text:
    Daniel E. Stewart, Appellee, v. Illinois Central Railroad Company, Appellant.
    1. Railroads, § 921

      —when evidence to show cause of fire too remote. In an action against a railroad company for setting fire to plaintiff’s buildings alleged to have been caused by sparks thrown from, defendant’s locomotive, evidence that tramps were seen on railroad track about two miles from the place of the fire about three hours before the fire and evidence that one of the buildings had been on fire about five years before, held inadmissible because too remote and not tending to show that the fire was not started by defendant’s locomotive.
    2. Railroads, § 921

      —when evidence of condition of engine after setting of fire inadmissible. In an action against a railroad company for setting fires by sparks thrown from its locomotive, it is proper to show the condition of the engine immediately after the fire started, but evidence that the engine was being repaired a week after the starting of the fire is incompetent.

      3. Witnesses, § 283

      —matters to which witness may he cross-examined for purpose of impeachment. In an action against a railroad company for setting fire to a building by sparks thrown from its locomotive, where the engineer after testifying to the condition of the spark arrester was asked on cross-examination, for the purpose of laying a foundation for his impeachment, if he had not told a person about a week after the fire that he had asked the company to repair the engine before the fire and that it was then in the shops for repair, held that an objection to the question should have been sustained for the reason it sought to impeach him on irrelevant and immaterial matters.
    4. Witnesses, § 279

      —when variant statements inadmissible for purpose of impeachment. Variant statements in order to be admissible for purposes of impeachment must he relevant to the matter in issue.
    5. Railroads, § 941

      —when instruction as to evidence required to overcome presumption of negligence in setting fires erroneous. An instruction given for plaintiff that the law presumes a railroad company guilty of negligence on proof that a fire was communicated to plaintiff’s property by the company’s engine and that the verdict should be for plaintiff “unless this presumption is overcome by the evidence,” held to place a greater burden on defendant than the law requires, and that the instruction should have been “unless this presumption has been rebutted or overcome by the evidence.”
    6. Railroads, § 941

      —when instruction as to evidence required to overcome plaintiff’s prima facie case for setting fires erroneous. An instruction requiring plaintiff’s prima fade case made by proof of the communication of the fire by defendant’s engine to be overcome by a preponderance of the evidence, held erroneous, for the reason that it requires defendant to introduce more evidence than would neutralize or rebut the presumption.
    Appeal from the Circuit Court of McLean county; the Hon. Coeostin D. Myers, Judge, presiding.
    Heard in this court at the April term, 1913.
    Reversed and remanded.
    Opinion filed October 16, 1913.
    Rehearing denied November 6, 1913.
    Charles L. Capen, for appellant; John G. Drennan, of counsel.
    Livingston & Bach and Barry & Morrissey, for appellee.

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

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

   Mr. Justice Thompson

delivered the opinion of the eonrt.

This is a suit brought by Daniel B. Stewart against the Illinois Central Bailroad Company to recover damages for the destruction by fire of a barn, hay shed and contents on the night of October 25, 1911, at Anchor, Illinois, averred to have been caused by sparks thrown from a locomotive engine of defendant. The first count avers negligence of the defendant in failing to equip its locomotive with the best and most approved appliances to prevent the escape of fire, eand in failing to keep the same in suitable order and repair. The second count avers that the defendant failed to use reasonable care to prevent the escape of fire from its locomotive and through the negligence and carelessness of the defendant and its servants sparks were thrown, etc. 'The third count avers that the defendant so negligently used its locomotive that sparks escaped from it and set fire to plaintiff’s property. A jury returned a verdict for plaintiff for five thousand dollars, on which judgment was rendered and the defendant appeals.

The village of Anchor is on the railroad of appellant between Bloomington and Kankakee. The railroad runs through Anchor in a northeasterly and southwesterly direction and at the southwest corner of the village it curves and runs almost directly west. The depot is near the centre of the village. There is an up grade through the village to the northeast of thirty-two feet to the mile. The barn and property destroyed were located about seven hundred feet northeast of the depot and on the southeast side of the track. There are two elevators near the depot, the Mean’s elevator is about sixty feet southwest of the depot and the Farmers’ elevator is about the' same distance northeast of it. The barn and hay shed stood southeast of the track and parallel with it; the nearest side of the barn was one hundred and sixteen feet from the track and the hay shed was northeast of the barn and eighty feet from the track.

A freight train of eighteen cars with a tonnage of 593 tons drawn by a locomotive of 950 tons capacity approached Anchor from the west about nine o’clock in the evening. As it approached the depot it was signaled to stop for a passenger and when it stopped the locomotive stood about north of the east end of the hay shed. Some ten or fifteen minutes after the train had passed, the barn was discovered to be on fire; the fire seemed to be both on the inside and outside of the bam. There is evidence that the locomotive was throwing sparks just west of the Mean’s elevator, and there is evidence that the locomotive went by the elevators, the depot and the buildings burned, drifting, that is not working, and that under such circumstances it could not throw sparks. No witness testifies to seeing sparks from the engine after it passed the depot and as it went by the bam and hay shed. The evidence is conflicting as to the direction of the wind; some witnesses testify tha^ it blew from the southwest, others from the west, and still others from the northwest and the north.

It is contended that because no witnesses saw sparks thrown from the locomotive as it went by the barn and •hay shed that the judgment cannot be sustained. As there are errors of law in the case, it is unnecessary to review the merits of the case.

Appellant insists that the court erred in sustaining objections to questions tending to show that the barn had been on fire in 1906, and that tramps had been seen on the railroad track about two miles from An. chor about six o’clock that evening going towards Anchor. The court properly sustained objections to this character of evidence; the facts sought to be proved were too remote and did not tend to show that the fire was not started by appellant’s locomotive.

The evidence presented by appellant tended to show that the' locomotive was equipped with a proper spark arrester of the most approved construction, comparatively new and in good repair, and that the locomotive was properly managed. The engineer, Kellogg, after testifying to the condition of the spark arrester and the management of the engine, was asked on cross-examination for the purpose of laying a foundation for his impeachment: “If about a week after the fire on the Kankakee platform he had not said to Joseph Irwin, that he had asked the company to repair the engine several times before the fire and that it was then in the shops for repair?” “Did you not then and there tell him the engine was then in the shop for repairs?” Objections to these questions were overruled and the witness answered admitting having had a conversation with Irwin at that place about that time, but denying making any such statement to Irwin or that he had asked the company to repair the engine or that it was then in the shop for repairs. Irwin was asked if on the platform of the Illinois Central depot in Kankakee about a week after the fire he had a talk with Kellogg; an objection to the question was overruled. The questions were then asked him and answered after objection had been overruled: “Did you have a conversation with him?” Ans. “Had one sometime after the fire.” Q. “Did he say to you then and there in that conversation that he had asked them to repair the engine several times before the Stewart barn burned but they had not repaired it?” Ans. “He said that in substance.” Q. “Did he say to you at the same time and place that the engine was then in the shop for repairs?” Ans. “I should judge the substance was about the same, yes he did, it had been taken in.”

Appellant insists that these questions did not fix the time and place and also that the questions were improper for the reason that the matters inquired about were immaterial, that the repairs might have referred to some other part of the engine. The witness, Kellogg, had admitted having a conversation with Irwin at that platform about a week after the fire, and the question contains the words “then and there” referring to the time and place fixed in a prior question. The objection to the form of the questions was properly overruled.

If the engineer did say what it is claimed he said, still there is nothing in the evidence tending to show that such statements were made with reference to anything in any way connected with the spark arrester, or that they were in any way connected with the throwing of sparks by the engine. If the engine was in the shops for repairs a week after the fire, then that was an attempt to prove indirectly what was not proper to prove directly. It would have been proper to show the condition of the engine immediately after it is claimed it started the fire, but that the engine was being repaired a week later is incompetent. Howe v. Medaris, 183 Ill. 288; Sample v. Chicago, R. & Q. R. Co., 233 Ill. 564; Kath v. East St. Louis & Suburban Ry. Co., 232 Ill. 126; City of Taylorville v. Stafford, 196 Ill. 288; Hodges v. Percival, 132 Ill. 53. The objection to the questions should have been sustained for the reason it was sought to impeach the witness on irrelevant and immaterial matters, and to get before the jury incompetent and misleading evidence. Variant statements in order to be admissible for purposes of impeachment must be relevant to the matter in issue. Woods v. Dailey, 211 Ill. 495; 7 Encyc. of Ev. 78.

It is also insisted that there was error in instructions given to the jury. Paragraph 103 of chapter 114 of the Statute (J & A. ¶ 8891) provides: “That in all actions against any person or incorporated company for the recovery of damages on account of any injury to any property, whether real or personal, occasioned by fire communicated by any locomotive engine while upon or passing along any railroad in this State, the fact that such fire was so communicated shall he taken as full prima facie evidence to charge with negligence the corporation, or person or persons who shall, at the time of such injury hv fire, be in the use and occupation of such railroad,” etc.

Appellee’s fifth instruction is: “If you believe from the evidence that the fire in question was communicated to plaintiff’s property from an engine used by the defendant upon its railroad, then the law presumes that the defendant was guilty of negligence and in such case your verdict should be in favor of the plaintiff unless this presumption has been overcome by the evidence.” The court also modified the latter part of appellant’s first instruction so as to read, “But if you shall believe from a preponderance of the evidence that defendant did set out the fire, as claimed, still if the preponderance of the evidence shows that the engine was in g'oocl order, properly handled by skilful employees, who were competent to perform their duties, and was equipped with the most approved spark arrester then notwithstanding you may believe that the engine set out the fire, it is your duty to find the defendant not guilty.” The court inserted the words “a preponderance of.” The appellant was entitled to have the instruction given as asked without the words inserted by the court. Under the wording of the statute the communication of fire by a locomotive is full prima facie evidence to charge the corporation with negligence, but the appellant did not have to overcome such prima facie case by a preponderance of the evidence. All that it was necessary for appellant to do, to entitle it tq a verdict, was to rebut such prima facÁe case. If the evidence for the appellant neutralized, rebutted or was equal to the presumption arising from •the starting of the fire by the engine, if that was proved by the evidence, still the appellee would not be entitled to recover. The burden of establishing the truth of the issue remained with the plaintiff. Egbers v. Egbers, 177 Ill. 82; Chicago Union Traction Co. v. Mee, 218 Ill. 9 ; Vischer v. Northwestern El. R. Co., 256 Ill. 572. The appellee’s fifth instruction placed a greater burden on appellant than the statute requires; all that appellant was required to do was to produce evidence to meet and neutralize the1 presumption. The instruction should have been “unless this presumption has been rebutted or overcome by the "evidence.” American Strawboard Co. v. Chicago & A. R. Co., 177 Ill. 513. For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Thompson

license: Public Domain

text:
    Ira Cox, Defendant in Error, v. The American Insurance Company, Plaintiff in Error.
    1. Insurance, § 149

      —when provision in policy exempting from liability while premium note remains past due and unpaid is waived. A provision in a fire insurance policy that the company shall not he liable for any loss that may occur while any premium note remains past due and unpaid Is waived where the company, with knowledge of the fact that a premium note was due and unpaid at the time of the loss, sends an adjuster to negotiate with the insured, and the adjuster discusses the loss with the insured, places valuations on various items of the list of personal property destroyed and then when the insured would not sign a nonwaiver agreement refused to proceed further with the adjustment.
    2. Insurance, § 684

      —when question of waiver of condition of forfeiture is for court. "While the question of waiver of a condition of forfeiture is usually a question of fact for the jury, yet if there is no conflict in the evidence on that subject it becomes a question of law for the court.
    3. Insurance, § 321

      —what constitutes waiver of breach of condition in policy. There is a difference between a waiver and an estoppel. A waiver of a breach of a condition in an insurance policy does not require the company to do anything to the disadvantage of the insured.
    4. Insurance, § 321

      —when insurer estopped to insist on forfeiture. Forfeitures are not favored in law, and an insurance company is estopped to insist on a forfeiture, if after the cause of forfeiture accrues it treats with the insured in such a manner as to recognize the policy as still in force.
    5. Insurance, § 328

      —provisions in policy which may be waived. A provision in a policy for insurance that it shall become void in a certain event will not render the policy absolutely void upon the happening of such event; such a provision being for the benefit of the insured it may be waived.
    6. Insurance, § 693

      —sufficiency of instruction on waiver of condition of forfeiture. An instruction informing the jury that a fire insurance company is estopped to insist on a forfeiture of a fire insurance policy, if after the cause of forfeiture the insurance company treats or acts with the insured in such manner as to recognize the policy as still in force, held erroneous in omitting the element of knowledge to the company of the cause of forfeiture, but held not reversible error where the instructions as a series fully informed the jury on what constituted waiver.
    Error to the Circuit Court of Greene county; the Hon. Owen P. Thompson, Judge, presiding.
    Heard in this court at the April term, 1913.
    Affirmed.
    Opinion filed October 16, 1913.
    Bates, Harding, Edgerton & Bates and F. A. Whiteside, for plaintiff in error.
    Rainey & Jones and Mark Meyerstein, for defendant in error.

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

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

   Mr. Justice Thompson

delivered the opinion of the court.

This is an action in assumpsit brought by Ira Cox against The American Insurance Company of Newark, New Jersey, upon a policy of insurance issued by it to plaintiff on December 16, 1910. The policy of insurance sued upon is set out in haec verba in the declaration and contains the following provisions: “In consideration of a note for $75 due May 1, 1911, The American Insurance Company does insure Ira Cox and his legal representatives against loss and damage by fire, lightning, windstorms, cyclones and tornadoes, to the amount of $2,500, as follows: $1,500 on dwelling house No. 1; $500 on household furniture, useful and ornamental, including certain enumerated articles; $500 on barn.” “It is expressly agreed that this company shall not be liable for any loss or damage that may occur to the property herein mentioned while any note or part thereof, or order given for the premium, remains past due and unpaid, and in ease of default in payment at maturity of any note or part thereof, or order given for the premium, the whole premium shall be deemed fully earned, and shall at once be due and collectible, and the collection, whether by legal process or otherwise, payment or receipt of payment thereof, shall in no case revive or create any liability against this company for loss occurring while the assured was so in default. The payment of the premium, however, revives the policy and makes it good for the balance of its term. ’ ’ The policy contains the usual provisions for notice, proof of loss and for an examination of the assured under oath by any person appointed by the company and for appraisement in the event of disagreement. The house and personal property were destroyed by fire on June 30, 1911; the barn was not destroyed. The defendant filed the general issue with notice of special matter in defense; that the note for the sum of $75 given for the premium on the policy and payable May 1,1911, was past due and unpaid on June 30,1911, the date of the fire, and by reason thereof the defendant is not liable for the loss. On the trial a jury returned a verdict for plaintiff for $2,000, on which judgment was rendered and the defendant has sued out a writ of error to review the judgment.

The principal contention of plaintiff in error is, that by reason of the condition of the policy, that the company shall not be liable for any loss that may occur while the note for the premium was past due and unpaid, and the evidence showing that the note was past due and unpaid at the time of the fire, therefore the plaintiff in error is not liable on the policy and that the judgment cannot be sustained. The defendant in error contends that the plaintiff in error, with full knowledge that the premium note was not paid at the time the fire occurred, thereafter treated with the insured as though the policy was in full force and thereby waived its right to deny its liability under the policy. The question of the right of defendant in error to recover is raised hy the refusal of the court at the close of all the evidence to direct a verdict for the plaintiff in error.

The note is by its terms non-negotiable and is payable at the People’s Bank at White Hall. On April 28, 1911, plaintiff in error sent it to the People’s Bank at White Hall for collection. The bank, as agent for plaintiff in error, held the note until July 16, when the defendant in error paid it and a draft for $74.75 was forwarded to plaintiff in error by the bank. The company returned the draft to defendant in error in a letter dated July 21, stating that the company “would only accept it with the understanding that its receipt would not be considered as a waiver of the forfeiture incurred by the non-payment of the note due at maturity,—in any way recognizing the recent loss.”

Defendant in error testified that the agent of the company was notified of the fire the evening it occurred and it is admitted on the record that “Mr. Ferguson, the agent of The American Insurance Company, was notified of the fire within a day or two after the fire.”

Mr. Foltz testified that he resides at Rockford, Illinois ; that he has exclusive charge of the loss department of plaintiff in error; that he was advised of the loss about July 5, and that he got the information from Ferguson. On July 12,1911, C. E. Sheldon, manager of the western department of appellant Company, wrote a letter to defendant in error from Rockford, Illinois, while the note was at the bank, at White Hall, requesting payment of the note at once to avoid expense. On July 14, 1911, Foltz acknowledged receipt of the formal notice of loss and advised the defendant in error by mail that the company’s adjuster, Mr. Aid-rich, would call on him early the next week in reference to the loss. On July 18, the adjuster called at the Cox farm, inspected the ruins, talked with Cox about the loss, examined the list of personal property destroyed that had been made out by defendant in error, discussed the values and placed a valuation on the items of the list of goods destroyed. Defendant in error then showed the adjuster the note which showed when it was paid. 'The adjuster then asked the defendant in error to sign a non-waiver agreement, which defendant in error refused to do. The adjuster then burnt the paper he had prepared and declined to submit proofs of loss and took no further action, but wrote to the manager of the company at Boekford for advice, advising the company that Cox had received a notice urging payment0of the note some time after the company had notice of the fire and had paid it at the bank. This letter was received at the company’s office July 20. On July 19, Foltz wrote to defendant in error that under the terms and conditions of the policy the contract of insurance was suspended during the period of nonpayment of the note after maturity, that the company was not liable and the adjuster would not ea]l on him, and if he should pay the note and the amount was received by the company it would return the payment unless defendant in error should advise the company he desired the policy reinstated on property not destroyed for the unexpired term. The facts as stated are not controverted, and it is on these facts that plaintiff in error insists the court erred in refusing to give the peremptory instruction requested. 1

While a question of waiver is usually one of fact for a jury, yet, if there is no conflict in the evidence on that subject, it becomes a question of law to be determined by the court. A provision in a policy in insurance that it shall become void in a certain event will not render the policy absolutely void upon the happening of such event; such a provision being for the benefit of the insurer, it may be waived by the latter. “Any acts, declarations or course of dealing, by the insurers, with knowledge of the facts constituting a breach of a condition in the policy, recognizing and treating the policy as still in force, will amount to a waiver of the forfeiture, and estop the company from setting up the same as a defense.” Manufacturers & Merchants Ins. Co. v. Armstrong, 145 Ill. 469; Dwelling House Ins. Co. v. Dowdall, 159 Ill. 179. Forfeitures are not favored in law, and an insurance company is estopped to insist upon a forfeiture of a policy, if after the cause of forfeiture accrues, it treats with the insured in such manner as to recognize the policy as still in force. Bennett v. Union Central Life Ins. Co., 203 Ill. 439; Rosater v. Peoria Life Ass’n, 149 Ill. App. 536.

There is a difference between a waiver and an estoppel. A waiver of a breach of a condition of a policy does not require the company to do anything to the disadvantage of the insured. 40 Cyc. 256. Provisions of forfeiture in an insurance policy made for the benefit of the insured are easily waived by it. Dubuque Fire & Marine Ins. Co. v. Oster, 74 Ill. App. 139;

The plaintiff in error had notice of the loss immediately after the loss occurred. The head of the loss department knew of the loss on July 5, and on July 12, plaintiff in error by its manager notified defendant in error that he must pay his note at once to save costs, and on July 14, the manager advised the defendant in error that its adjuster would be there within a week, The adjuster did call on July 18, and discussed the loss with defendant in error, put valuations on the items of personal property destroyed and then, when the insured would not sign a non-waiver agreement, refused to proceed further with the adjustment. The insurance company, with full knowledge of the fact which it now insists constitutes the forfeiture, when notified of the loss did not claim the benefit of the forfeiture, but negotiated with the insured concerning the loss, collected the note and five days thereafter returned the draft it had received from its agent the bank. ; The collection of the note of itself will not constitute a waiver of the forfeiture, for the reason that the policy provides that the collection of the note by legal process, or otherwise, shall in no case create any liability against the company for loss occurring while the assured was in default (Schimp v. Cedar Rapids Ins. Co., 124 Ill. 354); but the sending an adjuster to negotiate with the assured, and the adjuster going and discussing the loss with defendant in error, and placing valuations on the various items of the list of personal property prepared by defendant in error, when a managing officer had full knowledge of the cause of forfeiture several days before any of such acts on the part of the company, were inconsistent with, and were a waiver of the forfeiture. There being a waiver of the forfeiture, there was no error in refusing the peremptory instruction.

The second instruction given for the defendant in error is an abstract proposition. It informs the jury that a fire insurance company is estopped to insist upon a forfeiture of a fire insurance policy, if after the cause of forfeiture the insurance company treats or acts with the assured in such manner as to recognize the policy as still in force. The fourth instruction informs the jury that although the insurance company had the right to decline to pay the plaintiff the amount of his loss because plaintiff had failed to pay the premium note after its maturity and before the fire, still it should be held to have waived its said right, “if you believe from the evidence in this case that, with full knowledge of the fact that said note was past due and unpaid at the time of the fire, the said company, with full knowledge of the fact of non-payment of note, treated with the plaintiff, Oox, in such manner as to recognize the policy as still in force. ’ ’

The sixth instruction given for the insurance company told the juiy that a waiver is a relinquishment of a known right, and that in order that a waiver may arise the knowledge of the right claimed to be relinquished) must be actual knowledge, and not merely presumptive knowledge. The second instruction was erroneous in omitting the element of knowledge to the insurance company of the cause of forfeiture at the time of the performance of the acts which are claimed to be a cause of forfeiture. The instructions are not peremptory in their form, and must be considered as a series. When the fact is considered that the jury were fully instructed on what constitutes a waiver, and that the evidence for the insurance company shows conclusively that it bad actual knowledge of the cause of forfeiture before it sent its adjuster to investigate the loss, the giving of the second instruction was not reversible error. The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Graves

text:
    Theodore G. Warden, Plaintiff in Error, v. Thomas McInerney, Defendant in Error.
    Gen. No. 18,297.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Thomas F. Scully, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Action by Theodore G-. Warden against Thomas Mc-Inerney to recover for damages to plaintiff’s automobile claimed to have been caused by a horse belonging to defendant which had ran' away because it was negligently left in Washington Park without being securely fastened, as required by the ordinances of the city of Chicago and of the South Park Commissioners. 'The case was tried by the court without a jury. Prom a judgment in favor of the defendant, plaintiff brings error.
    Elbert C. Ferguson, for plaintiff in error.
    Thomas J. Healy and Daniel M. Healy, for defendant in error.

      Abstract of the Decision.
    1. Appeal and error, § 181

      —when court’s refusal to marie propositions of law reversible error. Arbitrary refusal of a judge of the Municipal Court to mark proper propositions of law either “held” or “refused” when presented in time is reversible error.
    2. Trial, § 297

      —propositions of lato. A proposition of law announcing that proof of the violation of an ordinance resulting in an injury establishes a prima facie case of negligence on the part of the one violating it, held to announce a correct rule of law applicable to the case.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Illinois Malleable Iron Company, Plaintiif in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 18,314.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Action by Illinois Malleable Iron Company, a corporation, against Chicago City Railway Company, a corporation, to recover for damages to a wagon owned by plaintiff and struck by one of defendant’s street cars, when plaintiff’s teamster attempted to drive the wagon across the tracks in front of the car at other than a street intersection. From a judgment in favor of defendant, plaintiff brings error.
    Abstract of the Decision.
    1. Negligence, § 90

      —when contributory negligence bars recovery. It is not the law that contributory negligence is no defense where the defendant by the exercise of ordinary care could have avoided the injury. The settled law in this State is that where the negligence of the plaintiff contributes to the injury he cannot recover unless the act of the defendant resulting in the injury is wilful.
    2. Appeal and error, § 1410

      —when findings of jury or trial court will not be set aside. It is well settled in this State that the finding of a jury or a trial court will be set aside by the Appellate Court only when it is clearly and manifestly against the weight of the evidence. The fact that upon close consideration the weight or preponderance of the evidence would seem to be contrary to the verdict is not sufficient to warrant a reversal of the judgment.
    3. Street railroads, § 97

      —when street car company not liable for collision with wagon crossing trade in front of car. In an action against a street railway company to recover damages to a wagon by being struck by a street car when the driver of the wagon attempted to cross the track in front of an approaching car, at other than a street intersection, held that the evidence showed that the defendant was not negligent and that the driver was guilty of contributory negligence, it appearing that the driver with knowledge of the approaching car attempted to cross the track about sixty feet distant from the car, which was running seven or eight miles an hour, and that the motorman was unable to stop the car before the collision.
    Alden, Latham & Young, for plaintiff in error; T. A. Sheehan, of counsel.
    Clinton A. Stafford and A. R. Peterson, for defendant in error; Leonard A. Busby, of counsel.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Guiseppe Ribando, Appellee, v. Chicago, Milwaukee and St. Paul Railway Company, Appellant.
    Gen. No. 18,325.
    (Not to be reported in full.)
    Abstract of the Decision.
    Railroads, § 522

      —when track laborer guilty of contributory negligence. In an action against a railroad company to recover for personal injuries sustained by plaintiff by being struck by defendant’s switch engine while he was employed as a track laborer by another company, a verdict for plaintiff held not sustained by the evidence, it appearing that plaintiff was an experienced track laborer, thoroughly familiar with his surroundings, knew of the presence of the switch engine and proceeded with his work on the track with his back toward the engine, taking no precautions for his own safety and relying entirely on his attention being directed by the ringing of the bell on the switch engine.
    Appeal from the Superior Court of Cook county; the Hon. Joseph H. Fitch, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of facts.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Action by Guiseppe Eibando against Chicago, Milwaukee and St. Paul Eailway Company, a corporation, to recover damages for personal injuries sustained by plaintiff by being struck by a switch engine belonging to defendant while plaintiff was working as a track laborer in the employ of another railroad company, the track upon which plaintiff was working being used by defendant’s switch engine. From .a judgment in favor of plaintiff for $1,999, defendants appeal.
    O. W. Dynes and C. S. Jefferson, for appellant.
    O’Shaughnessy & O’Shaughnessy, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Etta B. Franklin, Appellant, v. Thomas M. Hunter, Appellee.
    Gen. No. 18,339.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Courts, § 33

      —rule of Appellate Court as to sufficiency of abstract of record construed. Rule 19 of the Appellate Court of the First District, requiring a party bringing a cause to that court to furnish a complete abstract or abridgment of the record and requiring that the abstract shall be sufficient to fully present every error and exception relied on, does not require the production of the record in haec verba, nor authorize a mere index of the record, but requires that the substance of the record must be given in as few words as will convey to the court all the facts necessary for it to know in order to determine the merits of the errors complained of.
    2. Appeal and error, § 866

      —sufficiency of abstract of record. An abstract of record which is no more than an index from which ' it cannot be gathered what issues were formed and tried, and wherein it is more than an index it is in most cases an unabbreviated copy of the record, is insufficient.

      Appeal from the County Court of Cook county; the Hon. W. F. Slater, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Action by Etta B. Franklin against Thomas M. Hunter in replevin to recover possession of two wagons levied on by defendant, a bailiff of the Municipal Court, as the property of one Anna M. Leach, by virtue of an execution issued on a judgment against her. From a judgment in favor of defendant, plaintiff appeals.
    Beauregard F. Moseley, for appellant.
    John W. Lee, for appellee; Olaf F. Severson and William Chones, of counsel.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

3. Appeal and error, § 867 —manner in which bill of exceptions should appear in abstract. Where a bill of exceptions is a part of the record there should be something in the abstract to indicate where it begins and ends. There should be a certificate of the trial judge at the end and not in the middle of the bill of exceptions, and it should so appear in the abstract.

4. Appeal and eror, § 867 —order of arranging matter in the abstract. Matter as it appears in the record should appear in the same order in the abstract.

5. Appeal and error, § 1306 —when presumed that replication was filed. Where no replication to a plea is preserved in the record, it may be presumed that a general replication was filed where the record recites that “issue being joined a trial by jury is waived and cause is submitted to the court for trial without the intervention of a jury.”

6. Appeal and error, § 1000 —when error in refusing admission of evidence not presented for review. Error of court in refusing admission of evidence not presented for review where there is nothing in the bill of exceptions to show that the court excluded the evidence.

7. Replevin, § 124 —when evidence insufficient to show plaintiffs title to the property. In replevin to recover two wagons levied upon by the defendant, an officer, under an execution on a judgment against a third party, the plaintiff claiming ownership of the property as a purchaser at a mortgagee’s sale, a judgment in favor of defendant held sustained by the evidence, it appearing from the record that such third party had been owner of the property and up to the time of the levy had possession thereof, and there being no evidence tending to show that such party had ever parted with his title or possession.


text:
    Dudley A. Tyng, Appellee, v. United Mercantile Agency et al., Appellants.
    Gen. No. 18,376.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 71

      —when by-law governing transfer of certificates of stock not unreasonable. A by-law of a corporation requiring shares of the capital stock to be transferred by indorsement of the certificates to the secretary for cancellation, whereupon new certificates are to be issued to the transferee or to his written order, held not unreasonable.
    2. Corporations, § 156

      —when mandamus issues to compel transfer of stock on book of company. Before the transfer of capital stock in a corporation will be compelled by mandamus, every reasonable requirement of the by-laws must be shown to have been complied with.
    3. Mandamus, § 98

      —when issuance to compel transfer of shares of stock is error. Awarding a writ of mandamus to compel a corporation and its officers to transfer shares of capital stock on the books of the corporation, held error where petitioner failed to show compliance with a by-law requiring the certificate to be assigned to the secretary of the corporation.

      Appeal from the Superior Court of Cook county; the Hon. William Fenimore Cooper, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Petition by Dudley A. Tyng against United Mercantile Agency, a corporation, P. H. Early, president, and E. E. Hughes, secretary, for a writ of mandamus to compel defendants to transfer certain shares of capital stock on the books of the corporation. From a judgment awarding the writ, defendants appeal.
    Arthur O. Hoffmann, for appellants.
    Matthias B. Pittman, for appellee.

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.


text:
    Louis Greenberg, Appellant, v. Florence Parsons, Appellee.
    Gen. No. 18,462.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1290

      —presumption as to regularity of proceedings in Circuit Court. When a Circuit Court is shown to have jurisdiction of the subject-matter and the parties, all presumptions are indulged in, in favor of the regularity of all subsequent proceedings up to and including the final judgment, and will prevail until the irregularity of the same is affirmatively shown.
    Appeal from the Circuit Court of Cook county; the Hon. H. Steelimu Pomeroy, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Action of replevin by Louis Greenberg against Florence Parsons to recover possession of certain property. From a judgment dismissing the suit at plaintiff’s cost for failure of plaintiff to prosecute the same, and awarding a writ of retorno habendo, plaintiff appeals.
    Louis Greenberg, pro se.

    Charles E. Erbstein, for appellee.

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

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

   Mr. Presiding Justice Graves

delivered the opinion of the court.

2. Appeal and error, § 1009 —when question of sufficiency of service of notice to place cause on short cause calendar not reviewable. On appeal from an order of the Circuit Court dismissing a cause for want of prosecution, it appearing that the court had jurisdiction of the parties and subject-matter, held that the plaintiff cannot urge that the^court did not have jurisdiction for the reason that a notice was improperly served on plaintiff of the filing of an affidavit under section 27 of the Practice Act, J. & A. ¶ 8564, for placing the cause on the short cause calendar, where the record does not affirmatively show that such notice was all the notice given plaintiff, nor show that the cause was disposed of on the short cause calendar.

3. Appeal and error, § 1313 —when presumed that proper notice was served to place cause on short cause calendar. On appeal from an order dismissing a cause for want of prosecution where it is conceded that the cause was placed upon the short cause calendar at the instance of the defendant and the cause was disposed of on the short cause calendar, plaintiff cannot urge that the court did not have jurisdiction for insufficiency of the service of a notice on plaintiff of the filing of an affidavit under section 27 of the Practice Act, J. & A. ¶ 8564, for placing the cause on the short cause calendar, where the record does not affirmatively show that that notice was all the notice given plaintiff, since in such case it will be presumed that other proof of a proper service of such notice was presented to the court.

4. Appeal and error, § 842 —effect when bill of exceptions not signed by proper judge. Recitals in a bill of exceptions cannot be considered when signed by a judge who did not try the case, where there is nothing in the record to show that the judge who tried the case was by reason of death, sickness or other disability unable to sign it.

5. Appeal and error, § 843 —what constitutes disability of trial judge to sign bill of exceptions. The fact that the trial judge was not sitting within the jurisdiction at the time the bill of exceptions was signed is no disability rendering him unable to allow and sign a bill of exceptions.


author: Mr. Justice Baume

text:
    Harry A. Biossat, Defendant in Error, v. M. B. Louis and T. W. Brophy, Defendants, (Truman W. Brophy, Plaintiff in Error.)
    Gen. No. 17,642.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Bills and notes, § 445

      —when indorser on promissory note Haile to holder. In an action on a promissory note against an indorser thereon by the holder, where it appears that plaintiff procured the defendant to indorse the note by paying him five hundred dollars to pay off another note past due on which defendant was liable, and defendant claims as a defense that he is an accommodation indorser, that the note was to be returned to the maker after his indorsement and that he indorsed the note for plaintiff on the understanding he was agent of the maker, a judgment fo.r plaintiff on conflicting evidence and on finding of facts involved in propositions of law held as the law of the case, was sustained.

      Error to the Municipal Court of Chicago; the Hon. Fbedebick L. Fake, Jb., Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Rehearing allowed October 24, 1913.
    Opinion on rehearing filed December 31, 1913.
    Statement of the Case.
    Action by Harry A. Biossat against M. B. Louis and T. W. Brophy to recover on a promissory note executed by M. B. Louis payable to himself and indorsed by him and T. W. Brophy. Service of process was had on T. W. Brophy alone and trial was by the court without a jury. From a judgment in favor of plaintiff against Brophy for five hundred dollars, Brophy brings error.
    Patrick H. O’Donnell and D. P. Pennywitt, for plaintiff in error.
    Joseph L. McNab, for defendant in error.

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

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Appeal and ebbob, § 1236 —when plaintiff in error cannot shift his position. Plaintiff in error cannot urge grounds wholly at variance with the position assumed by him in the trial court. He cannot be permitted to shift his position in the court of review.


text:
    Chicago Real Estate Board, Appellee, v. James Mullenbach et al., on appeal of James Mullenbach, Appellant.
    Gen. No. 17,919.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mabtin M. Gbidley, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Rehearing allowed October 27, 1913.
    Opinion on rehearing filed December 31, 1913.
    Statement of the Case.
    Bill of interpleader filed by Chicago Beal Estate Board, a corporation’ against James Mullenbaeh and Louisa S. French, to require defendants to interplead and adjust their claims to one thousand two hundred dollars held by complainant and deposited with complainant by James Mullenbaeh as earnest money in purchasing certain real estate of Louisa g. French at an auction sale held at the board rooms of complainant. From a decree requiring complainant to pay said amount, less costs of court, to Louisa g. French, James Mullenbaeh appeals.
    Enoch J. Price and Everett M. Swain, for appellant.
    Hamlin & Topliet, Hamlin & Boyden and Louis M. Greeley, for appellee Louisa S. French.

      Abstract of the Decision.
    1. Vendor and purchaser, § 124

      —when tender of title guaranty policy subject to questions of survey sufficient. The fact that a title guaranty policy tendered to a purchaser was made subject to questions of survey is wholly immaterial" where the premises as described in the contract have an actual existence in fact within the boundary lines as designated in the original survey and plat.
    2. Vendor and purchaser, § 298

      —right of vendor to earnest money in equity. The rule that a court of equity will not enforce a penalty or forfeiture does not preclude a Vendor, upon the default of the vendee, from recovering earnest money which has been paid to apply upon the purchase when consummated. In this respect there is no distinction between contracts involving sales at public auction and private sale contracts.
    3. Vendor and purchaser, § 39

      —right of purchaser at auction sale to rescind contract for misrepresentations in printed circular advertising sale. Where a person purchased city lots at a public auction held by a real estate board and a circular advertising the sale represented that the property bordered on Lake Michigan and that there was no privately owned property between it and the lake, held, that to entitle the purchaser to rescind the contract of sale and recover hack the earnest money on the ground that such representation was false, he was required to prove that he relied on such representation and that the same was false, and held that where it was uncontroverted that for a period of twenty years the strip of land between the property and the lake had been submerged that the burden was upon the purchaser to show that it had been submerged by a sudden avulsion.
    4. Riparian owners, § 29

      —when title to land bordering on lalce not lost by submergence. Title to land becoming submerged by the waters of Lake Michigan is lost where the submergence was gradual and imperceptible, but the title remains in the owner where such submergence was sudden and perceptible in its operation, and the owner may regain the same either by natural or artificial means.
    5. Appeal and error, § 367

      —when questions not preserved for review. Questions not raised in defendants’ answer nor appearing to have been presented to the chancellor upon the hearing are not preserved for review.

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

   Mr. Justice Baume


text:
    John D. Casey, Administrator, Appellant, v. Chicago Railways Company and City of Chicago, Appellees.
    Gen. No. 18,251.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Negligence, § 49

      —proximate cause. In order to charge a person with the consequences of his own act it is not necessary that he must have foreseen the precise form in which- the injury occurred. If when the injury occurs it appears that it was a natural and probable consequence of his negligence, it is sufficient to warrant a recovery.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term,. 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.
    Rehearing denied January 9, 1914.
    Statement of the Case.
    Action by John D. Casey, administrator of the estate of Fredrick F. Rieckhoff:, deceased, against the Chicago Railways Company and the City of Chicago to recover damages for wrongfully causing the death of deceased alleged to have been caused by defendants’ negligence in maintaining in a street a temporary street car track and in maintaining the street in a dangerous and unsafe condition. From a judgment rendered on a directed verdict finding defendants not guilty, plaintiff appeals.
    Harry S. Mecartney, for appellant.
    Weymouth Kirkland and William H. Symmes, for appellee Chicago Railways Company; John R. Guilliams and Frank L. Kriete, of counsel.

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

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

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

   Mr. Justice Baume

delivered the opinion of the court.

2. Negligence, § 53 —when the negligent act or omission is the proximate cause. While the negligent act or omission must be one of the essential causes producing the injury, it need not be the sole cause nor the nearest cause. If it concurs with the other cause, such as an accident or the negligent act of a third person, which in combination with it causes the injury, it is sufficient.

3. Negligence, § 191 —when questions of negligence and proximate cause are for the jury. Where reasonable men acting within the limits prescribed by law might reach different conclusions, or different inferences could reasonably be drawn from the admitted or established facts, the question of negligence, contributory negligence and proximate cause are questions of fact for the jury.

4. Trial, § 216 —right to consider weight of evidence in passing on motion for a peremptory instruction. In passing upon a motion for a peremptory instruction it is not within the province of the trial court to weigh the evidence, and the question of the preponderance of the evidence does not arise. The question whether the verdict is against the manifest weight of the evidence is one to be passed upon by the trial court upon a motion for a new trial; and in the event that such motion is overruled and judgment entered, it is for the Appellate Court upon error assigned.

5. Trial, § 195 —rule in passing on motion for a peremptory instruction where there is some evidence to sustain recovery. The rule of law is settled in this State that if there is any evidence in the record from which, standing alone, the jury could without acting unreasonably in the eye of the law find that all the material allegations of the declaration had been proved, the case should be submitted to the jury.

6. Street railroads, § 44 —when question whether street railway and city are guilty of negligence in maintaining a temporary track in street is for jury. In an action for injuries resulting from a temporary street car track placed on the surface of the street near the curb to permit of a reconstruction of other tracks near the center of the street, the mere fact that such temporary track was constructed and laid in the usual manner throughout the city does not absolve the street railroad company and city from negligence, either in permitting such track to be maintained in the street an unreasonable length of time or in permitting said track to remain in the street and be used for the operation of cars after the new permanent tracks were completed and ready for use.

•7. Street railroads, § 45 —when giving of peremptory instruction to find for defendants is error. A teamster for a liquor company while making deliveries to a retail customer made an attempt to stop his team after it became frightened and in doing so stumbled against the rails and ties of a temporary street railway track constructed on the surface of the street with openings between the ties. and fell and his wagon passed over him causing his death. In an action against the street railway company and the city to recover damages for his death, charging the railway company with negligence in constructing and maintaining such track, and charging the city with negligence in maintaining the street in unsafe condition and in permitting the railway company to construct and maintain such track, and charging both defendants with negligence in failing to remove such track in a reasonable time after the completion of the work of track reconstruction, held that the question of defendants’ negligence was a question for the jury and that trial court erred in giving a peremptory instruction to find for defendants.

8. Street railroads, § 45 —when question of contributory negligence is for the fury. In an action against a street railroad company and a city to recover damages for the death of a teamster caused by stumbling against a temporary street car track when attempting to stop his team, held that the question whether the teamster was guilty of contributory negligence in permitting his fourteen-year-old son to drive the team around in the street was for the jury.


text:
    John Pozdal, Appellee, v. C. C. Heisen, Appellant.
    Gen. No. 18,368.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moran, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of fact.
    Opinion filed December 31, 1913.
    Rehearing denied January 12, 1914.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by John Pozdal against C. O. Heisen and Federal Steel Fixture Company to recover for personal injuries sustained by plaintiff resulting from a descending elevator striking plaintiff’s head when plaintiff opened a defective corrugated iron door leading into an elevator shaft for the purpose of communicating with his coemployes on a floor below. Suit was dismissed as to the defendant Federal Steel Fixture Company, a tenant in the building, and prosecuted against defendant Heisen, as owner of the building.

      Abstract of the Decision.
    1. Landlord and tenant, § 243

      —when owner of building not liable for injury to tenant’s employe caused by defective elevator doors. Where a person employed in a building was injured by a descending elevator while he was attempting to open a door leading to the elevator shaft for the purpose of communicating with his employes on a floor below, held in an action against the owner of the building to recover for the injuries that defendant owed to plaintiff no duty to maintain the door in reasonably safe condition, the .evidence showing that the mechanism whereby the door was to be opened and closed was located in the elevator shaft and the elevator operator was alone charged with the duty of opening and closing the door.
    2. Landlord and tenant, § 239

      —duty of landlord to maintain safe condition of premises when building leased to various tenants. A landlord who rents different parts of a building to various tenants, reserving the elevators, halls, stairways and other approaches for the common use of his tenants, is under an implied duty to use reasonable care to keep such instrumentalities and places in a reasonably safe condition, and is liable for injuries to persons lawfully using such instrumentalities and places resulting from a failure to perform that duty.
    From a judgment in favor of plaintiff for three thousand five hundred dollars, defendant appeals.
    Edward M. Hammond and Winston, Payne, Strawn & Shaw, for appellant; Edward W. Everett and Charles J. McFadden, of counsel.
    F. W. Jaros, for appellee.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    John M. Carlson, Appellant, v. Walter J. Hassis et al., Appellees.
    Gen. No. 18,414.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Corporations, § 147

      —when sale of shares of stock will not be set aside. On bill to set aside the sale of certain shares of stock for misrepresentations made by the buyer as to the amount of profits earned by the corporation, a decree dismissing the bill for want of equity sustained, the evidence being conflicting with reference to whether the representations were made and it appearing that the defendants sustained no fiduciary relation to the complainant.
    2. Witnesses, § 257

      —when evidence of proceedings in bankruptcy not admissible to discredit testimony of witness. For the purpose of discrediting the testimony of a witness, a petition for such witness’ discharge in bankruptcy, the report of the referee refusing such discharge and a transcript of his testimony on the hearing of objections to such discharge, held inadmissible where the proceedings in bankruptcy were had long prior to the transaction in controversy and had no relation to any proper subject of inquiry in the case.

      Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Bill filed by John M. Carlson against Walter J. Hassis and Julius E. Levine to set aside the sale of certain shares of stock' alleged to have been sold by complainant to defendants upon the latter’s false representations as to the profits of the corporation. From a decree dismissing the. bill for want of equity, complainant appeals.
    Castle, Williams, Long & Castle, for appellant.
    Mayer, Meyer, Austrian & Platt, for appellee, Walter J. Hassis.

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

   Mr. Justice Baume

delivered the opinion of the court.


text:
    American Musicians Union of North America, Appellant, v. Chicago Federation of Musicians, Local No. 10, A. F. of M. et al., Appellees.
    Gen. No. 18,445.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Statement of the Case.
    Petition by American Musicians Union of North. America against Chicago Federation of Musicians,Local No. 10, American Federation of Musicians, Joseph F. Winkler and certain other officers and members of the federation for a rule upon defendants to show cause why they should not be punished for contempt for violating a certain decree which enjoined the defendants from interfering with, hindering or obstructing the members of complainant’s organization in obtaining or retaining employment as musicians, by representing to employers that members of complainant’s organization are nonunion men, so as to cause employers to fear the opposition of defendants, or organized labor. From an order entered discharging the rule, and dismissing the petition, petitioner appeals.
    Mabie & Conkey, for appellant.
    John S. Hummer, for appellees.

      Abstract of the Decision.
    1. Injunction, § 257

      —when evidence sufficient to sustain order discharging rule to show cause for violation. On petition by a musicians’ union against the officers and members of a certain federation of musicians for a rule on defendants to show cause why they should be punished for contempt for violating an injunction, findings of the chancellor in an order entered discharging the rule and dismissing the petition, held to be sustained by the evidence.
    2. Appeal and error, § 1395

      —when findings of fact by chancellor will not be disturbed. It is the settled rule in equity practice that a court of review will not set aside the findings of fact by a chancellor who saw the witnesses and heard them testify, unless the error in such findings is clear and palpable.

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

   Mr. Justice Baume

delivered the opinion of the court.


author: Mr. Justice Duncan

text:
    The A. H. Andrews Company, Plaintiff in Error, v. Robert A. Pottinger and Matilda Pottinger, Defendants in Error.
    Gen. No. 18,154.
    1. Bills and notes, § 451

      —when finding as to satisfaction of indebtedness on notes not sustained by the evidence. In an action to recover the balance due on certain promissory notes executed by defendant to plaintiff in payment for theatre chairs, a finding of the jury that plaintiff accepted payment of a certain sum in satisfaction of defendant’s indebtedness on the notes, held not sustained by the evidence.
    2. Bills and notes, § 462

      —when instruction as to satisfaction of indebtedness erroneous. In an action on promissory notes, an instruction that if the jury believe from the evidence that on a certain day the plaintiff and defendant had an agreement that the payment of a certain sum in the manner agreed upon was to constitute a full settlement of the claim sued on, then they are instructed that such agreement constitutes a full accord and they should find for defendants, held erroneous, for the reason that there is uncertainty in defendants’ testimony whether the alleged accord was before or after the date named and that defendants’ right to recover is made to depend solely on an accord, instead of an accord and satisfaction.
    3. Appeal and error, § 1539

      —when giving of instruction stating a true proposition of law prejudicial. In an action to recover on promissory notes secured by a chattel mortgage, where the mortgagee had purchased the chattels at his own sale at an inadequate price, but the plaintiff had conceded the invalidity of the sale in his statement of claim, an instruction stating that such a sale is presumed fraudulent, though stating a true proposition of law, is not applicable to the case and the giving of the instruction held prejudicial error.
    Error to the Municipal Court of Chicago; the Hon. Fred C. Hill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.
    Gregory, Poppenhusen & McNab, for plaintiff in error; Edward R Johnston, of counsel.
    Edmund W. Froehlich, for defendants in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

The A. H. Andrews Company brought this suit to recover a balance claimed to be due on ten promissory notes, aggregating $1,651.40, secured by a chattel mortgage, all executed August 10, 1910, by defendants in error for the purchase of the seating for the Sheridan Theatre on Sheridan Road near Irving Park Boulevard, Chicago. The first of said notes fell due October 7, 1910, and plaintiff in error, the A. H. Andrews Company, elected to and did declare all of the notes due, and on October 15, 1910, took possession of the chairs in said theatre, and on a sale thereof under the mortgage, October 20, 1910, Joseph G. Murphy bought them in for the mortgagee company for $50. In its amended statement of claim plaintiff in error, recognizing the invalidity of said sale, alleged that the fair and reasonable cash value of said chairs so by it taken was $796, and conceded and gave credit on said notes for said sum, claiming a net balance of $854.60 and interest tliereon from October 20, 1910, for said notes and costs of foreclosure. Defendants in error stated their defense to be a complete settlement of all matters between the parties about November 2, 1910, which settlement constituted an accord and satisfaction of all claims then existing including the claim in suit. Also, that the then fair and reasonable ■ value of the chairs when retaken by plaintiff in error equalled the full amount of the notes in suit. The jury found the issues for defendants in error, and replied, in answer to a special interrogatory, in substance, that plaintiff in error accepted $710 in money about November 2, 1910, and the sum of $930.01 about December 5, 1910, in satisfaction of his indebtedness to it, on said ten notes. The court entered judgment accordingly for defendants in error.

The plaintiff in error proved by three expert witnesses who saw the 644 chairs on the day of their removal that the total value of the chairs retaken under the mortgage was about $800. Some of the reasons given for the depreciation in value were that the chairs were soiled and scratched and that about ten per cent, of the castings thereon were broken when removed; that there is no market for such secondhand chairs, as the chairs in question were specially made for, and fitted in, the Sheridan theatre building, and would not fit the circles and rises in the floors of other buildings; and that for 440 of them it would cost about thirty cents a piece to replace them in another building, which cost was a part of the original price of defendants in error. Defendants in error offered no evidence to rebut that testimony, but relied solely on their proof of an accord and satisfaction. The evidence under that plea was that in September, 1909, defendant in error, Eobert A. Pottinger, bought from plaintiff in error other opera chairs for his vaudeville house known as the “Mabel Theatre,” 3956-8 Elston avenue, Chicago, for the purchase price of $1,524.82, which was also secured by notes and a chattel mortgage. No part of the purchase price being paid when the first payment became due, plaintiff in error in October, 1910, took possession of those chairs and placed, a custodian in charge of them, but they were not removed from the building as Pottinger insisted that he could and would raise the money to pay for them. On November 2, 1910, Pottinger and his wife, Matilda, signed what the parties called a lease for the Mabel theatre chairs in which they agreed to pay in advance the sum of $710 as rental for said chairs for thirty days from the date thereof, and were given in said lease an option to purchase said chairs for the sum of $930.01 in cash if paid at the end of said lease, December 2, 1910, and in case of default in payment of said last sum on the day named said option was to cease, and that the other party thereto, John Q-. Murphy, who was a representative of plaintiff in error, should retake said chairs and remove them from said building. Nothing is mentioned in that lease about the Sheridan theatre chairs. The accord claimed by defendants in error, they insist, was made at the time an understanding was reached by the parties in regard to the making of said lease, and it is supported only by their own testimony. Robert A. Pottinger’s testimony thereon is, in substance, as follows: “I had a further talk with Mr. Merle (manager of plaintiff in error), I think it was the 15th or 20th of October before the sale at his office. I told him if he would wait a while I could raise the money to make these payments. He said he wanted the money or the chairs. I wanted to take both chairs (both sets of chairs) from him and pay him $250, and he would not accept that proposition. He said he would have to have all the money within thirty days, part of it now, and the balance within thirty days, which I was unable to raise. Then I said I would take the Mabel chairs and pay it half cash and the balance in thirty days, and that was decided upon. He said he would take the Sheridan chairs out because they were in good condition. The Mabel chairs had been in the house about a year, he said. On the day of the sale, I told him I would be in a position to straighten the thing up in a few days. He said, ‘Well, we will go ahead and sell the chairs and you come in.’ I had occasion to see him again about the 2nd of November at his office. Mr. Merle, myself and my wife were present, I had with me $700. I told him I would pay him $700 on the Mabel chairs. Then he began to figure up and said, ‘You are short. You didn’t figure the expenses, did you?’ I said, ‘No, I forgot it, I haven’t got it.’ ‘Well, I will add that in to the next month,’ he said. So the expenses were added in, and I paid him something like $1640, including the cost of the chairs and the expenses, both on the Mabel. I paid him $610 cash, and a check for one hundred dollars, and executed a lease on account of these Mabel chairs. He spoke of the expense of the cost of taking the Sheridan theatre chairs out and the expense of the sale. . At that time I don’t think we spoke about the Sheridan chairs, only to buy some back. I bought forty chairs that had been taken out of the Sheridan theatre. We paid for them separate in cash (40 chairs @ $2.25, $90). I received a receipt for the $710 at that time, and a receipt for the ninety dollars. I saw Mr. Merle again about December 5th. I had a talk with him about a check my wife took to him for the balance due, and he told me he would not accept it, that I had drawn it to A. H. Andrews & Company, and he wanted it made to Mr. Murphy, and I said, ‘all right.’ I made out a new check to Joseph Murphy for the same amount and gave it to him in payment of the lease. Mr. Merle never asked me to pay those notes for the Sheridan Theatre chairs until this suit.”

On cross-examination he testified: “After the sale I had kind of given up hope of holding the Sheridan any more. I was trying to keep the Mabel. Mr. Merle told me that he would accept the amount which we agreed on, $700 and $900, and some odd dollars in full settlement of "both matters, if I would pay the expenses on the Sheridan chairs and pay the full amount of the Mabel chairs, not the lease, we made the lease after that.” And again referring to their talk of November 2nd, he testified in substance that they talked about settlement of the Sheridan theatre matter and that they did settle it “by paying the cost and one thing and another,” and that Merle told him he would accept the $710 and the $930.01 in full of both matters, and that they were so settled up in full.

Mrs. Matilda Pottinger testified that she was the wife of Eobert Pottinger; that the first time she had anything to do with the business after signing the notes was November 2nd, when the first payment was made on the Mabel chairs at Mr. Merle’s office; that Mr. Pottinger did all the talking; that he bought some chairs back for the Sheridan theatre, and paid him $710 on the Mabel chairs; that Mr. Merle said he included custodian’s fees and expenses for both the Sheridan and Mabel theatres and that a receipt was given for the $710; that there was not much said about the Sheridan theatre expense; that Mr. Merle just said, “Ton didn’t figure the costs of the expenses,” and he wrote down the custodian’s fees for the Sheridan and Mabel theatre; that he made that remark to Mr. Pottinger, and she saw him writing it but didn’t see the paper; that she did not hear anything further about the Sheridan job except that they bought forty chairs for that theatre; that on December 3d, she took down a certified check to Mr. Merle for $930.01 and that he refused to take it because it was payable to The A. H. Andrews Company and not to Mr. Murphy, and because there was written on the bottom of the check, “In full payment of the Sheridan and Mabel chairs;” that he finally agreed to accept it if they would bring down another check without the words at the bottom of the check.

Mr. Pottinger was positively contradicted in toto by Mr. Merle’s evidence on the alleged accord and satisfaction and by James D. Irving, a salesman of plaintiff in error, who testified he heard all that was said between the parties November 2d. He is also contradicted by Edward B. Johnson who testified he gave Pottinger on November 2d an exhibit on a paper of all the items composing the consideration of $1,640.01 named in the lease in the amounts $710 and $930.01, which exhibit was in evidence and makes no reference to the Sheridan chairs. The receipts taken by him for the $710 and the $930.01 also specified that the money was received in payment of rental and for the purchase of the Mabel chairs, without any reference to the Sheridan chairs. The lease itself corroborated in the same way plaintiff in error’s evidence. Pottinger’s own testimony is contradictory and is not supported in the main by that of Mrs. Pottinger as to the accord and satisfaction. The verdict and special finding of the jury are manifestly against the weight of the evidence and the same must be set aside for that reason. Donelson v. East St. Louis & S. Ry. Co., 235 Ill. 625.

The court also erred in giving to the jury two instructions, towit:

1. “That if they believe from the evidence that on the 2nd day of November, 1910, the plaintiff and defendants had an agreement or understanding to the effect that the payment of the sum of $1640 in the manner agreed upon was to constitute a full settlement of the claim sued on in this case, then they are instructed that such agreement constituted a full accord and that the jury must then find the issues for the defendants.”
2. “A mortgagee has no right to buy at its own sale, and that such purchase in this case, together with the inadequacy of the consideration paid for such chairs, raises the presumption that said sale under said foreclosure, was fraudulent and illegal, unless you find from the evidence herein that defendants had full knowledge of such purchase and that said purchase was made with defendant’s consent.”

Instruction No. 1 is erroneous because it makes the right of defendants in error to recover to depend upon an accord, simply, instead of an accord and satisfaction. There was an uncertainty in the testimony of defendants in error as to whether the alleged accord was before or on November 2d, when the lease was made. Not only must there have been an agreement that both claims were to be settled for the amount named in the lease, but it must have been carried out by the payment of said sum by defendants in error to plaintiff in error, and an acceptance thereof by plaintiff in error in satisfaction of both claims. It is true no doubt that if such an agreement was in fact made and plaintiff in error accepted the first payment of $710 in pursuance of such an agreement, it would be estopped to insist there was no accord and satisfaction because it refused to accept the second payment as in full satisfaction of both claims. The instruction, however, made the recovery to depend solely on an accord and this was error as plaintiff in error denied the accord and also the receipt of the first as well as of the second payment to be in pursuance of any agreement that they should be in full satisfaction of both claims for chairs. American v. Rimpert, 75 Ill. 228; Canton Coal Co. v. Parlin & Orendorff Co., 215 Ill. 244; Simmons v. Clark, 56 Ill. 96.

Instruction No. 2, while it stated a true proposition of law, was not applicable to the case. Plaintiff in error conceded the invalidity of the sale by its statement of claim and no issue as to its validity was in the case.' It was such an instruction, too, as tended to prejudice the jury, as it unnecessarily informed the jury in substance that such a sale was fraudulent.

For the errors indicated the judgment of the court is reversed and the cause is remanded.

Reversed and remanded.


text:
    Musical Leader Publishing Company, Defendant in Error, v. Carolina White, Plaintiff in Error.
    Gen. No. 18,285.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed December 31, 1913.
    Rehearing denied January 20, 1914.
    Statement of the Case.
    Action by Musical Leader Publishing Company, a corporation, against Carolina White in attachment to recover a balance due upon a contract by which defendant agreed to pay for certain advertisements in the Musical Leader, a paper owned by the plaintiff. The attachment was in aid of the original suit, the affidavit setting forth the indebtedness and the nonresidence of defendant as grounds therefor. Defendant filed an affidavit of defense stating plaintiff had failed to publish the advertisement as agreed and that she was entitled to a set-off, but did not traverse the affidavit or in anyway deny that she was a nonresident. From a judgment in favor of plaintiff upon both the attachment issue and on the merits, defendant brings error.
    Cairoli Gigliotti, for plaintiff in error.
    Charles Daniels and Sumner C. Palmer, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

Abstract of the Decision.

1. Attachment, § 242 —when plaintiff entitled to a judgment by default on the attachment issue. In attachment based on an affidavit of nonresidence of defendant, where defendant does not traverse the affidavit or in any way deny that she was a nonresident, there is no issue made upon the question of nonresidence of defendant, and as to the attachment the plaintiff is entitled to a judgment by default.

2. Attachment, § 246 —when judgment for plaintiff on the attachment issue and on the merits sustained by sufficient evidence. In attachment to recover on a contract for advertising, where the attachment was based on the nonresidence of defendant, and defendant filed an affidavit of defense claiming plaintiff failed to publish the advertisements as agreed, and that she was entitled to a set-off, held that a judgment in favor of plaintiff on the attachment issue and on the merits was sustained by sufficient evidence, the defendant having introduced no evidence, and plaintiff’s evidence tended to show defendant was a resident of Italy before the contract was signed and a resident of Massachusetts after the attachment issued and there was evidence showing that plaintiff complied with the contract, that defendant had made a partial payment after the contract was concluded and that defendant’s husband had written a-letter, which defendant had adopted, asking for a postponement of payment.

3. Set-off and recoupment, § 43 —when defendant not entitled to instruction for set-off. Where there is no evidence tending to prove a claim of set-off, defendant is entitled to no instruction regarding the same.


text:
    Owen Murphy, Plaintiff in Error, v. Gunning System, Defendant in Error.
    Gen. No. 18,320.
    (Not to be reported in full.)
    Error to the Superior Court of Cook county; the Hon. Geobqe W. Patton, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed December 31, 1913.

      Abstract of the Decision.
    1. Master and servant, § 770

      —when direction of verdict in action by employe for injury while repairing signboard error. In an action by an employe against a signboard company to recover for injuries sustained by falling from the top of the framework of a certain signboard, the declaration alleging that the company was negligent in constructing and maintaining the framework in safe condition for plaintiff to work thereon, and the evidence showing that plaintiff was precipitated to the ground by reason of a timber, upon which he was obliged to stand, giving way so that he fell forward on another cross-timber at the top of the framework which broke by reason of a concealed knot therein, held that the evidence required the court to submit the case to the jury and that the court erred in directing a verdict for defendant.
    2. Master and servant, § 368

      —when employe may recover for injuries resulting from defective construction of signboard on which he was required to .work. Where a person employed to repair signboards is charged with the duty to inspect the framework, to detect any dangers from decay, and to repair and report such defects, and is injured while removing panels from the signboard by reason of a defect in a timber nailed to the post of the framework as a foot-board, he cannot recover if the footboard was defective on account of decay and such defect was the sole proximate cause of the injury, but where the injury was also caused by a defect in a timber at the top of the signboard, which was a concealed knot and a fault in the original construction, the plaintiff may recover where both defective timbers are the proximate cause of the injury and there is no other intervening cause.

      Statement of the Case.
    Action by Owen Murphy against Gunning System to recover for personal injuries sustained by plaintiff by falling from the top of the framework of one of defendant’s signboards while employed by defendant in removing panels therefrom. From a judgment in favor •of defendant on a directed verdict, plaintiff brings error.
    George E. Gorman, for plaintiff in error; William H. Holly, of counsel.
    Henry W. Wolseley, for defendant in error.

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

   Mr. Justice Duncan

delivered the opinion of the court.

3. Master and servant, § 137 —when master not liable for dangers of place to work or appliances. Master may employ a competent servant to demolish or to make a well known dangerous place or appliance safe without being liable because such place or appliance is dangerous to the employe.

4. Master and servant, § 681 —when evidence of employer’s ownership or construction of signboard sufficient to go to the jury. In an action by an employe to recover for injuries sustained while employed in repairing signboards for defendant, alleging that the injury was sustained by reason of defective construction of the framework, evidence that defendant directed plaintiff to repair the signboard and that plaintiff's boss was the man who had the work before, held sufficient evidence to go to the jury on the question of whether the framework belonged to or was constructed by defendant.