text:
    Frank Roeder, Defendant in Error, v. Kenmore Manufacturing Company, Plaintiff in Error.
    Gen. No. 17,703.

      Sales—evidence of warranty. Held, that the evidence justified a finding that defendant agreed to return-to plaintiff money paid for an automobile if it was not satisfactory, that its acceptance was conditional, that the car was not as represented, and that there was a breach of implied warranty.
    Error to the Municipal Court of Chicago; the Hon. Isadorb H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    William A. Jennings, for plaintiff in error.
    W. A. Morrow, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The only matters discussed in the brief of plaintiff in error (defendant below) relate to whether there was an implied warranty of the quality of the automobile it sold to plaintiff, and whether the evidence was sufficient to warrant plaintiff’s recovery. The former question was not saved for review, as there was no objection to the instructions given nor request for others. As to the latter question we think the evidence was sufficient.

Plaintiff, living near Portage, Wisconsin, ordered an automobile of defendant, a manufacturer of automobiles in Chicago. In his letter ordering it he said, “if for any reason I don’t like the car, this bargain is nulled, and the money returned.” In the reply thereto defendant said that it would either deliver in Portage and allow ten days for examination, or demonstrate the car in Chicago, and if it was not satisfactory his deposit therefor, which had been put up in a Chicago bank, would be refunded. A demonstration was had in Chicago, and plaintiff, who was unfamiliar with the car and unable to run it, testified, and the jury evidently believed him, that after the demonstration and before paying for the car he asked the company’s agent, its secretary, what assurance he had that the car was “all right,” and the reply was that if it was not “all right” defendant would return the money. The agreed purchase price was then turned over, and one of defendant’s employes was directed to drive the car for plaintiff to Portage.

Something was wrong about it apparently from the time it started, and one trouble or another developed at different points along the journey. Before reaching the city limits it became necessary to bring the car back to defendant’s factory to be examined and prepared for another start on the following day. On the next day new troubles developed and several stops were made on the way. Other troubles appeared on the third day soon after starting, and as they proceeded they had to push the car up slight grades, and finally abandoned it and walked to Stoughton. It was found that new rod bearings would be required, and that it would take two or three days to get them, so plaintiff took a train for Portage. Three days later, in response to a telephone message, he met the driver there only to be informed by the latter that in his effort to drive the car on to Portage another break occurred and he was obliged to haul the machine into a shed. There some of plaintiff’s witnesses examined it, and from their testimony it was in a very defective state. The driver declared that it was wrong from the time he started from Chicago, that he so informed his “boss” who insisted that he should go on with it.

Plaintiff refused to accept the car, and demanded the return of his money. Defendant refused to refund it or to receive the car, hence the suit.

We think the evidence fully justified the jury in believing that defendant agreed to return the money if the car was not “all right” or satisfactory, that the acceptance of it was conditional; that it was not delivered in proper condition, and was not as it had been represented, and also from the evidence and instructions, of which there is no complaint, that there was-a breach of implied warranty. The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Barnes

license: Public Domain

text:
    William Anderson, Defendant in Error, v. The Metropolitan West Side Elevated Railway Company, Plaintiff in Error.
    Gen. No. 17,749.

      Carriers—where evidence does not sustain verdict. Where it is alleged that defendant was negligent in directing plaintiff to enter a moving train, the weight of the evidence being manifestly against plaintiff’s claim that the conductor opened the gate and invited him to board the train, the judgment for plaintiff is reversed.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    Addison L. Gardner, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff recovered judgment for injuries received while attempting to board one of defendant’s cars at its Gunderson avenue station, which is between said avenue and the next street east thereof. These streets run north and south and defendant’s tracks east and west. The train consisted of two cars, and was going east. The station was south of its track on a platform about five feet high with steps at each end approached by a cinder path.

When the train crossed Gunderson avenue, plaintiff passed its rear to the cinder walk and ran along the same and the platform to catch it. There being no passengers there, the train made only a brief stop, and plaintiff did not reach the point where he attempted to board it until it was again in motion. Just how near the east end of the platform he was when he made the attempt, which car he attempted to board, whether he stepped into the space between the platform and car when he fell, as claimed by him, or the space between the two cars, as claimed by the conductor, and whether the conductor opened the gate of the car and invited him to get on, were controverted questions, with plaintiff as witness on one side and the conductor and several passengers on the other.

Plaintiff claimed that defendant was negligent, (1) in “maintaining an open, unprotected space of several inches between the trains and the platform;” (2) “in the manner in which it operated and managed and directed plaintiff to enter the train,” and (3) “in the construction and maintenance of an improper platform. ’ ’

If there was any basis of fact for the third contention not embraced in the first, it consisted of a claim that the platform was insufficiently lighted. But no such claim is urged in the argument nor was there evidence to support it. Nor was there any evidence tending to support improper operation and management of the train, except as connected with the alleged direction.

The claim of negligence therefore was reduced practically to two contentions,—maintaining unprotected space as aforesaid and giving a careless direction. Under the undisputed facts of the case a question of the former hardly arises unless the evidence supports the latter. In fact, there was no evidence of the width of such space or even that it was practicable to run trains with less space, so that the only charge of negligence with reference to which there was evidence justifying submission of the case to the jury related to the alleged direction, and the question raised by the evidence was whether plaintiff was directed or invited to board the moving train under such circumstances that defendant was chargeable with negligence and plaintiff relieved of contributing to it.

Only plaintiff and the conductor gave direct evidence on that question. The former said that as he came to the gate of the moving car, he cried out, “All right,” and that the conductor opened the gate and said, “Come on.”

The conductor denied both statements, and said that the gate was- not opened and that plaintiff tried to step on to the rear end of the car platform, missed it and fell into the space between the two cars.

On this point, as well as the others, the testimony of several disinterested witnesses tended strongly to support the conductor’s version. While they did not see the accident, two swore that the gate was not opened, and we think the weight of the evidence was manifestly against the claim that it was, and therefore against the theory that anything was done by defendant’s agent to encourage plaintiff to board the moving train.

We cannot say as a matter of law that plaintiff was guilty of contributory negligence. If the fact be that he stepped into the space between the car and platform, yet as the record does not disclose its width or the speed of the train, we are unable to say whether compliance "with the invitation or direction to get aboard, if given, was in the face of open and obvious danger.

It seems strange that there was failure to furnish the jury exact information on the question of distances which became the subject of controversy in two trials, and which both parties had the opportunity to measure. They were not given even approximate distance of the platform from the car, and it was left to conjecture whether the length of the cinder path was forty or one hundred and fifty feet, and that of the platform sixty or ninety feet, when either party could have furnished actual measurements and, perhaps, saved another trial.

The judgment must be reversed and the cause remanded.

. Reversed and remanded.


text:
    James M. Proctor, Appellee, v. Wells Brothers Company of New York, Appellant.
    Gen. No. 18,400.
    1. Limitation of actions—where wrong corporation is made defendant. Where there are two corporations of similar names and one of them is named defendant and one of its officers served with summons, the suit is not commenced against the other so far as the statute of limitations is concerned until issuance of the new summons which is necessary to bring the new party into court and it is immaterial that plaintiff intended to sue the second party in tlie first instance.
    2. Limitation of actions—concealment of identity. Concealment of identity of a party liable is not a ground recognized by the statute of limitations for the postponement of its running.
    3. Limitation of actions—as to tolling the statute. Mere silence or concealment by defendant without affirmative misrepresentation does not toll the statute of limitations.
    4. Pleading—where party is sued under wrong name. Where the real party in interest and the one intended to be sued is actually served with process, though under a wrong name, he must take advantage of the misnomer by plea in abatement and if he does not he will be concluded by the judgment or decree rendered the same as if he were described by his true name.
    5. Limitation of actions—where party is sued under wrong name. Service of summons upon the proper party defendant though under the wrong name is sufficient to toll the statute of limitations.
    6. Parties—power of amendment. The power of amendment does not extend to the length of substituting another defendant in lieu of the defendant answering and before the court, since such other defendant can be brought in only by summons and the suit is not begun as to him until summons for him is issued.
    7. Limitation of actions—directing verdict. Where plaintiff receives personal injuries while in the employ of defendant, a New York corporation, and sues an Illinois corporation by the same name which pleads that it was not in possession or control of the premises, property, machinery, appliances, or persons as alleged in the declaration; and afterwards, plaintiff amends his action by changing the title of defendant and has summons served on defendant after the statute of limitations has run, it is error to deny defendant's motion to direct a verdict. '
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed.
    Opinion filed June 24, 1913.
    Calhoun, Lyford & Sheean, for appellant; Edward W. Rawlins, of counsel.
    Musgrave, Oppenheim & Lee, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff, the appellee, sued for damages from injuries received in the course of the construction of a building in the District of Columbia, May 25, 1907, while in the employ of appellant, a corporation organized under the laws of the state of New York. He began suit May 21, 1909, and named as defendant “Wells Brothers Company, a corporation,” which was a corporation organized under the laws of the state of Illinois, and the summons was served on its secretary, Harry L. Wells.

A week later, the defendant so served filed a plea of general issue and a special plea denying that it was “in possession or control of the premises, property, machinery, appliances or persons as alleged in the declaration,” etc. In November, 1910, additional counts were filed to which said defendant filed a plea of general issue and gave notice of the special matters of defense set forth in said special plea, stating specifically that it was not engaged in the erection or construction of the building referred to in the declaration, and that plaintiff was not employed by it in any capacity. Plaintiff filed a similiter, and it appearing at the trial, February 7, 1911, that he had sued the wrong party, he withdrew a juror and the cause was continued.

' On February 11, 1911, an order was entered at plaintiff’s instance amending “all papers and proceedings in said cause” by changing the ‘title of defendant’ to read as in the caption hereof, and directing that summons issue for appellant. Alias summons was issued the same day and on February 14, 1911, was served on its president, Addison E. Wells.

On March 7, 1911, by leave given for that purpose on March 4th, plaintiff amended the title of the cause and the several counts of the declaration by substituting appellant’s name for that of the original defendant, and on March 11, 1911, plaintiff dismissed his suit against “Wells Brothers Company of Illinois, a Corporation.”

Conceded as it is and as both the pleadings and evidence show that these two corporations of similar name were independent companies and separate entities, and it appearing that the original summons was not served on an officer or agent of appellant, it is evident that the suit was not commenced against appellant, so far as the statute of limitations is concerned, until issuance of the new summons (Collins v. Manville, 170 Ill. 614; Milwaukee M. Ins. Co. v. Schallman, 188 Ill. 213), which was necessary to bring the new party into court (United States Ins. Co. v. Ludwig, 108 Ill. 514).

Unless, therefore, the statute of limitations was tolled it is evident that the period of two years prescribed by our statute, and of three years prescribed by the statute in effect in the District of Columbia, both of which the defendant pleaded, had expired before the suit was commenced against it.

The principal ground for avoidance of the bar of the statute set forth in the replication is that the officers and agent of the New York corporation fraudulently concealed its identity from the plaintiff. Connected therewith and apparently relied upon as independent grounds are averments as to his intent, want of knowledge and mistake. While issue was taken in rejoinder upon such averments, yet none of them present a ground recognized by the statute for the postponement of its running. The only provision in the statute excusing strict compliance with its terms is found in section 22 which specifies as a ground the concealment of the cause of action from the knowledge of the person entitled thereto. Conner v. Goodman, 104 Ill. 365; Parmelee v. Price, 105 Ill. App. 271, affirmed 208 Ill. 554. Concealment of identity of a! party liable cannot be deemed the same as concealment of the cause of action. Appellee was certainly apprised of his cause of action, if any, and began suit before the statute had run, and was at once put on inquiry as to the proper party, and particularly so by the special plea and notice of defense filed by the Illinois corporation.

But whether or not a question of fact was properly raised for the jury, the evidence adduced on the subject of identity clearly preponderated for appellant. It showed conclusively that on signs about the premises where appellee was employed appellant’s corporate name appeared as well as on the derricks and pay checks or slips given to its employes and brass identification checks given to each employe as he went to his work. Even were it a proper subject for inquiry, we find no evidence of any act or statement tending to prevent knowledge of appellant’s identity or connection with the accident in question, or operating to prevent discovery. The most that could be said is that if appellant knew of the institution of the suit against the Illinois corporation, it maintained silence on the subject; but the rule is universal that mere silence or concealment by the defendant without affirmative misrepresentation will not toll the statute. Fortune v. English, 226 Ill. 262; Wood v. Williams, 142 Ill. 269; Campbell v. Roe, 32 Neb. 345; State v. Walters, 31 Ind. App. 77. There was no fact, therefore, relating to the question of the tolling of the statute, for submission to the jury. Neither mistake, want of knowledge nor misapprehension on the part of the plaintiff, nor silence on the part of the defendant was sufficient to suspend it. As there was no fraudulent concealment of the cause of action, pleaded or proven, the material facts conceded in the pleadings fully authorized the court to direct a verdict for defendant on its motion, on the ground, which we must find as a fact, that appellee did not commence his suit against appellant within the period prescribed by the statute of limitations under the statute here or for the District of Columbia.

But appellee urges that this is merely a case of misnomer, and that where the real defendant is sued by the wrong name before the statute has run, but is brought in by summons under the right name after the statute has run, the action is not barred and a new party is not brought into the suit, and cites as authority the cases of Pennsylvania Co. v. Sloan, 125 Ill. 72; and Western Union Tel. Co. v. State, 82 Md. 293. In both of those cases, however, the original summons, though in the wrong name, was served upon an officer or agent of the right party. In holding that the statute in the former case was not a bar the court said: “The law undoubtedly is that, where the real party in interest and the one intended to be sued is actually served with process in the cause, even though under a wrong name,' he must take advantage of the misnomer by plea in abatement in such suit; and, if he does not, he will be concluded by the judgment or decree rendered the same as if he were described by his true name.”

In the Maryland case, supra, the court said the amendment was allowed “to correct the name of a party actually summoned” and that the service being on a person who was an officer of both companies, the one originally named and the one substituted, it was efficient to bring into court either one of them.

The vital distinction between those cases and the case at bar is that in them the real party was actually brought into court by the original summons before the statute had run, for though in the wrong name it was served on one who was its officer or agent as well as the officer or agent of the wrong party; whereas in the case at bar the right party was not brought into court by the original summons, as the person served therewith was not its agent.

The thing that tolled the statute in such cases was actual service of summons upon the proper party defendant within the period of the statute, although by the wrong name. But here suit was neither brought against nor served on the right party until after the statute had run. It was not a case of misnomer but suit against the wrong party, of which plaintiff was given timely notice.

But it is urged by appellee that appellant ..was a party to the action from its commencement because it was the party he intended to sue, and cites Hoffman v. Keeton, 132 Cal. 195, where suit was originally brought against defendant as “John Doe,” and his real name was not substituted for the fictitious one until after the statute had run.

If such a matter were determined by intent alone, without reference to any other circumstances or facts, the bar of the statute might alwáys be easily avoided whenever the wrong defendant is sued no matter what the lapse of time. Of course, appellee intended to sue his actual employer, but the answer is not only that he did not, but that he served another party and from that party received express and timely warning of his mistake through the special plea and special notice aforesaid. One of the express purposes of enforcing the rule in this state, requiring a plea or notice that one is “not the owner or in possession or operation of the property or instrumentalities which have caused the injury,” is that it may give plaintiff “an opportunity of making investigation, and if he ascer-, tains that he has sued the wrong party, he may, before the statute of limitations becomes a defense, bring his suit against the party that is, in fact, liable.” Chicago Union Traction Co. v. Jerka, 227 Ill. 95. But plaintiff persisted in trying the issue instead of profiting by the notice, and when he discovered his mistake the period of the statute had run.

There can be no question that where a party is actually served with summons but sued in the wrong name, and the right name is subsequently inserted by amendment, that it is the same suit against which the plea of the statute of limitations Avill not avail even though the amendment was not made until after the statute had run. But the power of amendment does not extend to the length of substituting another defendant in lieu of the defendant ansAvering and before the court. Jordan v. Chicago & A. Ry. Co., 105 Mo. App. 446. Such other defendant can be brought in only by summons, and the suit is not begun as to it until summons for it is issued. The difference between service of summons on the wrong party and' on the right party in the wrong name is at once apparent when we consider the difference of procedure necessary to rectify the mistake.

Appellee contends that the court submitted to the jury the question whether this suit was originally brought against this defendant, using the wrong name. Not so. His second replication plainly admits the existence of two separate and distinct corporations, and that appellant was not served with summons until after the statute had run, and seeks to avoid the bar of the statute on the claim that appellant did fraudulently conceal its identity, which if an issuable fact was not as before stated supported by competent proof.

Besides it is apparent' from an instruction tendered by appellee that the question, improperly submitted to the jury, was whether plaintiff intended to sue appellant and whether or not its manner of doing business caused him to make a mistake.

In view of the error in not directing a verdict at the close of the evidence and to grant a new trial in compliance with defendant’s motions, the case must be reversed, and it is therefore unnecessary to consider the other assignments of error.

Reversed.


text:
    The People of the State of Illinois, Defendant in Error, v. Julius A. Stone, Plaintiff in Error.
    Gen. No. 19,037.
    1. Contempt—summary proceedings. It is essential to a summary proceeding for direct contempt that the court act upon matters of fact of which it has judicial cognizance.
    2. Contempt—false swearing in the presence of the court. If false swearing in the presence of the court constitutes direct contempt, judicial knowledge of its falsity is indispensable to the right of the court to exercise authority to commit therefor.
    Error to the Municipal Court of Chicago; the Hon. Peed C. TTtt.t., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed June 24, 1913.
    Samuel Gr. G-rodson and Blum & Blum, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E, Wilson, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This writ of error is brought to review proceedings for contempt of court. They were commenced by the entry of a rule requiring J. A. Stone, referred to therein as defendant, to show cause why he should not be punished for contempt of said court because, as the rule states, “he gave false testimony while testifying after having been duly sworn in the cause entitled Joe Greenfield vs. J. A. Stone.” On the day after its entry when it was returnable, a petition for such a rule was filed, sworn to by said Greenfield, setting up the particular testimony claimed to be false, and Stone filed his answer denying the several allegations therein as to falsity. Nothing further appears in the record except the order of the court finding the facts substantially as set forth in said petition and adjudging Stone guilty of contempt, and another order entered on the same day imposing a fine and directing his commitment until the same was paid, etc.

If it was deemed constructive contempt, requiring a hearing to show whether the testimony was false, and one was had for that purpose, with respect to which the record is silent, then the court practically converted itself into a tribunal to try a charge of perjury in utter disregard of the constitutional guaranties afforded one charged with crime.

But presumably the court treated it as a direct contempt on the theory that it judicially knew that the testimony was false, for it entered a rule to show cause without any information or affidavit, which would be unnecessary in a case of direct contempt.

Butrthere is nothing in the record to disclose that the court knew that the testimony was false. In a case of . direct contempt, it may act upon that of which it may [ take judicial notice, but it cannot judicially know that I evidence is false unless at the trial it is so made to! appear by the witness’ own admission or perhaps by1 unquestioned or incontrovertible evidence. Otherwise the court would act merely upon its belief or conclusions derived from evidence heard, and not upon matters of fact of which it had judicial cognizance, which is essential to the summary proceeding for direct contempt. /

The substance of the testimony of Stone alleged to be false in the case on trial was that he had paid Greenfield a certain sum of money at a certain time and place. Presumably the court was not there nor in a position to know the actual fact. All it could know in the nature of things was that Stone gave one version of the matter under oath and Greenfield another. It might form a correct conclusion from the entire evidence as to which was telling the truth, but it would not know judicially which had falsified. If false swearing in the presence of the court constitutes direct contempt, then judicial knowledge of its falsity is, in our opinion, indispensable to the right of the court to exercise authority to commit therefor, and there is nothing in the record to disclose that the court knew or could know that the testimony was false. The case will, therefore, be reversed for want of sufficient showing of record to justify entry of the orders referred to. y

Reversed.


author: Mr. Presiding Justice Smith

text:
    Michael and Katarzyna Madaj, Defendants in Error, v. Kazimierz and Pelagia Madaj, Plaintiffs, in Error.
    Gen. No. 17,232.
    1. Appeals and errors—saving questions. An objection that the master's report is not signed is waived when not raised in lower court.
    2. Partition—solicitor’s fees. Where complainant under an agreement between the parties giving him entire manágment and control of the premises, makes a contract to sell the same and defendant refuses to join and does not set up a substantial defense, a decree for partition allowing complainant solicitor's fees will be sustained.
    Error to the Superior Court of Cook county; the Hon. Arthur H. Ghetlain, Judge presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Royal W. Irwin and F. W. Koealeski, for plaintiffs in error.
    .Tames Gr. Skinner, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendants in error filed a bill in the Superior Court of Cook County for a partition and an accounting, and defendant in error Michael Madaj will be hereinafter called complainant. Among the parties made defendants therein were the plaintiffs in error, and the plaintiff in error Kazimierz Madaj will be hereinafter called defendant. The bill averred, inter alia, the joint purchase by the complainant, Michael Madaj, and the defendant, Kazimierz Madaj, brothers, of certain described real estate for $18,500; that a part thereof had been sold and conveyed for $8,500; that the said complainant and defendant were the owners of and each seized in fee simple of an undivided half of the remaining portion of the said described premises; that certain payments had been made thereon and the interest therein of the said defendant was in equity charged and incumbered with certain specified sums paid and advanced thereon by the complainant; that the said real estate was the only real estate in which the parties had a common interest and that no others than parties to the cause had any interest therein, and prayed for a partition and an accounting. The other parties defendants were the owner and holder of a note secured by a trust deed on the said premises, the trustee therein, judgment creditors and others who duly appeared and answered and whose interests are here immaterial and need not be set forth. •

The defendant Kazimierz Madaj answered, inter alia, that he and the complainant were the owners of the said premises; that 6 ‘ each was seized of the legal title to an undivided one-half interest in and to the said premises, but denies that the interest of the defendant, Kazimierz Madaj, is equitably charged and incumbered with such sum or sums set forth in complainant’s bill of complaint, which have been paid out by the complainant, Michael Madaj, over and above any sum or sums of money paid by these defendants on account of said purchase money,” and further “deny that the interest of said defendant, Kazimierz Madaj, is equitably charged or incumbered with any such additional sum or sums of money as set forth in complainant’s bill of complaint,” and deny that the complainant is entitled to contribution from the said defendant.

Replications were filed and the cause referred to a master. On a hearing before the master he found that all the material allegations of the bill were proved and recommended a decree of partition in accordance with the prayer of the bill. Objections to the master’s report were overruled and also exceptions to the report were overruled by the chancellor and a decree entered in accordance therewith, except that the chancellor decreed an allowance of $400 solicitor’s fees for the complainant instead of $500 recommended by the master.

The commissioners named in the decree reported that a division of the said premises could not be made without manifest prejudice to the parties in interest, and on the appraisement fixed the value thereof at $8,000, whereupon a decree of sale was entered.

The master’s report was unsigned and this fact the defendant urg’ed as reversible error. The master, after hearing’ the testimony, prepared his report-and notified all the parties thereof. The complainant and the defendant filed objections to the report and the master overruled same and made a notation thereof on both of said objections over his signature. The evidence taken before the master was- then, together with the exhibits, certified to by the master over his signature and filed in court, but the report filed therewith was not signed. By order of the court the objections stood as exceptions to the master’s report and on a hearing before the court same were overruled. Neither objection nor exception was made to the failure of the master to sign the report. A decree for partition of the premises in question was entered, wherein the reference to the master was recited and the making of his report, the filing of objections thereto and overruling same; the order of the court that said objections stand as exceptions to the said report and that on a hearing thereon the same were overruled, except as to the amount of the complainant’s solicitor’s fees; that the cause was heard upon the pleadings, describing same, and “the testimony and exhibits taken and introduced before the said master in chancery, and upon evidence heard in open court, and upon the report of the master, which is hereby approved and confirmed,” etc. Under these circumstances we think that the objection made, not that it was not the master’s report, but that the master failed to sign his report, was waived and cannot be first heard in this court.

An objection is made that the defendant was not given credit for $200, being half of the payment to the complainant on a contract for the sale of said premises. This sum of $400 was, on the accounting between the parties, all charged against the complainant, and we are unable to appreciate the defendant’s contention that he was not given one-half thereof.

The remaining and principal objection urged for the reversal of the decree is the allowance by the court of the complainant’s solicitor’s fee, claiming that the defense to the partition suit, although not sustained, was a good and substantial defense. The statute provides that in a partition suit the court shall, when all the rights and interests of all the parties in interest are properly set forth in the petition or bill, allow a reasonable solicitor’s fee, unless the defendants or some of them shall interpose a good and substantial defense to said bill or petition.

The complainant had, by an agreement between the parties, the entire management and control of the said premises, and made a contract to sell the same for $8,450, and desired the defendant to join in a conveyance in performance thereof. This the defendant declined to do, saying, “I would not sign until I see the money or I would receive some guarantee on the sale.” He admits that he was told that he would lose $675 to $775, but the costs were not mentioned. At no time did he give any other reason than the above for not joining in the deed. In his answer, quoting from the abstract, he says: “these defendants say that the defendant Kazimierz Madaj is the owner of and legally entitled to an undivided one-half interest in and to” the premises, describing same. There was no controversy in relation to the amounts contributed by the parties in the payments made on the purchase of said premises or the rents received therefrom and expenditures made thereon by the complainant. We are unable to see any “good and substantial” defense on the part of the defendant. The bill properly set forth all the rights and interests of the parties as provided by the statute. The defense was wholly without merit and the chancellor very properly taxed the complainant’s solicitor’s fees as costs in the case. The decree is affirmed.

Affirmed.


text:
    American Radiator Company et al., Appellees, v. Jacob L. Kesner, Appellant.
    Gen. No. 17,495.
    Mechanics’ liens—when decree is sustained. In an action by a subcontractor to enforce a mechanic’s lien where defendant, the owner, claims that on account of delay by the contractor he is entitled to charge a sum for liquidated damages against the balance unpaid on the contract, there being evidence that the delay was caused by other contractors, the decree in favor of complainant is sustained.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tdthill, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Thomas W. Reillt, for appellant.
    Charles H. Ripley, George H. Simpson and J. S. Dudley, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant entered into a contract with the John A. Wickum Company to install a steam heating plant in a building to.be erected by the appellant at 375-381 Fifth avenue, Chicago. It is admitted by the appellant that the amount of the said contract with extras furnished thereunder was $7,457.80, of which $3,500 has been paid, leaving a balance unpaid thereon of $3,957.80. The appellees, American Radiator Company and Kellogg Mackay-Cameron Company, were subcontractors, and under their contracts with the Wickum Company had furnished material to the said Company used in the installation of the said heating plant in the appellant’s said building, for which there was due and unpaid the Radiator Company $1,754.75 and the Kellogg Company $1,800. To enforce a mechanic’s lien for the said respective sums the Radiator Company filed a bill and the Kellogg Company intervened. It is admitted by the appellant that the material was furnished and used as averred and that the amounts claimed to be unpaid thereon are correct; also that the necessary steps to establish liens were taken..

The defense interposed was that in the contract between the appellant and the Wickum Company it was agreed by the said Company that the said work would be completed on or before November 10, 1907; that the work thereunder was not completed until March 1,1908; that the appellant was by reason of the said delay compelled to expend certain sums in resetting a pump and motor and putting in salamanders to be used to dry the plastering; also forced to make certain concessions to tenants; that the said sums the appellant was entitled to charge against the Wickum Company amounted in the aggregate to more than $5,000, and left no balance in his hands subject to the claims of the appellees. The contract contained the following provision:

“If the said work shall be delayed by frost or inclement weather, or causes not under control of the said party of the second part, or in case of combination or strikes of workmen, causing delay to said party of the second part, or in case alterations or additions requiring additional time shall have been executed as aforesaid, or in case delay be caused to. said party of the second part by other contractors upon said building, provided written notice is given to said architects at the time of such delay, a fair allowance for the same, as determined by said architect, shall be added to the time stipulated for the completion of said work. In order to secure the completion of the work at the time and in the manner specified, it is hereby declared and set forth that the damages arising from the nonfulfillment of this contract shall be fifty and no /100 ($50.00) dollars per day for each and every day the work remains undone after the above date, which sum of damages shall be deducted from the contract price as liquidated damages.”

It was conceded that the said work to be performed by the Wickum Company was not completed until sometime in February, 1908, and as stated by counsel for the appellant in his brief: ‘ ‘ The principal question to be determined is, was the delay which is admitted by the appellees due to the contractor, the John A. Wickum Company, or was the said John A. Wickum Company delayed by other contractors?” On this question the record is voluminous. The abstract thereof is justly subject to the criticism made by the appellees. On the question in issue the master found, quoting from the abstract:

“That the evidence shows that it was impossible for the work to have, been done November 10, 1907; that the owner must be considered as having waived his right to have the work done by that date; that the building was only partially completed; that there had been a delay in wrecking the original building; also, in the delivery of the structural iron work; that the mason contractors were to have completed their work by October 31, 1907, but did not finish until the middle of January, and allowed $650 for delay; that the plumbers contracted to finish by November 10, 1907, but did not finish until the early part of January, and allowed $100 for delay; that the ornamental iron contractors allowed $250 for delays; that the plasterers allowed $100 for delay; that the roofing company should have finished by October 28, 1907, but did not get through until the latter part of November, 1907; that the carpenters were behind in their work, due partly to the delay of the mason contractor; that the evidence as to the floor and plastering showed that there should be delay in installing the steam plant; that defendant Kesner made a lease of the building to Daube, Cohn & Company, and they began to move in after Christmas, 1907; that at the time there were men working all through the building; that some doors were not finished; windows were not all in; some floors were not laid; plastering was not all done, nor all. the stairs in; that Kesner, the landlord, allowed the tenant $400 a year, and other sums amounting to about $5,000; that Kesner says he allowed this, ‘Not having steam heat and the building in shape.’
“The master finds, in conclusion, that there is no liability on the part of the contractor for the delay in connection with the completion of its contract, and that the defendant Kesner is liable for the balance due under the contract; denies the defendant’s claim to any set-off on account of re-setting the pump and motor, setting hot water heater and surge tank, providing temporary heat and for electric wiring.”

The master also found, not abstracted: “The evidence shows that the first car of radiators was delivered there December 13 or 15,1907, and that as it could not be taken into the building, owing to its incompleteness, it was piled up along the walk in front of a neighboring piece of property.” The master recommended a decree be entered as prayed for in the bill and the intervening petition. The chancellor, after overruling the exceptions to the master’s report, entered a decree as therein recommended.

After a careful study of the evidence we have concluded that this court would not be warranted in holding that the finding on the essential and material fact in the case as indicated is clearly and manifestly against the weight of the evidence. With this view of the case the questions of law presented and argued require no discussion.

The decree is affirmed.

'Affirmed.


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    Charles A. Stickney Company, Appellee, v. Sears, Roebuck & Company, Appellant.
    Gen. No. 17,514.
    1. Sales—when breach of condition m contract is waived. In an action for stipulated damages on failure of defendant to carry out a contract for the purchase of engines, defendant waives a breach of the provision that plaintiffs would not sell to any other catalogue house by making no objection when plaintiff shows them the catalogue of another house in which the engines are listed.
    2. Damages—when excessive. In an action for stipulated damages on failure of defendant to carry out a contract for the purchase of engines the judgment being in excess of the amount claimed by plaintiffs in correspondence wdth defendants, will be reduced by remittitur.
    Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed on remittitur.
    Opinion filed June 30, 1913.
    Adler & Lederer and Francis Adams, for appellant; Francis Adams and Francis Adams, Jr., of counsel.
    Elmer D. Brothers and Charles M. Thomson, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Under date of November 1, 1905, the parties hereto entered into a written agreement to take effect May 1, 1906, and continue in force for two years, whereby the appellee agreed to sell and deliver ánd the appellant agreed to buy and pay for during the life of the contract not less than 1,200 gas or gasoline engines from, two and one-half horse power to fifteen horse power and 1,000 one horse power engines of certain specified designs, to be delivered by the appellee f. o. b. ears at St. Paul, Minn., at prices therein agreed upon. The tenth clause of the contract was as follows:

“Tenth. In consideration of the order contained herein, the manufacturer agrees not to sell directly or indirectly any of his goods to any other so called catalogue house. ’ ’

On January 26, 1906, the following addition was made to the said contract:

“If for any reason, not the fault of the manufacturer, the purchaser wishes to countermand the order contained herein for 1,200 engines of sizes 2y2 H. P. and larger, then it is agreed that he will pay to the manufacturer as liquidated damages an amount equal to ten ($10.00) dollars for each engine order so countermanded.”

In a suit to recover damages for a breach of the contract in failing to take the number of engines contracted for, the appellee secured a verdict for $10,-076.87. A new trial being granted the result of the second trial was a verdict for $13,750 against the appellant. A new trial was again allowed and on the third trial of the case the jury assessed the appellee’s damages at $16,000. On this verdict the court entered judgment and a reversal thereof is sought by this appeal.

In regard to the first contention, that a material averment of the declaration in relation to appellant neither taking the remaining number of engines of two and one-half horse power or larger, nor giving shipping orders therefor, was not proven, we think that, while there was no direct evidence offered tending to prove the said averment, a fair and reasonable inference arises from a consideration of all the evidence, especially "the correspondence and the conduct of the parties at and about the time of the expiration of the contract, tending strongly to support the said averment and sufficient to sustain the same.

It is next urged that the appellee violated its contract in the sale of its engines (41 in all), at different times during the life of the contract, to the Shaw-Wells-Co., a “so-called catalogue house” at Spokane, Washington. That it sold the said engines to the said company the appellee admitted, but contended that the said Shaw-Wells Co. was not a “so-called catalogue house” within the meaning of the said contract; or if it was, the said appellee knew of the said sales- and not objecting thereto thereby waived the said provision of the contract. The court instructed the jury, in substance, that if the appellee sold said engines to other “so-called catalogue houses” during the life of the contract, it could not recover unless the jury further found from the preponderance of the evidence that the appellant knew of the same and made no objections thereto, thereby waiving the said provision of the contract. On the evidence, under the instructions of the court, the jury must have found that the Shaw-Wells Co. was not a catalogue house within the meaning of the contract, or that the appellant knew of the said sales and, not objecting thereto, waived the same. Both parties present strong arguments on the question whether or not the Shaw-Wells Co. was a catalogue house within the meaning of the contract. -The appellant thinks the evidence overwhelming in its behalf on this question. It may be; but after a careful study of the evidence we must confess our inability to form any confident convictions- on either side of this question. On this ground we might refuse to disturb the verdict of the jury on this issue. We shall, however, assume for the moment that Shaw-Wells Co. was a catalogue house and consider the question of waiver. H. L. Knight represented the appellant in the transaction in question and executed the said contract on its behalf; and called by the appellant as a witness he gave the following testimony, quoting from the record:

“Q. Did you at any time, while you were in the employ of Sears, Roebuck & Company, have in your possession a catalogue of Shaw-Wells & Company?

A. Only as handed to me by Mr. Stickney or Mr. Bevan, and by them carried away.

Q. Do you know whether or not they handed you any such catalogue? A. They showed me a catalogue, yes sir.

Q. When? A. I don’t know when it was; it was in the early part of our contract with them. I would say in 1906—yes sir, 1906.

Q. What was said in regard to the catalogue at that time? A. He told me that he was selling Shaw-Wells & Company.

Q. Yes, and what did you say? A. I don’t remember what I said. There was no occasion for me to say anything that I know of.

Q. Did you know anything about Shaw-Wells & Company at that time? A. I had met Mr. Shaw, he had been brought to my office and introduced to me by Mr. Stickney.

Q. Did you know at that time that they were engaged in the mail order business? A. They were not.

Q. At that time? A. Not to my knowledge.”

Both parties took the deposition of F. H. Shaw, the general manager of the Shaw-Wells Co. during the time in question. He testified:

“The Shaw-Wells Company has issued a catalogue in connection with its business. The Shaw-Wells Company have issued two catalogues. The first one came out about the first of April, 1907, and the second and last one about August, 1908. Up to January 1st, 1907, the business of the Shaw-Wells Company was and had been for some years exclusively wholesale, traveling men on the roads catering to retail dealers. On January 1st, 1907, we began retailing as well as wholesaling and during March issued a catalogue which we began to mail to dealers, blacksmiths, livery men and .consumers on the first of April, 1907, and since that date we have continued to conduct our business on the same line as last described;”

Also that about 20 per cent, of their business during that time was secured through the mails. The 1907 Shaw-Wells catalogue was'introduced in evidence. It is evident that Mr. Knight was mistaken about seeing this catalogue in 1906. He undoubtedly saw it in 1907. Then either Stickney or Bevan, both of the appellee company, told him the appellee was selling engines to Shaw-Wells Co., and he made no objection thereto. It is therefore clear that the appellant knew of the said sales during the life of said contract and without objection continued taking the engines under the terms of the contract. The statement of Knight that he did not at that time know that the Shaw-Wells Co. was engaged in the mail order business cannot be of much avail to the appellant. The evidence is uncontroverted that in the trade “catalogue house” and “mail order house” are synonomous terms. Knight, representing the appellant, was an experienced man in the business. When the Shaw-Wells Co. 1907 catalogue was presented to him and he was told that the appellee was selling engines to that company, the jury might properly conclude that he then knew that the appellee was selling engines to another catalogue house in violation of a clause of the contract. But if the said catalogue did not prove to a man of Knight’s experience and knowledge in the business that Shaw-Wells Co. was a catalogue house, then it being the principal evidence offered by appellant to prove to the jury that Shaw-Wells Co. was what the trade termed a catalogue house, it might be a fair and reasonable conclusion of the jury that in fact Shaw-Wells Co. was not a catalogue house, especially in view of other evidence to that effect and when it was conclusively shown that all houses issuing a catalogue were not considered catalogue houses; for instance Marshall Field & Co., which, it appears, issues a catalogue as to some of its departments. We conclude that there is sufficient evidence in the record, without making further reference thereto in detail, to preclude us from holding that the verdict in this respect was clearly and manifestly against the weight of the evidence.

The evidence shows that some three or four sales of engines were made by the appellee subsequent to the time that the appellant knew of sales to Shaw-Wells Co., and its counsel claim that “The condition in the tenth clause of the contract is continuous and applies not merely to a single breach, but to all which may occur, so that a waiver of one breach of the condition does not preclude appellant from taking advantage of subsequent breaches,” and cite many authorities to the effect that a covenant against subletting in a lease is continuous and a waiver thereof only discharges the particular breach. We are not inclined to apply this rule in the case at bar. Knight, testifying in behalf of appellant, did not say that appellee stated it had made a sale, but his language was that it “was selling Shaw-Wells & Company”—that would mean, it seems to us, taken in connection with the listing of the engines manufactured by the appellee in the Shaw-Wells Co. catalogue, shown to the appellant at the time, a statement in relation to future transactions, as well as in the present, and the appellant not objecting thereto, would not be heard to say, after the sales were made, that it only waived as to those that had been made at the time of receiving said notice.

The appellant insists that the damages are excessive. With this contention we agree. The appellee claims the measure of damages is “the difference between the contract price and what it would have cost appellee in material and labor to build, equip and deliver f. o. b. cars- at St. Paul the engines not bought and paid for under the contract,” and on that theory it obtained the judgment appealed from.

On May 1, 1908, "the appellee sent to the appellant the following:

“St. Paul, Minn., May 1,1908. Bears, Roebuck & Co.,
We have this day debited your account as follows : Balance due on contract:
722 Horizontal Engines at $10.00......$7,220.00
653 1 h. p. Engines at $43.75............ 2,856.87
$10,076.87”

Soon, thereafter, on May 5th, Mr. Stiekney of the appellee company, had conferences with Messrs. Rosenwald, Loeb and others of the appellant Company at Chicago, and stated that ten dollars was stipulated in the contract as the liquidated damages for each of the larger engines not taken, and that he figured a profit of ten per cent, on the one horse power engines' (listed at $43.75), which made the amount due and owing the appellee $10,076.87. The appellee takes the position that the ten dollars per engine was only as to orders for engines countermanded, and as no order was countermanded the appellee was not bound thereby, but was entitled to damages under the rule heretofore quoted. We think it very clear that both parties used and understood the word “countermand” in the additional contract, not to mean a revocation of some previous shipping order, but to refer to the number of larger engines, if any, not taken by the appellant under the contract.

It is also earnestly contended by appellee that its said statement was simply a proposition for settlement. The appellant was evidently attempting to escape the liability for the breach of the contract by its failure to take the number of engines agreed upon, and on April 15th wrote to appellee that on its part “on April the 30th, when this contract expires, there will be no further obligations.”

We think the situation might naturally have led into an offer of settlement, but the communication of May 1, 1908—“We have this day debited your account” with $10,076.87—appears in no sense as an offer of settlement, but a positive declaration of a fixed amount claimed to be due appellee. At the interview of May 5th, heretofore referred to, Mr. Stickney, quoting from his own testimony, stated to Mr. Rosenwald, in reference to the engines not taken and the amount claimed: “they had failed to order or take them, and that our agreement was that on the horizontal engines we were to receive ten dollars an engine.” On a consideration of all the evidence we think that the appellee’s position that the bill rendered appellant was an offer of settlement is untenable.

The time of the contract was not extended, and while the record is by no means free from error, we are of the opinion that on the record the appellee was entitled to judgment against the appellant for $10,076.87, and the only error we should hold reversible is the excessive amount of the damages for which judgment was entered. If the appellee files a remittitur of $5,923.13, making the judgment $10,076.87, within ten days, the judgment will be affirmed and the costs taxed against appellee; otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur.

Remittitur filed and judgment affirmed July 3, 1913.


text:
    Mike Basso, Defendant in Error, v. Chicago City Railway Company, Plaintiff in Error.
    Gen. No. 17,539.
    1. Master and servant—assumed rish. Where plaintiff, an employe of defendant, while unloading iron poles takes the position in which he is injured in obedience to the order of defendant he does not assume the risk.
    2. Practice—under See. 40 of the Municipal Court Act. Under Sec. 40 of the Municipal Court Act, plaintiff is not required to state the facts constituting his cause of action, but only the nature of his demand.
    3. Appeals and errors—variance. The question of variance is not considered when raised for the first time in the court of review.
    4. Municipal Court—when statement of claim sufficient. In an action of the fourth class in the Municipal Court where plaintiff, an employe of defendant, was injured while unloading iron poles, statement of claim held sufficient.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    W. D. Bartholomew and Watson J. Ferry, for plaintiff in error; Leonard A. Busby, of counsel.
    William: Schreider, for defendant in error; Wm. H. A. Bust, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The defendant in error, hereinafter called plaintiff, brought an action of the fourth class in the Muncipal Court of Chicago against the plaintiff in error, hereinafter called defendant, for damages for personal injuries. The plaintiff’s statement of claim is as follows:

“Plaintiff’s claim is for injuries received on February 15, 1910, at about 2 o’clock p. m. on 35th street, about 50 or 60 feet west of the intersection of Iron street in Chicago. Plaintiff was in the employ of the defendant comp my as a laborer and was ordered by the defendant to assist other laborers in removing from a certain track then and there owned by the defendant company certain iron trolley poles of great weight and size; while the plaintiff was with all due care and diligence endeavoring to aid in removal of certain said trolley pole the said defendant negligently and carelessly failed to provide an adequate and sufficient number of men to aid the plaintiff in lifting from said truck the said trolley pole, whereby and by reason of the failure of the defendant to supply an adequate and sufficient number of fellow laborers to aid plaintiff in the lifting and removal from said truck of the said trolley pole—which said inadequacy and insufficiency of fellow laborers was unknown to the plaintiff—said trolley pole without any fault on the part of the plaintiff fell down and upon the plaintiff striking, 1 ’eaking and fracturing his right leg several inches above the knee and in addition thereto inflicting severe bruises, contusions and lacerations about the body.”

This statement is followed by another, substantially the same, except the negligence averred is that the defendant “failed to provide suitable, adequate or sufficient machinery, tools, implements and appliances to the said plaintiff for the removal of the aforesaid trolley poles.” Near the conclusion of the evidence the court permitted an additional statement of claim to be filed, wherein it was averred that the defendant “so negligently, carelessly and improperly handled, raised and lifted said pole as to cause the same to drop to and upon the right leg of the plaintiff. ’ ’ The ease was tried by the court without a jury and the defendant found guilty and plaintiff’s damages assessed at $950 and judgment entered therefor.

At the time of the accident the plaintiff, with four other men and the foreman, were unloading from a wagon (without a box) on 35th street four hollow iron poles. The poles were each 33 feet long, with a diameter of 7 inches at one end and 5 inches at the other and weighed 900 lbs. The usual manner of unloading the poles was to first lift the small end of a pole off the wagon and place it on the ground; then the men would go toward the larger end and there in a line along the pole lift the larger end over the forward wheel of the wagon to the ground. Two poles had been taken off the wagon in the usual manner and at the time of the accident the third pole was being lifted off the wagon in the usual manner, with the exception of the position occupied by the plaintiff. The poles were lifted from off the wagon on the south side as the wagon extended east and west on the street. In unloading them the men would take a position on the north side of the pole, avoiding the danger of being on the south side as it was unloaded from the wagon.

In unloading the third pole the plaintiff was at the large end on the south side of it, when the pole in falling to the ground struck him on the leg and broke it. In the beginning of the trial the plaintiff’s attorney announced that the right of action was predicated on the ground of insufficient help in unloading the poles. The only evidence in support of this contention was the command of the defendant’s foreman to two other men, working’ some two hundred feet away, to come and help. This assistance was undoubtedly called for to hurry the work because of a street car coming up to the wagon, which was standing on the track; and there is in fact no evidence tending to support the specific averments of negligence in the first “statements of claim.” The plaintiff introduced evidence tending to prove that the defendant’s foreman ordered him to take a position on the south side of the pole, and in obedience to the command of the foreman, who was also instructing the men to hurry, he took the position which resulted in his injury. The defendant introduced evidence tending to prove that the plaintiff was ordered to take a position on the north side of the pole and repeatedly cautioned not to get south of the pole in unloading it, but, notwithstanding said directions, he took the position on the south side of the pole, and in its being unloaded he slipped and fell and the pole fell on him. While the record in this case is in nearly every respect confusing and unsatisfactory, we are not prepared to hold that the evidence clearly and manifestly preponderates in favor of the defendant on the said issue in relation to the said order. If the plaintiff took the said position in obedience to the order of the defendant, he did not assume the risk. Springfield Boiler Co. v. Parks, 222 Ill. 355. Neither do we think that under the evidence we would be justified in holding that in obeying the order of the defendant in taking said dangerous position, the danger was so apparent that an ordinarily prudent man would not have encountered it, and therefore plaintiff was guilty of contributory negligence.

The remaining question is: Can recovery of this

judgment be sustained on the evidence under the said statements and additional statement of claim? Section 40 of the Municipal Court Act is, in part as to the statement of claim in cases of the fourth class, as follows:

“If the suit be for a tort, it shall consist of a brief statement of the nature of the tort and such further information as will reasonably inform the defendant of the nature of the case he is called upon to defend, but nothing herein contained shall be construed to require the statement of claim in any action for a tort to set forth the cause of action with the particularity required in a declaration at common law. ’ ’

In Schulze v. Gottschalk, 152 Ill. App. 20, this court held in respect to a statement of claim in a case of the fourth class:

“This section does not require the plaintiff to state the facts constituting his cause of action, but only to state the nature of his demand. ’ ’

The question of variance was not raised at the trial and will not be considered when raised here for the first time. Jaeger v. U. S. Brewing Co., 163 Ill. App. 216. No motion was made for a more specific statement of claim. On the motion of the plaintiff for leave to filq the additional statement, the defendant objected on the ground it set up a “hew, distinct and separate cause off action. ’ ’ The court then ruled it might be filed and said: “If it takes you by surprise, or if it takes any additional evidence to meet it, I will let you have additional time to meet it. ” Counsel for the defendant replied: “No, everybody has testified here.” The Court: “I don’t know as it changes it.” Counsel for defendant: “It don’t change the situation any.” During the trial the issue as to the said alleged negligent order of the foreman was developed and became well defined. It thus appears that the defendant was neither misled nor prejudiced by the failure of the plaintiff to specifically aver in his statement of claim a negligent order of the defendant.

The Municipal Court Act provides that no judgment shall be reversed unless the court shall be satisfied that such judgment resulted from substantial errors directly affecting the matter at issue between the parties. No pleadings are required in the Municipal Court in fourth class- cases, and only the nature of the cause of action need be stated. In the case at bar “the nature of the tort” was stated. We do not think the judgment resulted from substantial errors directly affecting the issue, and are also inclined to believe that if the plaintiff had brought his action in a court of general jurisdiction he might very properly have recovered a larger judgment for the damages sustained.

After a careful consideration of the law and the facts, we are of the opinion that the judgment should be affirmed and it is so ordered.

Affirmed.


text:
    C. F. Masterson, Defendant in Error, v. John B. Dandridge and Spencer B. Pugh, Trading as Dandridge & Pugh, Plaintiffs in Error.
    Gen. No. 17,593.
    1. Appeals and errors-—hill of exceptions. Motion to strike a supplemental bill of exceptions where it is not signed by the trial court and not filed within the time required by the Municipal Court Act is properly allowed.
    2. Appeals and errors—supplemental record. A supplemental record containing orders not appearing in the original record is properly sustained on motion to strike.
    Error to the Municipal Court of Chicago; the Hon. William N. Gem-mill, Judge, presiding.
    Heard in this court at the October term, 1911,
    AfiSrmed.
    Opinion filed June 30, 1913.
    Rehearing denied July 14, 1913.
    Albert J. W. Appell, for plaintiffs in error.
    Charles L. Wood, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This was an action in the Municipal Court of Chicago of the first class, brought by the plaintiff, here the defendant in error, against the defendants, here the plaintiffs in error, to recover for money paid out by the plaintiff at the instance and request of the defendants and on an account stated. On a hearing by the court the issues were found for the plaintiff; his damages assessed at $3,456.84 and judgment entered therefor. We were advised by the oral argument that the judgment has been paid and only the costs are depending on this decision.

Leave was given the plaintiff to file a supplemental record and a motion by the defendants to strike the same and ‘‘Supplemental Bill of Exceptions” appearing therein was reserved to the hearing. The supplemental record containing orders not appearing in the original record filed here by the defendants, the motion to strike the supplemental record is denied, but the motion to strike that part of the said supplemental record described as the “Supplemental Bill of Exceptions” is allowed. The same was not signed by the trial court and filed within the time required by the Municipal Court Act.

The plaintiff introduced evidence in support of his claim, but the defendants made no defense. They apparently relied upon their motion to continue supported by the affidavit of the defendant Dandridge. We have carefully examined the affidavit and given due consideration to the defendants ’ argument in support thereof, and think that the court properly denied the motion.

There is- no reversible error in the record. The judgment is affirmed.

Affirmed.


text:
    Morris & Company et al., Defendants in Error, v. Rhode Island Insurance Company of Providence, Plaintiff in Error.
    Gen. No. 17,641.
    1. Appeals and erbobs—when sufficiency of evidence cannot he questioned. In an action to recover unearned premiums on insurance policies, defendant can not raise the question in the court of review that plaintiff introduced no evidence to prove payment of the premiums where defendant itself introduced evidence showing payment.
    2. Insurance—where typewritten rider is attached to policy. In an action to recover unearned premiums where insurance policies are canceled, the provisions in a typewritten rider attached to the policy prevail when in conflict with printed terms in the policy.

      3. Contracts—where written and printed portions of contract are inconsistent. Where written and printed portions of a contract are inconsistent the writing prevails.
    4. Insurance—where insurance premiums are paid to agent. In an action to recover unearned premiums on insurance policies paid to a general agent of defendant by a note and a check, defendant is bound by such payment.
    5. Agency—agent to collect cannot accept anything hut money. An agent to collect cannot accept anything but money in payment unless authorized by the principal to receive something else.
    6. Agency—powers of agent. The powers of an agent are limited to the general scope of the business entrusted to him.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    Rehearing denied and opinion modified July 14, 1913.
    Bates, Harding, Edgerton & Bates, for plaintiff in error.
    M. W. Borders, L. M. Walter and 3ST. Gr. Collins, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiffs, here the defendants in error, brought an action of the first class in the Municipal Court of Chicago against the defendant, here the plaintiff in error, to recover unearned premiums claimed to be due the plaintiffs on certain fire insurance policies.. issued by the defendant to the plaintiffs and by them canceled pursuant to the terms of the said policies. A jury was waived and on a hearing by the court the issues were found in favor of the plaintiffs and their damages assessed at $12,581.06 and a judgment entered therefor.

The defendant urges three reasons for the reversal of the judgment. First, that the plaintiffs introduced no evidence tending to prove the payment to the defendant of the premiums on the said policies, and proof thereof was necessary to maintain the action; and that the contention of the plaintiffs that it was not necessary to introduce such proof because of the rule that proof of the delivery of the policies to the insured and possession thereof by the insured raises a presumption of the payment of the premiums, is not applicable to the case at bar. The logic of the defendant’s argument is persuasive, but unavailing, even if it be true that on its motion at the close of the plaintiff’s case the court should have found for the defendant because of the failure of the plaintiffs to make such proof. The defendant cannot here avail itself of the said objection, for the reason that it introduced evidence showing the payment of said premiums to the defendant. In Goldie v. Werner, 151 Ill. 551, the defendant’s motion to direct a verdict at the close of the plaintiff’s case was denied and the defendants thereupon introduced certain testimony. The court held that the plaintiff was entitled to the benefit of all the evidence introduced by the defendants that helped to make out his case, and said: “The defendants did not stand by their motion; but by the course they took waived all objections to the action of the court in overruling their motion, and cannot assign error upon the ruling of the court in the' premises.” Citing authorities. See also Thompson on Trials, sec. 2271.

The defendant next insists that on a cancellation of the policies their surrender was a condition precedent to a recovery of the unearned portion of the premiums, and there being no surrender, the action was premature. The form of the policies was described as the ordinary “New York Standard Fire Insurance Policy” and contained the following printed provision:

“This policy shall be cancelled at any time at the request of the insured; or by the company by giving five days’ notice of such cancellation. If this policy shall be cancelled as hereinbefore provided, or become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining the customary short rate; except that when this policy is cancelled by this company by giving notice, it shall retain only the pro rata premium.”

The policies were not surrendered to the defendant. The validity of the cancellation thereof by the plaintiffs is not denied by the defendant; and it is clear that after the cancellation of the said policies there could have been no recovery thereunder in case of a loss of the premises therein covered, or any part thereof, by fire subsequent to the cancellation. A typewritten rider was attached to the policies reading as follows:

“This policy may be cancelled by either party giving thirty days’ notice in writing, pro rata return premium if cancelled by company, short rate to be charged for time if cancelled by assured.”

The plaintiffs claim that the provision of the said rider supersedes the printed clause first above quoted, and on the cancellation of the policies thereunder no surrender was required. The rule that where, in the use of printed forms, a contract is partly minted and partly written, the writing will prevail when there is a conflict or inconsistency between the writing and the printing, is well settled. But the defendant contends-that there is no conflict or inconsistency in the said two provisions as to the return of unearned premiums.

The printed clause provided that in case of the policy becoming void, by cancellation or otherwise, the unearned premium should be returned upon the surrender of the policy. The rider contains an entirely different provision from the printed clause in relation to a cancellation of the policy and is followed by “pro rata return premium if cancelled by company, short rate to be charged for time if cancelled by assured.” This language is the same in effect as in the printed clause pertaining to the amounts to be paid by the defendant in case of a cancellation of the policy. Why should it be put in the rider unless it was meant to fix the method of computing the amount to be paid upon a cancellation of the policy, as the said rider provided, and not upon a cancellation and surrender of the policy? We think that the reasonable construction of the rider is, and that it was so intended by the parties, that upon a cancellation, not a cancellation and surrender, of the policy as therein provided, a certain amount of the premium paid on the policy, computed on the basis therein agreed on, should thereupon become due and payable to the plaintiffs, and in that respect, as well as the time and the manner of cancellation, the rider was inconsistent with the said printed portion of the policy, and controlling upon the parties.

The defendant, failing to convince the trial court of the soundness of either of the two defenses mentioned, by its counsel frankly say: “found itself in the position of being obliged either to stand upon such rulings or to prove, or to attempt to prove, that the premiums on said policies had not been paid to it;” and for certain reasons elected to attempt to make such proof. The defendant then proved that the plaintiffs paid the premiums on said policies to Adolph Loeb & Sons, Incorporated, by check for $7,324.87, and at the same time a note for $8,617.50, both payable to the order of said Adolph Loeb & Sons, Incorporated, who discounted the said note and received the proceeds thereof, and also received payment on the check.

The defendant urges as a final ground of reversal:

“It is contended by plaintiff in error that such payment by a note to the order of Adolph Loeb & Sons, Incorporated, even though Adolph Loeb & Sons, Incorporated, was the agent of the Rhode Island Insurance Company, was not a good payment to the Rhode Island Insurance Company, and that the fact that the note was discounted by Adolph Loeb & Sons, Incorporated, does not alter the situation; that the payment was not under any circumstances a good payment to the plaintiff in error. The record fails to show any authorization by the Rhode Island Insurance Company to Adolph Loeb & Sons, Incorporated, to accept a note in payment of any portion of the premiums on these policies. The record also fails to show that the Ehode Island Insurance Company in any way or at any time ratified payment in such manner. The record fails to show that the Ehode Island Insurance Company at any time or in any way received any benefit from such payment by note to Adolph Loeb & Sons, Incorporated, or received or accepted any of the proceeds thereof.”

In support of this argument the defendant states the law to be that “the payment to an agent of a debt due to his principal by a promissory note payable to the order of the agent, is not a good payment to the principal,” citing Scott v. Gilkey, 153 Ill. 168; Everts v. Lawther, 165 Ill. 487; Cooney v. U. S. Wringer Co., 101 Ill. App. 468, and authorities other than the courts of this state.

We think it may be conceded that an agent to collect can not accept anything but money in payment unless he has been authorized by his principal to receive something else, and that the powers of an agent are limited to the general scope of the business entrusted to him, are general propositions of law and supported by the authorities cited and relied upon by the defendant. Adolph Loeb & Sons, Inc., received the money in payment of the said premiums. The merits of the defendant’s contention therefore depend upon the scope of said Loeb & Sons’ authority as the agents of the defendant.

The policies in question covered property in twenty-six different States. They were all delivered to the plaintiffs at the same time by Leo A. Loeb, the president of Adolph Loeb & Sons, Inc. Another policy, delivered at the same time and part of the same transaction, covered property in Chicago and was countersigned “Adolph Loeb & Sons, Inc., Agents, 159 LaSalle St., Chicago.” These policies were given in place of other policies covering the same premises issued a year before by the defendant through the said Loeb & Sons, and payment at that time was made by the plaintiffs of the premiums thereon to the said Loeb & Sons by check and note, in the same manner as at the time in question. The policies were written under date of March 21, 1910, to take effect April 1, 1910. The plaintiffs ’ notice to the defendant of a cancellation of the policies was made under date of August 19, 1910. No bill was sent to or demand made by the defendant of the plaintiffs for the payment of the said premiums , prior to the beginning of the said suit by the plaintiffs. The correspondence between the plaintiffs and the defendant introduced in evidence recognizes the agency of the said Loeb & Sons by the defendant. In our opinion the evidence proves that Adolph Loeb & Sons, Inc., was a general agent of the defendant within the rule announced in Continental Casualty Co. v. Johnson, 119 Ill. App. 93, and authorities there cited. In May on Insurance, vol. 2, sec. 360 B., the author says: “An agent authorized to take and approve risks and to insure may allow credit for the premium. A general agent may waive the condition as to payment of the first premium, and give credit even though the policy declares that the contract cannot be modified except by writing signed by the president or secretary.”

In Hancock Life Ins. Co. v. Schlink, 175 Ill. 284, while the case is not precisely in point, the court quotes the above from May with apparent approval. And in Eclectic Life Ins. Co. v. Fahrenkrug, 68 Ill. 463, the court say, in reference to the authority of agents: “The question in cases of this kind is not what power did the agent in fact possess, but what power did the company hold him out to the public as possessing. * * * It is immaterial what may have been said in the policy in regard to the payment of the premium. It was within the power of the company, acting through its agents, to change entirely the mode of or dispense with the payments as provided by the policy, and adopt a different mode and time of payment.”

In the case at bar the policies specified no mode of payment, and it seems to us that under the circumstances the receipt by Loeb & Sons of the check and note in payment of the said premiums, was the act of the defendant, and was payment to it of the said premiums. Holding this view, the argument that the defendant did not ratify such payment, or in fact receive any benefit from the payment by said note, is of no avail.

The judgment is affirmed.

Affirmed.


text:
    Nicholas Nudelman, Defendant in Error, v. Sigmund Fish, Plaintiff in Error.
    Gen. No. 17,677.
    Appeals and errors—when verdict is not against weight of evidence. In an action to recover commissions for procuring a purchaser for defendant ’s real estate, verdict for plaintiff sustained as not against the weight of the evidence.
    Error to the Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    William Friedman, for plaintiff in error.
    Blum & Blum, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a suit against the defendant, here the plaintiff in error, to recover commissions as a real estate broker, claimed to have been earned by him in procuring a purchaser for certain described premises at the price agreed upon. On a trial before the court and jury, the jury found the issues for the plaintiff and assessed his damages at $350 and the court entered judgment on the verdict.

The law of the case is not doubtful and we understand that the propositions of law advanced by the parties are not controverted, except as to the contention of the plaintiff that no mutually obligatory contract having been entered into between the defendant and Browarsky, under the authority of Wilson v. Mason, 158 Ill. 304, there could be no recovery. That authority has no application to the facts in the case at bar. Hersher v. Wells, 103 Ill. App. 418; Scott v. Stuart, 115 Ill. App. 535.

The difficulty in this case is the determination of the questions of fact. That the defendant employed the plaintiff as a real estate broker, to sell or exchange the property in question, and that the plaintiff negotiated with one Browarsky, who testified that he was ready, willing and able financially to carry out the contract and would have carried out the contract made with the plaintiff, and the defendant refused to consummate the same, was clearly shown. Whether the plaintiff was authorized to offer the property on the terms he did, and whether he had not abandoned the attempt to sell or exchange the premises, with other questions of fact, were contested; and the testimony offered thereon is in direct conflict. After a careful examination of the testimony, we are unable to hold the verdict clearly and manifestly against the weight of the evidence, and the judgment is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Smith Pee Cublam :

text:
    United States Brewing Company of Chicago, Defendant in Error, v. Sam Wolf, Plaintiff in Error.
    Gen. No. 17,707.
    1. Appeals and errors—propositions of law. It is error for the trial court to refuse to pass on propositions of law.
    2. Landlord and tenant—effect of optional clause in lease. A clause in a lease giving an option to renew on the same terms does not entitle lessee to have an optional clause in the new lease.
    3. Landlord and tenant—construction of optional clause in lease. A clause in a lease giving an option to renew upon the same terms providing the lessee shall give notice before termination means that the lessor is bound to enter into a new lease on receipt of notice, yet the notice itself does not extend the term.
    4. Appeals and errors—when necessary to reverse and remand. Where the trial court in a case without a jury refuses to pass on propositions of law the judgment will be reversed and remanded since if the judgment were reversed without remanding it would be impossible to have the case reviewed in the Supreme Court.
    5. Appeals and errors—petition for rehearing. Propositions of law presented in a petition for rehearing that were not presented in the original briefs are not considered.
    6. Appeals and errors—where no propositions of law are submitted. The Appellate Court may review a case tried in the Municipal Court without a jury, where no propositions of law are submitted.
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 30, 1913.
    Rehearing denied and additional opinion filed July 14, 1913.
    Harry M. Fisher, for plaintiff in error.
    Winston, Payne, Strawn & Shaw, for defendant in error; John 0. Slade and Rupert D. Donovan, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought a forcible detainer suit in the Municipal Court of Chicago against the defendant, here the plaintiff in error, to recover possession of certain premises in Chicago known and described as No. 1500 West Polk street. On a trial by the court the defendant was found guilty of unlawfully withholding from the plaintiff the possession of the said premises and that the right of possession thereof was in the plaintiff, and judgment in the usual form in that court was entered thereon.

The defendant submitted to the trial court certain propositions of law, with the request that the court pass upon and mark the same as provided by statute. The court refused to so do and this action of the court is assigned for error and insisted upon in the argument of the defendant for the reversal of the judgment. The propositions of law submitted to the court should have been passed on and it was clearly error to refuse so to do.

Under the date of February 16, 1910, Oscar Schreiber, the owner of the said premises, leased the same to the plaintiff, who then had and continued in possession thereof, through the defendant, for the term beginning May 1,1910, and ending April 30,1911. The said lease contained the following provision:

“Said lessor herein gives and grants to the said lessee the option for an additional term at the expiration hereof, of One (1) year, upon the same terms and conditions, and at the same rent as herein expressed, provided that the said lessee shall give notice of its acceptance of said option prior to the termination of this demise.”

On February 1, 1911, the plaintiff notified the said Schreiber that it exercised its said option to lease the said premises for the additional term of one year, and also stated therein, “and we hereby further notify you that the said United States Brewing Company of Chicago is now ready, willing and able to enter into and execute a lease, under the same terms and conditions as that now in force for a period of one (1) year from April 30th, 1911.”

On February 7, 1911, the plaintiff sublet said premises to the defendant, who was then in possession of the premises, for the term beginning May 1, 1911, and ending April 29, 1912. On May 17, 1911, the plaintiff served a five day notice on the defendant and, the defendant not paying the rent on May 24, 1911, began said forcible detainer suit.

After the plaintiff’s notice of exercising its option under the lease was received by the said Schreiber, he called upon the plaintiff to execute a new lease upon the same terms and conditions of the said lease, except the clause giving an option for an additional term. The plaintiff insisted upon the clause giving an option for an additional term, and declined to execute the lease unless it contained the same option for an additional term. The said Schreiber, on two different occasions, after the receipt of the said notice, offered to execute a new lease, the same as the lease in force, with the exception of the option privilege, and the plaintiff refused to make a lease that did not include the same option privilege. Schreiber then leased the said premises to the defendant, whó remained in possession thereof, claiming to hold same under the Schreiber lease, and attorned to the said Schreiber.

That the plaintiff was not. entitled, under the optional clause of its lease with Schreiber, to a new lease including the optional clause, thereby making the lease perpetual, is too well settled to require the citation of authorities.

The difficult question in this case is the construction of the said optional clause. What is its meaning? That on the giving of the notice therein specified, the term would thereby be extended one year, or that the said Schreiber, on receiving the said notice, bound himself to enter into a new lease with plaintiff for one year at the same terms, except the optional clause? We have made a careful examination of the authorities and find no case, and none has been called to our attention by the parties, with an option clause framed in language similar to that in the case at bar. The test must necessarily be the meaning of the parties, and being in doubt from the reading of the language itself, we resort to the construction thereof by the parties. From the evidence it seems that the construction by both the plaintiff and Schreiber was that a new lease should be executed. The plaintiff’s argument that the notice in regard to a new lease was surplusage can not avail it on the question of showing the construction put upon the option clause by the defendant. It clearly shows the plaintiff’s construction of the said provision. If a new lease was required and the plaintiff refused to execute the same, it follows that it was not entitled to the possession of the said premises subsequent to April '30, 1911, and the judgment was therefore erroneous.

If the judgment were reversed without remanding, a certificate of importance and appeal allowed the plaintiff would be of no avail, because of the failure of the court, trying the case without a jury, to pass on the propositions of law which are necessary for a review of the case in the Supreme Court. Mann v. Learned, 195 Ill. 502. The case well illustrates the seriousness of the error of the trial court’s refusal to pass on the propositions of law presented.

The judgment is reversed and the cause remanded.

Reversed and remanded.

Upon consideration of a petition by defendant in error for a rehearing herein the following additional opinion was filed on July 14,1913.

Pee Cublam :

The defendant in error in á petition

for a rehearing cites many authorities in an extended argument on the proposition that this court will review a judgment of the Municipal Court entered in a trial without a jury where no propositions of law were submitted. It is also asserted that this decision is in conflict with those authorities. The opinion does not so state, and we think it warrants no such construction; but as counsel appear sincere in their contention, we make this addition to the opinion to make sure of no misunderstanding of what we mean to hold. It is true that this court will review judgments entered in the Municipal Court in cases tried without a jury where no propositions of law are submitted. It is equally clear that under the Practice Act, chapter 110, sec. 61, and adopted as a rule of the Municipal Court, when written propositions of law are submitted to the trial court it is the duty of the court to pass on the same. The two questions are very different and not one and the same, as counsel seem to think.

While an Appellate Court may review a civil case tried in the Municipal Court without a jury, where no propositions of law were submitted, it is our impression that counsel, however much it might be desired, would find it somewhat difficult to have the case reviewed by the Supreme Court and it was such a situation to which we referred in the last paragraph of the opinion. Propositions of law presented in the petition for a rehearing that were not presented in the original briefs will not be considered.

The petition for rehearing is denied.

Petition denied.


author: Mr. Justice Baker

text:
    Moore-Bond Company, Defendant in Error, v. The Attractograph Company, Plaintiff in Error.
    Gen. No. 16,569.
    1. Appeals and errors—where plaeita is defective. A plaeita which does not show a properly constituted court is cured by an additional plaeita showing the appointment of the trial judge.

      2. Appeals and eeeoes—where judgment order contains surplus words. A judgment order is sustained where after rejecting improper words as surplusage a judgment is left in proper form.
    3. Municipal court—stenographer. The statute does not require ' stenographer at trials in the municipal court.
    4. Constitutional law—Municipal Court Act. The Municipal Court Act is constitutional.
    Error to the Municipal Court of Chicago; the Hon. William H. Dieterich, Judge, presiding.
    Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed June 30, 1913.
    5. M. Meek and John P. McDonald, for plaintiff in error.
    Will C. Moody, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The evidence in this case is not before us.

The objection that the placita does not show a properly constituted court is cured by the additional placita which shows that the judge who presided at the trial was the county judge of Schuyler county and sat in the Municipal Court at the request of the judges of that court.

The contention that the record shows no judgment is without merit. The judgment order contained some words which have no proper place in the order. Rejecting such words as surplusage, there is left a judgment in proper form.

The statute does not require the Municipal Court to have a stenographer present at trials in that court to take notes of the evidence.

That the Municipal Court Act is constitutional is settled by repeated decisions of the Supreme Court.

The judgment is affirmed.

Affirmed.


text:
    J. E. Richards, Defendant in Error, v. The Inter Ocean Newspaper Company, Plaintiff in Error.
    Gen. No. 17,471.
    1. Assignments—wages earned in the future. A power of attorney to make an assignment of wages given by an employe, to plaintiff, cannot authorize plaintiff to make an assignment which will be valid against defendant a subsequent employer with whom the employe had no contract at the time the power of attorney was executed.
    2. Assignments-—when invalid. An assignment of wages to be earned in the future from employers with whom the assignor has no contract of employment at the time of making the assignment is invalid.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed June 30, 1913.
    Statement by the Court. August 15, 1907, O. H. Yollmer gave to Richards, plaintiff in this suit, Ms promissory note for $25 and a power of attorney authorizing the persons therein named, or any one of them, when Yollmer was indebted to Richards, to make an assignment and transfer of his wages to Richards as collateral security for such indebtedness. Yollmer was employed by the defendant corporation in March, 1910. August 15, 1910, $13.50 was due on the note, Yollmer was still employed by the defendant, and Davis, one of the persons named in the power of attorney, professing to act under it, in the name of Yollmer made an assignment to Richards of his wages due or to become due from the defendant. Richards then brought suit in the Municipal Court against the defendant corporation, claiming that there was due to Yollmer from the defendant twenty-eight weeks’ wages at $25 per week, and stating in his statement of claim that he was the “actual bona fide owner of said wages,” and in the affidavit of claim that there was due to plaintiff $200. The court found that Vollmer owed Richards $13.25 principal and $6.25 attorney’s fees, as provided in the note, and gave judgment for the plaintiff for $19.50.
    William A. Jennings, for plaintiff in error.
    Clark & Clark, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The question presented by the record in this- case was before us in Stromberg, Allen & Co. v. Hill, 170 Ill. App. 323, and we held that an assignment of wages, so far as it purported to assign wages to be earned in the future from employers with whom the assignor had no contract of employment at the time of making the assignment, was void and of no effect, and that as the assignor could not make a valid assignment of wages from employers with whom he had no contract of employment, he could not then authorize or empower another to do so. Under the rule announced in that case the assignment by Davis of the wages due Vollmer from the defendant was void because at the time the power of attorney was executed by Vollmer he had no contract of employment with the defendant. On further consideration we see no reason to question the propriety of the conclusion reached in the Stromberg case, supra, and it follows that, in our opinion, the judgment is erroneous and should be reversed.

Judgment reversed.