text:
    John Moline, Plaintiff in Error, v. William Christie and Eleanor Christie, Defendants in Error.
    Gen. No. 18,319.
    1. Physicians and surgeons—negligence in treating a wound. In an action against a physician for negligence in treating a wound it is not error to direct a verdict for defendant where there is no expert testimony as to whether the infection was caused by defendant’s failure to sterilize the instruments or by the removal of the bandage by third persons without authority, but the evidence seems to show that the infection developed after such removal and there is no expert testimony as to the effect of the subsequent treatment of the wound at a hospital to which plaintiff went.

      2. Evidence—question as to testimony when not error to sustain objection to question whether at former trial. In an action against a physician for negligence in treating a wound, where an expert witness states that he answered at a previous trial that in a case described in the question wet dressings should have been used and that he still thinks so, it is not error to sustain an objection to a question as to whether the answer was true when made and to allow the statement of opinion as to the bandages to stand, when the witness subsequently states that the question asked at the previous trial was different and explains without objection just what he said at the previous trial and in what respects he agrees or disagrees with it and when there is nothing to indicate what the hypothesis of the previous question was.
    3. Evidence—exclusion of question where point is fully covered. In an action for negligence in treating a wound on plaintiff’s finger, it is not error to exclude a question as to what would be indicated if the skin when stretched over the hone and stitched was tight, where the witness fully covered the point in his testimony and it is not claimed that the infection complained of was produced by the manner in which the skin was stretched.
    Error to the Superior Court of Cook county; the Hon. William H. McSubely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Rehearing denied and opinion modified and refiled May 20, 1913.
    Johh C. Kihg and James D. Power, for plaintiff in error..
    Robert J. Folonie, for defendants in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

On August 25, 1903, John Moline, plaintiff in error, who was employed as a conductor by the Chicago City Railway Company, met with an accident by which the end of the index finger of his right hand was crushed between two pieces of iron attached to and the parts of .a street-car. The wound was dirty and ragged. He immediately went to the office of the defendants in error, William Christie and Eleanor Christie, who were practicing physicians and surgeons for treatment and was treated by them. The wound, hand and forearm, within less than a week, become so infected that several operations had to be made for the purpose of draining off pus formed therein and the insertion of drainage tubes. The usefulness of Moline’s hand is largely impaired. The main question presented in the record is whether or not the court erred in instructing the jury, at the close of plaintiff’s evidence, to find the defendants not guilty. The declaration charges negligence on the part of defendants in treating the wound, and the question presented brings us to a consideration of the evidence for the purpose of determining whether there is any evidence tending to show a want of due care, skill and diligence on the part of the defendants, and that the injury complained of resulted therefrom which required the submission of the issues of fact to the jury.

The evidence shows that the plaintiff was injured while engaged.in shortening the chain of the streetcar on which he was conductor. He went immediately to the office of the defendants and explained the accident to them, and requested them to dress his finger. They washed his finger and cut off with scissors the end of it which was hanging by a particle of skin, and nipped off a part of the bone. After washing the wound, they stretched the skin over the bone and stitched it in place. From the plaintiff’s testimony it appears that the scissors, nippers and needle and what was used as a thread were all taken from a case of instruments and applied to plaintiff’s finger without being dipped into any liquid; dry cotton was then applied to the end of the finger and a bandage was put over the cotton. The next day defendants took off the dressing and put on another dry dressing. The Thursday following, the same kind of dressing was applied after taking out the stitches or some of them. From the time of the first dressing, the hand began to swell, and on Friday, before plaintiff went to the defendants’ office to have his finger dressed, it was, painful and swelling and plaintiff so informed defendants. Another dry dressing was applied on Friday and plaintiff was directed to return on Saturday. When plaintiff went to the defendants’ office on Saturday, the finger was festering and very painful. The dressing was removed and another dry dressing was put on. Between Saturday and Sunday plaintiff’s hand was swelled to double its natural size and was exceedingly painful. On Sunday defendants lanced the index finger and a quantity of pus came out. A damp dressing was then put on. Plaintiff went to a hospital later on Sunday where three or four operations were performed on his hand during the ten weeks he was at the hospital by the hospital surgeons.

On Sunday before plaintiff went to the hospital, the dressing put on his hand by the defendants was taken off or partially removed and replaced in Mrs. Freak’s house by Miss Freak without the order or request of defendants or either of them.

Dr. Biehardson, a surgeon at the hospital, testified that plaintiff’s hand was infected when he came to the hospital. He testified to the operations on plaintiff’s hand after he came to the hospital and that dry dressings are sometimes used on open wounds. Dr¿ Mack, another surgeon at the hospital, testified to the same effect. He further testified in response to a hypothetical question giving the facts as to defendants’ treatment substantially as above set forth, that the treatment given the wound by the defendants was proper except in the way they handled the instruments which should always be sterilized, and that wet dressings should have been used instead of dry, but not from the beginning; that it was proper to use dry dressings until septic symptoms developed when wet dressings should be used. He further testified that there is no treatment known to the science of medicine or surgery which can in every case prevent the creation or formation of pus bacilli in that portion of the body adjacent to the lacerated part, and that the rapidity with which pus infection travels or evidences itself varies with the individual and the part of the body injured, and that pus germs might remain latent any time up to fourteen days before becoming evident to the attending surgeon or physician, but after they become active it is evident within a few minutes. • '

Dr. Price examined the plaintiff’s hand at the time of the trial and testified to its condition and the limitation of action thereof. In answer to the same hypothetical question put to Dr. Mack, he testified that there was no evidence of any sterilizing of the instruments, and that the measures taken were improper; that the use of dry or wet dressings would be governed by the appearance of the wound. If there had been only a serous discharge before the dressing was removed by the patient or permitted to be removed by him and pus was found afterwards, the infection was the result of removing the dressing; if pus had developed before the removal of the dressing and before that time, and at that time the entire hand was very greatly swollen, the infection had been there, in his opinion, from the first part of the treatment, and the removal of the bandage would simply make it worse.

This is the substance of the expert testimony introduced by the plaintiff. No expert testimony was offered showing that the unfavorable results of the wound were caused by want of care or skill in the treatment by the defendants.

The law seems to be well settled that the mere fact that a good result is not obtained in the cure of a wound is of itself no evidence of negligence or lack of care, but there must be affirmative proof of such negligence or lack of care, and that the injuries complained of resulted therefrom. It seems also to be settled by the authorities that such proof can only be established by the testimony of experts skilled in the medical and surgical profession.

Sims v. Parker, 41 Ill. App. 284, was a malpractice case and the court said:

“Proof of a bad result or of a mishap is of itself no evidence of negligence or lack of skill. The defendant is qualified to practice medicine and surgery, and the evidence of the experts in his profession shows him competent and skillful. Before a recovery could be had against him, it must be shown that his treatment was improper or negligent, not merely that he was mistaken, or that his treatment resulted injuriously to plaintiff. A physician or surgeon, or one who holds himself out as such, is only bound to exercise ordinary skill and care in the treatment of a given case, and in order to hold him liable, it must he shown that he failed to exercise such skill or care. McNevins v. Lowe, 40 Ill. 209. The jury cannot draw the conclusion of unskilfulness from proof of what the result of the treatment was, but that the treatment was improper must be shown by evidence.

‘No presumption of the absence of proper skill and attention arises from the mere fact that the patient does not recover, or that a cure was not effected. ’ Haire v. Reese, 7 Phil. R. 138.”

In McKee v. Allen, 94 Ill. App. 147, which was likewise a malpractice case, this court said:

“It is the duty of physicians and surgeons to exercise reasonable and ordinary care, skill and diligence in the practice of their profession. To this extent they are liable and no further. They are not required to possess the highest, but reasonable skill. The burden of proof is upon the plaintiff in an action for malpractice to show the want of such care, skill and diligence, and also to show that the injury complained of resulted from failure to exercise these requisites.”

In Quinn v. Donovan, 85 Ill. 194, it was held:

“The rule is well settled by the authorities, that appellant, who was engaged in the practice of his profession as a physician and surgeon, was required to possess, and in his practice use, reasonable skill, not perhaps the highest degree of • skill that one learned in the profession might acquire, but reasonable skill, such as physicians in good practice ordinarily use. Ritchey v. West, 23 Ill. 385; McNevins v. Lowe, 40 Ill. 209; Hallam v. Means, 82 Ill. 379.”

In Pettigrew v. Leivis, 46 Kan. 78, which was a suit to recover damages against a physician for a negligent, careless and unskilful operation performed on plaintiff’s eyes, the court said:

“No medical or scientific evidence was offered showing the cause of the present condition of the plaintiff’s eyes, nor that the defendants were negligent or careless in the performance of the operation. In fact no witnesses having special skill or knowledge with reference to the treatment of the eyes were introduced in behalf of the plaintiff. The burden rested upon the plaintiff to show a want of due care, skill and diligence in the operation, and that the defective condition now existing is the result of such want of care, skill and diligence. * * * The mere fact that the plaintiff’s eyes have been weak and sore since the operation was performed does not prove negligence in the defendants nor establish a liability against them. To maintain her action, the plaintiff should have offered evidence of skilled witnesses to show that the present condition of her eyes was the result of the operation and that it was unskilfully and negligently performed. ‘This evidence must, from the very nature of the case, come from experts as other witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculilar with the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations.’ Tefft v. Wilcox, 6 Kan. 46. The question whether a surgical operation has been unskilfully performed or not is one of science, and is to be determined by the testimony of skillful surgeons, ’ ’ etc.

In the above case, in the absence of expert testimony, showing that the defect in the plaintiff’s eyes was due to a want of ordinary care and skill on the part of the defendants, the-District Court sustained a demurrer to the evidence, and the ruling of the District Court was sustained.

In Martin v. Courtney, 87 Minn. 197, the trial court directed a verdict in favor of the defendant at the close of the evidence. The Supreme Court of Minnesota in sustaining the ruling, said:

“Mere conjecture or supposition should not be sufficient to overcome the presumption in favor of the attending physician. Where the submission of important facts necessary to sustain a verdict rests on conjecture or suspicion alone, it should not be said in any enlightened tribunal that it could reasonably sustain a verdict. 6 Mere possibilities can never establish the probability of a fact requisite to be proved in order to make a party liable in any action whatever. To decide otherwise would be to say that verdicts may rest upon mere possibility, speculation and conjecture.’ Minneapolis Sash & Door Co. v. Great Northern Ry. Co., 83 Minn. 370; Swenson v. Erlandson, 86 Minn. 263.”

In Wurdemann v. Barnes, 92 Wis, 206, the Supreme Court of Wisconsin upheld a directed verdict upon the same grounds indicated in the foregoing cases.

In McGraw v. Kerr, 126 Pac. Rep. 870, the Court of Appeals of Colorado discusses certain rules applicable to malpractice cases and which it considers established by a consensus of the authorities, and, among others, it- stated the following:

“The skilfulness of a physician in diagnosis and treatment should be tested by the recognized rules of his own school, and must be determined by resort to the testimony and opinion of experts, not only as to the correct diagnosis, but also as. to whether the defendant exercised ordinary care and skill in examining the case and applying the remedies; such opinion to be based upon the facts in evidence. Burnham v. Jackson, 20 Colo. 536.”

Ewing v. Goode, 78 Fed. 442, was an action brought by the plaintiff to recover damages on account of an alleged improper treatment of her eyes. She claimed that owing to a lack of proper care and skill on behalf of the defendant in operating upon her eye, she was caused to suffer great pain and the loss of her right eye entirely and part of the sight of her left eye. In holding that there could be no recovery in the case, the court said:

“Before the plaintiff can recover, she must show by affirmative evidence-—first, that defendant was unskilful or negligent; and, second, that his want of skill or care caused injury to the plaintiff. If either element is lacking in her proof, she has presented no case for the consideration of the jury. The naked facts that defendant performed operations upon her eye, and that pain followed, and that subsequently the eye was in such a bad condition that it had to be extracted, establish neither the neglect and unskilfulness of the treatment, nor the causal connection between it and the unfortunate event. A physician is not a warrantor of cures. If the maxim, ‘Res ipsa loquitur,’ were applicable to a case like this, and a failure to cure were held tp be evidence, however slight, of negligence on the part of the physician or surgeon causing the bad result, few would be courageous enough to practice the healing art, for they would have to assume financial liability for nearly all the ‘ills that flesh is heir to.’ * * *
“But when a case concerns the highly specialized art of treating an eye for cataract, or for the mysterious and dread disease of glaucoma, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence. There can be no other guide, and, where want of skill or attention is not thus shown by expert evidence applied to the facts, there is no evidence of it proper to be submitted to the jury.”

In Goodman v. Bigler, 133 Ill. App. 301, plaintiff brought suit against the defendant, a physician, to recover for alleged malpractice in the treatment of a fracture of plaintiff’s leg. Following the treatment if appeared that plaintiff’s leg was badly deformed. The court said:

“Whether or not the treatment was ordinarily skilful and appellant’s conduct and management of the case was that of an ordinarily careful and skilful physician, is largely an expert question to be determined from the testimony of witnesses learned and experienced in that kind of service.” To the same effect is Kruger v. McCaughey, 149 Ill. App. 440.

The expert witnesses did not state that the infection in plaintiff’s finger was, in their opinion, caused by the failure of defendants to sterilize the instruments; hence it was a matter of mere conjecture or possibility before the jury. The evidence of Dr. Price is uncontradicted that “assuming infection before the removal of the bandage, allowing the air to come in contact, it being in a state of irritation on the verge of getting one way or the other, having undoubtedly been infected by grease and dirt, introduction of air and removal of dressings would throw it over the border line, which would be infection of germs.” Whether the infection was the result of the removal of the bandage or not was a matter of mere conjecture in the absence of expert testimony. “When Moline first came into the hospital there was no pus in his finger or any that came out. Later on there was lots of pus came out,” according to the testimony of Dr. Mack. This seems to establish that the infection developed after plaintiff entered the hospital which was at a later hour on the same day that the bandage was removed by the Freaks. There can be no question that the original injury was infected and a possible cause of the subsequent infected condition. What effect, if any, the treatment at the hospital, including the insertion of drainage tubes in the hand, wrist and forearm, had in producing the limitation of movement now complained of, would seem to the mind of an ordinary layman to be an important question. No expert testimony was offered, however, on this important question. Defendants were not responsible for what occurred at the hospital.

Our conclusion is that the plaintiff’s evidence left the important questions of fact in the realm -of possibilities, speculation and conjecture. The jury had no basis in the evidence upon which to found the necessary conclusions of fact. Under the authorities cited above, the evidence was not sufficient to carry the case to the jury, and the trial court did not err in directing a verdict.

It is argued that the court erred in sustaining an objection to a question put to Dr. Mack. The witness had testified on his direct examination:

“It was proper and skilful to apply dry cotton and a dry bandage to the wound under the circumstances; we do that right along, expectantly, and watch the symptoms, but if any septic symptoms develop we put on wet dressing. I testified at the previous trial that the only thing the matter with the case as described in that question was that wet dressings should have been used instead of dry, and I still think so. My opinion has not undergone any change since then. Q. Was that answer true when you made it ?”

Objection was sustained to the question. Subsequently, on plaintiff’s motion, the portion of the witness ’ answer that he was still of the opinion that under the hypothesis wet dressings should have been used, was permitted to stand.

The witness explained that the question asked him on the first trial was not the same as the one asked him on the second trial, and that the hypothesis then made to him was different. He testified:

‘1 The question asked at the previous trial was asked different and I said if wet dressings were needed they should have been applied, and I still think so, but I don’t think they should have been applied from the beginning of the case. I would have never used them from the beginning of the case. They would interfere with the healing.”

This testimony was brought out by the plaintiff after the court’s ruling, and if there was any error in the court’s ruling it was cured by subsequently allowing the witness to explain just what he had said on the previous trial, and in what respects he agreed or disagreed with it at the time. The very matter which the plaintiff urges was excluded, was subsequently admitted without objection. The question was not read to the witness, or any answer that he made on the previous trial. There is nothing in the record indicating that the hypothesis was the same. Furthermore, the questions were as to matters of opinion and not of fact. Facts are immutable, or supposed to be so, and if changed the “conscience of a witness may be awakened,” but opinions aro mutable and grow with the science, the study of which is the basis of the opinion. A change of opinion is not a matter of conscience, but of progress.

Another question is suggested, namely, “Supposing that the skin, when stretched over the bone and was stitched, was tight, what would that indicate?” We see no particular point to the question. If it goes to the point that if the skin was stretched over the bone it would be improper, there was no error because that point is covered in other parts of the physician’s testimony. Immediately following the question, the physician was asked as to the propriety of stitching the skin, and said that he could not answer whether it was proper or improper to do so, and that it was a matter of judgment; and the physician further testified that if the skin, after having been stretched, did not pull or become tightened so that there would be a distinct retraction over the stump, then that would be bad, and, further, he said: “As to the stretching the skin over the bone and stitching it, it would depend upon the amount of skin, the doctor had and was called upon to stretch.” This testimony is much broader and comprehensive than any testimony which the witness could give in answer to the questions ruled out. It cannot be said, moreover, that it was of any importance in the case, for it is nowhere claimed that the infection of plaintiff’s hand was produced by the skin being stretched tight or loose.

We find no reversible error in the rulings upon evidence. The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Mrs. Minnie E. Roush, Appellant, v. The Illinois Oil Company, Appellee.
    Gen. No. 18,344.
    1. Contracts—when for conditional sale. Where a contract for the sale of stock provides for its re-purchase by the corporation on demand by the purchaser, the option to re-sell is incidental to the main transaction and the contract is a contract of conditional sale.
    2. Contracts—time of performance. Where no time is expressed in a written contract for its performance, the law will imply that it shall be within a reasonable time.
    3. Corporations—when' demand for re-purchase of stock cannot be defeated on ground that contract is ultra vires. Where plaintiff in good faith performs his part of a contract providing for the purchase of stock of defendant' corporation by him and for the re-purchase thereof by -such corporation on demand, defendant cannot defeat plaintiffs demand for re-purchase on the ground that the contract is ultra vires if such demand is made in proper time and in accordance with the contract.
    4. Corporations—ultra vires. A contract by a corporation to repurchase shares of its own stock is not ultra vires.

    5. Contracts—when question whether notice to re-purchase stock is given within reasonable time is for the court. Where a corporation contracts to re-purchase certain of' its own stock after notice by the purchaser, and it is undisputed that such notice was given, the question of what is a reasonable time for giving notice is one of law for the court.
    6. Contracts—when notice to re-purchase stock under a contract not given within reasonable time. Where contracts for the re-purchase of stock after notice by the purchaser are made in 1898 and 1899 and notice to re-purchase is given in 1910, the purchaser by not giving notice within the time fixed by the statute of limitations, and by receiving the benefits under the contract for more than ten years, has elected to ratify the contract and retain the shares and cannot recover the re-purchase price.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    John C. Farwell, for appellant.
    Albert H. Tyrrell, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

On September 26, 1898, appellant and appellee entered into' a written contract under the terms of which appellant paid appellee the sum of $1,000; in consideration therefor appellee delivered thirty shares of .preferred stock of the Illinois Oil Company to appellant and agreed to repurchase the shares of stock for $1,000 if appellant so desired, after March 1, 1899, on thirty days’ notice.

On March 1, 1899, appellant and appellee entered into a second written contract by the terms of which appellant paid to appellee the sum of $1,500; in consideration therefor appellee delivered forty-five shares of preferred stock of the Illinois Oil Company to appellant and agreed to repurchase the shares for $1,500 if appellant so desired, after twelve months from the date of the contract, on thirty days’ notice; or, if appellant desired to sell the shares of stock to appellee before the expiration of twelve months from the date of the contract, appellee would repurchase the shares of stock if convenient, but would not bind itself to repurchase the stock before the expiration of twelve months from the date of the contract.

On September 21, 1910, appellant sent notices by-mail to appellee, stating that she had elected to resell the shares of stock which she had bought under the contracts, and that she would have the certificates therefor, properly indorsed, at such place as. appellee might designate, ready for surrender and delivery to appellee upon the payment of the respective sums of $1,000 and $1,500 mentioned in the contracts. Appellee received the notices. Appellant sent the stock certificates and copies of the notices to M. O. Basmussen, who called at the office of appellee and told an officer of the company that he had the stock certificates with him, ready to turn over to appellee, and requested appellee to repurchase the stock. Appellee refused to repurchase the stock.

Appellant brought suit to recover the repurchase price of $2,500. As a defense, appellee set up that the contracts are void because they are uncertain; that appellant has lost her right on áccount of her laches; that appellee is not liable on the contracts because the statute of limitations barred the appellant from bringing’ suit; that the contracts are ultra vires, and are void because they are gambling contracts.

A jury having been waived, the court found the issues for the defendant and entered final judgment on the finding in favor of the defendant.

The principal subjects of the contracts were legitimate business transactions, and the options to resell to appellee in the contracts were but incidental to the main transactions. There was an actual sale and purchase; and appellant bought the shares of stock on the express condition that she should have the right to resell to appellee, if she so desired, upon giving notice to that effect within a reasonable time, and to receive from the appellee the par value thereof in money. The contracts in question were contracts of conditional sale of the stock mentioned therein, and as such the contracts fell fairly within the principles announced in Wolf v. National Bank of Illinois, 388 Ill. 85; Ubben v. Binnian, 182 Ill. 508; Osgood v. Skinner, 211 Ill. 329.

The contracts do not specify any time within which the option to resell the stock to appellee should be exercised. Where no time is expressed in a written contract for the performance of its terms, the law will' imply that it shall be within a reasonable time. Driver v. Ford, 90 Ill. 595.

“ ‘Where a party to a contract undertakes to do some particular act, the performance of which depends entirely on himself, and the contract is silent as to the time of performance, the law implies an engagement, that it shall be executed within a reasonable time, without reference to extraordinary circumstances. ’ 2 Chitty on Contracts, (11th Amer. Ed.) 1082.” Hamilton v. Scully, 118 Ill. 192.

Appellant in good faith performed her part of the agreement, and appellee had the nse and benefit of her money. Under sneh circumstances, appellant’s demand for the repurchase price, if made in proper time, in accordance with the terms of the contracts, cannot be defeated by appellee’s contention that the contract is ultra vires, for it is a well-settled rule of law that a corporation cannot avail itself of such a defense when the contract has, in good faith, been fully performed by the other party, and the corporation has had the benefit of such performance. Kadish v. Garden City Equitable Loan & Building Ass’n, 151 Ill. 531; Lurton v. Jacksonville Loan & Building Ass’n, 187 Ill. 141; Republic Life Ins. Co. v. Swigert, 135 Ill. 150.

But the contracts in question are not obnoxious to the objection that they are ultra vires. A corporation may, if it acts in good faith, buy and sell shares of its own stock. First Nat. Bank of Peoria v. Peoria Watch Co., 191 Ill. 128; Republic Life Ins. Co. v. Swigert, 135 Ill. 150; Clapp v. Peterson, 104 Ill. 26; Chicago P. & S. W. R. Co. v. Town of Marseilles, 84 Ill. 145. The weight of authority in this country is in favor of the power of a corporation to purchase its own capital stock, except wherq the circumstances are such as to show that the purchase was fraudulent in fact, or that the corporation was insolvent, or in process or contemplation of dissolution at the time of such purchase. U. S. Mineral Co. v. Camden & Driscoll, 106 Va. 663; Wisconsin Lumber Co. v. Greene & W. Tel. Co., 127 Iowa 350; McIntyre v. E. Bement’s Sons, 146 Mich. 74; Ophir Consol. Mines Co. v. Brynteson, 74 C. C. A. 625, 143 Fed. 829; Freemont Carriage Mfg. Co. v. Thomsen, 65 Neb. 370; Porter v. Plymouth Gold Min. Co., 29 Mont. 347.

In regard to the defense of laches set up by appellee, it is urged that when a contract is in any wise unilateral, as in the case of an option to purchase, any delay on the part of the purchaser in compliance with it is regarded with special strictness, for laches would be more easily fixed upon the vendee, than when the contract was of the ordinary character, and the court in such a case will exercise its discretion with great care and scan the conduct of the party claiming the benefit of such contract; and, in support of this contention, Estes v. Furlong, 59 Ill. 298, and other cases are cited. With this contention we agree. It is urged by appellant in this connection, that the statute of limitations runs from the time when she made her demand, if a demand was necessary previous to the commencement of the action (Codman v. Rogers, 10 Pick. (Mass.) 112; Wood on Limitations, (2nd Ed.) 313), and therefore laches on the part of appellant does not appear in the case, nor does the statute of limitations intervene. In this and other jurisdictions, however, it is held that where some act is to be done, or condition precedent to be performed to entitle a party to his right to sue, and no definite time is fixed in which the act is to be done, or the condition performed, he must exercise reasonable diligence to do the one or perform the other, or he will be barred by the statute. Shelburne v. Robinson, 8 Ill. 597; Baker v. Brown, 18 Ill. 91; Staninger v. Tabor, 103 Ill. App. 330. In other jurisdictions the same rule prevails. Twin-Lick Oil Co. v. Marburg, 91 U. S. 587; Campbell v. Whoriskeg, 170 Mass. 63.

The facts in this case as to the service of notice by appellant are not in dispute. It is then purely a question of law as to what is a reasonable time for giving notice, and, like every other question of law, it is for the court to decide. Loeb v. Stern, 198 Ill. 371; Chicago, R. I. & P. R. Co. v. Boyce, 73 Ill. 510.

The earlier contract made September 26, 1898, provides that “the company agrees to purchase said stock at $1,000 if so desired after March 1, 1899, on thirty days’ notice.”

The second contract, made March 1, 1899, provides that “after twelve months from date, should Mrs. Roush so desire, the company agrees to purchase said stock at the price paid for the same, on thirty days’ notice.”

The notices claimed to have been given by appellant to appellee were dated Redlands, California, September 21, 1910. Applying the rule of the statute in this state applicable to contracts in writing, in our opinion the notice was not given within a reasonable time so as to be effectual under the terms of the contract. The notice was not given within the period fixed by the statute of limitations; and, having received for a period of more than ten years the benefits under the contract without notice, appellant, by her own act, elected to ratify the contract and retain the shares of stock. Lydig v. Braman, 177 Mass. 212; Bills v. Silver King Min. Co., 106 Cal. 9; Baker v. Johnson County, 35 Iowa 151; Prescott v. Gonser, 34 Iowa 175.

In our opinion, the appellant was guilty of laches, and the statute of limitations had run upon her right of action, and she cannot recover.

The judgment of the Municipal Court is, therefore, affirmed.

Affirmed.


text:
    Erich E. Pacyna et al., Appellees, v. Isadore J. Bliss et al., Appellants.
    Gen. No. 18,395.
    1. Mobtgages—appeals and errors. On appeal from a decree foreclosing a trust deed securing notes, defendant having made no objections and taken no exceptions to the master’s report cannot raise the question that there is no allegation in the bill that the notes were reduced to judgment, since the master found they were reduced to judgment.
    2. Appeals and ebbobs—when, conclusions of fact in master’s report cannot he questioned. Where appellant makes no objections to the master’s report and takes no exceptions, he cannot question the conclusions of fact which the master reports.
    3. Appeals and Errors—sufficiency of proof to sustain decree pro confesso. The sufficiency of the proof to sustain a decree pro confesso against a party in default cannot be questioned by him on appeal.
    4. Mortgages—when question as to amount of judgment cannot he raised on appeal. On appeal from a decree foreclosing a trust deed securing notes, defendants having suffered a default are not in a position to question the amount of the judgment entered upon the notes, or the attorney’s fees included in the judgment.
    5. Mechanics’ liens—failure to file objections to master’s report. On appeal from a decree finding complainant entitled to a mechanic’s lien, defendant by not filing objections or exceptions to the master’s report will be held to have waived all objections to the claim.
    6. Mortgages—where mechanic’s lien claimant files pleading in nature of intervening petition. In a foreclosure case, a pleading filed by a mechanic’s lien claimant termed “an answer in the nature of an intervening petition for a mechanic’s lien’’ is sufficient and a cross-bill or cross-petition is not necessary.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Rehearing denied May 27, 1913.
    Sonnenschein, Berkson & Fishell, for appellants.
    Benjamin F. J. Odell, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal is from a decree entered by the Circuit Court of Cook county in a foreclosure case involving the foreclosure of a trust deed securing notes held by Erich E. Pacyna, executed by Isadore J. Bliss and Bose Bliss to the order of themselves, and by them endorsed. Appellee, the I. Lurya Lumber Company, is a lien claimant and filed an answer to the bill in the nature of an intervening petition, setting up the facts and asking for a decree establishing a lien for lumber furnished in improving the premises involved. The court entered a decree finding that appellee Pacyna was entitled to $3,972.91 and the Lumber Company to $417.21, for which amounts liens were decreed against the premises in question. The decree also provides for the sale of the premises and for execution in case of deficiency.

'The appellants were duly served with process in the cause but filed no answers and were defaulted. The cause was referred to a master in chancery to take proofs and report, and the master, having taken the proofs, reported his conclusions together with the evidence. No objections of any kind were made by any of the defendants to the report of the master, and the decree confirms the master’s report.

It is urged as a ground of reversal that there is no allegation in the bill that the notes described by the trust deed, numbered 4 to 8 inclusive, were reduced to a judgment and that expenses were occasioned thereby. These notes were for $150 each and aggregated $750, and bore interest at the rate of six per cent, per annum. Appellants having made no objections to the master’s report and consequently no exceptions, cannot question the conclusions of fact which the master reported. Moore v. Titulan, 33 Ill. 358; Fergus v. Chicago Sash & Door Co., 64 Ill. App. 364. The notes numbered 4 to 8, which the master found were reduced to judgment in the Municipal Court, were described in the bill of complaint and copies thereof were attached as exhibits, so that it appears on the face of the bill that the foreclosure was sought for the indebtedness represented by these notes, and that when the appellants suffered default and made no objections to the master’s report and took no exceptions thereto, they waived all rights, if any, based on the facts set up in the bill and found by the master’s report. Hess v. Peck, 111 Ill. App. Ill.

The sufficiency of the proof to sustain a decree pro confesso against a party in default cannot be questioned by him on appeal. Glos v. Swigart, 156 Ill. 229. Appellants are not in a position on this appeal to raise any point as to the amount of the judgment entered upon the notes last mentioned, or whether or not attorneys’ fees were included in the judgment.

Appellants urge ‘that the decree, with reference to the Lumber Company, should be reversed because, first, the claim is founded upon a contract made with Hannok & Stone, who were the general contractors, and appellant, Isadore J. Bliss; second, that the court erred in providing for a deficiency decree as against Bose Bliss; third, that the pleading filed by the Lumber Company, termed ‘ ‘ an answer in the nature of an intervening petition for a mechanic’s lien,” is insufficient to predicate a lien thereon; and, fourth, that the statement of claim filed with the clerk of the Circuit Court is insufficient because it fails to correctly set forth the contract, and there is, therefore, a variance between the pleadings, statement of claim for lien and the proof.

As to the first ground, the evidence shows that Hannok & 8tone were the general contractors, and that the Lumber Company furnished material for the building under a verbal contract with Hannok & Stone, whereby the Lumber Company was to furnish lumber for the building, and Hannok & Stone agreed to pay the Lumber Company the fair and reasonable market value thereof. The evidence shows that the Lumber Company then proceeded to furnish the lumber to be used in the building, and that subsequently, when a part of the lumber had been furnished, appellant, Isadore J. Bliss, entered into a written agreement with Hannok & Stone by which he agreed to pay the Lumber Company for all the lumber then delivered by it to said premises, and for all lumber to be thereafter delivered. In our opinion, the objection made to the claim of the Lumber Company and the proof thereof was waived by the appellants by not filing objections or exceptions to the master’s report.

As to the second ground urged against the Lumber Company, namely, that the court erred in providing for a deficiency decree as against Bose Bliss, it is sufficient to say that Rose Bliss has assigned no errors upon this record.

There is no substance to the third ground urged by appellants against the decree in favor of the Lumber Company. The answer and intervening petition of that company were sufficient pleadings on which to predicate the decree in its favor.

As to the fourth ground above stated, urged to the claim of the Lumber Company, the master found from the evidence the amount due the Lumber Company, and all objections to the finding of fact by the master were waived by appellants as above indicated. There is no variance between the pleadings, statement of claim for a lien and the proof offered in the case before the master which appellants can avail themselves of upon this record. The Lumber Company was entitled to a decree upon the proofs and pleadings filed No cross-bill or cross-petition was necessary. Thielman v. Carr, 75 Ill. 385.

The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Mary Powers, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,399.
    1. Cities and villages—defective sidewalks. Whether plaintiff exercises due care in passing over a sidewalk when it is in process of repair and she is fully acquainted with its condition is a question of fact for the jury.
    2. Evidence—when opinion of physician as to cause of injury is admissible. Where plaintiff fell over a water plug projecting above the level of the sidewalk, in a personal injury action against the city, negligence of defendant being admitted, the testimony of plaintiff’s physician as to whether her physical condition is the result of the accident complained of is admissible.

      3. Evidence—expert testimony. The opinion of a physician as to the cause of plaintiff’s injury is not conclusive but subject to be contradicted by other evidence.
    4. Instructions—pointing out questions of fact to be determined by the jury. An instruction that whether or not defendant was guilty of negligence; that whether or not defendant had notice or by the exercise of ordinary care would have had notice of the condition of the sidewalk complained of; that whether or not plaintiff exercised ordinary care for her own safety; and that whether or not plaintiff is entitled to recover are all questions of fact to be determined from the evidence; is proper.
    5. Instructions—when no evidence to support. Where there is no evidence on which to base a part of an instruction it is properly refused.
    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, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Rehearing denied May 27, 1913.
    William H. Sexton and N. L. Piotrowski, for appellant; David R Levy, of counsel.
    C. H. Sippel and Anson H. Brown, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This action was brought by Mary Powers, appellee, against the city of Chicago for damages on account of injuries claimed to have been sustained by her by tripping over a water plug projecting above the level of a public sidewalk, causing her to fall to the ground, and certain injuries resulted therefrom.

The plaintiff, accompanied by her mother, Mrs. Bridget Brown, and a neighbor, Mrs. Mary Trent, was walking with them on the north side of 23rd street in the city of Chicago between Leavitt street and Irving avenue, on September 24th or 25th, 1909. The three women were carrying some baskets of peaches. The plaintiff tripped over a water plug projecting above the sidewalk and fell face forward. At that time she had been pregnant about four and one half months. Her mother and Mrs. Trent assisted her to her home nearby, and after about fifteen minutes the plaintiff retired. During the night she felt pains in her back and abdomen. Hemorrhages and pain in her back followed. She had a miscarriage and was taken to a hospital on October 18th or 19th following; She was there put to bed, and an operation was performed upon her while she was under the influence of an anaesthetic. She remained in the hospital a week and was then taken home and remained in bed at home over a week. She subsequently was able to be about the house during some parts of the day. The evidence tends to show that she has never fully recovered from her injuries, and about September 5, 1910, she gave premature birth to a child.

The place of the accident was about 150 feet east of her house. At the time she fell over the plug it was dark.

On the trial, the jury found for the plaintiff and assessed her damages at the sum of $3,000. and the court, after overruling a motion for a new trial and a motion in arrest of judgment, entered judgment upon the verdict.

It is urged as a ground of reversal that the evidence on behalf of the plaintiff fails to show that the plaintiff was exercising ordinary care for her own safety, and that she was guilty of contributory negligence. The ground upon which this claim is made is that the evidence shows that she resided within about 150 feet of the water plug and must have known of its existence prior to the time when she stumbled her foot against it. This, we think, is hardly a correct statement of the evidence for, while the plaintiff admits that she may have seen the water plug prior to the accident, it does not show that she knew of its existence. The evidence tends to show that she had passed the portion of the sidewalk in which the plug was sticking up not more than a half dozen times prior to the accident, and that she might have seen the plugs but never had her attention directed to them and never took any notice of them. She had resided in her then place of abode only since the 24th of June preceding the accident, and she did not frequently pass over this section of sidewalk. It appears that the sidewalk had been torn up at the place in question about six months prior to the accident, and cinders laid down for people to walk upon, and that two water plugs or pipes extended up several inches above the cinders, and it was not barricaded. The section of the sidewalk in question was east of plaintiff’s house, and she had no occasion to pass over it frequently, and while she says she may have noticed it, we do not regard that as evidence to the effect that she had full knowledge of the existence of the plug or such familiarity with the condition of the sidewalk as to put her upon notice of its condition. Even if she had known of their existence before the time of the accident, she would not necessarily be held to be guilty of contributory negligence in passing over the sidewalk when it was dark. "Whether she was exercising due care in passing over the sidewalk and at the time of her injury, even if she knew that it was out of repair or in process of repair, was a question of fact for the jury to determine. City of Mattoon v. Faller, 217 Ill. 273. The evidence shows that the color of the cinder walk and the water plugs was dark, and that this rendered it difficult to see the water plugs in the dark. The testimony of the plaintiff and her witnesses is that immediately after the accident they examined the walk and looked for the .object over which the plaintiff had fallen, and then for the first time discovered the plug within a few inches of plaintiff’s foot.

If the evidence in the case shows that the plaintiff was fully acquainted with the condition of the sidewalk in question, it would still be a question for the jury as to whether she was in the exercise of ordinary care, or whether she was guilty of contributory negligence. Wallace v. City of Farmington, 231 Ill. 232: Hora burda v. City of Chicago, 154 Ill. App. 627. The verdict of the jury ought not to be disturbed upon the question of the want of the exercise of ordinary care or contributory negligence upon the evidence in the record.

Dr. Cupler, the attending physician of the plaintiff, was called as a witness on her behalf, and after testifying as to her condition from knowledge he derived as her attending physician, a number of hypothetical questions were put to him. Appellant lays stress upon the following examination as' erroneous. The doctor was asked the following question:

‘1Q. Doctor, assuming that a lady about twenty-five years of age, while walking along a sidewalk, falls over a water plug about six or seven or eight inches above the surface of the ground; that after she has fallen she is assisted to her feet by two ladies, taken to her home, which was about 150 feet away; that there she is put to bed about fifteen minutes after the accident had occurred; that at that time she was and had been pregnant about four and one-half months; that during the night she awoke and had pains in her abdomen and back; the next day she discovered some hemorrhage from the womb, and in the evening went to a physician; that the physician made an examination of the lady and found some hemorrhage, and also made an internal examination, and examining the womb and examined the lady outside, and that he found she had been injured somewhat internally. Have you an opinion as to what the case—”
“The Court: Just a minute. Isn’t there further evidence than that here?
Mr. Emrieh: I object on account of the internal injuries and that sort of thing. * * *
The Court: Did you find internal injuries ?
A. No sir.
The Court: Strike internal injuries out of the question.
Q. Then, doctor have you an opinion as to the cause of those injuries and of that hemorrhage?
The court ruled that he might answer over objection.
A. Yes, I have an opinion.
Q. What is that opinion?
A. I think the fall Mrs. Powers says she received, I think that caused the condition.
Q. Your opinion, in other words, is that the fall would be the cause of that condition?
A. Yes, sir.”

Counsel for appellant then moved to strike out the answer but the court allowed it to stand. We assume the motion to strike relates to the last or modified answer.

It is now insisted that the court erred in allowing the answer of the doctor to stand, for the reason that he stated that the condition of the plaintiff was caused by the injuries which Mrs. Powers says she received; that this was not an answer to the hypothetical question, and the witness assumed something entirely outside of the question. It is argued that the court allowed the doctor’s conclusion to be substituted for the finding of the jury on an ultimate fact in issue in the case, and that his answer was not in reply to a hypothetical question, but was based upon what his patient had told him. There seems to be not only an apparent but a real confusion in the authorities in this state upon the subject of expert testimony and particularly upon the question as to when an expert witness may be allowed to testify to cause and effect in a given case. In the case of City of Chicago v. Didier, 227 Ill. 571, the court recognizes that there is an apparent confusion in the authorities on the question as to whether in such cases as this a medical expert may be asked his opinion as to whether the physical conditions of the injured party are the result of the accident complained of. In that case, a hypothetical question was put to the expert witness who had heard the testimony of the attending physician and also other testimony. The witness was asked to assume that the accident occurred in the manner described and to assume the truth of the testimony which he had heard, and was then asked as to what" he would say was the cause of the uterine and pelvic condition, and the witness gave it as his opinion that it resulted from the accident complained of. The court held that there was no error in the admission of the opinion of the witness in evidence. The court then discriminated between that case and Illinois Cent. R. Co. v. Simth, 208 Ill. 608, and states that the apparent confusion of the authorities arises from a failure to distinguish between cases where the manner in which the injury is received is admitted and cases where the manner of the injury is denied, and holds that Illinois Cent. R. Co. v. Smith, supra, belongs to the latter class of cases, and the Bidier case to the former class. We are unable to draw any distinction between the Didier case, supra, and the case at bar. No question is made in this record as to the cause and manner of the accident. The negligence of the city is admitted, and no question is made but- that the plaintiff stumbled over the projecting water plug. ’ The question is as to whether certain physical conditions were caused by the accident complained of and, as held in the Bidier case, supra, the determination of that question involves special skill and knowledge of science that does not come within the experience of laymen possessing the education or knowledge common to those moving in the ordinary walks and engaged in the ordinary occupations of life; and under those circumstances persons possessing the special knowledge, skill or science may give their opinions bn the subject as the witness did in this case. The rule in the Bidier case has been followed in Chicago Union Traction Co. v. Roberts, 229 Ill. 481, and Fuhry v. Chicago City Ry. Co., 239 Ill. 548. Whatever our opinion otherwise might have been on the question we are controlled by these decisions. As stated in the Bidier case, the opinion given by the witness was not conclusive and was subject to be contradicted by other evidence. It was for the jury to determine the weight and value of such opinion when considered in connection with all the evidence in the case.

Error is assigned upon the giving of the first instruction given at the request of the plaintiff. That instruction was as follows:

“The jury is instructed that whether or not the defendant, City of Chicago, was guilty of negligence; whether or not the City of Chicago had notice or by the exercise of ordinary care would have had notice of the condition of the sidewalk complained of; whether or not the plaintiff, just before and at the time of the injury complained of, exercised ordinary care for her own safety; and whether or not the plaintiff is entitled to recover in this case, are all questions of fact to be determined by you from the evidence in this case and under the instructions of the court.”

The complaint made by the appellant to the above instruction is that it did not confine the jury to a consideration of negligence as charged in the declaration. Numerous cases are cited in which instructions were under review which directed a verdict. Those cases have no application to the instruction under consideration, for it does not direct a verdict. It simply points out to the jury certain questions in issue under the pleadings, and instructs them that they are questions of fact to be determined by the jury under the instructions of the court.

Complaint is made of the refusal of instruction marked No. 18. There was no evidence in the record upon which to base the following part of the instruction: “There was a roadway or other path for pedestrians adjacent to or alongside of said alleged defective sidewalk, and that said roadway or other path was reasonably safe for ordinary travel by pedestrians thereon. ’ ’

We think the other refused instructions were fully covered by instructions Nos. 1, 3, 4, 5, 10, 11, and 14 given at the request of appellant.

The judgment is affirmed.

Affirmed.


text:
    Delos P. Phelps et al., Appellees, v. Leslie C. Hughes, Appellant.
    Gen. No. 18,417.
    1. Assumpsit—when declaration sufficient. A count alleging that a contract was made whereby defendant agreed to pay plaintiff, a lawyer, $250.00 for carrying a certain suit for divorce to a decree in the Superior Court, that the case was dismissed by agreement of the parties, that a suit for divorce on other grounds was filed by plaintiff as agreed and was carried to a decree, that defendant thereby became indebted to plaintiff for the sum of $250.00 and that being so indebted he thereafter promised to pay, is. sufficient for even if the old contract was destroyed it does not follow that recovery is not supported on the new contract and if any requirement of the original contract was not met it was waived by defendant.
    2. Pleading—general demurrer. Where a declaration states facts sufficient to warrant recovery, the fact that many evidentiary facts are unnecessarily averred does not make it obnoxious to a general demurrer.
    Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed May 9, 1913.
    Rice & O’Neil, for appellant.
    William J. Stapleton, for appellees.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

Appellees, constituting a law firm, brought an action in assumpsit against defendant Hughes, appellant, and filed a special count on a contract for services, and in addition thereto the common counts. The errors assigned question the action of the court in overruling the demurrer of the first count of the declaration and entering judgment thereon, all other counts having been withdrawn. The errors assigned, therefore, present to this court for decision the sufficiency of the first count of the declaration.

In that count appellees aver that on the first day of December, 1906, the defendant being possessed of valuable property and real estate, estimated by him at the value of $25,000, had brought a suit in the Superior Court of Cook county, Illinois, against his wife, Grace B. Hughes, for divorce, charging adultery in the bill as the only ground therefor. This charge of the bill was denied by appellant’s wife, and by cross-bill the defendant was charged with both adultery and extreme and repeated cruelty, and by the issues formed between the defendant and his wife, there was involved the questions of divorce, of the custody of their two children, of attorneys ’ fees and expenses for the wife during the said contest, of alimony for herself and children, and of dower in the real estate of the defendant. In the trial of that case a jury had been called and heard the evidence, which had occupied the larger portion of a week, and had found by their verdict that Grace B. Hughes was not guilty as charged in the bill of the defendant, and had also found that the defendant herein was guilty of extreme and repeated cruelty to his wife, in pursuance of which finding of the jury the court had entered a decree allowing the said Grace B. Hughes the control of the children, $500 for her solicitors’ fees in trying said cause before the jury, $300 alimony for herself and children, and $14 per week continuing alimony, and $250 for solicitors’ fees for her attorneys in the Appellate Court if the case was appealed. The declaration avers that the cause having been appealed to the Appellate Court and reversed and remanded to the Superior Court for retrial, the defendant herein, on January 25, 1908, applied to plaintiffs to take charge of and attend to his interests in the said contest between him and his wife, and his interest therewith necessarily connected, and also requested the plaintiffs to then and there fix a definite amount for winch they would attend to the same, and being advised not to require the price to be fixed in advance, as it would cost more should there be a long trial by a jury than if the matters were disposed of on hearing before the judge, nevertheless defendant insisted .in his requirement that the price must be absolutely fixed in advance, and was told that in that case it would cost him $500 for disposal of the case in the Superior Court, which amount he declined to agree to pay, but proposed to plaintiffs that he, the defendant, would pay plaintiffs $250 for their services in the Superior Court in that behalf, no matter whether the trial of the case was long or short, with a jury or without a jury; whereupon, after considering the subject with the defendant, plaintiffs then and there entered into a written contract with the defendant, which was signed and delivered by them, respectively, in words and figures following, to-wit:

“Chicago, Ill., January 25, 1908.
It is agreed that Phelps, Phelps So Finley shall try the divorce case of Hughes vs. Hughes in the Superior Court, carrying it to a decree there for the sum of $250, be the trial short or long, with a jury or without a jury, and that said $250 shall be paid in full by June 1,1908, and as much sooner as possible as to part of it. Witness our hands this date,
Leslie C. Hughes,
Phelps, Phelps & Finley.”

The plaintiffs aver that they then and there entered upon the services required in said cause and the preparation thereof for trial, and were then and there directed by the defendant to ascertain by negotiations with the attorney for Grace B. Hughes whether an agreement could be had as to the custody of the children, alimony and dower, protecting the property rights of defendant, which plaintiffs then and there did, and after long’, patient and laborious negotiations, covering weeks of time, ascertained that defendant’s interest, as stated, could be most completely secured, including the custody of the children, in case a divorce was granted, if the defendant would consent to amend his bill, withdrawing therefrom the charge of adultery, and substituting desertion instead as the only ground charged as cause for divorce, which situation the plaintiffs presented and explained to the defendant, who then and there agreed to the same as it would save the reputation of his children from stain.

The plaintiffs further aver that the original bill filed by the defendant against his said wife upon examination was found to have charged adultery only and to have been filed in less than two years after Grace B. Hughes, defendant’s wife, absented herself from her home, whereas a bill for desertion could only be maintained and the court have jurisdiction in said cause when filed two full years after the desertion occurred, and that the existing bill could not be amended, and a decree, if granted, based upon desertion only could not be upheld as valid and binding, but that it could be accomplished by filing a new bill, as more than two years had then elapsed since the absence from home of the said Grace B. Hughes; whereupon defendant, having been advised of this situation, then and there directed the plaintiffs to file such new bill for divorce, charging desertion only, and cause a decree to be entered in said cause and dispose of all of the questions in the contest between defendant and Grace B. Hughes under the new bill to be filed, allowing the bill originally filed to be dismissed. And plaintiffs further aver that in compliance with the directions of the said defendant in that behalf, and with the expenditure of time, labor and skill therein, the plaintiffs then and there filed said new bill and tried the divorce case of Hughes v. Hughes in said Superior Court, carrying it to a decree, and did then and there, by the expenditure of time, labor and skill in and about said cause, obtain for the defendant everything which could have been obtained to his advantage therein, including the custody of his children as wished by him, and a decree of divorce to be entered in bis favor and the cutting off of all dower and alimony as to the said Grace B. Hughes, so that the defendant was not required to pay and did not pay a cent of solicitors’ fees or court expenses to enable the said Grace B. Hughes to prosecute said suit, and the defendant then and there became liable to and was indebted to the plaintiffs in the sum of $250, to be paid in full by June 1,1908, and, being so indebted, the defendant, in consideration thereof, afterwards, to-wit: on June 1, 1908, and at the place aforesaid, to-wit: Cook county, Illinois, undertook and then and there faithfully promised said plaintiffs, well and truly to pay unto the plaintiffs the said sum of money in the count mentioned, when he, the said defendant, should be thereunto afterwards requested. The count then avers that although often requested, the defendant had not yet paid the said several sums of money above mentioned, or any or either of them, or any part thereof to the plaintiffs, but has refused and still does refuse to the damage of $1,000.

It is argued that the allegations of the declaration show that the case of Hughes v. Hughes, which was then pending in the Superior Court, after having been remanded from the Appellate Court, was by agreement of all parties dismissed, and that the plaintiffs did not carry out the provisions of the contract by carrying said suit to a decree by trial before the court with or without a jury, and that, therefore, there has been no strict performance of the contract by the plaintiffs;

The declaration sets out the agreement and the modification of the agreement, and the performance of the agreement as modified. The modification of the agreement, when it was. found advisable that it should be modified, substituted for the case of Hughes v. Hughes then pending a new suit based upon a different ground, the new suit being rendered necessary by the grounds upon which the divorce was to be obtained. This was the only modification of the contract. The averments of the declaration show that the contract, as thus modified, was performed.

It is also urged that by the modification of the agreement, the old contract was destroyed and a new contract was created, and that this appears by the averments of the declaration. Even if this be conceded, it does not follow that the declaration does not support a recovery on the new contract. It sets out the new contract, and, as we have said above, it alleges performance thereof. The only change shown by the declaration, if it was a change, in the agreement was the substitution of a new suit with the acquiesence of the defendant, leaving the contract otherwise unchanged. On this hypothesis or theory the .declaration alleges a good cause of action. That the declaration avers unnecessarily many evidentiary facts did not make it obnoxious to a general demurrer. If there was any requirement of the original contract which was not met by the plaintiffs, it was waived by the defendant according to the averments of the declaration. A party may waive performance of a part of the contract and yet be bound by it. Crane v. Kildorf, 91 Ill. 567; Vroman v. Darrow, 40 Ill. 171; Morrill v. Colehour, 82 Ill. 618.

The declaration avers facts sufficient to sustain a recovery. The demurrer was properly overruled.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Duncan

text:
    Frank J. Kleinsmith and Elmor H. Kleinsmith, Trading as Kleinsmith Bros. Defendants in Error, v. Charles Baltz and Otto Diederichs, Trading as Baltz & Diederichs, Plaintiffs in Error.
    Gen. No. 17,249.
    1. Sales—action for price. Judgment for plaintiff in an action for a balance due for butter sold and delivered to defendant on the “Elgin basis” held, not against the evidence though the evidence is conflicting whether such butter was of the grade required by such basis.
    2. Sales—evidence. In an action for a balance due for butter alleged to have been sold and delivered on the “Elgin basis,” held, that the court without a jury was warranted in concluding that defendants in bad faith led plaintiff to believe that he would receive the Elgin price without charge for freight or commission and that such finding might legitimately he influenced by the apparent unfair methods employed by defendant.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed May 21, 1913.
    Depress, Buckingham, Bitter, Campbell & Eaton, for plaintiffs in error; Don K. Jones, of counsel.
    W. A. Cunnea and Joseph P. Rafferty, for defendants in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Frank J. Kleinsmith and Elmor H. Kleinsmith recovered a judgment against Charles Baltz and Otto Diederichs, plaintiffs in error, in the sum of $836.90, for an alleged balance due them for creamery butter sold and delivered to plaintiffs in error. The trial was before the court without a jury..

The butter was shipped by defendants in error in response to the following circular letter, received by them from plaintiffs in error, dated February 16, 1910, to-wit:

“This letter is important to you. Illinois should ship their creamery butter to this large central market. We offered you 36c no freight no commissions, exactly what it sold at, at Elgin. Did you do better? We will take your butter on the Elgin basis, from now until the first of May, no freight no commission. We have no butter in cold storage, of any kind. We need your butter, prime quality, sweet flavored butter, for our fast growing trade. We want it now. We will send you a good advance as soon as we get the railroad receipt. The balance after receiving the butter. Ship right away. Mark the tubs B. & D. Chicago, write the full name in the railroad receipt and mail it to us. * * * You need no refrigerator. We are responsible for what we say.”

Plaintiffs in error admit that they owed defendants in error a balance on butter shipped in the sum of $223.42, and deny that any greater sum is due for said butter. There is no dispute as to the number of the shipments or as to the weights thereof.

Plaintiffs in error contend simply that the court erred in allowing defendants in error the Elgin prices for butter instead of the market prices at Chicago. The expert evidence in the record without question proves that the Elgin butter district includes the states of Iowa, Wisconsin and Illinois, and that the “Elgin basis” is a well recognized trade term with a well defined meaning among the butter men of that district; that butter sold on the Elgin basis means that it sells for the Elgin price published every week by the Elgin Board of Trade, which price is a one price only for each week, and for one grade of butter only, known as “extra,” and that butter must score 93 points or better when inspected to come within the grade, “extra.” Plaintiffs in error also argue that as the butter was sold and delivered to them on the Elgin basis the burden of proof was on the defendants in error to prove that the butter in question graded as extra, and that having failed so to do the plaintiffs in error were entitled to retain the butter on the payment of the market value thereof in Chicago, as shown and proved for the days on which the butter was delivered to them in Chicago. If it be conceded that plaintiffs in error are correct in their theory, we cannot say that the judgment is against the manifest weight of the evidence. The undisputed evidence of the defendants in error, as testified to by their expert and apparently disinterested witness, L. C. Carmichael, shows that a custom prevails in the Elgin district, when butter is sold on the Elgin basis, for the buyer to notify the shipper if it scores under the grade, extra, immediately after that fact is ascertained, and that it is left to the shipper to say what shall be done with it, as the buyer is not bound to accept it unless it grades as extra. This witness also testified that his firm, the H. W. Carmichael Cream, Milk and Butter Company of Rockford, Illinois, deals only in one grade of butter, extra, and that during the months of February, March and April, 1910, the same months in which the butter in question was sold and delivered to plaintiffs in error, his company bought butter of defendants in error, and that all the butter received of them by his firm in those months was extra and would grade on inspection as extra on the Elgin basis, and that he has had an experience of fifteen years in dealing with butter. F. J. Kleinsmith, a defendant in error, testified also that his firm shipped butter to Carmichael’s firm in said months in fifty pound lots, cut up in print pounds, and that it was the identical same kind of butter shipped to plaintiffs in error, and out of the same chums and that the only difference in print pounds and tub butter, as shipped to plaintiffs in error, is that the tub butter is put up in bulk and not in pounds. He names two dates, March 29th and April 13th, that he shipped to Carmichael’s company butter out of the same churns and same churnings as he shipped to plaintiffs in error on March 30th and April 13th. By examination of the table below it will be seen that this butter that scored 93 in Rockford, Illinois, on those dates, scored only 86 in Chicago March 30th, and on April 13th ten tubs thereof scored only 80, and fifteen tubs only scored 87, as reported by plaintiffs in error.

Opposed to this testimony as to the scoring of the butter in question, plaintiffs in error introduced three witnesses, including themselves. Frank I. Woolverton, a butter inspector for the Elgin Board of Trade, testified that he inspected butter for plaintiffs in error during said months and that the butter scored on each particular date, as indicated in said table belqw, and identifies his inspection certificates, and that none of it scored as high as 93, extra, but he could not or did not identify the butter inspected as the butter in question. Charley Baltz identified the butter inspected as the butter in question by reference to the numbers on the certificates of inspection, and by an examination of their books and the railroad receipts, and testified that none of the butter graded as high as extra. He also testified that the first column of prices furnished in said table below were the correct Chicago market values of butter scoring according to said table on the dates therein set forth. Otto Diederichs simply identified the butter inspected as the butter in question by reference to their books, the railroad receipts and said certificates of inspection.

The following table, above referred to, beginning with the first column on the left and reading to the right, shows these facts in their order concerning said shipments of butter, by defendants in error, to-wit: the date of shipment weight at creamery in pounds, loss of weight in Chicago, scoring on inspection, Chicago price per pound, the Elgin price per pound claimed by defendants in error, and the value of the shipment at the Elgin price. The first total is the total value at the Elgin price and the second total, the total value at the Chicago price.

$2,252.10

1,638.42

Plaintiffs in error admit that they received from the defendants in error a bill for every shipment of said butter at the Elgin price, and that they never objected thereto, nor informed defendants in error what any of the butter scored when inspected, nor gave the information to them that they would not pay for it at the Elgin price, until a final statement and remittance was mailed by them April 21,19.10, after all the butter had been shipped. On the contrary, the letters written by them to defendants in error were apparently framed with a view to lead the defendants in error to believe they would receive the Elgin price for their butter, and without charging them freight or commission. Remittances were generally delayed as a rule until the next shipment was on its way to Chicago, and while objections were continually made, they were apparently made in a way not to stop the shipments of butter, nor to make clear their intention to not accept or pay for it as extra. The remittance for the first shipment included a premium of $1.56 over the Elgin price of 28c and no freight or express charges were deducted. In their final statement they reduced the price of this shipment to 25e per pound and deducted $2.10 express charges, reducing the remittance for this shipment from $85 to $70.15. The complaints of plaintiffs in error got louder and more pronounced and their remittances smaller in per cent, and less frequent as the shipments continued to grow larger, and some advice was kindly offered to defendants in error in one of these delayed letters of plaintiffs in error apparently as an evidence of their good faith, and desire for good butter, and to enable defendants in error to come up to the desired standard. Finally, defendants in error ceased shipping butter before the season ended, and in the lower court a cross demand was filed by plaintiffs in error for damages for failure to deliver butter the full season as agreed, and which butter they had reported as not at all satisfactory for their trade. The cross demand was not pressed in the lower court and it is not pressed in this court, but it is insisted strenuously that there is no evidence in this record of bad faith on their part toward defendants in error. We think the lower court was well warranted in concluding otherwise, and that its finding in this case might be legitimately influenced by the apparent unfair methods employed in their- dealings with defendants in error.

As bearing upon this conclusion we quote from some of the correspondence. On February 19th, on receipt of the first shipment, plaintiffs in error promptly wrote defendants in error as follows:

“Your five tubs of butter received and we will pay you 28c (the Elgin price) with the understanding that we take your butter on the Elgin basis each week during the season. We prefer to have you ship the butter by freight and as soon as we get the railroad receipt for the next shipment we will mail you a check. We need your butter for our fast growing trade and we pay a premium for quality. Tell us how much you are going to ship us now and how much during the flush? * * * We think you quite understand us. You want a good market for butter.”

Defendants in error replied February 22nd as follows :

“Your letter received; in regard to it will say we will make you shipment as soon as next Freight leaves at Leaf River we shipped you the lot from Adeline the later part of last week we will take Elgin price for our Butter till first of May do you handle print Butter if so give us offers on it.”

The second shipment was made February 24th, and on March 1st, the very day the second shipment was inspected, without any 'reference to said shipment, plaintiffs in error remitted for the first shipment and wrote to defendants in error as follows:

“Enclosed please find check No. 7805, amount $85.00. Referring to your 5 tubs of butter for which you sent us a bill of lading dated the 17th received here, being the first lot. This shipment would be satisfactory but the flavor is not what it should be, so that the butter will not do for our fancy finest trade. "Would lose money if we took it in at full price for our regular trade as best quality. Such butter is not satisfactory and can not pay you the price under any circumstances if this lot should be taken by itself or on its own merits. Howéver, if you ship us right along all of your make, regular each week, to the end of the season on the Elgin basis and the butter shows such improvement as to be a grade that we could put out to our trade at top notch price as best butter for the season when made, we would be willing to try it, take this first lot, paying the price, standing the loss on it, storing it and run the chance of getting out whole later as may seem best to us.”

After receiving an urgent request from defendants in error on March 3rd to remit for the second shipment, plaintiffs in error on March 8th replied as follows :

“Referring to our letter of March 4th in reference to the 9 tubs and the 6 tubs, the quality is not as good as the first. It don’t show the improvement in quality that we expected. Enclosed find check amounting to $150.”
On March 24th plaintiffs in error wrote as follows: “As per your letter of March 1st, we are disappointed that the quality of your butter don’t improve. Your last shipment is in, and if anything, it is not as good as the previous shipments. We have reason to expect of you, this time of the year, an increase in quantity and improvement in quality. * * * How many tubs of butter are you going to ship each week, and when is your shipping day? * * * The difficulty seems to be with your cream, it don’t arrive close enough to the cow’s teats. The longer you keep it away from delivery, the more stale your cream will be, and you can not make good butter that will score extras, from stale cream. We want to help you build up the dairy interest in your district, and it can only be done with intelligent handling of the raw material. Mail us a railroad receipt promptly for each shipment that you make, and ship close to the churn.”

There is no reversible error in this record and the judgment is affirmed.

Affirmed.


text:
    Connersville Co-operative Creamery Association, Defendant in Error, v. Charles Baltz and Otto Diederichs, Trading as Baltz & Diederichs, Plaintiffs in Error.
    Gen. No. 17,295.
    1. Sales—when buyer estopped to claim, reduction. Where defendant offers to pay plaintiff Elgin price for butter if it scores extra and in case it does not grade extra to hold subject to plaintiff’s order or return, and plaintiff makes a shipment with instructions to store and notify plaintiff if it grades below extra and defendant retains it and uses it, he is estopped to claim a reduction in price on the ground that it did not grade extra.
    2. Sales—where butter is shipped to commission merchants. Where plaintiff ships butter to defendants in Chicago who offer to pay Elgin price in case it grades extra, and the evidence shows it did not grade as high as extra, the Chicago price for that grade on the day it is delivered governs.
    3. Sales—when goods cure sold on an executory contract. Where goods are sold for a certain price on condition that they meet a certain standard when delivered and they are not up to the standard, the buyer may rescind the contract and return the goods or retain them and recoup his damages when sued for the price.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed if remittitur filed, otherwise reversed. and remanded.
    Opinion filed May 21, 1913.
    Defrees, Buckingham, Bitter, Campbell & Baton, for plaintiffs in error; Don K. Jones, of counsel.
    Hamilton & Hamilton, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This case was tried without a jury and a judgment was rendered against the plaintiffs in error, Charles Baltz and Otto Diederichs, for an alleged balance of $250.12, due defendant in error for creamery butter.

The butter in question was shipped by defendant in error from its creamery at Downing, Wisconsin, to plaintiffs in error at Chicago in response to a circular letter received from plaintiffs in error dated July 20, 1910, reading as follows:

“We will pay you 28c and a premium for extra quality creamery butter. We are paying now 1c a pound premium, charging you no freight, drayage or commission, Chicago delivery. * * * Mark the tubs B. & B., write the full name in the railroad receipt and mail it to .us and we will remit you an advance check of $10 a tub after receiving same and the balance due you, afterward. Above proposition means 29c to you. Ship us a week’s churning right away, and tell us how many tubs we can have each week during the season to the first of October.”

Defendant in error, July 26, 1910, shipped plaintiffs in error thirteen tubs of butter, 827 lbs. net at Creamery, and wrote them as follows:

“We ship you to-day a small lot of butter in response to your offer of the 20th. We make about 40 tubs per week at present. * * * Whether we can deal with you depends mainly on three points, viz: price, weights and promptness in mailing returns. Please send remittance for this shipment and enclose inspector’s score. ’ ’

Plaintiffs in error, on-July 28, 1910, again wrote as follows:

“Enclosed find check for $130, $10.00 a tub advance money. * * * We would like to have you make us a shipment of a whole week’s churning. We can judge better than by part of the week. We see by your bill of lading that Tuesday is your shipping day. * * * We will take your butter each week on the Elgin basis and a premium for quality up to Oct. 1st. ’ ’

Five days after the butter was inspected, plaintiffs in error wrote their letter of Aug. 3,1910, to defendant in error:

“The quality of the-13 tubs of butter shipped July 26th would be satisfactory, but the flavor is not what it should be, so that the butter will not do for our contracts, would lose us money if we took it in at full price for our regular trade. * * * Such butter is not satisfactory and we can not pay you Elgin and a premium for it, under any circumstances if this lot should be taken by itself on its own merits. We would be willing to take the butter, pay the price and stand a loss on it by using or holding in storage and run the chance of getting out whole later as may seem best to us. However, if you agree to sell us and ship regularly every week, all of your butter output for the balance of the season ending October 1, 1910, we agree to buy your entire output during that time and pay you Elgin and a premium for quality for it, delivery to be made at Chicago also pay our own freight from Downing, deduct no commission or drayage with the understanding that each further shipment shows a normal regular increase in quantity and such gradual improvement in quality, as to be of a grade that we can put out to our trade at top price as best extras butter for the season when made. Otherwise, we can only pay you what the butter is worth to us. As to the weights, it is understood that we will remit at the net weight called for by your invoice on each shipment, whether the butter holds out to that weight or not, provided that you are to make good the billed weights or allow for any shortage that the butter may show before the expiration of this arrangement. * * * If this is not satisfactory, return the advance we sent you by Saturday, make provision for paying the charges and let us know at once on receipt of this letter by telegraph what to do with the butter.”

On August 2, 1910, defendant in error shipped thirty-six tubs of butter, 2,264 lbs. at creamery, and on August 4th wired plaintiffs in error:

“If butter shipped August second grades below extras don’t sell, but store and write for instructions.” They also wrote plaintiffs in error on August 5th: “We have just had an expert at our creamery who says our butter should .grade extra. We cannot contract our output to a commission house depending on their score.”

On the same day, August 5th, plaintiffs in error remitted the balance of $102 for the thirteen tubs, making in all a little more than the Elgin price, 28c, at creamery weights, paid for the first shipment, writing to defendants in error as follows:

“In reference to the 36 tubs of butter how much do you think would be right. It is our effort to please our shippers and get their regular shipments each week, of quality butter. We will report on the 36 tubs on arrival.”

The evidence further discloses that no further shipments of butter were made by defendant in error and that notwithstanding the said two shipments were inspected July 29th and August 5th, respectively, and certified as scoring 88 and 89 points, plaintiffs in error retained and used the butter, without reporting the scores to defendant in error until August 18, 1910. A number of other letters were written by plaintiffs in error urging defendant in error to ship its butter to them, in which the offers were repeated to pay the Elgin price and a premium for the butter already shipped and for its entire output at creamery weight, provided the butter continued to improve and finally score as extra creamery butter. Failing to induce further shipments plaintiffs in error on August 24, 1910, repudiated its former settlement for. the thirteen tubs of butter, and after deducting prior payments remitted the balance as full payment for said shipments, at Chicago weights and Chicago prices according to the following showing:

July 29, 13 tubs, 791 lbs., @ 24c____$189.84
Aug. 5, 36 tubs, 2179 lbs., @ 25c... .$544.75

The evidence also discloses that according to the Elgin plan of inspection perfect butter scores 100 on a basis of 45 points on flavor, 25 on body, 15 on color, 10 on salt and 5 on package; and that the various other grades of butter are extras, scoring 93 or better; extra firsts, scoring 90 to 92; firsts scoring 87 to 89, and seconds 86 and lower; and that butter deteriorates in quality while being shipped and stored and loses in weight, and particularly in hot weather.

The court allowed defendant in error the Elgin price, 28c per lb., for the two shipments of butter, and Chicago weights. Plaintiffs in error contend that as the butter failed to grade as extra butter that defendant in error was only entitled to the Chicago prices as above set forth, or a judgment for $142.59. We think the court properly held that the second shipment should be paid for at the Elgin price and according to Chicago weights.

Plaintiffs in error were asked to hold that shipment and store it for further orders unless it scored as extra. They were afterwards informed by defendant in error that it would expect for that shipment the full contract or Elgin price of 28c. Notwithstanding this information and their former offer to return butter not grading as extra or to let it stand subject to order of defendant in error, they retained it and used it. They ought now to be estopped to make any claim for a reduction of the price demanded by defendant in error.

Besides, defendant in error introduced evidence proving that the second shipment of butter was, when shipped, of a very fine quality, known in the market as extra, and we are not disposed to hold that a finding of the lower court that it would have graded as high as extra in Chicago on a fair inspection is manifestly against the weight of the evidence.

While Chicago weights and Chicago inspection were to govern in this contract, by Chicago inspection was meant what it really would have inspected upon a fáir square basis. While we are not disposed to discredit the inspector who inspected the butter at Chicago, yet, we think that for the same reasons set forth in the opinion in case No. 17249, Kleinsmith Bros. v. Baltz & Diederichs, ante, p. 369 filed by us simultaneously with this opinion, it would not be an unreasonable conclusion that defendant in error was not fairly dealt with in the securing of a prompt and proper inspection. It should have been inspected at least two days earlier, and defendant in error should have been notified at least four or five days earlier that the first shipment was unsatisfactory to plaintiffs in error. Good faith and common fair dealing demanded prompt action and timely notice of such facts in view of the facts testified to by plaintiffs in error that the butter at that season deteriorated rapidly, and that delay necessarily meant loss to defendant in error, no matter whether retained by plaintiffs in error or returned to the shipper. It is evident the second shipment would not have been made had defendant in error been advised promptly that the first shipment was unsatisfactory and below the grade of extra.

There is no evidence in the, record that was not excluded, except that offered by plaintiffs in error, as to the score and grade of the butter in the first shipment. We are compelled to find, therefore, that this shipment did not grade as high as extra and that the Chicago price for that grade on the day it was delivered in Chicago must govern. The contract to pay the Elgin price was contingent upon the butter scoring 93 or better. The terms upon which it was retained by plaintiffs in error at the Elgin price was never met, that defendant in error would continue to ship, etc. Where goods are sold on an executory contract, i. e., for a certain price on condition they meet a certain standard when delivered, the buyer may rescind the contract, and return the goods, or retain the property and recoup his damages when sued for the price. Underwood v. Wolf, 131 Ill. 425; Chicago Packg. & Prov. Co. v. Tilton, 87 Ill. 547; Doane v. Dunham, 65 Ill. 512.

The judgment is excessive and therefore erroneous. If defendant in error will file a remittitur of $31.64 in this court, the amount of such excess, within ten days, the judgment for $218.48 will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.

Affirmed if remittitur filed; otherwise reversed and remanded.