author: Per Curiam :

text:
    John C. Chandler, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Railroads—fright of team. A jury may reasonably find that a team was frightened by a tie rolling down a railroad embankment where, though a dog barked from the opposite side, the first sign of fright by the team was by the horse on the side of the rolling tie lunging away therefrom.
    2. Railroads—negligence. Railroad employes are only required to anticipate and guard against consequences of rolling ties down an embankment which a reasonable person might expect therefrom.
    3. Railroads—frightening horses. It is for the jury to decide whether there is danger of frightening a team by rolling a tie down a twelve to twenty foot embankment, the foot of which is sixty or eighty feet from the highway.
    4. Railroads—frightening horses. In an action for personal injuries caused by the alleged negligence of the defendant where the declaration states that servants of the defendant threw a tie down an embankment “at and towards” the plaintiff’s team, it iti not necessary to show intent or purpose to hit the team nor to prove both "at” and "towards” assuming that they differ in meaning.

      5. Variance—when allegation of between declaration and proof ■need not be determined. Alleged variance between a declaration which avers that a tie was “thrown” down an embankment at the plaintiff’s team, and the proof, in that the proof shows that the tie was only dropped, need not be determined where there is sufficient evidence to warrant a finding that the tie was “thrown.”
    6. Variance—when not considered on appeal. Alleged variance between the declaration and proof should not be considered on appeal where the record does not show that it was pointed out to the trial court or raised therein.
    7. Parading—when declaration need not charge permanent injury. The declaration in a personal injury action need not charge permanent injury where the evidence shows that the injuries charged are in fact permanent.
    8. Instructions—when sufficient as to recovery for mental suffering. An instruction is not objectionable as authorizing recovery for mental suffering unaccompanied by physical injury where it provides for recovery for suffering in body or mind “resulting from such physical injuries” and for future suffering as the person “will sustain by reason of such injuries.”
    9. Instructions—when not error to refuse. It is not error to refuse instructions where the jury were fully instructed as to every issue.
    10. Instructions—construed. In a personal injury action, instructions are not sufficiently explicit but are calculated to mislead the jury where they state that the verdict should be for the defendant if from the evidence and instructions the jury believe that the defendant was not negligent but that the injury was caused by an accident which could not have been anticipated, and that the verdict should be for the defendant if the jury believe from a preponderance of the evidence that the injuries were caused by accident and without fault or negligence by the defendant.
    11. Judgments—when alleged excessiveness waived. Alleged ex-cessiveness of a judgment is waived if not argued.
    Action in case for personal injuries. Appeal from the Circuit Court of Macon county; the Hon. William C. Johns, Judge, presiding. Heard in this court at the November term, 1910.
    Affirmed..
    Opinion filed April 11, 1912.
    Hugh Crea and Hugh W. Housum, for appellant; John G. Drennan, of counsel.
    Chester Allan Smith and Le Forgee, Vail & Miller, for appellee.
   Per Curiam :

This is an appeal from a judgment rendered by the Circuit Court of Macon county, in favor of appellee against appellant, for the sum of $2,500.00. The action was in case to recover damages for personal injuries alleged to have been caused by the negligence of appellant.

When the trial was entered upon the’ declaration consisted of six counts; at the close of appellee’s evidence in chief, he withdrew the fourth and sixth counts and the case was submitted to the jury at the close of all the evidence, upon the first, second, third and fifth counts. The negligence charged against appellant in each of these counts is substantially the same, and is charged in substantially the same language. Some of the counts set out the environments more in detail than others. The second count as abstracted by counsel for appellant is as follows:

“Second count charges that on the 4th day of May, 1909, the defendant owned and operated certain lines of railroad track from Odin to Centralia, in Marion county, and also owned certain tracks which ran from Salem to Centralia, in Marion county, which last named tracks were, and had been for a number of years, rented, leased or loaned to another railroad corporation known as the Illinois Southern Railroad Company, which said company was upon the day aforesaid in control and using the said leased tracks for their own purposes, and running locomotive engines, cars and trains upon and over said tracks; and that said tracks of the Illinois Southern Railroad Company and the tracks of the defendant joined and united at a junction two miles from Centralia and the tracks of the defendant and the Illinois Southern ran parallel to and with each other upon the same roadbed, said roadbed being elevated above the public highway, to-wit: Twelve feet, for a distance of to-wit: One mile, before the two sets of tracks joined at the aforesaid junction.”
“That there was a certain public road running from Salem to Centraba which highway crossed over the tracks of the defendant, and also the tracks leased to the Illinois Southern Company, and after crossing said tracks ran in a southern direction east of the tracks of the Illinois Southern Railroad and the defendant’s tracks and parallel with and at a distance of to-wit: forty feet from these aforesaid tracks where the tracks ran upon the common road bed as aforesaid; and whereupon upon the day last aforesaid, the defendant company by its agents and servants, the graders or section workers, were working upon or repairing its track and road bed at this said point, and were taking old and useless ties or logs from the said tracks.”
“That on the 4th day of May, 1909, the plaintiff was riding and driving with all due care and caution in a certain carriage drawn by certain horses upon the highway at a point where the public highway ran parallel to the tracks of the defendant and said tracks of the Illinois Southern Railroad Company; whereupon it became and was the duty of the defendant company to use reasonable care in its work not to scare or frighten horses and teams driving upon the public highway; but defendant not regarding its duty, by its agents, the graders or section workers caused a tie or log of wood which had been taken from the repairs then and there being made by defendant upon its road bed to be carried across the tracks of the Illinois Southern Railroad Company and carelessly and negligently thrown down the side of the embankment towards the said public highway upon which the plaintiff was riding, and at and towards his horse, which negligence of the defendant by its said servants, frightened plaintiff’s horses, caused them to run away, and to throw the plaintiff upon the ground and thereby injuring him, his right knee being broken, his right foot smashed and bruised and he has so remained for a long space of time, to-wit: hitherto, and has been prevented from attending to Ms business and laid out large sum in endeavoring to be cured.”

The appellant at the close of all the evidence requested an instruction that the jury return a verdict of not guilty; this the court refused. The evidence shows that appellee was injured about two miles north of Centraba near a place called Branch Junction, on a public highway which runs on the east side of, adjoining and parallel with the right of way of appellant. At Branch Junction, the Illinois Southern Railway branches from the Illinois Central and runs northeasterly crossing the said public highway. The railroad tracks near where the accident happened are on an embankment which according to the witnesses is from twelve to twenty feet high. The distance between the bottom of the railroad embankment and the west lme of the highway, as testified to by witnesses for appellee, is sixty-four feet, and by witnesses for appellant, eighty-two feet. Section men were at work, some two or three hundred feet north of where the Illinois Southern Railroad crosses the highway, removing old ties from the north-bound track of appellant carrying them across the south-bound track and dropping them down the embankment on the side nearest the highway for the purpose of burning them. About two o’clock on the afternoon of the accident, appellee drove a span of horses, hitched to the running gears of a wagon, south along this highway. Appellee sat on the east side of the hounds of the wagon facing southeast. As he drove past where the section men were at work, two of the men carried a tie from the Illinois Central track across the Illinois Southern Railroad track just north of the switch uniting these tracks and rolled or threw it down the embankment toward appellee’s team. There is evidence showing that a dog came running toward the team and barking from a house east of where the accident happened. The horses took fright either at the tie rolling down this embankment dr at the dog and ran away. The appelleewas thrown from the wagon and injured. He did not see the section men and the section men did not see him until the' team started to run away.

It is contended that from the proof it is uncertain whether the horses took fright at the tie rolling down the railroad embankment on the west side of the highway or at the dog barking at them on the east side of them. The proof is that the first sign of fright by the team was by the horse on the side next the railroad lunging to the left toward the center of the highway or away from the railroad. From this evidence the jury might reasonably find that it was the tie that frightened the team as the team would naturally shy away from and not towards the object at which it took fright. Appellant also contends that from the evidence with all the inferences to be reasonably drawn therefrom, that although it had control over the work being done, yet that it did not violate any duty it owed to appellee since the section men were at work on its right of way and the ties rolled down the embankment neither rolled off the right of way, nor near the highway. “It is, however, a general rule of law that a party should so conduct himself, or use or employ his own property, as not to be likely to injure others; or as the doctrine is expressed in a frequently cited case, whenever one person is placed in such a position with regard to another that it is obvious that if the former does not use ordinary care and skill in his own conduct, he will cause danger of injury to the person or property of the latter, a duty arises to use ordinary care and skill to avoid such danger.” 21 Am. & Eng. Ency. of L. 470; Heaven v. Pender, 11 Q. B. D. 503. Appellant’s employees were required to anticipate and guard against all consequences that a reasonable person might expect to result from rolling ties down the bank, but they were not required to anticipate and guard against such things as an ordinarily reasonable man would not expect to occur from the manner of doing the work. There was no negligence in appellant rolling ties down the bank on its own property. The act of rolling the ties down.the bank could only become negligent if a team, that was being driven along the highway, would reasonably be expected to take fright and run away because of the ties rolling down the bank. “The principle is, damages which are recoverable for negligence must be such as are the natural and reasonable result of defendant’s act, and the consequences must be such as in the ordinary course of things would flow from the acts and could be reasonably anticipated as a result thereof.” Braun v. Craven, 175 Ill. 401; Seith v. Commonwealth Elec. Co., 241 Ill. 252; C. & A. R. R. Co. v. Scranton, 95 Ill. App. 619. "Whether there was danger of frightening a team of horses by rolling a tie down a twelve to twenty foot embankment, the foot of which was from sixty to eighty feet distant from the side of the highway, is a question over which reasonable men might differ. It is one peculiarly within the province of a jury to decide. This view of the evidence disposes of appellant’s contention that the trial court erred in refusing to direct a verdict in its favor except as to its claim and contention with respect to a variance.

Appellant also insists that there is a variance between the averments of the declaration and the evidence, and that the peremptory instruction should have been given for that reason. The declaration charges in each count that the tie or log of wood “was thrown down the side of the embankment * * * at and towards his (appellee’s) horses.” Counsel for appellant insist that there is no evidence tending to prove that the tie was thrown “at and towards” appellee’s horses, but they contend that what the evidence does prove is, “that the tie was dropped, instead of being thrown down the embankment,” and upon this they base their claim that there is a material variance between the declaration and the proof.

The charge in the declaration, more fully stated, is, that the servants of appellant “caused the tie to be carelessly and negligently thrown down the side of the embankment towards the public highway upon which the plaintiff was riding, at and towards his horses.” The gravamen of the charge is negligence. To sustain this charge it was not incumbent upon appellee to prove that the servants who handled the tie had in. their minds an intent or purpose to hit appellee’s horses with the tie, nor was it necessary for him to prove both “at” and “towards,” even assuming if we can, that they materially differ in meaning, when used as they appear in the declaration. Proof of either was sufficient; and whether thrown or dropped, the evidence clearly proves that the tie passed down the side of the embankment towards the public highway upon which appellee was riding, and that it passed towards his horses.

As to counsel’s contention with respect to “thrown” and “dropped” it is wholly unnecessary for us to discuss or to determine whether or not the difference in meaning between these words, as they appear in the declaration and in the evidence, constitute a material variance.

A number of witnesses testified with respect to the handling of the particular tie in question. One of them, Earnest Stafford, testified as follows: “There were six of us there; I suppose we had taken out twenty or more of them. We threw them or dropped them.down the bank on the east side.” “I was tossing a tie over, me and Tom Henninger. He was at one end and I at the other. We walked across the Illinois Southern and dropped it down the bank. It rolled down the bank.” “There was a ravine between the bottom of the bank and the edge of the thicket at the place where the tie was down in. It must have been something like twelve feet, I suppose, it slid down before it hit the ravine at the bottom. Upon that occasion when . I threw it down did not look to see whether there was anybody coming down the road or not. I did not make any effort to ascertain whether anybody was coming along there. After I dropped the tie and started back to work, I heard a noise and looked around and saw horses running away.” “The horses were about fifteen feet south from the point that would be immediately opposite to where we dropped the tie down.” Another witness, Hardy McWhurter, testified: '“Was working there on the day plaintiff was hurt.” “When the ties were taken out they were taken to the embankment and we dropped them down into the ravine or gully below.” “Q. How much noise did that tie make as it went down the side of the embankment?” “A. I don’t know as it made any; I didn’t pay any attention as it was rolling through loose cinders, it couldn’t have made much. After being thrown down, I suppose it lay at the edge of the embankment. It struck other ties at the bottom, I guess.”

In describing the operation of passing the tie over the edge of the embankment, for the purpose of causing it to land in the ditch at the bottom of the slope of the embankment, some of the witnesses used both words, “threw” and “dropped,” while some of them used only the word “dropped,” but enough appears from the description of the situation and purpose and manner of handling’ the ties as detailed by the various witnesses, to fully warrant the jury in believing that the tie was passed over the edge of the embankment with sufficient force and impetus forward to fully meet all the requirements of the word “thrown” as used in the declaration.

Counsel for appellant contend that “there is another variance between 'the declaration and the proof which is material and fatal to any recovery being sustained, and that is, each count charges that the plaintiff was riding and driving in a certain ‘carriage,’ and the proof is that it was a ‘wagon.’ ” They say: “A wagon is one thing and a carriage is another thing.” We do not feel at liberty to discuss this question, for the reason that it does not appear from the record that this alleged variance was “pointed out” to the trial court or that it was in any manner raised in that court.

With respect to the questions as to negligence on the part of appellant, contributory negligence on the part of appellee and proximate cause raised and argued by counsel for appellant, we are of the opinion that while these were all debatable questions of fact when the case was before the jury, the state of the evidence is such as to make it our duty to hold that appellant is foreclosed upon each and all of these questions by the verdict.

The court gave at the instance of appellee the following instructions as to the measure of damages:

“The court instructs the jury that if you find for the plaintiff, you will be required to determine the amount of his damages. In determining the amount of damages, the plaintiff is entitled to recover in this case, if any, the jury have the right to, and they should take into consideration all the facts and circumstances as proven by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the injury, his suffering in mind and body, if any, resulting from such physical injuries and such future suffering and loss of health, if any, as the jury may believe from the evidence before them in this case he has sustained or will sustain by reason of such injuries and may find for him such sum as in the judgment of the jury under the evidence and instructions of the court in this case will be fair compensation for the injuries he has sustained or will sustain, if any, so far as such damages and injuries, if any, are claimed and alleged in his declaration and proven, and it is not necessary for any witness to express an opinion as to the amount of such damages.”

Counsel for appellant challenge this instruction upon three grounds: That the declaration does not charge that the injuries are permanent, nor that suffering and loss would continue into the future; that the instruction contains the element of suffering in mind; that this would allow a recovery for mental anguish; and that the instruction is not supported by the evidence.

The undisputed evidence proves that appellee was very seriously injured in the respects charged in his declaration, and it tends strongly to prove that he had not fully recovered at the time of the trial, and the very nature of the injuries establishes pain and suffering. True the declaration does not charge permanent injury, but such a charge is not necessary where the evidence proves that the injuries charged are in fact permanent. Furthermore, if we may assume that while the evidence tends to prove that appellant had not recovered at the time of the trial, it does not prove a permanent injury; still an inspection of the instruction shows that it neither assumes nor mentions a permanent injury.

Counsel say there can be no recovery for mental suffering unaccompanied by physical injury. That is true, but this instruction guards that point by saying, his suffering in body or mind, if any, “resulting from such physical injuries # * * and such future suffering # * * if any as the jury may believe from the evidence * * * he * * * will sustain by reason of such injuries.” This instruction as given is fully supported at the points attacked, by the following cases: West Chicago St. R. R. Co. v. Mc-Callum, 169 Ill. 240; Eagle Packet Co. v. Defries, 94 Ill. 598; Springer v. Schultz, 205 Ill. 144; Consolidated Traction Co. v. Schritter, 222 Ill. 364; Indianapolis & St. Louis Railroad Co. v. Stables, 62 Ill. 313.

Counsel presented to the trial court twenty-nine instructions on behalf of appellant. The court gave sixteen of them and refused the others, and counsel insist that the court erred in refusing those not given, and especially so as to two of them, the 8th and the 12th. These two instructions are as follows: 8th.

“The jury are instructed that if you believe from a preponderance of the evidence that the injuries to the plaintiff were the result of mere accident and without any fault or negligence on the part of the defendant or its servants, then your verdict should be for the defendant.” 12th. “If you believe from the evidence under the instructions of the court, that there was no negligence on the part of the defendant, but that the injury to the plaintiff was the result of an accident, which could not reasonably have been anticipated or expected to happen under the same or similar circumstances, then your verdict should be for the defendant.” These two instructions or these in both substance and general form, are frequently asked in cases of this class and sometimes given, and there are a few cases holding that it is an error to give them, but we know of no case in which it has been held error to refuse them or either of them. They are not sufficiently full and explicit and are in a form well calculated to mislead a jury. In this case, however, there could be no reversible error in the refusal of them, for the reason that the jury were fully instructed as to the law upon every issue in the case in the instructions that were given.

The appellant has also assigned for error that the judgment is excessive but it has presented no argument concerning the damages hence it has waived such assignment. We find no substantial error in the record and the judgment of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Puterbaugh

license: Public Domain

text:
    William M. Checkley, Appellee, v. Joseph Lay Company and Victor Automobile Company, Appellants.
    1. Fraud—sufficiency of declaration. , A declaration hy the buyer of an automobile alleging that the seller falsely and fraudulently warranted the machine to be as therein stated, the falsity of the warranty; that the same was made with the intention of inducing the purchase; that the seller had knowledge as to the falsity; that the buyer relied thereon and suffered injury, substantially presents all the essential elements of fraud and deceit.
    2. Fraud—ignorance of false warranty. Where the buyer of an automobile claimed that certain warranties were false, his ignorance of the falsity of the warranties may he inferred from the fact that he relied thereon.
    3. Fraud—waiver of defect in pleading. A defendant in fraud, pleading to an inartificially drawn count after demurrer is overruled, cannot thereafter complain of its informality.
    4. Fraud—aider by verdict. A good cause of action in deceit stated in a faulty manner may he cured by the verdict.
    5. Principad and agent—binding effect of agent’s false statements to buyer. Where an agent of an automobile manufacturer falsely states that the car has a certain capacity and is as good as a car of a certain make and that it is impossible to tell where the tonneau is joined to the rest of the body, such representations are binding upon the manufacturer in an action of deceit.
    6. Fraud—instruction omitting essential requirements. An instruction by a buyer of automobile, suing in deceit, peremptory in form, setting out certain false representations, that omits to state that the representations must have been fraudulently made for the purpose of inducing the purchase, and that the plaintiff must have relied upon such representations and have been deceived and damaged, is improper.
    Appeal from the City Court of Mattoon; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    Craig & Kinzel and E. E. McGriff, for appellants.
    Emery Andrews and James W. & Edward G. Craig, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an appeal by the defendants from a judgment rendered against them for $1,278. The additional count of the declaration charges that on February 4, 1910, the plaintiff entered into negotiations with the defendants for the purchase from them of an automobile, at the price of $1,278; that the defendants, for the purpose of inducing the plaintiff to purchase the automobile at such price, then and there fraudulently and falsely warranted the same to be a full up-to-date new five passenger family touring car, with detachable tonneau, and to be as good as or better than a certain car known as the Buick car, and falsely represented that it was impossible to tell where said tonneau was joined together with the rest of the said car; that if said car was not a new, first-class, five-passenger car, right in every particular, and as good as or equal to the car known as the Buick car, and if said plaintiff was not perfectly satisfied with it, when he saw it, he did not have to take it and that said representations were made by. said defendants with the intention and for the purpose of inducing the plaintiff to purchase the same, all of which representations and warranties were known by them to be false and untrue; that the plaintiff, relying upon said representations and warranties of the defendants, purchased the same for the sum of $1,278, which said sum the plaintiff, on May 6, 1910, paid to the defendants; that the defendants delivered an automobile to the plaintiff, on May 18, 1910, which was not the automobile for which the plaintiff had bargained, in that said automobile was not a new and up-to-date, five-passenger, family touring car, and was not as good as or equal to the car known as the Buick automobile, but was an assembly of out-of-date parts made by different automobile supply factories assembled and repainted and put in said machine; that the tonneau was not joined together with the rest of said machine in the manner stated by said defendants, but that there was a large space of one-half inch between said tonneau and the rest of said machine; that said machine, instead of being a new, up-to-date, five-passenger, family touring car, perfect in workmanship, as represented by said defendants, and as good or better than the car known as the Buick car, was but an assembled car composed as theretofore stated, and in no way as good as the Buick car; all of which the defendants then and there well knew; that the plaintiff without delay after he saw said car and discovered the fraud and deceit that had been practiced on him, offered to return the said automobile to the defendants, and to rescind the said contract of sale so fraudulently made by the defendants, and told them he was not satisfied with it, but that the defendants refused to accept said automobile and to return to the plaintiff the purchase price thereof. After a demurrer to the declaration had been overruled the defendants pleaded the general issue thereto.

The evidence discloses that the defendant, the Victor Automobile Company, the manufacturer of an automobile called the “Senator,” was a subsidiary company of the defendant the Joseph Lay Company, broom and brush manufacturers at Ridgeville, Indiana; that the plaintiff was a broom corn broker at Mattoon, Illinois, and one Nunemaker and one Taylor, hereinafter referred to, were engaged in similar business at Greenup, Illinois, and at Arthur, Illinois, respectively ; that about February 1,1910, Nunemaker informed the plaintiff that he was going to buy three of the defendant’s cars; that by so doing he could get them for $1,250; that he would let the plaintiff and Taylor each have one at that price, and that he would not charge them any commissions. The evidence further tends to show that in order to induce the plaintiff to buy a car, Nunemaker made to him substantially the representations charged in the declaration, and stated, further, that if the car was not a success the plaintiff did not have to keep it; and that he, Nunemaker, would see that he did not, adding, “Now that is what the Lays told me;” that upon the plaintiff expressing some doubt as to the air-cooled engine, Nunemaker asked him to write to the Lays; that instead of so doing the plaintiff wrote a letter of inquiry to Nunemaker, who in turn wrote to one of the defendants requesting them to write to the plaintiff in reference to the car. The evidence further shows that in response to such request, on February 12, 1910, the defendant, the Victor Automobile Company, wrote to the plaintiff a letter containing the following statements : “We can fully guarantee the car in every way. Our tests as to cooling by air has been very severe and in no instance has it failed in doing the .cooling complete, better in fact than any water cooled of the same H. P. that we have seen tested. We guarantee this cooling to be all that we say in every way. Ton must understand that all machines warm up but the ‘Senator’ does not get warm enough to hurt the running qualities and many water cooled engines get hot enough to spoil them or at least injure them. The ‘Senator’ runs any day of the year hot or cold weather, and no wait or bother with water either. We know its merits and believe in time, that it will be recognized by users too. Hope to have the pleasure of putting up a car for you that will be correct in every single part and put up on honor as to workmanship.”

The evidence further shows that on February 23rd, the plaintiff entered into a contract with Nunemaker for the purchase of one of the cars in question, and that Taylor purchased the remaining one; that on April 6th, the plaintiff sent to the defendants a draft for $1,278 in payment for his car; that the same was thereafter shipped to him from Bidgeville. The plaintiff testified that upon the arrival of the car at Mattoon he found screw holes in the back of the front seat where the robe rail should have been; that the extra tire was old and useless; that there were holes in the fenders; that the tonneau did not fit close to the bed; that the lamps were tarnished, and the horn battered; that the finish appeared old; that the car had no magneto and that the carburetor appeared to have been used for several years. He further testified that when he tried to use the car he found that the engine heated easily; that after he had run it ten or twelve miles he could not pull five passengers up a small hill, and that the car was useless and worthless for the purposes for which he had bought it; that he notified Nunemaker, by letter, to that effect. The evidence further shows that thereupon Nunemaker went to Mattoon, and after riding in the car, wrote to the defendants enclosing the plaintiff’s letter; that the defendants then sent one Carpenter, the person who designed and made the cars, to Mattoon; that Carpenter tried to make a trip with the car with five passengers, but without success, and then stated that he had originally designed the car for a two-passenger- run-about, but that the defendants had ordered him to put a tonneau on it, and that the load was too heavy for the car, and that Carpenter then took the car to a machine shop for repairs, whereupon plaintiff told him to keep the same, and demanded his money back, and then instituted the present suit. The evidence adduced, by the defendants tended to show that all the parts composing the car were of good quality, of proper size, strength and material, and such as were used in automobiles of like kind; that they were properly put together and that the car fully met the requirements of the written contract of purchase, and further, that its failure to operate satisfactorily was due to the fact that the plaintiff permitted it to be tampered and tinkered with by incompetent repair men.

The additional count upon which the issues were tried, although inartificially drawn, alleges that the defendants fraudulently and falsely “warranted” the automobile to be as therein stated, the falsity of said “warranty;” the making of the same with the intention of inducing the plaintiff to purchase; the knowledge of the defendants as to their falsity; the reliance by the plaintiff thereon, and the injury to him, thus substantially presenting all the essential elements of actionable fraud and deceit. (Foster v. Oberreich, 230 Ill. 525.) Ignorance on the part of the plaintiff of the falsity of such “warranties” may well be inferred from the fact that he relied thereon. Having pleaded to said count after demurrer thereto was overruled, the defendants cannot thereafter complain of its informality. A good cause of action was thus stated, although in a faulty manner, and any defect therein was cured by the verdict. (Foster v. Oberreich, supra.) The evidence is ample to establish that Nunemaker was the agent of the defendants in the transaction. They were therefore bound by his representations. It cannot be questioned that the representations made by him to the effect that the car was a five-passenger car, right in every particular, and as good as or equal to the car known as the Buick car, and the further representation of the defendant the Victor Company, by its letter of February 12th, to the effect that “our tests as to cooling by air have been very severe, and in no instance has it failed in doing the cooling complete, better in fact than any water cooled of the same H. P. that we have seen tested. We guarantee this cooling to be all that we say in every way. * * * The ‘Senator’ does not get warm enough to hurt the running qualities, ’ ’ etc., were statements of fact material to the transaction in question. The evidence upon the issues as to whether such statements were untrue, whether the plaintiff relied thereon, and whether the defendants knew the same were false and' made the same with intent to deceive and defraud the plaintiff, and thus induce him to buy the car, is in conflict. As the judgment must be reversed and the cause remanded because of error in the instructions, it is unnecessary to further discuss or weigh the evidence.

The plaintiff’s fourteenth instruction was peremptory in form, and told the jury that if they believed from a preponderance of the evidence, that the car was not as good as the Buiclc, that the defendants represented that it was, and knew that it was not, they should find for the plaintiff, thus omitting the essential requirements that the representations must have been fraudulently made for the purpose of inducing the plaintiff to buy the car, and that the plaintiff must have relied upon such representations, and in consequence been deceived and damaged,—which are essential elements in actions of this character.

It is well settled that an instruction directing a verdict for either party in the event that the jury should find that certain enumerated facts were established, must contain all the facts essential to authorize such verdict, and that error in this regard cannot be cured by other instructions. (Partridge v. Cutler, 168 Ill. 512.) The third instruction given at the request of the plaintiff is subject to a like criticism.

For the errors indicated, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed, and remanded.


text:
    W. H. Beeler, Appellee, v. Danville, Urbana & Champaign Railway Company, Appellant.
    1. Street railroads—contributory negligence of driver as a question of fact. Where on an action for the killing of a horse the driver testifies that he knew electric cars ran frequently, that he looked before driving on the track, but not again after driving 250 feet when a collision occurred with an overtaking car, and that he heard no signal until too late to leave the track; the evidence as to the sounding of a gong and the speed of the car is conflicting; and the defendant gave testimony that when the driver drove in front of the approaching car the brake - was at once applied but failed to work; the question of the driver’s contributory negligence is for the jury.
    2. Stbeet bailboads—evidence insufficient to sustain verdict in a collision case. In an action for the killing of a horse the driver testified he knew electric cars ran frequently, that he looked before driving on the track, but not again after driving 250 feet when a collision occurred with an overtaking car, and that he heard no signal until too late to leave the track. The evidence as to the sounding of a gong and the speed of the car was conflicting, and the defendant gave testimony that the driver drove in front of an approaching car when the brake was at once applied but failed, on account of snow, to work. Held, the driver was not exercising due care and caution and a verdict for the plaintiff was clearly and manifestly against the weight of the evidence.
    Action in case for damages for killing of horse. Appeal from the Circuit Court of Vermilion county; the Hon. M. W. Thompson, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed.
    Opinion filed April 11, 1912.
    Charles Troup, for appellant; George W. Burton, of counsel.
    R. Allan Stephens, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action in case for the recovery of the value of a horse which was killed by one of the defendant’s electric cars. The jury returned a verdict for the plaintiff and • assessed his damages at $200. Judgment was rendered upon said verdict, whereupon the defendant appealed.

The declaration charges that on April 18, 1910, the plaintiff, by his servant, one Jones, was with due care and diligence driving a team of horses attached to a dray wagon along Main street in the city of Danville; that near where Main street intersects Pine street, the servants of the defendant so improperly drove and managed one of its electric street cars, that the same ran into said team and so wounded one of the plaintiff’s horses that it became necessary to kill it.

The evidence shows that Main street runs due east and west; that the defendant maintains two tracks thereon for the operation of its electric cars, the one on the south being for east-bound cars and the one on the north for west-bound cars; that the two tracks converge at the intersection of Pine and Main streets, west of the place where the accident occurred; that Jones, the servant of the plaintiff, drove the team in question out of an alley on the south side of Main street, and then turned to the west. He testified that when he came out of the alley he looked east and saw no car coming; that he started to cross the tracks to go to the north side of the street, and drove straight across until he got middle way between the tracks, but upon looking west he saw an automobile coming along the north side of the tracks; that he drove in between the tracks until he could clear the automobile, and then drove west, partly on the south track and partly on the north track, the wagon straddling the north of the south track rail; that when about 200 feet west of the alley, with the south wheel of his wagon just about a foot over the north rail of the south track, an electric car upon the west-bound track came up behind him, and before he could turn off the space between the tracks, such car hit the north horse; that he heard no warning at the time, but that he heard a whistle blow a minute or half a minute before, which was the first time he knew there was a car behind him; that thereafter he picked up and pulled the reins, but did not have time to turn the horses out; that he was driving at a trot, his team and wagon being barely clear of the path of any car which might come from behind on the west-bound track. He admitted that he knew that cars ran up and down Main street very frequently.

The testimony as to the speed of the car, and whether or not the motorman sounded the gong prior to the accident, and where, and when, and to what extent, was in close conflict, the witnesses for the defendant fixing the speed of the car at from seven to eight miles an hour, while a witness called for the plaintiff testified that it was running at twenty-five miles an hour at the time of the collision. The motorman and another witness testified that the gong was rung continuously, while a number of witnesses called by the plaintiff testified that they did not hear the gong ring or whistle blow until just before the horse was struck. The testimony offered by the defendant tended to show that the team was being driven westward along the south side of the south track, and that upon coming to a team hitched on that side of the street, was turning diagonally across the tracks in front of the approaching car; that the brake was at once applied but failed to work, because of there being snow on the track, and that by reason thereof the car slid, striking the horse. While Jones testified that immediately after leaving the alley he looked behind him to ascertain if a car was coming from that direction, he admitted that he thereafter drove the entire distance of at least 250 feet from the alley to the place where the horse was struck with the wheels of his wagon on either side of the north rail of the south track, without again looking behind him, and gave no reason or excuse for his failure to do so, nor why after the automobile had passed him on the north and before the car struck him, he did not turn his team off the tracks to the north side of the street, and thus have been entirely out of danger.

It cannot be said as a matter of law, that Jones was guilty of contributory negligence, and the court properly submitted the question to the jury. It was, however, necessary to a recovery by the plaintiff, that he should show by the greater weight of the evidence, the essential allegation of his declaration that Jones was, at and immediately prior to the collision, exercising such care and caution for the safety of himself and the plaintiff’s property as an ordinarily prudent person would have exercised under like or similar circumstances. We are of opinion that the evidence fails to establish such fact, and that the finding of the jury in this particular was clearly and manifestly against the weight of the evidence. The verdict was unwarranted and the judgment predicated thereon will be reversed.

The clerk of this court will incorporate in the judgment of this court the finding of fact that the plaintiff’s servant Jones was not in the exercise of due care and caution as averred in the plaintiff’s declaration.

Reversed.


text:
    A. Milhim, Appellee, v. Hawkeye Ins. Co., Appellant.
    1. Judgments-—for a definite amount. In an action upon a fire insurance policy a judgment for “$1,000 with five per cent, interest commencing sixty days after the delivery of said proof of loss to defendant,” etc., is void as not being for a definite amount that can be ascertained from the judgment alone.
    2. Insurance—burden to show insured caused fire. Where the defense to an action on a fire insurance policy is that the insured caused the fire, an instruction, at the request of the plaintiff, that the burden was upon the defendant to prove beyond a reasonable doubt that the plaintiff knowingly, directly or indirectly, caused the fire, before it could establish such defense, is misleading.
    3. Insurance—burden to show plaintiff was not the owner of goods. In an action upon a fire insurance policy requiring the insured to be the owner of the goods, an instruction that the burden is upon the company to establish its defense, that the insured was not the sole owner of the stock of goods insured, is correct.
    4. Insurance—effect of proof of insurable interest in goods. Where a fire insurance policy requires the insured to make true statements as to his ownership of the goods, if the insured, who bought goods partly on credit, shows that he had an insurable interest to the amount of the policy, he makes a prima facie case, and it then devolves upon the. company, in order to render the policy void, to show that the interest of the insured' was other than unconditional and sole ownership.

      5. Insurance—necessity that instruction negative defense of fraud. Where a fire insurance policy provides that it shall be void if the insured makes certain false statements or is guilty of fraud, an instruction for the plaintiff, which directs a verdict, is improper in not negativing a defense that he made false and fraudulent statements, in his proof of loss, and in examination thereafter, as to the amount and value of the goods insured, the ownership thereof, the extent of loss and the origin of the fire.
    6. Insurance—evidence. A letter to fire insurance adjuster, in reply to one written to the insured, consisting largely of self serving declarations is inadmissible in an action on a policy of insurance.
    7. Insurance—cross-examination to show conspiracy to cause loss. On a defense to an action on a fire insurance policy that the fire was procured by the insured and that he had conspired with others to procure insurance upon stocks of goods in order to have them destroyed by fire, it is error to refuse to permit a cross-examination that will develop the alleged fact that a conspiracy existed.
    8. Insurance—offer of compromise is not admissible. In an action upon a fire insurance policy any evidence, the effect of which is to show the admission of liability by offers of compromise, is incompetent.
    9. Insurance—effect of affidavit of merits stating fraud by insured. Where a fire insurance company files a plea of the general issue and an affidavit of merits stating the plaintiff made certain fraudulent practices, it is entitled to show that the goods were destroyed by fire through connivance and that the goods were fraudulently overvalued.
    Action on a policy of insurance. Appeal from the Circuit Court of McLean county; the Hon. Colostin D. Myers, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed April 11, 1912.
    Charles B. Obermeyer, James S. Ewing and Wight & Alexander, for appellant.
    DeMange, Gillespie & DeMange, for appellee.
   Mr. Justice Puterbaugh

delivered the opinion of the court.

This is an action upon an insurance policy issued by the defendant to the plaintiff upon a stock of merchandise located in a store-room in Bloomington, Illinois, and consisting of dry goods, notions, ladies’ furnishing goods, and other articles. The jury returned a verdict in favor of the plaintiff for $1,000, the face of the policy. Upon such verdict the court rendered judgment against the defendant for “$1,000 with five per cent, interest commencing sixty days after the delivery of said proof of loss to defendant in form as aforesaid by the jury assessed, together with his costs and charges,” etc.

The declaration sets out the policy in haec verba, and then alleges that the plaintiff had an interest in said property to the extent of $1,000; that said property was, on October 4, 1910, destroyed by fire, resulting in a loss to the plaintiff of $1,000; that the plaintiff had complied with all conditions required by the policy to be by him performed, and that the defendant had refused to pay the said loss. The defendant filed a plea of general issue and an affidavit of merits, setting up that it expected to prove in defense of the plaintiff’s demand that the plaintiff made false representations as to the amount and value of the property insured for the purpose of procuring said policy, and, after the fire made false representations to the defendant in his proof of loss and examination; that he falsely represented that he was the sole owner of such property; that the fire which caused the loss was occasioned by the act or procurement of the plaintiff; that he had conspired with various other persons to procure insurance upon stocks of goods in various cities, for the purpose of having the same destroyed by fire, in order to obtain the insurance thereon, and that the fire alleged in the declaration was set in furtherance of such conspiracy, and that the plaintiff had not performed the conditions precedent prescribed by the said policy, nor complied with the warranties therein.

The policy contains the following provisions: “This entire policy shall be void if the insured has concealed or misrepresents, in writing or otherwise, any material fact or circumstances concerning this insurance or the subject thereof, or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss. This entire policy, unless otherwise provided by agreement hereon, or added hereto, shall be void if- * * * the interest of the insured be other than unconditional and sole ownership.”

The evidence introduced by the plaintiff tended to establish each of the material allegations of the declaration. It appears therefrom that about August 20, 1910, the plaintiff, a Syrian, then about 26 years of age, opened a store in Bloomington. His stock consisted of fancy work, drawn work, oriental laces, silver laces, kimonas, underwear, overalls, etc.; that the cost of said stock was about $19,000, of which he paid $12,000 in cash, and obtained credit for the balance ; that he obtained insurance thereon to the extent of $13,000, including the policy here involved; that on October 4, 1910, during the absence of the plaintiff from the city, a part of said stock was destroyed by fire, resulting in a total net loss to the plaintiff of $15,098.27. The evidence adduced by the defendant tended to establish the defenses suggested by the affidavit of merits, particularly that the fire was the consummation of a conspiracy as charged. As the judgment appealed from must be reversed and the cause remanded, for the reasons hereinafter stated, we shall not detail or further discuss the evidence, or determine the probative force or effect of the same, but shall only consider briefly the more important of the questions of law presented by the numerous errors and cross-errors assigned.

We are of opinion that the contention that the judgment rendered is void, is well founded. A judgment must be for a definite amount, and such amount must be ascertainable from the judgment alone. It is obvious that the clerk could not determine from the present judgment for what amount to issue an execution, nor could the sheriff determine from the .execution, in the event that it followed the judgment in form, as it should, for what amount to make demand or levy. (Dickinson v. Rhan, 98 Ill. App. 245, and cases there cited.)

The second instruction given at the request of the plaintiff told the jury that the burden was upon the defendant to prove beyond a reasonable doubt that the plaintiff knowingly, directly or indirectly, caused the fire in question, before it could establish such defense. Such instruction was misleading. If the defendant proved beyond a reasonable doubt that the plaintiff aided, assisted in, advised or abetted the setting of the fire, or that the same was set in pursuance of a conspiracy to set the same, to which the plaintiff was a party, the defense sought to be interposed would be thereby established.

The court correctly instructed the jury that the burden was upon the defendant to establish its defense that the plaintiff was not the sole owner of the stock of goods insured. By showing that he had an insurable interest in the stock to the amount of the policy, the plaintiff made a prima facie case. It then devolved upon the defendant, in order to render the policy void under the provisions invoked, to show that the interest of the insured was other than unconditional and sole ownership.

The fifth instruction given for the plaintiff, which directed a verdict, should have negatived the alleged defense that the plaintiff made false and fraudulent statements in his proofs of loss and in his examination thereafter, as to the amount and value of the goods insured, the ownership thereof, the extent of the loss, and the origin of the fire.

.The court erred in admitting in evidence Exhibit “Gf,” being the letter dated November 28, 1910, from the attorneys of the plaintiff to the adjuster Stratton, in reply to one written by him to the plaintiff. It was incompetent for any purpose, consisting largely in self-serving declarations and other matter clearly prejudicial to the defendant. (Barnett v. Noble, 155 Ill. App. 129.)

The court further erred in refusing to permit the defendant to develop by the testimony of the witness Bahout, and by cross-examination of the plaintiff and Charles Solomon, alleged facts which tended to establish the charge that a conspiracy existed as heretofore stated. (Roscoe Crim Ev., Sections 92-3; Wharton Crim. Ev., Section 32; Ochs v. People, 124 Ill. 421; Archbold’s Cr. Pl. & Pr., 619.) Any and all evidence which to the slightest degree tended to prove a conspiracy as charged was competent and should have been admitted.

Any evidence, the purpose and effect of which was to show the admission of liability by offers of compromise, was clearly incompetent. (Rockafellow v. Newcomb, 57 Ill. 186; Paulin v. Howser, 63 Ill. 312; Barker v. Bushnell, 75 Ill. 220; Village v. Hayes, 150 Ill. 273.)

Under the general issue and affidavit of merits the defendant was entitled to show, if it could, that the goods were destroyed by fire through connivance of the plaintiff and to show further that the goods were fraudulently over-valued by the plaintiff.

We are of opinion that none of the cross errors are well assigned.

For the reasons indicated, the judgment of the Circuit Court is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Baldwin

text:
    William Beard et al., Plaintiffs in Error, v. Chicago Home for Convalescent Women and Children, Defendant in Error.
    Gen. No. 16,933.
    1. Contracts—construction of Tetter from charitable organization engaging operatic society. Where a charitable organization is to give an entertainment and its president writes to the president of an operatic society, “we understood that the society is to be paid nine hundred dollars which would include the payment of the chorus for the rehearsals, their payment for the two performances coming from the proceeds,” the comma between “rehearsals” and “their” does not indicate that the society is to be paid absolutely if the money is not realized, in view of the fact that the other party is a charitable organization.
    2. Contracts—evidence not showing a meeting of minds. An agent of a charitable organization negotiated with the president of an operatic society as to the giving of an entertainment, and the president desiring a confirmation informed the president of the organization that he expected a certain sum whether it was realized by the entertainment or not. In reply he was informed that there was no such understanding but that the society was to be paid a certain sum, which would include payment to the chorus for the rehearsals, their payment for the performances coming from the proceeds, and that all expenses were to be paid from the proceeds and the surplus to go to the charity. Held, there was no meeting of the minds to constitute a contract to pay the sum if it was not realized.
    Error to the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    Rehearing denied June 18, 1912.
    Taylor & Lundahl, for plaintiffs in error.
    Arnd & Arnd, for defendant in error.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

Plaintiffs in error began an action of the fourth class in the Municipal Court of Chicago to recover about $900 for certain operatic performances rendered by them for defendant in error on December 15 and 17, 1909. A jury was waived and the cause tried before the court, and resulted in a judgment in favor of defendant in error.

Upon this writ of error we have for consideration but one question, and that is, Did the defendant in error agree to pay the plaintiffs in error for the two operatic performances any given sum to be paid absolutely or, was the service to be paid for solely out of the proceeds derived from the performances %

Plaintiffs in error are members of the Chicago English Opera Society, consisting of seventeen principals, and, in rendering the theatrical performance, they employed a chorus of about fifty-six members. Defendant in error, Chicago Home for Convalescent Women and Children, a corporation, is a charitable organization, providing homes for indigent women and children in a state of convalescence, and aiding them to secure employment after recovery. It is said to be maintained entirely by charitable contributions. Its president in 1908 was Mrs. Dr. Babcock, who then had a home at Green Lake, Wisconsin, where she gave a lawn party for the benefit of the “Home.” A Mr. Cameron was in attendance at the lawn party, and suggested to Mrs. Babcock the desirability of giving an opera for the benefit of the “Home.” Some time in October, 1909, he met Mr. Bissell, the president of the plaintiff Society, with whom he subsequently conferred about the details concerning the proposed entertainments, Mr. Cameron acting apparently as the friend of both parties, though especially interested in the affair, because he believed it would result in financial gain to the “Home.” The arrangements for the performance to be given were nearly perfected when Bissell required a confirmation by Mrs. Babcock of the proposed agreement. Accordingly, on the 3rd or 4th of December, 1909, Mr. Bissell had a telephone interview with Mrs. Babcock, in which he informed her concerning the negotiations, stated the terms upon which the performances were to be given, and requested that she confirm the agreement between him and Cameron by letter, as he had been promised that this should be done. Bis-sell testified to having told Mrs. Babcock over the telephone that he had requested Mr. Cameron to ask her to write a letter, stating that the principals were to be paid $900 for the services, and that the- chorus was to be paid at the rate of $3 each for each performance, and gave as a reason for requiring such a letter that the members of the Society were asking him for this verification of their understanding. He testified further that she replied to the effect that she did not un- • derstand the arrangement as he had stated it, but understood that the money was hot to be paid except in the event of the performances proving successful, that is, unless they resulted in a profit. He then told her that it would be impossible for the Society to go ahead on any such understanding; that they had given much time to rehearsing, and expected to be paid, regardless of the outcome, and could not proceed on any other understanding; "Whereupon, he says, she promised that she would write him a satisfactory letter. About a week later, he received a letter from Mrs. Babcock, dated December 10th, which reads as follows:

“37 Bellevue Place. Mr. Bissell. Dear sir: In accordance with our conversation over the telephone, in which you ask for my understanding of the arrangements through Mr. Cameron with your Chicago English Opera Society, I would say that we understood that the Society is to be paid $900 which would include the payment of the chorus for the rehearsals, their payment for the two performances coming from the proceeds. All expenses to be paid from proceeds, and anything left over to come to Chicago Convalescent Home.
Very truly,
Dec. 10th. (Signed) L. W. Babcock.”

After receipt of this letter by Mr. Bissell, no further negotiations were had. The entertainments were given on the 15th and 17th of December, 1909, and were a failure from a financial standpoint, resulting in a loss of over $300, without any payment to the Opera Society. After the performances had been given various letters passed between Mr. Bissell, Mr. Cameron and Mrs. Babcock, and various suggestions were made as to other schemes or enterprises proposed with a view of raising money with which to pay the loss sustained, and, some part at least, of the amount claimed by plaintiffs in error.

On the trial plaintiffs in error submitted six propositions of law, upon which defendant in error marked “No objections,” and all of which were marked “Held” by the court. Plaintiffs in error claim here that, applying the propositions of law to the facts, the court below erred in rendering judgment for the defendant in error.

Upon the hearing in the court below, defendant in error offered no testimony. We have carefully considered that offered on behalf of plaintiffs in error, and are of the opinion that the court below reached a correct conclusion.

Plaintiffs in error desired to give these performanees under the auspices of the “Home” because they thought it would be a g’ood thing for them, and for the “Home.” They would thereby be brought before the public in a way that would give them more prestige and favorable standing in the community than would be possible if they gave their entertainments under different auspices. Then, too, it was believed that the performances would afford a convenient way of raising-money for the charity. The arrangement had its advantages to both parties, and, in our view, each party took the chances involved in the financial outcome of the effort. It is not unreasonable to believe that the Society was willing to take these chances for the benefit to it in thus being brought before the public by the prominent persons connected with the “Home,” with whatever prestige that might bring it. The “Home,” as a charitable organization, had no money which it would be justified in using to exploit the capacities of the members of the Society. Its charitable work required expenditure of money, and its representatives doubtless believed the entertainments would result beneficially to both parties. It is unreasonable to believe that the “Home” would hazard the large sum of money involved in making a contract for the absolute payment of the entire expenses of the entertainments, including the $900 sued for. Indeed, it is doubtful whether it would have any right to do so, though the defense of ultra vires is not specifically raised, and is suggested by us as bearing upon the probabilities, and affording some guide for the construction of Mrs. Babcock’s letter.

Plaintiffs in error concede that they are not concerned in this suit with any supposed obligation of the “Home” to pay the members of the chorus $3 each for each of the two performances, but are claiming only the $900, with interest; and they contend that Mrs. Babcock’s letter of December 10th, in which she says that “we understood that the society is to be paid nine hundred dollars which would include the payment of the chorus for the rehearsals, their payment for the two performances coming from the proceeds. All expenses to be paid from the proceeds, and anything left over to come to Chicago Convalescent Home,” when construed in the light of the fact that she placed a comma between the words “rehearsals” and “.their” in the phrase “for the rehearsals, their payment for the two performances coming from the proceeds,” indicates that Mrs. Babcock understood that the “Home” was to pay to the Society $900 absolutely, this amount to include the payment of the chorus for the rehearsals, and that the subsequent phrase, “their payment for the two performances coming from the proceeds,” meant only the payment to the chorus. We cannot adopt this construction of the letter, in view of the fact that the defendant in error is a charitable organization, supported entirely by charitable contributions.

Mrs. Babcock’s letter of December 10th, states her understanding to be “that the Society is to be paid nine hundred dollars which would include the payment of the chorus for the rehearsals, their payment for the two performances coming from the proceeds. All expenses to be paid from the proceeds, and anything left over to come to Chicago Convalescent Some.” Mr. Bissell’s testimony is not inconsistent with this construction of the letter. He testifies that in his telephone interview with Mrs. Babcock, occurring nearly a week before, she then stated that she understood that the money was not to be paid except in the event of there being a profit on the performances; and this understanding on her part is confirmed by her letter dated December 10th. Bissell testifies that, to the best of his recollection, he told Cameron, the Society would ask $1,000 for the two performances, which would include the pay of the principals only; that Cameron thought $500 would be all the “Home” would pay; that, after some figuring, he and Cameron practically agreed on the sum of $900, which should pay the principals, and the chorus was to be paid at the rate of $3 each for each performance over and above $900 for the principals, though nothing was said as to who should pay the chorus for the rehearsals. Bissell said they would' expect the “Home” to pay all expenses pertaining to the performances, such as the hire of the costumes, the rent of the scenery and rent of the theatre, advertising expenses,- in fact, all expenses except the payment of the principals and chorus. This suggestion Mr. Cameron was to submit to the board of directors of the “Home,” and, a few days later, Cameron informed the witness that the board had accepted the proposition. But Mr. Bissell then told Cameron that he wished either a letter from the president, or something of that kind, to bind the agreement so that he could show it to the members of the Society, which Mr. Cameron told him he would secure. Concerning the telephone interview with Mrs. Babcock, which occurred on the 3rd or 4th of December, Bissell testifies that, after he had explained to her “my understanding of the arrangement,” she expressed surprise at it.

. To constitute a valid, contract it is essential that the minds of the contracting parties must have met, and we think the testimony in this case fails to establish such meeting of minds as to constitute the supposed contract sued on.

We think the court below properly applied the propositions of law to the evidence, and its judgment will, therefore, be affirmed.

Judgment affirmed.


text:
    George A. Hook, Appellee, v. William A. Wallick, Appellant.
    Gen. No. 16,970.
    Appeal and error—when decree dissolving partnership will he sustained,. Where the controversy between partners in a suit to dissolve a partnership and for an accounting is one of fact, and the decree is sustained by the evidence, it will be upheld.
    Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    Darrow. Masters & Bailey, for appellant.
    Lloyd G. Kirkland and John S. Huey, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a decree of the Superior Court of Cook county, dissolving a partnership between appellant and appellee, and ordering an accounting therein.

Appellee, George A. Hook, filed his bill, alleging that on the 24th of January, 1907, he and William A. Wallick, appellant, entered into a partnership, under the name of George A. Hook & Company, for the purpose of conducting a hotel brokerage business, to commence at that time and continue until dissolved by mutual consent. Each of the parties was to give his time and attention to the business, and the profits and losses should be shared equally. For a one-half interest in the business, Wallick paid to Hook the sum of $5,000. On May 20, 1909, Hook, being in bad health, went to Boston, where he remained until the filing of the bill, during which time Wallick continued the business, concerning which he made written' reports to Hook from time to time.

The principal controversy in the case arose out of the claim by Wallick that the partnership was dissolved when Hook left Chicago and went to Boston on the 20th of May, 1909, and that the decree of the court, which sustained the finding of the master, to the effect that the partnership continued down to the date of filing the bill, was erroneous. The controversy is essentially one of fact, and, after a careful examination of the evidence in the case, including the various exhibits filed, we have reached the conclusion that the decree of the court was fully sustained by the evidence, and that upon this record no error is shown. The decree will, therefore, be affirmed.

Affirmed.


text:
    W. F. Brennan & Aileen J. Christopher, copartners, etc., Appellants, v. The Purington Paving Brick Company, Appellee.
    Gen. No. 16,944.
    1. Partnership—principal and agent may cancel contract without regard to agent’s partner. Where a paving company gives an agent exclusive sales rights, the parties may terminate the contract even though the principal has knowledge that the agent had formed a partnership for the purpose of making sales.
    2. Peincipai, and agent—commissions denied where contract is against public policy. Where a paving brick company gives an exclusive agency, for the sale of its brick to a city, to a person who forms a partnership with the wife of the official city brick tester, it appearing that the official was the real partner and not his wife, the agency contract is against public policy, and commissions on sales cannot be recovered.
    3. Principal and agent—when pleadings need not disclose contract was against public policy. Where a paving brick company gives an exclusive agency, for the sale of its brick to a city, to a person who forms a partnership with the wife of the official city brick tester, it being claimed that such official was the real partner, in an action for commissions on sales it is not necessary that the pleadings disclose that the transaction was against public policy.
    . Appeal from the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    John A. Brown, for appellant.
    Milchrist & Milchrist, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is a suit brought and prosecuted in the name of W. F. Brennan and Aileen J. Christopher, copartners, under the name and style of W. F. Brennan, in the Municipal Court of Chicago, by Aileen J. Christopher, who claimed to be copartner with Brennan, against the Purington Paving Brick Company, a corporation, to recover $40,000, alleged to be due from it upon a written contract, dated March 1, 1904, between said company and W. F. Brennan.

The declaration consisted of one special count, alleging an indebtedness of $33,750 due plaintiffs upon a written contract between the Brick Company and appellants, to which was added the common counts. Plaintiffs also filed, as a copy of the instrument sued on, a copy of a written contract, dated March 1, 1904, between the Purington Paving Brick Company and W. F. Brennan, under which Brennan was made the exclusive sales agent of the company for the sale of its No. 1 paving blocks, to be used for paving purposes in public works, in the city of Chicago, for a period of five years. Said contract further provided that it might be rescinded if certain of its conditions were not complied with.

The defendant pleaded the general issue and a verified special plea, denying that the contract was made with the plaintiffs jointly, and alleging that it was made with Brennan alone. The record also discloses a written partnership agreement, also dated March 1, 1904, between Aileen J. Christopher and Brennan, of which she claimed that the Brick Company had notice, and her claim was founded upon these two contracts.

The Brick Company denied liability upon two grounds: 1st, that the contract between it and Brennan had been terminated late in the year 1905, by the voluntary action of Brennan himself; and 2nd, that, in any event, the contentions upon which Mrs. Christopher sought a recovery were clearly opposed to public policy.

The case was tried before a jury, and resulted in a verdict for the defendant, upon which the court entered judgment. This judgment we are here asked to. reverse upon the ground that the verdict is against the law and the evidence, and that the court below erred in ruling upon the evidence and in instructing the jury.

It appears that on March 1, 1904, the Purington Paving Brick Company, of Galesburg, Illinois, entered into a written contract with W. P. Brennan, of the city of Chicago, in which the company gave to Brennan “the sole and exclusive agency for the sale of its No. 1 paving blocks to be used for paving purposes in public works, in the city of Chicago,” for a period of five years from date, and provided that the company should deliver its paving blocks f. o. b. Chicago, at an agreed price of $18 per 1,000, to fill such orders as Brennan might obtain, upon which his compensation or commission was to be not less than $2.50 per 1,000. It was further provided that during the term of the contract Brennan should, at his own expense, maintain an office in the city of Chicago, with necessary help and employees. In the contract Brennan guaranteed to sell not less than 3,000,000 paving blocks during the first eighteen months of the contract, and a like amount during each year thereafter, and agreed that a failure on his part to carry out this provision, should authorize the cancellation of the contract by the company.

Mrs. Aileen Christopher testified in her own behalf, that, on the first day of March, 1904, she and W. F. Brennan entered into a partnership for the sale of paving brick in the city of Chicago, by a contract which she produced, and which provided that they should do business together under the name of W. F. Brennan, in the business of acting as agents for such firm, or firms, as they can get to represent, handling and selling brick for a consideration to Tie agreed upon, to be paid by said firm, or firms. The contract provided that Brennan should give his entire attention to the business, and “that the said Aileen J. Christopher will not give her personal attention to the said business, not any time to it, except sufficient to consult from time to time and to make settlements between the parties hereto.”

It further appears that Brennan was formerly a deputy commissioner of public works in Chicago, which* position he resigned on the 28th day of February, 1904, and that he signed this partnership agreement on the day following. It further appears that during the term of this contract, and for several years theretofore, Daniel J. Christopher, husband of Aileen J. Christopher, was the official brick tester of the City of Chicago.

It was further shown that the Brick Company delivered at Chicago, within the period covered by its contract with Brennan, including those sold with or without the efforts of appellants, 11,035,400 paving brick, to be used in the City of Chicago, upon which appellant claims a commission of $2.50 per 1,000, making a total amount of $27,587.50. During the period, the Brick Company paid Brennan, on account of its contract with him, $7,174.75, of which amount $1,000 was paid over to Daniel J. Christopher. In the fall of 1905, when it is claimed that the contract was canceled by mutual agreement, Brennan gave up his office and had "no further business with the Brick Company. At that time, he ordered the Company to pay to Daniel J. Christopher the sum of $4,223, being the balance due Brennan under said contract, said payment to be in full settlement of all matters between Brennan and the Brick Company, and this amount was paid before the close of that year.

Notwithstanding the direct and unequivocal testimony of Brennan, that he abandoned the contract in question and retired from the brick business in the fall of 1905, in which he is confirmed by the testimony of Purington, the president of the Brick Company, Mrs. Christopher claims the right to prosecute this suit and to hold the defendant company liable for the total number of bricks sold during the entire period covered by its contract with Brennan, upon the ground that she had a partnership contract with Brennan, which covered the same period, of which contract between herself and Brennan, she insists the Brick Company had notice of, and subsequent to, the time of its execution.

"We entertain no doubt that Brennan and the Brick Company had.the right to terminate the contract between themselves without regard to whether or not the Brick Company knew of the contract between Brennan and Mrs. Christopher, or whether or not she assented to such cancellation; and, that upon this point alone the defense was fully established.

If, however, there were the slightest doubt upon this point the whole transaction appears to us so tainted with fraud that the case must have gone against appellant upon grounds of public policy. We think the record clearly justifies the conclusion that the contract insisted upon by Mrs. Christopher, between herself and Brennan, was a mere subterfuge,—an ineffectual attempt to conceal the fact that Brennan’s real partner in the partnership was not Mrs. Aileen J. Christopher hut was her husband, Daniel J. Christopher, who, for years prior to the date of the contract with Brennan, and during the entire time it was in force, was the official brick tester of the City of Chicago, and, as such, owed a duty to it, which, as a matter of law, precluded his acquiring any rights under such a contract as the one in question. The evidence of Mrs. Christopher discloses the situation; she testifies under oath, “I am the wife of Daniel Christopher, who was city brick tester for the City of Chicago during the time of this suit. I live with him as my husband now, and have at all these times. He is now a contractor in Wisconsin. He knew I had these contracts. * * * The consideration given in return for these contracts was none at all so far as money was concerned. They gave me the contracts because I had pull enough to land them. I was not supposed to devote any of my time to attending to the business of the office, because my contract especially stated that I need not do so. * * * I was never in any business before. I was not supposed to know anything about the brick business.” This testimony, coupled with the undisputed evidence of the payment by the Brick Company to Daniel J. Christopher of thousands of dollars out of the proceeds of the contract between the Brick Company and Brennan, establishes clearly the dangerous and fraudulent character of the transaction. Brennan testified: 6iI paid Mr. Christopher $1,000 in 1904, for which I have no receipt. Mrs. Christopher did not order me to pay it to him; I had no order. I paid him in cash. Daniel-J. Christopher was the silent partner. The contract was made in the name of Aileen J. Christopher, but I can give no reason why Mr. Christopher’s name did not appear.”

The courts will refuse any aid in carrying out such agreements. Nor was it necessary that the pleadings should have disclosed the defense that the transaction was against public policy. In Crichfield v. Bermudez Asphalt Paving Co., 174 Ill. 466, our Supreme Court said:

“Where a contract is in terms contra tonas mores, it is not necessary for the defendant to plead the objections. A court will not proceed to judgment upon it, even where both parties assent thereto. In such cases there can be no waiver. The defense is allowed not for the sake of the parties but for the sake of the law itself. The principle is indispensable with the purity of its administration. It will not enforce what it had forbidden and denounced. The maxim ex dolo malo non oritur actio is limited by no such qualifications. When the illegality appears, whether the evidence comes from one side or the other, a disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted by the vice of the original contract and void for the same reasons. Wherever the contamination reaches it destroys. # * * Where an action is founded on an illegal contract the law will leave the parties where it found them and grant no relief to either of them.”

A question similar to that under consideration here was presented in the matter of the Estate of Andrew E. Smythe et al. v. Evans, 209 Ill. 376. In that case, a contract for the erection of a gas plant was made between the Universal Gas Company and one Andrew E. Smythe, to be constructed by Smythe under the supervision of one C. H. Evans, engineer, the workmanship and material to be first-class, and the work to be done to the satisfaction of said engineer. The evidence disclosed the fact that Evans, whose duty it was, as engineer for the Gas Company, to pass upon the sufficiency of the work done by Smythe, was also in the employ of Smythe, the contractor, and by contract with him entitled to receive from him one-half of the profit he should realize from the contract, thus placing him in a position where loyalty to the interests of his employer, the Gas Company, wonld bring him in conflict with his own interests as an employe of and partner with Smythe, because, in the latter capacity, his interests would be advanced in accepting, as a compliance with the contract, workmanship and material of a cheaper grade than first-class. In deciding the matter, the court quoted from a previous opinion and said:

“The inquiry is not whether the contract the trustee has made is the best that could have been made for the cestui que trust, or whether it is fraudulent in fact. So strictly is this principle adhered, to that no question is allowed to be raised as to fairness of the contract. The principle has a broader scope. The law has absolutely inhibited the agent or trustee from placing himself in a position where his own private interests would naturally tend to make him neglectful of his obligations to his principal, or where his position would afford him an opportunity to speculate in the trust property.”

In the same case, the court further announced the doctrine that, “where a party comes into court seeking to enforce a contract which is against public policy or is prohibited by public law, the court will refuse to aid either party and will leave them where they have placed themselves, and in refusing to enforce such contracts the court does not act for the benefit, or for the preservation of the alleged rights of either party, but in the maintenance of its own dignity, the public good, and the laws of the state” (citing Wright v. Cudahy, 168 Ill. 86, and numerous other cases). “Nor will the fact, if it be a fact, that both parties knew of the double employment enable Evans to recover. ’ ’

Upon the facts disclosed in this record appellant was not entitled to recover, and the judgment of the court below will, therefore, be affirmed.

Judgment affirmed.


text:
    Louis Horn, Appellee, v. Harry W. Young et al., Appellants.
    Gen. No. 17,045.
    1. Appeal and error—effect of absence of bill of exceptions. In an action of assumpsit the absence of a bill of exceptions may preclude the consideration of various assignments of error other than error in overruling a motion in arrest of judgment.
    2. Fraud—when motion in arrest of judgment will not lie. Where a declaration in assumpsit avers that the defendant sold the plaintiff an interest in bis ticket brokerage business for a certain sum upon representations that the business was paying a certain income when it was paying an income greatly less, and that the defendant knew he was enjoined from continuing the business of selling certain tickets and withheld the fact, a motion in arrest of judgment is properly overruled.
    Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed June 4, 1912.
    A. B. Chilcoat, for appellants.
    M. G. Slocum, for appellee.
   Mr. Presiding Justice Baldwin

delivered the opinion of the court.

This is an appeal from a judgment rendered in the Circuit Court of Cook county on July 11,1910, for $300 and costs, in favor of plaintiff and against defendants. The record does not contain any bill of exceptions. Only one of the various errors assigned is before us upon the record in this case, namely, the alleged error of the court below in overruling the appellants ’ motion in arrest of judgment; none of the other assignments of error can be considered in the absence of a bill of exceptions. The action was one in assumpsit, and based upon the alleged fraud of appellants in selling to appellee a one-half interest in their business as ticket brokers for $300, upon representations that the business was paying an income of from $15 to $50 per day, when, in truth, the business was paying an income of only about $1 per day.

The declaration further charged that at the time of the sale to appellee, appellants knew that they were restrained and enjoined from continuing the business of selling certain railway tickets, and withheld such fact from appellee. To the declaration defendants pleaded the general issue, and the case was brought to trial before a jury, resulting in a verdict and judgment as hereinbefore stated.

We think it clear that upon the pleadings there was sufficient to sustain the judgment. Therefore, the court below did not err in overruling appellants motion in arrest of judgment. The judgment will be affirmed.

Judgment affirmed.