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    The Fuchs & Lang Manufacturing Company, Defendant in Error, v. R. J. Kittredge & Company, Plaintiff in Error.
    Gen. No. 14,303.
    1. Contracts—what deemed oral. A contract which is partly written and partly oral is in law an oral contract.
    2. Contracts—what deemed written. Held, that the correspondence set forth in this case was designed to and did in fact effectuate the making of an entire written contract for the purchase and sale of machinery.
    3. Contracts—law governing enforcement of written. All prior negotiations, letters and telegrams become merged in a written agreement subsequently formulated and signed; all extrinsic evidence of oral or written negotiations become incompetent, immaterial and irrelevant for the purpose of contradicting or modifying the written agreement.
    4. Contracts—what evidence competent to aid court in ascertaining meaning of particular words. Prior negotiations merged in a written contract of the parties may be inquired into to determine the meaning of particular words employed in such written contract.
    5. Sales—extent of implied warranty. Where a manufacturer sells his goods or wares and nothing is said about the quality, he is held to warrant them to be of a fair, ordinary quality, according to their appearance; to this rule there may be a qualification, as when the article is of such a character that ordinary skill cannot ordinarily produce a good article and success depends in a great measure upon chance.
    6. Sales—when warranty cannot be established by parol. Where an article is sold by formal written contract and the contract is silent on the subject of warranty, no warranty made at the same time or prior thereto can be shown since the writing is supposed to embody the entire contract; and for the same reason no additional warranty can he engrafted on the contract as written.
    7. Sales—when no implied warranty. When an article known and described under its patent or other trade name is ordered of a manufacturer, whether ordered for a particular purpose or not, if the known and described thing be actually supplied there is no warranty that it shall answer the particular purpose intended by the buyer.
    8. Depositions—when commissioner properly limits scope of examination of witness. A commissioner appointed to take depositions should limit the examination of the witness to the subject-matter of the order authorizing the taking of such depositions.
    9. Practice—when error in rulings upon propositions of law will not reverse. Where the Appellate Court is convinced that the trial judge understood and applied the law correctly to the facts proven by the evidence, it will not reverse the judgment even though some of the propositions held by the court are not accurately stated or some of the propositions refused by the court are strictly correct; such erroneous rulings do not affect the judgment if such judgment upon a consideration of the whole record is right.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Statement by the Court. The plaintiff in erorr, R. J. Kittredge & Company, by this writ of error seeks to reverse a judgment of the Circuit Court rendered against it in favor of defendant in error for $1,527.50 and costs.
    It appears from the record that the Fuchs & Lang Manufacturing Company brought suit in the Superior Court against R. J. Kittredge & Company to recover the price of a certain bronzing machine which the plaintiff claimed it had sold and delivered to the defendant. The case was transferred to the Circuit Court. A jury was waived and the cause was submitted to the court for trial. The court found the issues for the plaintiff and assessed the plaintiff’s damages at $1,527.50 and rendered judgment for that amount against the defendant.

      The evidence in the record tends to show that the defendant had used in its business a 44-inch Emmerich & Vonderlehr bronzing machine for two or three years, and it had failed to give satisfaction. Defendant had also used a Fuchs & Lang bronzing machine and had discarded it for the same reason. Notwithstanding this, the defendant in April, 1903, and again in May, 1903, wrote to Emmerich & Vonderlehr stating it was in the market for a bronzing machine. It received no reply to these letters. Later, hearing that Emmerich & Vonderlehr had transferred their business to the plaintiff, Kittredge requested Kasch, the local representative of the plaintiff in Chicago, to come to defendant’s factory to talk about the purchase of a bronzing machine. Kasch, who was not familiar with the subject, expressed a desire to have Walter Lang of the plaintiff company present, and later in June, Kasch and Walter Lang went to the factory of defendant in Chicago and had some talk with Kittredge and Niemes, defendant’s foreman. What occurred during the interview is disputed in the evidence. Later Niemes went to New York and met Ford, the superintendent of plaintiff’s factory, and Muller, secretary and treasurer of plaintiff. As to what occurred at the interviews then the evidence is conflicting. After this visit of Niemes to New York, there seems to have been no communication between the parties until July 31, 1903, when the defendant telegraphed from Chicago to plaintiff as follows: “How quick can you ship No. 10 Bronzer?” To this telegram plaintiff replied: “Eight weeks best we can do on No. 10 Bronzer;” and on the same day wrote to defendant the following letter:
    “New York, Aug. 1/03.
    Messrs. B. J. Kittredge & Co.,
    Chicago, Ills.
    Gentlemen :—
    We have before us your telegram of inquiry about a No. 10 bronzer. We regret to say that we cannot possibly make quicker delivery than eight weeks on one of these machines, for the reason that we have so many orders booked ahead for this size.
    We assure you that we will do the best we can for you on delivery, in case you place your order with us, to get the machine out within the specified time.
    Yours very truly,
    The Fuchs & Lang Meg. Co.” etc.
    Defendant on receipt of the telegram wrote to plaintiff as follows:
    “Chicago, III., Aug. 1, 1903.
    Fuchs & Lang Meg. Co.,
    29 Warren St., New York.
    Gentlemen :—
    Your answer to our wire received regarding the No. 10 bronzing machine, and in reply to same we have this to say; that we would like you to look into the matter fairly and see if there is not a way in which you can get us a No. 10 in quicker time than 8 weeks, for if we are to get out the work we have on hand we should have the machine before that time, and should we favor you with an order for a No. 10 we will ask that the alterations or additions as per conversation with Mr. Lang be added. Among these are as follows:
    Must have cleaning roller on back of cylinder.
    Larger and stronger sieve.
    Nippers to take at least 1/2" bite and the belts that are on side must be arranged so that they will not jump off and get caught in the gear, as this is causing us a great deal of trouble with our present machine. The other improvements which you stated to our Mr. Niemes, such as closing up the front, etc., we will expect on the machine.
    Let us have your reply by return mail, or just as soon as possible, and we will wire you if we decide to order.
    Yours truly,
    B„ J. Kittredge & Co.,” etc.
    To this letter the plaintiff responded as follows:

      “New York, Aug. 3, 1903.
    Messrs. E. J. Kittredge & Co.,
    Green & W. Superior Sts.
    Chicago, Ill.
    Gentlemen :—
    We are in receipt of yours of the 1st inst., and in reply beg to state that it would be impossible for us to promise to ship a No. 10 Century Model Bronzing Machine any sooner than eight weeks.
    We understand the additions you wish made to the Bronzing Machine are as follows:
    You wish a cleaning roller on the back of the cylinder and this we will put on for you.
    A larger and stronger sieve we cannot give you entirely. We can give you a coarser and stronger sieve, but cannot change the size.
    We will make the gripper to take at least 1/2" bite, and the belts on the sides will be arranged with flange pulleys so that they will not jump off and get caught in the gearing.
    The other improvements shown to your Mr. Niemes will be on this machine, the same as on all we build now, but should there be any other slight modifications which you would want, we would prefer that you write them out for us, so that there may be no mistake when we ship the inachine.
    You can rest assured that we will do the best we possibly can in order to get this order out for you on time, if you place it with us, but we do not feel like taking it on a shorter promise than eight weeks, as we would not want to disappoint you.
    Hoping you may see your way clear to send us this order, and awaiting your kind reply, we remain
    Yours very truly,
    The Fuchs & Lang Meg. Go.”, etc.
    On August 28, 1903, the defendant wrote to plaintiff the following letter:
    “Chicago, Aug. 28, 1903.
    Fuchs & Lang Meg. Co.,
    New York, N. Y.
    Gentlemen :—
    You will please enter our order for delivery quick as possible or within eight weeks time for one number ten (No. 10) latest model bronzing machine, said machine to have in addition to the regular equipment a cleaning roller at the back of machine to clean the cylinder.
    Small driving belts to be arranged with flanged pulleys or otherwise, so as not to jump off and get tangled up in the gearing.
    The gripper bite to be at least 1/2 inch.
    The guides and tongues to be made in a good substantial manner and more after the pattern used on the regular cylinder presses.
    The receptacle for bronze under the sieve to be made larger, or so that a receiving box can be attached.
    We would also like to have the fountain enlarged either sidewise or perpendicular, so as to hold a larger amount of bronze than the capacity of the No. 8 machine which we have. We think this would be appreciated by all parties who have continuous or constant demand for use of machine.
    The driving pulleys should be large as possible, as we desire to run machine with a motor connected with a belt, so as to shift from tight to loose pulley, as we think this method is better than direct connected or starting and stopping by shutting off and on of the current.
    We wish to call your attention to the fitting of screws and bolts throughout the entire machine, they should be made so that it would be nearly impossible for them to work loose and drop out. We have just had a quite serious break on our No. 8 machine, caused by the bolts working loose on the tumbler rod bracket, and your Mr. Walter Lang will also recollect that the small machine the writer and he were looking at in the Donnelly plant was broken down from a like occurrence.
    We should like to have the scrapers for the dusting rollers made adjustable.
    There should also be some provision made in the shape of a pan or shelf in the front or lower part of the machine so that the bronze will not fall upon the pile of bronzed sheets every time any of the doors were opened.

      We have delayed ordering this for two reasons, the ■first reason being that onr friends the Chicago Color-type Co. kindly loaned us their machine and helped us out materially, the second reason is that we are not thoroughly satisfied with the manner in which the machines operate, the delivery device is, in our opinion, too frail and not positive enough for places where the machine is used ten hours a day. We have had frequent stops on account of machine not delivering-sheets properly, which has made the output as low as 3,000 sheets a day. We think that an improvement could be made by putting a positive drive on the delivery plush roller and more substantial stripping-fingers and connections.
    Please advise us by return mail what- will be the prospects at this writing- for an early delivery, and oblige
    Yours truly,
    B. J. Kittredge & Go.”, etc.
    In answer to this, plaintiff sent by Kasch the following letter to defendant:
    “Chicago, Sept. 2nd, 1903.
    Messes. B. J. Kittredge & Co.,
    107 Superior street,
    City:
    Gentlemen :—
    We beg to acknowledge receipt of your kind order of Aug. 28th sent to our New York house, for one No. 10 latest model Bronzing Machine, and thank you for this order. In regard to the changes and alterations which you wish made on this machine, as per your letter of Aug. 28th, we beg to advise that we will make all the changes we enumerate below, viz.:
    Put dusting roller in the back Cylinder to clean same, in place of the regular bristle brush.
    Put double Flange Pulleys on all Dusting Bolls, to prevent the Belt jumping off, and getting tangled in the gearing.
    Make cylinder so that the Grippers will take at least a half inch bite.
    Put on our New Style Guides and Tongues, the Guides being very much heavier, and easier of adjustment, and more after the pattern of a Press Guide, than those on the old No. 8 Bronzer, which you now have.
    Make alterations in the receptacle, under Bronze Sieve, so that same can be used to convey the Bronze into a separate Box, which you are to furnish.
    O. K. Kittredge.
    We will not be able to make any alterations on the Fountain, as these parts are standard, and we would not care to make this Fountain larger than it is at present, principally because if more Bronze is put into it, than it will contain at present, the weight would be sufficient to spring the Fountain Boiler, making it bear considerably heavier in the center than on the ends, consequently giving an uneven feed of Bronze.
    In regard to Large Driving Pulleys:
    We beg to state it would be possible for us to put 18" driving pulleys on this machine, but this would be the extreme limit, and if we put this on we feel certain they would be too small for any ordinary motor. Besides this it would be necessary for you to erect an idler between your motor and the Bronzing Machine so as to raise the pulleys sufficiently high, that it would pass between the yoke or arm holding the shaft and pulleys. That is, with an 18" pulley the belt would have to run upwards and from the Bronzing Machine in order to clear the yoke. This is all we could do on our machine as we now build it.
    Put on as large tight and loose pulleys as yoke will allow and leave room for belt to motor.
    If, however, you are willing to go to the additional expense, we could, by making new patterns and castings put a tight and loose pulley on the machine as large as 26" diameter at an expense to you of $50 net. The disadvantage of this would be that it would be very hard to get at the belting on the machine and it would be impossible to take the belts off of some of the driving wheels, because the tight and loose pulley would be right in front of them. To do this we would have to put the yoke or arm in a different position and have to make an entirely new pattern of it.
    The frame of the machine will not stand the change in the outside hanger so that we could put larger tight and loose pulleys on, hut we can furnish you with a large tight pulley on the outside of driving shaft hanger which could be operated with the starting and stopping of motor in a thoroughly satisfactory manner.
    We will be careful in building machine to see that all screws, etc., fit perfectly so that no parts will work loose on the machine as mentioned by you.
    O. K. Kittredge.
    All scrapers are made adjustable, so that this point is O. K.
    We will put an angle iron on the inside of door as suggested by your Mr. Niemes in order to prevent the bronze dropping on the bronzed sheets or on the floor every time the doors are open.
    Regarding the Friction Gear:
    We will put this on although it will be an extra expense to us, but we will do it without extra charge as you request it.
    The stripping fingers are made very substantial and heavy on this machine and there is no reason why they should give any trouble whatever in the delivery of sheets.
    Kindly go into this matter thoroughly and let us know if everything we have stated meets with your thorough approval, so that everything will be entirely satisfactory when you receive the machine on the above basis. We expect to make shipment to you in eight weeks from Aug. 28, 1903, and will of course hurry delivery just as much as possible.
    Very truly yours,
    The Fuchs SsLang Meg. Co.”, etc.
    Dio. H. F.
    P. S.
    Price—Thirteen Hundred Dollars ($1300.—) F. O. B. New York, less 10% special rebate for cash inside of 30 days from date of bill, as stipulated in our letter of July 30th. Bill to bear date of delivery of bronzer to us at our factory.
    O. K. Kittredge.”
    Kasch went to Kittredge with the letter, and Kittredge after carefully reading the letter and making such changes as he wished by writing on the margin of one page the words: “Put on as large tight and loose pulleys as yoke will allow and leave room for belt to motor;” and by crossing out two paragraphs of the letter, placed the letters “O. K.” and signed his name “Kittredge” on each page of the letter at Kasch’s request and handed the paper back to Kasch. The paragraphs erased by Kittredge follow immediately the above quoted words placed on margin as copied above.
    After procuring the “O. K.” of Kittredge the plaintiff proceeded to assemble a bronzing machine and to put on the machine the special attachments provided for in the above document and shipped the machine to the defendant at Chicago, where it was delivered to the defendant within the eight weeks named in the paper so signed.
    When the machine was received the defendant took off the crate in which it was shipped, but made no attempt to use it and never saw it in operation. Kittredge pointed out to Kasch and Fuchs various things which he regarded as objectionable in the machine, and to the request of Kasch that the machine be tried in actual work, replied that he would not put a belt on it unless plaintiff would guarantee it would do the work.
    Thereafter plaintiff wrote to defendant the following letter:
    “Chicago, Nov. 19, 1903.
    Messes. B. J. Kittredge & Co.,
    113 W. Superior St.,
    Chicago, Illinois.
    Gentlemen :—
    Begarding the No. 10 Century Model Bronzing Machine (63 x 64) furnished you, we beg to state that we carried out your stipulations and furnished the latest improved style in every respect. This is our Standard Machine and we guarantee it to work entirely satisfactory, but we cannot be held responsible for any new alterations or attachments which you might decide upon to add.
    If any defect in the proper workings of Machine should come up, we will certainly see you through about same. However, you will surely find everything all O. K. as this is the same machine of which we have a large number running with perfect success all over the country.
    Tours very truly,
    The Fuchs & Lang Meg. Co.”, etc.
    Kittredge, however, continued to make objections to the machine, and the plaintiff again wrote to the defendant as follows:
    “Chicago, Nov. 27th, 1903.
    Messrs. B. J. Kittredge & Co.,
    Chicago, Ill.
    Gentlemen :—
    In reference to the large Bronzing Machine furnished you this month, we give you the following guarantee, viz.:
    That it works perfectly satisfactory and that no parts on it are faulty. That is, if any parts will give out on account of inferior or faulty construction, we will replace same free of charge, but we cannot be held responsible for any damage done through accidents or ordinary wear and tear. We guarantee the construction of the Machine to be perfect, but cannot guarantee against mishaps which are liable to happen with any other Machine during the use of same in course of time. Anything which might prove to be a fault in construction we are willing to stand by.
    If this is satisfactory to you, please put the machine into use, otherwise return it to our Factory (Butherford, N. J.) safely packed.
    Tours very truly,
    The Fuchs & Lang Meg. Co.”, etc.
    After the receipt of this letter by the defendant it appears that Kittredge, Fuchs and Kasch had several conversations the purport of which is in controversy, but Kittredge testifies: “I told them this wouldn’t do; I wouldn’t send the machine back, nor go to the expense of boxing and shipping it.” On December 30, 1903, defendant wrote to plaintiff a letter of considerable length which indicates no willingness or intention on the part of the defendant to box np or return the machine.
    After receiving the letter plaintiff wrote to the defendant as follows:

      ‘ ‘ Chicago, Jan. 14th, 1904.
    Messes. E. J. Kittredge & Co.,
    Chicago, Ill.
    G-eettlemeet :—
    Tours of Dec. 30th, 1903, came duly to hand and in the meantime we went very thoroughly into the matter of your Bronzing Machine and have found that your claims are not justified. On Nov. 27th we made you a proposition and in accordance with same you should have returned the machine at once if our guarantee was not satisfactory to you. Inasmuch as we did not hear anything from you for over a month, we of course had to take it for granted that you accepted the machine subject to our guarantee of Nov. 27th, which is certainly very liberal and as thorough as any machinery manufacturer would give. * * *
    We do not feel that we are obliged to take this machine back at all at this late date, having furnished what we agreed to furnish and really think that we ought to receive remittance covering our bill. However, rather than have any trouble with you about this matter, we now make you the following proposition:
    You can return the machine via Brie Despatch prepaid, to the Fuchs & Lang Mfg. Co., Eutherford, N. J. You to thus stand the freight both ways and furthermore send us a check for $100 to cover our actual cash outlay for changes which we made according to your stipulations. * * * Of course the machine must be boxed and packed by you in as safe and perfect manner as you received it and safe delivery guaranteed by you to Eutherford.
    Should this proposition not meet with your approval we must respectfully ask you to send us settlement for the amount of our bill of Nov. 6th.
    Yours very truly,
    The Fuchs & Laetg Meg. Co.”, etc.

      On February 18, 1904, about one month after the letter of January 14, 1904, was written, the plaintiff put its claim in the hands of Chicago attorneys to bring suit against the defendant, and supposed suit had been entered until May, 1905, when it learned that no suit had been started. Meanwhile, on November 19, 1904, defendant wrote plaintiff that “Unless otherwise instructed, we will on December 1st box and ship the bronzing machine which we have been holding subject to your order and risk since last November, back to your address, 29 Warren street, New York, via L. S. & M. S., rendering bill to you for cost of boxing and cartage.” And on December 6, 1904, defendant wrote to plaintiff as follows: “As per our letter of 19th ult. to which we have received no reply, we have boxed and shipped the bronzing machine as stated therein and enclose you herewith B. L. for same,. together with bill for cartage and crating.”
    To these letters the plaintiff replied as follows:
    “Chicago, Jan. 7th, 1905.
    Messes. B. J. Kittredge & Co.,
    Chicago, Ill.
    Gentlemen :—
    We are suprised to receive notice that you have returned to us at New York the Bronzing Machine sold and delivered to you by us some time ago. Before this machine was returned, we had notified you that we insisted on your living up to your contract and had brought suit against you for the price of the machine.
    Furthermore, the machine arrived in New York in damaged condition on account of being insufficiently packed or crated, as is claimed by the railroad company. We cannot take this machine back and therefore are holding it at our factory subject to your order.
    Yours truly,
    The Fuchs & Lang Meg. Co.”, etc.
    It also appears from the evidence that prior t<? the return of the machine Walter Lang had told Kittredge over the telephone that the plaintiff would not accept the machine and had brought suit therefor.
    Simmons, Mitchell & Irving, for plaintiff in error.
    Musgrave, Platt, Vroman & Lee, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The first question to be determined in this case is, whether or not there was a contract in writing between the parties, as contended by the plaintiff, defendant in error, or whether the contract was partly in writing and partly oral, and hence an oral contract, as contended by the defendant, plaintiff in error.

Upon a careful consideration of all the evidence we are of opinion that the letter of September 2, 1903, as modified by Kittredge and signed by him, was, and was intended by the parties to jie, their written contract for the sale and purchase of the bronzing machine. Up to the time of the presentation of that letter to Kittredge by Kasch and his endorsements on each page of the letter there was no meeting of the minds of the parties, and no contract between them. It is evident, we think, that the plaintiff prepared the letter carefully, and with the purpose of expressing by its terms what the parties, in their talk and correspondence, had manifested a willingness to agree to. The plaintiff was not content with the mere precaution of expressing in the letter in great detail what it would and would not do, and forwarding the letter by mail directly to the defendant. It adopted the further precaution of forwarding the letter to the manager of its Chicago office with instructions to submit it to Kittredge for his perusal, and to obtain from him his modifications thereon and his approval in writing. This was done; and when Kittredge had indicated in writing his approval thereon it was, in our opinion, for the purpose of making the paper express the assent of the defendant in writing to the agreement so prepared as the entire agreement between -the parties for the sale and purchase of the machine.

It follows legally that this merged all prior negotiations, letters and telegrams in the written agreement thus formulated and signed; and all extrinsic evidence of oral or written negotiations became incompetent, immaterial and irrelevant for the purpose of contradicting or modifying the written agreement. Graham v. Sadlier, 165 Ill. 95.

It was contended, however, on the trial, and it is contended here by the defendant, that the terms “No. 10 model bronzing machine” as used in the agreement, does not mean or refer to the No. 10 Century Model Bronzing Machine, a patented article, described in the pamphlet of the plaintiff containing a diagram of the same, and then being manufactured by the plaintiff and sold by it by that trade name, but that it means a new machine then about to be manufactured by the plaintiff, upon a new model, for which model plans and specifications were then being prepared by the plaintiff. For the purpose of determining the meaning of these words in the contract the trial court properly admitted the previous negotiations between the parties.

We have examined the evidence in the record bearing upon the intent and meaning of the words “No. 10 latest model,” as used in the contract, and we are of opinion that the evidence sustains the finding and conclusion of the trial court that the parties had in mind and referred to the No. 10 Century Model Bronzing Machine then being manufactured and sold by the plaintiff in the contract of September 2, 1903, with the modifications and additions specified therein.

In the first place the evidence shows without substantial contradiction' that the plaintiff had never gotten out any other cuts or models than these of this Century Model, and had not at that time planned any later model; and that the plaintiff had' at many different times prior to the date of the contract sent to the defendant a descriptive pamphlet showing a cut or diagram of the No. 10 Century Model Bronzing Machine, and likewise containing information as to its weight, etc. ®

Second. Kasch testifies that when he first talked with Kittredge about selling to defendant a bronzing machine, he—Kasch—took with him a circular showing plaintiff’s No. 10 Century Model Bronzing Machine, and showed Kittredge the circular and Kittredge had it before him while they were conversing. Walter Lang testifies that the conversation which he had with Kittredge in June, 1903, was about the No. 10 Century Model Bronzing Machine and that Kittredge then had in his possession the circular of plaintiff containing the diagram of that machine theretofore manufactured by the plaintiff. Muller testifies that he talked with Niemes, defendant’s - superintendent, in New York about the No. 10 Century Model Bronzing Machine, and that all their conversation was about that machine which the plaintiff was then building. Ford’s testimony corroborates Muller’s testimony as to the machine talked about with Niemes in New York in June, 1903. The telegram of the defendant to the plaintiff of July 31,1903, reads: “How quick can you ship number ten Bronzer?” The reply of the plaintiff dated August 1,1903, says: “Eight weeks best we can do on No. 10 Bronzer.” The letter of August 3, 1903, describes it in the same way. The contract itself says, when speaking of the driving pulleys: “This is all we can do on our machine as we now build it.”

Third. Walter Lang denies that he said to Kittredge at any time that the plaintiff was then preparing a new model, or a new bronzing machine. The voluminous correspondence between the parties nowhere speaks of a new bronzing machine or a new model of such a machine which the plaintiff was' about to build. If Niemes told the truth to Kittredge when he returned from New York he must have informed bim that he had been unable to see any new model of a machine which the plaintiff was about to build, or any drawings, or plan or diagram thereof, for the plaintiff was not getting out, and had not made, any such model or machine, or drawings or designs for the same, according to the uncontradicted evidence in the record. All the correspondence shows that Kittredge had an intimate knowledge of the various parts of the machine which he was proposing to buy, and this is not consistent with the idea that he was buying a new and different machine not theretofore constructed or used and not known to anyone but the plaintiff.

Our conclusion from the evidence is that the parties had in mind the No. 10 Century Model Bronzing Machine as theretofore manufactured by plaintiff and no other machine, and that the words used in the contract applied to that machine and described it.

The defendant urges that the plaintiff, by falsely representing the material fact that the machine was stronger and better throughout than the old Emmeriek & Vonderlehr machine which the defendant had, avoided the contract. That Lang made such a representation or expressed such an opinion to Kittredge, he did not deny in his testimony. But, whatever was the nature of such. statement, whether it was a warranty or a mere opinion, there is no evidence in the record showing that it was untrue; and we think the court did not err in refusing to hold the propositions submitted based on such statement.

The defendant presents in its evidence several objections to the machine as delivered. The first suggestion is that the belts slipped off and had been caught in, and cut by the gearing of the machine before its delivery, because the pulleys were not properly made to prevent that result. The testimony of Muller and Ford shows that there were no cuts in the belt at the time of shipment. Kittredge admitted in his testimony that the pulleys had proper flanges.

Another objection to the machine delivered was that there was a number of cut-outs filled with Babbit metal in the cylinder. There is no controversy as to this fact in the record. The evidence shows, however, that it is impossible to cast a cylinder as large as that required on the machine in question free from defects of this character, and that the particular cylinder on this machine was better in this respect than the average cylinder used on the No. 10 Century Model machines. Ford further testified that he had never seen plugs such as those put in the cylinder of the machine delivered work out or become loose; and that the life of the plugs in the cylinder was as good as the life of the cylinder itself. The testimony, we think, on this point tends to show that the cylinder in question was as good and as durable in practical operation as a cylinder without plugs.

In Misner v. Granger, 9 Ill. 69, the court say on the general proposition here involved, at page 75: “Again, generally, where a manufacturer sells his goods or wares, and nothing is said about the quality, he is held to warrant them to be of a fair ordinary quality, according to their appearance; as, if a manufacturer sell an ax and upon trial it prove to be so hard as to be unfit for use, then the vendor is responsible for the defect. To this there may be qualifications, as when the article is of such a character that ordinary skill cannot ordinarily produce a good article, but success depends in a great manner upon chance.” We think upon the evidence in the record that the cylinder was at least of the fair average quality according to its kind and a merchantable article. Though it was not an absolutely perfect cylinder, it was as good as can ordinarily be made by the best known methods of manufacture.

The defendant, plaintiff in error, contends that the construction of the fountain was not what it should have been.

In defendant’s letter of August 28,1903, to plaintiff, objection was made to the fountain used by plaintiff. This point was accordingly covered by the contract in the following language: 6‘We will not be able to make any alterations on the fountain, as these are standard, and we would not care to make this fountain other than it is at present. ’ ’

This objection with a number of others mentioned in plaintiff in error’s brief can be considered as valid and worthy of consideration only upon the theory that there was an implied warranty that the machine was reasonably fit for the purposes for which it was manufactured. This is not the law. Where an article is sold by a formal written contract, as we think is the case here, and the contract is silent on the subject of warranty, no warranty made at the same time or prior thereto can be shown, since the writing is supposed to embody the entire contract; and for the same reason, no additional warranty can be engrafted on the contract as written. Seitz v. Brewers’ Refrigerating Co., 141 U. S. 510; Telluride Power Co. v. Crane Co., 208 Ill. 218-227; Peoria Grape Sugar Co. v. Turney, 175 Ill. 631; Case Plow Works v. Niles & Scott Co., 63 N. W. 1013. And when an article known and described under its patent or other trade name is ordered of a manufacturer, whether ordered for a particular purpose or not, if the known and described thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. Seitz v. Brewers’ R. Co., supra; Prideaux v. Bennett, 87 Eng. Com. L. R. 613; Mason v. Chappell, 15 Gratt. 572; Peoria Grape Sugar Co. v. Crane Co., supra; Iroquois Furnace Co. v. Wilkin Manf. Co., 181 Ill. 582, 598, 599.

During the progress of the trial the defendant offered evidence tending to show that the driving shaft of the machine delivered to it was turned down or cut out at a certain point, thus making the shaft imperfect and weak. The plaintiff, upon affidavit showing that it was surprised by this testimony, and other grounds for the motion, moved the court for a suspension of the trial to enable it to take the depositions of certain witnesses in Rutherford, New Jersey, upon that question. The court granted the motion and entered an order fixing the time and place for taking the depositions of the witnesses named upon the question of the condition of the driving shaft and the dusting roller belts in the machine shipped to defendant by the plaintiff, and giving the defendant the right to cross-examine the witnesses and to have two witnesses to be selected by it examine the machine and take their testimony respecting the driving shaft. Pursuant to this order of court the depositions of the witnesses were taken and subsequently were read in evidence upon the resumption of the trial.

The record shows that on the examination before the commissioner, after the plaintiff’s witnesses had testified that the machine was standing in the same place where it had stood since its return by the defendant and that nothing had been done on it, and its parts were in the same condition as when constructed and shipped and returned to the factory, defendant’s counsel requested that counsel and the witnesses whom he proposed to call have an opportunity at once to examine the machine and identify it. Thereupon the commissioner and counsel and witnesses proceeded to the machine shop and examined the machine. Upon the resumption of the examination of the witnesses, counsel for the defendant expressed his satisfaction with the opportunity given to make the necessary examination of the machine as to the driving shaft and dusting roller belts, and admitted of record that the driving shaft then in the machine which they had examined was not cut out or turned down, and that the belts on the machine did not touch or interfere with the driving shaft. The commissioner, however, refused, upon objection of plaintiff, to permit defendant to show by its witnesses that the machine had been stripped of certain parts and changes had been made thereon and certain facts relative to the identity of the machine, such as fractures in the frame, in regard to which evidence had been theretofore offered on the trial.

It is urged that there was error in not permitting the examination to extend to the facts and features of the machine designed to be brought out by the questions propounded to the witnesses, for the reason that the identity of the machine examined was necessarily within the terms and scope of the order of court under which the testimony was taken. We think, however, this contention of defendant has no substantial foundation, and that no substantial right of the defendant was denied or violated by the refusal of the commissioner to extend the examination beyond the terms of the order of court.

The evidence in the record greatly preponderates in favor of the plaintiff to the effect that the driving shaft was not turned down or cut out as the evidence offered by the defendant tended to show. While we have read the evidence on this subject carefully, we cannot take the time to analyze and discuss it. The testimony on this subject cannot be reconciled in any way. The evidence of the defendant is inherently and mechanically improbable and therefore arrests belief.

We do not think the evidence shows a rescission of the contract by the parties. The offer contained in the letter of plaintiff of November 27, 1903, was not accepted by the defendant. Another proposition was made in plaintiff’s letter of January 14, 1904, but this offer was not accepted. The evidence tends to show that both offers were rejected by defendant. The evidence also shows that prior to the return of the machine by defendant it was notified that plaintiff would not accept the machine.

Upon a review of the evidence in the record we are of opinion that the preponderance of the evidence sustains the judgment rendered, and on the merits of the case it should be affirmed.

It is urged by the plaintiff in error that the trial court erred in its holdings on the propositions of law appearing in the record. We are convinced that the trial judge understood and applied, the law correctly to the facts proven by the evidence, and even if some of the propositions of law held by the court are not accurately stated or some of the propositions refused by the court are strictly correct, such errors could not affect the result here, if the judgment, upon a consideration of the whole record, is right. Stone v. Mulvaine, 119 Ill. App. 443, 456; Chicago Hotel Co. v. Baumann, 131 id. 324, 329; Lanter v. Hartman, 95 id. 80; Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9. It is unnecessary, therefore, for us to discuss the rulings of the court on the propositions of law.

Finding no reversible error in the record the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith Per Curiam.

license: Public Domain

text:
    Reid, Murdoch & Company, Defendant in Error, v. The Northern Lumber Company, Plaintiff in Error.
    Gen. No. 14,310.
    1. Contracts—what law governs construction of. The law of the place where a contract is made governs the same as to its validity and construction.
    2. Contracts—what law governs remedy upon. It is the law of the forum which governs the remedy invoked in aid cf a contract, the construction of which is to be determined by the law of the state of making.
    3. Contracts'—when party for whose benefit made, may enforce. A creditor may recover in this state his debt of a third person who has promised the debtor upon a valid consideration to pay the same.
    4. Statutory law—how of sister slate determined. Where a

      statute of another state is before the court, the court will look to the reports of the decisions of that state in order to construe it.
    6. Statute of frauds—what not promise to answer for debt of another. A promise by a third party to a debtor based upon a valid consideration to pay the creditor is not within the Statute of Frauds according either to the law of Michigan or that of Illinois.
    6. Comity—presumption as to Taw of sister state. The presumption, in the absence of proof, is that the laws of a sister state do not differ from those of our own.
    7. Judicial notice—limit of statute requiring Municipal Court to take judicial notice of “all laws of a public nature enacted by any state or territory of the United States.” The Appellate Court in determining a cause by inspection of a record filed in a writ of error proceeding sued out to review a judgment of the Municipal Court will not, notwithstanding the above statute, go outside of the record and in violation of the presumption that the laws of a sister state are the same as the laws of our own, say that enacted laws of such sister state or the common law thereof differs from that of Illinois.
    Attachment. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Rehearing denied February 11, 1909.
    Colson & Johnson, for defendant in error.
    Bertrand Lichtenberger, for plaintiff in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Defendant in error, Beid, Murdoch & Company, a corporation, brought suit in attachment in the Municipal Court of Chicago against the plaintiff in error, The Northern Lumber Company, a corporation organized under the laws of the State of Michigan, to recover the sum of $809.90 on an open account for goods sold and delivered and upon an assumption of an account against one W. J. Boss. The plaintiff had judgment for $809.90 and costs of suit, and this writ is prosecuted to reverse the judgment.

The evidence in the record tends to show that in the fall of the year 1905, the plaintiff in error was engaged in manufacturing lumber at Birch, Michigan, and made a contract with one W. J. Boss to cut and deliver at the mill of plaintiff in error at Birch some five million feet of logs. Boss entered upon the performance of his contract and continued to work under it until the following spring. From time to time the plaintiff in error paid to Boss and advanced him money on the contract.

In the winter of 1905 and 1906 Boss, it is claimed, represented to plaintiff in error that he had upwards of four million feet of logs cut and on skidways ready for delivery to its mill, and plaintiff in error paid him, accordingly. When the scalers measured up the logs in the spring of 1906, it was found that Boss had less than two million, nine hundred feet of logs, and that he had been paid on his false representations as to the amount of logs cut, about $5000 more than he was entitled to receive. Upon discovering this Boss abandoned his contract.

Negotiations for an adjustment were had between plaintiff in error and Boss. The latter had given two chattel mortgages on his lumbering outfit to a bank at St. Ignace to secure payment of $1,300. A settlement was had about May 1, 1906, by which Boss turned over his lumbering outfit to plaintiff in error which paid the bank $750 in full settlement of the mortgages and allowed Boss $1,700, including the amount paid the bank in full for his outfit, and was given credit for that amount on the books of plaintiff in error.

At the time of the settlement Boss owed defendant in error for groceries and supplies sold and delivered to him at Birch from November, 1905, to February, 1906, $428.29, and as a part of the settlement it is claimed that plaintiff in error orally agreed with Boss that it would pay to defendant in error this debt. This promise is denied by plaintiff in error. As to the item of $381.61 for goods sold and delivered by the defendant in error to plaintiff in error, it was admitted on the trial that plaintiff in error owed that amount to defendant in error.

Defendant in error was not present or represented at the settlement made. The agreement on the part of plaintiff in error to pay the $428.29, the indebtedness of Boss to defendant in error at the settlement between Boss and plaintiff in error, was proven by the testimony of Hoffman and of Boss. McKnight, secretary and treasurer of plaintiff in-error, denied in his testimony that such an agreement was made. In our opinion the evidence supports the finding and judgment of the lower court, and we cannot disturb the judgment on the merits.

It is, however, contended by plaintiff in error that assuming that said promise was made as alleged, it is a contract made in the State of Michigan and is to be construed by the laws of Michigan and that under the Michigan laws it is void and non-enforceable, under the statute of frauds of that state. It is too well settled to admit of question or discussion that the law of the place where a contract is made must govern the contract.

Section 54 of the Act creating the Municipal Court of Chicago provides that that court shall take judicial notice of “all laws of a public nature enacted by any state or territory of the United States.” No evidence was offered of the statutes or laws of Michigan. Assuming, however, that under that statute this court is required to take judicial notice of all laws of a public nature enacted by any state or territory of the United 'States in cases brought by writ of error or appeal to this court from the Municipal Court of Chicago, and that the statutes of Michigan are properly before us, we find that section 2, of the Michigan statute of frauds provides:

“In the following cases specified in this section, every agreement, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in writing, and signed by the party to be charged therewith, or by some person by him hereunto lawfully authorized, that is to say:

1. Every agreement that, by its terms, is not to be performed in one year from the making thereof:

2. Every special promise to answer for the debt, default, or misdoings of another person.” (Compiled Laws of Michigan Vol. 3, Chapter 258, p. 2907.)

When a statute of another State is before the court, the court will look to the reports of the decisions of that state construing it. McDeed v. McDeed, 67 Ill. 545; Van Matre v. Sankey et al., 148 id. 536.

The question then is, whether the agreement in question is within the Michigan Statute of Frauds as construed by the Supreme Court of that state, and therefore void.

It will be observed that the contract here made was between plaintiff in error and Boss, and the promise was made to Boss to pay his debt to defendant in error, as a part of the adjustment and settlement between them. The promise was not made to defendant in error.

In Green v. Brookins, 23 Mich. 47, the court say: “The promise in this case, by Green, as alleged in the declaration, was not collateral; not an undertaking to Green in relation to the doings or misdoings of any third person. It was a promise by Green to Brookins to find someone to take his place as member of the company and shareholder, and to save Brookins from expense and damage in consequence of his becoming shareholder, and giving the note pursuant to the agreement between the two. It seems to be settled by authority that a promise of that description is not within the statute.

“A leading case on this subject is that of Eastwood v. Kenyon, 11 Add. & Ell. 438. There the plaintiff was liable to one Blackburne, on a promissory note; and the defendant for a consideration promised the plaintiff to pay that note. Lord Denman said: ‘If the promise had been made to Blackbume, doubtless the statute would have applied; it would then have been strictly a promise to answer for the debt of another; and the argument on the part of the defendant is that it is not less the debt of another because the promise is made to that other, viz.: the debtor, and not to the creditor, the statute not having in terms stated to whom the promise contemplated by it is to be made; but upon consideration we are of opinion that the statute applies only to promises made to the person to whom another is-answerable’.” Continuing the court then says that the above case has been followed in England and in this country, and cites the decisions of courts of last resort in several states where the same view has been recognized.

The above case is cited with approval on this point in Pratt v. Bates, 40 Mich. 37, 39, 40.

The Statute of Frauds of Michigan does not differ in legal effect from the statute of this state as to the question here involved. And our Supreme Court, in discussing this question in Wilson v. Bevans, 58 Ill. 232-234, said:

“The general rule is, that if the promise is in the nature of an original undertaking to pay a debt to a third party, and is founded on a valuable consideration received by the promissor himself, it is not within the provision of the statute, and need not be in writing to make it valid, and binding,—it will be regarded in the light of a contract for the benefit of a third party upon which said third party may found an action for the breach. The authorities all seem to agree in holding that such promise is not within the Statute of Frauds, and need not necessarily be in writing to make it valid. Eddy v. Roberts, 17 Ill. 505.” See also Wilson v. Bevans, 58 Ill. 232; Mayer v. Hartman, 72 id. 442; Borchsenius v. Canutson, 100 id. 82, 92; Thompson v. Dearborn, 107 id. 87-92.

These authorities are decisive of the contention of plaintiff in error. The contract was a valid contract under the laws of Michigan, upon which defendant in error could found an action for the breach thereof.

The judgment of the Municipal Court of Chicago is just and must be affirmed.

Affirmed.

Afterwards, on consideration of the petition for rehearing in this case, the following additional opinion was filed:

Per Curiam.

In the petition of plaintiff in error for rehearing it is stated that two grounds were urged in its brief and argument for a reversal of the judgment; first, because the promise alleged to have been made by plaintiff in error to Boss to pay the latter’s debt to the defendant in error was within the Statute of Frauds; second that regardless of whether or not thé said promise is within the Statute of Frauds, the said promise is void for the reason that there was a want of privity of contract between the plaintiff in error and the defendant in error, and there was no consideration moving from the defendant in error, which would support a recovery upon such a promise and no recovery can be had thereon under the laws of Michigan.

The petition concedes that the first ground was disposed of in the opinion of this court, but it is urged that the court did not dispose of the second ground of defense, and that Pipp v. Reynolds, 20 Mich. 88; Turner v. McCarthy, 22 Mich. 265; and Halsted v. Francis, 31 Mich. 113, support the second ground of defense.

First. It is undoubtedly well settled that the law of .the place where the contract is made must govern the contract as to its validity and construction. But the law of the remedy is no part of the contract. Wood v. Child, 20 Ill. 209. “When the question is settled that the contract of the parties is legal, and what is the true interpretation of the language employed by the parties in framing it, the lex loci ceases its functions, and the lex fori steps in and determines the time, the mode and extent of the remedy.” Burchard v. Dunbar, 82 Ill. 450.

It is not contended, and cannot be contended upon the facts shown in the record that the contract of settlement between plaintiff in error and Boss by which plaintiff in error agreed, in consideration of the sale and delivery to it by Boss of a certain amount of. personal property, to pay certain indebtedness then owing by Boss, including his indebtedness to defendant in error, was not valid and legal as between the parties to it. There is no question as to the construction of the contract. The only question then is as to the remedy, and the law of Illinois determines that. In this state an action may be brought upon such an agreement by the beneficiary in his own name against the promisor, though such beneficiary was not one of the contracting parties. Bay v. Williams, 112 Ill. 91, 96; Dean v. Walker, 107 id. 540, 544; Snell v. Ives, 85 id. 279; Wilson v. Bevans, 58 id. 232, 234.

Second. The record does not show either by pleadings or proof that the laws of the State of Michigan differ from those of this state. Hence it must be presumed that the same rules prevail in Michigan as prevail in Illinois. Shannon v. Wolf, 173 Ill. 253, 260; Hakes v. Bank of Terre Haute, 164 id. 273, 275; Dearlove v. Edwards, 166 id. 619, 622; Gunning System v. La Pointe, 113 Ill. App. 405, 409, 410. True, Section 54 of the Act creating the Municipal Court of Chicago provides that the court thereby created shall take judicial notice of “All laws of a public nature enacted by any state or territory of the United States,” but we are inspecting, a record in a proceeding by writ of error, and we must know from the record what was made to appear to the trial court. We cannot go outside of the record as made, and in violation of the presumption above mentioned, say that the enacted laws of the State of Michigan or the common law of that state differs from the laws of Hlinois, and therefore the record is erroneous. The laws of Michigan are not before us for this purpose. City of Chicago v. Oppenheim, 229 Ill. 313, 322.

The petition for rehearing is denied.

Petition denied.


author: Mr. Presiding Justice Smith

text:
    Herman Waiss et al., Defendants in Error, v. Joseph G. Cannon, Plaintiff in Error.
    Gen. No. 14,325.
    1. Brokers and factors—what sufficient to show license in absence of objection. The testimony of a plaintiff given without objection that he had a license upon, a date but a short time before the consummation of the sale is sufficient.
    2. Brokers and factors—what essential to recover real estate commissions. In order to entitle brokers to recover real estate commissions claimed they must show by a preponderance of the evidence that they produced a purchaser ready, able and willing to buy the property in question upon the terms at which the owner was willing to sell.
    3. Evidence—when objection to secondary, comes too late. Objection to secondary evidence first made on appeal is too late and will not avail.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and judgment here.
    Opinion filed January 26, 1909.
    Rehearing denied February 5, 1909.
    Gallagher & Messner, for plaintiff in error; Louis Greerberg, of counsel.
    Grossberg & Kompel, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Defendants in error, Herman Waiss and Levi Gold-stein, sued Joseph G. Cannon plaintiff in error, in the Municipal Court of Chicago for $157.50 claimed to he due them as real estate brokers for commissions. The statement of claim filed is as follows:

“Plaintiffs’ claim is for commissions earned by said plaintiffs as real estate agents or brokers for the said defendant in having procured for the said defendant, at his special request, a purchaser, one Harry Klein, for a certain piece of property known as No. 454 South Fairfield avenue. The plaintiffs’ claim is for the sum of $157.50, as brokerage, the said sum being 2y2 per cent, on $6,300, the purchaser price provided for in the contract between said defendant and the purchaser, one Harry Klein.”

The plaintiffs had judgment for the amount of the claim, and this writ of error is prosecuted to reverse the judgment.

Two grounds for the reversal of the judgment are presented by the assignment of errors, First, the absence of proof that plaintiffs were duly licensed real estate brokers on the day they produced the purchaser, as required by the ordinances of the city of Chicago; and second, the evidence does not sustain the finding and judgment of the court.

As to the first ground it is urged that the plaintiffs failed to introduce a license showing that the plaintiffs were licensed brokers under the city ordinances on October 22,1907, the date when the plaintiffs claimed to have produced a customer for defendant’s property. The only evidence on the subject was that of plaintiff Waiss, who testified without objection that he was a licensed broker on and prior to October 13, 1907. We think this was sufficient evidence of the fact, in the absence of objection that it was not the best evidence. A party may not remain silent while secondary evidence is being produced by his adversary of a material fact, and then raise the question for the first time, on appeal or writ of error in this court.

Upon a review of the evidence we are of opinion that it does not sustain the finding and judgment." We do not think the evidence shows that the defendant Cannon entered into a contract with Klein. While it is true that the commissions payable by the vendor do not necessarily constitute any part of the terms of sale with the vendee, still, if the vendee offers a price less than the vendor is willing to take for his property and pay full the commission to the broker on the proposed sale, the vendor may insist upon either a reduction in the amount of the commissions or some other arrangement in regard thereto as a condition to his assent to the sale. The plaintiffs’ evidence in this record does not show that Cannon agreed to the proposed sale. The parties met to talk over the proposed transaction which if agreed to was to be put in writing and signed by the parties. Cannon declined to sign a paper which was prepared, and until both parties signed it no contract was made, and the whole matter was open for discussion and negotiation until it was put in final form and signed by the parties.

We find no evidence in the record of the contract to which plaintiffs claim that Cannon "gave his oral assent. The paper itself was not offered in evidence, nor were its terms shown fully. What was to he agreed upon as to the mortgage on the property does not appear. It does not appear whether Klein was to pay it or not. The terms of the second mortgage which it was proposed Cannon should take nowhere appear in the evidence.

Cannon’s testimony is to the effect that he did not authorize the contract to be written up, and did not read it, and did not assent to it verbally. On the other hand he expressed his dissatisfaction with the terms proposed and left the conference.

In order to entitle plaintiffs to the commission claimed they must show by a preponderance of the evidence that they produced a purchaser ready, able and willing to buy the property in question upon the terms at which Cannon was willing to sell it. The evidence fails to show this.

The judgment is reversed with a finding of fact, and judgment is entered here in favor of the defendant, plaintiff in error, Joseph G. Cannon.

Reversed and judgment here.


text:
    W. F. Dean, Defendant in Error, v. Jesse E. Smith, Plaintiff in Error.
    Gen. No. 14,338.
    1. Municipal Court—what waives question of jurisdiction. A defendant by filing a general appearance, demanding a trial by jury and by participating in the trial, waives the question of the jurisdiction of the court over his person.
    2. Municipal Court—when has jurisdiction over person of defendant. The Municipal Court has jurisdiction over the person of the defendant in suits where the defendant “resides or is found within the city of Chicago.”
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Mancha Bbuggemeyeb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Walter A. Lantz, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendant in error; Edward W. Rawlins, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago against the plaintiff in error in an action in assumpsit (fourth class) brought in the First District of that court by W. F. Dean, defendant in error, against Jesse E. Smith, plaintiff in error, upon six promissory notes made by said Smith payable to said Dean. Both parties to the action were, at the time of the institution of the suit, residents of the village of La Grange, Cook county, Illinois, where the notes were made. The place of business of said Smith was in the Marquette Building in the city of Chicago, located within the First District of the Municipal Court.

After summons had been served on Smith, the record shows, he filed a written appearance in the Municipal Court, and demanded a trial by jury. When the ease was reached for trial, Smith and his attorney appeared in court and his attorney examined the jurors and cross-examined Dean. The plaintiff Dean introduced in evidence the six promissory notes sued on, aggregating in amount $75 and proof that no part of them had been paid, and rested his case. The defendant Smith then took the witness stand and after answering a few preliminary questions as to his name, residence and business, his attorney objected to the jurisdiction of the court, and moved the court to dismiss the case. The court ruled that under Section 51 of the Municipal Court Act and under Bule 12 of the rules of the court, the question should have been raised by the defendant upon the return day of the summons or as soon thereafter as the court could hear the motion and that the motion should have been presented on affidavit; and that the motion was made too late, and overruled the objection and denied the motion, and ordered the trial to proceed. Thereupon defendant’s attorney said, “That is all.” The court then instructed the jury to render a verdict for the plaintiff for $75. The jury returned its verdict as directed. The court denied a motion for a new trial, and a motion in arrest of judgment and entered judgment on the verdict.

The errors assigned and insisted upon in argument are, first, that the trial court was without jurisdiction to hear the case, and second, that the court erred in giving the peremptory instruction for the plaintiff.

In our opinion the defendant by filing a general appearance, demanding a trial by jury, and by participating in the trial, waived the question of the jurisdiction of the court over his person. Kingman & Co. v. Decker, 43 Ill. App. 303; Mitchell v. Jacobs et al., 17 Ill. 234; Filkins v. Byrne, 72 id. 101; Village of Dalton City v. Loving, 87 Ill. App. 520.

We are of the opinion, furthermore, that Sections 28 and 29 of the amended Municipal Court Act, pages 241 and 242 Laws of Illinois, 1907, confer jurisdiction on the Municipal Court over the person of the defendant in suits where the defendant “resides or is found within the city of Chicago.”

The denial of the motion to dismiss, the suit was not erroneous.

It was not error for the court to instruct the jury to find the issues for the plaintiff, and assess the damages at $75 upon the evidence before the court and jury.

The judgment is affirmed.

Affirmed.


text:
    Annie Ryan, Plaintiff in Error, v. Supreme Council Catholic Knights of America.
    Gen. No. 14,694.
    1. Statute of limitations—effect of three-year period, for writs of error. This statute should not be so construed as to affect vested rights; it does not apply to judgments rendered before it became a law.
    2. Appeals and buróes—what confession of errors. If the plea of the Statute of Limitations is filed to a writ of error the effect is to confess errors assigned; the plea being denied, the judgment must be reversed.
    Assumpsit. Error to the Superior Court of Cook county; the Hon. Alonzo K. Viokebs, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed January 12, 1909.
    Rehearing denied January 26, 1909.
    John C. King and James D. Power, for plaintiff in error.
    Matthew J. Huss, for defendant in error; John J. Healy, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Superior Court of Cook county rendered May 22, 1903. The writ was sued out and the record was filed May 6, 1908. The defendant in error filed a plea of a statute of limitations, averring the date of the judgment, the date of suing out this writ of error May 6, 1908; and that this action was not commenced by the plaintiff in error within three years next after the rendition of the judgment complained of as by the statute is provided.

To this plea the plaintiff in error demurs, and the cause comes before the court for disposition upon the demurrer.

At the time of the rendition of the judgment shown in the record plaintiff in error had the right to have the same reviewed by this court on a writ of error at any time within five years thereafter. The new practice act invoked by defendant in error in its plea as a bar to this proceeding (Section 117, page 466 of the Laws of Illinois 1907, in effect July 1, 1907) provides:

“A writ of error shall not be brought after the expiration of three years from the rendition of the decree or judgment complained of. ’ ’

If this act which went into effect more than four years after the judgment was rendered applies to this proceeding, the effect is not merely to abridge the period within which plaintiff in error might exercise her right to commence this proceeding, but it results in a total destruction of the right itself, which was a vested right at the time the statute relied upon in the plea went into effect. In our opinion the statute should be so construed as not to destroy vested rights.

In Board of Education v. Blodgett, 155 Ill., 441, it is held at page 447 of the report: “In almost all of the States of the Union in which the question has arisen, it has been held that the right to set up the bar of a statute of limitations as a defense to a cause of action, after the statute has run, is a vested right, and cannot be taken away by legislature, either by a repeal of the statute without saving clause or by an affirmative act, and that it is immaterial whether the action is for the recovery of real or personal property, or for the recovery of a money demand, or for the recovery of damages for a tort.” And in the same case at pages 449 and 450, the court, quoting from the dissenting opinion of Justice Bradley in Campbell v. Holt, 115 U. S. 620, say: “Now, an exemption from a demand or an immunity from prosecution in a suit is as valuable to the one party as the right to the demand or to prosecute the suit is to the other. The two things are correlative, and to say that the one is protected by constitutional guaranties and that the other is not, seems to me almost an absurdity. One right is as valuable as the other. * * * It is true that a man may plead the statute when he justly owes the debt for which he is sued; and this has led the courts to adopt strict rules of pleading and proof to be observed when the defense of the statute is interposed. But it is, nevertheless, a right given by a just and politic law, and when vested, is as much to be protected as any other right that a man has. The fact that this defense pertains to the remedy does not alter the case. Remedies are the life of rights, and are equally protected by the constitution. Deprivation of a remedy is equivalent to a deprivation of the right which it is intended to vindicate, unless another remedy exists or is substituted for that which is taken away.”

The right to prosecute this writ of error was a vested right, and could not be destroyed by .the Act of 1907, even though it appeared from the terms of the act that it was the intention of the legislature that it was to affect past transactions. “A retrospective effect will not be given to it, unless it clearly appears that such was the intention of the legislature, especially where it tends to produce injustice or inconvenience. Such an intention must be manifested by clear and unequivocal expressions. If it is left doubtful what was the real design, the statute must be so construed as to have a prospective effect only.” Thompson v. Alexander, 11 Ill. 54, and cases there cited. There is nothing on the face of the Act of 1907 which indicates that it is to have a retroactive effect, and in our opinion it applies to causes of action arising after it went into effect.

We also find warrant for this construction of the Act of 1907, in section 4 of chapter 131, Bevised Statutes, which reads as follows:

“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to * * * or any right accrued, or claim arising before the new law takes effect, save only that the proceedings thereafter shall conform, so far as practicable, to the laws in force at the time of such proceeding. * * * This section shall extend to all repeals, either by express words or by implication, whether the repeal is in the act making any new provision upon the same subject or in any other act.”

Giving the statute this construction, the plea is ba_d, and the demurrer must be sustained.

“The effect of the plea is to confess the errors assigned.” Mahony v. Mahony, 139 Ill. 14; Beardsley v. Smith, 139 id. 290; Page v. The People, 99 id. 418, 425. A judgment of reversal must be entered.

The judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    Virgil P. Mays, Defendant in Error, v. United States Express Company, Plaintiff in Error.
    Gen. No. 14,226.
    This case is controlled by the decision in Cutter v. Wells Fargo & Co., 237 Ill. 247.
    Tort. Error to the Municipal Court of Chicago; the Hon. Wtt.t.tatw N. Cottbeií, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Winston, Payne, Strawn & Shaw and Winston, Lowy & McGinn, for plaintiff in error.
    W. W. Gurley and Arthur Dyrenforth, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The question presented in this case was decided adversely to the contention of plaintiff in error in Cutter v. Wells Fargo & Co., 237 Ill., 247. On the authority of that case the judgment in this case will be affirmed.

Affirmed.


text:
    Joseph W. Bare et al., Defendants in Error, v. The American Forwarding Company, Plaintiff in Error.
    Gen. No. 14,293.
    1. Common carbiebs—when forwarding companies are. Forwarding companies which undertake for hire to transport baggage from its starting point to its final destination, such transaction being within the ordinary course of their business, are common carriers within the meaning of the law.
    2. Common cabbiers—extent of obligation of forwarder. Where a forwarder or wharfinger only delivers goods to a carrier for transportation to a particular point, there to be delivered by the carrier to the consignee named by the shipper, with the delivery to the carrier the duty of the forwarder or wharfinger is ended.
    Action on contract. Error to the Municipal Court of Chicago; the Hon. Oscar M. Tobbison, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Statement by the Court. This writ of error brings before us for review a judgment of the Municipal Court for $393.23 recovered by defendants in error in an action of the fourth class against plaintiff in error for the loss of a trunk and its contents, consisting of wearing apparel and household goods. October 2, 1906, the plaintiffs delivered the trunk to the defendant at Englewood for shipment to Los Angeles, California, and the defendant issued to the plaintiffs the following receipt therefor:
    “Order No.................................Date Oct. 2, 1906.
    M. Joseph W. Bare,
    Ship to Los Angeles, California,
    At ............................................................................................ How ship........;...................................When.......................... Terms-—Send Bill of Lading General Delivery.
    One Trunk
    Weight 175 lbs.
    Bate, $1.75.'
    The American Forwarding & Mercantile Co.,
    Per J. W. B.”
    The defendant sent the trunk to its warehouse in Chicago where it, with other similar goods, belonging to different persons, were placed by the defendant in a car of the Bock Island Bailroad Company which had been chartered by the defendant to go from Chicago to Los Angeles. October 10, the car was delivered to the Bock Island Company consigned to an agent of the defendant at Los Angeles.
    The defendant, in writing, released the railroad company from liability for loss or damage to the goods in the car in excess of $5.00 per 100 pounds.
    In transit the car and its contents were destroyed by fire, without the fault of the defendant.
    The business of the defendant for some years prior to the time of the shipment of said trunk was conducted as follows: The defendant had, in Chicago an office and a warehouse. It solicited shipments of goods of persons having less than a car-load of goods for shipment from Chicago to points in this and other countries, and received and held such goods at its warehouse until a car-load was assembled, destined to one point. It then arranged with a railroad company for a car to that point, placed said goods in the ear, each parcel marked with the name of its owner, consigned the car to an agent of the defendant, and turned the car over to the railroad company which hauled the car to the place of destination.
    It had regular or fixed rates for such shipments which were greater than the railroad company’s carload rate and less than its less than car-load rate. The compensation of the defendant was the difference between the rate it charged its shippers and the car-load rate it paid the railroad company.
    The defendant furnished its agent at the point of destination a list showing the contents of the car, the mark on each parcel, charges, etc., so that he could check out the goods and make delivery thereof. The agent of defendant collected on delivery defendant’s charge for the carriage of each parcel, unless such charges had been prepaid, and also paid the railroad company its charges for the car-load. The railroad company’s rate on household goods to the Pacific Coast was $1.12 per hundred for a minimum of 20,000 pounds; its less than car-load rate $2.30 per hundred, and defendant’s rate $1.75 per hundred. The defendant had no special contract or arrangement with the railroad companies and was treated by the companies the same as other shippers in car-load lots and charged the same rate.
    A. L. Gettys and F. V. Campe, for defendant in error.
    Byron C. Thorpe, for plaintiff in error; Bryan Y. Craig, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

The learned judge of the Municipal Court held the defendant liable to the plaintiffs as a common carrier of said trunk and its contents, and the question whether such holding was proper under the facts and circumstances proven, is the only question presented for our decision.

The nature of the business carried on by the defendant, and of the legal duties and obligations which such business imposes on the defendant, is to be ascertained from a consideration of the kind of service it undertook to render to plaintiffs and the service which it holds itself out to the public as ready to render to those who may have occasion to employ it. The defendant agreed with the plaintiffs to transport this trunk from Englewood to Los Angeles and there deliver it to the plaintiffs. The transaction was in the usual course of the business in which the defendant was engaged. It solicited goods for shipment to the Pacific Coast and other parts of the country in less than car-load lots; had a regular rate for the transportation of such goods; carried for all persons alike; maintained a general office for the transaction of its business and a warehouse in which it assembled goods received for shipment until it had a car load destined to one point, when it chartered a car to that point, loaded the car with the goods it had undertaken to carry, consigned the car to its own agent at the point of destination and delivered the car to the railroad company. The defendant paid the railroad company the car-load rate to the Pacific Coast, $1.12 a hundred, and charged its shippers $1.75 a hundred. The undertaking of the defendant to deliver to the plaintiffs at Los Angeles the trunk it received from them at Englewood involved the transportation of the trunk and was an undertaking to carry for hire. The contract of the parties made the defendant a carrier of the trunk for hire. The transaction was in the ordinary course of the business in which defendant was engaged. The defendant held itself out as ready to carry for every one and was therefore a common carrier.

The contention of plaintiff in error that it was a forwarder and not a common carrier cannot be sustained. A forwarder, or wharfinger, only delivers goods to a carrier for transportation to a particular point, there to be delivered by the carrier to the consignee named by the shipper. With the delivery to the carrier the duty of the forwarder or wharfinger is ended. Here the defendant received the trunk from the plaintiffs at Englewood, undertook to transport it to Los Angeles and there, through its agent, deliver it to the plaintiffs.

In Buckland v. Adams Ex. Co., 97 Mass. 124, it was contended that the rules of the common law are not applicable to a contract of carriage by which it is understood between the parties that the service is to be performed, in part at least, by means of an agency over which the carrier can exercise no control, and it was said by Bigelow, 0. J., p. 130: “But this argument, though specious, is unsound. Its fallacy consists in the assumption that at common law, in the absence of any express stipulation, the contract with an owner or consignor of goods delivered to a carrier for transportation necessarily implies that they are to be carried by the party with whom the contract is made, or by servants or agents under his immediate direction and control. But such is not the undertaking of the carrier. The essence of the contract is that the goods are to be carried to their destination, unless the fulfilment of this undertaking is prevented by the act of Grod or the public enemy. This, indeed, is the whole contract, whether the.goods are carried by land or water, by the carrier himself or by agents employed by him. The contract does not imply a personal trust, which can be executed only by the contracting party himself or under his supervision by agents and means of transportation directly and absolutely within his control. Long before the discovery of steam power, a carrier who undertook to convey merchandise from one point to another was authorized to perform the service through agents, exercising an independent employment, which they carried on by the use of their own vehicles and under the exclusive care of their own servants. It certainly never was supposed that a person who agreed to carry goods from one place to another by means of wagons or stages could escape liability for the safe carriage of the property over any part of the designated route by showing that a loss happened at a time when the goods were placed by him in vehicles which he did not own, or which were under the charge of agents whom he did not select or control. The truth is that the particular mode or agency by which the service is to be performed does not enter into the contract of the carriage with the owner or consignor. The liability of the carrier at common law continued during the transportation over the entire route or distance over which he had agreed to carry the property entrusted to him.”

The rule that express companies are common carriers does not depend on the fact that such companies have messengers to take charge of the freight. Dispatch companies which have no such messengers are also common carriers. Both use railroad cars in the performance of their respective contracts with their respective customers, and they have the same relation to the railroad companies whose cars they so use.

We are unable to perceive any difference between the relations of such companies to the railroad companies whose cars they use and the relations of the defendant to the railroad companies whose cars it uses in the performance of such contracts as the one it entered into with the plaintiffs, or any ground on which it can be held that such companies are liable as common carriers and the defendant not.

The judgment will be affirmed.

Affirmed.


text:
    Gordon Marugg, Defendant in Error, v. William Kells, Plaintiff in Error.
    Gen. No. 14,300.
    1. Dbam-shop Act—what allegations sufficient to permit evidence of sales by defendant’s servants. In an action under the Dram-shop Act for loss of support, an allegation that the defendant sold liquor, etc., is sufficient to enable proof of sales of liquor, etc., by the servants of such defendant.
    2. Evidence—when statements made by party’s own witness cannot be shown. When a witness has not given adverse testimony the party calling him is not permitted to prove that he had made statements which, if sworn to at the trial, would tend to make out the case of the party calling such witness.
    Tort. Error to the Municipal Court of Chicago; the Hon. Abnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed January 26, 1909.
    Francis J. Sullivan and John J. Swenie, for plaintiff in error.
    Carl A. Ross, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

The recovery in this case was under the provisions of Section 9 of the Dram-Shop Act and was by defendant in error, a boy six years old, plaintiff, against plaintiff in error, the keeper of a dram-shop, defendant, for injury to the plaintiff’s means of support in consequence of the intoxication of plaintiff’s father, Henry Marugg, which intoxication, plaintiff in his statement of claim alleged was caused by intoxicating liquors sold or given to him by plaintiff in error in his saloon.

The contention of plaintiff in error that plaintiff, under his statement of claim, could not prove or recover on account of intoxicating liquors sold to plaintiff’s father by an agent or servant of the defendant, is without merit. It was not necessary, in order to prove or recover for sales made by agents or servants, to allege that defendant, by his servants or agents, made such sales, but was sufficient to allege that the liquors were sold by the defendant, and prove that the sales were made by the agents or servants of the defendant in the usual course of their employment by the defendant.

Several other grounds of reversal are urged by counsel for plaintiff in error, but it will only be necessary to notice one of them.

Thomas Sargent, a witness called by plaintiff, testified that he occasionally went into the saloon of the defendant Kells, but had never known of plaintiff’s father going into Kells’ saloon and had never seen him drink there. He was then asked by plaintiff’s counsel whether in a conversation at a certain time and place with plaintiff’s mother, his attorney, and another, he did not state that he saw plaintiff’s father drink beer in Kells’ saloon, and answered that he had such a conversation but did not state that he saw plaintiff’s father drink beer in Kells’ saloon. Plaintiff’s counsel then called plaintiff’s mother who testified, over the objection of the defendant, that Sargent stated in the conversation referred to that he saw plaintiff’s father drink in Kells’ saloon, out of a tall glass, what he thought was beer.

The question here presented is not as to the limits to which a party may go in contradicting a witness called by him who unexpectedly testifies against the party calling him, to any matter damaging to such party or favorable to the opposite party, by proving that such witness had made statements different from his present testimony. Under no possible view can it be said that Sargent’s testimony, that he had not seen plaintiff’s father drink beer in Kells’ saloon, was either damaging to the plaintiff or favorable to the defendant. . He stated no facts tending to show that Kells did not sell beer or liquors to plaintiff’s father; he only asserted that he had no knowledge of any such sale.

When a witness has not given adverse testimony, the party calling him is not permitted to prove that he had made statements which, if sworn to at the trial, would tend to make out the case of the party calling such witness. 1 Wigmore Ev., Sec. 904, par. 8; People v. Jacobs, 49 Calif. 384; Chism v. State, 70 Miss. 742.

In States where the statute permits a party calling a witness to contradict him by showing that he had made statements different from his present testimony, the rule is, that the statute does not apply to a case where the witness does not state any fact prejudicial to the party calling him, but only fails to prove facts favorable to such party. Champ v. Commonwealth, 2 Metcalf, Ky. 17; Langford v. Jones, 18 Oregon, 307; Hull v. State, 93 Ind. 132.

In Langford v. Jones, supra, Thayer, C. J., said:

“If it were proper (to offer such evidence), a case could be made out many times by proof of what third persons had said; it would only be necessary to call the persons as witnesses and attempt to show by them the substance of the matter embraced in the statements, and, having failed in that, then to prove what such persons had said at another time and place, when they were not under oath, and obtain the benefit of that as direct evidence of the fact. Such a construction would enable parties to employ as a sword what was intended as a shield.”

In Hull v. State, supra, Best, J., said: “No fact having been stated none could be disproved and as the jury might regard these statements as substantial proof of the fact sought to be established, great harm might result, as they are clearly inadmissible for that purpose. The statute therefore did not, as we think, authorize appellant to prove these statements.”

The admission of evidence of Sargent’s statements was, we think, reversible error, and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Theresa Ruppert, Defendant in Error, v. Mary Frauenknecht, Plaintiff in Error.
    Gen. No. 14,305.
    1. Contracts—effect of seal. A seal is presumptive evidence of a sufficient consideration to support a covenant to pay, and the burden is upon the other party to show that there was no consideration therefor.
    2. Contracts—what consideration will support. The execution of an instrument by a party not obligated to execute the same, the execution of which instrument enables the collection of money without suit, is a valid consideration to support an obligation to pay money.
    3. Assumpsit—when lies, at instance of third party, upon sealed instrument. A person for whose benefit a promise to pay has been made by a sealed instrument may maintain assumpsit thereon in her own name.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed January 26, 1909.
    Statement by the Court. This writ of error brings before us for a review a judgment of the Municipal Court for $255 and costs, recovered by the defendant in error against plaintiff in error in an action of the fourth class, on the following instrument in writing, under seal:
    “It is hereby stipulated and agreed between Mrs. Mary Frauenknecht, and Mrs. Theresa Jaeger, formerly Miss Theresa Frauenknecht, both of Chicago, Illinois, that in consideration of one dollar in hand paid to Mrs. Mary Frauenknecht, the receipt of which is hereby acknowledged, and other valuable considerations, Mrs. Mary Frauenknecht is to pay to the niece of Mrs. Theresa Jaeger, Mrs. Theresa (Teda) Ruppert, the sum of two hundred and fifty-five dollars ($255.00) out of the money received by her, said Mary Frauenknecht, from the Supreme Lodge, Knights and Ladies of Honor, upon the Relief Certificate No. 305 issued in the name of Adolph Mueller (Dec’d.) member of Select Lodge No. 1285, said money to be paid immediately upon the receipt of said relief benefit money by Mrs. Mary Frauenknecht.
    Dated Chicago, Illinois, October 12, 1907.
    Mary Frauehkhecht (Seal)
    Theresa Jaeger (Seat.)
    Signed and sealed in the presence of A. A. "WlEBER.”
    Adolph Mueller married the widow Frauenknecht, who then had two children, Gustav and Theresa. He became a member of the Knights and Ladies of Honor, a fraternal benefit association, and a benefit certificate for $2,000 was issued by said association payable, at his death, to his step daughter, Theresa Frauenknecht, now Theresa Jaeger. In 1898 Gustav Frauenknecht had consumption, and it was decided to send him to Mexico. His wife, the defendant, agreed with his sister Theresa, that on the assignment by Theresa to her of said benefit certificate on the life of Mueller, she would furnish to her husband Gustav the sum of $500 to enable him to go to Mexico.
    Theresa then executed a formal assignment, dated June 18, 1898, to the defendant, of all her interest in said benefit certificate. Some months before October 12,1907, Adolph Mueller died. The Supreme Lodge refused to pay to the defendant the amount of said benefit certificate unless the original beneficiary, Theresa Jaeger, made another assignment to defendant. This Theresa refused to do, except on condition that the defendant pay out of the proceeds of said certificate $255 to Theresa Buppert, a step-daughter of the defendant and niece of Theresa Jaeger. This proposition was accepted by the defendant, and pursuant thereto Theresa Jaeger executed a new assignment of said benefit certificate to the defendant, receipted the certificate and she and the defendant executed the instrument sued on. The benefit society, on the surrender of the receipted benefit certificate, and the new assignment thereof, paid to the defendant the full amount of said certificate. The defendant then, on demand, refused to pay to the plaintiff the $255 she had, by said instrument, covenanted with Theresa Jaeger to pay to her, and to recover that sum this suit was brought.
    Samuel G. Grodson and Benjamin T. Roodhouse, for defendant in error.
    Edwin F. Abbott, for plaintiff in error.
   Mr. Justice Baker

delivered the opinion of the court.

Although the instrument sued on is under seal, under our statute, the plaintiff may sue thereon in her own name. Dean v. Walker, 107 Ill. 540, 546. The instrument sued on is under seal and recites a consideration. The seal is presumptive evidence of a sufficient consideration to support the covenant to pay the plaintiff the amount defendant covenanted to pay to her, and the burden was on the defendant to show that there was no consideration therefor. Mills v. Larrance, 186 Ill. 635; McFarlane v. Williams, 107 id. 33.

The contention of plaintiff in error is, that Theresa Jaeger, then Theresa Frauenknecht, by the assignment of June 18, 1898, assigned to the defendant all her interest in said benefit certificate and therefore had no right to any part of the proceeds thereof; that she took advantage of her position and obtained the contract sued on; that such contract is unconscionable and cannot be enforced either at law or in equity. In support of this contention counsel cite Caplice v. Kelley, 27 Kansas, 359, S. C. sub. nom. Kelley v. Caplice, 23 id. 337, Macoupin County v. The People, 58 Ill. 191, and Radloff v. Haase, 196 id. 365. In the case last cited it was held that the amount stipulated to be paid on the breach of a certain contract must be regarded as a penalty and not liquidated damages. Macoupin County v. The People was a proceeding in mandamus, and it was said that, “inthe opinion of the court in the exercise of a sound discretion the writ of mandamus should not be awarded.” In the Kansas case the assured and the beneficiary had, for full value, joined in the assignment of an ordinary life insurance policy and the assignee had the right and power to collect the policy from the company. For signing a new receipt the beneficiary demanded and received an agreement from the assignee to pay her merely one third of the proceeds of the policy, and this agreement the court refused to énforce.

We do not find in this record the benefit certificate, the charter of the Society, nor its constitution or bylaws, nor anything to show in what state the society was incorporated. Such a society may, by its charter, constitution, or by-laws, place limitations on the right of a beneficiary to assign a benefit certificate during the life of the member, and we cannot, on the evidence in this record, say that the assignment by the beneficiary of the benefit certificate to the defendant in the lifetime of the member gave to the defendant the right to collect the amount of the certificate from the society.

In Cooke v. Murphy, 70 Ill. 95, it was said, p. 99: ‘ ‘ The" rule is familiar that one promise is a sufficient consideration to support another, and that where a person does any act beneficial to another, or agrees to do so, that forms a sufficient consideration to support an agreement.”

In Train v. Gold, 5 Pick. 384, Wilde, J., said: “If a contract is deliberately made without fraud, and with a full knowledge of all the circumstances, the least consideration is sufficient.”

In Wilkinson v. Oliveria, 1 Scott, 461, the giving by the defendant to the plaintiff of a certain letter by means of which he was enabled to end disputes which had arisen between himself and third parties, was held a sufficient consideration for defendant’s promise to pay plaintiff 1000£. See also Sturlyn v. Albany, Cro. Eliz. 67, cited in 1 Chitty on Con., 32, where the showing of a deed whereby a suit was avoided was held a sufficient consideration for a promise.

Mrs. Jaeger was under no legal obligation to make a new assignment of the certificate or to acknowledge payment thereof. She did those acts at the request of the defendant and they were beneficial to the defendant for they enabled her, without suit, to collect the certificate. The contract sued on was deliberately executed, without fraud and with full knowledge of all the circumstances, and we think the trial court did not err in enforcing the covenant of the defendant to pay $255 to the plaintiff.

The judgment will be affirmed.

Affirmed.