text:
    Warren Pease, Appellee, v. Chicago Crayon Company, Appellant.
    Gen. No. 16,485.
    1. Corporations—effect of declaration of dividend. When a dividend has been duly declared by a corporation it becomes a debt due from the corporation to each stockholder in proportion to the number of Ms shares and he may sue for and recover the same at law.
    2. Corporations—when proof malees prima facie showing that profits have been earned. Proof that all stockholders but the plaintiff have been paid dividends in pursuance of resolutions declaring dividends ‘1 payable out of the profits, ’ ’ establishes prima facie that sufficient profits have been earned.
    3. Assumpsit—when lies. When a dividend has been declared nothing remains to be done except to pay the money on demand and where, such is the ease indebitatus assumpsit is a proper form of action.
    4. Pleading—when ruling upon demurrer immaterial. It is of no consequence how the trial court ruled on a demurrer to a rejoinder to a replication to a plea of set-off where no evidence was offered in support of the plea of set-off.
    Assumpsit. Appeal from the Municipal Court of CMcago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed with damages.
    Opinion filed May 9, 1912.
    A. D. Gash, for appellant.
    Pease, Smietanka & Polkey, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellant issued to one Hamell a certificate for fifteen shares of its capital stock, stating on its face that it was “fully paid and non-assessable.” On November 8, 1904, Hamell endorsed the stock certificate to the appellee upon payment by the latter of $1,200. Appellee at once requested appellant’s secretary to transfer the shares on the company’s books. The secretary refused to do so, claiming that the shares of stock had been attached and sold prior to the purchase of the same by appellee. Litigation followed and continued for several years, until November 28, 1908, when the Hamell certificate was surrendered by appellee and a new certificate issued to him by the appellant. He thereupon made a formal demand upon the company for dividends which had accrued after the time of his purchase of the stock in 1904. This demand being refused, appellee brought suit in the Municipal Court as a first-class case, declaring on the common counts in assumpsit. A plea of the general issue was filed by appellant, and later an additional plea of set-off, alleging that Hamell was indebted to the defendant in the sum of $1,500 which had never been paid to the corporation for said shares of stock. To this plea the plaintiff replied double, first, that Hamell was not so indebted, and second, that when Hamell assigned said stock certificate to the plaintiff, the latter was a bona fide purchaser for value without notice. To this replication the defendant filed a rejoinder to the effect that the issue of said stock certificate by the company was ultra vires, because the stock was not paid for. A demurrer to this rejoinder was sustained. Upon the trial, appellee proved his purchase of the stock, the endorsement to him of the stock certificate, the demand made for the transfer thereof, the surrender and cancellation of the old certificate and the issue of the new Certificate four years later, and that during said four years, four dividends of $300 each had been declared and paid to other stockholders but not paid to appellee. Appellant offered no evidence and'JEeWourtNlirected a verdict for $1,200. Judgment was entered on the verdict on November 8,1909, and the company appeals.

Three reasons are suggested for the reversal of this judgment; first, that no recovery can be had on the common counts; second, that all the resolutions, declaring dividends, directed that such dividends be paid out of the profits and there was no proof there were any profits; and third, that the court erred in sustaining the demurrer to the rejoinder above mentioned.

First. The law is well settled that when a dividend has been duly declared by a corporation, it becomes a debt due from the corporation to each stockholder in proportion to the number of his shares, and he may sue and recover the same at law. (10 Cyc. 566). The declaration of a dividend “is a written admission on the part of the corporation of an indebtedness to each particular stockholder.” (Id. 566).

When such a dividend has been declared nothing remains to be done except to pay over the money on demand, and where such is the case indebitatus assumpsit is a proper form of action. Lane v. Adams, 19 Ill. 167. Or upon another theory, when a defendant has obtained money belonging to the plaintiff which, in equity and good conscience, the defendant has no right to retain, the plaintiff may recover the same on the common count for money had and received. First National Bank v. Gatton, 172 Ill 625; Wilson v. Turner, 164 Ill. 398.

Second. All the resolutions offered in evidence direct the payment of dividends ‘‘ out of the profits of the business for ’ ’ the year stated. The resolutions in themselves imply that profits had been earned sufficient, at least, to pay the dividends declared in the resolutions. Moreover, there was evidence that such dividends were paid to all other stockholders but appellee. We think this proof made a prima facie case in favor of appellee, so far as this contention is concerned.

Third. It is a matter of no consequence how the court below ruled on a demurrer to a rejoinder to a replication to a plea of set-off, in view of the fact that the defendant offered no evidence of any kind in support of its plea of set-off.

After examining this record and the briefs filed, we 0 cannot escape the conclusion that this appeal was prosecuted for delay. The judgment will, therefore, be affirmed with $60 damages (this being 5% of the damages assessed below), in addition to the costs.

Judgment affirmed with damages.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Esther Beeker, Appellee, v. Marshall Field & Compan,y Appellant.
    Gen. No. 16,498.
    1. Master and servant—what essential to ■ recover where unsafe place alleged to have been furnished. Held, under allegations of the declaration in this case, that it was necessary for the plaintiff to prove, first, that a certain incline and grooves were defectively constructed and negligently maintained and that the maintenance of such defective condition was the proximate cause of the servant’s injury; second, that .the master had knowledge or in the exercise of ordinary care would have had knowledge of thg defect; third, that the servant did not know and did not have equal opportunities with the master of knowing of the defect or if the servant did know of the defect that she did not know and was not chargeable with knowledge of the danger arising from the existence of the defect.
    2. Master and servant—what essential to application of doctrine of assumed risle. The ° doctrine of assumed risk will not defeat a recovery unless two conditions concur; the servant must not only have had knowledge or be chargeable with knowledge of the defect but the facts must also charge him with knowledge of the danger as well.
    3. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.

      4. Verdicts—when excessive. Held, in a personal injury action, that a verdict reduced by remittitur to $4500 was excessive where it appeared that the plaintiff had partially lost the use of her left arm and was earning at the time of the accident 5 or 6 dollars per week, it further appearing that the plaintiff did not assist as well as she might in the endeavor to cure her of the injuries complained of.
    5. Instructions—when does not erroneously ignore defense of assumed rislc. An instruction which correctly states as an abstract proposition of law the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place to work is not erroneous (if it does not conclude with a direction as to the verdict to be rendered) if it ignores the defense of assumed risk.
    6. Instructions—when cannot he complained of. A party cannot complain of an instruction as erroneous where he has tendered and the court has given an instruction containing substantially the same language as that urged as vicious.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed upon remittitur.
    Opinion filed May 9, 1912.
    Rehearing denied May 23, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Frank P. Leffingwell, for appellants.
    Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $4500 in favor of appellee for personal injuries sustained by her. In January, 1906, appellee, then seventeen years of age, was employed by appellant as a saleswoman in the basement of appellant’s store at the corner of State and Washington streets, Chicago. The basement was divided into several rooms. The south room was separated from the middle room by a fire wall, approximately two feet in thickness, through which was cut an opening eight or ten feet in height and width. The floor of the south room was four feet higher than the floor of the middle room, and to connect these floors a wooden incline was constructed, eighteen or twenty feet in length, and as wide as the opening in the fire wall, forming a sloping passageway from one floor to the other. Set into the fire wall on either side of the opening were steel doors, so arranged that the opening could be closed by sliding the steel doors along metallic grooves which ran across the incline above mentioned. These metallic grooves were one and one-quarter inches deep, and at the top, which was flush with the adjoining surface of the incline or passageway, the width of the grooves was one and one-half inches.

On January 9,1906, appellee was stationed at a booth located in the south room near the passageway thus described. She had been working at that place three days, and in other parts of the building several months. About closing time on the date mentioned, she was hurrying along the incline towards the middle room for the purpose of turning in her sales books, preparatory to leaving for the day. As she passed over one of the grooves the heel of her shoe caught in it and she tripped and fell forward, striking on her left arm and side, dislocating the radius at the elbow and tearing some of the ligaments in the arm. She brought suit for damages with the result above stated, and the defendant appealed.

It is urged that the evidence does not show that the defendant was guilty of negligence; that the condition of the incline and grooves was obvious and that appellee assumed the risk of danger therefrom, if any; that she was guilty of contributory negligence in hurrying down the incline; that the court erred in the giving and refusing of instructions, and that the damages awarded are excessive.

The first three of these contentions, taken together, raise the question whether there is in the record a preponderance of evidence supporting the verdict and judgment of the court below. The only negligence charged in the declaration is the alleged negligent maintenance of one of the grooves across the incline or passageway, in such dimensions, size and proportions as to be highly dangerous to persons walking over the same, “by reason of the fact that one’s heel was likely to catch in the opening between the sides of said groove, and one was likely to trip at the opening between the sides of said groove, which defendant knew, or by the exercise of due care should have known. ’ ’

Under the allegations of the declaration it was necessary for appellee to prove first, that the incline and grooves were defectively constructed and negligently maintained- and that the maintenance of such defective condition was the proximate cause of her injury; second, that appellant had knowledge, or in the exercise of ordinary care would have had knowledge, of the defect; third, that appellee did not know and did not have equal opportunities with appellant of knowing of the defect; or if she did know of the defect, that she did not know, and was not chargeable with knowledge, of the danger arising from the existence of the defect. Galloway v. C. R. I. & P. Ry. Co., 234 Ill. 474, 478; Montgomery Coal Co. v. Barringer, 218 Ill. 327; C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492; Armour v. Brazeau, 191 Ill. 117; Christiansen v. Graver Tank Works, 223 Ill. 142.

In addition to the facts above related, it was further shown that the incline and grooves were built four years prior to the happening of the accident to appellee; that at the time they were constructed the width of the grooves was made less than the width of a former type of grooves, for the purpose of preventing such accidents as happened to appellee, but that, nevertheless, several such accidents did occur after they were constructed and prior to the accident to appellee, and that these facts were known to appellant and unknown to appellee.

In view of this evidence, and of the practically uncontradicted testimony of appellee as to the manner in which she received her injuries, we cannot say that the verdict is manifestly contrary to the evidence as to the first two of the essential elements of proof above mentioned.

Whether the evidence preponderates in favor of appellee as to the third essential element of proof presents a more difficult question. That the defective condition of the grooves across the incline was obvious to anyone who was looking for it, is clearly shown by the evidence. That this condition, however, was not such as to charge the appellee with the knowledge that it was dangerous to pass over the same, seems to be a reasonable conclusion from all the evidence, and the jury evidently so considered the matter. There is a well recognized qualification to the usual rule regarding the assumption of risks by a servant, which declares that unless both the defect and the danger therefrom are of such a character and so open and obvious as to be aparent to anyone of ordinary intelligence, if it appears that the servant does not know, and is not chargeable with knowledge of the danger from an obvious defect, he does not assume the risk by continuing in his employment. In other words, the servant must not only have knowledge or be chargeable with knowledge of the defect, but the facts must charge him with knowledge of the danger as well. (Christiansen v. Graver Tank Works, supra; Hartrich v. Hawes, 202 Ill. 334.) In such cases the character and appearance of the defect and the experience or want of experience of the servant are proper to be considered. In this case appellee testified that although she had passed over the incline and grooves five or six times in three days she had never paid any particular attention to the grooves. Evidently the defective construction did not seem dangerous to her. Several witnesses for appellant described the manner of the construction of the grooves, and two of such witnesses, with full knowledge of the subject, one of them the builder of the incline and grooves, testified that in their opinion, as experts, the grooves were as narrow as was safe and practicable under all the circumstances, that the same construction was in use in a number of similar buildings in Chicago, and that they considered such construction safe and “a good job.”

Moreover, appellant’s counsel strenuously contended, both in the lower court and in this court, that the incline and grooves which caused the accident were not dangerous but were reasonably safe. From these facts, it would seem to follow that if the jury were justified in finding from the evidence that a defective condition existed (as we think they were justified), they would be also warranted in finding further that the danger arising from such a defect was not so apparent to a person of ordinary prudence and intelligence, having the same experience and knowledge that appellee had, as to bring such danger within the usual rule as to assumed risks, but was within the exception to the rule as above stated. It is evident that this was the view of the learned trial judge and of the jury as well; and after a very careful examination of the whole record we think this view is' sustained by the preponderance of the evidence. Counsel for appellant have cited several cases in Illinois in which it was held that where, the defect was open and obvious, the danger therefrom was also held to be so apparent as to charge the servant with knowledge of the danger as well as of the defect; but in each of such cases the conclusion so reached was a finding of fact from the evidence. Such questions of fact, under our system of jurisprudence, must be left to the decision of the jury, unless the court can see that the jury have acted unreasonably, -in the eye of the law. We cannot say up on the facts of this record, that the jury have acted unreasonably in returning a verdict in favor of appellee.

It is further urged that appellee was guilty of con-tributary negligence, because of the fact that she was “hurrying” down the incline and across the grooves at the time she tripped and fell. She testified that she was walking fast, hurrying to turn in her sales books at the close of the day. One of defendant’s witnesses said she was running. We do not think it can be said, as a matter of law, that appellee was guilty of contributory negligence because she hurried, even if she was running. That is purely a question of fact for the jury to decide.

Complaint is also made as to the giving and refusing of instructions. Instruction No. 2, given on behalf of the plaintiff, states as an abstract proposition of law, that “it is the duty of the master to exercise reasonable care to furnish the servant with a reasonably safe place to work.” It is objected that this instruction is bad because it ignores the defenses of assumed risk and contributory negligence. The instruction does not, however, direct a verdict and is a correct general statement of a master’s duty under the law. Moreover, appellant used substantially the same language in one of its instructions, which was given, and in which the qualification was added “that the law does not make the employer an insurer of the safety of the persons of his employees, nor require him to furnish for their use a perfectly safe place to work or to pass along in the discharge of their duties. ’ ’ Under these circumstances we think appellant has no just ground of complaint. Three instructions requested by appellant were refused for the reason that they did not contain the limitation that appellee did not assume the risk of dangers”of which she was not aware and with knowledge of which she was not chargeable. We think they were properly refused for the reasons before stated.

It is also objected that the damages awarded are excessive. The jury returned a verdict for $6,500, from which appellee remitted $2,000 and judgment was entered, for $4,500.- We are of the opinion that this objection is well taken. Doubtless, the very large verdict may have been due to the detailed description by the surgeons of the treatment to which appellee was subjected while they were endeavoring properly to adjust -the dislocation at the elbow. It was shown that this was a very difficult matter, requiring distressing /operations. While it appears that appellee has partially lost the use of her left arm, there is some evidence to the effect that appellee did not assist in her own cure as well as she might have done. At the time of the accident she was earning $5 or $6 a week. Under these circumstances, we think a judgment in excess of $2,500 would be clearly excessive. If the appellee within ten days will remit from said judgment all the excess over $2,500, the judgment will be affirmed; otherwise, the judgment will be reversed and remanded for a new trial.

Affirmed upon remittitur.

Remittitur filed and judgment affirmed..


author: Mr. Justice McSurely

text:
    The Livingston Warehouse & Van Company, Appellee, v. The Aurora, Elgin & Chicago Railroad Company, Appellant.
    Gen. No. 16,450.
    Contributory negligence—driving upon railroad tra&cs. One familliar with his surroundings Who drives .upon railroad tracks without looking, is guilty of contributory negligence which will bar his recovery if there are no conditions or circumstances which excuse the failure to look.
    Action in ease. Appeal from the Superior Court of Cook county; the Hon. Paul McWilliams, Judge, presiding. Heard in the Branch Appellate Court at the March, term, 1910.
    Reversed and judgment here.
    Opinion filed May 9, 1918.

      Hopkins, Peppers & Hopkins, for appellant.
    Brady, Barnum & Rutledge, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on the case brought by The Livingston Warehouse & Van Company, a corporation, hereinafter called the plaintiff, to recover damages resulting from a collision between a train of the Aurora, Elgin & Chicago. Railroad Company, a corporation, hereinafter called defendant, and a moving van belonging to the plaintiff, which occurred on February 11, 1907, at the intersection of defendant’s tracks and Washington street,, in the city of Wheaton, DuPage county, Illinois. The injuries sustained were to the van and the furniture therein. A jury returned a verdict finding tile defendant guilty and fixed the damages at $550, and judgment thereon was entered.

The defendant urges several errors, in rulings on evidence and the giving of instructions, which it is claimed were so prejudicial as in any event to entitle defendant to a new trial. We do not comment upon these errors, although some of them seem to us to be manifestly prejudicial, for the reason that we. have concluded to enter judgment here for the defendant. We are led to this conclusion by a consideration of the undisputed evidence in the case, from which, in our opinion, it is clearly apparent that the plaintiff failed to prove that it was in the exercise of due care while driving “across the said railroad,” but it is apparent that the driver of the van belonging to plaintiff was guilty of gross negligence which directly contributed to the accident in question.

About one o’clock in the afternoon of the day of the accident, two vans belonging to the plaintiff and loaded with furniture left Chicago for Wheaton. The front van, which was the one subsequently injured, was driven by Henry Geritig, an employe of plaintiff; the other one by John L. Livingston, also an employe. They arrived at Washington street in Wheaton about 7:15 P. M., turned south in that street -and approached the tracks of defendant, Gering in the lead. It was a “fair night; kind of dark.” As Gering was crossing defendant’s tracks his van was struck by a train coming from the east, with consequent injuries to the wagon and furniture.

It is not disputed that from a distance of 138 feet in Washington street north of defendant’s tracks there is a continuous and unobstructed view of these tracks eastward for about a mile. About 95 feet north of the defendant’s tracks at this point are the double tracks of the Chicago & Northwestern Railway Company, which are a little higher than defendant’s tracks, and the street slopes slightly from the Northwestern tracks to defendant’s tracks. Gering’s seat on his wagon was about 8y2 feet from the ground, and he says, “I could see to the right and to the left.” His statement concerning his conduct as he approached the tracks of defendant is as follows: “The last time I looked for a train on the track of, defendant company was when I was coming down from the Northwestern track. * * * Just as I got off the Northwestern tracks I looked east; then I looked back west; in the meantime I started to put my blankets' around me; I had four horse blankets up around me; then I didn’t look no more; I gathered my horse blankets up around me and was devoting my time to that, and that was what I was doing when I drove onto the defendant’s track; that is, when I drove onto defendant’s tracks, I was looking at the blankets and bringing them up over me. I didn’t look east no more all of the time that the team was walking on the Northwestern track onto and nearly over defendant’s tracks; I didn’t look again; I pulled the blankets up over me and tried to make myself comfortable.”

The car in question was equipped with an electric headlight which “was in good condition and was burning in good shape as the car approached and went into Wheaton. ’ ’ A number of witnesses testified that from the Northwestern tracks the headlight on defendant’s cars approaching from the east can be seen when a mile away, and that the track runs straight from Washington street eastward without any obstruction to view for nearly a mile. The motorman sounded the regular crossing whistle on approaching Washington street, and then a series of sharp, short blasts as a danger signal. He testified that it was not apparent to him that Gering was about to drive onto the track in front of the car until the car was within 200 feet of the crossing; that he then set his brakes in emergency and did everything he could to stop the car, but it was too late and the van was struck.

There is some dispute as to the speed of the car just before the accident. Livingston testified that it was coming about 50 or 60 miles an hour, while the motorman testified that when he gave the crossing whistle he was running 15 or 20 miles .an hour, and at the time of the collision the speed had been reduced to between 4 and 6 miles an hour.

Gering testified that he was familiar with the conditions and situation of the crossing. It was claimed by the defendant upon the trial that the evidence clearly demonstrated that Gering was intoxicated. Gering denied this, although admitting that he had had two drinks of whiskey while making the trip. On the other hand, witnesses who saw Gering and Livingston immediately after the accident testified positively that they were both under the influence of liquor.

Our Supreme Court has said in many cases that a failure to look for an approaching train is not in law negligence per se, as usually there are present conditions and circumstances which the jury are to consider in determining whether there was an excuse for not looking. “It is usually a question of fact for the jury to determine, in view of all the surrounding circumstances, whether failure to look and listen constitutes negligence or lack of due care.” Winn v. C. C. C. & St. L. Ry. Co., 239 Ill. 132, 139. But in the case at bar we cannot discover any conditions or circumstances which excused Gering for not looking before he drove onto defendant’s tracks. He was familiar with his surroundings; his horses were walking; he had a light load; his seat was elevated; the sides of his wagon did not prevent his looking to the right or left, and his view of the track eastward was unobstructed for nearly a mile. He could clearly have seen the headlight of the approaching train in ample time to have stopped and allowed the train to pass. Neither can we perceive any reason why he should not have heard the warning whistle of the approaching train in ample time to have avoided danger. As to the statement of Gering that he looked while at the Northwestern tracks and saw nothing, we quote from C. P. & St. L. R’y. Co. v. DeFreitas, 109 Ill. App. 104, 106:

“If a person looks, he is supposed tq look for the purpose of seeing; and if the object is in plain sight and he apparently looks, but does not see it, it is manifest he does not do what he appears to do. The law will not tolerate the absurdity of allowing a person to testify that he looked, but did not "see the train, when the view was unobstructed, and where, if he had properly exercised his sight, he must have seen it.”

Üpon the trial the court was requested to instruct the jury to find the defendant not guilty, which instruction was refused. We are of the opinion that this instruction should have been given, and that its refusal was error. In C. & N. W. Ry. Co. v. Hansen, 166 Ill. 623, the court said (p. 628):

“If there is no fixed rule of law applicable to all cases, yet the question of negligence in .each particular case may become a question of law and come within the province of the court, so that a particular verdict may be directed, if the evidence in the case is such that all reasonable men would be agreed in their conclusion from it. Where the facts are such that reasonable men of fair intelligence may draw different conclusions, the question of negligence must be submitted to the jury; but if the court can say that but one reasonable inference can be drawn from the facts, the court should act accordingly. Chicago & Eastern Illinois Railroad Co. v. O’Connor, 119 Ill. 586; Hoehn v. Chicago, Peoria & St. Louis Railway Co., 152 id. 223; Illinois Central Railroad Co. v. Larson, id. 326; Wabash Railway Co. v. Brown, id. 484; Werk v. Illinois Steel Co., 154 id., 427.”

And in Lake St. El. R. R. Co. v. Gormley, 108 Ill. App. 59 (61), it was said: “If the facts are undisputed, and of such a character that reasonable minds would agree without dissent that the injury was caused by appellee’s contributory negligence, and there is no evidence upon which the jury could, in the eye of the law, reasonably find otherwise, then the instruction should have been given.” There are many other decisions in the Appellate Court to the same effect, in cases where the facts were less clear than in the case at bar. Boyle v. I. C. R. R. Co., 88 Ill. App. 255; I. C. R. R. Co. v. McMillion, 129 id. 27; Bjork v. I. C. R. R. Co., 85 id. 269; C. & N. W. Ry. Co. v. Holdom, 66 id. 201; Cotter v. Chicago City Ry. Co., 141 id. 101; I. C. R. R. Co. v. Batson, 81 id. 142, and others.

Believing, as we do, that from the undisputed evidence in the case at bar there could be only one reasonable inference concerning the conduct of the driver of plaintiff’s van, namely that his negligence directly contributed to the accident in question, we hold that the plaintiff was not entitled to recover. The judgment of the trial court therefore is reversed, and judgment is entered here for the defendant.

Reversed and judgment here.


text:
    United States Printing Company, Appellee, v. George W. Linn Company and J. M. Miller, Appellants.
    Gen. No. 16,482.
    1. Variance—when not material. If there is no substantial difference between the instrument pleaded and that offered in evidence a material variance does not appear.
    2. Suretyship—when extension of time of payment does not release. If the extension granted by the creditor to the debtor is predicated upon no valid consideration, it is not binding as between the parties and will not operate to discharge a surety.
    3. Amendments and jeofails—how insufficient ad damnum owred. If' the verdict exceeded the ad damnum an amendment of the ad damnum before judgment cures the irregularity.
    Action of debt. Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Fred N. Keeler, for appellant.
    Lefkow & Levey, for appellee; William Friedman, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action on an appeal bond signed by appellants, which was tried by the court which entered judgment for the appellee.

The errors urged in argument by appellee are, first, that the' trial court should have entered judgment for the defendant, Miller, for want of replications to certain pleas filed by him to the declaration. An inspection of the record shows proper replications to have been duly filed.

Another error suggested is that the appeal bond was improperly admitted in evidence, because of. a variance between the bond as described in the declaration and the document offered in evidence. An examination of the declaration and the bond admitted in evidence discloses no such substantial difference as to amount to a variance.

Ittis also argued that the defendant, Miller, was releaséd as surety on the bond by reason of an extension agreement entered into between the plaintiff and the defendant, George W. Linn Company. This agreement was in writing and introduced in evidence. By it the plaintiff undertook to extend the time for the payment of the judgment it had obtained against the Linn Company. The agreement does not purport to have been made for a consideration, and there is no evidence that it was so made. Therefore it was invalid and not binding upon the parties thereto, and it follows that it was not sufficient to release Miller. In Harrison v. Thackaberry, 154 Ill. App. 246 (250), the court said: “To release a surety the extension of time must be upon a new and valid consideration; it is essential that the agreement be such that neither the debtor can compel the creditor to accept the payment of the debt, nor can the creditor enforce payment before the agreed time has expired; the contract must be mutual.” To the same effect are English v. Landon, 181 Ill. 614, 620; Moyses v. Schendorf, 238 Ill. 232, 236; Crossman v. Wohlleben, 90 Ill. 537; King v. Griggs, 116 Ill. App. 132; Higgins v. McPherson, 118 Ill. App. 464.

It is said that there is no evidence of any default in the payment of the judgment mentioned in the bond, but the record shows that the witness, Friedman, so testified.

It is stated that the judgment exceeds the amount of the ad damnum. It appears that upon motion the court granted leave to increase the ad damnum to $500, and the judgment was for $487.62. There seems to be no force in this point.

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.


text:
    Jennie Brennan, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,519.
    1. Contributory negligence—walking upon sidewalk. A person walking upon a - sidewalk is not bound constantly to keep his eyes fastened upon the ground, and to fall in a hole in a sidewalk is not contributory negligence as a matter of law, but the question as a general rule is one which is to be determined by the jury from a consideration of all the facts and circumstances in evidence.
    2. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott,'Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Edward J. Brundage and John R. Caverly, for appellant; Edward C. Fitch, of counsel.
    George E. Gorman and Richard J. Finn, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Jennie Brennan, hereinafter called plaintiff, recovered a verdict and judgment against the city of Chicago for $5,000 in an action brought by her to recover damages for injuries which she claims to have received by falling through a public sidewalk on the east side of Halsted street, between 33rd place and 34th street, in Chicago, on the evening of July 27,1901'.

This case has been tried three times. On the first trial plaintiff was awarded $4,500; upon the second trial the jury disagreed; and we are asked to reverse the judgment rendered in the third trial, upon the grounds that appellee was guilty of contributory negligence, and that the verdict and judgment are excessive and the result of sympathy and prejudice.

It is not disputed that at the place in question there was a hole in the wooden sidewalk about two feet in width and fifteen feet in length, caused apparently by the absence of two boards in the walk. This condition had existed for two or three months. The plaintiff was not aware of this condition, as she had not passed over this walk for some months before the time of the accident.

There is considerable variance in the testimony of witnesses as to the time of the accident, some placing it as early as 7:30 P. M., others around 8:00 o ’clock, while plaintiff testifies that it was close to 9:00 o’clock. The official records show that on that evening the sun set at 7:25. Witnesses testified that it was dark. One witness, a police officer, states: “It was dusk, and I could see people moving about. I think the gas lights were lit, but I am not sure.” Plaintiff testified: “I could not see very far ahead, as it was dark, but I could see about so far” (indicating about 15 or 16 feet). She further testified that just before the accident she was looking at a street car passing on Halsted street. She says: ‘ The motorman was ringing the bell and I looked out at the street car and I seen a boy running across, and I looked again at the street car and turned on my way, and I then fell through the hole.” This is the only evidence as to the occurrence itself.

It is argued that the conduct of the plaintiff in failing to see the hole constitutes contributory negligence, and many cases are cited, most of which are decisions of courts in other states. We are inclined, however, to follow the decisions of our courts, which seem to control this case. In City of Chicago v. Babcock, 143 Ill. 358 (363), the court said:

“A person passing along a sidewalk in a city is required to use ordinary and reasonable care and diligence to avoid danger, but what is such ordinary and reasonable care depends upon the circumstances of each' particular case, and is a question of fact for the jury. A pedestrian upon such sidewalk may ordinarily assume that the sidewalk is in a reasonably safe condition for travel. To hold that such person is absolutely bound to keep his or her eyes constantly fixed on the sidewalk in a search for possible holes or other defects, would be to establish a manifestly unreasonable and wholly impracticable rule.”

To the same effect are the City of Chicago v. Fitzgerald, 75 Ill. App. 174; Campbell v. City of Chicago, 100 id. 358; City of McLeansboro v. Trammell, 109 id. 524; Village of Wilmette v. Brachle, 110 id. 356; City of Streator v. Chrisman, 182 Ill. 215; City of Spring Valley v. G-avin, id. 232; City of Mattoon v. Faller, 217 Ill. 273. These cases are conclusive of the proposition that the question of contributory negligence of the plaintiff was for the jury to determine, and we cannot say in this case that their verdict was contrary to the weight of the evidence.

We have more difficulty in arriving at a clear understanding of the nature and extent of plaintiff’s injuries. Plaintiff was a married woman, thirty-eight years of age at the time of the accident, and had given birth to five children before that time, with no particular trouble in childbirths. Her family physician, Dr. Reilly, who examined her immediately after the accident, testifies that he found her sitting in a chair, fully dressed except for the shoe and stocking of the right foot and leg; that plaintiff complained of nothing but her leg; that he noticed no other unusual condition about her, and told her to give the limb rest and quiet and she would be all right in a few days; and that he did not go back the second day because he did not consider it necessary. He further testifies that prior to the accident he had often called to attend plaintiff for asthmatic bronchitis and for paroxysms, and described her symptoms. Plaintiff positively denies that Dr. Reilly ever attended her for any complaint except childbirth. She testifies that her health before the accident was good; that she always did her own housework and had no one to help her; that she had no trouble with her heart or difficulty in breathing, or any weak spells before the accident. During the night of the accident she testifies to having suffered great pain in her toe, knee and side; had several weak spells during the night and spit up some blood; she was confined to her bed for seven weeks, and suffered great pain. The day following the accident she was attended by another physician and also by a nurse, the nurse attending her for about three months. For about a year after the accident she was afflicted more or less with fainting spells and pain around the heart. There is evidence tending to show that while confined to her bed she developed an inflammation of the lining of the lungs; that the left lung became congested and inflamed, which gave rise to considerable fever; that she had more or, less trouble in breathing; that this was followed by inflammation of the pericardium, involving the heart muscles, and her heart afterwards became weaker.

Dr. Biss, the physician called in the day after the accident, testifies that he found on examination a bruised and swollen condition of the right knee and toe, some bruises across the back on the right side, just through the region of the heart, also a fracture of the fifth and sixth ribs; that plaintiff developed pleuro pneumonia, followed by inflammation of the pericardium involving the heart muscles; that this was followed by attacks of difficulty in breathing; that he treated her more or less for a few years; that during the first year after the accident she had difficulty in breathing and complained of pain in her chest in the region of the heart. A year or two afterwards she was laid up with hypostatic pneumonia, due to a congestion of the lower portion of the lungs by reason of a weak heart. The heart gradually became dilated and distended. He further testified that she had a lesion of the “mitral valve of the heart,” which condition of the heart is permanent and incurable.

It would serve no useful purpose to recite the testimony of many other witnesses, some of whom testified as medical experts.

It is earnestly contended that from the condition in which plaintiff was found in the hole of the sidewalk it was impossible for her to have received the fractured ribs at that time; but this does not seem to us to have been physically impossible, and the surrounding circumstances and resultant conditions suggest a reasonably clear inference that these injuries were caused by the accident.

It seems equally reasonable to infer from the evidence that her present condition might have resulted directly from the injuries received at the time of the accident. There is some evidence suggesting that her physical condition prior to the accident might have brought about her present condition, but we are unable to conclude from the entire record before us that this is the fact. In view of what is apparently admitted to be her present condition, and the absence of evidence of sufficient weight to overcome the inference that this condition is the result of the accident; and in view of the fact that the jury and the court below saw and heard the witnesses who testified for the city touching plaintiff’s condition of health prior to and subsequent to the accident, we are not prepared to say that the opinion of the jury as to the proper compensation for such injuries is not justified. We do not believe that the finding of the jury on this point should be disturbed unless it clearly and manifestly appears that the amount awarded is excessive.

Concluding, as we do, that the jury’s finding as to the negligence of the defendant and the exercise of due care by the plaintiff is warranted by the evidence, and that we cannot say that the amount awarded in plaintiff’s favor is excessive, the judgment will be affirmed.

Affirmed.


text:
    John R. McShane, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,530.
    1. Negligence—operation of traction oar. Held, under the evidence, that it was for the jury to determine whether or not with the platform crowded and the passengers placed as they were the car was negligently operated in that it ran at such an unusually high rate of speed as to cause it to lurch and sway from side to side in an unusual manner, and that, under the evidence, the verdict of the jury finding negligence should not be disturbed.
    2. Contributory negligence—riding upon platform of crowded oar. Held, that it was a question of fact for the jury to determine whether the conduct of the plaintiff, who was riding upon a platform of a crowded traction car, in loosening his right hand from the hand rail and buttoning up his coat while the car was moving, was such a want of due care on his part for his own safety as amounted to negligence which contributed to the accident and that under the evidence the verdict of the jury in the negative, should not be disturbed.
    Action in case. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 9, 1912.
    Rehearing denied May 23, 1912.

      John E. Kehoe and Watson J. Ferry, for appellant.
    James C. McShane, for appellee.
   Mr. Justice McSurely

delivered the opinion of the court.

Thomas Caution, hereinafter called plaintiff, brought suit against the Chicago City Railway Company, hereinafter called defendant, to recover damages for personal injuries sustained on March 8, 1906, by being thrown from one of the defendant’s cars on which he was a passenger, as it was. traveling south in Clark street, Chicago. The evidence tended to show that he was seriously injured, losing a leg and receiving a fractured skull, together with other injuries. The jury found in his favor and awarded him damages in the amount of $6,000, for which judgment was entered.

The only claim made in this court upon which reversal is asked is that the verdict was against the manifest weight of the evidence. The original declaration alleges among other things that the defendant negligently permitted its car and the forward platform thereof to become over-crowded with passengers, thus compelling plaintiff to stand upon the forward platform, and that the defendant so negligently, carelessly and improperly “ran, managed and operated said car that said car then and there violently lurched and swayed forward and backward and from side to side, and as a direct result and in consequence of the defendant so permitting the said car and the front platform of the same to become, be and remain overcrowded with passengers, as aforesaid, and of the said negligent and improper manner in which it so operated said car certain of the other passengers then upon said front platform of said car were thereby then and there thrown with such great force and violence against the plaintiff that he, the plaintiff, ah though he alleges he was exercising ordinary care for his own safety, was thereby then and there thrown from said car against said wall, and he thereby then and there fell down between said car and said wall and under said car.” An additional count was after-wards filed, alleging in substance that because of the conditions above described plaintiff was brought in contact with a wall which ran alongside the track and was knocked or thrown from the car to the ground.

The plaintiff was a passenger on a Halsted street car which ran southward from Washington street in Clark street. At Twelfth street there is a viaduct, and Clark street approaches it from north and south on an incline. ' Thirteenth street is not open across Clark street. Qn the west side of Clark street, and beginning from a point close to where Thirteenth street would be, and extending south about three blocks, is a brick wall, which is four feet three inches from the middle of the west rail of defendant’s west track. The gauge of the tracks is four feet eight and a half inches. The outer edge of the car involved in the accident extends beyond the rail twenty-one inches, and there are handle bars at each end.

The accident occurred in the neighborhood of six o’clock P. M., at what was commonly known as the rush hour. Plaintiff was a laborer, thirty-seven years of age at the time of the accident, about five feet eight inches in height, weighing 210 pounds. Upon the evening in question he went to the southwest corner of Polk and Clark streets, which is some distance north of the place of the accident, with the intention of boarding a car upon which to go to his home. Two crowded southbound cars passed him without stopping. A couple of minutes after the last of those had gone another came, and as it approached he signaled its motorman to stop, and it came to a standstill on the southwest corner with its front end close to where he was standing. The platform was crowded and two men were standing on the step. Plaintiff took hold of the front hand rail close to the vestibule and stepped with his left foot upon the step, close to its forward end. He says: “I could not get no room for my right foot and I put my right foot close to the end girder that goes around the front of the car, still holding to the hand rail with both my hands. ’ ’ Apparently when between Fourteenth and Fifteenth streets he loosened his right hand from the hand rail for the purpose of buttoning his overcoat, and while in this position, still holding to the hand rail with his left hand, he says, “the car gave some kind of a sudden lurch and the people came against me and threw me off.”

The real issue in the case, as we view it, is whether or not, with the platform crowded and the passengers placed as they were, the car was negligently operated in that it ran at such an unusually high rate of speed as to cause it to lurch and sway from side to side in an unusual manner.

We have read with great care, the abstract of record and briefs and arguments of counsel. The points brought out by testimony touching the alleged negligence of defendant were, (1) the crowded condition of the car; (2) the rate of speed; (3) the lurdhing or swaying of the car.

Without undertaking to give the names of witnesses or their testimony, it is sufficient to say that in our opinion it was proven by the greater weight of the evidence that the car and front platform were crowded. While there is diversity of testimony concerning the speed of the car, yet several witnesses testified that it was going at full speed. One witness said it ran “extremely fast; twenty miles or more; ’ ’ another that it was going “as fast as the car could go;” and such a considerable body of testimony as to warrant the jury in concluding that the car was going at an excessive and unusual rate of speed under the circumstances. The same witnesses testifying as to speed testified as to the swaying or lurching of the car, one witness stating that “it was going so fast that it was swaying. The people on the platform were getting bumped into one another by the car. ’ ’ Another witness says it was “going at such a high rate of speed the car seemed to be lurching and swaying from side to side. ’ ’ Other similar statements might be quoted, from all of which we conclude that the jury was justified in finding that plaintiff had proved by the greater weight of the evidence the allegations of his declaration touching the negligent conduct of the defendant.

It is said, however, that the conduct of the plaintiff in loosening.his right hand from the hand rail and buttoning his coat while the car was moving was such a want of due care on his part for his own safety as amounted to negligence which contributed to the accident. Whether or not this was true was properly a question for the jury. While it is true that the plaintiff in standing where he did voluntarily accepted the situation, and that it was his duty to observe for his own safety the degree of care a person of ordinary prudence would observe while riding in such a place under such conditions, yet this court is unable to say from a consideration of the situation and all the surrounding circumstances that the mere act alone of removing one hand temporarily from the hand rail constituted a lack of due care for his own safety. The evidence tends to show that the greater part of the plaintiff’s body was inside and behind the front of the vestibule, and we can readily conceive that" with his center of gravity well into the car, even though not holding on with both hands, he would not have been thrown off the car if it were running in its usual and customary manner.

There is considerable force in the suggestion that when plaintiff’s overcoat flew open he might, in prudence, have feared it would strike or catch against the wall and thereby pull him from the car, so that he did the natural and proper thing in attempting to button the coat in order to prevent this possibility. However this may be, it was for the jury to determine, and we cannot say that their conclusion that plaintiff was not negligent is contrary to the weight of the evidence.

Therefore the judgment will be affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Samuel K. Markman, Appellee, v. Charles F. Forster, Appellant.
    Gen. No. 16,405.

      Evidence—what prima facie, of license to practice law. If a person testify that he has practiced law in the particular territory in question for a period of years this establishes prima facie that he was duly licensed to practice.
    Appeal from the County Court of Cook county; the Hon. Frank G. Plain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 15, 1912.
    John Massen, for appellant.
    Cooney & Verhoeven, for appellee; Philip S. Brown, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the County Court for $475, for legal professional services and this appeal followed.

Appellant resided in Oak Park and had some business or property interests in the village of Franklin Park, attention to which disclosed some apparent irregularities in the conduct of the municipal business. He sought to obtain certain information from the clerk of the village hoard and by inspection of the official records. The village clerk doubted the propriety of giving the information to appellant, or permitting appellant to inspect the official records, and sought the advice of appellee as to his duty in the premises. A conference was had in the city of Chicago at which there were present K. W. Pelsma, the village clerk, appellee, acting as his legal adviser, appellant and Robert E. Turney, acting as his legal adviser. Appellee advised the village clerk that appellant was entitled to the information he desired and was also entitled to examine the official records. A clear preponderance of the evidence tends to show that at the conference then held appellant desired to know what could be done to stop the existing abuses, and appellee, after conferring with Turney, suggested a line of procedure to be adopted; that Turney, owing to pressure of other business and his unfamiliarity with the questions involved, recommended that appellee he retained by appellant to make the necessary examination and conduct the litigation; that appellee signified his willingness to undertake the work if appellant would pay for his services; that appellant told appellee to go ahead and he would pay him; that appellee thereafter examined the records and ascertained the necessary facts, and prepared and filed two bills in equity,—one to enjoin the payment of certain warrants and one to enjoin the carrying out of a certain alleged illegal contract; that while Turney’s name appeared as of counsel in the cases, the actual work involved was performed by appellee; that appellee appeared in open court and argued certain motions in said cases before the chancellor, and that appellant was present in court on one or more such occasions; that appellant advanced certain necessary costs and expenses incurred in the prosecution of said cases.

We have no doubt, under the evidence, that appellant became liable to pay appellee his reasonable fees and charges for the services performed by him. The proceedings were instituted upon the initiation and for the benefit of appellant, and there is no plausible theory under the evidence upon which Pelsma, the village clerk, can be held liable to pay appellee for his services. Pelsma, in view of his relations to the municipal administration, appears to have been an unwilling party to the proceedings.

Appellee, when called as a witness, gave a detailed statement of the services performed by him and of the time necessarily occupied by him in performing the same. He further testified that his charge for his entire services was $690; that the customary, usual and reasonable fee for similar services of attorneys practicing their profession in Chicago would be $1,000.

John H. Rollins and Lucien E. Harding, attorneys practicing their profession in Cook county, in answer to hypothetical questions, which were fairly and substantially predicated upon the testimony of appellee, and also from an examination of some of the files in the suits involved, testified that the usual, customary and reasonable charge at the bar of Cook county for the professional services performed by appellee was from $700 to $800. Upon this question no countervailing evidence was offered on behalf of appellant, and the amount awarded by the jury is well within the range of the competent evidence in the record.

A reversal of the judgment is asked because appellee failed to make proof of his possession of a license to practice law in this State at the time he performed the services in question. Appellee testified that he was an attorney in the city of Chicago and had been a member of the bar for nine or ten years then last past. This constituted sufficient prima facie proof that he was duly licensed to practice law in this- State. Nat. Home B. & L. Ass’n. v. Fifer, 71 Ill. App. 295.

The instructions complained of are substantially accurate statements of the law.

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

Judgment affirmed.


text:
    A. F. Snow et al., Appellees, v. Anna Haberer et al., Appellants.
    Gen. No. 16,504.

      Foreclosure—when decree erroneous. Where two separate trust deeds covering two separate lots are sought to be foreclosed in the same proceeding a decree is erroneous which directs a sale of both lots for the payment of the entire amount due upon both notes. The debt evidenced by each note can only be satisfied out of the land described in the trust deed given to secure the same.
    Foreclosure. 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, 1910.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed May 15, 1912.
    George W. Brown, for appellant.
    Henry Pollenz, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court foreclosing two trust deeds executed by Anna Haberer and George J. Haberer, February 26, 1902. Said trust deeds convey respectively lot 1 in block 15 and lot 2 in block 15 in Montrose in Cook county, and each was given to secure one note for $1,500, payable on or before five years after date to the order of the makers and by them endorsed. The decree finds the total amount due on both of said notes, for principal, interest and solicitor’s fees, to be $3,749.70, and directs that upon default in the payment of said amount the master sell the premises described in both trust deeds "and apply the proceeds of such sale to the payment of said amount, together with costs.

The answer of the defendants to the bill of complaint admits the execution of the trust deeds and notes, but denies that the same or either of them were ever delivered by the makers to the complainant, Charles H. Commons, and avers that the same always remained in the possession of the makers until they were taken by Commons from the private box of the defendant George J. Haberer; that no consideration was ever given for said trust deeds and notes; that no interest has been paid on said notes, and that they never became binding obligations. The defendants also filed their cross bill, wherein they allege the same matters set forth in their answer, and pray that said trust deeds and notes be delivered up and cancelled. After issue joined upon the bill and .cross-bill the cause was referred to a master to take the testimony, and report the same, together with his conclusions of law and fact. Objections and exceptions to the report filed by the master were overruled and the decree entered is in substantial accord with the master’s conclusions and recommendations.

The notes and trust deeds in question were executed by the appellants, Anna and George J. Haberer, February 26, 1902, and recorded February 28, 1902, and were retained by Haberer until they came into the possession of appellee, Charles H.. Commons. At that time and prior thereto Haberer was engaged in the real estate business with Charles L. Delfosse and A. F. Snow, and Commons was employed as bookkeeper. Shortly thereafter Delfosse withdrew from the business and Commons was admitted as a partner. The business was then conducted under the firm name of Haberer, Snow & Co. Haberer was heavily involved financially and the trust deeds and notes were executed by himself and wife to enable him to realize money to be applied in payment of his debts.

The evidence introduced on behalf of appellee, Commons, tends to show that he advanced money to Haberer from time to time from February 2, 1902, until December 15, 1905, when Haberer’s indebtedness to him aggregated $4,337.78; that there was then some controversy between them as to the amount due, which was finally settled by Haberer’s proposal to pay $3,200, and Commons’ acceptance of such proposal; that Haberer then delivered the trust deeds and notes in question to Commons in payment of the debt.

Haberer sought to show that he had the trust deeds and notes in his possession, in a tin box in the office vault, as late as September, 1906; that he never delivered the same to Commons, but that Commons wrongfully abstracted the same from the vault; that he was not indebted to Commons in any considerable sum; that Commons was financially unable to advance the amount of money claimed to be due him.

The evidence in the record is voluminous, and involves numerous items, as appears from an inspection of the checks, bills, notes and contracts offered, varying in amount from $3.10 to $600, paid by Commons to Haberer or for his use. If it be conceded that some of the items involved were improperly charged to Haberer, there still remain sufficient which are satisfactorily shown by the evidence to have been properly charged to him, to fully equal the amount of his indebtedness as claimed.

A consideration and discussion of each item involved would unduly extend this opinion. After diligent examination of the record we are unable to say that the findings of the master, approved by the chancellor, are clearly against the weight of the evidence.

Appellees are entitled tó a decree of foreclosure, as prayed in the bill, but the decree entered erroneously directs a sale of both lots for the payment of the entire amount due upon both notes. The trust deeds cover two separate lots, and the debt evidenced by each note can only be satisfied out of the land described in the trust deed given to secure the same. Blazey v. Delius, 74 Ill. 299; Brown v. Kennicott, 30 Ill. App. 89.

The decree is affirmed in part and reversed in part, and the cause is remanded with directions to enter a decree providing for the sale of each lot separately in satisfaction of the amount due upon the note secured by the trust deed covering the lot therein described. One half of the costs in this court will be taxed against appellants and one half against appellees.

Affirmed in part, reversed in part, and remanded with directions.


author: Mr. Justice Duncan

text:
    Salt Fork Coal Company, Plaintiff in Error, v. Eldridge Coal Company, Defendant in Error.
    Gen. No. 16,146.
    1. Contracts—when parol evidence competent. If the terms employed to designate the time when payment is to be made for merchandise to be delivered are ambiguous parol evidence is competent to enable the court and the jury, if the facts are disputed, to determine the meaning of the terms employed by the parties.
    2. Contracts—when repudiation not waived. Held, under the evidence, that the repudiation of the contract in question in this ease was a default which had not been waived and that immediately upon such repudiation a right of action and of recoupment accrued.
    3. Choses in action—effect of assignment. By the assignment of a chose in action the assignee is given the right to sue in the name of the assignor and to recover to the same extent as the assignor could, and no right of set-off can be maintained by the debtor as against the assignee that was not a valid and subsisting right of set-off against the assignor at the time the debtor received notice of the assignment, but such an assignment does not defeat the debtor’s right to performance by the assignor, and does not cut off the defense of recoupment predicated upon non-performance or defective performance. And advanced payments made by the debtor are to be allowed as a credit where they are distinguishable from mere loans and the right to discounts for payments made before accounts are due is not affected by the assignment.

      4. Measure oe damages—in action for failure to deliver coal. Seld, in this case, that the. correct measure of damages was the difference in the contract price which the vendee would have had to pay for all the coal it was entitled to receive under the contract after a date when the repudiation took place and the value of the same coal at the price for which it could have been purchased on the market on said date under a contract to deliver in the same manner as provided for in the contract repudiated.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910,
    Affirmed.
    Opinion filed May 15, 1912.
    Statement by the Court. June 5, 1908, Eldridge Coal Company, a Chicago corporation, submitted to Salt Fork Coal Company of Oakwood, Illinois, the following proposition, which was duly accepted by the latter company, to wit:
    “We propose to take from your mine on the Big Four Railway, in Vermillion County, Illinois, until April 1st, 1910, coal as follows:
    Three (3) cars of Mine Run per day at eighty cents (80c) per ton of 2,000 lbs. f. o. b. cars mines. * * *
    Mine weights to govern settlements which are to be made as usual and for the Mine Run one half of same to be paid each month in time for the mine payroll on the 10th and one-half in time for the mine payroll on the 25th.
    Tour acceptance of this as above will constitute a contract between us. Signed in duplicate.”
    After operating under said contract for a month or more a change was made in the contract, whereby the number of cars per day was increased from three to five, but in other respects the contract remained unchanged. September 16, 1908, the Salt Fork Coal Company, for a valuable consideration, assigned in writing to First National Bank of Danville, Illinois, all accounts, claims and demands of every kind and character, due or thereafter to become due from the Eldridge Coal Company to the Salt Fork Company under, said contract. September 21, 1908, the Eldr ridge Coal Company acknowledged to said bank the receipt of a duplicate copy of the said assignment, and stated that such assignment was entirely satisfactory to it. December 1, 1908, the Salt Fork Coal Company refused to ship any more coal on said contract, claiming that they could not do so by reason of financial embarrassments.
    The Eldridge Coal Company received the following shipments of mine run coal under said contracts, to wit:
    1908 Cars Pounds Value
    ‘June.................. 32 • 2,566,100 $ 1,026.44
    July.................. 70 5,619,300 2,247.72
    August................ 96 7,837,400 3,134.96
    September.............139 10,988,700 4,395.48
    October...............135 11,408,200 4,563.28
    November............. 92 7,382,400 2,952.96
    December ............. 7 549,800 219.92
    $18,540.76
    Payments were made for said coal by the Eldridge Coal Company as follows:
    1908
    June, to Salt Fork Coal Co.................$ 1,000.00
    July, to Salt Fork Coal Co................. 1,300.00
    August, to Salt Fork Coal Co.............. 3,120.00
    September, to Salt Fork Coal Co........... 1,837.50
    October, to First National Bank of Danville.. 5,000.00
    November, to First National Bank of Dan-ville .................................. 2,700.00
    $14,957.50

      January 19,1909, the said bank, as assignee, brought suit in the name of the Salt Fork Coal Company against the Eldridge Coal Company to recover the amount unpaid for coal delivered under the contract. The Eldridge Coal Company pleaded the general issue and notice of set-off or recoupment, averring that it had performed its contract without^ default; that the Salt Fork Coal Company did not perform its contract, but was short in delivery of coal 123 cars up to December, and had shipped no coal since December, to damage of defendant in the sum of $8,393.60.
    The evidence also disclosed that the cars delivered under the contract averaged about forty tons of coal to the car, and that up to November 30, 1908, the Salt Fork Coal Company was short in its delivery 122 cars, and from November 30, 1908, to the unexpired term of the contract, it was short in delivery 2,005 cars; that the market price of coal in June, 1908, was 90 to 95 cents f. o. b. cars mines, and remained about the same for July, August, September, October and November, 1908; that there was a price in the open market for the first ten days of December, 1908, for mine run coal delivered at the mine in Vermillion County, Illinois, for future delivery, at the rate of five cars a day to April 1,1910, and that the market price for coal on such a contract at those times was 93 to 95 cents per ton f. o. b. ears mine; and that the last shipment of coal under said contract was made on November 30, 1908.
    At the close of all the evidence in a jury trial the court on motion of the Eldridge Coal Company directed a verdict in its favor and entered judgment accordingly against the said bank, the plaintiff in error here.
    Adams, Bobb & Adams, for plaintiff in error.
    Sheriff, Dent, Dobyns & Freeman for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiff in error insists that by the terms of the contract the coal received for the first half of every month of the contract was to be. paid for on the 25th of the month in which it was' received, and that the coal received for the second half of any month was to be paid for on the 10th of the following month, while the claim of the defendant in error is that such coal should be paid for respectively on the 10th and 25th of the month following the month in which it was received. The contract in this regard was ambiguous- and it was proper for the court to admit parol evidence to determine the meaning of the parties in the use of the terms, “and for mine run one-half of same to be paid each month in time for the mine pay roll on the 10th, and one-half in time for the mine pay roll on the 25th.” If the terms Used by the parties to a contract are ambiguous in meaning, and if at the time the contract is being made particular words are agreed upon as having a particular meaning, then parol evidence is admissible to show the. true intent and undertaking of the -parties, and for such purpose such agreement is competent evidence. Evans v. Ross C. Co., 142 Ill. App. 375; Street v. Chicago W. Co., 157 Ill. 605.

The trial court apparently adopted defendant in error’s construction of the contract, and while it-was a question for the jury, upon all the evidence properly bearing on that question, to determine the true intent of the parties as to when the payments for coal delivered should fall due, still, as we view this case, the question of when payments properly became due under the contract is not material or controlling.

At the date of the assignment of the account or claim to the plaintiff in error, September 16th, there was nothing due from defendant in error on the contract. At that time no money for coal shipped in September was due until September 25th, even under the contention of plaintiff in error. The total value of all coal shipped up to and including the last day of August was $6,409.12, and the total of the payments by defendant in error to Salt Fork Coal Company prior to September 16th was $7,357.50, which was $848.38 in excess of the value of all coal delivered prior to September 1st. Prior to December 1st defendant in error had paid to the bank, plaintiff in error, as assignee, $7,700, all of which had become due since the assignment of the account. On November 25th there was due from defendant in error under plaintiff in error’s construction of the contract the value of all coal shipped prior to the second half of November, less the whole amount paid by defendant in error, or $1,270.74, and by defendant in error’s construction there was due $860.36 less than that sum, or $410.38. The account remained in the same condition on December 1st when the Salt Fork Coal Company made default on its contract. On the day this suit was brought the value of the coal delivered under the contract, less payments made thereon, was $3,583.26. The damages to defendant in error by reason of the failure of the Salt Fork Coal Company to continue the delivery of coal under the contract from December 1, 1908, to April 1, 1910, as shown by the uncontroverted evidence in the record, exceeded $10,000. If the defendant in error can legally recoup its damages as against the plaintiff in error, it is clear that the judgment of the lower court must be affirmed.

We recognize the claims of plaintiff in error that the assignment in question is valid, and that by the assignment it was given the right to sue in the name of its assignor and recover to the same extent as its assignor could, and that no right of set-off could be maintained by defendant in error as against the assignee that was not a valid and subsisting right of set-off against the assignor at the time defendant in error received notice of such assignment. That is to say, the defendant in error could do nothing after tlie assignment to the prejudice of the assignee by way of buying up a claim against the assignor for the purpose of set-off, and could not bargain with or pay to the assignor any sum on the claim to the prejudice of the assignee.

We are not prepared to hold, however, that plaintiff in error, as assignee, could not be defeated in recoupment by any action of its assignor through which it claimed and upon whose performance of the contract it had necessarily to depend for any right of recovery at all. The amount that should become due the bank, if any, depended upon whether or not the assignor continued to perform its contract. The assignment, although assented to by defendant in error, did not vest the legal title in the bank to any sum due or to become due on the contract from defendant in error, but simply the equitable right to have whatever sum or sums that might be legally recoverable on the contract in the name of Salt Fork Coal Co. Such assignment and consent cannot certainly be held to take away from defendant in error the right to insist on the performance of the contract by the assignor, nor its. right to defeat any suit upon the contract in case the Salt Fork Coal Company should not perform its contract. Performance of the contract, or a bona fide offer to perform it, is the first prerequisite to a recovery thereon by either party thereto, and the bank took its assignment of the account in question with full notice thereof, and with full notice of defendant in error’s right to recoup in case it suffered damages by reason of a breach by the Salt Fork Coal Company. The right of recoupment is in the nature of a lien, or of a right of a party who has performed his contract to withhold the benefits thereof earned by the defaulting party, until his damages for the breach of the contract are made good, and such right is recognized in this State in actions at law. Such right ought, it seems to us, to be superior to the lien, or right of an assignee to collect the benefits of the contract earned by his defaulting assignor, and particularly so when nothing is due on the contract when the fruits thereof are assigned, and when the breach and damage occur before the assignee sues. Suppose instead of the breach here assigned as recoupment the Salt Fork Coal Company had continued through December and for the remaining time of the contract to furnish only one car a day instead of five cars as contracted, or had continued to furnish one car a week, or one car a month, to the damage to defendant in error of thirteen cents for every ton of coal not delivered as per contract, is it not clear that the right of defendant in error to recoup its damages ought to prevail even against this assignee suing for the one car per day, or per week or month, so delivered? Had a suit been brought by the bank, as assignee, for the sum due on the contract before the breach thereof, then a different question would arise, but the whole contention of the bank is answered now by the fact that at the time this suit was brought there was nothing legally due or recoverable, because of the fact that the moment the breach of the contract in question occurred, the right of recoupment became available to the defendant in error. In availing itself of the right of recoupment the defendant in error was guilty of no wrong, but was simply asserting its rights under the contract that it had never forfeited by any act or agreement. We are supported in the foregoing conclusions by Am. Bridge Co. v. City of Boston, 202 Mass. 374; Rockwell v. Daniels, 4 Wis. 452; Government of Newfoundland v. Newfoundland Ry. Co., 13 Appeal Cases (L. R.) 199; Stilwell v. Chappell, 30 Ind. 72.

It lis also insisted by plaintiff in error that certain advance payments in the form of notes made by the defendant in error to the Salt Fork Coal Company prior to the assignment of the account canitot be credited to the defendant in error, although the evidence shows that they were accepted by the Salt Fork Coal Company as advance payments. Also, that the agreement between the two coal companies that the defendant in error was to be allowed on said notes or advance payments five per cent, discount is void because in violation of the statute against usury. These notes were accepted by the Salt Fork Coal Company as advance payments and immediately endorsed by it and cashed, long before the assignment, and were receipted for as payments. They were so given at the request of the Salt Fork Coal Company in order that it might meet its pay rolls promptly, which it could not do if it waited for the payments for coal until they were due. We regard the transactions as legal, and that plaintiff in error is bound by the transactions. The five per cent, discount .allowed on the face of the notes amounted in substance, to allowing a five per cent, discount on the price of the coal for cash payments made before the accounts were due. Such discounts are commonly made by the mercantile world in all departments where articles of commerce are sold and delivered on account. We regard the transactions as advance payments simply and not as loans.

The contention of plaintiff in error that the defendant in error was also in default on its contract, and for that reason cannot recoup its damages, is not supported by the evidence. The record shows clearly that the defendant in error had been paying in advance for all coal delivered under the contract, and the discounts allowed on the payments to the coal company as advance payments show clearly that it so regarded the payments. While it is true that the defendant in error owed a small balance when the Salt Fork. Coal Company refused to further comply with its contract, yet, this was not the fault of the defendant in error, and the payments were not made in full, because of the fact that the Salt Fork Coal Co. had failed to furnish the weights of the coal as it agreed to do, owing to the fact that its mine scales were out of commission, and it could not weigh the coal at the mine. This circumstance led to an agreement between the coal companies that they were to settle by the weights of the defendant in error’s customers, to whom the coal was generally shipped direct from the mine, and the settlements to be made when the weights were furnished to defendant in error by its customers. Approximate payments were accordingly made by defendant in error before or when the coal was shipped, and full and final payments by agreement were to be made when the weights should be thus obtained.

The evidence in this case clearly shows that the weights for the coal not paid for on December 1st had not been furnished to the defendant in error, and that both the parties to the contract at all times prior to that date regarded and treated the contract as a subsisting and binding contract, and that neither of them regarded the other as in default. Although it does appear that both of the parties had not literally complied with the original contract as written, yet, we do not think either party to the contract or the plaintiff in error is legally in a position to insist that there was a default prior to December 1st. The repudiation of the contract, however, was a default that was not waived, and a right of action and of recoupment immediately thereafter accrued to defendant in error. Finch & Co. v. New O. W. C. Co., 156 Ill. App. 589; Staley v. Lyman, 151 Ill. App. 137.

We are also of the opinion that the court followed the correct rule as to the measure of defendant in error’s damages; that is, the difference in the contract price it would have had to pay for all the coal it was entitled to receive under the contract after December 1st, and the value of the same coal at the price for which it could have been purchased on the market, December 1st, 1908, under a contract to deliver the same at the rate of five cars per day for the remainder of-the contract. • Defendant in error had the right to be restored simply to its original rights under the broken contract. The court adopted the only proper method of determining the value of such a contract, or of the coal sold under it, i. e., what it would then sell for on the market, for delivery as contracted. Staley v. Lyman, supra; Follansbee v. Adams, 86 Ill. 13.

Finding no reversible error in the record, the judgment of the court is affirmed.

Judgment affirmed.


text:
    Thomas O’Malley, Defendant in Error, v. Carl A. Marquardt and Franz Brunke, Plaintiffs in Error.
    Gen. No. 16,344.
    1. Negligence—obligation to guard excavation. The law does not impose upon an owner or one in possession and control of real property any duty towards strangers upon adjoining property to guard the excavation upon such property not adjacent to the highway unless they come upon the premises by his invitation.
    2. Negligence—endangering private walk. An owner of premises has a right to establish a walk or private way over his premises and his rights to do so and to travel over the same without being endangered by pit falls and obstructions are as inviolate as the right of the public to travel the public highway without encountering such dangers. If other persons are given the right by the owner to travel a private way they cannot be lawfully endangered thereon by pitfalls or obstructions by the owner of the way or by strangers.
    3. Contributory negligence—when cannot be imputed to minor. A child of the age of 4 years cannot be guilty of contributory negligence.
    4. Municipal Court—when jury not required. If neither party to an action of the 4th class demands a jury trial nor pays or offers to pay the jury fee, a jury need not be called, and this is true in a ease where the plaintiff is a minor suing by his nest friend, there being no evidence or claim that such minor was the victim of any fraud or hardship; and the failure of the court to call a jury cannot be complained of by an adult defendant who has failed to exercise his option to demand, pay for and have a jury trial.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed May 15, 1912.
    F. J. Canty, for plaintiffs in error; P. L. McArdle and R. P. Garrett, of counsel.
    M. E. Ames, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

A judgment for personal injuries in the sum of $100 was rendered in this action of the fourth class of Thomas E. O’Malley, by his next friend, Elizabeth O’Malley, against Carl A. Marquardt and Franz Brunke, plaintiffs in error, in a trial by the court without a jury.

The bill of particulars alleged that said minor sustained his injuries by falling into an excavation made and left unguarded by plaintiffs in error on the east side of, and adjoining, the premises on which the child resided with his parents on the north side of Garfield avenue, Chicago, and claimed damages for said injuries and for medical expenses in being cured thereof.

The evidence tended to show that the defendant in error, with an older brother, left the said house of his parents on the morning of May 17, 1909, and went out into the back yard adjoining the house and onto a private sidewalk running from said street on his parent’s said property and on a line between the said two properties; that within a very short time he fell into the excavation which came right up to and along and partially under said sidewalk, and was of the depth of from three to six feet, about fifty feet wide and sixty feet long, and situated fourteen feet back from the street; that the east property and excavation was the property of one Gustav Dietz, with whom the plaintiffs in error had contracted to make the excavation for a certain contract price; that plaintiffs in error sub-let'the contract to one John Karthouser, who made the excavation for a certain price, having full charge of the work and the men who did the work. There is a serious conflict in the evidence as to whether or not the sub-contractor had finished the excavation and turned the premises over to the plaintiffs in error before the child was injured. We think, however, the court was warranted in finding that at the time tne child was injured the excavation was completed and in the possession and charge of the plaintiffs in error, who were at that time lining up and preparing the excavation for the reception of the brick work for the building they had contracted there to build.

The general rule is as contended for by defendant in error that the law does not impose upon an owner or one in possession and control of real property any duty toward strangers upon adjoining premises to guard an excavation upon such property not adjacent to the highway, unless they come upon the premises at his invitation. 1 Thompson on Negligence, Sec. 1228; Cordon v. Schween, 117 N. Y. Supp., 191.

It is also true that the premises in question were shown to be guarded on the side next to Garfield avenue; but they were not guarded next to the private walk of defendant in error’s parents, by and over a portion of which excavation, the walk ran. The evidence showed that this walk way was protected by a wire fence along the east side of the walk way just before the excavation was made, but that the same was removed at the time the child was injured. Had this fence remained, it would no doubt have been a good barrier against the dangers of falling from the walk into the excavation.

An owner of premises has a right to establish a walk or travel way over his premises and his rights to do so and to travel the same without being endangered by pit falls and obstructions are as inviolate as the right of the public to travel a public highway without encountering such dangers. If other persons are given the right by the owner to travel the private way, they cannot be endangered thereon by pitfalls or obstructions by the owner of the way or by strangers. 1 Thompson on Negligence, Secs. 1012, 1013 and 1014; Clarke v. R. I. Electric L. Co., 16 R. I. 463; Corby v. Hill, 93 Eng. Com. L. Rep., 554 (4 Com. B. Rep., N. S.).

No negligence can be attributed to defendant in error who was only four years old. The court was warranted in finding that the private walk way on the home premises of the minor was endangered by the excavation being negligently maintained by the plaintiffs in error at the time of the injury and after possession of same had been turned over to them by the sub-contractor, and that defendant in error was injured by reason thereof. Plaintiffs in error were chargeable with notice of the existence of the private sidewalk and the conditions there before letting the contract to excavate and after obtaining possession of the same. The evidence is not as clear and satisfactory as we might wish to find it that the child fell from the walk into the excavation; but the fact that the mother testified that the child had a litle wagon and that he and his brother, six years old, came along the walk; that they were not gone over ten minutes from the house when the child fell, together with the other facts that the child injured and crying immediately was handed out of the excavation beside the walk by a workman in the excavation was sufficient evidence in the first instance to make this proof, and throw the burden upon the plaintiffs in error to rebut that proof, if they could, by the positive facts that were within the knowledge of themselves or their servants. While it was shown by her answers that she did not see the child on the walk or see it fall, it does not appear how she got the information, and we are not warranted in holding that the information to her was hearsay. Her sense of hearing might warrant her in the statements she made.

Sections 30 and 56 of the Municipal Court Act, in substance, provide that unless the plaintiff, at the time he commences his suit, or the defendant, at the time he enters his appearance, in an action of the fourth class, shall file with the Clerk a demand in writing of a trial by jury and pay the sum of six dollars, the trial shall be by the court without a jury. These provisions have been sustained by the Supreme Court as constitutional and binding on litigants. Williams v. Gottschalk, 231 Ill. 175; Morrison Hotel Co. v. Kirsner, 245 Ill. 431.

Neither party to this suit at any time demanded a jury trial in his own right, nor paid or offered to pay therefor the jury fee. The plaintiffs in error merely objected to the court trying the cause without a jury on the grounds that the minor, or his next friend for him, could not be held to waive his constitutional right of trial by jury, and would not, therefore, be bound by this judgment, and the plaintiffs in error would be thereby endangered by a second suit for the same cause of action. We do not think this position is tenable. There is no evidence or claim that the minor is a victim of any fraud or hardship in the rendering of this judgment. The damages awarded appear to be fair and reasonable, the child apparently only sustaining slight damages by abrasions and scratches on the side of his face and neck.

No reason is perceived why a minor may not be required to demand and pay for a jury the same as an adult, where no affidavit is filed to prosecute as a poor person. Besides, plaintiffs in error had the option to demand and pay for, and have, a jury trial, if they so desired; and having refused to do so, we see no just reason for their complaint that the trial was by the court.

The judgment of the lower court is affirmed.

Judgment affirmed.