text:
    Max Meyers, Appellant, v. Joel Johnson, Appellee.
    Gen. No. 19,312.
    (Not to he reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Action by Max Meyers against Joel Johnson in assumpsit for rent of certain premises at forty-five dollars per month for certain months during a tenancy for a year, created by the tenant holding over under an expired lease. The declaration consisted of a special count and the common counts. Judgment was entered in favor of defendant and to reverse the judgment, plaintiff appeals.
    The court below refused to give instructions Nos. 7, 8, 9, requested by plaintiff. These instructions were as follows:
    “7. The court instructs the jury that it is a rule of law that a person dealing with one known to be an agent, or claiming to be such, is bound at his peril to see that the agent has authority to bind his principal in such transaction, or that the agent is acting within the scope of his apparent authority.
    8. The court instructs the jury as a matter of law that before Henry Hogans can be bound by the acts of his son, Harry Hogans, it must be shown by the defendant, by competent evidence, that Henry Hogans authorized Harry Hogans to act for him and in his behalf in executing the special agreement relied upon by the defendant.
    9. The court instructs the jury as a matter of law that before a principal can be bound by the acts of his agent, it must be shown by the party asserting such agency that the principal authorized such agent to act for him and in his behalf, and that such agent carried out the business of his principal and within the scope of his authority as such agent; otherwise the principal is not bound by the acts of the agent.”
    Henry Horner, for appellant; Arnold Heap, of counsel.
    George E. Ruther, for appellee.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 88 -—when landlord may treat tenant holding over as tenant for another year. A tenant holding over under a lease which expired gives the landlord the right to treat such holding over as a tenancy for another year under the terms of the original lease.

2. Landlord and tenant, § 310 —when defense of breach of agreement in action for rent not available. In an action to recover rent from a tenant holding over under an expired lease, where a defense was made that the landlord failed to put iron bars on windows in accordance with a written agreement signed by the landlord’s son at the time the tenant signed the lease, held that the evidence was insufficient to show that the landlord’s son had authority to sign the agreement and held that even though it was executed with authority, the payment of the rent continuously for twenty months, with knowledge of the absence of the bars on the windows, waived the performance of the agreement.

3. Landlord and tenant, § 264 —when breach of agreement by landlord does not constitute eviction. Breach of landlord’s agreement to put up iron bars on rear windows does not, in law, constitute an eviction, either actual or constructive, where the tenant remains in full and complete possession of the premises and holds over after the expiration of the lease.

4. Landlord and tenant, § 325a -—when refusal of requested instructions error. In an action for rent, where the defense was that the landlord did not put up iron bars on windows in accordance with a written agreement signed by the landlord’s son at the time the tenant signed the lease, certain instructions requested by plaintiff relating to authority of agent to bind his principal held improperly refused.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    William Wendnagel et al., copartners as Wendnagel & Company, Appellees, v. George T. Houston et al., copartners as George T. Houston & Company, Appellants.
    Gen. No. 19,382.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.

      Statement of the Case.
    Action by William Wendnagel and Eugene Wendnagel, copartners trading as Wendnagel & Company, against George T. Houston and Frank B. Houston, copartners trading as George T. Houston & Company, to recover damages for breach of contract in failing to deliver certain lumber which the defendant sold and agreed to deliver to plaintiffs. From a judgment in favor of plaintiffs for nine hundred dollars, defendants appeal.
    Jesse Holdom and Frederick H. Wickett, for appellants; Jesse Holdom, of counsel.
    Adams, Crews, Bobb & Westcott, for appellees.
    Abstract of the Decision.
    1. Sales, § 373

      —when judgment for price sustained by the evidence. In an action for breach of a contract to deliver lumber sold by defendant to plaintiff, a judgment in favor of plaintiff held sustained by the evidence.
    2. Appeal and error, § 1514

      —when remarles of counsel not prejudicial error. In an action for damages resulting from failure of defendant to deliver lumber under a contract, where the nondelivery of the lumber was conceded, remarks of counsel for the plaintiff in his closing argument to the jury as to the question why the lumber was not delivered, held not prejudicial error where objection to the remarks was sustained and the remarks were stricken out.
    3. Appeal and error, § 1514^iv7¡,e«. statement by counsel as to what he proposed to show by witness not prejudicial. In an action for damages for breach of a contract to deliver lumber sold to plaintiff, a statement by counsel for the plaintiff on asking a question of a witness that he proposed to show by the witness that a certain person connected with the defendants admitted the value of the lumber was more than the contract price, held not prejudicial error where objections were sustained to the questions and offer.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


text:
    Samuel L. Wright, Defendant in Error, v. Anton J. Cermak, Bailiff, and H. P. Cullen, Defendants. Anton J. Cermak, Bailiff, Plaintiff in Error.
    Gen. No. 20,263.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 21, 1914.
    Rehearing denied May 5, 1914.
    Statement of the Case.
    Action by Samuel L. Wright against Anton J. Cermak, bailiff of the Municipal Court of Chicago, and H. P. Cullen to recover $15 as attorney’s fees and $8.75 claimed to have been paid for storage charges on an automobile. Previous to the action the defendant, Cermak, levied an execution on plaintiff’s automobile and had it stored in a warehouse. The plaintiff brought a proceeding to try the right of property under section 311a, ch. 37, Hurd’s B. S., J & A. ¶ 3361, and recovered a judgment awarding an execution for the automobile and for cost of the proceedings. The warehouse receipt was turned over to the plaintiff and when plaintiff called for his automobile he was compelled to pay $8.75 for storage charges; and this action was brought for that sum and attorney’s fees for services rendered by plaintiff’s attorney in the proceeding for trial of right of property. To reverse a judgment in favor of plaintiff for $8.75, defendant Cermak brings error.
    On the trial, proof of the amount claimed for attorney’s fees was excluded as not a proper element of damages. The defendant, Cermak, submitted the following propositions of law, which the court refused to hold as law;
    1. “A resort to the statutory action of a trial of right of property and a recovery therein is a waiver of an action against an officer for trespass for wrongfully levying an execution.
    2. The plaintiff herein had hut one cause of action for the wrong committed, though a choice of remedies, and the following of either is a bar to the others.
    3. The plaintiff having commenced and prosecuted to a judgment in the Municipal Court of Chicago a trial of right of property proceeding, and having accepted the benefits of the judgment entered therein, has thereby precluded himself from maintaining this action.”
    John Stelk, for plaintiff in error.
    Otto W. Jurgens, for defendant in error.
    Abstract of the Decision.
    1. Execution, § 130

      —when judgment on trial of right of property no 6ar to suit to recover damages. Where a person whose automobile was wrongfully levied on as the property of another, prosecuted to judgment in the Municipal Court a trial of the right of property and accepted the benefits of the judgment, held that he was not thereafter precluded from bringing an action against the officer for damages sustained on account of the wrongful levy.
    2. Execution, § 130

      —propositions of law. Propositions submitted as law with respect to the effect of a judgment recovered in a trial of right of property as being a bar to a further action for damages, held properly refused.

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

   Mr. Presiding Justice Smith

delivered the opinion of the court.


author: Mr. Justice Barnes

text:
    Albert W. Weiss, Appellee, v. The Belt Railway Company of Chicago, Appellant.
    Gen. No. 18,791.
    1. Master and servant, § 689

      —when evidence insufficient to sustain recovery under Federal Safety Appliance Act. In. an action against a railroad company for damages on account of injuries sustained by a switchman while uncoupling cars alleged to have been caused by the negligence of the company in hauling and using a car with a coupler in a defective condition, in violation of the Federal Safety Appliance Act, held that a recovery for plaintiff was not sustained by the evidence, the evidence being insufficient to show that the appliance was defective, or to show that plaintiff was injured in the act of uncoupling the cars, or to show that a failure of defendant to comply with the statute was the proximate cause of the injury.
    2. Appeal and error, § 1300

      —when presumptions not applied to matters not proved. Any essential matter of fact not inferable from the entire evidence will not be supplied from presumption, thus no presumption follows from the use of a model at the trial, not put in evidence.
    3. Master and servant, § 98

      —when master not liable under Federal Employers’ Liability Act. The Federal Employers’ Liability Act is not aimed at the dangers incident to preventing the recoupling of cars about to be “kicked.”
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1912.
    Reversed.
    Opinion filed April 21, 1914.
    C. G. Austin and Beverly W. Howe, for appellant; William S. Kies, of counsel.
    James C. McShane, for appellee.

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

   Mr. Justice Barnes

delivered the opinion of the court.

This was an action brought by appellee, Weiss, for damages against appellant on account of an injury received by him while acting as a switchman for appellant. The verdict and judgment rest on a count based on the Federal Safety Appliance Act. The negligence charged is in hauling and using a car with a coupler in a defective condition that necessitated appellee’s going between cars to uncouple them.

Appellee’s testimony was substantially as follows: Fie was one of a switching crew that was breaking up a train which just before the accident passed a switch where the rear or south car was to be “cut off” and “kicked” down a certain track. He dropped off at the switch, and as soon as the train passed it, gave both a stop and back-up signal to the engineer, threw the switch, and started forward on the east side of the train to cut off the rear car which stopped about half a car length north of the switch. The couplers were of the automatic type. The lever for uncoupling on the south car was operated from the east side and that on the north car from the west side. It is operated by raising a crank on the outside of the car. This causes the lever arm to lift and pull up a pin from the couplers high enough to permit the knuckles to pass under it and open. The pin hangs on a chain, one end of which is attached to the lifting arm and the other to the drawbar. Unless the pin is held up, the cars will lock automatically on impact when the knuckles are open. He took hold of the crank in the usual way to raise the pin and gave it a jerk. It came part way easily and then appeared to strike something solid. As he lowered the lever he heard the pin drop back. He repeated the effort about three times, with the same result. During that time the train was not moving. Failing to lift the pin by operating the lever, he stepped and reached in between the cars, took hold of the chain attached to the pin on the adjacent north car and lifted it. Thereupon the knuckle on the north car opened, and the south car moved away about eighteen inches. After the uncoupling was thus accomplisted, he reached over to close the knuckle so as to prevent the cars from recoupling on coming together in the next movement of the train, and while in the act of reaching in and pulling it towards him, the detached train, pursuant to the signal he had previously given, moved back against the uncoupled car, causing the injury to his hand and wrist complained of.

The testimony in behalf of appellant was substantially as follows: Appellee was immediately taken aboard the engine by the crew and started for a hospital. The engine returned in about an hour and a half. The conductor testified that he then found the cars where they had left them and that he examined the safety appliances and couplers on the cars in question, operated the levers on the ears both when coupled together and apart, that they worked perfectly, that he found no defect, and that they had no difficulty in uncoupling and switching the car. He testified that before leaving for the hospital he took the numbers and initials of the two cars and reported them and the accident to the yardmaster, who testified that he in turn reported said facts to the only inspector in the yard; that the latter, within half an hour from the time of the accident, went to examine the cars, and that no cars were moved until the engine came back. The inspector testified that there was nobody in the yard at the time during that night to repair the appliances but himself; that when he made the inspection he tried all the safety appliances, including the pin lifters, chain, lock and knuckles, and found all in good, working order; that he took out the knuckles and the lock, found nothing bent or out of order, put them back, tried the lever four or five times and it was in perfect working order. Another inspector testified that he examined the cars when delivered to appellant the night before and found nothing defective.

The two main questions of fact thus presented were, (1) whether the appliances were defective, and (2) whether appellee was injured in the act of uncoupling the cars.

As to the former, there was no proof except what might be inferred from appellee’s testimony of his inability to operate the lever. Against such inference is direct and positive testimony, corroborated in part by several witnesses, that, without repair, while essential conditions remained unchanged, the appliances were inspected, tested and found to operate perfectly and to be free from defects, and appellee’s own testimony is not inconsistent with that state of facts.

Appellee’s counsel argues, however, that there was no evidence that a repair may not have been made between the time the accident occurred and appliances were inspected. If the evidence, that in the interval said inspector was the only one in the yard to repair the appliances and that shortly after the accident he found them in perfect working order, is not sufficient answer to this contention, the fact remains that there was no proof of repair. This same argument was made in Union Pac. R. Co. v. Brady, 88 C. C. A. 579, 161 Fed. Rep. 719, upon a very similar state of facts and proof. The Court said: “It was suggested that a repair might have been made between the times of injury and inspection, but there was not the slightest proof of one.” In that case, as this, there was no attempt to prove a specific defect. The Court said: “We are of opinion that there was no substantial evidence of a defective condition of this appliance,” and significantly added, “But, if this were not so, it was plaintiff’s duty to use the lever on the other car.”

The burden of proof was on plaintiff to show the appliance was defective; and it has been held that where one makes a mere prima facie case that is completely met by proof of a contradictory state of facts, sworn to by several unimpeached witnesses, “and there are no elements of probability to turn the scale,” the verdict will be set aside. Peaslee v. Glass, 61 Ill. 94. If anything, the elements of probability seem to be against appellee. It is conceded that the lever does not work when there is tension on the pin. Plaintiff testified, “when the slack is all out, we cannot raise the pin. ’ ’ While he testified on direct examination that the “slack was all in,” yet he also testified that the moment he lifted the pin, the released car moved eighteen inches away, and when asked what caused it, said, “that was slack run out.” As the train was stationary and remained so during his operations, such movement can apparently be accounted for only by the force of gravity, after release from tension on the pin occasioned by “slack run out.” This presents a reason for his inability to work the lever.

Appellee’s counsel suggests, however, that the movement may have resulted from a recoil of the springs back of the drawbars. If such theory did not lead to mere conjecture, yet against it is the fact that the action of springs would necessarily ensue at once upon the stopping of the train, and, presumably, have been spent in the interval taken by appellee to work the lever and uncouple the cars in the manner testified to by him. The immediate movement of only the rear ear when the pin was lifted renders the theory of gravity more plausible than that of recoil.

But appellee’s counsel further urges that if there were tension on one pin of the connecting couplers there would also be on the other, and if the one could not be moved by the lever, the other could not be by hand. Again we are led to the realm of conjecture. This depends upon details of construction, as to which the record is barren. Appellee, however, contends that as a model of some kind was used at the trial for illustration (not put in evidence, nor certified to us), a presumption in his favor will be supplied from the use "of such model before the jury. In the case cited to support such contention (North Chicago St. R. Co. v. Eldridge, 51 Ill. App. 430), the jury were permitted to inspect a car as to the existence of a certain alleged condition, a photograph of which was received in evidence and deemed sufficient to prove it. The Court added however, that “whatever, if anything, was lacking in the other evidence * * * we must presume was supplied by such inspection. ’ ’ In the case at bar there was no evidence whatever on the subject. Where the entire evidence is before us any essential matter of fact not inferable therefrom will not be supplied by presumption.

But, if there be doubt whether the record will support the finding of a defective appliance, there can be none, we think, that appellee’s injury did not result from the act of uncoupling. He was asked, “When you went to close that knuckle, you had completed uncoupling those cars?” He answered, “Yes, sir.” He was further asked, “When those cars separated eighteen inches, after they were uncoupled, you could then have stepped out on the outside, and not got caught between there, couldn’t you?” and answered, “Yes, sir.” It is apparent, therefore, that he had accomplished the uncoupling, and stepped forward and remained between the cars to adjust the knuckle and prevent their recoupling on the next movement of the train. It was while engaged in the latter act that he was injured. Such act was not necessitated by reason of a defective condition of the appliance, if any existed.

Contrary to appellee’s testimony, however, his counsel argues that he had not completed the uncoupling, claiming that the act to prevent recoupling was a part of the act of uncoupling the cars. To this we cannot assent. There can be no controversy over the ordinary meaning of the word “uncoupling,” or as used in the Federal Safety Appliance Act. Two things are required by section 2 of that act: (1) That the couplers shall couple automatically by impact; and (2) that they can be uncoupled without the necessity of men going between the ends of the cars. This action is predicated wholly upon an alleged violation of the latter requirement. It is significant that while each count of plaintiff’s declaration alleges that the cars could not be uncoupled without his going between them, and that he went between them for that purpose, it is also alleged that his injuries were received “while engaged in the work of uncoupling them and preventing them from reconciling themselves.” The declaration itself recognizes a distinction between uncoupling and preventing recoupling, and that the injury did not ensue alone, at least, from the act of uncoupling.

At the close of the evidence, it was stipulated that standard automatic couplers are not constructed in such a manner that the knuckles thereof can be closed automatically after the cars have separated, or by the use of the lever or any other device in connection with such coupler, but that the same can only be closed by hand. At the close of the evidence, therefore, if not before, the fact was uncontroverted that the closing of a knuckle has no connection with the equipment for coupling or uncoupling. The statute in question was designed to prevent injury in the act of coupling or uncoupling, and requires equipment that will enable each to be accomplished without going between the ends of the cars. Had the cars come together without the pin being held up, they would have coupled automatically as required by the act. This would have happened even though the uncoupling appliances were free from defect. Had appellee not gone between the cars or remained there to engage in another distinct act, namely, to pull the knuckle so as to prevent recoupling, he would not have been injured, even if it had been, necessary to go between the cars to effect the uncoupling. The statute in question does not require automatic couplers to be so constructed that the knuckles thereof, when once opened, can be closed otherwise than by hand so as to prevent cars from recoupling. No one would question that if, when the rear car had thus separated from, the train, plaintiff had stepped out without adjusting the knuckle, the car would have been actually uncoupled, whether the next movement was forward or backward. His remaining between the cars to perform an act that would facilitate the next movement, that of “kicking” the car on another track, was the cause of his injury. He admitted that after accomplishing the uncoupling he could have stepped out and escaped injury. If, therefore, appellee’s injury was not the proximate result of uncoupling, then the failure to comply with the statute with respect to equipment therefor would not entitle appellee to recover.

At the close of plaintiff’s evidence and again at the close of the entire evidence in the case, appellant asked for an instructed verdict of not guilty. In our judgment, it was entitled to the instruction, as the uncontroverted facts showed that a failure to comply with the statute, if any, was not the proximate cause of the injury. The facts as to the manner of receiving the injury being uncontroverted, the question of proximate cause was a question of law. Devine v. Chicago & C. River R. Co., 259 Ill. 449.

In the case last cited, the cause of action was also predicated on the statute in question. It was claimed that the defective appliance necessitated the injured party’s remaining between cars to accomplish the very end sought in the case at bar,—to prevent a recoupling in a “kicking” movement. The injured party went between the locomotive and car to uncouple them and stood on the running board of the locomotive to hold up a coupling pin so as to prevent recoupling in the “kicking” operation. The Court said that when he was injured by being thrown therefrom “the purpose for which he had gotten upon it had been accomplished, —the cars had been uncoupled,” and that while the appliance failed to comply with the requirements of the statute, and such failure required the party to go between the ends of the cars to effect an uncoupling, yet his presence on the footboard when injured was not due to such failure, but because there was no other practicable way in which the operation of “kicking” could be performed, and that, therefore, such failure was not the proximate cause of the injury. It further said that, conceding that there was a device that would hold up the pin, yet “any standard coupler which couples automatically by impact and which can be uncoupled without requiring men to go between the ends of cars would satisfy the statute,” and that “if such a device is known, neither the Federal nor State statute requires its use.”

It appears from the evidence that if the pin is held up, either by hand or by holding the lever, as may be done, the- cars will not recouple on coming together. It was to obviate the necessity of holding up this pin by hand, or using the other lever, or stopping to give the engineer a counter signal, that led plaintiff to engage in the act in which he was injured, namely, closing the knuckle by hand, so the automatic device would not operate and recouple the cars. When, therefore, appellee was injured, he was not engaged in the act of uncoupling, against the dangers of which the statute is aimed, but in preventing recoupling, a matter that is not within the purview of the statute. We must, therefore, hold that on the uncontroverted facts, as a question of law, the proximate cause of appellee’s injury was not the failure, if any, to comply with the statute upon which his action is predicated, and must accordingly reverse the judgment.

Reversed.


text:
    Sturges & Burn Manufacturing Company, Appellant, v. Root Dairy Supply Company, Appellee.
    Gen. No. 19,345.
    (Not to Tbe reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Action by Sturges & Burn Manufacturing Company against Boot Dairy Supply Company to recover the unpaid balance of the purchase price of milk and other cans furnished and delivered to defendant; The amount of said balance, $1,496.95, was unquestioned. Defendant sought to recoup damages for an alleged breach of contract. The jury gave a verdict for plaintiff for $500, thereby finding for defendant to the extent of the difference. The total amount of defendant’s damages, however, as claimed and proved, was $237.31 less than the jury allowed it. From a judgment entered on the verdict, plaintiff appeals.
    Bulkley, Gray & More, for appellant.
    Helmer, Moulton, Whitman & Whitman, for appellee; Lloyd C. Whitman, of counsel.
    Abstract of the Decision.
    1. Set-oee and eecoupment, § 45

      —when judgment allowing defendant more than claim for recoupment cannot he sustained. In an action to recover a sum due for milk cans furnished the defendant, where the amount alleged to he due was unquestioned, and defendant sought to recoup damages for breach of the contract,
      held that a verdict and judgment in favor of plaintiff for a sum which showed that defendant was allowed more on his claim of recoupment than he claimed and proved, could not be sustained, it appearing from the pleadings and proofs there was no basis for exemplary damages and the only question presented being whether in quality and weight the cans were such as plaintiff contracted to furnish.

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

   Mr. Justice Barnes

delivered the opinion of the court.

2. Sales, § 401 —when evidence insufficient to show breach of warranty. In an action for a balance of the purchase price of milk cans furnished by plaintiff to defendant, a claim of recoupment for breach of a warranty consisting of representations as to the weight of the cans, held not sustained by the evidence.

3. Sales, § 279 —when breach of warranty waived. Where there is a warranty as to the weight and quality of goods sold, and the defects are readily apparent or ascertainable on inspection, the warranty is waived where no complaint is made within a reasonable time after their acceptance.


text:
    Nettie L. Spencer et al., Appellants, v. Theodore C. Mueller, et al., Defendants. C. M. Anderson and A. W. Anderson, copartners, Appellees.
    Gen. No. 19,352.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanash, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Bill by Nettie L. Spencer and Albert Lang, trustee, against Theodore O. Mueller, O. M. Anderson and A. W. Anderson, copartners, etc., to forclose a trust deed securing certain notes executed by Theodore O. Mueller and Anna, his wife, owners of the conveyed premises, on which they contracted for the erection of certain improvements. Spencer was the holder of the notes and Lang was the trustee and also occupied the relation of contractor for the improvements. Anderson Brothers were the subcontractors and were made defendants to the bill. The Anderson Brothers in their answer, in the nature of an intervening petition, set up a claim for a mechanic’s lien. A mechanic’s lien was decreed against the premises and from that part of the decree, complainants appeal.
    Adams, Crews, Bobb & Wescott, for appellants.
    F. W. Balcomb, for appellees; Charles D. McGrath, of counsel.
    Abstract of the Decision.
    1. Mechanics’ Liens, § 147

      —when filing of intervening petition for lien not premature. Where subcontractors in a proceeding to foreclose a trust deed in which they were made party defendants filed intervening petitions on March 20th setting up their, claim for a mechanic’s lien, and subsequently on June 28th filed amended petitions, it appearing that their notice to the owner of their lien was served on March 25th, held that the proceeding to enforce the lien was not premature under section 28 of the Mechanics’ Act (J. & A. V 7166) providing suit may be brought ten days after service of notice where issue was taken on the amended petitions.
    2. Mechanics’ liens, § 212

      —matters which cannot he complained of hy appellants on appeal from decree allowing lien in foreclosure proceeding. On appeal from a decree in a foreclosure proceeding allowing a mechanic’s lien to subcontractors who were made parties defendant, held that appellants, who where complainants to the bill to foreclose, could not complain that the subcontractors’ intervening petitions for a lien were filed before notice of lien was served on the owner, nor complain that such notice was served on only one of the owners, it appearing that the owners assigned no cross-errors as to the time of filing the petitions, and it was not questioned but that the decree for lien was good as against the interest of the owner who was served with the notice.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    A. C. McClurg & Company, Appellee, v. Herbert O. Tomlinson et al., Appellants.
    Gen. No. 19,366.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Action by A. C. McCIurg & Company against Herbert O. Tomlinson and W. Y. C. Humes, copartners trading as H. O. Tomlinson & Company, to recover the purchase price of certain books sold and delivered to the defendants among which was a set of the works of Charles Dickens. Defendants claimed that plaintiff warranted the set of Dickens to be a complete set of first editions of his published works. From a judgment in favor of plaintiff disallowing the claim of defendants, defendants appeal.
    The contract of sale was in writing. It was embodied in four separate documents,—a letter to defendants from plaintiff’s agent, George M. Chandler, written from London, July 6, 1909, describing the’ set in question, and stating the terms on which it could be had; an inclosure therewith from one of plaintiff’s catalogues; a cablegram from defendants to Chandler, dated July 17,1909, saying, “Buy Dickens and letters,” and their letter of July 23rd, confirming the cablegram.
    The letter of July 6th, so far as pertinent, reads:
    “I am pleased to report that I have found a set of First Editions of Dickens, 67 volumes in the original bindings as published. The titles and dates correspond with the set we, had several years ago, a description of which we enclose herewith, cut from one of our catalogues. The set is in fine condition.
    Have secured an option on the set for two weeks. Will you therefore please cable me should you decide to have me buy and bind it for you—complete sets are exceedingly scarce and difficult to make up and I would strongly recommend you to let me secure this one for you. * * * ”
    The pertinent part of the “cut” referred to reads as follows:
    “Dickens (Charles) Works, including his life. Complete set of First Editions, with all the great number of clever illustrations, * * * 67 volumes * * * sumptuously bound by Riviere in * * * levant morocco * * * nearly all the volumes with the original cloth or paper covers bound in at the ends. London, 1836-82. $2,000.00. ,
    The set comprises-”
    (Here follows a special description of each volume with details as to illustrations, binding, title, date of publication, etc.)
    The only pertinent part of defendants’ confirmatory letter reads: “I am sending this letter along as a confirmation of the cablegram, authorizing you to purchase for us the first edition of Dickens, sixty-seven volumes, to be bound by Riviere in red levant.”
    Frank L. DeLay, for appellants.
    Shepard, McCormick & Thomason, for appellee.
    Abstract of the Decision.
    1. Sales, § 238

      —when contract for sale of boohs contains no warranty as to editions. A contract in writing for the sale of a set of Charles Dickens’ works, embodied in four separate documents,— a letter written to the buyer; an inclosure therein of a cut from one of the seller’s catalogues; a cablegram from the seller; and a letter from the seller confirming the cablegram, held unambiguous and to contain no warranty that the set sold was a “complete set of First Editions.”
    2. Evidence § 322

      —when conversations inadmissible to explain written contract. Conversations had between seller and buyer before and after a contract of sale held inadmissible to explain the contract where it is in writing and complete and unambiguous.

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

   Mr. Justice Barnes

delivered the opinion of the court.


text:
    The People of the State of Illinois for use of Jacob Glos, Appellant, v. Peter B. Olsen, County Clerk et al., Appellees.
    Gen. No. 19,370.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. S. C. Stotjgh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.
    Rehearing denied May 5, 1914.
    Statement of the Case.
    Action by the People of the State of Illinois for the use of Jacob Grlos against Peter B. Olsen, county clerk of Cook county, and others to recover for an alleged breach of the official bond given by Olsen as county clerk. The declaration alleged sixty-nine breaches in as many counts. Judgment was entered in favor of defendant upon a general demurrer being sustained to plaintiff’s declaration. From the judgment, plaintiff appeals.
    John R. O’Connor, for appellant Jacob Glos.
    Carl R. Chindblom, William F. Struckmann & Frank L. Shepard for appellees Olsen, Chytraus and Severson.
    Abstract of the Decision.
    Official bonds, § 32

      —when declaration in suit on bond of county cleric demurrable. In an action on a county clerk’s official bond, certain counts in the declaration alleged that the county clerk charged and collected excessive fees for the issuance of tax deeds and for recording the evidence upon which they were based, and the remaining counts were based on a claim that in each deed issued on the affidavit required as a foundation therefor the county clerk included but a single parcel of land instead of several, thus causing an increased cost to the relator for record of the tax deeds. Held that assuming the action would lie on the bond for" such breaches, a general demurrer to the declaration was properly sustained for the reason that no one of the former counts alleged what amount or fee could legally have been required for recording such evidence, and for the reason that the allegations of the latter counts were hut mere conclusions, there being no allegations of fact from which the court could infer whether more than one lot should have been included in a tax deed or not.

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

   Mr. Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Clark

text:
    Clark W. Hawley, Appellee, v. E. O. McCormick, Appellant.
    Gen. No. 19,206.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Action by Clark W. Hawley against E. O. McCormick on an oral contract alleged to have been made by the plaintiff with the defendant wherein, as alleged, defendant agreed to pay or canse to be paid to the plaintiff the purchase price of certain lands bought by the plaintiff from a Mr. McDoel if plaintiff became dissatisfied with his contract. From a judgment in favor of plaintiff, defendant appeals.
    George G. King, for appellant.
    Cheney & Evans, for appellee.

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

   Mr. Justice Clark

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1468—when error in admission of evidence prejudicial error. In an action on an oral contract wherein it was alleged that defendant agreed to pay or cause to he paid to the plaintiff the purchase price of certain lands bought by plaintiff from another if plaintiff should become dissatisfied with his contract, admission of evidence relating to quality of the land held prejudicial error, where the evidence as to whether the agreement was made is equally balanced.

2. Appeal and error, § 1691 —when error in admission of evidence not waived. Error in the admission of testimony on behalf of plaintiff held not waived by defendant offering evidence in rebuttal and cross-examining plaintiff’s witnesses.


text:
    Morris & Company et al., Appellees, v. Starkweather & Shepley, Inc., Appellant.
    Gen. No. 19,249.
    1. Insurance, § 67

      —when recovery from broker for breach of agreement to procure insurance in certain companies not warranted. In an action by several plaintiffs to recover a sum alleged to have been paid by plaintiffs to the defendant as part of the premiums due on certain fire insurance, it was alleged that the defendant agreed to procure the insurance for plaintiffs in certain companies but that it procured the insurance in such companies and another company in violation of the agreement. Held that a judgment for plaintiffs could not be sustained, it appearing that a certain brokerage company to whom the money was paid was the agent of the plaintiffs to procure the insurance and that such company prior to the time the policies were issued, and prior to the time the premium was paid, was informed of the names of the companies that had issued the insurance.
    2. Insurance, § 49

      —when proposition of law that broker acts as agent for assured is correct. In an action against an insurance broker to recover premiums paid where the broker procured insurance in companies not authorized by his principal, the following proposition of law was held to be a correct statement and applicable to the case: “The court holds as a proposition of law, that where a person or a corporation authorizes a broker to secure insnrance, that in procuring such insurance the broker is the agent of the assured; and if a binder is issued upon such application, and prior to the time that the policies are issued, and prior to the «time that the premium or any part thereof is paid, the broker is informed of the names of the companies that have issued the binder and that are thereafter to issue the policies, then the knowledge of the broker as to the names of such companies is the knowledge of the assured.”
    Appeal from the Municipal Court of Chicago; the Hon. Isidore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed.
    Opinion filed April 21, 1914.
    Bates, Harding, Edgerton & Bates, for appellant.
    M. W. Borders, Luther M. Walter and Norman G. Collins, for appellees.

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

   Mr. Justice Clark

delivered the opinion of the court.

This suit was brought to recover the sum of $5,880 (and interest) alleged to have been paid by the plaintiffs on April 15, 1910, to the defendant as part of the premiums on certain fire insurance aggregating $700,-000 which, it is alleged, the defendant agreed to procure for the plaintiffs covering certain merchandise and stock in branch houses of the plaintiffs, which insurance the defendant failed to procure.

The contention of the plaintiffs is that the policies to be secured by the defendant were to be renewals of polipies issued the previous year to the plaintiffs upon the property in question by the “London Lloyds Company” and the “National British and Irish Millers.” The abstract does not give accurately the substance of the record in respect to the matter. The policies of the previous year were not produced, nor were copies of them, and the court permitted secondary evidence to be given tending to show that the policies of the previous year ran to one or more of the plaintiffs, but whether jointly or severally to the copartnership of Nelson Morris & Company, Edward Morris, individually, Morris & Company, a corporation, and the Fairbank Canning Company, a corporation, is not made clear.

Leo A. Loeb, upon whose testimony plaintiffs largely rely, stated that he “ordered a renewal of $700,000 of insurance that expired on the stock of the Fairbank Canning Company located in their markets throughout the United States of America,” thus indicating that the Canning Company was the only one interested.

Negotiations for the new insurance were carried on by E. H. Hunter, acting as an insurance broker. He at one time had been in the general employ of Nelson Morris & Company, but in 1909 and 1910 his connection with the plaintiffs was that of an insurance broker merely, having access, however, as he testified, to all papers, books of account, etc., of plaintiffs, so far as the same related to insurance matters. In placing the insurance several brokers other than Hunter were concerned, namely Adolph Loeb & Sons, Inc., of Chicago, the defendant (Starkweather & Shepley, Inc., of Baltimore), and Morgan, Lyons & Company, of London, England.

Hunter testified that he requested Loeb & Sons to have a renewal of the policies effected by the defendant, and the defendant, at the instance of Loeb & Sons, cabled the London brokers. It appears that Morgan Lyons & Company replied to defendant, “Fairbanks O. K.” This fact was communicated to Loeb & Sons, March 25, 1910, and by the latter to Hunter soon thereafter. The cablegram appears to have been treated by all the parties interested in the transaction on this side of the Atlantic as a “binder” of the insurance. What is described as a “cover note” was subsequently received by the defendant by mail from the London brokers, from which it appeared that the new insurance had been placed by them not wholly with the two insurers who it is said had issued the policies of the year before, but with them and a third insurer, namely, the Omnium Insurance Company. Burrows, the Chicago representative of the defendant testified that he gave this “cover note” to Leo A. Loeb, of Loeb & Sons, on or about April 6th, 1910, and that Loeb & Sons then knew that the policies when received would be those of the three insurers heretofore mentioned, in about equal proportion as to amounts. This testimony was not denied by Loeb, who stated merely that he had no recollection of having received the “cover-note,” but that he could not testify positively that he did not receive it. Nor does Loeb deny Burrows’ statement that on April 6, 1910, the fact of the Omnium Company being one of the insurers was discussed by him and Burrows; nor the further statement of Burrows that Loeb said he would take the matter up with Hunter. Hunter testified that he did not remember receiving the “cover note,” but would not say positively that he did not receive it.

The total amount of the insurance premiums was $8,050. On April 15, 1910, Hunter gave Loeb & Sons his check for $5,439, which he testified was in payment of the first instalment of the premium, less his commission of $441. He further testified that plaintiffs refused to accept the policies issued by the three companies when the same were received from London and tendered to the plaintiffs some weeks after he had made the payment referred to.

Judgment was rendered in the Municipal Court in favor of the plaintiffs for the sum of $6,630, being the sum of $5,880 and interest thereon.

The following proposition of law tendered by the defendant was held by the trial court:

“The court holds as a proposition of law, that where a person or a corporation authorizes a broker to secure insurance, that in procuring such insurance the broker is the agent of the assured; and if a binder is issued upon such application, and prior to the time that the policies are issued, and prior to the time that the premium or any part thereof is paid, the broker is informed of the names of the companies that have issued the binder and that are thereafter to issue the policies, then the knowledge of the broker as to the names of such companies is.the knowledge of the assured.”

The court was of opinion, however, that this proposition did not apply to the facts in the case. In our opinion the proposition was a. correct statement of the law. Lycoming Fire Insurance Co. v. Rubin, 79 Ill. 402. We think also that it applied to the facts in this case. If it be assumed that the plaintiffs jointly paid Hunter the sum of $5,880 (of which there is no proof); that Hunter paid to Loeb & Sons $5,439 (which is not disputed); that Loeb & Sons paid nothing to the defendant (which is also not disputed); that an insurance broker acts as agent for the insurer in collecting the premium; that policies had been issued in the prior year to the plaintiffs jointly (which is not in our opinion sustained by competent evidence), we still are unable to find justification for the entry of the judgment. As stated in the proposition of law approved by the trial court, the broker in procuring insurance acts as agent of the assured. If he procures insurance in companies not authorized by his principal, the principal may refuse to accept the policies when tendered and recover the premium from the broker if the same has been paid to the broker by the principal. The theory of the plaintiffs, as we understand it, is that although Hunter was a broker, and acted solely in that capacity so far as this transaction is concerned, the payment by him of a portion of the premium to Loeb & Sons made the brokerage corporation, Loeb & Sons, agent of plaintiffs in procuring the insurance, and thereupon Loeb & Sons, as such broker, also became the agent of the defendant to collect the premium. In this view of the case, which we do not fully share, if the corporation, Loeb & Sons, was advised at the time it received payment from the plaintiffs, through Hunter, that the insurance had been placed with the three insurers, its knowledge of that fact became the knowledge of its principals, the plaintiffs. If Loeb & Sons thus became the broker and agent of the plaintiffs, and violated its instructions, the obligation to repay the plaintiffs the portion of the premium advanced rests upon Loeb & Sons and not upon the defendant. As heretofore stated, the record does not disclose that the plaintiffs, or any of them, paid Hunter $5,880 or any other sum of money. If, however, he accepted payment from them after seeing the “cover note” and thus knowing how the insurance had been placed, action would in our opinion lie against him.

The judgment is reversed.

jReversed.


text:
    L. Fish Furniture Company, Appellant, v. Charles R. Horrie, trading as Randolph Market & Grocery, Appellee.
    Gen. No. 19,262.
    (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. Isaac Hudson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 21, 1914.
    Statement of the Case.
    Action by L. Fish Furniture Company, a corporation against Charles B. Horrie, trading as Bandolph Market & Grocery, to recover an amount claimed to be due from defendant for a quantity of trading stamps. From a judgment in favor' of defendant, plaintiff appeals.
    Friedman & Ader, for appellant.
    Morris & Schusterman and Henry J. Gibbs, for appellee.
    Abstract of the Decision. Sales, § 332

      —when verdict for defendant in action for price of trading stamps cannot he sustained. In an action to recover a sum claimed to be due for trading stamps, a special notice of defense attached to the plea of the general issue and the affidavit of merits stated that “defendant would give in evidence and offer to prove that he has never refused to pay plaintiff according to the terms of said contract and that he now does offer the said plaintiff the sum of one hundred and forty-five dollars, being the amount due,” etc. Held that a judgment entered on a verdict for defendant could not be sustained, the plaintiff having admitted a sum to be due, and the alleged tender not being kept good by payment of the money into court or by an offer of it in open court or otherwise.

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

   Mr. Justice Clark

delivered the opinion of the court.


text:
    Ida M. Heath, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,321.
    (Hot to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 21, 1914.
    Rehearing denied May 5, 1914.
    Statement of the Case.
    Action by Ida M. Heath against City of Chicago for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant in maintaining a defective and dangerous sidewalk. From a judgment in favor of plaintiff for $5,950, defendant appeals.
    The grounds urged for reversal of the judgment are: That the verdict was against the manifest weight of the evidence; that the plaintiff was guilty of contributory negligence; that the court erroneously refused to submit two special interrogatories to the jury; and that the court erred in the giving and refusing of instructions.
    The interrogatories claimed to have been improperly refused are as follows:
    “ First. Was the accident occasioned proximately by a defective plan of construction of the place in question?
    Second. Was the place of the alleged defect in the same condition on the 17th day of February, A. D. 1911, at the time of the accident as it was at the time of the construction?”
    William H. Sexton and N. L. Piotrowski, for appellant ; David R. Levy, of counsel.
    Elmer & Cohen, for appellee.
    Abstract of the Decision.
    1. Municipal corporations, § 1007

      —when city liable for injuries resulting from hole in sidewalk. In an action against a City for personal injuries resulting from plaintiff stepping into a hole in a sidewalk at the time a trap door was in course of construction, a verdict for plaintiff held sustained by the evidence.
    2. Trial, § 276

      —when special interrogatories may be refused. Refusal of court to submit to jury special interrogatories which do not relate to an ultimate fact, and the most that can he said of them is that they relate merely to facts that possibly might tend, more or less, to establish the ultimate facts upon which the rights of the parties depend, held not error.

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

   Mr. Justice Clark

delivered the opinion of the court.

3. Damages, § 110 —when verdict for pergonal injuries not excessive. A verdict of $5,950 for personal injuries held not excessive, it appearing that the plaintiffs hip was broken and the femur fractured and there was evidence tending to show that the injuries will be permanent and that she will never be able to walk without the aid of crutches.

4. Appeal and ebbob, § 1561 -—when refusal of requested instructions not error. Refusal of requested instruction covered by other instructions held not error.


author: Mr. Presiding Justice Fitch

text:
    Alexander Felman, Plaintiff in Error, v. Benjamin Schiff, trading as Schiff & Company, Defendant in Error.
    Gen. No. 19,047.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Isidobe H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action by Alexander Felman against Benjamin Schiff, doing business as Schiff & Company, to recover two hundred dollars which the plaintiff deposited in defendant’s savings bank, and which defendant paid out by mistake to a man who had found or stolen defendant’s passbook. Upon a trial by the court without a jury, the defendant had judgment. To reverse the judgment, plaintiff brings error.
    It appears that the plaintiff opened a savings account with the defendant in October, 1910, and was given a passbook, upon the outside of which the following was printed in capital letters: “Take care of this book. If you should lose or mislay it notify us immediately.” Upon the inside of.the front cover, under the heading: “Rules Relating to Savings Deposits,” three rules were printed, one of which is as follows:
    “PAYMENTS TO HOLDERS OF PASSBOOKS
    This bank shall not be liable for payments made to any person who shall produce the deposit book of the depositor, unless written notice shall have, previous to such payment, been given to the bank for Or in behalf of the depositor that said book has been lost, mislaid, stolen or otherwise passed from the possession of the, true owner thereof. Any depositor who shall prove to the satisfaction of this bank that his passbook has been lost, stolen or destroyed, and shall furnish to the bank satisfactory indemnity against any claim which may at any time be made against the bank on account thereof, will receive, at or after thirty days from date of notice, the amount of this deposit or any part thereof, or a duplicate passbook. The bank may make payments to the depositor without the production of such book.”
    At the top of the first page of the book the following sentence was printed: “All deposits are made subject to rules relating to savings.”
    Samuel J. Richman, for plaintiff in error.
    Moses, Rosenthal & Kennedy, for defendant in error; S. Sidney Stein, of counsel.
    Abstract of the Decision.
    Banks and banking, § 200

      —when savings bank not liable for paying out deposits on forged signature of person presenting passbook. In an action against a savings bank to recover money deposited by plaintiff which the bank paid out by mistake to a man who had found or stolen the pass book, a finding of the trial court that the plaintiff’s signature was forged but that the bank was not negligent in paying out the money, held sustained by the evidence, it appearing that the impostor presenting the pas^book resembled the plaintiff and that forged signature as compared with the signature of plaintiff was not so dissimilar as to excite suspicion, and there appearing to be no dispute as to the law applicable to the case.

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

   Mr. Presiding Justice Fitch

delivered the opinion of court.


text:
    A. L. Bronson, Defendant in Error, v. Luella M. Wilson, Plaintiff in Error.
    Gen. No. 19,093.
    1. Bills and notes, § 102

      —when credit certificate not negotiable. A credit certificate certifying a certain sum to be due and stating that the certificate will be accepted in payment of school fees of any eligible student not previously enrolled, held not a negotiable instrument.
    2. Bills and notes, § 296

      —when maker of credit certificate not liable for payment in money. Where a credit certificate certifies a certain sum to be due and states that the certificate will be accepted in payment of school fees of any eligible student not previously enrolled, the agreement therein to accept the certificate in payment of the future obligation of a third person to pay school fees is not a mere option given the holder, but a condition to be complied with by the holder before the maker would be liable for the amount thereof.
    3. Evidence, § 358

      —when parol evidence admissible. Parol evidence is admissible to explain the meaning of words used in a written instrument as understood by the persons using the same at the time they were written.
    Error to the Municipal Court of Chicago; the Hon. Robebt H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 23, 1914.
    J. Amos Blume, for plaintiff in error.
    Harry A. Biossat, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Plaintiff, A. L. Bronson, recovered a judgment for two hundred dollars, against the defendant, Luella M. Wilson, in the Municipal Court, upon the following certificate, which the court held to he a negotiable instrument, viz:

“$200. CREDIT CERTIFICATE. No. 12017.
This certifies there is due the Educational Aid Society or order, the sum of two hundred dollars in payment for advertising, and this certificate will be accepted for that amount in payment of the school fees of any eligible student who has not previously enrolled in this institution.
STEVAN SCHOOL.
(Seal) Per Luella M. Wilson.”

This certificate was indorsed in blank by the Educational Aid Society by Harry J. Myers, as treasurer. Upon the trial, the plaintiff offered it in evidence, proved the signatures thereto and rested. He made no attempt to show that it had ever been tendered to the defendant in payment of all or any part of the school fees of any person desiring to be enrolled as a student in defendant’s school, or that any demand for a credit of that kind had ever been made or refused. Defendant offered, but was not permitted, to prove that the certificate was issued to and accepted by the Educational Aid Society upon the express condition that the same should be used only in payment of the school fees of eligible new students to be furnished by the Aid Society.

In Stitzel v. Miller, 250 Ill. 72, it is said: “This court has held that a promissory note ‘may be defined to be a written promise by one person to pay to another person therein named, or order, a fixed sum of money at all events and at a time specified therein or at a time which must certainly arrive.’ (McClenathan v. Davis, 243 Ill. 87.) This definition substantially meets the requirements of the Negotiable Instrument Act of 1907.”

Section 5 of the Negotiable Instrument Act of 1907 (J. & A. ¶ 7644) provides that “an instrument which contains an order or promise to do an act in addition to the payment of money is not negotiable under this Act. But the negotiable character of an instrument otherwise negotiable is not affected by a provision which * * * gives the holder an election to require something to be done in lieu of payment of money,”

In Kingsbury v. Wall, 68 Ill. 311, followed by Van Zandt v. Hopkins, 151 Ill. 248, it was held that if a written promise to pay be coupled with a clause requiring the performance of a collateral condition, it is not negotiable; for “it is indispensable that all bills of exchange or promissory notes, to be assignable under our statute or at common law, must be certainly payable, and not dependent on any contingency either as to the event, or the fund out of which payment is to be made, or the parties by or to whom payment is to be made.”

It follows from the principles thus stated that the only theory upon which the finding and judgment of the trial court can be sustained is that the stipulation contained in the instrument sued on, as to the method and time of payment, is not to be construed as a statement of collateral conditions which must be performed before the amount therein named shall become payable, but merely gives to the legal holder “an election to require something to be done in lieu of payment of money.” We are of the opinion that this theory is untenable under the facts of this case. The instrument is entitled a “Credit Certificate.” This term implies that something remains to be sold, furnished or supplied by the maker of the certificate, towards the payment of which the amount named in the certificate will be applied as a credit, upon demand. The thing to be thus sold, furnished or supplied by the defendant is indicated by the statement in the certificate that it “will be accepted * * * in payment of the school fees of any eligible student who has not previously enrolled in this institution.” This statement, on familiar principles, implies that the credit certificate will not be otherwise accepted or paid. No time is expressly stated as the date upon which the certificate will be so accepted and the amount thereof credited, but the clear implication from the language used is that it will be accepted and applied as a credit whenever the Educational Aid Society, or its assignee, shall offer the certificate in payment of the school fees of an eligible new student desiring to be enrolled in defendant’s school. That time may never come. The stipulation is something more than a mere statement that the certificate will be paid upon presentation, or upon demand, or upon the return of the certificate duly indorsed, such as commonly appears in the ordinary form of certificates of deposit. It provides, in effect, that the presentation or demand must be accompanied by a request, on the part of the holder, to have the amount of the certificate applied in payment of the school fees of a third person, namely, a new student. Such a request or demand involves the affirmative act or consent of such third person. In this respect, the stipulation in this certificate is analogous to the agreement construed in Husband v. Epling, 81 Ill. 172, where the amount to be paid was made payable “when the estate of Thomas Mason is settled up.” It has been held that where there is an agreement to pay a certain sum in specified articles of personal property at agreed prices on a particular day, a failure to deliver the articles specified on the day fixed converts the contract into a money obligation payable on demand. McKinnie v. Lane, 230 Ill. 544. That principle, however, cannot aid the plaintiff in this case for two reasons : First, the contract in this case does not fix any day for payment except as above stated; and, second, there is no proof of any failure to deliver the specified thing contracted for, at any time. In our opinion, the agreement to accept the certificate in payment of the future obligation of a third person to pay school fees is not a mere option given to the holder, but a condition to be complied with by the holder before the maker would be liable for the amount thereof.

Furthermore, we are of the opinion that the evidence offered by the defendant to prove that such was, in fact, the intention of the parties was admissible, not to vary the terms of the written instrument, but to explain the meaning of the words used, as understood by the persons using the same, at the time they were written. In Doyle v. Teas, 5 Ill. (4 Scam.) 202, 256, Mr. Justice Caton said: “The true rule clearly deducible from the cases, I think, is where the language is of such a character as to show that the parties had a fixed and definite meaning which they intended to express, and used language adequate to convey that idea to persons possessed of all the facts which they had in view at the time they used the language, it then becomes the duty of the court to learn those facts, if need be, by parol proof, and thus, as far as possible, by occupying the place of the parties employing the expressions, ascertain the sense in which they were intended to be used.” In Wilson v. Roots, 119 Ill. 379, Mr. Justice Seholfield said: “Although it is not competent to contradict or enlarge the terms of a written agreement by parol evidence, it is competent to resort to parol evidence to ascertain the nature and qualities of the subject to which the instrument refers. (1 Greenleaf on Evidence, sec. 286.) And so we have said, that courts, in construing written contracts, endeavor, in all cases, to place themselves in the position of the contracting parties, so that they may understand the language used, in the sense intended by the persons using it.” (Citing Doyle v. Teas, supra, and other cases.) These cases have been followed with approval in Matthews v. Kerfoot, 167 Ill. 313, and Whalen v. Stephens, 193 Ill. 121.

For the reasons stated, the judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Maurice A. Crotty, Administrator, Defendant in Error, v. William Horn, Plaintiff in Error.
    Gen. No. 19,116.
    1. Master and servant, § 867

      —when building contractor liable for the death of servant of another contractor. A servant of certain building contractors was killed while working on a building by the servants of another contractor who had charge of a different kind of work on the same building. In an action against both of the contractors for wrongful death, a verdict finding the contractor guilty, whose servants negligently caused the death of the plaintiff’s intestate, held sustained by the evidence.
    2. Master and servant, § 851

      —when master ratifies act of servants. Two separate contractors had contracts for work upon a certain building. One of them with his men were at work thereon on Sunday, which day the other contractor did not intend to work, but by a misunderstanding his foreman directed his men to report on that day. The men reported for work, and their foreman was there to tell them not to work. The contractor working on the building asked the foreman to do certain work in advance for his convenience, saying that he would see that they were paid therefor, and while the foreman and his men were doing the work a servant of the contractor who was working on the building was killed by their negligence. Later the absent contractor presented his bill to the other contractor for the Sunday work and was paid. Held that the contractor by presenting his bill and accepting payment ratified the acts done by his men and that he was liable for their acts the same as if he had directed the work.
    3. Master and servant, § 870

      —when giving and refusing of peremptory instructions not reversible error. In an action against three defendants for wrongful death, the giving of a peremptory instruction, at the close of all the evidence, to find two of the defendants not guilty, and the refusal of a like motion by the other defendant, held not reversible error, it appearing that there was no evidence in the record tending to prove the averments of the declaration as to such defendants, and the court gave an instruction that the fact that the court had directed a verdict as to such defendants is not to be taken as an indication that the other defendant was guilty.
    4. Master and servant, § 870

      —when refusal of requested instruction proper. In an action against a building contractor for the wrongful death of a servant of another contractor by the negligence of the former’s servants, refusal of instructions requested by the defendant held properly refused as omitting all reference to uncontradicted facts.
    Error to the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed April 23, 1914.
    Bulkley, Gray & More, for plaintiff in error.
    George E. Gorman, for defendant in error; John M. Pollock, of counsel.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

By this writ of error the defendant, William Horn, seeks to have reversed a judgment rendered against him in the Superior Court for six thousand dollars, for negligently causing the death of the plaintiff’s intestate, Patrick McNamara. The accident happened between one and two o’clock in the afternoon of Sunday, August 28, 1910. McNamara, was working in the basement of a building which was being remodeled. He was in the employ of Carl Bushnell and John J. Mason, who had the contract for the work of reconstruction. The work of putting in place the structural steel used in making the alterations had been sublet to the defendant Horn, who furnished the labor, tools, ropes, etc., required for that purpose. Horn’s foreman was a man named Timmons. When his men were quitting work on the day before the accident, Timmons, acting upon a misunderstanding as to Horn’s intentions, told the men to return for work the next morning, Sunday. When Timmons reported that fact to Horn that evening, Horn told him this was a mistake and instructed him to notify the men to return on Monday instead of Sunday. Being unable to reach the men for that purpose on Saturday evening, Timmons went to the building on Sunday morning and told the men, who had reported for work as directed, of Ms mistake. Mason and several of Ms men, including McNamara, were working in the building at that time, and as Horn’s men were leaving, he called out to them “What’s the matter, aren’t you going to work?” Timmons replied, “NotMng doing this morning; Horn won’t stand for any double time.” Mason then said that he had bricklayers working, that one of Horn’s derricks was in the way, and that if Timmons and his men would go to work and move the derrick, he (Mason) would pay them, or see that they were paid, “for double time.” Timmons telephoned this request to Horn. Horn asked how long it would take to move the derrick, and Timmons replied that it would take about three or four hours. Horn then said that he didn’t like Sunday work, but if Mason would pay the double time, to go ahead; “but”, he added, “I won’t pay any double time for moving derricks.” Upon this understanding, Horn’s men went to work. They finished moving the derrick about noon and were going away, when Mason said that he “was ready for the grillage beams,” that they “might as well work on them as long as they were there, and that the pay would be all right, ’ ’ that “if Mr. Horn didn’t want to pay them, he would pay,” and that they “would be that much ahead of themselves Monday morning.” The grillage beams thus referred to were steel “I” beams, twenty-eight feet long, twenty inches in height, weighing about 1,800 pounds, and were designed to be used as a part of the new foundation. One of these beams was lying on the main floor, at the time of this conversation, about forty feet from an opening in the floor large enough to permit the beam to be lowered through it to the basement. Without reporting this second conversation to Horn, and without Horn’s knowledge, Timmons and his men proceeded to move the beam to a position near the opening in the floor, so that it could be lowered from that point into the basement. TMs was done by placing pieces of iron pipe under one flange of the beam to serve as rollers, and the beam was then pushed along the floor towards the opening. As the beam thus moved near the opening in the floor, it turned over and fell through the opening upon McNamara. Suit was brought by the administrator against Horn, Bushnell and Mason. At the close of the plaintiff’s evidence, a motion was made by each defendant for a peremptory instruction in his favor. These motions were denied. The same motions were renewed at the close of all the evidence; whereupon, the court directed the jury to return a verdict of not guilty as to the defendants Bushnell and Mason, but denied the motion as to Horn. The jury found Horn guilty and assessed the damages at six thousand dollars.

It is urged by counsel for the defendant that at the time of the accident Timmons and his men were not the servants of Horn, but were the servants of Bushnell and Mason, upon the principle announced in Consolidated Fireworks Co. v. Koehl, 190 Ill. 145, at page 149, towit: “It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to become, as to that service, the servant of such third party.” But in the same case it is further said: “The test is whether, in the particular service which he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired. * * * ‘He is the master who has the choice, control and direction of the servants. The master remains liable to strangers for the negligence of his servants, unless he abandons their control to the hirer.’ ” In this case, the evidence shows, without contradiction, that the work which Horn’s men were doing at the time of the accident was work which was included in Horn’s subcontract. It is not claimed that there is any evidence tending to prove that Bushnell or Mason had any power to control or direct the manner in which Horn’s men should do their work, except to see that the work done complied with the contract. In other words, it is not claimed in this court that Horn did not occupy the position of an independent contractor as to the work included in his contract. The claim is that the men who handled the steel beam were not in Horn’s employ at the time of the accident, because all the work they did after they had finished moving the derrick was being done on Sunday at the request of Mason without Horn’s knowledge, consent or authority, and contrary to his express instructions not to work on that day. It appears from the evidence, however, without contradiction or explanation on the part of Horn, that although Horn did not know, prior to the accident, that his men continued at work, at Mason’s request, after they had finished moving the derrick, still, after he had been fully informed of that fact and its consequences, he presented a bill to Bushnell and Mason for the amount due under the arrangement between the men and Mason, for the <£overtime,” or Sunday work, of the men, including the time when the accident occurred, that he collected the amount of the bill, and that he paid the men double time for all the time they worked that day. These facts being undisputed, they present, in our opinion, a clear case of ratification by Horn of the acts of his men in doing his work on Sunday. The request and agreement of Mason, as thus ratified and approved by Horn, made no change in the contract relations previously existing between them, except to increase the contract price by the amount required to pay for the overtime for Sunday work by Horn’s men. Horn did not thereby £ £ abandon the control ’ ’ of his men to Mason. The men thereby did not become any more subject to the directions and control of Mason than before. They continued liable, as before, to the direction and control of Horn, as an independent contractor. As Horn approved the agreement which his men in his absence made with Mason, the legal effect of that agreement was to continue their employment as Horn’s servants during the overtime as fully as if he had himself directed them to work at that time.

It is contended that the trial court erred in refusing to give several instructions requested by the defendant. These instructions, if given, would have told the jury that if they believed from the evidence that the work which was being done at the time of the accident was being done “without the knowledge, consent or authority of the defendant” or “against his orders and directions,” or that the men were' at the time “under the sole direction and control of Mason,” then they should find the defendant not guilty. For the reasons already stated, we think there was no error in refusing these instructions. All of them omit all reference to the uncontradicted fact that Horn knowingly accepted the benefit of the agreement between his men and Mason. If they had been given without qualification, they would have been very misleading. Moreover, in view of the fact that the evidence concerning the questions of authority and control was undisputed and uncontradicted, we think the court was justified in refusing the instructions upon the ground that the men were the servants of Horn as a conclusion of law from undisputed facts.

It is next insisted that the court erred in giving the peremptory instruction to find Bushnell and Mason not guilty at the close of all the evidence and refusing a like motion offered by the defendant Horn. The case of Consolidated Fireworks Co. v. Koehl, supra, is cited in support of this contention. It appears from the opinion in that case that there was a sharp conflict in the evidence in that case regarding the terms and conditions of the contract of employment, and in view of that fact, the Court said: “It was therefore a question of fact for the jury to determine, under proper instructions of the court, what the terms of said contract were, and not a question of law for the determination of the court.” In this case, there is no conflict whatever in the evidence as to the terms and conditions under which the men were working at the, time of the accident. Conceding, therefore, that the action of the trial court in giving the peremptory instructions to find Bnshnell and Mason not guilty and in allowing the case to go to the jury as to Horn, amounted in effect to holding, as a matter of law, that Horn’s men were not Bnshnell and Mason’s servants, but were the servants of Horn at the time of the accident, we think there was no error in so holding under the facts shown in this case. Nor was it error for the court to so hold at the time the instructions were offered. Where several persons are jointly sued in an action of tort it has been repeatedly held that it is not error to permit the plaintiff, at the close of all the evidence, to dismiss his suit as to one or more of the defendants, and proceed as to the remaining defendant or defendants (Lasher v. Littell, 202 Ill. 551; Linquist v. Hodges, 248 111. 491); and upon the same principle, we think it is not reversible error for the court to instruct the jury to find one or more of the defendants not guilty at the close of all the evidence, if it appears at that time that there is no evidence in the record tending to prove the material averments of the declaration as to such defendant or defendants. This is especially true in this case, since the court gave an instruction stating that the fact that the court had directed a verdict of not guilty as to Bushnell and Mason “is not to be taken as any indication on the part of the court as to whether the defendant Horn is or is not guilty.”

For the reasons indicated, the judgment of the Superior Court will be affirmed.

Affirmed.


text:
    Nathan Sloan, trading as Nathan Sloan & Company for use of First National Bank of Chicago, Defendant in Error, v. Boston Insurance Company, Plaintiff in Error.
    Gen. No. 19,120.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Action by Nathan Sloan, trading as Nathan Sloan & Company, for use of First National Bank of Chicago against Boston Insurance Company, a corporation, upon a fire insurance policy for $1,000. The plaintiff was a manufacturer of ladies’ suits and cloaks and occupied a floor of a fireproof building. He carried insurance amounting to $17,000 upon his stock of merchandise, represented by seventeen policies of $1,000 each, issued in different insurance companies. The statement of claim alleged that the plaintiff sustained a loss of $24,993.06; that he made proofs of loss; that an appraisement was made pursuant to the provisions of the policy; and that the appraisers fixed the sound value of plaintiff’s property at the sum of $11,550, and the loss and damage thereon at the same amount. Upon a trial before a jury, a verdict was rendered for plaintiff for $710.55, being one-seventeenth of $11,-550, with interest. To reverse a judgment, entered upon the verdict, defendant brings error.
    Charles B. Obermeyer, for plaintiff in error.
    Frank M. Fairfield, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Insurance, § 131 -—property covered by insurance policy. ¡Where a fire policy described the property insured as being “on stock of merchandise consisting chiefly of ladies’ suits, skirts and 'jackets, manufactured and in the process of manufacture, and all the materials used in the manufacture of the same, their own or held by them in trust, or on commission,” held that the policy covered furs and skins not owned by the insured but held by him “on memorandum,” to be sold in the name of the owner, though the insured’s compensation for selling them was fixed at a certain proportion of the profits.

2. Insurance, § 218 —when printed condition in policy qualified by special provision. A general printed condition in a fire insurance policy which stated: “This policy, unless otherwise provided by agreement indorsed thereon or added thereto, shall be void * * * if the interest of the insured be other than unconditional and sole ownership,” held qualified by a special provision covering property held by the insured “in trust or on commission.”

3. Insurance, § 669 —when amount recovered on fire policy not sustained by the evidence. In an action on a fire insurance policy, a verdict for the plaintiff held to be against the weight of the evidence as to the amount of loss sustained, it appearing that the amount of loss as stated in plaintiff’s proof of loss and in the appraisers’ report was excessive and that the jury may have acted upon the erroneous assumption that the report of appraisers was conclusive.


text:
    Nathan Sloan, trading as Nathan Sloan & Company for use of First National Bank of Chicago, Defendant in Error, v. Queen Insurance Company of America, Plaintiff in Error.
    Gen. No. 19,119.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and remanded.
    Opinion filed April 23, 1914.

      Statement of the Case.
    This case held to be controlled by the decision in Sloan v. Boston Ins. Co., ante, p. 81.
    It was tried by stipulation upon the same record as in that case, except that the loss sued for was claimed under another one of the seventeen policies referred to in the opinion in that case. This case was submitted to the court for trial without a jury and was tried by the same judge who presided at the trial in the former case.
    Charles B. Obermeyer, for plaintiff in error.
    Frank M. Fairfield, for defendant in error.
   Mr. Presiding Justice Fitch

delivered the opinion of the court.


text:
    Lena Bieber, Appellee, v. Fred Thoma et al., Appellants.
    Gen. No. 19,790.
    1. Appeal and erbob, § 113

      —when appeal may be dismissed for failure of one defendant to sign appeal bond. Where the record does not show that all the persons who joined in a prayer for an appeal signed the appeal bond, the appeal may be dismissed.
    2. Appeal and error, § 936

      —when amendment of record unauthorised. At a subsequent term, an order of the trial court amending a previous order nunc pro tunc so as to show that an appeal was separately prayed, held to be of no force and effect where the minutes, files, records or papers offered in evidence did not prove or tend to prove that the record of the previous order was incorrect.
    3. Appeal and erbob, § 936

      —when recital in a bill of exceptions no basis for amendment of record. A court at a subsequent term cannot change, amend or correct an order entered of record and which is required by statute to be entered of record, by a mere recital in a bill of exceptions.
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Appeal dismissed.
    Opinion filed April 23, 1914.
    F. H. Novak and Charles Hughes, for appellants.
    Gallagher & Messner, for appellee.

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

   Mr. Presiding Justice Fitch

announced the decision of the court.

A motion has been made by appellee to dismiss the appeal in this case upon the ground that the order granting the appeal was not complied with, in this: That while the appeal was prayed by and allowed to both defendants, the appeal bond was signed by only one of the defendants.

The rule is well settled that the right of appeal is purely statutory and can only be exercised in the manner provided by statute; that, for this reason, the record must show that an appeal has been perfected in strict conformity with the order of the court granting the appeal; and that if a joint appeal is prayed and allowed, all who have joined in the prayer must sign the appeal bond, or the appeal will, be dismissed on motion. Fortune v. Gilbert, 207 Ill. 235; Lingle v. City of Chicago, 210 Ill. 600; First Cong. Church of Harvard v. Page, 255 Ill. 267; Ellison v. Hammond, 189 Ill. 471; Town v. Howieson, 175 Ill. 85.

The judgment appealed from was rendered against Fred Thoma and Otto Thoma in the Superior Court on April 7, 1913. The transcript of the record, as originally filed in this court, shows that on the same day the “defendants” prayed an appeal to this court, which was allowed “upon filing their appeal bond herein in the sum of $5,000, to be approved by the court within thirty days from this date.” The transcript further shows that on April 21, 1913, an appeal bond was filed in the office of the clerk of the Superior Court in the sum of $5,000, signed by Fred Thoma and two sureties, conditioned that said Fred Thoma should prosecute his appeal with effect, etc., which bond was marked: “Approved, Henry V. Freeman, Judge Superior Court of Cook County.” On the same day, an order was entered as follows: “This day come the defendants herein, by their attorney, and present to the court their appeal bond for approval and said appeal bond is duly approved, signed and filed by the court.” No bond signed by both defendants appears in the transcript. Under the authority of the cases above cited, the motion must necessarily be allowed, unless the error was cured by the supplemental transcript of the record, which was filed in this court pending the hearing of this motion.

The supplemental transcript shows that on March 3, 1914, the defendant, Fred Thoma, appeared before another judge of the Superior Court (Judge Freeman being absent from the State) and moved the court to amend and correct the record, and that thereupon an order was entered nunc pro tunc as of April 7, 1913, purporting to correct the record of the order of that date so as to show that at that time “said defendants and each of them, having entered their exceptions herein, each of them for himself prayed for an appeal from the judgment of .this court to the Appellate Court in and for' the First District of Illinois, which prayer was allowed upon each defendant filing his appeal bond herein in the sum of $5,000, etc.” The order also states, in substance, that after a careful examination of tbe record of the orders entered April 7, 1913 and April 21, 1913, the separate pleas of the defendants, the separate motions for a new trial and in arrest of judgment, as filed on April 7, 1913, the appeal bond of Fred Thoma, and the minutes of Judge Freeman and his minute clerk made on April 7, 1913, the court finds that the two orders mentioned were not correctly recorded by the clerk.

The supplemental transcript further shows that the plaintiff excepted to the action of the court in making this amendment or correction of the record, and asked for and obtained a bill of exceptions, which is ineorporated in the additional transcript. It appears from this bill of exceptions that the only evidence submitted to the court, upon the hearing of said motion to amend and correct the record, consisted of the files, minutes and records above stated. The minutes of Judge Freeman and those of the minute clerk correspond with the judgment and order of April 7, 1913 in all essential particulars, and none of the files offered in evidence contain any reference whatever to an appeal, either joint or several.

In Town v. Howieson, supra, an order was entered in the Circuit Court granting an appeal from a decree in a foreclosure suit to two defendants, which order corresponded with a minute indorsed upon the back of the draft of the decree except that it required the appeal bond to be approved by the clerk instead of the court. Within the time specified in the order, one of the defendants presented his separate appeal bond, which was approved by the chancellor, and filed with the clerk. After the term had- passed, a motion was made to have the order granting the appeal amended so as to show that the defendants separately prayed for and were allowed an appeal, and that the bond was ordered to be approved by the court. The chancellor granted the motion to amend to the extent of making the order require the bond to be approved by the court instead of the clerk, but denied the motion in so far as it sought to amend the joint prayer for an appeal. This ruling was approved by the Supreme Court. The Court said in that case: “At the subsequent term at which the motion to amend was made, the amendment could be made only from some minute or memorial paper, from which it could be determined what the order made by the court really was. (Gebbie v. Mooney, 121 Ill. 255; Culver v. Cougle, 165 id. 417.) * * * The meaning of this minute or memorandum was that the defendants jointly prayed an appeal. Nor was there any showing made for an appeal by Town alone, but the court was only asked to interpret the minutes as allowing such severance. The court did not err in refusing to amend the order so as to allow appellant to appeal separately. Such an order would have been a different one from the order actually made by the court as shown by the minute.” In Wesley Hospital v. Strong, 233 Ill. 153, it is said: “The fact that a particular order has been made by the court at a previous term, if it is not of record, can only be shown ‘by the production of some note or memorandum from the records or quasi records of the court, or by the judge’s minutes, or some entry in some book required to be kept by law, or in the papers on file in the cause. ’ ” As none of the minutes, files, records or papers offered in evidence proved, or even tended to prove, that the record of April 7, 1913 was not, in fact, the order made on that day by Judge Freeman, it follows that the order of March 3, 1914, purporting to "show the granting of a separate appeal to each defendant was unauthorized and void and is of no force or effect whatever.

In the original transcript of the record there appears a document in the ordinary form of a bill of exceptions, except that when filed in this court it was not signed by any judge, but was marked: “Presented this 24th day of May, 1913, Henry V. Freeman, Judge,” and filed by the clerk of the Superior Court on May 27, 1913. It is insisted by appellant’s counsel that this alleged bill of exceptions shows that a separate appeal was prayed by and allowed to Fred Thoma on April 7, 1913. Conceding that to be true, such a recital has no proper place, and is of no effect, in a bill of exceptions. The court cannot change, amend or correct an order entered of record, and which, by statute, is required to be entered of record, by a mere recital in a bill of exceptions. During the term, the court may change, amend or correct any order entered of record by another order entered of record in such form as the court may deem proper. But after the term has passed, the record can only be amended in the manner already stated. The purpose of a bill of exceptions is to show what exceptions were taken at the time any ruling or order was made by the court, not to show whether an appeal was separately or jointly prayed. An order granting an appeal is a part of the record without any bill of exceptions. Hence, even if Judge Freeman had signed the bill of exceptions, it could not be given the' effect of an amendment to the record so far as the prayer for, and allowance of, an appeal is concerned.

After the nominal bill of exceptions last mentioned had been filed in this court, leave was obtained to withdraw it for the purpose of having it signed. When it was refiled it had been signed by another judge, nearly a year after the judgment was entered and the appeal allowed. A motion has been made by appellee to strike this bill of exceptions from the records of this court. In view of the conclusion we have reached as to the motion to dismiss the appeal, it will not be necessary for us to consider this second motion.

For the reasons stated, the appeal will be dismissed.

Appeal dismissed.


text:
    Hattie J. Brown, Appellant, v. Edward M. Brown, Appellee.
    Gen. No. 19,895.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1913.
    Transferred to Supreme Court.
    Opinion filed April 23, 1914.
    Statement of the Case.
    Bill by Hattie J. Brown against Edward M. Brown praying for a divorce on the grounds of cruelty and adultery. The bill alleged that after the marriage complainant bought real estate with her own money, that the defendant without complainant’s knowledge and consent procured the insertion of his name as a grantee jointly with complainant, and that defendant thereafter refused to release to her his interest thus acquired. The bill prayed for a decree requiring defendant to execute such release and convey to complainant all his interest in the real estate. The court dismissed the bill for want of equity, and complainant appeals.
    The appellant assigned as errors the action of the court in refusing a decree of divorce and also in refusing to require appellee to release and convey to complainant his interest in said real estate.
    Chytraus, Healy & Frost and Edwin White Moore, for appellant.
    Bluim & Teed, for appellee.
    Abstract of the Decision.
    1. Appeal and error, § 147

      —when decree in divorce proceeding involves a freehold. A decree dismissing a bill for divorce held to involve a freehold authorizing a transfer of an appeal perfected in the Appellate Court to the Supreme Court, where the pleadings presented two distinct issues, one whether complainant was entitled to a divorce and the other whether she was entitled to a decree for a conveyance of real estate.
    2. Appeal and error, § 1718

      —when freehold not waived by appeal to Appellate Court.' Praying and perfecting an appeal to the Appellate Court and assigning errors which such court has jurisdiction to determine, held not to constitute a waiver or abandonment of the question whether a freehold is involved, where the appellant made his motion for a transfer of the appeal to the Supreme Court before any briefs or abstracts were filed in the Appellate Court.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.