, § 220 —when cross-examination of experts limited to inquiry on direct examination. In an action for personal injuries, where one of plaintiff’s attending physicians testified to objective symptoms found by him upon examination of plaintiff, counsel for defendant on cross-examination cannot obtain opinions as to the consequences of such symptoms if they were not inquired of on direct examination.

6. Witnesses, § 226 —when questions on cross-examination characterizing plaintiffs illness improper. In an action for personal injuries, objection to a question asked by defendant’s counsel on cross-examination of one of plaintiff’s witnesses characterizing plaintiff’s illness as a “fit,” held properly sustained where there is nothing in the record to warrant such a characterization.

7. Witnesses, § 183 —sufficiency of answers. In an action for personal injuries, certain lay witnesses testified to the general appearance of plaintiff after the accident. The defendant objected on the ground that they should be required to state his appearance as they observed it on each specific occasion. Held that the answers contained nothing the witnesses might not properly testify to, and did not preclude defendant from making a more specific inquiry.

8. Witnesses, § 257 —when variance in testimony not material for the purpose of impeachment. In an action for personal injuries, a witness for plaintiff testified he “felt the jar” of the collision. On cross-examination he characterized it as a “slight jar.” Later, when recalled for cross-examination for impeachment, he was asked if lie did not in a written statement call it “a very slight bump” and the court sustained an objection to the question and refused to receive the statement in evidence. Held, that the statement presented no material contradiction of his previous testimony.

9. Witnesses, § 210 —when question improper as assuming facts. It is not proper practice for an attorney under the guise of a question to assume as a fact in a case that which has no testimony to support it.


text:
    David Wiener, trading as Wiener Lumber Company, Defendant in Error, v. American Coal and Supply Company, Plaintiff in Error.
    Gen. No. 19,017.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by David Wiener, trading as Wiener Lumber Company, against American Coal and Supply Company, a corporation, to recover the contract price of wood sold by plaintiff to defendant. The case was heard by the trial court without a jury. To reverse a judgment in favor of plaintiff, defendant prosecutes a writ of error.
    Edward J. Kelley, for plaintiff in error.
    Sorrenscheir, Berksor & Fishell, for defendant in error.

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

   Mr. Justice Barres

delivered the opinion of the court.

Abstract of the Decision.

Sales, § 329 —sufficiency of evidence. In an action for the contract price of wood sold by plaintiff to defendant, the defense being that the quality was not as represented and that the defendant was entitled to a deduction of the difference between the contract price and the market price of the wood delivered, a judgment in favor of plaintiff on conflicting evidence was sustained.


text:
    Henry J. Spruhan, Plaintiff in Error, v. The Searchlight Gas Company, Defendant in Error.
    Gen. No. 19,041.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Geobge J. Cowing, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Henry J. Spruhan against The Searchlight Gras Company to recover a salary for services rendered the defendant for a certain period at two hundred and fifty dollars per month, alleged in the statement of claim to be pursuant to an agreement recorded in the minutes of defendant’s board of directors. From a judgment in favor of the defendant, plaintiff brings error.
    Henry W. Leman, for plaintiff in error.
    Charles E. Selleck, for defendant in error; John S. Bountree, of counsel.
   Mr. Justice Barnes

delivered the opinion of the

Abstract of the Decision.

Corporations, § 296*—when evidence insufficient to prove agreement for treasurer's salary. In an action against a corporation to recover a salary as treasurer alleged to be due pursuant to an agreement recorded in the minutes of defendant’s board of directors, a judgment for defendant was sustained, it appearing, that no such salary was provided by the corporation’s by-laws, nor by any resolution passed by the board of directors, that the minutes of the board did not disclose any provision for a salary and that no contract of any kind for such salary was proved by plaintiff.


text:
    First National Bank of Princeton, Defendant in Error, v. Joseph C. Ficklin, Plaintiff in Error.
    Gen. No. 19,079.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Continuance, § 50

      —when affidavit that defendant's attorney was engaged, insufficient ground for. Where defendant’s attorney of record was absent when the case was duly called for trial, held that an affidavit presented in support of a motion for a continuance on the ground that the attorney was engaged was wholly inadequate to warrant a continuance.

      Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by the First National Bank of Princeton against Joseph C. Ficklin on a promissory note. From a judgment in favor of plaintiff, defendant brings error.
    Benjamin F. J. Odell, for plaintiff in error.
    Miller, Starr, Packard & Peokham, for defendant in error; Robert C. Wheeler, of counsel.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

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

   Mr. Justice Barnes

delivered the opinion of the court.

2. Bills and notes, § 373 —when introduction of note makes prima facie case for plaintiff. Where the execution of a note is not denied, the note when offered in evidence makes a prima facie case for plaintiff, including the fact of plaintiff’s ownership, notwithstanding a stamped indorsement thereon to a third party which, under the statute, the owner was privileged to strike out.

3. Bills and notes, § 375 —proof of consideration. In a suit on a promissory note, proof of consideration is not essential to a prima facie case; want of consideration is an affirmative defense for defendant to establish.

4. Costs, § 67 —damages for prosecuting a writ of error for delay. Ten per centum of the amount of the judgment allowed as statutory damages under R. S. ch. 33, § 23, J. & A. 2737, for suing out and prosecuting a writ of error for delay, it appearing that the contentions for reversal were obviously untenable and devoid of merit.


text:
    Charles Andrews, Defendant in Error, v. James Sarantakis, Plaintiff in Error.
    Gen. No. 19,102.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Eeplevin by Charles Andrews against Nick Sarantakis and James Sarantakis to recover possession of certain goods and chattels. The court found the plaintiff entitled to the possession of the property and entered judgment on the finding. To reverse the judgment, defendant James Sarantakis brings error.

      Abstract of the Decision.
    1. Chattel mortgages, § 147

      -—priority between first and second mortgage. Where a second mortgage contains an express provision that it is subject to a prior mortgage it conveys nothing more than an equity of redemption. At any rate, in the absence of fraud or injury, such a stipulation should estop a party to it from questioning the validity of the first mortgage.
    2. Chattel mortgages, § 122

      —priority of lien as affected by failure of clerk to enter affidavit of extension on docket. A second mortgagee acquires no lien-or the right to possession of mortgaged goods and chattels superior to the rights given by a prior mortgage because an affidavit of extension of the first mortgage, duly recorded and filed with the clerk of the Municipal Court, was not entered on the docket or record of said court, it also appearing that when the second mortgage was given, the first mortgagee was in possession consistent with the terms of the mortgage, of which the second mortgagee had full notice, and the second mortgage contained an express provision that it was subject to the prior mortgage.
    3. Chattel mortgages, § 144

      —when lien not waived by unreasonable delay in enforcing mortgage. Facts held insufficient to show an unreasonable delay of the first mortgagee to enforce his mortgage so as to give the second mortgage a prior lien, it appearing that the second mortgage was not due, and that the first mortgagee undertook to enforce his claim on the first day after the expiration of the extension of his mortgage.
    Theodore Johnson, for plaintiff in error.
    McInerney, Power & Byrnes, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Herbert Boiler Company, Defendant in Error, v. Sarah Jane Lewis and James A. Riggs, Plaintiffs in Error.
    Gen. No. 19,143.
    1. Mechanics’ liens, § 173*—word “owner” construed. The word “owner” in section 28 of the Mechanics’ Lien Law (J. & A. If 7166), providing that “all suits and actions by subcontractors shall be against both the contractor and owner jointly,” etc., must be construed to mean “owners” where the title is held by more than one person.
    2. Mechanics’ liens, § 202*—when judgment improperly entered against one of the owners. In a suit by a subcontractor against the contractor and two persons who were owners of the premises to recover for materials furnished and for a mechanic’s lien, the suit was dismissed as to one of the owners and judgment was entered against the other owner and the contractor. Held that the judgment was erroneous as not being entered against all the owners of the property.
    Error to the Municipal Court of Chicago; the Hon. Feed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 10, 1914.
    Edward H. Morris, for plaintiff in error, Sarah J. Lewis.
    Paul Larmer, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This was a suit brought by a subcontractor against the contractor and owners of certain premises for which materials were furnished by the former. Default and judgment were taken against the contractor for want of an affidavit of merits and on plaintiff’s motion the suit was dismissed as to one of the owners, the husband of plaintiff in error.

Section 28 of the Mechanics’ Lien Law (J. & A. if 7166) provides: “All suits and actions by subcontractors shall be against both the contractor and owner jointly, and no decree or judgment shall be rendered therein until both are duly brought before the court. * * * All such judgments, where the lien is established, shall be against both jointly,” etc.

Manifestly the word “owner” must be construed to mean “owners” where the title to the premises is held by more than one person. The only proof on the subject, and that was introduced by plaintiff, was that Mr. and Mrs. Lewis were the owners of the premises in question. It was improper, therefore, to dismiss him out of the case. Under the statute he was a necessary party to the action. The judgment, being against one and not all the owners of the property as well as the contractor, was improperly entered, and will be reversed and the cause remanded.'

Reversed and remoulded.


text:
    Frank Sanvaitis, Defendant in Error, v. Swift & Company, Plaintiff in Error.
    Gen. No. 19,179.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Stnxivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and. remanded.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Frank Sanvaitis against Swift & Company, a corporation, to recover for personal injuries sustained by plaintiff while employed by defendant in loading cars with ice. The action was based upon defendant’s failure to furnish plaintiff a reasonably safe place to work. The facts showed that plaintiff wheeled ice to the edge of a platform and dumped it into a chute, which gave way causing him to be thrown to the ground and injured. Plaintiff recovered a judgment for three hundred and fifty dollars, and to reverse the judgment defendant brings error.
    Abstract of the Decision.
    Master and servant, § 571

      -—burden of proof in suit by servant for injuries. In an action for personal injuries sustained by plaintiff while employed by defendant in loading cars with ice, it appeared that the injury was caused hy a defective chute, which gave way when plaintiff dumped ice therein. Held that it was incumbent upon plaintiff to prove not only the defect but that he did not know of it and did not have equal opportunities with his master of knowing it, and that in the absence of such proof refusal of court to direct a verdict for defendant was error.
    John Clark Baker, for plaintiff in error.
    William A. Bowles and James E. Bowles, for defendant in error.

      See Illinois Notes Digest, Vols. XI to - same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    United Breweries Company, Plaintiff in Error, v. G. Bernard Anderson, Administrator, and Edward Swartz, Defendant in Error.
    Gen. No. 19,197.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Stnxivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by United Breweries Company, a corporation, against Q-. Bernard Anderson, administrator of the estate of Alfred Kinell, ■ d Edward Swartz, for the conversion of certain saloon fixtures which the undisputed evidence in the record shows the plaintiff owned. The verdict was for defendant and the judgment against plaintiff for costs. To reverse the judgment, plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    1. Tboveb and convebsion, § 38

      —admissibility of evidence. In an action for the conversion of certain saloon fixtures, evidence that the defendant’s intestate took out two fire insurance policies on the property in his lifetime, held to amount to nothing more than self-serving declarations, and incompetent on issue of ownership.
    2. Limitation of actions, § 120

      —when question whether statute had run should not be submitted to jury by instructions. Where the undisputed evidence shows the statute of limitations has not run, it is error for the court, under its instructions, to leave to the jury as a matter of fact whether it had run.
    3. Municipal Coubt of Chicago, § 29

      —when rules of court not presented for review. Appellate Court cannot take judicial notice of a rule of the Municipal Court as to the practice in such court with reference to objections, to oral instructions, where such rule does not appear in the record.
    The testimony in plaintiff’s behalf was in substance that it owned said fixtures and that it allowed Alfred Kinell, since deceased, to use them as long as he purchased its beer; that such arrangement was in force when he died; that Anderson, after the administration of the estate, took possession of the property and inventoried it among the assets, and refused to deliver up the same to plaintiff on its demand, and subsequently sold it to defendant Swartz.
    Rubens, Fischer & Mosser, for plaintiff in error.
    Anderson, Anderson & Anderson, for defendants in error.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    George W. Randall and T. F. Randall, trading as G. W. Randall & Company, Defendants in Error, v. R. Whittingham, Plaintiff in Error.
    Gen. No. 19,219.
    (Not to he reported in full.)
    Abstract of the Decision.
    Appeal and ebkob, § 95

      —when record shows nothing for review. Where assignments of error are predicated on a common-law record which shows no motion to vacate the judgment or exception thereto, but shows only the pleadings, orders relating thereto, which were acquiesced in, and the judgment, the record shows no points for review on errors saved in the court below, and the judgment will be allowed to stand.

      Error to the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, Presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    ■ Action by George W. Randall and T. F. Randall, trading as G. W. Randall & Company, against R. Whittingham to recover for goods sold and delivered by plaintiffs to the defendant on an open account, consisting of 3,707 pounds of chickens at 6 cents per pound, amounting to $222.42, on which a credit of $50 was allowed. Defendant, in his affidavit of defense, admitted the purchase of the chickens at 5 cents per pound and alleg’ed that “about one-third” were delivered to him in an unwholesome and unsaleable condition. The court, deeming such allegation as an admission of a portion of the claim, entered judgment for $86.66, reserving the rest of the claim for future consideration. To reverse the judgment, defendant brings error.
    Victor A. G. Murrell, for plaintiff in error; P. W. Snider, of counsel.
    Blum, Wolpsohn & Blum, for defendants in error.

      Seo Illinois Notes Digest, Vola. XI to XV, same topic and section number.

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    Louis A. Elisburg, Defendant in Error, v. Nellie K. Berkey and Arista W. Berkey, Plaintiffs in Error.
    Gen. No. 18,993.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Soullt, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action of forcible entry and detainer brought in the Municipal Court by Louis A. Elisburg against Nellie K. Berkey and Arista W. Berkey to recover possession of a flat in an apartment building. The plaintiff, claiming right of ownership by a quitclaim deed from Nellie K. Berkey, had been in possession of the apartment building for some months, the tenants having attorned to him. One of the flats became vacant and the defendants took possession of it. At the trial an attempt was made by the defendants to have tried the question as to the ownership of the property, the claim being made that the quitclaim deed was obtained by fraud. Judgment was entered in favor of plaintiff and a writ of restitution was granted after the hearing. To reverse the judgment, defendants bring error.

      Abstract of the Decision.
    1. Fobcible entby and detainee, § 84—when evidence sufficient to show forcible entry. In an action for forcible entry and detainer, evidence held sufficient to show that the entry by the defendants was forcible, so that a demand for possession was unnecessary.
    2. Fobcible entry ani) detainer, § 108

      —when objection to judgment not preserved for review. Objection that the judgment order in forcible entry and detainer does not sufficiently describe the property cannot be considered in a court of review where such objection was not urged in the trial court.
    3. Forcible entry and detainee, § 67

      —issues as to title. In an action of forcible entry and detainer the question of title to the premises is not involved.
    J. Marion Miller, for plaintiffs in error.
    E. M. Seymour, for defendant in error.

      Sc<j Illinois Notes Digest, Yols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Louis A. Elisburg, Defendant in Error, v. Nellie K. Berkey and Arista W. Berkey, Plaintiffs in Error.
    Gen. No. 19,122.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action of forcible entry and detainer by Louis A. Elisburg against Nellie K. Berkey and Arista W. Berkey. A verdict and judgment was entered in favor of plaintiff and the defendants prosecute error.
    The record in this case is like that in Elisburg v. Berkey, ante, p. 389, except in this ease the flat was known as “No. 2” in the apartment building, while in that case the fiat was known as “No. 5.” The grounds urged for reversal are the same as in the case referred to and the decision in that case held controlling.
    J. Marion Miller, for plaintiffs in error.
    E. M. Seymour, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.


text:
    Bernard Brozowski, Plaintiff in Error, v. Stanislaw Grohocki, Defendant in Error.
    Gen. No. 19,055.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Peed C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Bernard Brozowski against Stanislaw Grohocki for commissions alleged to be due in effecting the sale of a piece of real estate. The plaintiff introduced in evidence a partly executed contract, purporting to be between defendant and John Svatik and Eva Svatik, in and by which the defendant was to convey to John and Eva Svatik certain property in Chicago for certain property said to be owned by John and Eva Svatik in Indiana. In the form of the contract it was provided that defendant should pay plaintiff one hundred and fifty dollars and the other parties to pay him two hundred dollars. This form of contract was signed by the defendant and John Svatik, but was not signed by Eva Svatik. Judgment was rendered against plaintiff for costs. To reverse the judgment, plaintiff brings error.
    Abstract of the Decision.
    Brokers, § 88

      —when proof insufficient to show right to commissioners. In an action to recover commissions ior affecting a sale of real estate, it appeared that the defendant and two persons procured by plaintiff entered in what purported to be a contract for an exchange of lands which was signed ’ by the defendant and one of the persons procured by the plaintiff, but not by the other. Held that plaintiff was not entitled to recover where it appeared that the two persons were tenants in common of the land to be exchanged, and there was no attempt to prove that the person not signing the contract was ready and willing to perform, except by the introduction in evidence of the partly executed agreement.
    David & Zillman, for plaintiff in error.
    Lee & Lee, for defendant in error.

      Seo Illinois Notes Digest, Vols. XI to XV, same topic and section number.

   Mr. Justice Clark

delivered the opinion of the court.


author: Mr. Justice Cdark

text:
    Causetta Posey, Defendant in Error, v. William B. Graham, Plaintiff in Error.
    Gen. No. 19,081.
    (Not to be reported in full.)
    Error to the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed March 10, 1914.
    Statement of the Case.
    Action by Causetta Posey against William B. Graham on a contract giving plaintiff an option of an interest in certain lands, or a return of the amount advanced with interest. She elected to take a return of the advancement and claimed that defendant refused to pay the money, offering instead shares of stock in a certain company. From a judgment for plaintiff, defendant brings error.
    Abstract of the Decision.
    Contracts, § 384*—when evidence sufficient to sustain recovery in action on contract. In an action upon a contract giving plaintiff an option of an interest in certain lands, or a return of the amount advanced with interest, she having elected to take a return of the advancement, a verdict in her favor was held not to he against the weight of evidence.
    Rogers & Mahoney, for plaintiff in error; Howard M. Harped, of counsel. \
    John Frederick Haas, for defendant in error; Henry Lynch, of counsel.
   Mr. Justice Cdark

delivered the opinion of the court.