text:
    John Petrey, Plaintiff in Error, v. John A. Rusk and Frank G. Clark, Defendants in Error.
    Gen. No. 18,736.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by John Petrey against John A. Busk and Frank G-. Clark for something which does not appear. The judgment was that plaintiff take nothing hy his suit. To reverse the judgment, plaintiff prosecutes a writ of error.
    Abstract of the Decision.
    1. Appeal and ebror, § 1752*—when judgment will be affirmed for insufficiency of abstract. A court of review will not go to the record to find reasons to reverse a judgment, and when such reasons do not appear in the abstract the judgment will be affirmed pro forma.

      2. Municipal Court op Chicago, § 29*—when sufficiency of evidence cannot be reviewed. On writ of error to reverse a judgment of the Municipal Court where there is nothing in the abstract of record or in the argument of plaintiff in error to show what the statement of claim or affidavit of merits contained, a court of review is unable to ascertain what the issues were and is unable to determine whether the evidence supports the findings.
    Samuel G. Hamblen, for plaintiff in error.
    William J. King and James D. Power, for defendants in error.
   Mr. Presiding Justice Graves

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Presiding Justice Graves

license: Public Domain

text:
    North Avenue Building and Loan Association and William Kemper, Trustee, Appellees, v. Christina Huber et al., Defendants. On appeal of Christina Huber, Appellant.
    Gen. No. 18,758.
    1. Mortgages, § 163

      —effect on right to foreclose where transfer of securities is ultra vires. Where the legal holder of promissory notes secured by trust deed sells the same to a building and loan association and both are made party complainants to a bill to foreclose the trust deed, held that though the attempted purchase of the securities by the association was ultra vires and void, the legal owner was entitled to a decree of foreclosure under the bill.
    2. Pleading, § 319

      —effect of reckless verification by solicitor. The reckless verification of pleadings by a solicitor should not add anything to their evidentiary value against a party who is shown to have had no knowledge whatever of the averments contained therein.
    3. Corporations, § 342*—effect where attempted purchase of notes secured by mortgage is ultra vires and void. Where an attempted purchase by a building and loan association of promissory notes secured by a trust deed is ultra vires and void, the title remains in the legal holder the same as though no such transfer had been attempted.
    | 4. Novation, § 1*—when transaction does not constitute. Where a building and loan association makes an attempted purchase of promissory notes secured by a trust deed which is ultra vires and void, so that title remains in the legal holder, the fact that the mortgagors made payments of interest to the association for several years does not constitute a novation so as to create a new contract between the mortgagors and the association, which would be also ultra vires and void and thereby defeating the right of the legal holder to maintain foreclosure suit.
    5. Novation, § 1*—essentials. To constitute a novation, there must be a substitution of a new contract for an existing one, and the substitution must be made by contract to which all the parties to the old as well as the new contract must actually consent.
    ¡ 6. Novation, § 1*—essentials. The original agreement of which novation is sought must be absolutely extinguished and a new agreement substituted for it, and the new agreement must be a valid, binding and enforceable contract.
    . 7. Mortgages, § 443*—when holder of notes need not be made party in individual capacity. Where the legal holder and owner of notes secured by a trust deed files a bill in the capacity of trustee to foreclose, he is entitled to a decree of forclosure as holder and owner of the notes and trust deed, though he was not a party to the bill in his individual capacity.
    8. Equity, § 145*—when bill may ask for alternative relief though the theories are inconsistent. Under proper circumstances a bill in equity may be so framed as to ask for alternative relief even though the two theories are inconsistent with each other, provided the facts alleged show the complainant to be entitled to the relief sought by which every aspect of the case the court finds is sustained by the proof.
    9. Mortgages, § 439*—effect of averments in bill os to whose use bill was filed. The fact that a bill filed by the trustee for foreclosure contains a prayer for a decree finding that a co-complainant was equitably entitled to the money when collected, or any other prayer or averment with reference to whose use the bill was filed, is wholly immaterial to the question of the trustee’s right to foreclose.
    10. Mortgages, § 650

      —when mortgagor cannot complain of decree directing trustee to hold proceeds for use of another. On appeal to review a foreclosure decree, a mortgagor cannot complain that the decree is erroneous in directing that the trustee receive and hold the money collected for the use of another party complainant, since such question does not concern the mortgagor.
    11. Mortgages, § 670*—when master’s fees excessive. Amount allowed as master’s fees in a foreclosure proceeding where there was an original and re-reference to the master, held unwarranted and unreasonable.
    12. Mortgages, § 632*—when foreclosure decree awarding execution for deficiency erroneous. Language in a foreclosure decree purporting to be a final order for execution against the mortgagor for a deficiency is erroneous, since no such execution can be awarded until a personal deficiency decree has been entered after the foreclosure sale.
    13. Mortgages, § 427*—limitations. The payment of interest on a promissory note tolls the statute of limitations, and a suit to foreclose a trust deed securing such note may be begun at any time within ten years after the last interest payment is made.
    14. Limitation of actions, § 83*—when rule that new promise must be made to legal holder of obligation inapplicable. The rule that when a debt is barred by the statute of limitations a new promise in order to revive the obligation must be made to the legal holder of the obligation, or to his agent, is not applicable where the statute has not run against the debt, for the reason that it has been recognized as an existing obligation by the payment of interest.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari allowed by Supreme Court.
    Affirmed as modified.
    Opinion filed May 20, 1914.
    Rehearing denied June 4, 1914.
    Frederick Mains and Wesley H. Mains, for appellant.
    Christian Meier and Paul C. Meier, for appellees.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

On October 24, 1895, Christina Huber, the appellant, and John Huber, her husband, being indebted to E. S. Dreyer & Co. in the sum of $14,000 as principal and $434 accrued interest thereon, and to Kemper' Brothers in the sum of $4,000, executed their promissory note payable to the order of themselves for the: sum of $18,000, due in five years from its date, with interest thereon at the rate of 6 per cent, per annum,payable semiannually at the office of Kemper Broth-' ers, Chicago, Illinois. The installments of interest were evidenced by ten interest notes of that date also' made payable to the order of the makers. They then indorsed both the principal and interest notes in blank, thereby making them negotiable by delivery. After so executing and indorsing these notes they delivered them all to William Kemper, one of the firm of Kemper Brothers, to whom they owed the $4,000 above referred to. On the same day they made, executed and delivered to the said William Kemper a trust deed conveying to him in trust certain real estate to secure the payment of the $18,000 principal note and the interest notes mentioned. Thereupon William Kemper gave to Dreyer & Co. a check signed in the name of Kemper Brothers on Foreman Brothers’ bank for the sum of $14,434, and caused the obligation due from the Hubers to Kemper Brothers to be can-celled. The item of $434 for interest on the Dreyer obligation and the costs and expenses of having an abstract of title to the land covered by the trust deed broug’ht down to date and examined by an attorney and the cost of recording the papers were afterwards paid to Kemper by the Hubers. At the time in question, William Kemper was the treasurer of an Illinois corporation known as the North Avenue Building and Loan Association Whatever money came into his hands as such treasurer he deposited with the firm of Kemper Brothers until the same was called for by the associatioli. He was personally financially responsible and was under bonds to the association as its treasurer. Kemper Brothers kept an account in Foreman Brothers’ bank. Into this account they deposited all surplus funds in their hands regardless of the source from which it was derived and against that account they checked for all purposes for which they desired to use money. The account of the association with Kemper Brothers was kept on the hooks of that firm. There was nothing on the books of the Foreman Brothers’ bank to show what part of the money deposited there by Kemper Brothers, if any, came from the association or its treasurer. This course of business seems to have been with the knowledge and consent of the officers and directors of the association. At the time of the transaction related, there was on deposit with Kemper Brothers $8,185.88 of the funds of the association, and there was on deposit in the Foreman Brothers’ bank a balance to the credit of Kemper Brothers of $17,047.25. On the day of the transaction between the Hubers and William Kemper he drew against this balance the $14,434 check given to Dreyer & Co., and gave other checks disconnected with that transaction for • $51-9.61, leaving a balance of $2,093.64. There is nothing to show whether the check to Dreyer & Co. or the other checks were drawn first. None of the officers or directors of the association, except William Kemper, the treasurer, knew anything about this transaction until November 12, 1895, and there is nothing to show that he either had or undertook to exercise any authority on behalf of the association in that transaction. The association held regular -weekly meetings of the directors. The minutes of the meeting held November 12, 1895, show the following:

“Motion made and seconded that we buy a $10,000 interest in an $18,000 mortgage against John Huber of William Kemper, with privilege of buying other interest of not less than $2,000 at a time. Carried.”

The minutes of the meeting* held November 18,1895, show the following:

“Motion made and carried that we buy an additional interest of $4,000 in addition on the $10,000 we have in mortgage of John Huber. Carried.”

And the minutes of the meeting held September 8, 1896, show the following:

“Motion made and seconded that we buy the $4,000 balance in the $18,000 mortgage from William Kemper. Carried. ’ ’

Vouchers for $10,000, $4,000 and $4,000 dated respectively November 12, 1895, November 18, 1895, and September 8, 1896, were issued and delivered by the corporation to William Kemper, and are as follows :

“$10,000.00/100 No. 2319.
Chicago, November 12th, 1895.
The Board of Directors of the North Ave. Building & Loan Association orders the payment to Wm. Kemper of the sum of Ten Thousand—/100
Dollars for mortgage of John Huber.
Loan No.......... Book No........
Ernest Ulbright, Jos. Grasen, Jr.
President. Secretary.”

Indorsement on back:

“William Kemper,
Chicago, November 18, 1895.
This order is drawn to buy a $10,000 interest in an $18,000 trust deed signed by John Huber and dated October 24, 1895, we holding the papers and Win. Kemper to receive interest on $8,000.
North Ave. Bldg. & Loan Ass’n,
Ernest Ulbright, Pres.
Jos. Grasen, Jr., Sec.”
“$4,000. No. 2331.
Chicago, Nov. 27, 1895.
The Board of Directors of The North Avenue Building & Loan Association orders the payment to William Kemper of the sum of Four Thousand-/100 Dollars for mortgage of John Huber.
Loan No........ Book No........
Ernest Ulbright, Jos. Grasen, Jr.,
President. Secretary.”

Indorsed:

“William Kemper,
One month interest due to William Kemper on this order. ’ ’
“$4,000 No. 2596.
Chicago, September 8th, .1896.
The Board of Directors of The North Avenue Building & Loan Association orders the payment to William Kemper of the sum Four Thousand-/100 Dollars for balance of $18,000 mortgage.
Loan No........ Book No........
Ernest Ulbright, Jos. Grasen, Jr.,
President. Secretary.”

Indorsed:

“William Kemper.”

There is no evidence that the Hubers knew anything about the sale of this mortgage to the association until the transaction was completed. Neither of the Hubers was a member of the association or owned any of its stock. The association collected all the interest on the $18,000 loan up to April 24, 1910, and paid to William Kemper the proportion of it earned by the part of the loan carried by him while he so carried it. No part of the $18,000 obligation has been paid. The interest on it accruing after April 24, 1910, is also unpaid.

On November 17, 1910, The North Avenue Building & Loan Association and William Kemper, as complainants, filed their bill in chancery in which Christina and John Huber are made the principal defendants, and one Frank Cuneo is also made a defendant, because of some undisclosed claimed interest. In this bill the complainants pray for a decree requiring the said Christina and John Huber to pay to the association the principal sum of $18,000 and accrued interest thereon and the costs, including master’s and solicitors’ fees,- and in default thereof that the trust deed given to William Kemper be foreclosed and the premises sold, etc. In this bill it is alleged that the note in question was given for a loan made by the makers thereof from the complainant, The North Avenue Building & Loan Association. This bill was signed by the complainants by their solicitors and was verified by one of the solicitors, who afterwards testified that he prepared the bill 'and verified it without having conferred with the association or any of its officers in relation to the facts averred in the hill; that he gathered the facts averred from the abstract of title, which did not show who made the loan; that he did not know he had misstated the facts until the argument of the demurrer to the original bill; that he then inquired of the secretary of the association as to the facts and obtained the original papers and drafted an amended bill. There is no averment in the original bill to indicate why William Kemper was made a complainant. After several demurrers and amendments to the bill issues were formed on an engrossed amended bill, wherein the North Avenue Building & Loan Association, a corporation organized under an act of the Illinois legislature entitled “An Act to enable Associations of persons to become a body corporate to raise funds to be loaned only among their members,” in force July 1, 1879, and William Kemper, as trustee, are made the complainants. In this bill it is averred that the averment in the original bill that the loan referred to therein was made by the association to the Hubers was erroneous and arose from a misunderstanding of the facts by the solicitors who drew the same and were made without the knowledge of the complainants, and that the true facts are that Christina and John Huber, being indebted to William Kemper, delivered to him the promissory note in question for $18,000, and that to secure the' payment of that note and interest the Hubers conveyed to William Kemper, as trustee, the property in question; that the transaction was had between the Hubers and William Kemper as an individual and not with the association or with him as an officer of the corporation; that the association having-on hand certain surplus funds for which there was no demand from the members of the association, .and which amounted to less than twenty per cent, of the assets of the association, purchased from William Kemper and caused to be delivered to the association the Huber note and that the association is now the owner thereof. Then follows the usual averments of default, etc. The prayer is, first, that the complainant, the North Avenue Building & Loan Association, be decreed to be the owner and holder of the note and trust deed; that the defendants be decreed to pay to that complainant the amount due on that note as principal and interest and that complainant be decreed to have a first lien therefor on the premises described in the trust deed, and that in default of the payment of the amount due on said note the “mortgaged” premises be sold to satisfy the same, and for a deficiency judgment; or, second, that in case the court finds that the association is not the legal holder of the note and trust deed, then, that the court also find that William Kemper is the owner thereof and that the premises be sold to satisfy the amount found due on said note, together with costs, expenses and solicitors’ fees, and the proceeds paid to and held by William Kemper, as trustee, for the use of such person as may be equitably entitled thereto, etc., and concludes with a prayer for general relief.

Personal service of summons was had on Christina Huber and Prank Cuneo. John Huber not being personally served or found, notice by publication was duly given as to him.

The bill was taken as confessed as to John Huber and Prank Cuneo. Christina Huber answered. By her answer she admitted that the complainant association is a corporation organized as averred in the bill; admits that in the original bill it was averred that the loan was made by the association, but denies that such averment was made by mistake or through misunderstanding of the facts by the solicitor, and without the knowledge of complainants, and avers that such allegation was made in the original bill and the' bill then verified with full knowledge of all the facts, and that the same was persisted in until August 12,1911, and that such admission so persisted in is an admission of record and binding on complainants, and should estop them, from showing the facts to he as alleged in their engrossed amended bill; that the $18,-000 note and the trust deed were made and delivered to William Kemper as the authorized agent and officer of the complainant association, and for the association upon the payment by the association of $18,-000 of outstanding obligations of the Hubers; and that such association was the real owner of such note and trust deed from the time it was so delivered up to and at the time suit was brought thereon. That as such association was an Illinois building and loan corporation, as alleged in complainants bill, and as the Hubers were not members thereof, the act of the association in loaning the money to them and taking the note and trust deed therefor was ultra vires, prohibited by statute and null and void; that if William Kemper ever owned the note and trust deed and transferred the same to the association such transfer operated as a satisfaction of his interest therein and became a completed contract of novation and that such contract was likewise ultra vires, prohibited by statute and null and void. The defendant further sets up in her answer laches, the statute of limitations and an adequate remedy at law. It is not denied in the answer that the Hubers borrowed the $18,000 from some one; that they executed the note and trust deed and paid the interest on the loan for fifteen years. To this answer a general replication was filed and the cause was referred to a master in chancery to take proofs and report his conclusions of law and fact.

The master in his final report finds that the original transaction in which the Hubers borrowed the $18,000 and gave the notes and trust deed was had with William Kemper in his own behalf; that the money advanced was his own personal money; and that the debt evidenced by the note and trust deed was due from the Hubers to him personally in the first instance, and was a valid indebtedness and that the principal has not been paid.

He further finds that afterwards and on November 12, 1895, the complainant association purchased of Kemper a $10,000 interest in the loan and paid him $10,000 therefor, and that later and on November 18, 1895, it purchased of him an additional $4,000 interest therein and paid him $4,000 therefor, and that still later and on September 8, 1896, it purchased of him the remaining $4,000 interest therein and paid him $4,000 therefor and thereupon became the sole owner of the said securities. •

He further finds that all the interest notes were paid at maturity by the Hubers to the association and when so paid the association cancelled them and delivered them to the Hubers; that interest on the principal sum at the rate of six per cent, per annum has been paid by the Hubers to the association up to April 24, 1910, but that no interest has been paid since that date.

The master further finds that the association is a corporation organized under a general law of Illinois, entitled “An Act to enable associations of persons to become a body corporate to raise funds to be loaned only among their members,” and that the defendants were not members of that association.

The master further finds that the purchase of the securities by the association from Kemper was not a loan, but was an attempted investment not prohibited by the statute, but “was ultra vires beyond the power of the association” and void; that the association did not thereby acquire title to the securities, but that the title thereto remained in Kemper, in trust in equity in favor of the association; that the attempted purchase of the securities by. the association from Kemper was no concern of the Hubers and did not render the note or trust deed void or relieve the Hubers from liability thereon; that Kemper is entitled to foreclose the trust deed and to recover the principal indebtedness and the unpaid interest thereon and solicitors’ fees; that there is due to William Kemper as trustee for the association on the note for principal $18,000, for interest $1,965, and for solicitors’ fees $200, or a total of $20,165, and that he has a lien as snch trustee on the premises described in the trust deed for that amount; that Christina Huber is personally liable to him for that amount; and that William Kemper as trustee for the .use of the association is entitled to foreclose the trust deed in question.

The master further finds that the allegation in the original bill that the loan was made by the complainant association was a mistake of the solicitor and arose from a misunderstanding of the facts by him and was made without the knowledge of the association or its officers.

Objections of Christina Huber to substantially every finding of the master were duly filed and were overruled by the master. Later, those same objections were ordered to stand as exceptions in the Circuit Court to that report, where they were again overruled and a decree of foreclosure was entered following the findings of the master. Christina Huber has brought the record here by appeal and has assigned thirty-five errors covering eighteen pages of printed matter in the abstract.

The question sought to be presented by the objections and exceptions to the master’s report and by the assignments of error may be classified under the following heads.

Is the finding of the master and the court that the original transaction was between the Hubers and William Kemper, acting for himself, supported by the evidence, or should the finding have been that the transaction was really between the Hubers and the association acting through William Kemper as its agent and ratified by it?

Assuming that the original transaction was had between the Hubers and Kemper acting for himself as the master and the court found, and that the attempted purchase by the association from Kemper of the securities was ultra vires and void, is Kemper still the owner of the note and is he entitled to collect it in a foreclosure proceeding? Has the association any interest in the securities or any fund collected thereon that can be determined and decreed to it or recognized in a foreclosure proceeding? Can Kemper, as the legal owner of the securities, have a decree of foreclosure on the bill as it stands? Can he collect the solicitors’ fees provided for in the trust deed? Is the provision of the decree awarding execution for any deficiency that may exist after the sale of the real estate described in the trust deed correct? Are the master’s fees correctly taxed? Is the action barred by laches ? Is it barred by the statute of limitations ?

We think the findings of the master followed by the court in the decree that the original transaction was between the Hubers and William Kemper as an individual ; that the loan was made by him individually to the Hubers; that the notes were delivered to Kemper by the Hubers as evidence of their indebtedness to him; that when so delivered to him they were his property; that the trust deed was made to secure the payment of the said notes to William Kemper; that thereafter the' complainant corporation undertook to purchase the notes of Kemper as an investment and that it did finally obtain possession of the same and paid Kemper therefor $18,000 in cash in three instalments and thereafter claimed to own the same are amply supported by the evidence. -

William Kemper so testified and he was corroborated by subsequent events shown in evidence, as well as the record books of the association which clearly show that the association came into the transaction for the first time on November 12, 1895, as the purchaser of a little more than a one-half interest in the nóte which was then recognized as and which was in fact an existing obligation. The only circumstances shown in evidence that tend in the least to contradict that proof are, first, that Kemper in making up the fund loaned to the Hubers drew on an account in the bank that was made up in part of moneys originally belonging to the association; and, second, that when the original bill was filed it contained an allegation to the effect that the loan had been originally made by the association to the Hubers. Neither of these circumstances when understood tend to discredit the positive testimony of Kemper that he made the loan. The way in which the funds of the association became part of the account from which Kemper drew the money loaned the Hubers is shown in the foregoing statement of facts. By drawing the $14,434 paid to Dreyer & Company out of the Foreman Brothers’ bank, the account of the association with Kemper Brothers was not reduced in the least. The association still had on deposit with Kemper Brothers subject to call undiminished the $8,185.88, the same as before the Dreyer check was cashed, and there is nothing in this record to indicate that they were not amply able to produce it on call. Besides that, if William Kemper had feloniously drawn from Kemper Brothers the entire funds of the association, and had deliberately loaned the same to the Hubers as his own, the transaction would not have been a loaning by the association. If he had undertaken to act for the corporation in making the loan, it would still not have been its contract, for there is nothing in this record to indicate that he had any authority whatever to make loans for the association. Still another circumstance shows it was not a loan by the association, and that is found in the fact that the loan was for $18,000, while all the funds the association is shown to have then had was but $8,185.88.

The allegation in the original bill to the effect that the loan was made by the association to the Hubers is shown to have been made by the solicitor who framed the bill without having had any consultations with the officers of the corporation as to the facts. It is also disclosed by the evidence that he relied on the papers and abstract for the facts. There was nothing on the face of the papers to indicate to him that the loan had first been made by Kemper.

The note was made payable to the makers and was indorsed by them. Being so made and indorsed, it was negotiable by delivery and did not need to be and was not in fact indorsed by Kemper in transferring it. The fact that the trust deed was made to Kemper as trustee was not unusual on the assumption that the association had made the loan. In fact, it is the well-known usual custom to name some one other than the holder of the obligation, trustee in a trust deed. It was, therefore, not surprising that being handed the papers by the association, and directed to bring foreclosure proceedings thereon, that he should conclude that the holder of the note was the party who had loaned the money. The bill was verified by the same solicitor who prepared it, and while the practice of personally verifying papers, indulged in by some attorneys, is pernicious and should be condemned, particularly when they have no personal knowledge of the facts contained therein, still we are unable to see why the reckless verification of pleadings by the solicitor should add anything to their evidentiary value against a party who is shown to have had no knowledge whatever of the averments contained therein. The holdings of courts of last resort in the various jurisdictions of this country are not in harmony on the question of how far, if at all, a party should be bound by the recitals in pleadings that have been amended by leave of court, but it is no longer in doubt in this State. In Wenegar v. Bollenbach, 180 Ill. 222, our Supreme Court held that where an original bill not sworn to by the party had been amended by leave of court it ought not to be admitted in evidence against the pleader, and that it was reversible error for the court to give weight to alleged admissions supposed to be contained in the original bill.

There is no assignment of error challenging the correctness or propriety of the finding of the court that the transaction between the association and William Kemper, whereby the association obtained from Kemper the notes of the Hubers and Kemper obtained the $18,000 of the association, was ultra vires, null and void. We, therefore, are not called upon to determine that question. Neither do we decide whether that question was properly before the Circuit Court for determination. Appellant takes the somewhat novel position that even if the original transaction was a bona fide loan from Kemper to the Hubers, and the notes in the hands of Kemper represented a bona fide debt due from the Hubers to him, still that by the abortive attempt on the part of the association to purchase the securities from Kemper, the once valid notes and trust deed became and thereafter remained void and worthless paper that could not be made the basis of a foreclosure suit to recover the $18,000, which she admits she and her husband received and have never paid back to any one. In support of that contention, counsel has evolved the theory that the transaction between Kemper and the association, afterwards assented to by the Hubers by paying to the association interest for a time, became by the doctrine of novation a new contract between the Hubers and the association, which was prohibited by statute, was ultra vires and void. The theory has the merit of newness and novelty, but is not tenable. In the first place, if the transaction by which Kemper attempted to transfer title in the notes to the association is void, as appellant contends, and the court found, then the entire situation remains the same as if the transfer had never been attempted and the notes are still the property of Kemper. Next, there is in this transaction, so far as we are able to discover, none of the elements of novation. Novation is the substitution of a new contract for an existing one. Such substitution must be made by contract to which all the parties to the old as well as to the new contract must actually consent. The original agreement of which novation is sought must be absolutely extinguished and a new agreement substituted for it. Karraker v. Eddleman, 101 Ill. App. 23. The new contract which is substituted for the old one must be a valid, binding and enforcible contract. 29 Cyc. p. 1134, E; Spycher v. Werner, 5 L. R. A. 414, 74 Wis. 456; Clark v. Billings, 59 Ind. 508; Bristol Milling & Mfg. Co. v. Probasco, 64 Ind. 413.

In the case at bar, the original contract was contained in the notes and trust deed. Boley v. Lake St. El. R. Co., 64 Ill. App. 305.

This contract was never extinguished. No new valid contract was ever substituted therefor. It was on this contract that interest was paid from year to year until April 24, 1910.

William Kemper, being the legal holder and owner of the unpaid $18,000 note, is in law and by the express terms of the trust deed, under the uncontradicted facts in this record, entitled to foreclose the same. It is, however, strenuously contended by appellant that even if that is true he cannot under the bill, as framed, have any relief as the holder and owner of the note and trust deed, because he is not made a party to the bill in his individual capacity and because by the bill the complainants insist the securities belong to the association. William Kemper first came into court in this case in his individual capacity as joint complainant with the association, seeking to foreclose the trust deed. By leave of court he so amended his bill as to appear therein as complainant in his capacity of trustee. The facts are all set out in the bill showing the entire transaction to be as the court finally found them to exist. It is there fully shown that the William Kemper who loaned the money to the Hubers and the William Kemper who is named as trustee in the trust deed are one and the same person and that the Hubers knew it. Those facts being so shown, he need not formally appear in the suit in both capacities. Dearlove v. Hatterman, 102 Ill. App. 329; Chandler v. O’Neil, 62 Ill. App. 418. When a person is in court, he is there for all purposes, both as an individual and in his representative capacity. Breed v. Baird, 139 Ill. App. 15; Harris v. Lester, 80 Ill. 307.

It is true the complainants conclude from the facts averred in the bill that the association is the owner of the securities and pray that Kemper may be decreed to hold the money, when collected, for its use, but they say in the alternative that, if the court does not agree with their conclusions in that respect, then they insist William Kemper is the legal owner of the securities and that a foreclosure of the trust deed should be decreed to him. The bill concludes with a prayer for general relief. Under proper circumstances a bill in equity may be so framed as to ask for alternative relief, even if the two theories are inconsistent with each other, provided the facts alleged show the complainant to be entitled to the relief sought by whichever aspect of the case the court finds is sustained by the proof. Henderson v. Harness, 184 Ill. 520. Kemper, as trustee under the trust deed, was entitled to a decree of foreclosure at the instance and for the benefit of the legal holder of the note, whether it should be found to be the association or himself as an individual, and whether the court determined who was equitably entitled to the money when collected or not. The fact that the bill contains a prayer for a decree finding that the association was equitably entitled to the money when collected, or any other prayer or averment with reference to whose use the bill was filed, is wholly immaterial to the question of Kemper’s right to foreclose the trust deed.

If Kemper collects this money by foreclosure or otherwise, he will be bound to turn it over to the persons entitled to it, regardless of any averments he has made in the bill as to whose use the same was filed. If in the transaction between the association and Kemper he has obtained, money belonging to the association which in equity and good conscience he ought to return, that is a matter between him and the association. Those are questions that do not concern appellant. Schott v. Youree, 142 Ill. 233-241; American Exp. Co. v. Haggard, 37 Ill. 465-473; Carr v. Waugh, 28 Ill. 418-423; Brownell Improvement Co. v. Critchfield, 96 Ill. App. 84-90; Atkins v. Moore, 82 Ill. 240. In the last case cited, the court on page 241 of the opinion announces the general rule to be that “the party in whom is the legal right of action may, as respects the defendant, bring his suit for the use of whatever person he likes ; that it is no concern of the defendant for whose use the action is brought.” For the same reason it is no concern of appellant whether the decree is or is not erroneous in directing that Kemper receive and hold the money collected by this preceding for the use of the association, and she cannot be heard to question it here.

The allowance of $200 to complainant to pay his solicitors’ fee was in pursuance of the express terms of the trust deed and was proper.

Appellant complains that the charge made by the master for fees is unreasonable and exorbitant. There was an original and a re-reference to the master. He charged and was allowed on the original reference for taking and certifying eighty pages of testimony at 15 cents per one hundred words, $30; for stenographer’s charges for reporting such eighty pages of testimony at 15 cents per 100 words, $30; and for forty seven hours’ time for service at $5 per hour, $235, a total of $295. On the re-reference he charged and was allowed for taking and certifying the seven pages of testimony, $2.61; for stenographer’s charges for reporting said seven pages,- $2.61; preparing and serving notices, $4; and for thirty-seven hours ’ time, at $5 per hour, $185, a total of $194.22. It will be observed that under the re-reference but seven pages of testimony was taken. There was no great change made in the issues of law or fact on the re-reference. We have examined both of these reports carefully and are driven to the conclusion that the charges made by the master are unwarranted and unreasonable, and that the amount charged for time spent in considering the evidence and in making the first report is ample to compensate him for all such services rendered on both references. The decree of the Circuit Court will, therefore, be modified soasto allow him for such services on both references the sum of $235, thereby reducing the fees allowed him by $185. This practice is in accord with the views expressed in the following cases: Biewer v. Mueller, 254 Ill. 315-324; Keuper v. Mette’s Unknown Heirs, 239 Ill. 586. See also Manowsky v. Stephan, 233 Ill. 409, and Wirzbicky v. Dranicki, 235 Ill. 106.

The decree contains the following: “In case any deficiency is shown in the amount due complainant, William Kemper, as trustee for the use of the complainant association, he shall be entitled to execution against the defendant, Christina Huber, who is personally liable therefor.” If this be construed as a final order for execution, it is erroneous. No execution can be awarded until a personal decree has been entered, and a personal deficiency decree cannot be entered until by a sale of the premises and a report thereof to the court has been made, and the amount of the deficiency has been thereby ascertained and decreed. The decree will, therefore be modified by eliminating the language quoted. Springer v. Law, 185 Ill. 542-545; Cook v. Moulton, 64 Ill. App. 429-431; Rooney v. Moulton, 60 Ill. App. 306; Bouton v. Cameron, 205 Ill. 50-68.

It is urged that the action is barred by the statute of limitations. While the debt has been due for more than ten years, the evidence shows and it is admitted that the interest on it was paid by the Hubers to April 24, 1910, which payment is evidenced by indorsements in writing made from time to time on the back of the note. The first interest payment that was not made was due October 24, 1910. This suit was begun November 17,1910, less than one month after the default in the interest payment. The payment of interest on a promissory note tolls the statute of limitations, and a suit to foreclose a mortgage securing such note may be begun at any time within ten years after the last interest payment is made. Stein v. Kaun, 244 Ill. 32-37. The authorities cited by appellant to the effect that when a debt is barred by the statute of limitations a new promise in order to revive the obligation must be made to the legal holder of the obligation, or to his agent, have no application here. The statute never ran against this debt. The note was always recognized by the Hubers as an existing obligation, as is evidenced by the regular payment of interest to April 24, 1910.

Appellant objects that the master found that $17.20 was paid by Kemper for a continuation of the abstract and $10 for attorneys’ fees in examination of the same, and failed to find that the same was repaid by the Hubers. While the master does not expressly find that these items were repaid by the Hubers, he does find they were charged to them by Kemper. In any event, nothing is predicated in the decree on this finding. The amount for which foreclosure is decreed is made up of the principal debt of $18,000, interest thereon accrued and unpaid amounting at the date of the decree to $1,965, and $200 solicitors’ fees. The $17.20 for the continuation of the abstract and the $10 attorneys’ fees for• examination of the same are not included as part of the debt due from the Hubers. Appellant will pay three-fourths of the costs of this appeal and appellees will pay one-fourth of the same.

Finding no reversible error in the record, the decree, modified as above suggested, is affirmed.

Decree affirmed as modified.


text:
    Efthymoa Tountas, Defendant in Error, v. Antonius Deligiannis, Plaintiff in Error.
    Gen. No. 18,773.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Payment, § 29

      —when finding as to payment of wages sustained by the evidence. In a suit for wages where the defense was that plaintiff had been paid all that was due him for wages earned before a certain date, and defendant introduced in evidence a written receipt and acknowledgment executed by the plaintiff to a company of which the defendant was a partner, purporting to show plaintiff was paid hut plaintiff claimed he did not receive payment, held, that a finding for plaintiff was sustained by the evidence, it appearing that the written acknowledgment and receipt was executed to release plaintiff’s claim against the partnership at the time of its dissolution but not as against the defendant who continued the business.

      Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by Eftkymoa Tountas against Antonins Deligiannis and Nicholaos Deligiannis to recover a sum claimed to be due for wages. The affidavit of merits averred as a defense that the sum of $500 had been paid to plaintiff in cash for his wages earned before a certain date. The case was discontinued as to Nicholaos and the papers in the case amended accordingly. Prom a judgment in favor of plaintiff for $783.20, Antonins Deligiannis brings error.
    Rose, Symmes & Kirkland, for plaintiff in error; Robert J. Nordhold, of counsel.
    George M. Weichelt, for defendant in error.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Appeal and erp.ok, § 1410*—when findings on questions of fact should not he disturbed. The findings of a jury, or of a trial judge without a jury, should not be set aside by a reviewing court unless they are clearly and manifestly against the weight of the evidence.


text:
    Emanuel Levy, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 18,800.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Negligence, § 191

      —when negligence is question for jury. The question of negligence is for the jury unless from the evidence reasonable minds could come to hut one conclusion.
    Error to the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari dismissed for want of jurisdiction.
    Affirmed.
    Opinion filed May 20, 1914.
    ' Statement of the Case.
    Action by Emanuel Levy against Chicago City Railway Company, a corporation, to recover for injuries sustained by plaintiff while riding as a passenger on one of defendant’s ears which collided with another car at a street intersection where the tracks on which the two cars were being operated crossed each other. To reverse a judgment entered on a verdict of not guilty, the plaintiff brings error.
    Levy & O’Donnell, for plaintiff in error.
    John E. Kehoe and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Carriers, § 461 —doctrine of res ipsa loquitur. By the doctrine of res ipsa loquitur the happening of the collision raises the presumption of negligence on the part of those in charge of and operating the cars, and if resultant injury is established by proof, a prima facie case is made out. When however, such prima facie case is overcome hy the evidence, no recovery can he had on the mere proof of the happening of the accident.

3. Carriers, § 480*—when question whether prima facie case of negligence is overcome for jury. In an action against a street railway company for injuries sustained by a passenger resulting from a collision, when the collision is shown by the proof or is admitted and there is proof before the jury tending to show that it was the result of an inevitable accident and not due to the negligence of any one, it is for the jury to determine whether the prima facie case is overcome hy proof or not.


text:
    Ludwig M. Borgerson, Appellant, v. Chicago Railways Company, Appellee.
    Gen. No. 18,861.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by Ludwig M. Borgerson against Chicago Railways Company to recover for injuries sustained by plaintiff resulting from a collision while attempting to pass one of defendant’s westbound cars on his motorcycle. It appeared that plaintiff was following the car, and when it stopped at a street intersection to discharge passengers he attempted to pass it on the side next to the eastbound track, and while approaching the front end of it a passenger came out the front door of the car on that side and stepped to the street in front of plaintiff so that he was unable to avert a collision and he was thrown to the pavement and injured. Plaintiff recovered a verdict for five hundred dollars, and not being satisfied with the amount recovered appeals from the judgment.
    Abstract of the Decision.
    1. Appeal and ebbob, § 1523

      —when giving of erroneous instructions harmless. In an action for personal injuries, the giving of erroneous instructions on the right of appellant to recover are harmless where the jury found that issue for him.
    2. Appeal and ebbob, § 1241*—when party cannot complain of instructions based on same theory as his own. Where a party induces the court to give instructions on a theory of the case, he cannot complain that instructions on the same theory were given at the instance of his adversary.
    3. Damages, § 242*—when judgment will not be reversed for inadequacy of damages awarded. A judgment will not be reversed for the reason that the damages awarded are inadequate, where the damages claimed are of a class where no definite measure exists and the verdict of a jury is ordinarily conclusive, the reviewing court not being able to say that the verdict is so disproportionate to the damages as to warrant it in awarding a new trial, or to indicate that the jury were influenced by passion, prejudice or other improper motives.
    Morse Ives, for appellant
    Charles L. Mahony and Alfred B. Davis, Jr., for appellee; John R. Guilliams and Frank L. Kriete, of counsel.

      See Ulinols Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Graves

delivered the opinion of the court.


author: Mr. Justice Baume

text:
    Meyer, Hess & Company, Appellees, v. J. H. Way, trading as Way Muffler Company, Appellant.
    Gen. No. 18,904.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Sales, § 380

      —when vendee entitled to loss of profits resulting from nondelivery. In an action by a clothing firm against a manufacturer of clothing to recover damages for failure of defendant to deliver certain goods ordered through defendant’s sales agent, held that the loss of profits which would have accrued from plaintiffs’ resale of the goods ordered was a proper measure of damages, it appearing that defendant accepted the order with knowledge that the goods so ordered had been sold to plaintiffs’ customers and that by reason of defendant’s failure to supply the same plaintiffs were required to purchase goods on the market at a price in excess of the contract price to supply their customers upon the orders taken.

      Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by Meyer, Hess & Company, a copartnership, against J. H. Way, trading as Way Muffler Company, to recover damages alleged to have been occasioned by the failure of defendant to deliver to plaintiffs certain mufflers claimed to have been purchased of defendant. The suit was originally instituted before a justice of the peace. An appeal was taken to the Circuit Court where plaintiffs recovered a judgment for $196, which judgment was reversed on appeal to the Appellate Court. The present appeal is from a judgment in favor of plaintiffs for $149.38 on the second trial of the case in the Circuit Court.
    Fred A. Bangs, for appellant.
    Friedman & Ader, for appellees.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

2. Sales, § 376 —rule as to when profits constitute measure of damages. Though ordinarily, where a vendor fails to comply with his contract to sell and deliver certain goods at a fixed price, the measure of damages in an action by the vendee is the difference between the contract price and the value of the goods in the market at the time and place of delivery, yet where the vendor knows that the vendee has an existing contract for a resale at an advanced price, and that the purchase is to fulfil such contract, and the vendor agrees to supply the goods to enable the vendee to perform his contract, profits which would accrue to the vendee upon performing the contract of resale may properly be said to have entered into the contemplation of the parties in making the contract, and such profits constitute a proper measure of damages.


text:
    Mary Metzger, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,924.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by Mary Metzger against Chicago Railways Company to recover damages for personal injuries sustained by plaintiff while alighting from one of defendant’s cars at a street intersection. The declaration alleged that the defendant negligently managed said car so as to cause it to start forward by sudden jerks while she was in the act of alighting, thereby causing her to be thrown to the ground and injured. From a judgment in favor of plaintiff for $1,235, defendant appeals.

      Abstract of the Decision.
    Cabbiers, § 476

      —when evidence insufficient to sustain a recovery for injury while alighting from, street car. In an action against a street railway company for personal injuries alleged to have resulted from a sudden starting of the car while plaintiff was in the act of alighting, a verdict for plaintiff held not sustained by the evidence, the preponderance of the evidence tending to show that plaintiff alighted from the car in safety and was injured while attempting to again board the car, while it was in motion, for the purpose of recovering a package she had dropped on the platform.
    Weymouth Kirkland and Alfred B. Davis, Jr., for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Lynn & Baumer, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number, '

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Ida Senstock, Appellee, v. Royal Tailors, Appellant.
    Gen. No. 18,939.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Reversed with finding of fact.
    Opinion filed May 20, 1914.
    Rehearing denied June 1, 1914.
    Statement of the Case.
    Action by Ida Senstock against Royal Tailors, a corporation, to recover for personal injuries sustained by plaintiff who was employed by defendant as a forewoman in a building occupied by the defendant. The plaintiff was injured in attempting to open a door leading to the street. The door was one which closed automatically and consisted of a wooden frame six and one-half inches wide at the top and sides and fourteen inches wide at the bottom, inclosing a pane of glass nineteen inches wide and six feet in height. The evening before the accident the glass was broken and boards were nailed across the middle of the door and the next morning when plaintiff returned to work the boards were still across the door. In the evening when plaintiff started for home the boards had been removed and the door had been cleared of the shattered glass. When plaintiff reached the door several persons had passed out and the door was released and closing automatically and plaintiff put out her right hand against it to prevent it from closing and for the purpose of pushing the door open so she could pass out. As she put out her hand, she turned her head to avoid the glare of the sun in her eyes, and her hand was only partially placed against the inside of the door frame. In exerting the pressure necessary to prevent the door from closing and to open it her hand slipped from the edge of the frame' and went through the opening caused by the absence of the glass and she was precipitated through the opening onto the sidewalk and injured. The declaration charges defendant with negligence in permitting the door to remain without the pane of.glass; in permitting the door to remain without said pane of glass without notice to plaintiff and without placing some means of protection or guard across the space where said glass had been in the door. Plaintiff recovered a verdict and judgment against defendant for two thousand five hundred dollars, and to reverse the judgment, defendant appeals.
    Miller, Gorham & Wales and W. G. Shockey, for appellant.
    W. Knox Haynes and Michael Feinberg, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

Masteb amd sebvant, § 128 —when servant’s recovery for injuries resulting from want of glass in entrance door not sustained try evidence. In an action hy plaintiff against her employer for personal injuries resulting from want of a glass in a door, at the entrance to the building where plaintiff in attempting to pass out on her way home from work placed her hand on the frame of the door and in.exerting pressure to prevent it from closing and to open it her hand slipped and she fell through the opening, held that a verdict for plaintiff was not sustained by the evidence, it appearing the absence of the glass was.so obviously apparent that her failure to observe the condition of the door could only be attributed to heedlessness on her part.


text:
    John Harm, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,952.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action by John Harm, administrator of the estate of Helen Harm, deceased, against Chicago City Railway Company to recover damages for wrongfully causing the death of plaintiff’s intestate, a child six years of age. The case was submitted to the jury upon counts in the declaration which severally alleged that defendant was negligent in the operation and management of a street car, in operating the car át a high rate of speed and in operating it at the place in question without, giving any warning by bell or other wise. Plaintiff recovered a verdict and judgment for fifteen hundred dollars. To reverse the judgment, defendant appeals.

      Abstract of the Decision.
    1. Street railroads, § 131

      —when evidence sustains recovery for death of child. In an action against a street railway company to recover damages for the wrongful death of a child alleged to have resulted from the negligence of the defendant in operating a car so that it struck the child while it was playing in the street, held that a verdict for plaintiff was sustained by the evidence, it appearing that the car was running at a high rate of speed and that no gong was sounded or any warning given of the approach of the car.
    2. Street railroads, § 116*—when characterization hy witnesses as to rate of speed competent. In an action against a street railway company for wrongful death of a child, testimony of witnesses characterizing the speed of the car as “progressing very rapidly,” as “going a little fast,” as “going kind of swift,” as “going pretty fast” and as “going fast,” held competent.
    James G. Condon and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    William H. Tatge, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Clara Morris, Appellee, v. Harder’s Fireproof Storage and Van Company and E. C. Luedeka, Appellants.
    Gen. No. 18,970.
    (Not to be reported in full.) .
    Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed May 20, 1914.
    Statement of the Case.
    Action of trover by Clara Morris against Harder’s Fireproof Storage and Van Company a corporation, and E. C. Luedeka to recover the value of a piano and a stool which plaintiff placed in storage in a warehouse of the defendant Storage Company. Defendants pleaded the general issue and also a special plea averring that plaintiff placed her piano in storage with the Storage Company and agreed to pay one dollar per month; that plaintiff failed to pay the storage charges and that pursuant to the provisions of section 33, art. 2 of the act relating to warehouses in force July 1, 1907, J. & A. 9032, said Storage Company sold the piano for thirty dollars the amount due for storage and expenses of sale. A trial .by jury resulted in a verdict and judgment against defendants for four hundred and twenty dollars. To reverse the judgment, defendants appeal.
    Abstract of the Decision.
    1. Warehousemen, § 15

      —when sale for charges treated as a conversion. Where a storage company sells goods for charges and. purchases the same at its own sale, the owner may elect to treat the sale as a conversion; since the duty of a storage company as a public warehouseman arising out of the fiduciary relation created thereby precludes it, at such election of the owner, from asserting ownership of the property claimed to have been acquired by purchase at its own sale.
    2. Trover and conversion, § 47*—when amount of damages recovered excessive. In trover for the conversion of a piano, a verdict finding the value of the piano to be four hundred and fifty dollars at the time of its conversion held manifestly excessive, it appearing that it had been purchased new upon the instalment plan more than six years before the conversion for five hundred and fifty dollars and that it had been used and moved a couple of times.
    Robert W. Dunn, for appellant; Charles J. Monahan, of counsel.
    Beauregard F. Moseley, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, sain© iopic and section number.

   Mr. Justice Baume

delivered the opinion of the court.


text:
    Mathilde Kordick, Administratrix, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 18,981.
    1. Appeal and ebbob, § 1595

      —sufficiency of declaration after verdict. Where the sufficiency of a declaration was not tested on demurrer, every reasonable intendment will be indulged in favor of its sufficiency after verdict.
    2. Gabblers, § 452*—when counts in declaration sufficient after verdict. In an action against a street railway company for damages resulting from the death of a passenger by falling off a crowded car, certain counts in the declaration averring that deceased was standing on the platform in the exercise of due care for his own safety, held not defective after verdict for the reason that they did not allege that he was in exercise of due care for his own safety in boarding the crowded car.
    3. Appeal and ebbob, § 283*—when proof of facts defectively alleged is presumed. Where essential facts defectively stated or omitted in the declaration were within the issues joined on the trial, it will be presumed that proof of such facts were adduced, and that in the absence of such proof the court would not have directed or the jury would not have returned a verdict.
    4. Cabbiebs, § 428*—right of passenger to stand on platform. It is not negligence as a matter of law for a passenger to stand upon the platform of a street car.
    5. Cabbiebs, § 480*—questions for jury. Whether or not a street car was so overcrowded as to endanger the safety of passengers and whether it was negligence to permit the car to become so overcrowded are questions of fact for the jury.
    6. Cabkiers, § 290*—duty to prevent overcrowded cars. The mere fact that the street cars in use by the company are of the most modern construction and are being operated a minute and a half apart does not operate to relieve the company from the duty of exercising the degree of care- required of it in preventing cars to be overcrowded.
    7. Cabbiebs, § 347*—when overcrowding of car or acceleration of speed is proximate cause of passenger failing from car. Where a street railway company was negligent in permitting a car to be overcrowded, or in accelerating its speed so as to cause the car to lurch forward, and its negligence in either or both respects combined or concurred with the conduct of passengers on the platform in pushing in their effort to enable other passengers to alight so as to cause a passenger on the platform to fall off and be killed, such negligence of the company may properly be held to be the proximate cause of such passenger’s death.

      Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

      Certiorari denied by Supreme Court (making opinion final.)
    Affirmed.
    Opinion filed May 20, 1914.
    Weymouth Kirkland and William H. Symmes, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Edmund S. Cummings, for appellee.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by appellee as administratrix of the estate of Mathias Kordick, deceased, against appellant to recover damages for wrongfully causing the death of her intestate. A trial by jury in the Superior Court resulted in a verdict and judgment against appellant for five thousand dollars.

The declaration contains three counts, each of which charges in somewhat varying phraseology that on December 22, 1909, decedent became a passenger upon one of appellant’s cars; that it then and there became the duty of appellant to use due care in the management and operation of said car so as not to permit the same to be overcrowded and thereby become dangerous to the decedent as such passenger; that appellant negligently permitted said car to be overcrowded in that all the seats and standing room inside of said car and the front and rear platforms of said car were overcrowded with passengers, whereby the decedent was forced to stand upon the rear platform of said car, which position was attended with danger to decedent; that whilst the decedent was standing upon said platform he was using due care and diligence for his own safety.

The first count charges that as said car approached Jefferson street, a certain passenger in attempting to leave said car pushed or forced other passengers against the decedent, whereby he was pushed from and off said car and fell upon the ground, etc. The second count charges that it was the duty of appellant to use the highest degree of care consistent with the mode of conveyance and the practical operation of the car to operate said car at such, a rate of speed as would enable it to transport the decedent in safety, while he was standing upon the said platform in its then overcrowded condition; that appellant negligently operated said car at such a rapid rate of speed that by reason thereof the fellow-passengers of the decedent also standing upon said platform were forced against the decedent and he was thereby pushed from and off said car, etc. The third count charges that appellant so negligently operated said car that the swaying motion and jolting of said car threw the decedent from and off said car, etc.

It is first argued that the declaration does not state a cause of action and, therefore, the court erred in refusing to direct a verdict for appellant.

As to the first count of the declaration, it is said that if the car was only approaching Jefferson street and was still in motion it is clear there was no occasion for'any pushing and it is not alleged that appellant was negligent in not preventing the pushing. The declaration is not a model in the respect indicated, but its sufficiency was not tested by demurrer, and after verdict every reasonable intendment will be indulged in favor of its sufficiency. When the averments in the first count are so considered, it must be held that the averment charging appellant with negligence in permitting the car to become overcrowded sustains a causal relation to the further averment that the decedent was pushed from and off of the car by another passenger who was then and there attempting to leave said car. There is no force in the suggestion that the averment in the first count that the car was approaching Jefferson street and was in motion when a passenger in attempting to leave said car pushed other passengers against the decedent negatives any inference that there was then any occasion for such passenger to attempt to leave said car. We are led to infer that if the declaration had averred that the car had arrived at Jefferson street and had there come to a stop, appellant might concede that occasion would exist for a passenger to then and there attempt to leave the car in the manner stated. It is a matter of common knowledge that passengers intending to alight from a ear at a certain street intersection ordinarily make some effort to approach the exit before the car actually arrives and stops at such street intersection, and that such effort on the part of a passenger intending to alight from the car is ordinarily timed with reference to the condition of the car as to being crowded or otherwise. Appellant might not unreasonably be held to anticipate that passengers riding upon a crowded car and desiring to alight at a certain street intersection would make the necessary effort to reach the exit by pushing their way through the crowd while the car was approaching such street intersection and before it had come to a stop. The conduct of a passenger, seated or.standing in a crowded car, in failing to make any effort to reach the exit preparatory to alighting from the car until the car had arrived and stopped at the desired street intersection would be regarded as anomalous.

It is said also that the averment in each of the three counts, that whilst the deceased was standing upon said platform and using all due car and diligence for his own safety, is not sufficiently broad to include and cover the act of the decedent in boarding the crowded car, especially in view of the further averment that the position of the decedent upon the rear platform of the car was dangerous. While the sufficiency of the declaration in this respect might have been successfully challenged by demurrer, the defect was cured by verdict and was not available to appellant upon motion in arrest of judgment. Whether or not the decedent was in the exercise of due care for his own safety in boarding the crowded car and in standing upon the platform was within the issues joined on the trial, and it will be presumed that proof of the requisite facts defectively stated or omitted was adduced and that in the absence of such proof the court would not have directed or the jury would not have returned the verdict. Humason v. Michigan Cent. R. Co., 259 Ill. 462. The question here is unlike the one presented in Krieger v. Aurora, E. & C. R. Co., 242 Ill. 544, where a declaration improperly limited the exercise of care on the part of the plaintiff to the time when he was on the track, and the court considered' the propriety of a peremptory instruction to find for the plaintiff if the jury should find from the evidence that he had proved his case as laid in his declaration. In the Krieger case, supra, the instruction under consideration necessarily involved the sufficiency of the declaration before verdict. It is not negligence as a matter of law for a passenger to stand upon the platform of a street car. North Chicago St. R. Co. v. Polkey, 203 Ill. 225.

It is insisted that the trial court should have directed a verdict in favor of appellant because the evidence fails to establish that appellant was negligent, and that decedent exercised ordinary care for his own safety.

The street car upon which decedent was a passenger was operated on the Madison street line, and was of the pay-as-you-enter type. The evidence tends to show that decedent, a large man weighing about two hundred and fifty pounds, boarded the car about 8 o ’clock p. m. at the intersection of LaSalle and Madison streets, where it stopped for the purpose of receiving and discharging passengers; that all the seats in the car were then occupied by passengers and that passengers were standing in the aisle and upon the rear platform ;• that decedent took a position on the rear platform near the step and next to the iron rail which separates the portion of the platform occupied by the conductor and the exit door from the portion of the platform ordinarily used in entering the car; that at least two other passengers boarded the car at the corner of Bandolph and Clinton streets, and stood upon the platform; that fifteen or eighteen passengers were then standing closely crowded upon the platform; that no other passengers were received or discharged prior to the time decedent fell from the car; that after the car turned west on Madison street and as it was approaching the intersection of Jefferson street its speed was very perceptibly increased; that such increased. forward movement of the car caused it to lurch and that one or more of the passengers standing upon the platform were thereby involuntarily forced backward or towards the rear of the car; that coincident with the increased forward movement of the car one or more passengers within the body of the car attempted, by pushing their way through the crowd, to reach the rear platform by means of the regular entrance doorway on the blind side of the car; that one of said passengers while so coming out upon the platform said to the conductor, “Jefferson,” and the conductor in a tone of inquiry repeated, “Jefferson?” whereupon the passenger replied, “No, Desplaines;” that at the same time the decedent by reason either of the pressure against him of the other passengers upon the platform in an effort to open a passageway for the passengers desiring to alight at Desplaines street, or of his own efforts to make room for such other passengers to so alight, coupled with the increased forward movement of the car, lost his balance and his footing upon the platform and his hold upon the iron post or rail and fell to the ground sustaining injuries which resulted in his death.

It is necessarily conceded by appellant that as a common carrier of passengers the obligation rested upon it to do all that human care, vigilance and foresight could reasonably do, consistent with the mode of conveyance adopted by it and the practical operation of its road to convey the decedent in safety to his destination. Alton Light & Traction Co. v. Oller, 217 Ill. 15; Tri-City Ry. Co. v. Gould, 217 Ill. 317.

Whether or not the car in question was so overcrowded as to endanger the safety of the passengers and whether or not appellant was negligent in permitting the car to become so overcrowded were questions of fact properly submitted to the jury, and the mere fact that the cars in use by appellant were of the most modern construction and were being operated a minute and a half apart on the line in question did not operate to relieve appellant from the duty of exercising the degree of care required of it in the respect mentioned.

We are unable to give our assent to the doctrine contended for by appellant upon the authority of McCumber v. Boston El. Ry. Co., 207 Mass. 559, that as a matter of law it is not negligence on the part of a carrier in the present state of transportation to permit passengers to come upon cars which are already crowded. Ordinarily this question is one of fact for the jury. Certainly, where the carrier permits passengers to enter and occupy a car which is crowded beyond its reasonable capacity, it assumes the duty of exercising for the protection and safety of the passengers that degree of care that is demanded by. the circumstances. North Chicago St. R. Co. v. Polkey, 203 Ill. 225; Alton Light & Traction Co. v. Oller, supra.

A holding by us either as a. upon the evidence adduced ti of contributory negligence in occupying the only available ], would be clearly unwarrante properly submitted to the jury. er of law or of fact ¿cedent was guilty ing the car and in upon the platform "he question was

The evidence tends to show unwarranted in finding that dein consequence of the unfortur rence of three distinct incide; (1) the overcrowded condition, pushing or pressure by passeng ■le jury were not . fell from the car immediate concur-, jr situations, viz., the car; (2) the upon the platform in their effort to permit other passengers to alight from the car; and (3) the act of appellant in so accelerating the speed of the car that it suddenly lurched forward. If, therefore, appellant was negligent in permitting said car to become overcrowded, or in so accelerating its speed, and its negligence in either or both of said particulars combined or concurred with the conduct of other passengers in the respect mentioned, to cause the death of decedent, such negligence of appellant may properly be held to be the approximate cause of decedent’s death. Flanagan v. Wells Bros. Co., 237 Ill. 82; Ford v. Hine Bros. Co., 237 Ill. 463; Seith v. Commonwealth Electric Co., 241 Ill. 253; Tebow v. Wiggins Ferry Co., 241 Ill. 582.

While the evidence bearing upon the issues of fact involved is close and conflicting, we are not pursuaded that it fails to establish the liability of appellant as charged, and the judgment is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Duncan

text:
    James Leonard, Defendant in Error, v. Excelsior Motor and Manufacturing Company, Plaintiff in Error.
    Gen. No. 18,749.
    1. Master and servant, § 410

      —when order does not relieve from assumption of risk or contributory negligence. A general order or direction to an employe to do certain work for which he is employed and with which he is familiar, leaving the method of performance to the employe, is not such an order as will relieve him from the law of assumed risk or of the law of contributory negligence. To have the effect to, relieve him of the law of assumed risk the order must be specific to do a particularly dangerous act outside the line of his employment, or to do a particular work in a particular manner calculated to cause him injury.
    2. Master and servant, § 191*—duty to warn servant. It is the duty of the master to exercise reasonable care to give his employe due and timely warning of all the dangers and hazards of his employment that are not open and obvious only in such cases as the employe is ignorant of such dangers and hazards.
    3. Master and servant, § 312

      —what hazards assumed. The servant assumes all the ordinary risks or hazards of his employment that are usually incident to it, and the extraordinary hazards of which he has notice, or which in the exercise of his faculties he ought to have noticed.
    4. Master and servant, § 810*—when instruction on assumption of risTc erroneous. An instruction telling the jury “that while the plaintiff assumed all the ordinary risks or hazards incident to his employment of which he was informed, or by- the exercise of reasonable care he could have informed himself,” held erroneous.
    5. Master and servant, § 779*—when instruction on question of negligent order not warranted. Where there is no proper count in the declaration based upon a negligent order of the master’s foreman, and no evidence upon which to predicate a finding that a negligent order was given, the giving of an instruction as to the law in ease of a negligent order is error.
    6. Master and servant, § 862*—when instruction on duty to warn servant erroneous. An instruction stating that it is the duty of the master to exercise reasonable care to give his employe due and timely warning of all dangers and hazards of his employment that are not open and obvious, held erroneous because not qualified by limiting it to all such dangers of which the employee was ignorant.
    7. Master and servant, § 777*—when instruction stating abstract propositions of law prejudicial. The giving of an instruction which states a mere abstract proposition of law not directly applicable to the case, and undertaking to state in abstract propositions when a verdict should be given against the master for personal injuries, held prejudicial error.
    8. Master and servant, § 777*—when modification of instruction erroneous and misleading. An instruction “that if you believe from the evidence in this case that the negligence of a fellow-servant of the plaintiff, either alone or combined with the negligence of the plaintiff, was the proximate cause of the injury, * * * you should find the defendant not guilty,” held proper, and the giving of the same with a modification added in these words: “Unless the master was also negligent and that such negligence, if any, combined and co-operated with the negligence of a fellow-servant to bring about the injury and that the plaintiff was in the exercise of ordinary care for his own safety,” held misleading.
    Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed May 20, 1914.

      Miller, Gorham & Wales and W. G. Shockey, for plaintiff in error.
    Blaisdell & Ranes, for defendant in error; Harry F. Brewer, of counsel.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

James Leonard recovered a judgment of two thousand five hundred dollars against Excelsior ' Motor & Manufacturing Company, plaintiff in error, for personal injuries sustained by him while employed as a laborer for said corporation.

Plaintiff in error manufactured automobile engines; and had employed defendant in error to transport the engines to and from the various parts of the factory building by means of a movable crane. The crane consisted of a triangular V-shaped truck with one side open and made of 3 x % inch iron, the three sides being between three and four feet long, and the truck was supported by three iron wheels about seven inches in diameter, one under each angle. At the apex of the closed angle there was a perpendicular post seven or eight feet high and bent over from the top to support a pulley and an iron cable and hook that hung over the centre of the truck. There was a winch with a handle on the side of the post and a wire cable was wound around the drum and then extended over a roller near the top of the post and thence to the pulley and hook to which it was attached. In front on the bottom frame was a long iron handle by which the crane was drawn.

To move an engine at plaintiff in error’s factory three men were required. A rope or chain was first bound around the engine and then caught by the hook on the pully, and by turning the drum or winch the engine was hauled up and suspended in the air by the cable about four feet high right over the middle of the truck. One man then pulled the crane by its handle while the other two men followed up and steadied the engine with their hands to prevent it from swaying about while the truck was being moved over the floor to the place the engine was to be moved.

The first .count of the declaration charged that plaintiff in error negligently maintained in its factory a certain dirt and cinder floor so that divers holes, depressions and rough places were allowed to be and remain therein, and certain portions thereof were firm and compact while other certain portions thereof were loose and soft,- that on October 24, 1910, defendant in error was a laborer and general helper in said factory performing the duties of his employment and was then and there ordered and directed by a certain vice-principal of plaintiff in error, not his fellow-servant, to assist in moving an engine of great weight on and over said floor by means of said crane; that pursuant to said order and direction he did assist in moving said engine over said floor by means of the crane, and while so doing said crane unavoidably dropped into one of said holes and soft places in said floor so negligently maintained and by reason thereof said crane and engine upset and said engine struck and fell upon and injured him.

The second count charges the negligent maintaining of said floor, and his employment there, in practically the same language used in the first count, and further charges that said vice-principal, not his fellow-servant, negligently ordered and directed him to assist in moving said engine with said crane over said floor without informing him of said defective condition of the floor; .that he did so assist in moving said engine and, while so assisting, the wheels of the crane sank into the floor in said holes and soft places and by reason thereof the engine and crane upset and struck him with great force and injured him.

The third count charged that he was injured by reason of plaintiff in error’s negligence in furnishing him with an unstable and dangerous crane with which to move said engine and without informing him of the dangers thereof. A verdict of not guilty was directed by the court as to the third count.

The fourth or additional count charges that plaintiff in error negligently furnished him with an unsafe and dangerous place in which to work, to wit; said floor described to be defective as in said first count charged; that on said day he was ordered and directed by said vice-principal, not his fellow-servant, to assist in moving said heavily loaded crane over said floor; that pursuant thereto he did so assist and that the crane and load upset by reason of the wheels sinking into said floor, and by reason thereof the crane and load fell upon and injured him.

The engine that injured defendant in error weighed about four hundred and fifty pounds, and the injury occurred in the testing room at plaintiff in error’s factory, a well lighted room 25x60 feet, and while moving said engine with the crane from a testing stand in the south end of the room to a wooden bench about two feet high and fourteen feet long sitting east and west and near the north end of said room. Just north of the bench was a gangway about nine feet wide between the bench and some belt stands. The gangway and the floor of the testing room over which the engine was moved was composed of dirt and cinders, and the evidence for defendant in error clearly showed the floor and gangway to be full of holes and soft places, as charged in the declaration, while the evidence for plaintiff in error was equally as clear and positive that the floor was hard and smooth without such defects. The evidence further showed that defendant in error was a machinist of four years experience and had used movable cranes before, but different in construction to the one in question; and that he had worked for plaintiff in error three days only at the business of moving engines for plaintiff in error, and had moved about three others with the crane in a similar way on the third day and just before he was injured.

Leonard testified that about one o’clock of the third day, Charley Mantel, Ms foreman, ordered him and his two colaborers, Bray and Kemp, to move the engine in question from a testing stand in the south end of the testing room to said bench, but left it to him .and Bray and Kemp as to the manner of doing the work without giving them directions how to move it; that they got the engine suspended "over the truck of the crane and moved it over the dirt and cinder floor northward, Bray in front pulling the crane by the handle and he and Kemp following up and steadying the engine with their hands; that they turned east into the gangway north of the bench, and that when near the east end of the bench Bray called out, “How far are you off;” that he replied, “All right,” and that then Bray started to back the crane under the bench by pushing back on the handle, and that before he got it a foot back, “there was a chock of the crane,” and over it came and the engine fell on him; that he did not know whether the crane dropped into a hole or whether it struck something in front of the wheel; that that engine was the only one he had ever moved to that particular bench; that he knew the floor had holes and bad places in it, but not at that particular spot where the injury occurred, and that he did not know the crane would turn over if the engine swung very much; that his business was to steady the engine so it would not get marked or scratched; that when Bray started to back the crane Kemp let go and stepped over the bench and then back again before it fell, and was showing Bray how to back the crane when it overturned.

Plaintiff in error urges as grounds for a reversal of the judgment that defendant in error was injured by reason of his own contributory negligence and by reason of the negligence of Kemp, his fellow-servant, and that he assumed the risk. We will not discuss these questions on the merits of the case as the judgment must be reversed for erroneous instructions given to the jury by the court. The case is a very close one upon the question of the assumption of the risk by the defendant in error. A case ought to be first considered by a jury under proper instructions, unless there is a failure to introduce evidence tending to support all the material averments of the declaration. We are not satisfied that the jury ever really passed upon the real issues upon which the case turns.

The declaration does not really and properly charge in any count that defendant in error was injured by reason of any negligent order of a vice-principal of plaintiff in error. There was certainly no evidence in the record tending to prove that any negligent order was given by plaintiff in error or by its vice-principal. A general order or direction to an employe to do certain work for which he was employed and with which he is familiar, and by such order the method of performance is left to the employe, is not such an order as will relieve him from the law of assumed risk, or of the law of contributory negligence. To have the effect to relieve him of the law of assumed risk the order must be a specific order to do a particularly dangerous act outside of the line of his employment, or to do a particular work in a particular manner calculated to cause him injury. King v. Illinois Midland Coal Co., 158 Ill. App. 351; Kolp v. Decatur Ry. & L. Co., 145 Ill. App. 645; Illinois Central R. Co. v. Sporleder, 199 Ill. 184.

The knowledge of the danger to the employe in carrying out such an order must also be so slight or so wanting that the order of the master really misled the employe by having the effect to assure him that the master is not ordering him to encounter real and imminent danger. If he fully comprehends the danger and knows that it is imminent, the master’s order in such case is no exception to the law of assumed risk. As there was no proper count in the declaration based upon a negligent order, and no evidence upon which to predicate a finding that a negligent order was given by plaintiff in error’s foreman, no instructions should have been given as to the law in case of a negligent order. It was, therefore, error in the court to give defendant in error’s instruction No. 27. The first part of that instruction is also erroneous in declaring “that while the plaintiff assumed all the ordinary risks or hazards incident to his employment of which he was informed, or by the exercise of reasonable care he could have informed himself.” The servant assumes all the ordinary risks or hazards of his employment that are usually incident to it, and the extraordinary hazards of which he has notice, or which in the usual exercise of his faculties he ought to have noticed.

It is the duty of the master to exercise reasonable care to give his employe due and timely warning of all the dangers and hazards of his employment that are, not open and obvious, only in such cases as the employe is ignorant of such dangers and hazards. If it be conceded that the declaration charged a duty to warn defendant in error of the dangers in question, and that he was injured by reason of plaintiff in error failing to perform that duty, it was nevertheless error for the court to give instruction No. 26, stating that it is the duty of the master to exercise a reasonable care to give his employe due and timely warning of all dangers and hazards of his employment that are not open and obvious. It should have been qualified by limiting it to all such dangers of which the employe was ignorant. That instruction is also erroneous because it is a mere abstract proposition of law not directly applied to this case, undertaking to state in abstract propositions when a verdict should be given against a master for personal injuries, and No. 34 is subject to the same objection. So much has been said by the Appellate and Supreme Courts against the vice of giving such instructions in which necessarily the existence of some or several of the facts are assumed without requiring the jury to find that they exist from the evidence in the case, that it hardly appears to be excusable conduct for any attorney to formulate and offer any such instructions to be read to a jury.

■ Instruction No. 33, defining fellow-servants, is inaccurate in the manner pointed out by defendant in error, and instruction No. 10, as offered by plaintiff in error, was a proper instruction, towit:

“That if you believe from the evidence in this case that the negligence of a fellow-servant of the plaintiff, either alone or combined with the negligence of the plaintiff, was the proximate cause of the injury complained of, then the plaintiff cannot recover and you should find the defendant not guilty.”

The court erroneously gave the instruction with a modification added in these words:

“Unless the master was also negligent and that such negligence, if any, combined and co-operated with the negligence of a fellow-servant to bring about the injury and that the plaintiff was in the exercise of ordinary care for his own safety.”

As modified, the instruction was misleading and apparently contradictory in its propositions. The plaintiff could .not very well be in the exercise of ordinary care for his safety if his own negligence combined with the negligence of a fellow-servant was the proximate cause of his injury. One idea apparently presented by the instruction is that if the combined negligence of the three persons therein referred to was the proximate cause of the injury, defendant in error could recover provided he was exercising reasonable care. The instruction should have been given as asked without confusing the jury by adding another proposition of law in a way that neither the one asked nor the one added might be properly understood by the jury.

The other alleged errors complained of, the alleged improper examination of a juror and the court’s denial of the applications for a continuance, are untenable, and as they may not recur in the next trial, no discussion of them will he made here. The judgment of the Circuit Court is reversed, for the errors indicated, and the cause is remanded.

Reversed and remanded.