author: Mr. Presiding Justice Duncan

text:
    The People of the State of Illinois, Defendant in Error, v. F. A. Pouchot and M. J. Boyle, Plaintiffs in Error.
    Gen. No. 16,393.
    1. Criminal law—abatement of writ of error. In a criminal case, where the death of one of defendants is shown after joinder in error, a judgment is entered that the writ of error abate as to such defendant."
    2. Conspiracy—evidence. As soon as there is a union of wills for an unlawful purpose a conspiracy is perfected, and any acts or declarations in furtherance of this purpose are the acts of all and evidence against all.
    3. Conspiracy—circumstantial evidence.. A conspiracy may be proved by circumstantial evidence.
    4. Conspiracy—agreement to concur not necessary. It is not necessary to prove an agreement to concur in order to establish a conspiracy to obtain money by false pretenses.
    5. Conspiracy—obtaining money by false pretense. A conspiracy to obtain money by false pretenses, under section 46 of the Criminal Code, may be proved although money was not obtained.
    6. Criminal law—declarations of conspirator part of res gestae. Where one charged with conspiracy makes declarations to another, who at that time is encouraging him in his designs, it is improper to exclude them as self-serving declarations, since they are a part of res gestae.

    7. Criminal law—exclusion of evidence. It is not a reversible error to exclude proper testimony, where it would not have had a tendency to change the verdict and the court was not informed by counsel as to what they intended to prove.
    8. Conspiracy—one person cannot be found guilty. Where several persons are charged with conspiracy, one cannot be convicted unless one or more others are also proved guilty.
    9. Criminal law—similar offenses admissible to prove intent. Evidence of similar offenses is admissible to prove intent, where labor leaders are charged with conspiracy to obtain money under false pretenses in promising to settle a strike, there being doubt as to the intent of some of the defendants.
    10. Criminal law—evidence of other offenses. Evidence of similar offenses committed by two of three parties charged with conspiracy should be expressly limited by the court to the parties concerned, if so requested by the party not concerned.
    11. Conspiracy—to obtain money by false pretenses. Where the evidence shows that defendants, leaders of labor organizations, falsely represented that they had authority to settle a strike and collect money as a fine from the owner of a building then in construction, who was thereby deceived and induced to pay the money, a conspiracy to obtain money by false pretenses, rather than by threats, is established.
    Error to the Criminal Court of Cook county; the Hon. William H. McSurely, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    David K. Tone, for plaintiffs in error.
    John E. W. Wayman, for defendant in error; Benedict J. Short, of counsel.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

The plaintiffs in error, F. A. Pouchot and M. J. Boyle and Martin B. Madden, were indicted in the Criminal Court of Cook County for conspiracy. Upon trial they were all severally found guilty by the jury “in manner and form as charged in the indictment,” and their penalty or fine fixed at $500 each, and the Court entered judgment and sentence against each one of them accordingly.

Since the joinder in error in this Court, the death of Martin B. Madden has been suggested on the record, and judgment has been entered in this court that the writ of error abate as to said Madden. O’Sullivan v. People, 144 Ill. 604; United States v. Mitchell, 163 Fed. 1014.

Of the eight counts of the indictment upon which plaintiffs in error and Madden were tried the first, second, fifth, seventh and eighth charged them with a conspiracy to obtain money from the Joseph Klicka Company, a corporation, by means of false pretenses. All of said counts, except the seventh, charged that the said company was the owner of a certain building in process of construction, upon which were employed a large number of mechanics and workmen; that plaintiffs in error and Madden unlawfully, willfully and maliciously advised and procured certain of said mechanics and workmen to cease their work upon said building and to go out on “a strike,” and while they were so out on a strike, plaintiffs in error willfully, unlawfully- and maliciously conspired to obtain and did obtain from said company a large sum of money, to-wit, $1,000, by means of certain false pretenses, to-wit, that they had authority and power to settle the strike for money; that they had control and influence and power and authority to order and compel the said workmen and mechanics so striking to resume their work, provided plaintiffs in error were paid money; and that plaintiffs in error well knew they had no such authority, power, control or influence, etc. The seventh count charged, in general words, a conspiracy of plaintiffs in error to obtain the sum of $1,000 of said company by means of false pretenses without specifying such pretenses. The third, fourth and sixth counts are common-law counts and charged plaintiffs in error with a conspiracy to extort $1,000 in money from the Joseph Klicka Company by threatening to continue the strike unless said money was paid, etc.

The evidence in this case discloses that in the month of September, 1908, the Joseph Klicka Company was constructing a factory building at 20th street and California avenue, Chicago. Different parts of the work were by the company let to different contractors. D. L. Frasier was the superintendent of construction of this building for the company. Emil Klicka was its president. Plaintiffs in error were officers and agents of various labor unions. Each class of workmen- were organized into unions. The various unions were affiliated with the central organization called The Associated Building Trades. They were again organized into another central body, called the Board of Business Agents, which was made up of the business agents of the various locals. At the times in question Martin B. Madden was the business agent of the Steamfitters’ Union and the president of the Associated Building Trades. Pouchot was a member, of the Sheet Metal Workers and the business agent of that union. Boyle was a member of the Electrical Workers’ Union and the business agent of his union. In the latter part of September, 1908, plaintiffs in error and Madden called a strike of the various union workmen on said building. At this time Atkins, Young and Allen, steamfitting contractors, represented by a Mr. Ott who usually employed nonunion men, had a contract on said building to furnish steam heating, but had not then done any work on the building. Cyclone Blow Pipe Company, a sheet metal concern, which at times installed non-union material with union men, also had a contract on said building.

It is first contended by plaintiffs in error, Pouchot and Boyle, that the evidence fails to show that they had anything to do with extorting, or conspiring to extort, the said $1,000 from the Klicka Company, and that the evidence does prove that the strike was called at the plant of the Joseph Klicka Company for the sole purpose by them of preventing the employment of non-union labor on said plant. Darrell Frasier, superintendent of construction at said building, testified that there were between twenty and fifty men working on the building on the day of the strike, and that there were no electrical workers on it that day; that by instructions from Postle & Mahler, the architects, he had conversations with Boyle and Madden in November, .1908, at Powers & Gilbert’s saloon on Clark street; that he met Mr. Boyle at that saloon and that Boyle introduced him to Madden after he had told Boyle that he represented the owner and the architects of the said building; that Madden asked him who he was and what he wanted and that he told Madden he wanted to know the nature and cause of the strike; that Madden replied: “I think I know, all right, the cause of it. There is one man we want to get and that is that man Ott, as he has been in the habit of doing work around the city, where there has been no union represented, and we have him out there. We have got him now. You are not the man we want to see. We want to see the owner. Who is the owner, Mr. Klicka? Will you see him?”; that he, witness, replied that he would have Mr. Klicka at Powers & Gilbert’s saloon next morning, and that he then went back and saw Klicka; that he went to Powers & Gilbert’s at 10 o’clock next morning, the hour of the engagement, and that Boyle came in and asked him where Klicka was, and that he told Boyle he could have him there in five minutes; that he brought Klicka to the saloon and that Boyle escorted them into a little office at the end of the bar, and Klicka was introduced to Madden and Boyle; that after the introduction Boyle informed witness that his presence was no longer required in there, and that he stepped out; that in a minute or so Madden stepped out and that he and Madden talked about things in general, and that in about two minutes Boyle came out of the office and took Madden off to one side and called another gentleman to whom he was introduced as Pouchot; that they, plaintiffs in error, and Madden, then held a conversation after which Boyle returned to the office to Klicka; that shortly Klicka came out, and he and witness went to the bank and that Klieka drew out $200- and then they went back to the saloon; that Klieka went into the office again and in a minute or so came out and said to Madden, “This is a damn shame and a damn outrage,” and that Madden replied, “I don’t know anything about your business.” The witness then further testified that the strike lasted about seven weeks, and that prior thereto he had never had any complaint from any of the workmen; and on cross-examination said that the contract for the blow piping had not been let when the men quit work, and that Ott had no men at work there then; that when he went to the saloon with Klieka, Klieka and Boyle had a conference in private, and that Pouchot was in the main part of the saloon when Klieka came out and said to Madden, “It is a damn shame and an outrage,” and that that was about 11 o’clock A. M.

Emil Klieka testified that he was a member and president and general manager of the Joseph Klieka Company, and that he went to Powers & Gilbert’s saloon about 10 a. m. and tried to settle the strike that Frasier could not settle, after having a conversation with Frasier; that he had a conversation with plaintiffs in error and Madden in the little room right off the bar of the saloon; that he knew none of them when he went there, and that two or three other men went into the room with them; that he had a conversation' with Boyle and that Madden and Pouchot and Frasier were in there at first, but later all went out and left bim and Boyle alone; that he told Boyle he wanted that strike settled, and that Boyle said the' union had had a great deal of trouble and expense with the Company, and he told Boyle that he would be willing to give bim $200 for the expenses that they had, and Boyle said their executive board would meet at noon, and that he could come back that afternoon and Boyle would give him their answer; that he went to the bank and got $200 and went back in the afternoon; that Boyle again said to him, “Yes, the executive hoard of the union had met at noon, and they had placed a fine on you of $1,500;” that nobody but himself heard this conversation in the little room, and that he told Boyle that they could not stand $1,500 and went out; that Frasier was there and witness saw Madden when he came out and told him $1,500 was a little high and also said it was a damned shame or something like that, and that Madden said he didn’t have anything to do with it at all; that after that about November 18, 1908, he delivered to George S. Andres a check for $1,000 and that the strike was settled the next day. Klicka then identified that check of that date, November 18, 1908, to Andres, which was in evidence; and on cross-examination testified that the blow pipe contract had been let to the Cyclone Blow Pipe Company, and that he was informed by plaintiffs in error and Madden that under the rules of their association their members had agreed not to work upon new or other buildings in this county where a part of the work was being done by non-union men; that Boyle told him that, as long as he, Boyle, could prevent it, not a a union man would do a stroke of work on that building until all contracts had been let and it was demonstrated to him and those associated with him that every dollar’s worth of work was to be done by union men; and that the $1,000 check aforesaid was paid out of the money of the Joseph Klicka Company.

George S. Andres testified that he was a consulting engineer and connected with the work on the Klicka factory; that he had a conversation with Frasier, the superintendent, about the strike and then met Pouchot at Powers & Gilbert’s saloon; that Pouchot said there were a number of contractors on the job that were non-union; that he said to Pouchot that he was aware of it, but that their contracts had all been cancelled and that the Company was about to make new contracts with union shops in all of the trades involved in the strike; that Pouchot and he then went to see the Cyclone Blow Pipe Company and arranged with Mr. Miller of that company that that company be allowed to finish its work on the building by employing non-union men to do its work; that after that he and Pouchot went to see Madden at Powers & Gilbert’s saloon; that he stated to Madden that all nonunion contractors had been withdrawn or their contracts cancelled and that there was no legitimate claim for a further hold up, and that they ought to release it, and that it was a great hardship on the Klicka Company, and Madden said he would look into it; that he left Madden then and went back to Mr. Klicka, and on the next day met Pouchot in that saloon and asked him how they came out on the proposition, and that Pouchot said he would have to see Mr. Boyle; that he then saw Boyle the same hour in the saloon and Boyle said he had nothing to do with that part of it now, that it was up to Mr. Madden; that Madden came in and he and Madden went to the small room off the end of the bar and Madden said: “I don’t know you in this matter at all, Mr. Boyle has the settling of this matter with Mr. Klicka. I am not in the case at all;” that he then asked Madden to state the amount that was wanted to settle the strike, and that he, witness, had the matter of settlement in hand and knew nothing of Boyle and Klicka having the matter for settlement, but would go see Klicka and find out; that he saw Klicka and asked the amount that was wanted for settlement and was told that it was $1,500; that he then went to Gallagher and Speck, the contractors who had the cancelled contract of Atkins, Young and Allen, and then talked with Mr. Benoit, and then attended a meeting of the Master Steam Fitters’ Association; that next morning, Mr. Benoit and witness called on Madden at the saloon by appointment, and that Madden said he, witness, had called a meeting of the Master Steam Fitters’ Association to try to have Madden fined $600, and that he told Madden he was mistaken; that Madden then said, “You thought you would have me fined $600, and I assure you that I have got the settling of this case, and when you want to do business you have got to do it with Madden;” that he replied that he was aware of that and that that was why he was there, and then said to Madden, “If it is a proposition of money, how much do you want? Will $1,000 settle the strike,” and Madden replied, “Bring up the dough,” and that witness replied, “All right I will go and get it;” that he then went directly to Mr. Klicka, and received the $1,000 check in evidence, endorsed by George S. Andres, and with it drew $1,000 out of the bank in $100 bills; that he then went to see Madden several times, but did not see him until the following evening (Nov. 19th) about 8 o’clock, and again found him in Powers & Gilbert’s saloon, and in the little room said to Madden, “Madden, if this money is paid to you, how will I be assured that this strike will be called off and left off;” that Madden said: “Oh, you need not have any fear about that. We will call it off provided I know it is all right, and there is no further trouble out there;” that witness said, “Isn’t it possible to get the price cut down on that job?” and the reply was, “No, you fellows have caused us a lot of trouble out there,” and that witness said, “Well, it is $1,000; then you intend to cinch off $1,000,” and Madden’s reply was, “That is about it;” that witness then said, “Well, here is your $1,000, there is ten $100 bills in that roll.” “I never took no money from you,” said Madden. “No, I know you didn’t, what shall I do with it,” replied witness. “Throw it on the floor or on the desk or any where else, ’ ’ said Madden. The witness then testified that he casually threw the money on the desk, and that they talked a little' about the conditions of the unions, and that as he stepped out of the room Madden put a blotter over the money, and that the men went to work on the building the next day. This witness further testified that afterwards, during the month of February, he received a subpoena from the grand jury to appear before it; that before he appeared he had a conversation with Madden over the ’phone and the following conversation was had between them, beginning with Madden: “I understand you are up in this case before the grand jury.” “I believe so.” “Well, you don’t know nothing, you understand.” “Yes.” “You don’t know nothing.” “All right.”

For the sole purpose of proving guilty knowledge and intent of Pouchot, Boyle and Madden, the state put in evidence testimony concerning the calling under similar circumstances, and the settling under similar conditions, three other strikes. The first of these was called by plaintiff in error, Pouchot, in September, 1908, on a building then being erected by the Jewell Tea Company in Chicago, on the ground that the firm supplying material was non-union. Jacob Schermer, the contractor, testified, in regard to that strike, that he met Pouchot in Powers & Gilbert’s saloon and that Pouchot complained of the putting in of certain material called “sleeves,” the whole cost of which would not exceed twenty-five dollars; that he told Pouchot he would chop out the whole work and “we will put in new ones, or you may put in new ones with union men and I will pay for it;” that Pouchot replied: “That is not necessary; leave them in, they don’t bother us at all. I will tell you, you see Mr. Madden, and you make him a little cash offer and that will be all right.” Mr. Shermer then testified that he saw Madden at that same saloon and that Madden asked him to pay $2,750 to settle that strike and that he refused the offer, and that then Madden came down to $1,500, and that he, Shermer, submitted it to Mr. Skiff, the owner of the building. Mr. Skiff then testified that he paid-Madden the $1,500 in that same saloon, and that work resumed on the building the next day. Pouchot denied that he had such a conversation with Shermer. Madden made no denial concerning his part in that transaction.

The second strike occurred in the fall of 1908, on a building erected by Sam Grossman, when $200, the price of settlement, was talked over with Pouchot, and that sum was paid to Madden in the same little room in Powers & Gilbert’s saloon, and the strike called off the following day. Mr. Grossman and his attorney, Mr. Lowenthal, both testified in regard to that settlement, and Mr. Grossman also testified that he talked to Boyle at this same saloon about the matter and that Boyle claimed he knew nothing about the matter. Pouchot denied ever seeing Grossman or Lowentlial previous to the trial of this cause in the lower court. Madden made no denial whatever.

The third case put in evidence was a strike near the same time of the other two strikes, and on a building erected by H. P. Nelson Company, and for the alleged reason that non-union metal work was being done. This strike apparently involved only Pouchot’s union, but was settled by Boyle. While the strike was on Mr. Nelson first saw Madden and Madden referred and introduced him to Boyle, business agent of the Electricians’ Union, who demanded and received $1,000 for the settlement of the strike. Mr. Nelson testified to these facts, and further gave in evidence concerning it that he went with Boyle into that same little room in Powers & Gilbert’s saloon and asked Boyle what could be done to resume operations on his building; that Boyle then asked him how much it was worth to him to have the. building completed, and that Boyle finally told him that it would cost him $1,000, but was not sure, and that he would see the executive committee or some other committee, and for Nelson to come back next day. Afterwards, Nelson saw Boyle at same saloon and was told that was the best that could be don/' an ! ¡>e paid Boyle the $1,000. Boyle and Madden made no denial of Nelson’s testimony.

The agreement between the Master Steam Fitters’ Association and the Journeyman Steam Fitters’ Association of Chicago was put in evidence, and that agreement which was in force prior to the strike on the Joseph Klicka Company building and up to and including the time of the settlement thereof, provided that all disputes between members of the Employers’ Association and the members of the Union should be settled by arbitration,- and that no strikes be resorted to pending the decision of the arbitration. It also provided that all material except prison made could be used in a building; that no steamfitter should leave his work because non-union men in any other line were at work on a building.

The by-laws of Local 134, Brotherhood of Electrical Workers, Boyle’s Union, in evidence, provides that it shall be the duties of business agents to represent the union in Central Bodies as one of its delegates and to act as manager of the union in the district assigned to them by the Advisory Board, and that the Business Agents shall collect no money from any source for the union, unless directed by the Advisory Board.

The plaintiff in error, Pouchot, in his evidence denied the charges in the indictment in this language: “I never received any money from Mr. Andres or from anybody else representing the Klicka Company for settling .the strike on the Klicka Company plant. I never authorized anybody to receive any money for me. I never conspired to obtain any money under any pretense or anything. I never demanded money from anybody. I never conspired with anybody to get any.”

Plaintiff in error, Boyle, denied the charge in this language: “I did not conspire, combine, confederate and agree with the defendants, Madden and Pouchot, or with other persons to obtain money by false pretenses from the Joseph Klicka Company. I did not conspire, confederate and agree with Madden, Pouchot and others, to obtain one thousand dollars or any other sum from the Joseph Klicka Company by extortion.” Mr. Madden made denial in the same general language as Boyle, and then denied that Andres gave him any money at Powers & Gilbert’s saloon, and denied that they talked about money. Both Boyle and Madden admit in their testimony that they met with Andres, Frasier and Klicka at the saloon in question and talked to them about the strike, and testified that Klicka offered them money to settle the strike. Madden, Pouchot and Boyle all testified to the effect that the strike at the plant of the Joseph Klicka Company was called solely by reason of the fact that contracts had been let by that Company to contractors who employed non-union labor, and that when those contracts were re-let to contractors employing union labor, the strike was called off. They particularly say that the strike was called at the instance of one Charles Ban, business manager of the Steam Fitters’ Protective Association, because of the contract let to the non-union concern, Atkins, Young and Allen. Mr. Ban, in his testimony, corroborated the contentions of the plaintiffs in error as to the reasons for calling the strike, that it was called at his instance, and called off when that contract was can-celled and an employer of union labor employed to do the job let to Atkins, Young and Allen. There were other witnesses for plaintiffs in error who corroborated their evidence to the same extent as did Mr. Ban. Several witnesses for plaintiffs in error also testify to being at Powers & Gilbert’s saloon on the night of November 18, 1908, and that they heard the conversations of Andres there with Boyle and Madden, and that no money was paid by Andres to either of them and that money or payment of money was not mentioned by Andres. Their evidence, however, did not cover the date of November 19th, the day Andres claimed he paid the money. A number of witnesses for plaintiffs in error testified that the general reputation of George S. Andres in the neighborhood in which he resided was bad, and about an equal numher of witnesses for the People testified that his general reputation for truth and veracity was good. A number of witnesses for plaintiffs’ in error also testified that there was in existence in Chicago a custom in the fall of 1908 for laboring men who were affiliated with the Associated Building Trades not to work upon a building where non-union men were employed.

A careful study of the evidence in the record compels us to say that the jury were amply warranted in finding plaintiffs in error, Pouchot and Boyle, guilty beyond a reasonable doubt, not only of a conspiracy to obtain money by threats, but also of a conspiracy to obtain money by false pretenses, as charged in the indictment. It can serve no useful purpose to discuss the evidence in detail, or the proving force of the various parts thereof, as it seems to us that the foregoing recital of the substance of the evidence must carry conviction to any one who reads and studies it. It is asserted by counsel for plaintiffs in error that the evidence for the people, assuming it to be true, merely shows that Madden alone conceived the idea of extorting the $1,000 from the Joseph Klicka Company after the strike had been settled, and that Pouchot and Boyle received no part of the money and had nothing to do with extorting it from the officers of the Klicka Company. The charge against plaintiffs in error is that they and Madden conspired to obtain the money by false pretenses and by threats. It was not necessary to prove that Boyle or Pouchot actually received any of the money paid to Madden in order to establish their guilt. It is clearly and satisfactorily proved that they conspired with Madden to obtain the money, as charged in the indictment, and that as a result of that conspiracy the Joseph Klicka Company paid the money to Madden. The existence of a conspiracy may be proved by circumstantial evidence, and when the conspiracy is once established, the acts and declarations of every conspirator in furtherance of the common design are the acts and declarations of all the conspirators, and are, therefore, evidence against all the conspirators. As soon as the union of wills for the unlawful purpose is perfected, the offense of conspiracy is complete. No proof of an agreement to concur in the conspiracy is necessary. Spies v. People, 122 Ill. 1.

It is also insisted by counsel for plaintiffs in error that the People’s evidence does not tend to prove a conspiracy to obtain money by false pretenses, but only tends to prove a conspiracy to obtain money by threats. It must be remembered that plaintiffs in error were not indicted for obtaining from the Joseph Klicka Company $1,000, designedly by false pretenses and with intent to cheat or defraud said company, under Section 96 of our Criminal Code, but were indicted under Section 46 thereof, for conspiracy to obtain money by false pretenses, etc. Proof that there was such a conspiracy was all that was necessary in this case. “A false pretense is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adapted to induce the persons to whom it is made, to part with something of value.” 2 Bishop on Criminal Law, 415; Jackson v. People, 126 Ill. 139. “If the possession of property is obtained by fraud, and the owner of it intends to part with his title as well as his possession, the offense is that of obtaining property by false pretenses, provided the means by which they are acquired are such as in law are false pretenses.” People v. Miller, 169 N. Y. 339-352.

Plaintiffs in error and Madden falsely pretended that they had authority from their unions and control of the workmen employed; that is to say, that they were authorized by their union or unions to collect so much money from the Joseph Klicka Company as a fine or for expenses incurred in the strike, and that they had such control of the men that the Company could not proceed with their building until this fine was paid. The Klicka Company were deceived thereby, and were induced to pay the money upon the belief that plaintiffs in error and Madden had such authority from their union, and such control, when in fact they had not been so authorized by the union to collect any money at all and the union or workmen were falsely led to believe that plaintiffs in error and Madden were laboring simply to unionize the various contracts or jobs on the building. The evidence clearly shows these facts and that the intent of plaintiffs in error was really to obtain the money for themselves or for Madden by such false pretenses. It is scarcely believable that the workmen on the building would have suffered themselves to be kept away from their work had they known of the false pretenses of Boyle, Madden and Pouchot, or that the company would have parted with their money if it had known the unions were not behind Boyle, Madden and Pouchot in their demands for money.

In addition to a general denial of the charge that they called a strike of the workmen at the Klicka plant with intent to extort $1000 in consideration of settling the strike, plaintiffs in error offered to prove that the idea of calling a strike did not originate with 'them, but with Mr. Bau, business manager of the Steamfitters’ Protective Association. Mr. Bau did so testify, and in further proof thereof the conversation or declarations of Pouchot to Mr. Bau upon the subject of calling the strike when urged by Mr. Bau were sought to be put in evidence by plaintiffs in error, and also as to what Madden said when his attention to the proposed strike was called, and on objection by the state the evidence was excluded as self serving declarations. We think the evidence was competent upon the well settled rule that all declarations made by an accused while engaged in the doing of any act in furtherance of the alleged criminal transactions are admissible in favor of, as well as against the accused, as part of the res gestae. Mack v. State, 48 Wis. 271; Comfort v. People, 54 Ill. 404; Bennett v. People, 96 Ill. 602. Assuming that the answers would have been most favorable to the plaintiffs in error, we do not think that the error was serious, or that the evidence would have had any tendency to produce a different verdict. All the evidence bearing upon the question shows that the strike was first urged by Rau, and that plaintiffs in error called the strike after such request of Rau and others. The record is full of their declarations to the Klicka Company that their purpose was to unionize the work on the building, and no additional amount of declarations as to their purpose made during counsels for a strike in our judgment would have had serious weight with the jury in convincing them that Pouchot and Boyle did not also have the unlawful purpose charged in the indictment. Inasmuch as the court was not informed in any way by plaintiffs in error as to what declarations they expected to prove by Rau that were made by them at the time in question, the court committed no reversible error in its ruling. Graffield v. Scott, 33 Ill. App. 317.

It is further argued by plaintiffs in error that the admission of the three other criminal transactions by them was error as they were not charged in the indictment, and not in any way connected with the crime charged in the indictment. It is said in plaintiffs in error’s brief that the court was undoubtedly led into this error by believing that the People’s evidence tended to show a case where plaintiffs in error conspired to obtain money by false pretenses. We have already discussed the question of whether or not such a conspiracy was established by the evidence. ‘1 There must be a criminal intent in conspiracy which involves knowledge.” 2 McClain on Criminal Law, sec. 971; People v. Powell, 63 N. Y. 88.

In the case in hand the plaintiffs in error, Boyle and Pouchot, insisted that they got no money from Madden or any one else as fruits of their work in the Klicka strike, and that their object and intent were solely for the purpose of unionizing the contracts and protecting their unions against the employment of non-union labor. They were not present when Madden. received the money. They insisted they had power to settle the strike from their unions when the jobs were unionized. The State does not deny that, but does deny that they had power to settle it for money and insists that they did so settle it. They made a question before the jury of whether their purpose was in the interest of union labor or for the corrupt purpose charged. So far as Madden is concerned, the People’s direct evidence clearly established, in itself, if true, the corrupt purpose charged in the indictment, but he, Pouchot or Boyle, could n'ot be found guilty of conspiracy, unless one or both the others were proved guilty. As Madden is now out of the case, this question need not be discussed as to him.

Wherever in a conspiracy or other similar case it is necessary to prove a particular intent, as in this case, and the evidence in regard to the crime charged tends to show two intents as to one or more of the defendants, one intent being an innocent or other intent than the one charged, and the other intent being the corrupt intent charged, evidence of other similar offenses is admissible as to such defendants for the sole purpose of proving such corrupt intent, if such evidence tends to prove such intent. State v. Lewis, 96 Iowa, 286; Wallace v. State, 41 Fla. 547; Bottomly v. United States, 1 Story 135; People v. Peckena, 153 N. Y. 576; Crum v. State, 148 Ind. 401; Du Bois v. People, 200 Ill. 157; Juretich v. People, 223 Ill. 484; People v. Hagenow, 236 Ill. 514; Marshall v. United States, 197 Fed. 511, opinion per curiam.

In People v. Molineux, 168 N. Y. 293, the New York Court of Appeals uses this language: 11 Generally speaking, evidence of other crimes is admitted to prove the specific crime charged when it tends to establish, (1) Motive; (2) Intent; (3) The absence of mistake or accident; (4) A common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; (5) The identity of the person charged with the commission of the crime on trial.” We do not think it was error to admit the evidence in question to prove the intent of Boyle and Pouchot, and the court expressly so limited the evidence at the time it was admitted, and also by its instructions. This evidence, however, should have been limited in each particular instance to the parties concerned therein, if so requested by the party not concerned. These particular acts were not acts in furtherance of the common design or conspiracy charged, and were therefore not legal evidence against the other party taking no part therein. Boyle was the only party to make the objection that the evidence was for that reason not applicable to him, and he only made this objection in the first case.. The objections to the evidence in the other two instances were general objections by all the parties. As the court directed the jury by instructions that such evidence could only be considered for the purpose of proving guilty knowledge, Boyle could not have been seriously prejudiced thereby, as a transaction in which he took no part could not tend to prove an intent as to Boyle, and the evidence was admissible anyway as to Pouchot for the purpose of proving his guilty knowledge. Besides, the other two instances were properly admitted against Boyle and so there was quite enough legal evidence of such character against both Boyle and Pouchot. For the same reasons we do not think it was serious or reversible error for the court to omit to say specifically in the instructions for the People that such evidence should only be considered as tending to prove guilty knowledge of the defendant or defendants who took part therein. Practically the same instruction in effect was given for plaintiffs in error in their instruction No. 31, which also failed to make the limitation that they insist is wanting in said People’s instructions numbered 12 and 13, and, therefore, they are not in very good position to complain of such error.

We have virtually already disposed of the objections as to People’s instruction No. 14, that it asks the jury to take into consideration the counts of the indictment that charge a conspiracy by means of false pretenses, when there was no evidence tending to support them. We think the evidence does tend to support them, and that instruction No. 14 for the People was properly given. We think that the proof in this case clearly warrants the finding of the jury, and that it must have been-the same had the record been free of the slight errors above noted, and that as said in the case of Jackson v. People, 126 Ill. 139, such errors should be held as no ground authorizing a reversal. The judgment of the lower court, will, therefore, be affirmed as to plaintiffs in error, Pouchot and Boyle.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Levy & Hippie Motor Company, Appellee, v. City Motor Cab Company, Appellant.
    Gen. No. 16,438.
    1. Contracts—what is preventing of performance. Where one party to a contract deliberately makes performance impossible by some act prior to the time for performance, such act is a prevention of performance.
    2. Contracts—performance. If one party to a contract shows that the other prevented performance, it is to be taken as prima facie true that he would have accomplished itiiif not so prevented.
    3. Contracts—implied obligation not to prevent performance. If one party contracts that another shall do a certain thing, he impliedly obligates himself to do nothing to hinder performance by the other.
    4. Sales—duty of seller when buyer hinders or prevents performance. Where a contract is made for the sale of specific automobile bodies but the buyer purchases them from the maker before the time for delivery, the seller is not required to ascertain whether such bodies can be bought elsewhere, or to buy them if any are found, simply to tender when acceptance would probably be refused and the buyer by his own act has prevented delivery.
    5. Sales—evidence that goods were satisfactory. Where a contract is made for the sale of specific goods but the buyer purchases from the maker, before time for the seller to deliver, the purchase is sufficient evidence that the goods were satisfactory.
    6. Sales—when buyer who prevents seller from, performing cannot claim, that seller had no contract with malcer of goods. If a contract is made for the sale of specific goods and the buyer purchases from the maker thereof, before time for delivery by the seller, but refuses to pay damages caused by the breach, the buyer is in no position to claim that the seller should not recover because he shows no binding contract with the maker to deliver to him, especially where such buyer threatened to sue the maker to prevent breach of the contract to deliver to the buyer.
    7. Damages—when defendant cannot object to award. A buyer cannot object to the damages awarded on action for breach of contract for the sale of goods because of the incompetency of evidence as to the measure thereof, where counsel for the seller stated and assumed by his questions that a certain town was the nearest market at which the goods could be bought and it was proved that the market price and cost price to the seller were the same but no objection was made that the proof failed to show the market price at the pr.oper date.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Paddock, Furness, Clarkson & Butter, for appellant.
    Garnett & Garnett, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Levy & Hippie Motor Company, appellee, sued the City Motor Cab Company, appellant, on an agreement of appellant to purchase of appellee six certain taxicab bodies at $400 each, and four Chalmers ’ Detroit automobile chassis at $1,400 each. The declaration averred that appellee informed appellant that the bodies were in Detriot, Mich., in the possession of the C. B. Wilson Body Company and that appellant, after learning from appellee where the bodies were, bought them of said body company for $310 each, in violation of appellant’s agreement to buy them of appellee; that plaintiff was ready, willing and able to deliver the chassis and tendered them to appellant, but that appellant refused to accept them, and that appellee would have secured the bodies from the said body company and would have delivered them to appellant had not appellant prevented appellee from performing by wrongfully purchasing them of said body company. Appellant pleaded the general issue.

The facts material to the issues are that appellee had the exclusive agency in Chicago for the Chalmers’ automobiles, commonly known by the name of “Chalmers’ Detroit.” June 16 and 19, 1909, appellee received letters from said body company offering to sell to it for $310 each six taxicab bodies made to fit the Chalmers’ Detroit 30-horse power, 1909 model chassis. The bodies had been built on an order for a third party, and that order was cancelled when the job was near completion. The letters stated thát delivery of the first body could be made in about three weeks and the Other five during the fourth week following. The bodies were not then painted, but were to be completely trimmed and painted. Appellee had sold and delivered to appellant, June 17, 1909, two Chalmers’ Detroit chassis, model of 1909, 30-horse power, for $1400 each; and appellant had two bodies which it expected to put on those two chassis, but could not do so because they did not fit. Appellant had been hunting for bodies that would fit its chassis, and, June 19, 1909, called on appellee and was shown a photograph of the said six bodies and was offered them for purchase at $400 each f. o. b. Chicago, and four more Chalmers’ Detriot chassis in appellee’s possession for immediate delivery at an understood price of $1,400 each. Appellant then agreed to take the six bodies and four more chassis, provided the bodies were satisfactory, after being informed that it would require four or five weeks to finish and paint them. Towne, president of appellant, preferred to see the bodies at once, and being told they were in Detroit, after obtaining a letter of introduction from appellee to the C. E. Wilson Body Company, he and Borden, another officer of appellant, on June 21, 1909, went to Detroit to examine the bodies. Appellee sent a wire to the body company ahead of Towne and Borden, as follows: “Will send customer to Detroit to see taxi bodies; quote four hundred dollars. Will take all if acceptable to customer.” The letter of introduction read as follows: “This letter introduces the bearer, John Borden, who is interested in six Chalmers’ Detroit Taxicab Company bodies for the Chalmers’ Detroit 30. These, we understand, you can forward immediately, and if acceptable to Mr. Borden he will advise you as to colors. We will also confirm to you.” On seeing the bodies Towne and Borden for appellant, without presenting the letter of introduction, bought the said bodies of the body company direct for $310 each, and afterwards refused to take the four chassis of appellee when tendered by it.

The cause was tried by the court and a jury, and judgment was rendered for the entire amount claimed by appellee, $1,622.76.

The judgment of the court is here challenged upon the ground that the evidence does not show that the parties made any such contract as is disclosed by the foregoing statement of facts. We think the lower court and the jury were warranted in finding that the foregoing facts were sustained by the evidence. That is to say, that such a finding as was evidently made is not against the manifest weight of the evidence. It is true that the two main witnesses for appellant, Borden and Towne, denied that any contract at all was made for the purchase of either the bodies or the chassis by appellant. Mr. Levy for appellee testified to the foregoing statement of facts, in substance, and is corroborated by the testimony of Mr. Herrick. The testimony of these two witnesses for appellee is somewhat corroborated by the circumstances in evidence, that appellant had bought two chassis of appellee for bodies owned by it that did not fit the chassis; that appellant was in the market for bodies and had not up to their alleged contract been able to find any for sale; that the bodies in question did fit the two chassis bought and the four chassis in question and were in the hands, of the body company to whom the letter of introduction by Levy, officer of appellee, was directed; that appellee was the exclusive agent in Chicago for the Chalmers’ Detroit machines and which the bodies in question were made to fit; and the further fact that Borden and Towne, after they came from Detroit, told the witness, McDonald, that they had bought the bodies direct and that they “had saved some money by buying them outside of Mr. Levy.” Borden and Towne denied using the letter of introduction and stated that they destroyed it. They nevertheless went straight to C. B. Wilson Body Company and bought the six bodies in question at the very price they were quoted by the body company to appellee, and tried to buy more, but could find no more such bodies. This letter and the destruction of it has considerable bearing in the case, for had it been presented to the body company it would have clearly disclosed that appellee was intending to buy them for appellant and might have had the effect to defeat the sale direct to appellant. As the case was one for the jury to finally and irrevocably settle under proper instructions, the judgment must stand for $1,200 less freight on the four chassis, as the market price and the price paid by appellee for the chassis was $1,100 each at Detroit, the nearest and only market.

The main contention of appellant is as to the six bodies purchased by it. It seriously and forcibly argues that appellee failed to prove “that at the appointed time it was ready, able and willing to both sell and deliver the goods as agreed, or that it was prevented from doing so by some act of appellant which in law constitutes ‘prevention.’ ” We fully agree with the statement that one or the other of those propositions must be shown to have been proved legally before appellee can recover. We are clearly of the opinion, however, that the evidence establishes the latter of said two propositions. Where one party to a contract shows that the other party has deliberately made it impossible for the contract to be performed by some act of his done prior to the time that performance was to be made or had, such act in law amounts to a prevention of performance. It is also the law that where one contracting party can show that the other prevented his performance of the contract, it is to he taken as prima facie true that he would have accomplished it if he had not been so prevented. McCreery v. Green, 38 Mich. 172; Kersey v. Garton, 77 Mo. 645; United States v. Peck, 102 U. S. 64; Marvin v. Rogers, 53 Tex. Civ. App. 423; Norcross v. Wills, 130 App. Div. (N. Y.) 470; Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59; Calkins v. Williams, 36 Ill. App. 500; Pate v. March, 65 Ill. App. 482; Monroe v. Snow, 131 Ill. 126; Moses v. Bierling, 31 N. Y. 461.

From the foregoing authorities may be deduced the rule that when one party stipulates that another shall do a certain thing he thereby impliedly obligates himself to do nothing which may hinder or obstruct that other in doing the thing agreed. The evidence clearly shows that the bodies bought of the body company by appellant were the identical bodies it had agreed to buy of appellee, and were all of that kind of bodies that could be bought in Detroit. Appellee was not required to ascertain if such bodies could be bought elsewhere, or to buy them elsewhere if it could find them, simply to be able to make a tender to one to whom acceptance would in all probability he refused, and for the simple reason that it contracted to deliver those certain and specific bodies to appellant and no others, and appellant by its own act prevented such a delivery by buying direct before appellee was required to deliver them. Appellant’s purchase is in itself sufficient evidence that the bodies were satisfactory for its intended use of them.

Appellant relies on the case of Ashley v. Dixon, 48 N. Y. (3 Sickels) 430, as an authority that is in every way on all fours with the case at bar, and that it is contrary to the law of the cases above decided, and controlling in this case. We do not 90 understand that case. The law laid down in that case is, in substance, this: “If A. has agreed to sell property to B., C. may at any time before the title has passed, induce A. to sell it to him instead, and if not guilty of fraud or misrepresentation, he does not incur any liability, and this is so, although 0. may have contracted to purchase the property of B.,” if G. buys it after B. had failed to deliver to G. upon tender and demand made by G. at the time B. was to deliver it to G.

The words in italics are added by ourselves, but they are in harmony with the facts in that case. The substance of the holding in that case, as we understand it, is that if A. still has the property when B. tenders the price and refuses to deliver it to B., it must be regarded solely as A.’s breach of contract, if 0. has done no more than use simple persuasion without fraud to induce A. not to perform his contract with B.; and, if by reason of such refusal of A. to perform with B., B. is unable to perform with 0. at the agreed time and at which time 0. tenders the price and demands delivery to him by B., C. may at any time thereafter buy the property direct of A. without liability to B.

The reason for the holding is evident. There was no showing, and perhaps none could be made, that A. would have delivered the property to B., if no persuasion of 0. had been made. A. at' the time he refused to deliver to B. had the property and was able to deliver, but not willing to do so. B. was not able to deliver to C. on Ms demand because A. had not and would not deliver to B. The action against C. by B. was an action for fraud and misrepresentation, and the proof failed to sustain the declaration, and the holding of the N. Y. court was for that reason clearly right. The case is clearly distinguishable from the one now before us, because in the latter case appellant made it impossible for appellee to perform its contract by purchasing the bodies direct from the body company before the time they were to be delivered by appellee to appellant and refused to make good to appellee its damages by reason of such breach. We do not think that appellant is in a position to claim that appellee should not recover, because appellee failed to show a binding contract with it by the body company to deliver it the bodies, and particularly so in view of the fact that as shown by a letter of appellant to the body company, appellant by threatemng suit prevented the body company from cancelling its contract with appellant and delivering the bodies to appellee after the contract of sale by the body company to appellant and before delivery thereof to appellant. All the evidence tends to show that appellee would have secured the bodies and have been able to perform its contract with appellant if appellant had not interfered by purchasing direct of the body company.

There is no merit in appellant’s contention that the contract was void because in restraint of trade. Appellant by failing to make proper objections at the time of the introduction of the evidence bearing on the measure of damages is not in a position to question the damages awarded, because of the alleged incompetency of such evidence. Counsel for appellee stated and assumed by its question that Detroit was the nearest market in which the goods could be bought, and proved that the market price was the same as the cost price to appellee of the chassis. No objection was made that the proof failed to show the market price at the proper date. If it had desired to insist upon having damages determined by the exact rule governing in such cases, it should have objected to proof of damages by another method. Toledo St. L. & W. R. Co. v. Boaz, 130 Ill. App. 17. We are satisfied, however, that the correct measure of damges was adhered to in this case. Finding no reversible errors in this record, the judgment is affirmed.

Judgment affirmed.


text:
    I. B. Wilford, Appellant, v. E. R. Bliss, Appellee.
    Gen. No. 16,451.
    1. Contracts—when no oral promise shown. No oral promise by defendant to build an electric railway within a certain time is shown where two witnesses testify thereto, but their evidence shows that when requested to make such promise defendant refused and that the building of the road within such time was left to his honor.
    2. Contracts—when parol evidence inadmissible to enlarge consideration expressed. A contract by which plaintiff relinquishes all right, title and interest in a certain original contract and surrenders it to defendant in consideration that defendant surrender to plaintiff a certain bond is unambiguous and purports to state all things to be done by both parties, and evidence of a prior parol agreement by defendant, as part consideration, to build a railway is not admissible.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Statement by the Court. I. B. Wilford, appellant, in the fall of 1899, conceived the idea of promoting an electric line to run from the City of Asheville, N. C., to Weaverville, twelve miles north of Asheville. With one Don J. Barnes, an engineer, he made a survey of the proposed line, and secured from the local farmers and Residents aRound Weaverville deeds to a part of the proposed right of way, which were furnished, or were to be furnished, without expense to him, as is provided by the bond of certain citizens of Weaver-ville hereinafter described • and given in furtherance of his scheme to build the road. Having no funds of his own with which to finance his scheme, and being desirous of making, as a part of his proposed line, a short line of street railroad known as the Intermountain Railroad, then in operation in the City of Ashe-ville, for the purpose of financing and effecting the construction of his proposed road, on February 10, 1900, in Chicago, Wilford and Barnes met E. R. Bliss, appellee, and had prepared and signed and sealed by the said three parties a contract which in substance provides- that Wilford and Barnes on their part would procure proper authority from the said municipalities, and from the said County of Buncombe for the construction and operation of said road and the necessary right of way, and also would obtain title to certain water power, known as Baird’s falls, along the proposed line with the right to build a dam, and would obtain a release from the property owners affected of all claims for damages caused by overflow, and would secure by agreement or otherwise a promise or guarantee by the Town of Weaverville to pay in money or bonds the sum of ten thousand dollars when said railway should be constructed to said town; that said deeds and contracts should be made to and deposited with Charles J. B. Kressman, cashier of the Garden City Banking & Trust Company of Chicago, and be held by him until the completion of the organization of a company to be known as the Asheville and Weaverville Electric Railway and Power Company, and until such time as the trust deed and bonds contemplated to be issued by the proposed company were executed, at which time Kressman was to convey to the organized corporation.
    Bliss agreed in this contract that if upon personal inspection he was satisfied with said street railway, he would buy it if it could be bought for not exceeding $20,000. All parties then agreed that in the event of such purchase of the street railway by Bliss, it, with all the other property agreements and other contracts referred to, should become the property of the corporation, and that the amount of the capital stock of said company should be agreed upon, and that all the property should be mortgaged to secure an issue of bonds to be agreed on; that the capital stock should be divided into three equal parts and each of said parties have an equal share thereof; that each party should be paid all money advanced for such scheme and six per cent, interest, and that Wilford should receive $5,000 in bonds of the company at par for the promotion thereof; that all gifts, bonuses and donations given to any of said parties for said construction should be assigned to and become the property of said corporation; that the agreement should be wholly dependent upon the purchasing of said railway by Bliss, and that the purchase thereof is optional with him; that if he should elect to purchase the road, Wilford and Barnes should perform their said part of the contract within thirty days from the purchase of said electric road, and in case they failed to perform their agreement in the thirty days, the said street railway should become the sole property of Bliss, free and clear of any claim or demand by Wilford and Barnes.
    Within a few days after the signing of said contract, Mr. Bliss went to Asheville, looked over the street railway property, and with his own money bought it for $16,000. About two months later Wilfo.rd and Barnes were unable to carry out, and had not carried out their agreement to secure right of way and necessary waivers of damages by the property owners to be affected by the construction of the proposed dam and water power. Mr. Bliss was then dissatisfied and desired to have nothing further to do with the proposed scheme and on April 21, 1900, had a conference in Asheville with Wilford and Barnes and a Mr. Weaver, attorney for Mr. Wilford. Mr. Bliss offered to turn over to Mr. Wilford the said road at cost to him, and to quit the proposed scheme. In reply Mr. Wilford stated to Mr. Bliss that he had no money with which to buy the road. He also stated to Mr. Bliss that if he, Bliss, would return to Wilford the said bond signed by citizens of Weaverville, he, Wilford, would “step down and out” of the proposed scheme. Wilford’s attorney then prepared the release in question, and on which this suit was brought, which was written at the foot of said contract signed by Wilford, Barnes and Bliss, and on the last page of said contract, just below their signatures thereto. Said release so signed is in the following words and figures, to wit:
    “In consideration of the surrender to me of that certain instrument executed December 20, 1899, and signed by A. E. Roberts, W. E. Weaver and various other persons, purporting to be their several bonds together with all right, title and interest therein, by the within named E. R. Bliss and Don J. Barnes, I hereby transfer, assign and relinquish all right, title and interest in or to the within and foregoing contract and further hereby cancel and surrender the same.
    Witness my hand and seal this 21st day of April, 1900.
    “I. B. Wilford (Seal).”
    The bond mentioned in said release was signed by about forty persons. Every voter in Weaverville, except four, and the mayor and at least a majority of the members of the board of trustees or aldermen of Weaverville, signed the bond in the sum of $10,000. The bond recites that I. B. Wilford for the Asheville and Weaverville Eectric Railway and Power Company agrees to grade, build, equip and operate a car line to be known as above, running from Asheville to Weaverville, and to accept as the obligors’ part of the payment for said building and equipping ten thousand dollars in bonds secured and issued by authority of the said town of Weaverville, said 'bonds to be made legal by a vote of the people of said town, to run for twenty, years and to bear six per cent, interest; that the right of way from Asheville to Weaverville, and the franchise from the County Commissioners of Buncombe county, N. C., for fifty years, shall be secured to I. B. Wilford free of cost to him. The bond then provides that if said bonds voted by the town of Weaverville shall be declared legal and valid by authority of the next legislature, or when the bonds shall be valid and binding upon said town by reason of the vote of the people thereof and authorized by the legislature, and when said right of way and franchise' are secured to said Wilford without cost to him, that then the bond of said forty persons should be void, otherwise to remain in force.
    Within a month or two after the signing of said release by Mr. Wilford, Mr. Bliss sold the road in Ashe-ville to the Asheville Street Railroad Company.
    This suit was brought in March, 1904, by appellant against appellee on a parol agreement of appellee, alleged to have been made before the signing of said release and as part of the consideration for the making of said contract of release by appellant. The said oral contract of appellee, as alleged in the declaration, is, in substance, that appellee, Bliss, promised appellant that within a reasonable time after the signing of the release by appellant, he, appellee, would build or effect the construction of the said electric railway so that the said Weaverville bond delivered to appellant would become of value, and that appellant accepted said bond relying upon said oral agreement. The declaration then charges a breach of said oral agreement by appellee, and damages in the sum of $10,000 in consequence thereof.
    At the close of appellant’s testimony the jury found the issues for appellee upon a peremptory instruction of the court, and the legality of the court’s instruction and judgment is challenged by appellant in this court.

      B. F. Langworthy, for appellant; C. Stuart Beattie, of counsel.
    George Gillette, for appellee.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

Upon the question of whether or not appellee made the oral promise in question before the signing of the contract of release by appellant, only two witnesses testified, appellant and his lawyer, Mr. Weaver. Appellant’s testimony upon that point is as follows:

“Mr. Bliss said to have the attorney draw up what you want. My attorney started to draw up this agreement (the release), and my recollection is that before we got through drawing this agreement, he stopped and stated to Mr. Bliss, ‘Now you must remember that if you don’t guarantee to build this road in this time limit (two years) that this bond will be valueless to Wilford, will be of no value. You ought to give him a guaranty that you will build this road in the time limit in order to make this bond available, worth something.’ Well, then Bliss jumped up and he run. Well, after Mr. Weaver made this remark to him, Col. Bliss says, ‘Why haven’t you all got no—I won’t do that, because if I do I will be held up all along the line, people that have got rights of ways and separate locations and terminals and things will make me pay double or treble, will hold me up.’ That is the language he used, ‘and hence I won’t do it,’ he says, ‘but haven’t you fellows got any confidence in me?’ He says, ‘Wilford, you have been trying to drive a hard bargain with me all right,’ he says, ‘haven’t you any respect for my honor?’ I says, ‘Colonel, if you will tell me that you will handle that road in the time limit, I have got nothing to say. I don’t care what you do. ’ Well, Mr. Weaver finished up the articles and I signed it right there. * * * In reply to my statement that if he would give his word that he would construct that road in the time limited, I would sign anything he wanted, Bliss stated, ‘have your attorney draw up the transfer.’ ”

Mr. Weaver’s testimony on that matter is as follows :

“I fully pointed out, as I thought my duty was, to Major Wilford, his situation, and Major Wilford then said, ‘Yes, I ought to have some assurance that there ad will be built,’ and Col. Bliss said, ‘Haven’t I shown my faith in this matter by putting my money in,’ and he said, ‘If I sign a written contract of such a character as that and the people know it, why anything I want I would be held up about it.’ * * * The matter was discussed then along that line for some little while and finally Major Wilford said, as I recall now, ‘that is all right, Colonel Bliss, if you will tell me you will build that road I will sign that paper,’ and I either had it completed or in a minute, and he (Wilford) signed it, and I turned the contract over to Major Bliss, and I presume the Weaverville bond was returned to Mr. Wilford, although I have no recollection about that, and we went out.”

The foregoing evidence is not sufficient proof that Mr. Bliss made- the alleged parole agreement. On the contrary it amounts to positive evidence that he refused to make such agreement. His plain declaration, in substance, was that he would not agree to build the road and that the building of it must be left merely to his honor without any agreement, oral or written, that he would build it. This is the strongest construction that can be made of the language used by Mr. Bliss, and it falls far short of proving the agreement alleged.

We are also of the opinion that appellee’s objection to this evidence, that it was inadmissible under the rule that parole evidence is not admissible to vary or enlarge the terms of an unambiguous written contract, should be sustained. It is a well established rule that, in the absence of fraud or mistake, proof of antecedent or contemporaneous verbal agreements between contracting parties cannot be received to alter or control their unambiguous written agreement. Jackowski v. Illinois Steel Co., 103 Wis. 448; Schneider v. Sulzer, 212 Ill. 87; Telluride Power Trans. Co. v. Crane Co., 208 Ill. 218.

The test of the completeness of the writing is the writing itself. Clark v. Mallory, 185 Ill. 227. The contract in question is unambiguous and appears to be clearly and fully expressed by the writing in all its terms. It is a contract, in substance, by which appellant relinquishes all right, title and interest in said original contract and surrenders the same to Bliss and Barnes in consideration that they shall surrender to appellant the said bond and release all their right, title and interest therein to appellant. The consideration expressed is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is in its nature contractual. It purports to be a contract, in substance, that Wilford is thereby doing an act in consideration that Bliss and Barnes have done or will do another act. It purports, in other words, to state all things to be done by both parties in the writing. The rule therefore applicable in case of the mere recital of money considerations and receipts thereof in deeds of conveyance do not apply to the contract in question. Ludeke v. Sutherland, 87 Ill. 481 and Kimball v. Walker, 30 Ill. 482, in which the reason for the rule in the case of deeds is set forth; and see also Jackson v. Railway Co., 54 Mo. App. 636; Purinton v. Northern Illinois R. Co., 46 Ill. 297; Cassilly v. Cassilly, 57 Ohio St. 582; Jackowski v. Illinois Steel Co., 103 Wis. 448; Milich v. Armour Packing Co., 60 Kan. 229; 17 Cyc. 659, 661, in which cases it is shown when the written consideration is more than mere recitals of money considerations and payments and therefore inalterable by parole evidence.

It follows from the foregoing that our conclusion must be that the court properly directed a verdict in this case, and it will not be necessary to consider the other questions raised on this record as to the invalidity of the bond of the citizens of Weaverville, and the right of appellee to make such a defense in this case.

The judgment is, therefore, affirmed.

Judgment affirmed.


text:
    Benjamin Leafgreen, Defendant in Error, v. David Bornstein, Plaintiff in Error.
    Gen. No. 16,574.
    1. Judgments—when delay of attorney will prevent vacation of default judgment. A crowded condition of the hallways and elevators in a municipal court building, delaying an attorney, and the fact that he only received a statement of the claim a few minutes before the cause was called for trial, and was delayed in entering his appearance, are not grounds for vacating a default judgment where no showing is made as to when the attorney was employed or that he made his presence known to the court when he learned of the default.
    2. Judgments—negligence of attorney malting default will not be ground for vacating judgment. Where a judgment is entered by default on the nonappearance of an attorney, his negligence in waiting until a few minutes before court meets to enter an appearance will be imputed to his client and will prevent a vacation of the judgment.
    3. Judgments—diligence to be shown to cause vacation of judgment. Where proper diligence in entering an appearance is not shown, a judgment entered on a default thereon will not be vacated.
    Appeal from the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Isbael B. Perlman, for plaintiff in error.
    Parker & Hagan, for defendant in error.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This is an action of the fourth class brought in the Municipal Court to recover $135, alleged to be due for work done and labor and materials furnished by defendant in error to plaintiff in error, and at his special instance and request. Judgment for said sum was entered by default against plaintiff in error and in favor of defendant in error.

By this writ of error the judgment of the court in refusing to set aside the default is challenged. The return day was on February 21, 1910, and by affidavit of the attorney-for plaintiff in error filed February 25, 1910, it appears that judgment was entered at 9:30 a. m. on return day for failure of plaintiff in error to enter his appearance by or before that hour, as required by the rules of the court. The affidavit and application of plaintiff in error by his attorney fails to show proper diligence. The reasons assigned in the affidavit for the failure to appear in time is that on the morning of the return day plaintiff in error’s attorney was two minutes late, because of the crowded condition of the hallways and elevators in the Municipal Court building. The affidavit also states that the attorney only received a copy of the statement of claim and the summons in the cause about 9 :15 a. m. of return day, and that he ‘1 ascertained at 9 -.30 a. m. that judgment had been entered against plaintiff in error.” There is no showing as to when the attorney for plaintiff in error was employed in the case, and no sufficient reason or excuse appears for his not entering an appearance with the clerk before the convening of court. Neither does there appear in the record any showing that the attorney for plaintiff in error made known his presence to the court at 9:32 a. m., when he learned of the default, nor that he then made any attempt to have the entry of default and judgment set aside and an appearance entered. Plaintiff in error also makes the statement that the crowded condition of the halls and elevators on the mornings of return days in the Municipal Court is so well kp.own that the court ought to take judicial notice thereof. That may be true, but it only emphasizes the fact that it is negligence in an attorney to wait until a few minutes before court meets to enter the appearance of his client. An application for setting aside a default must show diligence, and the negligence of the attorney is imputable to the client. Hartford Life & Annuity Ins. Co. v. Rossiter, 196 Ill. 277; Eggleston v. Royal Trust Co., 205 Ill. 170.

It does not clearly appear in the record whether the default was occasioned by plaintiff in error or his attorney, but the record does fail to show proper diligence in the matter of the entry of appearance of plaintiff in error, and we, therefore, cannot legally interfere with the court’s action in refusing to set aside the judgment and default. Hitchcock v. Herzer, 90 Ill. 543.

It will not be necessary to consider the motion to expunge the bill of exceptions from the record, as the record presents no good grounds for a reversal of the judgment. The judgment is affirmed.

Judgment affirmed.


text:
    Illinois Malleable Iron Company, Plaintiff in Error, v. D. G. Brennan and M. J. Dempsey, Defendants in Error.
    Gen. No. 16,773.
    1. Mechanics’ mens—when subcontractor doing worTc under separate contracts can recover. Where an owner and contractor enter into two distinct contracts for plumbing and heating material for a building and one of the contracts is completed before the other is begun, the heating material is extra or additional work mentioned in the Mechanic’s Lien Act, and subcontractor furnishing both classes of material can recover under the Mechanic’s Lien Act, § 28, against the owner and contractor if notice was given within sixty days of the last delivery of the heating material furnished under' the second contract.

      2. Mechanics’ liens—when evidence shows single contract was made for two classes of material. In an action by a subcontractor against an owner and contractor under the Mechanic’s Lien Act) § 28, for plumbing and heating material furnished, testimony óf thé owner that he told the contractor to do some work on the building and that no price was fixed established that there were not two contracts with the contractor to furnish such material.
    3. Municipal courts—jurisdiction in mechanic’s lien cause. In an action at law, under the Mechanic’s Lien Act, § 28, in the municipal court of Chicago, by a subcontractor, on a statement of claim that he was entitled to a judgment and lien against premises, the judgment contemplated is for money only, within the meaning of the Municipal Court Act, giving such court jurisdiction in fourth class civil cases for the recovery of money only.
    4. Mechanics’ liens—when personal judgment may be rendered against both owner and contractor. Where in an action by a subcontractor, under the Mechanic’s Lien Act, § 28, service by publication is had on the contractor and the owner is personally served by process, a personal judgment may be rendered against both defendants jointly.
    5. Municipal courts—when evidence of contractor called by a subcontractor is competent against owner. Where a subcontractor, suing both a contractor and the owner in the municipal court of Chicago under the Mechanic’s Lien Act, calls the contractor as a witness under section 33 of such act, the evidence is competent against both defendants, and that a notice to take the contractor’s deposition did not specify how he was to be examined cannot affect the competency of the evidence.
    Mechanic’s lien. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversal with finding of facts.
    Opinion filed October 16, 1912.
    Alden, Latham & Young, for plaintiff in error,
    George E. Gorman, for defendant in error, M. J. Dempsey.
   Mr. Presiding Justice Duncan

delivered the opinion of the court.

This suit in assumpsit was brought December 31, 1909, by Illinois Malleable Iron Company, plaintiff in error, against D. G. Brennan and M. J. Dempsey, as contractor and owner, respectively, under Section 28 of the Mechanic’s Lien Act, to recover the sum of $362.48 for plumbing and heating material furnished the contractor for improving a building of the owner at 2550 Logan Boulevard, Chicago, and under a contract with said owner. Dempsey was personally served with process and in a jury trial contested the action. Brennan had moved to Sullivan, Mich., and was served by publication, but did not appear to resist judgment. The evidence did not disclose a single disputed fact submitted to the jury, except upon the question of whether or not Brennan had at different dates made two separate contracts with Dempsey, one for plumbing and the other for a heating plant for said premises.

The court overruled plaintiff in error’s motion at the close of all the evidence to direct a verdict in its favor, and instructed the jury, in substance, that if they found from the evidence that Dempsey and Brennan entered into two distinct contracts for work and materials for the said premises, and if they also found from the evidence that one of said contracts was completed before the other was begun and that notice of plaintiff in error’s claim for lien was served upon Dempsey more than sixty days after the last quantity of material was delivered for the first contract by plaintiff in error, that in such case' the plaintiff in error could not recover for the materials delivered under the first contract. The jury returned a verdict for the defendants in error, and the court rendered a judgment thereon against plaintiff in error and for costs, in favor of Dempsey and Brennan, after overruling its motion for a new trial.

Plaintiff in error made proof of every material fact necessary to establish its right to a subcontractor’s lien under the statute, and save only in the particular above named, its evidence is absolutely undisputed. We are unable to see how plaintiff in error’s right to recover in this case can be defeated in any part, if it be conceded that the evidence does establish two separate and distinct contracts, one for plumbing or the installation of bath and toilet and other such fixtures, and the other for the installation of a heating plant. Both jobs were done on the same building and for the same owner, and if the heating plant was the second job, it properly comes under the head of “extra or additional work and material,” mentioned in the statute, and for which both the contractor and subcontractors are entitled to their liens the same as for the original work and materials contracted for. The two jobs are usually done by the same workmen, and are both done by plumbers regularly, and are known as plumbers’ jobs. We can see no difference in principle in these contracts and two contracts by a carpenter, one to build a house complete except as to lathing and plastering, and a later contract to lath the building or do any other additional or extra carpenter work not contemplated in the original contract. We hold that in such case any subcontractor who had a contract with such contractor to furnish lumber for the building of the house, even though made before such additional work was contracted for, would have his lien for the lath, or additional material furnished, and for the lumber furnished in the original contract, even though his notice was served more than sixty days after the last item furnished under the original contract, provided the notice was served within sixty days of the last delivery of the additional material. The last date of delivery of the additional material or work is the day from which the sixty days is reckoned, and section 24 of the Mechanic’s Lien Act so provides. It was error to give said instruction and the jury were thereby misled. Besides, it is against the preponderance of the evidence to find that there were two distinct contracts. Dempsey testified when first examined that he said to Brennan: “I have got some work to be done over on the house; go over and do it.” He said no price was fixed and that nothing was said by him what it would cost or anything else. He then testified that he paid Brennan for the plumbing $225 September 3, 1909, when that job was completed, and $375 for the heating plant when that was completed, October 11, 1909. Plaintiff in error delivered the material right along without notice of any claim that there were two contracts between defendants in error, and its contract was single and for material to be used for the building without any notice that the same was to be considered other than a single contract. Brennan’s evidence supports Dempsey’s first evidence that there was such a single contract for both jobs, and the only evidence contradictory to that idea was given by Dempsey on his final examination.

Defendant in error also insists that the Municipal Court was without jurisdiction to try this cause, because in plaintiff in error’s statement of claim it claimed that it was “entitled to a judgment and a lien against said premises.” The judgment contemplated under said Section 28 is for money only, but as a prerequisite to such a judgment against the owner a plaintiff must show.that he is entitled to a lien on the premises. The fact that he is entitled to a lien is one of the ultimate facts to be proved and should be recited in the judgment. No mechanics’ lien can be enforced by this section or by a judgment thereunder, and .therefore the judgment is for money only within the meaning of the Municipal Court Act, which provides that said court' shall have jurisdiction in fourth class cases, “which shall include all civil actions, quasi-criminal actions excepted, for the recovery of money only when the amount claimed by the plaintiff, exclusive of costs, does not exceed one thousand dollars.”

It is also insisted by defendant in error that no satisfactory proof of the delivery of the material for use in Dempsey’s premises were made. The proof is ample and positive by Brennan and others that the material was not only delivered to Brennan on the premises, but was accepted by him, and that it was all used by Mm in Ms work on the building. There is no evidence in the record to the contrary.

Upon the claim that plaintiff in error failed to join Ml necessary parties as defendants, we must hold that the contention is not supported by the record. The evidence positively shows that there were no other contractors or subcontractors except Brennan and plaintiff in error, and the record discloses no other parties with mortgage liens, even if it be conceded that they should have joined as defendants, if there were such mortgage lienors. Service by publication was had on Brennan as provided by said Section 28 of the Mechanic’s Lien Act. The court, therefore, had jurisdiction of his person and could render a personal judgment against him and Dempsey jointly, as Dempsey was personally served by process. Smith v. Slaughter, 138 Ill. App. 46.

The court also erred in holding that the evidence of Brennan, on his cross-examination by plaintiff in error, was competent only as against Brennan. By Section 33 of the Municipal Court Act it is expressly provided that upon the hearing of any suit in the Municipal Court any party thereto may be examined upon the trial as if under cross-examination at the instance of the adverse party but the party calling him for examination shall not be concluded thereby, but may rebut the testimony thus given by counter testimony. This section is copied from the Minnesota Code, and the decisions of the courts of that state thereon are very high authority in considering that section. In re Brown, 38 Minn. 112, the court said:

“The object of the statute is to authorize an adversary to be examined, unprotected by the well-known rules of evidence. The effect is to compel Mm to undergo examination as well as cross-examination at the hands of the opposition if it so desires. It follows that any question which could properly have been asked the witness, were he undergoing the ordinary cross-examination, was legitimate.”

It hardly seems necessary to add that any evidence so obtained is ns legitimate and competent as any other evidence to establish any fact in the case necessary to be proved, not only as against the witness, bnt any other party in the cause, if the evidence was not inadmissible for some other reason than the mere fact that he was being cross-examined or examined by the use of leading questions. The fact that the notice to take his deposition did not specify how he was to be examined could not affect the competency of his evidence against' any other party. Plaintiff in error was not bound to disclose in his notice what the form or nature of the examination would be.

The legitimate evidence in this record made a complete case against both defendants in the court below, and as it was not at all controverted, the court erred in refusing to direct a verdict for the plaintiff in error. The judgment of the court will, therefore, be reversed. Judgment will be and is entered in this court for the plaintiff in error and against defendants in error for the amount of its claim, $362.48, and for all costs in this and the lower court.

We also find as ultimate facts to be incorporated in the judgment here the following, to wit: That about the first day of August, 1909, defendant in error and Brennan entered into a contract, partly expressed and partly implied, whereby Brennan, for the sum of $600, was to install a plumbing system and a heating plant on the premises in question owned by Dempsey; that about August 11, 1909, Brennan contracted with plaintiff in error to furnish him all the materials necessary to do said work on said premises without specifying prices therefor; that plaintiff in error delivered all of said material in question, making the first delivery thereof August 11, 1909, and the last delivery thereof September 30, 1909, and that all of the materials in question were accepted and used by Brennan in his work on Dempsey’s said building; that none of such material has been paid for by defendants in error or either of them, and that the usual and customary and reasonable value thereof is the sum of $362.48; that on November 24, 1909, plaintiff in error served personally a written notice of its claim for lien upon Dempsey, signed by it, stating that it had been employed by Brennan to furnish boilers, radiators, pipes, metal fittings, etc., under his contract with Dempsey for the construction on said premises of said improvements, describing the premises, and that there was due it for said materials on October 1, 1909, said sum of $362.48; that Dempsey paid the full and final amount of the contract price for Brennan’s work on said premises on the day he completed said work, to wit, October 11, 1909, without requiring Brennan to file sworn statements as to subcontractor’s claims, as provided in Section 5 of the Mechanic’s Lien Act of Illinois; that there were no other contractors or subcontractors employed on said building except said Brennan and plaintiff in error; and that plaintiff in error has established his right to a lien on said premises for said sum, and that its said lien attached as of date August 11, 1909.

Judgment reversed with finding of facts.


author: Mr. Justice Baume

text:
    George W. Kretzinger et al., Defendants, in Error, v. Francis S. Lewis, Plaintiff in Error.
    Gen. No. 16,615.
    1. Res judicata—settlement of estate. An administrator cannot set up the doctrine of res judicata as a defense to an action for attorney’s fees for services rendered in probating the estate, where he personally undertook payment of said claim after the probate court had entered an order approving his report and declaring the estate settled.
    2. Orders—nunc pro tunc cannot increase ad damnum. An order after judgment granting leave to increase the ad damnum, nunc pro tunc, as of the date judgment was entered is nugatory, since a nunc

      pro tunc order cannot supply the omission to make an order but only an omission in the record of an order.
    3. Judgments—in excess of ad damnum. A judgment which exceeds the ad damnum in the declaration or statement of claim does not justify a reversal where appellee is willing to enter a remittitur.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur.
    Opinion filed October 16, 1912.
    Alfred Livingston, for plaintiff in error.
    L. L. Smith, for defendants in error.
   Mr. Justice Baume

delivered the opinion of the court.

In an action of the fourth class, instituted in the Municipal Court, .defendants in error filed their verified statement of claim against plaintiff in error for $257.15 for the balance due upon an account stated on or about December 5, 1908. A trial of the case by the court without a jury resulted in a finding and judgment against plaintiff in error for $277.15, the excess of $20 above the amount claimed being for interest.

Plaintiff in error, having been appointed administrator with the will annexed of the estate of his father, W. H. Lewis, retained the defendants in error to perform legal services incident to the probating of said estate, for which services plaintiff in error agreed to pay $300. Defendants in error at the request of plaintiff in error made certain disbursements for costs, etc., attending the administration of said estate, and of the estate of Wm. A. Lewis, of which plaintiff in error was also administrator, amounting to $57.15. It was admitted by plaintiff in error that the charge made by defendants in error for their legal services was a reasonable one and that defendants in error actually disbursed $57.15 at his request. Indeed, it is uncontroverted that plaintiff in error, on December 5, 1908, and thereafter, promised to pay said amounts and that on September 20, 1909, plaintiff in error made a payment of $100 to apply upon said indebtedness and promised to pay the balance upon receipt of an expected remittance. On December 5, 1908, more than one year having elapsed since the appointment of plaintiff in error as administrator of the estate of W. H. Lewis, he was desirous of filing his final report and securing his discharge. He then presented receipts showing the disbursement and distribution by him of all the assets of said estate coming into his hands, save for the amount due defendants in error, which amount he was then unable to pay, and at his request defendants in error prepared a voucher for said amount and gave the same to plaintiff in error upon his promise to pay. the amount at his early convenience. The final report then filed by plaintiff in error in the Probate Court discloses that such voucher for $323.80 was filed therewith and plaintiff in error therein asked that he be allowed said amount as a disbursement by him. Upon a consideration of said report the Probate Court found that all the assets of said estates had been collected or accounted for in kind; that certain claims against said estate not allowed by the court had been paid by the administrator, which payments were allowed upon proof that said claims were just claims against said estate; that the funeral expenses and all costs of administration had been paid and that the -balance of said estate had been distributed according to the will of the decedent; and it was ordered that said final report and account be approved and said estate be declared settled and said administrator discharged upon the payment of the personal property tax for 1908. Thereafter, on September 29, 1909, a final order was entered making the order approving said report and account absolute, declaring the estate settled and discharging the administrator.

Against the propriety of the judgment here involved, plaintiff in error invokes the doctrine of res judicata. It is insisted that the ordered entered by the Probate Court approving the final report and account and finding that the disbursements shown in said account had been made by plaintiff in error as such administrator constitutes a conclusive finding and adjudication by a court of competent jurisdiction that the claim of defendants in error was then fully paid. A statement made by the late lamented Mr. Justice Gary, in an opinion filed in this court, is aptly illustrative of this insistence. We quote from memory: “This is an effort on the part of plaintiff in error to pay an honest debt with a technical rule of law.”

If the claim here involved was asserted by plaintiff in error against the estate of W. H. Lewis, or was asserted by defendants in error against said estate, or against plaintiff in error as administrator, the doctrine invoked would be applicable and would bar a recovery, but such doctrine can have no application in this case, because, under the evidence, a recovery may be had and was justified upon the verbal and written personal undertaking of plaintiff in error, entered into subsequent to the entry of the order in the Probate Court to pay the claim,

The record discloses that during the course of the hearing there was “some desultory talk of increasing the amount of the ad damnum to $300,” and that a motion therefor was then made, but was not acted upon by the court. After judgment was entered and upon the hearing of the motion by plaintiff in error to vacate the same the attention of the court was called to the fact that the amount of the judgment was $20 in excess of the amount claimed, whereupon defendants in error offered to remit such excess, but the court then granted leave to increase the ad damnum in the claim to $300 and ordered that said leave be entered nunc pro tunc as of the date judgment was entered. No order in that particular had been made by the court prior to the entry of judgment and the order nunc pro tunc was therefore nugatory and unavailing. “A nunc pro tunc order cannot be made to supply an omission to make an order, but only an omission in the record of the order.” Lindauer v. Pease, 192 Ill. 456; Sherman v. Green, 152 Ill. App. 166; Woolf v. Deahl, 152 Ill. App. 357.

While it has been held in a number of cases that error in entering a judgment in excess of the ad damnum in the declaration or statement of claim cannot be cured by remittitur in a court of review, and that where such error appears the judgment must be reversed and the cause remanded, no persuasive reason is or. can be advanced for such holding, and we are not disposed to follow the authority of such cases. To reverse a judgment in whole and remand the cause for another trial de novo, merely to permit the recovery of a judgment which shall not exceed the ad damnum in the declaration or statement of claim, where the appellee or defendant in error is willing to enter the remittitur required by a court of review, rather than suffer such reversal of the judgment and remandment of the cause, would be nothing less than an idle formality. If within ten days defendants in error will remit $20 from the judgment, such judgment will be affirmed for $257.15, otherwise the judgment will be reversed and the cause remanded.

Judgment affirmed if remittitur entered; otherwise reversed and remanded.

Remittitur filed and judgment affirmed October 16, 1912.


text:
    Michael Labriola, Defendant in Error, v. Rocco V. Romano, Plaintiff in Error.
    Gen. No. 16,683.
    Appeals and erbobs—questions of fact. Judgment affirmed where Appellate Court found from the record that verdict was responsive to the preponderance of. evidence.

      Error to the Municipal Court of Chicago; the How. Johw D. Tukwbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October, term, 1910.
    Affirmed.
    Opinion filed October 16, 1912.
    Rooco De Stefano, for plaintiff in error.
    O. F. Reich, for defendant in error.
   Mr. Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment entered in the Municipal Court in favor of defendant in error against plaintiff in error for $206, upon a verdict for the like amount. Plaintiff in error seeks to reverse the judgment solely upon the ground that the verdict is against the manifest weight of the evidence.

On December 10, 1909, defendant in error went to the place of business of plaintiff in error, who, we learn from the record, conducted a book-store and bank, for the purpose of sending $200 to Italy. Defendant in error claims that he then paid to a clerk of plaintiff in error $200.50 in cash and pay checks, for which he received a receipt for 1030 lires, equivalent to $206; that he was entitled to a credit allowance of $5.50, being the rate of exchange. Thereafter, plaintiff in error claims to have discovered that his clerk had made a mistake in issuing a receipt for 1030 lires, and that defendant in error, instead of paying him $200.50, had only paid him $100.50. Upon the demand of defendant in error that plaintiff in error send the. amount claimed to Italy, and the latter’s refusal so to do, defendant in error brought suit to recover the same.

A careful examination and consideration of the evidence as it appears in the record (not fully abstracted) discloses that the verdict is not against the manifest weight of the evidence, but is responsive to the preponderance of the evidence adduced upon the trial. It is not claimed that the judgment is excessive.

The judgment is affirmed.

Judgment affirmed.