text:
    Sarah Mygatt, Administratrix, Appellee, v. Southern Coal & Mining Company, Appellant.
    1. Statutes—construction. Where there is no equivocation in a statute, it is enforced as written.
    2. Statutes—construction with reference to common law. A statute is not to be construed as changing the common law beyond its expressly declared terms.
    3. Mines and miners—act of 1911. The miner’s act as revised in 1911 by leaving out the words “or other unsafe conditions” does away with the necessity of the mine examiner observing and reporting on dangerous conditions not specifically enumerated.
    4. Statutes—construction. The enumeration of particulars excludes generals, in the construction of a statute.
    5. Mines and miners—where miner is killed by break in the face of the coal. In an action for the death of plaintiff’s intestate, a miner, who was killed, while engaged in undercutting the face of the coal, by a large lump falling on him, defendant, the mining company, is not liable since, under the miner’s act as amended in 1911, a crack in the face of the coal is not required to be marked by the mine examiner.
    6. Mines and miners—assumed risk. A judgment under common-law counts for the death of plaintiff’s intestate cannot be sustained where intestate was an experienced miner and could have discovered the crack in the face of the coal which caused the accident.
    Appeal from the Circuit Court of St. Clair county; the Hon. George A. Crow, Judge, presiding. Heard in this court at the October term, 1912.
    Reversed with finding of facts.
    Opinion filed April 23, 1913.
    Kramer, Kramer & Campbell, for appellant.
    Webb & Webb, for appellee.
   Mr. Justice Thompson

delivered the opinion of the court.

The issues to he tried in this case were formed on two statutory counts and two common law counts. On September 13, 1911, appellee’s intestate, John T. Mygatt, was working as a miner for the appellant, the Southern Coal and Mining Company, and was on said day engaged in undercutting the face of the coal in the room where he and his buddy were working when a large lump of coal fell from the face of the coal on Mygatt, resulting in his injury and death.

At the time of his injury the new mining law as revised by the legislature of 1911 was in force. The statutory counts were each grounded on the revised law above referred to. One of the said counts charged that the mine examiner of the defendant, wilfully failed within twelve hours preceding the morning of the said day to enter said mine and inspect all the places where men are required in the performance of their duties to pass or to work, and in consequence of which plaintiff’s intestate, John T. Mygatt, who was then and there in the employ of the defendant as a miner, in room 19, entered said room to engage in undercutting the face therein and while so engaged a large quantity of cracked, broken and insecure coal fell down to arid upon him and so seriously crushed and mangled him. that he afterwards died from the effects thereof. The other .statutory count charges substantially, ‘4 That among the various rooms in said mine was room 19, running westwardly off of the first north entry of the main west entry, and the method of mining in said room was to undercut the vein at its face with a mining machine before blasting the same down with powder; that on the morning of the said day as a result of prior mining in said room the coal of the face of said room remained cracked, broken and insecure, the roofs liable to fall and injure the servants of the defendant while engaged in undercutting the same with'the mining machine as aforesaid, of which the defendant knew.”

Plaintiff further charges that 4 4 the mine examiner of the defendant within twelve hours^preceding the morning of the said day went into the "said room, made examination, in which room was such cracked, broken, insecure and loose condition of coal in the face of said room and wilfully failed and omitted to make a record of the same in a book kept for that purpose before the miners were permitted to enter the mine on said day for work. By means whereof plaintiff’s intestate, John T. Mygatt, who was then in the employ of the defendant was permitted to enter said room to assist in the undercutting of the coal, and while in said condition and while so engaged a lot of cracked, broken, insecure and loose coal fell down and upon him and so injured him that he afterwards died of said injury.” The first common law count charges substantially that as a result of prior mining there existed and remained in the face of the coal a lot of loose, cracked, broken and insecure coal, which was liable to fall and injure the servants of defendants if undercut by the machine while in such condition, of which the defendant knew or could have known by an examination of due care; that deceased was suffered, permitted and allowed by the defendant to enter said room and mine coal therein by undercutting the same with a mining machine while the coal remained cracked, broken and insecure without notice or means of knowledge of said condition. The second common law count sets forth the negligence in substantially the same language as the first common law count.

To the declaration the defendant plead not guilty, and a trial by jury was had, resulting in a verdict and judgment for the plaintiff for $5,000, to which exceptions were duly entered by the defendant, and a motion for new trial being overruled the defendant prosecutes this appeal and asks a reversal of the judgment of the trial court.

Appellant contends there can be no recovery in this case under the statutory counts because there is no duty under the statute requiring the mine examiner to examine the face of the coal in the mine and to report the condition thereof. This presents the question as to what was the effect of the revision of the mining law by the legislature of 1911. The Act of 1899, as amended by the Act of 1907, was in force prior to July 1, 1911. That act provided that a mine examiner should be required at all mines and that it was his duty to visit the mine before the men were permitted to enter. That act declaring the duty of the mine examiner, provided among other things that: “He shall then inspect all places where men are expected to pass or to work and observe whether there are any recent falls or obstructions in rooms or roadways or accumulations of gas or other unsafe conditions; he shall especially examine the edges and accessible parts of recent falls and old gobs and air courses. As evidence of his examination of all working places he shall inscribe on the walls of each with chalk the month and the day of the month of his visit. When working places are discovered in which accumulations of gas or recent falls or any other dangerous condition exists he shall place a conspicuous mark thereat, as notice to all men to keep out; and at once report his findings to the mine manager.” The foregoing provision of the mining act was revised by the Act of 1911, which latter act was in force at the time the accident complained of here occurred.

It becomes necessary to construe the effect made by the Bevision of 1911, which placed upon the mine examiner the duty,

“4. To inspect all places where men are required in the performance of their duties to pass or to work and to observe whether there are any recent falls or dangerous roofs or accumulations of gas, or dangerous obstructions to the rooms or roadways, and to examine especially the edges and accessible parts of recent falls and old gobs and air courses.

5. As evidence of his examination of said rooms and roadways to inscribe in some suitable place on the walls of each, not on the face of the coal, with chalk, the month and the day of the month of his visit.

6. When working places are discovered in which there are recent falls or dangerous roofs or dangerous obstructions, to place a conspicuous mark or sign thereat as notice to all men to keep out, and in the accumulation of gas to place at least two conspicuous obstructions across the roadway not less than 20 feet apart, one of which shall be outside of the last open cross cut.

7. Upon completing his examination to make a daily report of the same in a book kept for that purpose for the information of the company and the inspection of persons interested. This report shall be made each morning before the miners are permitted to enter the mine.

8. To take into his possession the entrance checks of all men whose working places have been shown by his examination record to be dangerous, and hand such entrance checks to the mine manager before the men are permitted to enter the mine in the morning.”

An inspection of the two acts above set forth will disclose the fact that the words, “or other unsafe conditions” and “any other unsafe conditions,” which appear in the Act of 1907 were omitted in the Revision of 1911. It is contended by appellant that the omission of such expressions made it clear that the mine examiner was not thereafter required to make an examination of the face of the coal. The language omitted in the revision had been repeatedly construed by the courts as applicable to certain conditions in mines among which was the unsafe condition found at the face of the coal. It would be unreasonable to suppose the legislature did not intend to change the operation of the law when they left out this language. It was no oversight. Many controversies had been waged over this particular wording of the statute as shown by the decisions of our courts of review, and we can draw no other conclusion from its absence in the new law than that the mine examiner was not to be thereafter required to inspect and mark places that had under the Act of 1907 been held necessary because of these particular words found in that act. The force and effect of decisions based on the words “or other unsafe condition” are no longer applicable to the law as it now stands. The present requirement is that the mine examiner observe whether there are “any recent falls or dangerous roofs or accumulations of gas or dangerous obstructions in rooms or roadways.” It is only when he finds such conditions that he is required to place a conspicuous mark thereon.

The evidence in this case does not show, nor is it contended by appellee that any dangerous condition of the roof existed, nor was there any accumulations of gas, nor was there any dangerous obstructions in the room or roadway which caused the injury and death of Mygatt. The undisputed fact is that the coal which fell on Mygatt came, from the face of the room. It further appears from the evidence in this case that appellee’s intestate was an experienced miner and was familiar with all conditions incident to mining coal; that on the day of the accident he and Ms buddy, Bert Rousch, were engaged in undercutting coal at the face of room 19 off of the first north entry on the west side of appellant’s mine; Rousch was running the machine and Mygatt was working on the left side of the machine, shoveling away slack, dust and refuse that was thrown out by the working of the machine. The machine was a Sullivan Compressed Air Punching machine. The room in which they were working was about twenty-five feet wide, from rib to rib, and the vein of coal was about eight or nine feet in thickness. The undercutting was done by boards on which the machine is laid while the bit is handled by the machine runner, who guides it to the place where the coal is to be cut. The evidence shows that the pressure on the bit is from eighty to one hundred pounds to the square inch and the bit used is from fourteen to eighteen inches and the board' is about nine feet long and three feet wide and is placed near the face of the coal at the left hand rib of the room and parallel with the rib. That the operator places the machine upon this board and starts to undercut the coal. The operator guides the bit in such a manner that when he has reached the back end of the undercutting the undercutting is at the floor of the room. The undercutting extends about five feet back from the face of the coal and under the same, and each hoard is run, without moving the machine from the board. A board is completed when the coal is undercut for a distance of four and one-half to five feet from rib to rib and about five feet in depth back from the face of the coal. The pressure of the air on the bit to force it forward is very great.

In' undercutting the evidence shows that a large amount of slack and ground up coal is thrown out, and one of the machine runners stands at the left of the machine with a shovel and throws back this ground up coal as it comes from the machine. This is the work that Mygatt was doing at the time he was injured. The purpose of the undercutting is to cause the coal to shoot down in larger quantities wdth less loss of merchantable coal.

The evidence further shows that it was the duty of the runner and the person shoveling the slack to examine the face of the coal and to sprag it if they found a condition that required spragging. Spragging is done by means of props or timbers so placed against the coal as to form a brace. The evidence in this case tends to show that there was a small crack in the face of the coal where Mygatt was working at the time of his injury. "Some of the witnesses testified the crack was there plain to be seen and that some miners who had worked in the room before, had endeavored to wedge down the coal but failed. The evidence shows that on Monday, the 11th of September, two other machine runners cut one board and on Tuesday, September 12th, other machine runners cut another board and part of a third one. On the morning of the 13th of September, Mygatt and his buddy, Bousch, went into the room to finish the undercutting. They finished the board which was left unfinished and then moved the machine to the right and started to cut out another board and had undercut about one-third of this, when it was about twenty inches deep into the coal and the width of four and one-half feet, the coal fell from the face npon Mygatt and caused his injury and death.

The crack mentioned in the evidence was over the place where Bousch and Mygatt were undercutting the last board. The miners who testified to having seen the crack on Monday and Tuesday before the accident gave no notice to any one in authority, of such condition. The mine manager testified that he did not know of its existence. Bousch testified that he looked at the face of the coal and did not see any crack. It further appears from the evidence that Mygatt and Bousch did not use sprags to brace the coal. The evidence further shows that the coal in that room was what is known as brash or brittle coal and that such is the character of all of the coal in that mine; and that the character of the coal was obvious to any experienced miner. It appears from the testimony of Bousch, that no examination was made to ascertain the condition of the coal before they proceeded to undercut it. The evidence also is that coal of that character is likely to crack, break and fall in undercutting and the customary method to prevent this is to use spragging.

A consideration of the whole of the evidence in this case shows there was somewhat of a crack in the face of the coal where Mygatt and Bousch were at work; that miners who had worked in that room on the two days preceding the accident had noticed the crack and had attempted by placing wedges in the crack to break it loose. The foregoing presents the substance of the facts material to the discussion of the legal questions which are presented in this case.

We have then the facts showing that an experienced miner was using an undercutting machine at the face of the coal, that the mine manager who had examined the mine had placed no conspicuous mark to designate there was a dangerous condition at the face of the coal.

The charge under the statutory counts of the declaration is a wilful violation of the statute in that the mine examiner wilfully failed to inspect and mark as dangerous the condition that existed at the face of the coal on that morning. The sole reliance of counsel for the appellee to sustain the verdict under the statutory counts is based on this alleged wilful negligence.

Under the Constitution of this state operative coal miners are placed in a class wholly by themselves and by virtue of a constitutional mandate, the legislature must enact laws for their health and their safety. This has been deemed advisable by reason of their being exposed in their occupation to extraordinary hazards and perils different from other classes of laborers. Kellyville Coal Co. v. Strine, 217 Ill. 516; Cook v. Big Muddy-Carterville Min. Co., 249 Ill. 41.

Under this constitutional requirement the legislature of this state enacted the Law of 1899, which was amended in 1907, and again amended in 1911.

No construction of the revised Act of 1911, in the revision of which the words, “or other unsafe conditions,” was left out has been made by any court of review, so far as we are advised. The intention of the legislature in taking these words out of the law therefore becomes important in the determination of this case.

Courts cannot disregard the plain language of the statute and where there is no equivocation in a statute, it will be enforced as it is written. It cannot be extended beyond its clear meaning.

It is a canon of construction that a statute is not to be construed as changing the common law, beyond its expressly declared terms. Cadwallader v. Harris, 76 Ill. 372; Thompson v. Weller, 85 Ill. 197.

We are not therefore at liberty to declare that the present statute requires the inspection and marking of “dangerous conditions” at the face of the coal since the plain meaning of the act of revision was to do away with such requirement. In expressly designating the particular places in the mine, where inspection and marking should be made it leaves no room for doubt as to what was intended by the omission of the words employed in the former act. The requirement to examine and mark dangerous conditions generally, has been wholly eliminated from the law by the revised act.

Much controversy and litigation arose as to what was included under the expressions, “or other unsafe conditions” and “any other unsafe conditions” found in the old act and the construction placed on them by the courts must have been considered by the legislature when they changed the law.

The intention of the legislature to relieve the mine owner from the duties cast upon him by use of this language in the Act of 1907 is emphasized by the very fact of its omission in the revision.

A positive requirement4 has been taken out of the statute by positive legislative act. The meaning and importance of the words which 'were dropped out could not have been overlooked by the legislature and hence we must conclude some reason existed for the change. The effect of the change is to do away with necessity for the mine examiner to make or record “any other dangerous conditions” in the mine and require of him that he “observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions in rooms and roadways” and mark and report on these alone. Counsel for appellee contends that the expression “to inspect all places where men are required in the performance of their duties to pass or work” which appears in the Act of 1911, is not limited to the duty of the mine examiner to observe whether there are any recent falls or dangerous roof or accumulations of gas or dangerous obstructions to rooms or roadways only, but would include inspection of the conditions of a room at the face of the coal also. The legislature while making it the duty of the mine examiner to inspect the places where men are required in the performance of their duties to pass or work, does not enjoin upon him the doing of anything in reference to the discoveries made by such inspection. The specific duties pointed out by the new law require that after inspection and examination he discovers working places in which there are recent falls or dangerous roof or dangerous obstructions he must place a conspicuous mark or sign thereat as notice to all men to keep out and to make a record of the fact in a book kept for that purpose for the information of all persons interested. Any failure on his part to perform such specifically required duties is deemed in law wilful negligence, should injury result to a miner through such failure.

He is now no longer required to observe and report on dangerous conditions generally. The enumeration of particulars excludes generals, in the construction of a statute.

In order to hold the defendant liable under the statutory counts it would be necessary to arrive at the conclusion that the omitted words produce no change in the law and that the law now stands as it stood before the revision. This of course we cannot do. The revision took away all right of miners under the statute to charge wilful negligence as to any other matters than those specifically mentioned.

The case at bar does not come within the existing provisions of the law. If there was a dangerous condition at the face of the coal when Mygatt went to work there, such fact even if known to the mine examiner cast no duty on him, under the statute to either mark or report the same.

The case must fail too, under the common counts. The evidence shows that the deceased was an experienced miner about forty-seven years old. He was familiar with the conditions of the mine and the character of the coal therein. If it was an unsafe place to work it was because of the crack in the face of the coal. If it was dangerous at the time he commenced to work it was discoverable only from the physical features and conditions apparent or which could have been made to appear by observation to any one experienced in mining.

Appellee contends the mine examiner knew of its dangerous condition or by the exercise of proper care should have known of it, In reply appellant argues, that the deceased being an experienced miner knew or should have known of such condition.

There is no evidence to show superior knowledge of the examiner over the miner, and the court finds the following facts to be incorporated in the judgment in this case:

We find that the injury to deceased was caused by the fall of coal from the face of the room where he was working, a place which under the law is not required to be marked by the mine examiner.

That the deceased at the time of his injury was not in the exercise of due care for his own safety.

Reversed with finding of facts.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Dean & Son, Limited, Appellee, v. W. B. Conkey Company, Appellant.
    Gen. No. 17,994.
    1. Corporations—"burden of proving corporate existence. Where defendant pleads nul tiel corporation, the burden of proving corporate existence is cast on the plaintiff corporation.
    2. Corporations—plea of nul tiel corporation. Where defendant pleads nul tiel corporation it is sufficient for plaintiff corporation to prove that it has a de facto existence.
    3. Corporations—when regarded as defacto. An association may be regarded as a de facto corporation, where there is a law authorizing the creation of corporations of its class and powers, and where there is an attempt in good faith to comply with the law.
    4. Corporations—showing de facto existence. The introduction of the charter of a corporation with proof of the exercise under it of the franchises and powers thereby granted, is sufficient to establish the existence of a corporation de facto.

    5. Evidence—foreign statutes. By a general rule prevailing in the United States, printed copies of foreign statutes are admissible where shown to the reasonable satisfaction of the court to be authentic.
    6. Evidence—to authenticate foreign statutes. Where certain books purporting to contain the corporation laws of England are identified as authoritative editions of the statutes by a witness who testifies he has been a chartered public accountant in England and is familiar with the authoritative editions of the statutes, they are properly admitted in evidence.
    7. Evidence—sufficient to show foreign corporation has de facto existence. Where plaintiff, claiming to be an English corporation, introduces a certificate of incorporation, the signature of the registrar being attested by a notary public of the City of London and a certified copy of the articles of association there, is sufficient evidence to establish its existence as de facto corporation.
    8. Corporations—when contract is not in violation of act relating to foreign corporations. Where plaintiff, an English corporation, makes a written proposition to defendant in Chicago, which is subsequently accepted by defendant in New York, provided plaintiff agrees to certain changes; and plaintiff’s managing director in New York agrees in writing to the modifications and the contract is confirmed, as modified, by the plaintiff in London; the contract is not made in Illinois and plaintiff has not violated the act relating to foreign corporations doing business in Illinois.
    9. Account stated—defined. An account stated is an agreement between parties who have had previous transactions of a monetary character, that all items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance.
    10. Account stated—where court directs verdict. Where the evidence shows that plaintiff sent defendant several statements of its account, to which defendant made no objection but asked for further time, there is sufficient evidence of an account stated and the court may properly direct a verdict for plaintiff.
    11. Account stated—when question for court. Where the facts tending to show the statement of an account are undisputed, the question as to whether the transaction amounts to an account stated is for the determination of the court.
    12. Appeals and errors—when error not to instruct jury to include interest in verdict. Where defendant is indebted to plaintiff for royalties on toy books and for merchandise, and the evidence shows there was an account stated at a certain date, the court in directing a verdict erred in not instructing the jury, as requested by plaintiff, to include interest from the time of the account stated.
    13. Appeals and errors—when court of review will render judgment including interest. Where the trial court, in directing a verdict on an account stated, errs in not directing the jury to include interest to which plaintiff is entitled, a judgment including interest may be rendered by the Appellate Court.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed and modified.
    Opinion filed April 3, 1913.
    Rehearing allowed appellee, April 17, 1913.
    Opinion on rehearing filed May 8, 1913.
    Statement i>y the Court. This is an appeal from a judgment for $3,048.53 and costs, rendered in an action of the first class, April 13, 1911, by the Municipal Court of Chicag'o, in favor of Dean & Son, Limited, a corporation of England, plaintiff below, against W. B. Conkey Company, an Illinois corporation, defendant below. The trial was had before a jury and at the conclusion of all the evidence the court directed the jury to return a verdict for said amount in favor of plaintiff, which .they did. Plaintiff requested the court to direct a verdict in its favor for $3,515.79, the difference being interest claimed to be due “from March 16, 1908, the date of the account stated, to the date of trial.” The court refused to do this, and plaintiff then moved that the court submit to the jury the question as to whether or not interest should be allowed. This the court also refused to do. The amount of the judgment as rendered is made up of two parts, viz.: $2,590 for certain royalties and $458.53 for merchandise. Defendant claims that plaintiff is not entitled to maintain any action, but, if it can do so, that there is only due plaintiff for royalties the sum of $897.60, and for merchandise the sum of $458.53.
    On December 18, 1909, plaintiff filed an amended bill of particulars, in which it was stated that “plaintiff’s claim is for royalties accruing and for merchandise, transfers, electrotypes, books, samples, etc., furnished under contract created, modified and construed by letters and cable messages. * * * The account is as follows:
    Royalties to December 31, 1907.
    Mother Goose Series, 180,000 @ 1/10* each $180
    Giant Series, 150,000 “ 1/6* “ 250
    Nursery Series, 120,000 “ 1/5* “ 240
    Pinafore Series, 120,000 “ 1/4* “ 300
    Holiday Series, 96,000 “ 1/3* “ 320

      Diploma Series, 80,000 “ 1/2^ “ 400
    Gold Medal Series, 120,000 “ 3/4^ “ 900
    $2590.
    Merchandise (less allowance) 458.53
    Total $3048.53
    With interest on said sum of $3,048.53 from Feb. 15,' 1908. The plaintiff claims the foregoing sum of $3,048.53, upon an account stated between the parties had on or about March 16, 1908.”
    On the same day plaintiff, by leave of court, also filed certain additional counts, consisting of a special count and the common counts. Among the common counts was a count “for royalties then and there due and owing” and a count upon an account stated. The special count charged that on or about April 3, 1906, the parties made a contract in writing, which consisted of four letters and which were set out in Jiaec verba in the count, and further charged that on May 16,1906, defendant made a certain selection of books, and requested plaintiff, under said contract, to furnish it transfers for said books so selected, which plaintiff did, whereby defendant became liable to pay plaintiff royalties amounting to $2,590, upon said selection of books for which said transfers were so furnished as provided in said contract. To these additional counts the defendant pleaded (1) general issue, (2) mil tiel corporation, and (3) four pleas in varying language to the effect that the action could not be maintained because plaintiff was a foreign corporation, not licensed to do business in Illinois, and had made the contract, and was doing business in Illinois. To the four pleas last mentioned demurrers were sustained by the court. As stated by counsel for defendant in their brief, “it is obvious that the judge directed a verdict for Dean & Son on the theory that there was an account stated.”

      Early in March, 1906, H. S. Dean, managing director of plaintiff, had a conversation with W. B. Conkey, president of defendant, relative to the production in the United States by defendant of a certain line of juvenile books published by plaintiff and known as “toy books.” As a result of this conversation Dean, on behalf of plaintiff, wrote out and personally delivered to Conkey, in Chicago, a lengthy written proposition, addressed to defendant, by which plaintiff gave defendant “carte blanche to produce any of our toy books, and designs contained therein, * * * for sale in the United States” on certain conditions set forth in the proposition. These books were published by plaintiff in certain “Series,” as above mentioned in plaintiff’s bill of particulars. Each series was in turn subdivided into a large number of books known by certain distinctive titles, such as “Little Mother Hubbard,” “The House that Jack Built,” “Punch and Judy,” “Bed Biding Hood,” etc. The conditions referred to were, in substance, that plaintiff agreed to supply “transfers” of all and any of the books “selected” by defendant; that “all transfers requested” were to be used by defendant (i e., the books produced) within twelve months of their being supplied “but in the event of their not being produced within that period, the minimum royalty on that particular class or series of books” was to be paid by defendant and included in the next due account; that defendant was to pay plaintiff certain royalties on all toy books produced by defendant, it being understood that defendant could bind the books in such forms and charge such prices therefor as defendant deemed expedient. It appears from the testimony that a “transfer” is “a technical term for taking an impression from original stones,” which impression is afterwards transferred onto zinc or stone from which the books are produced. Paragraph 4 of this written proposition set forth in tabulated form the amount of royalty to be paid “per copy” on the books of each series of which transfers were selected by defendant, and also the “minimum quantities,” measured in thousands, of each book. For instance, in the “Mother Goose” series, the royalty per copy of each book in that series was one-tenth of one cent, and the minimum quantity was “30 M. of each book;” in the “Giant” series, the royalty per copy was one-sixth of one cent, and the minimum quantity “25 M. of each book.” Paragraphs 5, 6 and 7 of said written proposition were as follows:
    “5. You agree to render us a correct and detailed account of the quantities printed of all Toy Books and Publications produced during any portion of the preceding 12 months, ending the 31st day of December, on the 15th day of February next succeeding in each and every year, and to pay the royalties thereon as already specified on that date, but in rendering the first account, viz.: that for February 15, 1908, it is agreed that the same shall include all the quantities of Toy Books and Publications produced from the date transfers were first supplied by us. * * *

    “6. You agree to make every possible endeavor consistent with your business methods to push the sale of the Toy Books and Publications in the United States of America, and in order that there shall be no break in the continuity of the production of the Toy Book line, you agree to take transfers of new, or reprint those already in hand, of not less than twenty titles in each year.
    “7. It is further agreed between us that this arrangement shall * * * be binding * * * from year to year, but either of us shall be at liberty to terminate the same by a six months’ previous notice in writing after February 15, 1908, which notice is to ■ be given before the 1st day of April in any year. * * *” A day or two after the delivery of said proposition, H. S. Dean left for New York, and on March 16th he met W. B. Conkey at the office of the Niagara Lithographic Co. in Buffalo, N. Y., where it was arranged that, if plaintiff’s proposal was accepted, the “transfers” were to be sent by plaintiff from London to said Niagara Co. Both Dean and Conkey then went to New York City, and, while they were both there, Mr. Conkey, on behalf of defendant, wrote the following letter, dated March 21st, and addressed to plaintiff, and caused the same to be delivered to Mr. Dean: “We hereby accept your proposition of March 12th, ’06 made to us in Chicago with the understanding that the transfers which you send us will be on zinc plates and that they will be thoroughly first-class in point of workmanship; also that the royalty on gold medal books will be three-quarters cents instead of one cent per copy. The zinc plates are to be sent f. o. b. steamer, London, England, we to pay duty and transportation charges you to invoice these zinc plates at the same prices as you did to Wolf & Company. * * *
    We understand that this acknowledgment concludes an arrangement between us.
    Very truly yours,
    (Signed) W. B. Conkey, Prest.
    W. B. Conkey Company.”
    To this letter Mr. Dean, while in New York City, replied on March 23rd, thanking defendant for the same, “which now places the contract between my company in London and yours fully in order,” and further saying “I would urge upon you the necessity of letting us have, with as little delay as possible, your selection of titles.” Mr. Dean returned to London, and on April 3rd plaintiff from London wrote defendant at Chicago, acknowledging receipt of defendant’s letter of March 21st, “per our Mr, Dean, which in conjunction with ours (per Mr. Dean) of the 12th March forms the contract between us, and which we have much pleasure in confirming. ’ ’ On May 16th, defendant wrote plaintiff in London, enclosing a list of 54 titles of books selected by defendant, in accordance with the provisions of the contract, saying “we enclose list of our selection of titles for various series for all of which please prepare to send transfers as rapidly as possible.” All of the transfers of the books selected by defendant were shipped by plaintiff from London between July, 1906, and March, 1907, and the same were accepted by defendant. On March 1, 1907, plaintiff, hearing rumors of defendant’s financial embarrassment, wrote defendant inquiring as to same, to which defendant replied, March 15th, "We have found it necessary to ask an extension from about 30 of our merchandise creditors and banks. * * * This may possibly affect our arrangement with your line.” On April 2nd defendant wrote plaintiff saying that they had been negotiating with the Niagara Lithograph Co. with a view to having that company "take over the contract, * * * and proceed at once to publish the books,” and requesting plaintiff to cable defendant if such an arrangement would be agreeable to plaintiff, to which plaintiff cabled in reply, "Satisfactory if legally transferred, subject to approval of method and channel of distribution.” On May 2nd defendant wrote plaintiff that the Niagara Company had finally decided not to take over the contract, that defendant had been endeavoring to get other concerns to do so but without success, that defendant was willing to release plaintiff from any obligation to defendant, and that plaintiff was at liberty to negotiate with other concerns at once. On May 17th plaintiff wrote defendant in part as follows: "We are in receipt of yours of the 2nd. * * * The clauses and conditions of the contract are undoubtedly familiar to you, and the date of notice and the minimum amount of royalty that will become due to us on the transfers of books supplied. * * * The minimum royalties for period ending December 31, 1907, payable on various transfers supplied up to date (as per enclosed schedule) will amount to $2,590. According to the agreement you cannot give us notice until February 16, 1908, which would not terminate until six months after-wards; this will therefore run the contract into the second year, in which the minimum of twenty titles have to be taken.” The sum of $896.80 was then -stated in the letter as the amount which would he due for royalties for said second year on the basis of the minimum twenty titles, and the additional sum of $676.24 due for merchandise previously furnished, in all the sum of $4,163.04. The letter continued: “On the assumption that you were to determine the contract at the earliest date the liability of your company amounts to $4,163.04, the greater part of which we have long* since had to lay out. * * * In order to meet and release you, we will make the following offer, # * * it in no way to prejudice our rights under the contract, viz.: To accept the sum of $3,250 in full settlement of our claim on your company, * * * in two bills of equal amounts at 3 and 6 months respectively,— we to at once have the right to try and place the contract elsewhere, and to have possession of the transfers, blocks, etc., already sent you.” The “enclosed schedule,” referred to in the letter, was a detailed statement of the 54 titles of the books (previously selected by defendant as above mentioned and for which transfers had been delivered to defendant) and the royalties due on the minimum quantities of each title, as provided in the contract, aggregating the sum of $2,590. On July 12, 1907, defendant replied to plaintiff’s letter, making no objection to plaintiff’s figures as to amount of minimum royalties due for the first year, ending December 31, 1907, and saying in part: “Tours of May 17th, containing full data regarding our arrangement and your suggestions as to settlement, received. We have delayed answering because we wanted to be sure of our position. We now find we are in shape to continue business and expect to be able to handle your line of publications ourselves, and * * * to push line with great effort next year. * * * We think it would be best to let this matter remain just as itds until about November 1st.” On July 30th plaintiff wrote defendant to the effect that “the indefinite hanging up until after November 1st” of the contract and the production of the toy book line was not agreeable to them, and that they proposed again sending H. S. Dean to the United States and requested defendant to again consider the acceptance of plaintiff’s proposition of settlement, as outlined in the letter of May 17th. Defendant replied on August 10th: “We have given your proposition of May 17th very careful consideration. * # * We deeply regret our inability to have carried out your contract, but financial conditions make it impossible at the present time. * * * We deeply regret that our embarrassment prevents us from making a cash offer of settlement to you.”
    Mr. Dean left London and came to Chicago, where he met Mr. Conkey on September 23, 1907, at which time a definite agreement was arrived at as to the amount of money defendant owed plaintiff for merchandise which amount was fixed at $458.53, Mr. Dean on behalf of plaintiff making certain allowances. As to this interview Mr. Dean testified: ‘ ‘ There was some discussion * * * as to how the contract should be carried out. Mr. Conkey said he was anxious to retain the contract, wanted me to leave it with him, but he would require a certain amount of time in which to make payments.” At the conclusion of the interview Mr. Conkey, on behalf of defendant, wrote and delivered to Mr. Dean a letter, dated September 23rd and addressed to plaintiff, which was at once forwarded by Mr. Dean to plaintiff at London, as follows:
    ‘ ‘ Confirming conversations with your Mr. H. S. Dean, in regard to our contract with you, we will be pleased to have you leave the contract with us, believing we will be in a position next year to handle your publications along the lines of our contract in a satisfactory manner to both parties. Arranged with your Mr. Dean to settlé bill of samples upon basis 50 per cent discount, which is mutually satisfactory and which we will try and settle for before the end of the year.

      Regarding the royalties, we will settle our royalty

      account with you m full when due, although we may possibly ask you for time allowance and this settlement will- in no way be taken into account when settling royalties for 1909.”
    To this letter plaintiff on October 3rd replied, “We take pleasure in confirming the arrangement arrived at with our Mr. Dean, as specified in your letter.”
    On January 10, 1908, plaintiff wrote defendant inquiring if defendant had “really started out with the toy books” and requesting information. Defendant replied on January 27th, saying that, owing to the financial condition then existing in the United States, nothing could be done immediately, and further saying:
    “We are not in a position just now to make a payment along the lines discussed when your Mr. Dean was here but as soon as matters take a turn will do so.”
    On February 26th plaintiff wrote defendant again enclosing a detailed statement of the minimum royalties due for period ending December 31, 1907, viz.; $2,590, and for amount due, less allowance, for merchandise, viz.: $458.53, in all $3,048.53, and saying in part:
    “We had hoped * * * that .at least a portion of the amount would have reached us on the due date, viz.: the 15th of the present month. * * * You intimated in letter September 23rd last that although settling royalty account in full you might ask for time allowance and we think therefore that the best method of meeting your wishes is to draw upon you for the amount stated. We therefore enclose you two acceptances each drawn for half amount due, one at 3 months, another at 6 months from February 15th, to which we have added interest at 5% per annum.”
    On March 16,1908, defendant wrote in reply, making no objection to the amount mentioned in said detailed statement as due on February 15th, but on the contrary saying:
    “We want to ask you if you will divide the payment of this first year’s royalty into two years, as you know we have not yet published the books this year, and have therefore made nothing out of them, and to pay you $3,000 this year would spress us very hard. * * * Under the terms of our contract we agree to print not less than 20 titles in one year. No matter what the outcome of this year’s business is we will agree to pay you royalty on 20 titles for this year, so that if you will divide this payment we will send you six months’ note'for $1,563.37 and next year will pay the balance of your account plus the royalty on 20 titles. Of course if our sales amount to more than the minimum quantity, which we expect they will do, we will pay this also. * * * If this meets with your approval, we will at once forward you note for $1,563.37 and take hold of this work with vigor.”
    On March 27th, plaintiff replied to the effect that the best they would do as to dividing the payment of said first year’s royalty was that they would accept two notes, one due in 4 months after February 15th, and the other due in 9 months. On March 31st defendant wrote plaintiff, referring to the provisions of paragraph 7 of the contract and stating: “We are not positive that we want to cancel the agreement, but in order to take advantage of any rights we may have under the agreement, we ask you to accept notice of our termination of the contract before April 1, 1908.” The receipt of this notice was acknowledged by plaintiff by letter dated April 13th. Defendant on April 27th wrote plaintiff to the effect that they had delayed writing until the receipt of such acknowledgment of said notice, “as this will terminate our business arrangement for the present, and in the settlement we want to have the whole matter cleaned up. * * * We ask you to accept our 4 and 7 month’s notes from this date for $2,000, bearing interest at 5%, we turning over to you the samples and transfers which we have.” On May 12th plaintiff replied to the effect that they were “astonished” at such an “extraordinary proposition” and further „ stating, “We must ask you to forthwith return to us the acceptances as drawn, the amount of which you have already agreed, duly completed, otherwise, there will be nothing left to us but to withdraw the modifications of the agreement, which we have—in our endeavors to assist you—been led to concede.” Defendant did not return the notes or “acceptances duly completed,” and in the summer of 1908 plaintiff commenced this action, by which it only sought to recover, as disclosed from the amended bill of particulars above set forth, for the royalties claimed to be due for the first year of the' contract, ending December 31, 1907, and for the agreed value of certain merchandise, in all amounting to the sum of $3,048.53, together with interest thereon.
    On the trial plaintiff introduced evidence to show that it was a corporation. A witness, named Bennington, testified that he had been a chartered public accountant in England, that he had studied law and had passed the necessary examinations on various subjects embracing accounting and commercial law required for such an accountant, that he was farm'b'ar with the English law regarding joint stock companies or corporations and with the authoritative editions of the English statutes containing the corporation laws of England. Certain books- were handed him which he identified as the authoritative and accepted editions of such statutes. He also identified the form of certificate issued by the registrar of joint stock companies in London, evidencing the incorporation of English companies. Plaintiff introduced in evidence an edition of said statutes, identified by the witness, which purported on its title page to be “The Statutes, Revised Edition Volume, Volume 14, 25th and 26th Victoria to 28th and 29th Victoria, A. D. 1862 to 1865. * * * Printed by George Edward Ayer and William Spottis Woode, printers to the Queen’s most excellent Majesty.” The statutes contained provisions as to the organization of joint stock companies among which was a provision to the effect that the certificate of the registrar of the incorporation of any company should be conclusive evidence of that fact. Plaintiff also introduced the certificate of such registrar certifying to the incorporation of “Dean & Son, Limited,” the signature of the registrar being attested by a notary public of the city of London under his official seal, and the signature and seal of said notary being attested by the certificate under seal of the Vice-Deputy Consul General of the United States and London, the certificate of the registrar being also attested by said Vice-Deputy Consul General, who certified that to the same “full faith and credit are and ought to be given in judicature and thereout.” The certificate of the registrar was to the effect that “Dean & Son, Limited” was incorporated under the Companies Acts, 1862 to 1890, as a limited company on February 24,1892. The notary certified as to genuineness of the registrar’s signature to the latter’s certificate and that “by the laws of England such certificate should be conclusive evidence that all requirements of the Companies Acts in respect of registration have been complied with.”
    Plaintiff also introduced in evidence copy of the articles of association of “Dean & Son, Limited,” including certain special resolutions of the company, certified to by the assistant registrar as being a true copy of the original document and that he is the legal custodian of the original document. The signature of said assistant registrar was certified to by the Lord Chancellor of Great Britain, dated October 7, 1909, and attested by the great seal of that country. Said articles of association gave to “Dean & Son,.Limited,” among other powers, the power of doing the business of stationers, printers, engravers, bookbinders, publishers, etc.
    Newman, Northrup, Levinson & Becker, for appellant; Chester E. Cleveland, of counsel.
    Felsenthal & Beckwith, Foreman, Levin & Robertson and Herbert C. Lust, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

It is contended hy counsel for defendant that, under the issue formed hy defendant’s plea of nul tiel corporation, plaintiff did not sufficiently prove that it was a corporation, or, to use counsels’ language, “did not meet the burden which the law placed upon it.” “When this plea is interposed, the burden of proving corporate existence is cast on the plaintiff corporation. But this plea does not impose the burden upon the plaintiff of proving, that it was in all respects a perfectly legal corporation. It is sufficient, for a recovery upon the issue presented by that plea) to make proof that the plaintiff corporation had a de facto existence. An association may be regarded as a de facto corporation, where there is a law authorizing the creation of corporations of its class and powers, and where there is an attempt in good faith to comply with the law.” Cozzens v. Chicago Brick Co., 166 Ill. 213, 215; Marshall v. Keach, 227 Ill. 35, 44. “The introduction of the charter of a corporation, with the proof of the exercise under it of the franchises and powers thereby granted, is sufficient to establish the existence of a corporation de facto.” Marshall v. Keach, supra. But counsel for defendant argue that in this case “there was no sufficient foundation for the introduction of the supposed English statute books in evidence;” that, while it is provided by section 10 of chapter 51 of the statutes of this state that the printed statute books of this state, of the several states and territories, and of the United States, purporting to be printed under authority, shall be evidence, etc., no mention is therein made of the statutes of foreign countries; that the supposed English statute books introduced in evidence “did not prove themselves;” that the testimony of the witness Bennington (he being only a chartered public accountant and not an admitted or practicing lawyer), was insufficient properly to prove the authenticity of such books. The statutes of a foreign country “must be proved as facts, and their existence and validity established by satisfactory evidence. " * * By the general rule prevailing in the United States, printed copies of foreign statutes are admissible where shown to the reasonable satisfaction of the court to be authentic. * * * In some cases the evidence of persons who are neither lawyers nor public officers has been admitted in regard to such portions of the statute law as they have been in a position to become acquainted with.” 36 Cyc. 1255. We are of the opinion that in this case the English statute books in question were properly received in evidence. Jones v. Maffet, 5 Serg. & B. (Pa.) 523; American L. I. & T. Co. v. Rosenagle, 77 Pa. St. 507; O’Keefe v. U. S., 5 Ct. of Cl. 674; Ennis v. Smith, 14 How. (U. S.) 400, 429; Nashua Sav. Bank v. Anglo-American Co., 48 C. C. A. 15, 108 Fed. Rep. 764; U. S. v. Certain Casks of Glass Ware, 4 Law Rep. 36; Dawson v. Peterson, 110 Mich. 431; Canale v. People, 177 Ill. 219, 223; Figge v. Rowlen, 185 Ill. 234, 238. Counsel further argue that, assuming the statute books “contained genuine Acts of Parliament, there was no competent proof that plaintiff was organized or existed as a corporation under any of such acts.” Under the facts as disclosed by this record, we cannot agree with counsel. Barber v. International Co. of Mexico, 73 Conn. 587. We think that the evidence sufficiently established plaintiff's existence as a corporation de facto, and, hence, the objection, that there was not sufficient proof of plaintiff’s corporate existence, is without force. Cozzens v. Chicago Brick Co., supra.

It is next contended by counsel for defendant that the action cannot be maintained because plaintiff made the contract in question in Illinois and otherwise transacted business and exercised corporate powers in Illinois, in violation of the provisions of the act relating to foreign corporations. Counsel cite the "case of United Lead Co. v. Reedy Elevator Co., 222 Ill. 199. That case is not in point. The plaintiff in this case made and delivered a written proposition to defendant in Chicago. That proposition was subsequently accepted by defendant in New York provided plaintiff would agree to certain changes therein. Plaintiff, by its managing director and while the latter was in New York, agreed in writing to the modifications, and subsequently plaintiff, in London, confirmed in writing the contract as modified. It was not a contract made in Illinois. And we do not think, under the facts of this case and the recent decisions of our Supreme Court, that plaintiff is precluded from maintaining the present action. Alpena Portland Cement Co. v. Jenkins Co., 244 Ill. 354; Finch v. Zenith Furnace Co., 245 Ill. 586; Lehigh Portland Cement Co. v. McLean, 245 Ill. 326; Booz v. Texas & Pacific Ry. Co., 250 Ill. 376.

It is further contended by counsel that the trial court erred in directing a verdict for plaintiff at the conclusion of all the evidence, and for the reason that the evidence was such as required the court to submit to the jury, under proper instructions, the question whether or not there was an account stated between the parties. In 1 Am. & Eng. Ency. L. & P., p. 688, it is said:

“An account stated is an agreement between parties who have had previous transactions of a monetary character, that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance. * * * (p. 689) In stating an account, as in making any other agreement, the minds of the parties must meet. * * * (p. 693) The meeting of the minds of the parties upon the correctness of ah account stated is usually the result of a statement of account by one party and an acquiescence therein by the other. The form of the acquiescence or assent is, however, immaterial, and may be implied from the conduct of the parties and the circumstances of the case. '* * * (p. 699) Where an account is rendered by one party to another and is retained by the latter beyond a reasonable time without objection, this constitutes a recognition by the latter of the correctness of the account and establishes an account stated. * * * (p. 716) An account statéd is in the nature of a new promise or undertaking, and raises a new cause of action between the parties. * * * (p. 723) It is deemed conclusive both at law and in equity unless impeached for mistakes or fraud. * * * (p. 725) The defense to an action upon an account stated must relate to it and not to matters of anterior liability, except in so far as they constitute a foundation for the introduction of evidence to the real substantial defense impeaching the settlement for fraud, error, or mistake. * * * (p. 731) The burden of proof is upon, the party seeking to open an account stated for fraud, or to surcharge or falsify such an account on the ground of omission or mistake. * * * The fraud or mistake must be clearly shown. * * * (p. 723) Where the facts tending to show the statement of account are undisputed, the question as to whether the transaction amounts to an account stated is for the determination of the court, as where the entire evidence consists of correspondence. ’ ’

The law, as stated in the text book referred to relative to accounts stated, we believe to be the law of this state. In State v. Illinois Cent. R. Co., 246 Ill. 188, page 241, it is said:'

“A stated account is an acknowledgment of an existing condition of liability of the parties, from which the law implies a promise to pay the balance thus acknowledged to be due. * * * It may be impeached for fraud or mistake. The general rule is, that in an application to open a stated account the plaintiff must either charge fraud or state particular errors. * * * (p..242) 6 A person seeking to open a settled account must specify in his claim either errors of considerable extent, both in number and amount, or at least one important error of a fraudulent nature.’ * * * (p. 243) The authorities seem to be a unit in holding that mistakes or errors must be specifically alleged and proved. * * * (p. 246)

In ordinary business transactions, if an account has been transmitted from one individual to another it will be deemed a stated account- from the presumed approbation or acquiescence of the parties, unless an objection is made thereto within a reasonable time-. * * * When the facts are undisputed the question is for the court, but when the facts are in dispute in a common law action the question should be submitted to the jury under proper instructions.” See also Northwestern Fuel Co. v. Western Fuel Co., 144 Ill. App. 92; Wurlitzer Co. v. Dickinson, 153 Ill. App. 36; Pickham v. Illinois, I. & M. Ry. Co., 153 Ill. App. 281.

In Dick v. Zimmerman, 207 Ill. 636, 639, it is said:

“In an action upon an account-stated, the original form or evidence of the debt is unimportant, for the stating of the account changes the character of the cause of action, and is in the nature of a new undertaking. The action is founded, not upon the original contract, but upon the promise to pay the balance ascertained.”

We are of the opinion that the evidence in this case clearly showed that at least as early as March 16,1908, the defendant was indebted to plaintiff upon an account stated in the sum of $3,048.53, that there was no evidence tending to impeach the settlement for fraud or mistake, and that, under the facts of this case, and under the law, the court rightly directed a verdict for plaintiff. As shown by plaintiff’s amended bill of particulars, the amount of plaintiff’s claim, $3,048.53, was made up of two principal items, viz..: $2,590 for royalties for period ending December 31, 1907, and $458.53 for certain merchandise (less allowance). On May 17, 1907, plaintiff by letter rendered a detailed account to defendant showing that the amount, which would be due and payable plaintiff under the provisions of the contract on February 15, 1908, for •mini-m-nm royalties for the period ending December 31,1907, was $2,590, and claiming that $676.24 was due plaintiff for merchandise previously furnished defendant. On July 12th defendant acknowledged receipt of plaintiff’s letter, but made no objections to plaintiff’s figures as to amount stated to be due for merchandise or for said royalties to become due. On September 23rd, when Mr. Dean met Mr. Conkey, president of defendant, in Chicago, the latter raised certain objections to the amount claimed for merchandise, and a definite amount was then fixed, viz.: $458.53, as the amount due plaintiff for said merchandise. Mr. Con-key made no objections at that time as to the amount plaintiff claimed would be due for royalties on February 15, 1908, viz.: $2,590, but on the contrary he, on behalf of defendant, on said September 23, 1907, wrote plaintiff: “We will settle our royalty account with you in full when due, although we may possibly ask you for time allowance.” On February 26, 1908, plaintiff again rendered a detailed statement of the amount for minimum royalties, $2,590, due on February 15th, for the period ending December 31, 1907,' and of the amount, $458.53, due for merchandise as agreed. On March 16, 1908, defendant acknowledged receipt of this detailed statement, made no objections to the total amount claimed to be due, $3,048.53, but on the contrary admitted the correctness of the amount by requesting plaintiff, on account of defendant’s financial troubles, to “divide the payment of this first year’s royalty into two years,” and suggesting that defendant be allowed to send a six months note for half of the amount and to pay the balance “nextyear.” Plaintiff replied to the effect that the best they would do, as to extending the payment of the amount due, was the acceptance of a 4 months’ note for half of the amount and a 9 months’ note for the other half. The defendant did not accept this proposed extension of payment of the amount due, but, by letter dated May 12th, made an entirely new proposition of settlement, suggesting the payment of a less amount than had previously been agreed to, and the return to plaintiff of the samples and transfers then in the possession of defendant, which proposition plaintiff refused to consider. Counsel for defendant argue that this latter correspondence shows that the minds of the parties did not meet as to the amount due. To this we cannot agree. It is clear that the minds of the parties met on March 16, 1908, as to amount due from defendant to plaintiff. The defendant then asked for more time within which to pay that amount than plaintiff was willing to grant. The defendant then proposed a different settlement than that previously agreed to by the parties, but plaintiff refused the proposition.

There was some testimony introduced by defendant tending to show want or failure of consideration for defendant’s promise to pay the royalties stipulated for in the original contract, but'counsel for defendant state in their printed reply brief that this testimony was only “pertinent to the supposed cause of action upon the original contract and was not pertinent to the supposed cause of action upon the account stated.” We agree with this statement and also the further statement of counsel that “it is obvious that the judge directed a verdict on the theory that there was an account stated.” This being so, the said testimony was not proper for a jury’s consideration on the issue as to an account stated.

Counsel'for plaintiff have assigned cross errors to the effect that the trial court erred “in refusing to instruct the jury to include in its verdict interest at 5% per annum on $3,048.53 from March 16, 1908, to the day on which the verdict was rendered.” Such assignment presents the question for our consideration. Dickson v. Chicago, B. & Q. R. Co., 81 Ill. 215; Street v. Thompson, 229 Ill. 613,620. Plaintiff asks that the judgment be reversed on this account, and that this court enter judgment for the above mentioned amount, plus interest thereon at the above mentioned rate from said March 16, 1908, or that this court remand the cause with directions to the Municipal Court to enter a judgment in such amount. Section 2 of chapter 74 of our statutes provides: ‘ ‘ Creditors shall he allowed to receive at the rate of five (5) per centum per annum * * * on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance.” See Hartshorn v. Byrne, 147 Ill. 418; Luetgert v. Volker, 153 Ill. 385, 390. On the trial, plaintiff introduced evidence showing that interest on the sum of $3,048.53, at five per cent, per annum, from March 16, 1908, to the day of the trial amounted to $467.26. As before stated, we are of the opinion that the trial court, at the conclusion of all the evidence, properly directed a verdict for the plaintiff for said principal sum of $3,048.53, and if plaintiff had not assigned cross errors we would affirm the judgment. We are also of the opinion, however, that the court, in its instruction to the jury, should have gone further and directed the jury to assess plaintiff’s damages at said principal sum plus the proper interest. 6‘In some jurisdictions the court will increase the amount of a judgment where it is for a less sum than the undisputed evidence shows plaintiff to be entitled to,—as, for instance, where there is an obvious error in regard to the allowance of interest.” 3 Cyc. 439. Had this case been tried by the court without a jury we could, under the authority of several Illinois decisions, enter judgment in this court against the defendant for said principal sum including interest. United Workmen v. Zuhlke, 129 Ill. 298, 307; Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490, 504; City of Chicago v. Wheeler, 25 Ill. 478, 482; Ives v. Muhlenburg, 135 Ill. App. 517, 524; Straus v. Citizens’ State Bank, 164 Ill. App. 420, 431, affirmed 254 Ill. 185. In the Zuhlke case, supra, Florentina Zuhlke brought suit in assumpsit upon a beneficiary certificate issued to her husband during his lifetime, which provided that at his death the sum of $2,000 should be paid to her. The cause was tried before the court without a jury, resulting in a finding and judgment in her favor for $2,000, without interest, which judgment was affirmed by the Appellate Court (30 Ill. App. 98). On the appeal of the society to the Supreme Court, she assigned as cross-error that she was allowed no interest. It was in evidence that on October 24, 1884, she gave the society written notice of her husband’s death on October 15, 1884, and made written demand for the payment of the $2,000. The Supreme Court said (p. 307): “We know of no reason why she is not entitled to interest from the date of such notice at the rate bf six per cent, per annum. * * * The judgments of the Circuit and Appellate Courts are correct as far as they go, but they should have allowed interest. The interest on $2,000 at the above rate from October 24, 1884, to the present term of this court is $553.33. Judgment is therefore hereby rendered in this court in favor of the appellee for $2,553.33.” In City of Chicago v. Wheeler, supra, actions in assumpsit were commenced by appellees to recover the damages, as awarded by commissioners, which appellees had sustained by the appropriation of their real estate to the use of the city of Chicago in the extension of La Salle street. The suits were tried before the court without a jury, resulting in judgments for appellees. In the Supreme Court they assigned as cross error that the court should have allowed interest on the amount of damages awarded them by the assessment. The Supreme Court held that interest was allowable under the statute upon money withheld by an unreasonable or vexatious delay in payment; that when appellee’s property, which had been condemned for a street, became the property of, the city for the public use the city owed appellees the amount of the damages awarded, which it was bound to pay within a re.asonable time; that a delay of more than two years in making such payment was unreasonable; and that the trial court erred in not allowing interest to appellees from June 9, 1858, that date being two years after the confirmation of the commissioners’ report. And the court said (p. 482): “We shall reverse the judgments below, and as the amount which these appellees are entitled to receive, depends upon computation only, we shall render the proper judgments here.” The court then stated what they found the proper amounts to be after making the computations, and entered judgments in those amounts against the city.

But counsel for defendant contend that, even though this court would have the power, had the present case been tried before the court without a jury, here to enter judgment in favor of the plaintiff for said amount of .$3,048.53, plus interest at the rate of five per cent, per annum from March 16, 1908, we have no power so to do, or to remand the cause with directions to the trial court to enter a judgment including said interest, where the cause was tried by a jury; that in such a case, where the judgment of the trial court is reversed for an error of law, this court can only remand the cause for a new trial. In support of their contention counsel cite, among others, the cases of City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 506; Thomas v. Wightman, 129 Ill. App. 305, 307; Clarke v. Supreme Lodge, 189 Ill. 639; Osgood v. Skinner, 186 Ill. 491; Kanawha Dispatch v. Fish, 219 Ill. 236, 240; Rigdon v. More, 242 Ill. 256. In our original opinion, filed April 3, 1913, we took this view of the question and reversed the judgment and remanded the cause,, for further proceedings. Plaintiff filed a petition for a rehearing which was allowed. After further consideration we have reached the conclusion that the judgment of the trial court should be affirmed but modified, and that judgment for the plaintiff be entered here for said sum plus interest. In People v. Board of Supervisors, 125 Ill. 9, at page 21, it is said:

“The mere ascertaining of an amount by the multiplication, addition or subtraction of given numbers, presents no question of fact for a jury. In such cases there can be but one result, and the court may either itself perform the labor of ascertaining it, or intrust that labor to any competent individual. In legal presumption, the court knows what is the result. It is upon this principle, that where an action is brought for a sum certain, or which may be made certain by computation, the court can enter judgment for the plaintiff for the amount of his damages, without a writ of inquiry. 2 William’s Saunders, 107a, notes b, c; Renner v. Marshall, 1 Wheat. 215, 216; Rust v. Frothingham, Breese, 331.”

In Wilmans v. Bank of Illinois, 6 Ill. (1 Gilm.) 667, an action in debt was brought by the bank upon a note for money loaned. The defendants filed four pleas, all in substance denying the corporate existence of the bank, to which pleas a general demurrer was sustained and a judgment was rendered on the demurrer for an aggregate sum, including the debt, interest and damages, without distinguishing the amount of either. The Supreme Court held that for this reason the judgment should be reversed. The court further said (p. 671):

“But as we can ascertain in this case, what judgment ought to have been rendered by the court below, it is competent for this court to enter that judgment here, without subjecting the party to the expense of remanding the case for that purpose.”

In Pearsons v. Bailey, 2 Ill. (1 Scam.) 507, an action in assumpsit was commenced by Bailey, surveyor for Cook county, to recover of the defendants the sum of $112 for money paid to chainmen and the sum of $420 for surveying and platting town lots in the town of Canal Port. The cause was tried before a jury and a verdict and judgment rendered in favor of Bailey for $532. During the trial the defendants' asked the court to instruct the jury that under the statutes Bailey could not recover for money paid to chainmen, which instruction was refused. The Supreme Court said (p. 511):

“From this construction of these statutes, it results, that the court below decided erroneously, in refusing the instruction asked; and for this reason, the judgment below is reversed with costs. But as the bill of exceptions enables this court to ascertain the sum that would have been recovered, if the instructions had been given, it is unnecessary to send this case back for a new trial. Judgment is accordingly rendered in this court for $420; for which sum and the costs of the court below, Bailey is entitled to an execution.”

In the present case, as stated by counsel for defendant in their brief, “it is obvious that the judge directed a verdict for Dean & Son on the theory that there was an account stated,” and, as above stated, we think that the evidence clearly showed that at least as early as March 16, 1908, the defendant was indebted to plaintiff upon an account stated in the sum of $3,048.53, and that the trial court rightly directed a verdict for the plaintiff on that theory; This being so, under section 2 of chapter 74 of our statutes above referred to. plaintiff was entitled to interest from said date on said sum at the rate of five per cent, per annum, and the trial court erred in refusing to instruct the jury accordingly. Inasmuch as the amount of interest on said sum from srld date to the present date can be easily computed, no reason is perceived why, under the facts of this case, we should not here enter a judgment including such interest, as was done in United Workmen v. Zuhlke, supra. We do not think that the fact that the present case was tried by a jury prevents our so doing. The trial court should have instructed the jury to include the interest in their verdict, and the court erred in not so doing when requested by plaintiff’s counsel at the conclusion of all the evidence. Had this been done a judgment in the proper amount would have been entered. “The right of a trial court to direct a verdict is one of the incidents of a trial by jury.” City of Spring Valley v. Spring Valley Coal Co., 173 Ill. 497, 507. The interest on the sum of $3,048.53, at the rate of five per cent, per annum, from March 16, 1908, to the present date, May 8, 1913, amounts to $784.08. Judgment is therefore hereby rendered in this court against W. B. Conkey Company, appellant, in favor of appellee, Dean & Son, Limited, for $3,832.61.

Judgment affirmed and modified.


author: Mr. Presiding Justice G-ridley

text:
    Morris Novitsky, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant.
    Gen. No. 18,004.
    1. Evidence—discrediting rntness by Ms testimony before coroner's inquest. Plaintiff’s intestate, a boy of seven years of age, was run over and killed by an ice wagon at the intersection of two streets crossing at right angles, and the conjunction of a third street, there being a cross-walk, defined by flagstones, between such third street and the west line of one of the other streets. Plaintiff contended that his intestate, while crossing on or immediately west of such cross-walk was killed by the wagon coming at a fast trot. Defendant claimed that the accident happened 50 to 75 feet west of said cross-walk, that the wagon was driven at a slow trot, and that the boy suddenly darted out from around the rear end of a standing car, standing on such third street, in front of the moving team. A witness for plaintiff testified that there was no car standing on such track, that the boy was walking north on the flagstone cross-walk, that after the boy was struck, the wagon stopped within about fifty feet and that the driver looked as if he were intoxicated. On cross-examination such witness was asked, for the purpose of discrediting his testimony, whether he had not testified before the coroner that the boy was crossing northeast on such third street, that the wagon came to a stop ten or fifteen feet after the accident, that in his opinion the driver was sober, and that there was a car standing on such third street. Held, that refusal to allow answers was error.
    2. Coroners—verdict admissible. In an action for wrongful death, the verdict of the coroner’s jury is admissible as evidence to be considered but not conclusive.

      3. Cobohebs—evidence before, admissible to discredit witness. Where a witness in an action for wrongfúl death has testified to certain facts, such parts of his original testimony at the coroner’s inquest as show him to have made different statements there, are admissible to discredit him, but other portions are properly excluded.
    4. Instbuctions—must be accurate when evidence conflicting. Where the evidence is very conflicting on material points it is particularly important that the instructions should be accurate.
    . Appeal from the Superior Court of Cook county; the Hon. Richabd E. Bubiie, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed May 8, 1913.
    Rehearing denied May 22, 1913.
    Amos C. Miller, and Benjamin O’Hara, for appellant.
    Clarence S. Darrow and Edgar L. Masters, for appellee; Edgar L. Masters, of counsel.
   Mr. Presiding Justice G-ridley

delivered the opinion of the court.

This action was brought by appellee to recover damages from appellant, defendant below, for causing the death of Samuel Novitsky, a boy under seven years of age, on the evening of October 5, 1903. The boy was run over on Archer avenue, Chicago, by a wagon owned and operated by defendant. It was charged that the accident happened by reason of the negligence of the driver of the wagon, while the boy was crossing Archer avenue, at or near its intersection with State street, and while he was exercising due care for his own safety. The first trial of the case resulted in a disagreement of the jury. On the second trial the jury found the defendant guilty and assessed plaintiff’s damages at $4,000. This appeal is prosecuted tó reverse the judgment entered upon that verdict.

State street runs north and south and 19th street runs east and west, intersecting State street at right angles. At this intersection Archer avenue commences, running in a southwesterly direction from State street. At the time of the accident there was a frame building on the northwest corner of State and 19th streets used for a saloon. At the southwest corner of State street and Archer avenue there was a drug store. A cross-walk, defined by flagstones, ran north and south (in line with the west sidewalk of State street) from the drug store to the saloon. This cross-walk from curb to curb was about 115 feet in length and passed over the space made by the conjunction of Archer avenue and 19th street with State street. About 60 feet west of this cross-walk there was a frame “flat-iron” building between 19th street and Archer avenue. The sidewalk south of this building (being the north sidewalk of Archer avenue) came into conjunction with the sidewalk north of this building (being the south sidewalk of 19th street) east of said building, and there both sidewalks ended, the most easterly part of which was about 30 feet west of the cross-walk above mentioned. There were two street car tracks in State street. Connecting with these tracks were two other tracks .which turned into Archer avenue. For some distance west of State street, Archer avenue was paved with asphalt.

The deceased lived with his parents at No. 1824 State street, a location north of 19th street. The father of the boy rah a tailor shop at No. 1916 State street, a location south of Archer avenue. About four o’clock in the afternoon the boy, returning from school, stopped at his father’s shop, where he remained until about 5:45 p. m., when he started for his home unaccompanied. While going across Archer avenue in a northerly or northeasterly direction on or west of said cross-walk, and when he was just north of the north street car track in Archer avenue, he collided with the south horse of the team of defendant, was thrown down and one or both of the left wheels of the wagon passed over his body and he suffered injuries from which he died in a few minutes. The team of defendant, approaching from the north on State street, had • turned into Archer avenue and was moving in a southwesterly direction in that street at the time of the accident. The testimony of the several witnesses as to the details of the accident is very conflicting. It is plaintiff’s contention that the boy was injured while he was crossing Archer avenue on, or immediately west of, said cross-walk and while defendant’s team was being driven at a fast trot. It is defendant’s contention that the accident happened 50 to 75 feet west of said cross-walk; that defendant’s team was being driven southwesterly in Archer avenue, immediately north of the north track in that street, at a slow trot; that there were one or two street cars standing on Archer avenue immediately west of said cross-walk; that the boy suddenly “darted out” from around the west end of said standing car or cars in front of the moving team, which could not be stopped in time to prevent the accident.

The conclusions that we have reached will require a retrial of the case, and hence we should not give an opinion as to the weight of the evidence.

Counsel for defendant contend that the trial court erred in refusing to allow plaintiff’s witness, Joseph F. Golden, to answer certain questions asked of him on cross-examination for the purpose of discrediting his testimony on material facts. Golden had testified, inter alia, that at the time of the accident he was standing on the curb at the northwest corner of State and 19th streets, that there was nothing to obstruct his view down Archer avenue and that there were no street cars standing on Archer avenue west of the cross-walk; that the boy was just north of the north track on Archer avenue, walking north on the flagstone cross-walk; that after the boy was struck the wagon went about 50 feet; that both the driver and his companion on the front seat “looked to me like they were intoxicated.” On cross-examination the witness was asked the following questions:

“Q. Did you testify before the coroner’s inquest that the boy was going across the street northeast on Archer avenue towards State street when he was hit?
Q. Did you at the coroner’s inquest testify that the wagon came to a stop 10 or 15 feet after the boy was struck?
Q. Did you testify at the coroner’s inquest that in your opinion the driver waá sober at the time of the accident?
Q. Did you testify as follows on the former trial: ‘Q. Were there any cars standing on Archer avenue at that time? A. There was one car on the south track waiting for a grip-car that was going north, to be attached to the grip-car. ’ ” ■

The court, on objection being made, refused to allow the witness to answer any of these questions and defendant excepted. We are of the opinion that the court erred in so ruling. Math v. Chicago City Ry. Co., 243 Ill. 114,122; Chicago City Ry. Co. v. Matthieson, 212 Ill. 292; Craig v. Trotter, 252 Ill. 228.

Counsel for defendant also contend that the court erred in refusing to admit in evidence the entire deposition of Golden, taken at the coroner’s inquest on October 6, 1903. The original deposition, or written statement, purporting to be signed by him, was shown him on cross-examination, and he testified that he signed “that sheet,” that he did not remember whether or not the statement had been read over to him by the coroner before he signed it, but that he might have said, on the former trial of this case, that he believed the statement was read over to him before he signed it. At the conclusion of the testimony offered on behalf of plaintiff, defendant’s attorney submitted' to the court “the original document which came from the coroner’s office,” and offered in evidence the following, contained in said statement of Golden which he had previously testified that he had signed, viz.: “I do think that the driver was sober,” and “The boy was walking across the street going northeastward on Archer avenue towards State street.” On objection being made, the court refused to admit in evidence the above portions of the statement. Defendant’s attorney then offered in evidence “the whole statement” of Golden before the coroner, but on objection its admission in evidence was refused and defendant excepted. The above portions of the statement of Golden, being contradictory on material points to his sworn testimony on the trial of this case, were proper to be introduced in évidence as tending to discredit him as a witness. Illinois Cent. R. Co. v. Wade, 206 Ill. 523, 529. But, in our opinion, this error in the court’s ruling as to said portions of the statement was cured by the subsequent proceedings in the trial. At the conclusion of all the evidence, plaintiff’s attorney, evidently realizing that said portions of Golden’s statement offered by defendant should have been received in evidence, stated to the court out of the hearing of the jury that “the record may show that we withdraw our objection to the offering in evidence of that part of the statement offered by counsel for defendant off the witness Golden,—the statement being the one he made and signed before the coroner’s jury and about which he was asked on cross-examination with a view of impeachment. I do not understand the whole statement is offered,— only those portions of it. As to those our objections are withdrawn.” Defendant’s attorney then read to the jury the portions above mentioned of Golden ?s statement before the coroner, but defendant’s attorney did not then again urge that the entire statement should be read to the jury, neither did he then urge that certain other portions of Golden’s statement be read to the jury, which other portions he now claims were also material as tending to discredit Golden’s testimony on the trial, and on that account the entire statement should have been admitted. Those other portions are: “After the accident the wagon went about 10 or 15 feet and came to a stop when the driver jumped off,” and ‘ ‘ There was an Archer Ave. car waiting on Archer Ave.” We are not disposed to hold, under the facts of this case, that the entire statement should have been admitted in evidence. It was quite lengthy and contained much matter which had no tendency to contradict Golden’s testimony. The portions which did contradict his testimony were admissible. Illinois Cent. R. Co. v. Wade, supra; Jacobs v. Electric Coal Co., 158 Ill. App. 286, 288. And such portions as were offered by defendant’s attorney were finally admitted in evidence.

At the commencement of the introduction of evidence on behalf of defendant, a certified copy of the verdict of the coroner’s jury was offered by defendant’s attorney. Objection to its introduction was made and the court reserved its ruling. Later on in the trial defendant’s attorney renewed his offer. The introduction of the paper was objected to as being “incompetent, irrelevant and immaterial” and the objection was sustained. Defendant’s attorney then offered “the last sheet of the original files of the coroner’s records” (the verdict), and its admission was also refused, to both of which rulings defendant excepted and the same are assigned as error. The verdict is signed by the members of the jury and by the coroner, and says that the deceased came to his death “from shock and crushing injuries received, caused by being struck by a horse and run over by the two left hand wheels of ice wagon #214 belonging to the Knickerbocker Ice Co. and driven by Martin Johnson on Archer Ave. near the cor. of State and 18th Sts. on October 5th, A. D. 1903. And from the evidence presented to us this jury finds that had the C. C. S. K. W. Co. not blockaded Archer Ave. with cars on both sides of street crossing this accident would not have occurred and deceased not lost his life in such a manner, and in this respect censure the above named company.”

Section 14 of chapter 31 of onr statutes, relating to the duty of coroner’s jurors, provides:

“It shall be the duty of the jurors, as sworn aforesaid, to inquire how, in what manner, and by whom or what, the said dead body came to its death, and of all other facts of and concerning’ the same, together with all material circumstances in anywise related to or connected with the said death, and make up and sign a verdict, and deliver the same to the coroner. ’ ’ In U. S. Life Ins. Co. v. Vocke, 129 Ill. 557, 566, it is said:
“We are satisfied, both upon principle and authority, that the coroner’s inquisition was admissible in evidence. The inquisition was made by a public officer, acting under the sanction of an official oath, in the discharge of a public duty enjoined upon him by the law, and * * * we see no reason why it should not be competent evidence tending to prove any matter properly before the coroner which appears upon the face of the inquisition. We do not hold that such evidence is conclusive, but only that it is competent evidence to be considered.”

The coroner’s verdict in this case states that the boy was struck when “on Archer Ave. near the cor. of State and 18th Sts.,” and also states, in effect, that Archer avenue was at the time blockaded with cars on both sides of the street crossing. There was a sharp conflict in the testimony of the witnesses at the trial of this case as to just where the boy was when struck, whether on the crossing or west of it, and whether or not at the time there were cars standing west of said cross-walk. We think it clear that defendant was entitled to have the verdict of the coroner’s jury admitted in evidence and that the trial court erred in refusing to admit it. See also National Woodenware & Cooperage Co. v. Smith, 108 Ill. App. 477, 479; Stollery v. Cicero S P. St. Ry. Co., 148 Ill. App. 499, affirmed 243 Ill. 290, 294; O’Donnell v. Chicago & A. R. Co., 127 Ill. App. 432.

Complaint is made of certain instructions offered by plaintiff and given to the jury. Where the evidence is very conflicting on material points, as in this case, it is particularly important that the instructions should be accurate. Lyons v. Ryerson & Son, 242 Ill. 409, 416. We are of the opinion that some of the instructions complained of were not strictly accurate, but we deem it unnecessary further to extend this opinion by discussing them. Complaint is also -made of certain statements made by the attorney for plaintiff in his closing argument to the jury. We do not think that they were proper, but on the new trial they doubtless will not be repeated.

The judgment of the Superior Court is reversed and the cause remanded.

Reversed and remcmded.