text:
    Sarah B. Smyth-Wales, Appellant, v. John M. Smyth Company, Appellee.
    Gen. No. 20,097.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Statement of the Case.
    Suit by Sarah B. Smyth-Wales, a stockholder of the John M. Smyth Company, a corporation, to have such corporation enjoined from purchasing from the John M. Smyth Merchandise Company, another corporation, capital stock of that company to the amount of $400,000 in satisfaction of an indebtedness of a like amount due defendant from the Merchandise Company. A temporary injunction was issued without notice. Defendant subsequently filed an answer and affidavits were filed by both parties. On motion of defendant to dissolve the temporary injunction, the court ordered the bill dismissed for want of equity, and the complainant appeals.
    Abstract of the Decision.
    1. Injunction, § 9

      —what must be shown to warrant injunction. A court of chancery will, not grant an injunction to allay the fears and apprehensions of individuals, and will only grant protection against acts which are not only threatened but will in all probability be committed to the injury of the petitioner, and some fact or facts must appear from which the court can see that unless prevented the acts will in all probability be committed.
    2. Injunction, § 88*—what facts will warrant injunction to prevent illegal act of corporation. In an action by a stockholder to enjoin a corporation from illegally purchasing stock of another corporation, evidence that the attorney of the defendant Company had reported to the other corporation a suggestion of an officer of a bank with which the other corporation was doing business as to increasing the stock and using it to pay a debt to the defendant was insufficient to show that the purchase would be made, since it might be assumed that the defendant corporation would be guided by advice of its attorneys before making the purchase which advice was that such a suggestion was not legally possible of performance.
    3. Injunction, § 88*—when evidence insufficient to warrant injunction against corporation. In an action by a stockholder to enjoin a corporation from illegally purchasing stock of another corporation, evidence of a conflict between stockholders, and that the stock of the other corporation was increased at a meeting which the complainant’s proxy failed to attend, or was prevented from attending, was insufficient to justify an injunction though it might be grounds for apprehension by the complainant.

      George C. Fry, for appellant.
    Thomas A. Leach, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

4. Injunction, § 88 —what will justify injunction to prevent illegal purchase of stock hy corporation. In an action to enjoin a corporation from illegally purchasing stock of another corporation, evidence that such other corporation increased its stock so that it could use a portion to pay a debt to the defendant corporation would not warrant an injunction, and since the other corporation was not a party to the suit the legality of its increase of stock could not be inquired into.

5. Injunction, § 267*—when injunction will he dissolved. A groundless injunction should not he continued.

Baker, J., dissenting.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Holy Nazarene Tabernacle Church v. Mattie L. Thornton et al. On Appeal of Mattie L. Thornton, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 20,366.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Statement of the Case.
    Suit for an injunction by the Holy-Nazarene Tabernacle Church against Mattie L. Thornton and others. From an order of punishment based on a finding that Mattie L. Thornton was guilty of contempt of court in wilfully violating such injunction, she appeals.

      Abstract of the Decision.
    1. Injunction, § 259

      —when order of contempt for violating injunction is erroneous. An entry of judgment in contempt for wilfully violating an injunction is erroneous where the bill of complaint which was the basis for the injunction has been dismissed.
    2. Injunction, § 209*—what order constitutes dismissal of Mil. Where a corporation brought suit for an injunction and the defendant filed a plea of nul tiel corporation, and on reference to a master a report was filed, whereupon the defendant moved the chancellor to confirm the report and to dismiss the bill of complaint, an order stating that the court sustained the master’s report and restored the rights of the defendant was, in substance and in view of what was intended, an order for dismissal of the bill.
    E. H. Wright and L. A. Newby, for appellant.
    Maclay Hoyne, for appellee; Edward E. Wilson, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Holy Nazarene Tabernacle Church v. Mattie L. Thornton et al. On Appeal of W. G. Anderson, Appellant, v. The People of the State of Illinois, Appellee.
    Gen. No. 20,367.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the March term, 1914.
    Reversed.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.

      Statement of the Case/
    . This case involves the same situation as that considered In the case of Holy Nazarene Tabernacle Church v. Thornton, ante, p. 68, except that 'the' appellant here is W. G-. Anderson, the attorney for Mattie L. Thornton, appellant in the other case.
    E. H. Wright and L. A. Newby, for appellant.
    Maclay Hoyne, for appellee; Edward E. Wilson, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.


text:
    Bertha R. Cherry, Appellee, v. Chicago Life Insurance Company and Federal Life Insurance Company, Appellants.
    Gen. No. 20,509.
    1. Judgment, § 661

      —what is sufficient copy of judgment sued on. In an action on a foreign judgment, an instrument attached to the declaration entitled: “Copy of instrument sued upon,” which purported to be.a copy of the judgment of the foreign .State and of the judgment of the Appellate Courts in such State, was within the requirement of Rev. St. ch. 110, par. 32, J. & A. V 8569. though not authenticated as required by the Act of Congress (U. S. Rev. St. Tit. 13, ch. 17, § 905), since such act is concerned with the admissibility óf evidence of a judgment of another State. "
    2. Judgment, § 66Í*—what must he shown in action on foreign judgment. In an action on a foreign judgment it is not necessary to attach to the declaration copies of the proceedings in the courts of the foreign State.
    3. Judgment, § 661*—what allegations are necessary in suit on foreign judgment. In an action on a foreign judgment it is not necessary to allege in the declaration the jurisdiction of the courts of the foreign State.
    4. Judgment, § 578

      —when foreign judgment is res adjudicate, as to particular-matter. In an action on a foreign judgment, where the issue of jurisdiction of the parties was raised and adjudicated after full hearing in the courts of the foreign State, the judgment of such foreign State is res adjudicata upon the jurisdictional questions raised and adjudicated there, and such questions cannot be raised again in a suit on the judgment.
    Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding. Heard in this court at the March term, 1914.
    Affirmed.
    Opinion filed December 21, 1914.
    Rehearing denied January 4, 1915.
    Duncombe & Behan, for appellant Chicago Life Insurance Company.
    Charles A. Atkinson and Chilton P. Wilson, for appellant Federal Life Insurance Company.
    Atwood, Pease & Loucks, for appellee.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff brought suit in the Superior Court of Illinois on a judgment recovered in the State of Tennessee against these defendants, and had judgment here. Defendants have appealed.

The declaration alleged the, recovery of a judgment by plaintiff against both defendants in the Circuit Court of Chester county, Tennessee; that thereafter defendants sued out a writ-of error from the Court of Civil Appeals of Tennessee to revise and correct the said judgment, and that the Court of Civil Appeals affirmed the judgment of the lower court and entered judgment for plaintiff against defendants for a certain sum of money and costs; that thereafter defendants filed a pétition for certiorari in the Supreme Court of Tennessee to review the judgment of the Court of Civil Appeals; that the cause was heard by the Supreme Court and that it was adjudged that said “writ of certiorari” be dismissed. Attached to the declaration is an instrument entitled: “Copy of instrument sued upon,” which purports to be a copy of the judgment of the Circuit Court of Chester county, Tennessee, and of the judgment of the Court of Civil Appeals and of the Supreme Court. One of the points urged by defendants is that this is not a copy of the instrument sued on, as required by the Illinois statute (paragraph 32, chapter 110, J. & A. j[ 8569) to be attached to the declaration, because it is not authenticated according to the Act of Congress (title 13, chapter 17, sec. 905, E. S. U. S.). We hold that the copy attached to the declaration is within the requirement of our statute; the Act of Congress is conóerned with the admissibility of evidence of a judgment of another State. Neither is it necessary, as is suggested, to attach to the declaration copies of all the proceedings in the Tennessee courts. This suit is not upon the proceedings or upon any certificates of exemplification, hut upon the judgment.

It was not necessary for plaintiff in her declaration to allege jurisdiction of the courts of Tennessee. Rae v. Hulbert, 17 Ill. 572; Black on Judgments, section 875.

The substantial question presented has to do with the jurisdiction of defendants by the Tennessee courts. This issue was raised by appropriate pleadings in the case in the Circuit Court of Chester county, and there it was adjudged that the court had jurisdiction of the defendants. Defendants then sued out of the Civil Court of Appeals of Tennessee a writ of error seeking to revise and correct the judgment of the Circuit Court. Upon hearing, the Civil Court of Appeals considered a transcript of the record from the Circuit Court, which included the evidence, and rendered an opinion discussing at length the question of jurisdiction and affirming the judgment of the lower court and entered a judgment for plaintiff against the defendants. Subsequently the Supreme Court by its order found that the Circuit Court did have jurisdiction of the defendants, and ordered the writ of certiorari dismissed and entered judgment for costs. There can be no doubt that the question of jurisdiction was adjudicated in the Tennessee courts, on a writ of error sued out by themselves.

The claim of defendants is that regardless of this adjudication they may raise the same question whenever and wherever in any other State than Tennessee suit is brought on this judgment. After an examination of the cases cited in support of this claim, we have found none directly in point. The decisions cited by defendants have to do with cases where the court entering judgment assumed jurisdiction but did not expressly consider or pass upon the question of its jurisdiction, or where there is-aT mere recital in the judgment rendered by the_eourt of another State that it did have jurisdiction, and it was held in Forsyth v. Barnes, 228 Ill. 326, that this mere recital would not prevent the courts of another State from inquiring into the question of jurisdiction. Other of the decisions discuss the question whether a court of appellate jurisdiction is precluded from inquiring into the question of jurisdiction of the lower court by the fact that defendant may have filed a special appearance to contest the point of jurisdiction, and when defendant’s contention was overruled filed an answer to the merits of the case. Such a case is Harkness v. Hayde, 98 U. S. 476. The case before us manifestly does not fall within any of these classes, for we have here a case where the issue of the jurisdiction of the parties was raised and adjudicated after full hearing,—all of which appears from the proceedings in this case and not merely as a matter of recital As against the position of defendants we find a statement in 2 Black on Judgments, sec. 901, which meets with our approval:

“Before leaving this point it is necessary to remark that there is good authority for the proposition that if it appears affirmatively from the record of the judgment, and as a matter of adjudication, that the defendant had legal notice of the suit or duly authorized'an appearance to be entered for him, then he is no longer at liberty to allege a want of jurisdiction. The reason of this is obvious. In such a case, the question of jurisdiction would be one. of the grounds of defense to the original action, there set up and adjudicated, and ,~of course equally concluded with any other defense. And hence the principle which forbids a re-examina_tion of the merits of the controversy would apply.”

In accord with this is the decision in Van Matre v. Sankey, 148 Ill. 536, where the Court says, on page 553: “It having been determined, upon direct proceeding, by the court of last resort of the State in which the decree was rendered, that the court of common pleas had jurisdiction to enter the decree, we are required to give it full faith and credit. ’ ’ And in Chicago Title & Trust Co. v. National Storage Co., 260 Ill. 485, the Court, in discussing the adjudication of a jurisdictional question by another court, used the following language:

“An estoppel by verdict is but another branch of the doctrine of res judicata, and it rests upon the samé principle of - law,—that is, that a matter once litigated between parties to a final judgment in a court of competent jurisdiction cannot again be controverted. "When this doctrine is applied to a single question or point arising in the course -of litigation which has finally been adjudicated it is designated as an estoppel by verdict, and the same question or point cannot again be litigated between the same parties in the same or any other court at law or in chancery, and neither party, nor their privies, will be permitted to allege anything inconsistent with the finding upon that question. * * * The doctrine of estoppel by verdict applies to questions- arising upon an issue as to the jurisdiction of the court as fully and completely as to questions arising upon the trial of a cause upon its merits, and is not affected by the circumstance that the court may ultimately determine that it can go no farther.”

. Other cases holding to the same effect are Napier v. Gidiere (S. C.), 40 Am. Dec. 613; Waldo v. Waldo, 52 Mich. 94; In re Wrisley, 126 Mich. 109; McClure v. Paducah-Iron Co., 90 Mo. App. 567; Kinnier v. Kinnier, 45 N. Y. 535. The reasons given in support of the decisions in these cases seem to us conclusive against defendants’ contention, and we are of the opinion that the judgment of the Tennessee courts is res judicata upon the jurisdictional questions which were directly raised and adjudicated there, and that therefore it was not error for the court below to refuse to go into that question.

Other points made are without merit, and the judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Barnes

text:
    Corporation Service Company, Plaintiff in Error, v. Bolger, Mosser & Willaman, Defendant in Error.
    Gen. No. 19,538.
    (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 October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by the Corporation Service Company, a corporation, against Bolger, Mosser and Willaman, a corporation, to recover $126 claimed to have been earned under an agreement embodied in the following letter signed by defendant:

      “Chicago, III., July 29, 1912. “The Cobpobation Sebvice Co.,
    8 So. Dearborn St.,
    Chicago.
    Dear Sir:
    Confirming understanding with your Mr. Graham today, beg to state that we accept your proposition to represent us before the State Board of Equalization in the matter of our capital stock taxes for the year 1912, for which service we are to pay you 50% of what we may save under $252.
    Tours very truly,
    Bolger, Mosser & Willaman,
    By A. C. Heckler.”
    Pursuant to said letter, plaintiff, by its attorney, appeared twice before said State Board with reference to its fixing the assessment on defendant’s capital stock. In the meantime, the Supreme Court, in People v. Federal Securities Co., 255 Ill. 561, decided that the State Board of Equalization had no power to assess the capital stock of a corporation for mercantile purposes, but that the assessment should be made by local assessors. At a subsequent appearance before said Board, plaintiff’s attorney called its attention to said decision and to the fact that defendant was a corporation organized for mercantile purposes, and, because the Board did not assess defendant’s stock, plaintiff claims that it thereby saved defendant $252 and is entitled to fifty per cent, thereof. It appeared that in the previous year said Board assessed defendant’s stock and the tax levied thereon was $252. To reverse a judgment in favor of defendant, plaintiff brings error.
    Henry J. Gibbs, for plaintiff in error.
    A. C. Heckler, for defendant in error.
   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Contracts, § 309*—when performance does not constitute compliance. Where a corporation contracted for the services of a certain company in representing it before the State Board in the matter of its capital stock taxes for a certain year, for which services it agreed to pay a certain per cent, of the amount of tax saved under a certain sum, and subsequently the Supreme Court decided that the Board had no authority to assess the capital stock of mercantile corporations, which decision the Board followed, held that said company was not entitled to a percentage under the agreement, since the parties contemplated a tax would be levied on an assessment by the State Board, and that the action of the Board was the result of law rather than the company’s efforts, the company having made the value of its services contingent upon something it could not perform.


author: Mr. Presiding Justice Mr. Justice Gridley

text:
    The News Publishing Company, Defendant in Error, v. The Associated Press, Plaintiff in Error.
    Gen. No. 19,778.
    1. Newspapers, § 6

      —right to impose, discriminatory terms for news service. Under the Illinois law, in compelling a newspaper company to accept excessive .and unjust terms as a condition of obtaining news service is an actionable wrong.
    2. Appeal and error, § 1844*—conclusiveness of decision on former appeal. As to questions decided upon a former record as to a like statement of facts, the law declared in a former opinion of this court will be taken as the law in a review.
    3. Conflict of laws, § 12*—law governing legality of news service contracts. The wrong committed by a press association in requiring illegal exactions in a contract for news service becomes consummated at the time of the contract rather than at the time of the subsequent acts of payment or parting with property, so that the right of action, if any, is governed by the law of the place where the contract was made.
    4. Newspapers, § 6*—admissibility of evidence. In an action to recover damages for an alleged illegal discrimination and exaction growing out of the by-laws of a press association, where the contract was made without the State and not to be performed within the State, the exclusion of decisions of the lex loci is erroneous if the law therein stated was applicable and different from that of the forum.
    5. Conflict of laws, § 12

      —law governing legality of a news service contract. If a press association may in New York lawfully impose conditions in its news service contracts which in other jurisdictions are declared illegal and as unjustly discriminating, the mere act of entering into the contract or negotiating for such conditions, whether they be called requirements or exactions, cannot be deemed illegal or tortious in New York, as the alleged tort, if any, is founded upon a contract, valid where made, and there can be no cause of action in a State where it is neither made or to be performed.
    6. Newspapers, § 6*—scope of law against discriminatory exactions in giving news service. The law which prohibits those engaged in a business affected by a public interest from unjustly discriminating among those receiving news service is not a statutory enactment but a rule of the common law, and it is not local to the State or limited in its application to corporations, and cannot reasonably be invoked against a corporation where it would not be against others engaged in a business clothed with a public interest, unless there is something in its charter or the law under which it is incorporated that requires observance of such a distinction.
    7. Conflict of laws, § 1*—extent of application of doctrine of comity. While this State will not enforce by comity a contract made in a foreign State, or give effect to its laws, so as to defeat the public policy of this State, the rule is not applicable where a party to a contract made in a foreign State, not to be performed in this State, comes into the State not to enforce it but to effect a repudiation of it, as in such case he will be relegated to the laws where the contract was made or to be performed.
    Gridley, J., dissenting.
    Error to the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed December 22, 1914.
    Wilson, Moore & McIlvaine, for plaintiff in error; N. G. Moore, of counsel.
    Joseph L. McNab and Tappan Gregory, for defendant in error; S. S. Gregory, of counsel.

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

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

   Mr. Presiding Justice

Barnes delivered the opinion of the court.

This writ of error seeks to reverse a judgment entered ag’ainst the Associated Press (referred to as defendant) for $23,025.40, in an action on the case brought by the News Publishing Company (referred to as plaintiff), publisher of the Milwaukee Daily News, against said Associated Press, Victor F. Lawson, its president, and two of its directors, to recover damages for alleged unlawful exaction, based on the following state of facts:

On March 26, 1894, the News Publishing Company became á member of the United Press, a rival news agency of the Associated Press, and entered into a contract therewith for news service, which the latter” guarantied to furnish for the period of five years, and appended to the contract, virtually as a part thereof, was a written guaranty of performance of the obligations of the United Press under said agreement, purporting' to be signed for certain New York papers or their publishers, to wit: The Herald, The Tribune, The Sun and the New York Times Publishing Company. On March 31,1907, the United Press notified the plaintiff and its other members that its services would be discontinued after April 7th. Under the necessity of obtaining adequate news service from the latter date, the News Publishing Company, through its president, Melvin A. Hoyt, entered into negotiations with Lawson, as president of the Associated Press, in New York City, resulting in the following application:

“To the Board oe Directors,
Associated Press, New York.
Gentlemen :
I hereby make application for a “B” membership in the Associated Press on the following terms in behalf of the Daily News of Milwaukee, Wisconsin. A payment to the Associate (d) Press of Ten Thousand Dollars in cash or Five Thousand Dollars in cash and a note for Five Thousand Dollars running one year at 6% ii terest, secured by my contract at my option, which I will exercise within thirty days from date.
Yours respectfully,
M. A. Hoyt,
President, Hews Publishing Company.”
Hew York, April 6,1897.”

On April 7th said board of directors passed a resolution granting the application and directing that the name of plaintiff be placed on its membership roll with the proviso that the $10,000 be held in trust for distribution among its other members in Milwaukee. Under one of defendant’s by-laws plaintiff could not become a member without their consent, which, it was understood, the Associated Press would obtain, using said sum for that purpose. On the day the resolution was passed, the contract for service (on a basis of specified rates and tolls not complained of) was signed and went into effect, and plaintiff received defendant’s news service from that date. It was also required and agreed upon as a part of the transaction that plaintiff was to assign and surrender the “guaranties” aforesaid.

Acting upon the option provided for in said application, Hoyt, as president of the Hews Publishing Company, paid the $10,000 in cash to Lawson in Chicago on April 12th, the latter giving a receipt to plaintiff for “its payment for membership in the Associated Press for the use of the day report of the Milwaukee Daily Hews,” and at the same time delivering to Hoyt plaintiff’s copy of the written contract for service, which, as we construe the application, was to be held merely as security for the note in case plaintiff elected to give one in accordance with its provisions. When said contract for service was signed, the Hews Publishing Company, by another written instrument, assigned to the Associated Press ‘ ‘ all manner of action and actions, cause and causes of action, suits, debts,” etc., it might have by reason of its agreement with the United Press. When the $10,000 was paid to Lawson in Chicago, there was, at Lawson’s request, executed and substituted for said assignment a new instrument, differing from the first only by adding “or upon or by reason of the guaranty of the New York Herald, New York Tribune, New York Sun, and the New York Times Publishing Company, of the performance of the said agreement by the said United Press.” At the same time the so-called “guaranties” were surrendered. Both assignments were executed in the name of plaintiff by its president, Hoyt, the first in New York, the latter in Chicago. Both in New York and Chicago at the times of the respective transactions therein Hoyt protested against these requirements as conditions of plaintiff’s obtaining defendant’s service.

These are the main facts on which, from the point of view we take, our conclusion must rest. A more replete statement thereof is unnecessary, but will be found in News Pub. Co. v. Associated Press, 114 Ill. App. 241, where the judgment had in the first trial of the action was reversed because the court directed a verdict for the defendants instead of submitting the case to the jury. The record now before us is that of the second trial.

The gravamen of the action is an illegal exaction of an excessive and unlawful price as a condition for defendant’s services. The primary and, as we view it, decisive question is whether there was a cause of action in the State of Illinois. To decide it requires us to determine what were the particular acts constituting the tort charged and where they took place. As summarized in one part of the declaration, the actionable wrong is that defendant “required the said plaintiff, as a condition of such membership and of the obtaining of the said news service, not only to pay said sum of $10,-000, but to surrender or assign to the said defendant, the Associated Press, all its right under the said contracts with the United Press upon or by reason of the guaranties ’ ’ aforesaid.

In the former decision above referred to, this court held on like evidence in most respects that there was an actionable wrong (p. 252) • but the conclusion was reached upon application of the Illinois law. We there said that the basis of the action was “the wrong done appellant [News Publishing Company] at the time it was compelled to enter into the contract by reason of its necessities” ,(p."256); and that the contract was a New York contract to be performed in Milwaukee, and should be construed according to the law of New York (p. 253), but in the absence of proof thereof presumed it to be the same as in Illinois. But in the record before us there was proof presented on.that subject. Of course, as to the questions decided upon the former record as to a like state of facts, the law declared in the former opinion of this court must be taken as the law in this review. Novak v. Rochester German Ins. Co., 156 Ill. App. 352.

Plaintiff contends, however, that whatever the prior contract, and notwithstanding it had already gone into effect, not until the money was paid and guaranties surrendered in Chicago was the wrong actually consummated and the cause of action perfect, and that, therefore, the law of Illinois controls the.right of recovery. While plaintiff may not have suffered any actual damages until that time, yet the cause of action, if any, related back to the act from which they ensued, —the taking advantage of its necessities and compelling it to accept excessive and unjust terms as a condition of obtaining service. It was not the receipt of the unlawful price but the act of requiring and compelling it that was the essence of the wrong charged. In other words, the alleged wrong grew out of the contract, and not the act of payment or parting with property. This is in consonance with our former holding that the action was based upon the wrong done plaintiff “at the time it was compelled to enter into the contract by reason of its necessities.” In this connection we held that payment made under compulsion, though made subsequent thereto, could not be deemed voluntary so as to defeat a right of recovery, citing from West Virginia Transp. Co. v. Sweetzer, 25 W. Va. 434, where, in a suit brought to recover excessive freight charges, the Court said: “Nor should the fact that the freight had been delivered when the payment was made prevent such recovery. ” In a similar case (Conn v. Louisville & N. R. Co., 21 Ky. Law Rep. 469) it was held on the question of determining where the action growing out of a contract of shipment should be brought that the place where the contract was made or to-be performed, and not the place of paying the freight, was the controlling factor. If, therefore, we had not already so decided on the former appeal, we would nevertheless reach the conclusion that the alleged wrong to plaintiff was done in the State of New York; and whether the acts or transactions constituting it were tortious must be tested and controlled by the law of that State. Christiansen v. William Graver Tank Works, 223 Ill. 142,150; Mexican Cent. Ry. Co. v. Gehr, 66 Ill. App. 173, 192.

It is also in consonance with our former opinion to hold that the acts or thing constituting the alleged illegal exaction cannot be considered as separate and apart from the contract entered into. It was one transaction whereby plaintiff contracted for and obtained news service ■ from defendant, the consideration of which was the regular tolls or rates, and in addition thereto said sum of money and surrender of said guaranties. This, in fact, is the theory of the declaration. Whether these additional requirements, referred to as illegal exactions, were unlawful depends, therefore, upon said contract, which must, as said in the former appeal, be construed by the law of New York.

The illegality of said requirements is said to consist in this, that defendant was a quasi public corporation and as such bound not to exercise unjust discrimination in furnishing its news service. In this connection it should he borne in mind that the discrimination here charged grew out of the by-law aforesaid under which the alleged illegal exaction was made.

Bearing upon the question of the validity of said by-law and of the contract, defendant, upon the second trial, now under review, offered in evidence, as the law of New York governing .the transactions in question, the decision in Matthews v. Associated Press of New York, reported in 136 N. Y. 333. The decision was excluded by the court and not construed and applied as requested, and error is assigned upon such action. This was error if the law therein stated was applicable and different from that in our own State.

In holding that there was actionable wrong-, this court, in its former decision, applying to the transactions the law of this State, deemed the decision in Inter Ocean Pub. Co. v. Associated Press, 184 Ill. 438-449, as controlling (p. 251). In that case the Inter Ocean Publishing Company filed its bill for an injunction against the Associated Press to restrain it from suspending or expelling it from membership and from refusing to furnish it news under its contract, and from doing any act or thing to deprive it of the news gathered from other news agencies contrary to a certain by-law of the association which prohibited its members from purchasing news reports from other agencies. Such by-law was held to be null and void and beyond the power of the corporation to enact. In the New York case substantially the same questions were presented to the court. In that case also the plaintiffs were publishers of newspapers and members of the defendant Association, and sought the same relief upon an almost identical state of facts, involving the validity of a like by-law of the association prohibiting its members from receiving or publishing the news dispatches of any other, association covering a like territory, etc. The question before the court was whether said by-law was legal and enforceable, the contention being that the association had not the power to enact it. The power and by-law were upheld.

As to the state of facts and remedy sought, and also as to the character of the corporation sought to be enjoined, its objects and the nature of its business, the cases were alike and, therefore, presented for consideration and application the same questions of law. In the Inter Ocean case supra, the provisions of the bylaw were held invalid as tending to create a monopoly in favor of the association and to prevent its members from procuring news from others engaged in the same character of work. It was there held that the business of the association was so impressed with a public interest that it could make no unjust discrimination among its members in its service. But the New York court deemed similar provisions a reasonable restraint upon the members of the association, consistent with its object and the business it was specially organized and incorporated to transact, and while it held that the by-law did not tend to establish a monopoly, and was not otherwise repugnant to the law of New York, it did not specifically discuss whether or not such association was a quasi public corporation, or whether, if so, such by-law operated to discriminate unjustly among its members; but, if it was an institution of that character, the court, under the law of that State, could take judicial notice thereof. Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31-34. At any rate, if such question was involved in the Inter Ocean case, supra, it would seem that upon a like proceeding and state of facts it was also involved in the Matthews case, supra. We cannot properly assume that in reaching its decision the New York court did not take into consideration the nature of the business of the Associated Press, or that it would not have reached the same conclusion had the question of public interest been specially pressed upon its attention. We can only infer that in passing on the validity of the by-law it conjsidered' the nature of the business and character of the corporation before it, whose corporate objects and business were expressly alluded to in its decision. 1 If, therefore, such an "association 'may- in New York lawfully impose conditions in its' service1 contracts, which are elsewhere classified as unjustly discriminating, then the mere act of entering into the contract or negotiating for such conditions, whether they be called requirements or exactions,: cannot be deemed illegal or tortious in New York. The alleged tort. is, in fact, founded on the contract. If the latter was legal,, as it would seem to be in New York, where" made,' then there -was no tort there, and no cause of action here.

■ The' contention made here that the by-law in question, was unjustly discriminating in its effect, was also made against the by-law in the Inter Ocean case. But if "the by-law in the Inter Ocean case was nevertheless .enforceable in' New York, then by parity of reasoning the by-law here involved, being of the same character, would be enforceable there. We recognize, however, "that " the case at bar cannot be said to rest entirely upon the question whether the by-law in question was enforceable. While the requirement "of $10,000 was in pursuance thereof, that can hardly be said of the assignment or surrender of the guaranties. However, if on principle the association might lawfully require said sum as consideration for membership and entering into a contract for service, we see no reason why .it might not also require such assignments.

• It is also contended by plaintiff that the contract .was not completed until the transactions took place in -Chicago, namely, the payment of $10,000, the assignment and delivery of the guaranties and the delivery of plaintiff’s copy of the contract. In holding that the •alleged tort took place in New York, we have practically considered and disposed of this contention. •Neither the application for membership nor the agreement .or. consent, to' assign and surrender the guaranties are to be viewed in the light of a separate agreement, but, as before stated, each is a part of one transaction. The payment of the one and the performance of the other were, as before stated, in reality but conditions of the contract of service and part of the consideration therefor. The only object of membership was to get the contract. After it went into effect, plaintiff paid part of the consideration agreed upon through such transactions. The application, in effect, provided for subsequent payment of the $10,000, by giving an option to be exercised in thirty days as to the mode of payment. If plaintiff elected to give a note as therein provided for, then the contract was to be held as security for its payment. Having elected to pay all cash, the contract, or its copy thereof, was delivered to it. The new assignment was practically a mere substitution, without material modification, of the one executed and delivered in New York, and we fail to see that plaintiff, after said assignment, parted with any additional right by surrendering the original contracts or guaranties. In any event, the things done in Chicago are important here only as performances in •the nature of making a deferred payment of part of the consideration for the real thing contracted for, and which plaintiff had already begun to receive,—news service from defendant.

To sustain a different construction, plaintiff’s counsel refer to certain conversations which Hoyt claims he had with Lawson during the negotiations for the contract of service. But it is plain that they could not be received to vary the terms of the written instruments into which they were merged.

But it is contended by plaintiff’s counsel that whatever the law may be in New York governing the subject, yet defendant being a corporation whose business is clothed with a public interest and being incorporated in this State, it carried into New York the same limitations as in Illinois in respect to its obligations to deal with all-alike and without discrimination. In support of this contention it is argued1 that the general laws of the State are in effect the charter of a corporation organized under them,” and the charter being limited and modified thereby the corporation is subject to such limitations when it goes into another jurisdiction, and, therefore, cannot there enter into a contract that contravenes the general law or local policy of the State of its creation. But in Warren v. First Nat. Bank of Columbus, 149 Ill. 9, it was said (p. 25):

‘ ‘ The general laws and regulations of a State are intended to govern only within the limits of the State enacting them, and the State can have no power to give them extra-territorial force. Such provisions do not, as a rule, enter into contracts made within the State, if they are to be performed in another jurisdiction. It follows, therefore, that where a State statute is enacted for the enforcement of a local policy only, it will not be presumed that such statutory provision was intended by the State, or by the shareholders forming the corporation, to enter into the charter contract, and to regulate the company in its transactions outside of the State, and it will not affect the validity of the dealings of the company in foreign States. ’ ’

We think this decision is conclusive of the question thus raised. We have carefully examined the authorities cited on this point by plaintiff but do not think they sustain its position or are at variance with the law as above stated. They go no further than to state the familiar proposition that where a corporation' is formed under the general incorporation law, that law must be regarded as entering into and forming a part of its charter. But there is no express provision in the incorporation laws of this State or our statutes that imposes any special limitation upon corporations in relation to this matter, or that creates or indicates any local policy of this State in regard thereto. As said in Raisor v. Chicago & A. Ry. Co., 215 Ill. 47: “In order to ascertain the policy of the State in respect to any matter, the acts of the legislative department must be looked to. It is not within the province of the courts to create public policy. Their province is limited to declaring it when ascertained.” See also Dougherty v. American McKenna Process Co., 255 Ill. 369, and Carroll v. City of East St. Louis, 67 Ill. 568.

But the law which prohibits those engaged in a business affected with a public interest from unjustly discriminating among those receiving their service is not a statutory enactment but a rule of common law. It is not local to this State, nor limited in its application to corporations. It cannot reasonably be invoked against a corporation where it would not be against others engaged in a business clothed with a public interest, unless there is something in its charter or the law under which it is incorporated that requires observance of such a distinction.

To be sure, it is settled law of this State that it will not, by comity, enforce here contracts made in a foreign State, or give effect to its laws, so as to defeat the public policy of this State. But that question is not presented on this record; It might be if the Associated Press were seeking to enforce against plaintiff the terms of the contract that are said to contravene our laws. The situation here, however, is entirely different. It is one in which a party to a contract made in a foreign State, not to be performed here, comes into this State, not to enforce said contract but to effect a repudiation of it. In such a case he will be relegated to the laws of the State where the contract was made or was to be performed. As said in Northern Pac. R. Co. v. Babcock, 154 U. S. 190, quoting from a decision of the Minnesota State court:

“Every day our courts are enforcing rights under foreign contracts where the lex loci contractus and the lex fori are altogether different, and yet we construe these contracts and enforce rights under them according to their force and effect under the laws of the State where made. To justify a court in refusing to enforce a right of action which accrued under the law of another State, because against the policy of our laws, it must appear that it is against good morals or natural justice, or that, for some other such reason, the enforcement of it would be prejudicial to the general interests of our own citizens.”

. This contract was not one which could be said to be against good morals or natural justice or one which in anywise affected the status of the defendant -corporation in this State, where it was created, or its relation to any citizen of this State, and no question is here raised, or properly can be on this record, that the execution of the contract in the State of New- York was for the purpose of evading the law of this State.

We are compelled to hold, therefore, that tested by the New York law, which must control, there was-no actionable wrong and, therefore, no cause of action here, .and- that the, jury should have been instructed to render a verdict for defendant as requested. As, therefore, a reversal must necessarily follow, we refrain .from discussing other questions raised .on the record that might otherwise be deemed important.

Reversed.

Mr. Justice Gridley

dissenting. I am of the opinion that the -judgment against the defendant, The Associated Press, should be affirmed. -


author: Mr. Presiding Justice

text:
    The News Publishing Company, Appellant, v. Associated Press of Illinois et al., (Defendants), Victor F. Lawson, Appellee*
    Gen. No. 19,764.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowi.es, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.

      Abstract of the Decision.
    1. Torts, § 32

      —where judgment may be entered against one or more. Where the declaration is not predicated upon the theory of principal and agent, but avers joint liability, under such an averment in a tort case one or more of the defendants may be found guilty or not- guilty.- ■
    2. Newspapers, § 6*—evidence insufficient to show illegal exaction for news service. In an action to recover damages for an alleged unlawful exaction in a contract for news service,: evidence held insufficient to support a verdict for the plaintiff irrespective of the court’s finding that no cause of action existed in reviewing the record on a writ of error sued out by a defendant.
    Gridley, J., concurring specially.
    Statement of the Case.
    . Action by the News Publishing Company a corporation, against the Associated Press of Illinois, Victor F. Lawson, its president, and two directors to recover an alleged unlawful- exaction under a contract for news service. From a" verdict and judgment in favor of defendant Lawson and against his codefendant, the Associated Press, the plaintiff appeals.
    Plaintiff contended that defendant Lawson was the agent of the Associated Press in an illegal transaction, and equally guilty with it, and if the verdict was correct as to the Associated Press, it was inconsistent and wrong as to Lawson.
    Joseph L. McNab and Tappan Gregory, for appellant; S. S. Gregory, of counsel.
    Calhoun, Lyford & Sheean, for appellee.

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

   Mr. Presiding Justice

Barnes delivered the opinion of the court.


text:
    August J. Austerlade, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,958.
    1. Street railroads, § 85

      —care required in case of frightened team. The operator of a street car is under a duty to exercise reasonable and ordinary care under the circumstances to avoid the danger of frightening horses, and a street railway company is liable if the fright of a horse or team is caused by the making of unusual and unnecessary noises, or appearances, in the operation of its cars.
    2. Street railroads, § 85*—sufficiency of evidence to establish liability for frightening animals. Where ■ plaintiff’s intestate’s decease was due to his being thrown against and under a sweeper street car, while attempting to hold his team while standing in front of them, the evidence is held to show that the motorman might reasonably have anticipated danger from the frightened horses unless he reduced the speed of or stopped the car, and that if he did not actually observe their condition, he should have done so in time so as to avoid such danger.
    3. Trial, § 233*—when pleadings may be taken by the jury. While it is the better practice not to allow the declaration to be taken by the jury while endeavoring to reach a verdict, yet it is not reversible error to so allow.
    Appeal from the Circuit Court of Cook county; the Hon. John A. Dowd all, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed December 22, 1914.
    Charles LeRoy Brown, for appellant; Leonard A. Busby, James G. Condon and Warner H. Robinson, of counsel.
    Quin O’Brien, for appellee; Munson T. Case, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

This appeal is from a judgment recovered by appellee on account of the death of appellee’s intestate, one Kroessin, alleged to have been caused by the negligence of appellant in running a snow sweeper under circumstances that caused the fright of a team of horses standing near the- street curb and a consequent movement by them whereby said Kroessin, who was endeavoring to hold and govern them, was thrown on the car tracks in front of the sweeper, causing injuries from which he died.

We shall refer to appellee and appellant as plaintiff and defendant respectively.

The declaration is in four counts. The first two are predicated upon negligence by defendant’s servant in continuing to run the snow sweeper at a high and dangerous rate of speed and with great noise towards and close to the team of horses when said defendant knew they were there, and that on account of the appearance of the snow sweeper and its noise when run, particularly at a high rate of speed, it was apt to scare horses. The first count contains the allegation that such running of the car was without warning (which was not essential to the cause of action, nor, in our opinion, sustained by the proof), and the second count charges that the servant knew, or in the exercise of reasonable care would have known, that the team was frightened and that said Kroessin was endeavoring to calm and hold them, but that, without waiting for them to he calmed and brought under control, continued to run the sweeper as aforesaid, knowing it was extremely dangerous so to do under such circumstances.

The third count is predicated upon the claim that the motorman knew, or in the exercise of reasonable care would have known, that plaintiff’s intestate was thrown to the track in a position of peril in time for him to have stopped the car and avoided the accident. The fourth count is based upon the claim of wilful and wanton negligence. We do not think the evidence is sufficient to sustain either of the last two counts.

The accident took place on Wentworth avenue in the city of Chicago, a street running north and south, between 72nd and 73rd streets, about 160 feet south of 72nd and opposite a house on the west side of Wentworth avenue known as No. 7216. Said Kroessin and his colaborer, Schibille, were engaged in delivering a stove at said house. Kroessin was the driver of the team. He had driven and stopped it alongside of the curb in front of the house with the horses facing north. Their tugs had been unloosened and the two men were engaged about their work when the sweeper approached from the north on the west tracks of the street. The sweeper, or car, in question differed in appearance from an ordinary car, mainly in the parts below the flooring, which was higher above the street than that of an ordinary car. There was a broom under each end placed diagonally across the bottom of the car, but not then in motion, and along the ends and part of the sides of which were canvass curtains with certain devices for fastening them a few inches above the rails.

On the occasion in question, in April, 1910, the sweeper, under the guidance of a motorman, was being taken to. a bam for the purpose of storage. The evidence .shows that it was going from eight to ten miles an hour, and produced an unusual noise (at least noticeably different from the.ordinary street car), due to its peculiar structure or rattling of its parts, or the flapping of the curtains, or all of these. Plaintiff’s witnesses laid much stress on the flapping of the curtains. Defendant, however, contended that they were securely fastened so as to prevent it. There was controversy as to whether the gong was continuously ringing.

Whatever may have been the facts with regard to these and other controverted questions of fact, the evidenee clearly shows that as the car crossed or left 72nd street, the horses became noticeably nervous and excited, raising, tossing and shaking their heads and quivering and moving about on their feet in a manner that indicated a serious state of fright. Their actions were observed not only by others, but by the motorinañ and his companion, and while the witnesses, as usual, varied somewhat in their descriptions, yet the entire testimony produces the conviction that their actions were such as gave the' motorman timely warning of impending danger. He claimed that another sweeper passed them shortly before his did, that he observed their uneasiness then, but that they calmed down after it passed and did not indicate serious fright at the approach of his car. There was some controversy over the fact as to whéther another sweeper did pass the horses. But, while that was one of the questions of fact for the jury, we think its importance is unduly-magnified, for it would not necessarily follow that the second car could pass them without causing serious fright because the first did, when indications were to the contrary. The important fact was'whether their actions were such as to indicate such serious fright as called for slowing or stopping the car before they were reached.

It appears that Kroessin, observing their freight, left the sidewalk or parkway near the curb, took hold of their reins near the bits and tried to hold and calm the horses as the sweeper in question approached; that the horses became more violent in their actions, and just about the time the car reached them, swung towards the car around to the side of the wagon, and in that movement threw Kroessin on the tracks immediately in front of the car or directly under the fore part of it; that the motorman, unaware of the accident, drove the car on until a cry on the street caused bim to stop it about 170 feet farther south, and that Kroessin was there taken out from underneath it so injured that he died. We think there is a manifest preponderance of evidence that the cause of the fright was the combination of unusual noise and appearance of the car approaching with unslackened speed; that Kroessin stood in front of the horses, vainly trying to hold and calm them while the car was still many feet away; and that just before it reached them, they suddenly swerved, hurling him just in front of, instead of under the car; that the motorman saw, or could have seen by the exercise of reasonable care, that the horses were frightened at and becoming more violent by reason of the approach of his car; and that the state of facts was such as made it his duty to reduce the speed of the car or stop it altogether, if necessary, to enable the horses to be brought under such control that either they or the car could be moved without danger to life or property. There was no emergency or public requirement that rendered it impracticable to slow or stop the car. To have done so would not have interfered with either the public or defendant’s convenience or interest. We think the evidence shows that the degree of the horses’ fright was such that the motorman might reasonably have anticipated danger therefrom unless he reduced the speed of or stopped the car, and that if he did not actually observe their condition, he should have done so in time to control the car so as to avoid such danger.

Many decisions are cited on both sides bearing upon accidents of this character, where horses were frightened by approaching or passing street cars, but it would unduly prolong this opinion and subserve no particular purpose to analyze them. The facts vary in each case and the cases frequently turn on peculiar circumstances, or some material fact not present in the others. There is little, if any conflict, however, about the law pertaining to the nature or extent of the duty street ear companies owe to those driving or using horses in the streets. The law applicable to this state of facts is fairly summarized in the following language: “A motorman of an electric car, who sees a horse which appears to be restless or refractory, must manage the car in such a way as to relieve the traveler from his dilemma.” 2 Nellis on Street Railways, sec. 395, (2nd Ed.); see also 2 Joyce on Electric Law (2nd Ed.) sec. 597. “It is the duty of the operator of a car to exercise reasonable and ordinary care under the circumstances to avoid the danger of frightening horses, and hence the company will be liable if the fright of a horse or team is caused by the negligent making of unusual and unnecessary noises, or appearances, in the operation of its cars.” 36 Cyc. pp. 1488, 1489.

The duty of the street car company and its motorman has been so often set forth in decisions involving similar facts, and with such unanimity, that it is hardly necessary to refer to them. As said in a similar case (Doran v. Cedar Rapids & M. C. Ry. Co.,117 Iowa 442): “The rule requiring the motorman of an electric car to do what he reasonably can to avoid a danger which is reasonably apparent seems to us too elementary to require elaborate citation of authorities. It would certainly not be necessary in all cases that the car be stopped as soon as it is evident that animals on the highway have become uneasy and even frightened, but it certainly is his duty to take reasonable steps by way of reducing the speed of the car to avoid an injury which he may anticipate as likely to result from the frightened condition of animals on the street.” While in the case at bar the motorman claimed that he did reduce his speed, yet there was evidence tending to show that he did not do so, at least as soon as he should have done, and, of course, the question of what steps should be taken in the exercise of reasonable care in such a case by the motorman to avoid an accident is for the jury. 27 Am. & Eng. Encyc. of Law (2nd Ed.) 92; Oates v. Metropolitan St. Ry. Co., 168 Mo. 535; Flewelling v. Lewiston & A. Horse R. Co., 89 Me. 585; Cameron v. Jersey City H. & P. St. Ry. Co., 70 N. J. Law, 633; Lightcap v. Philadelphia Traction Co., 60 Fed. 212; McCann v. Consolidated Traction Co., 59 N. J. L. 481; Springfield Consol. Ry. Co. v. Ankrom, 93 Ill. App. 655; Richter v. Cicero & P. St. Ry. Co., 70 Ill. App. 196; Freyer v. Aurora, E. & C. Ry. Co., 123 Ill. App. 423. We are disposed to accept the verdict of the jury as decisive of the facts in this case, and think there was sufficient evidence to justify them in concluding that the motorman saw, or ought to have seen in time to avert any danger, that the horses were unduly frightened at his car and were likely to become unmanageable, and that he was negligent in not slackening the speed or stopping the car before he reached them. He had timely notice of their condition and, under the circumstances, should have anticipated the danger.

It is urged that the court erred in not eliminating the third and fourth counts from consideration by the jury. While we do not think there was sufficient evidence to base a verdict thereon, it cannot be said that there was no evidence tending to support them. For that reason there was no error in refusing defendant’s instructions directed against them, or in sending the declaration to the jury because it contained such counts. While, as has been stated by our Supreme Court, it is the better practice not to allow the declaration to be taken by the jury while considering upon the verdict, yet it is not reversible error to allow it. (Hanchett v. Haas, 219 Ill. 546), unless possibly when it contains prejudicial counts which have previously been eliminated, which is not the case here. Elgin, A. & S. Traction Co. v. Wilson, 217 Ill. 47; Chicago City Ry. Co. v. Reddick, 139 Ill. App. 161.

Error is alleged in refusing the following instruction requested by defendant:

“4. If you believe from the evidence that the deceased ran out and grabbed the horses and thereby frightened them so as to cause them to swing around and throw him into the path of the car, and that the deceased in so doing failed to exercise ordinary care for his own safety, and if you further believe from the evidence that the accident in question would not have resulted but for the conduct and action of the deceased in so doing (if from the evidence you believe he so did), then you are instructed that the deceased was guilty of contributory negligence, and in such event the plaintiff cannot recover, even if you believe that the defendant or its servants were also guilty of negligence as charged in the declaration or some count thereof.”

Other instructions were given stating that plaintiff could not recover if deceased was not in the exercise of ordinary care. But it is claimed that defendant was entitled to this concrete application of its theory that deceased was guilty of contributory negligence in running towards the horses. The great preponderance of the evidence is that the deceased had reached the horses’ heads and was holding them by the reins before the car got there and before they swerved. The evidence is so extremely slight and dubious on which this tendered instruction was predicated, that had it been the basis of an independent suit, no court would have permitted it to go to the jury. While we are aware that not quantity but quality of evidence furnishes the basis for such an instruction, when its quality is so weak that it will not reasonably support the theory on which an instruction is tendered, it is pressing the contention beyond reason to hold that the refusal of such an instruction is necessarily reversible error. In our opinion the evidence did not justify such a theory or such instruction. It is predicated upon the probable sudden movement of the deceased to grasp the horses before they could run away, in which act itself there was nothing to indicate negligence, but, on the contrary, commendable diligence and care, and on the conjecture rather than legitimate inference that otherwise the horses would necessarily have swerved towards the sidewalk instead of the street. The evidence is so preponderant and convincing that the deceased had reached the horses and was standing in front of them, holding them before they swerved, and that their movement was the culmination of a fright that began with the appearance of the car and continued, increasing in degree, until just before the car got to them, that it is impossible to believe that a jury could have given any such significance to the evidence of two of defendant’s witnesses that deceased “ran” towards the horses that defendant now seeks to give it. To say that horses, quivering and swaying with excitement and shaking and raising their heads towards a strange object with flapping curtains coming rapidly towards them, would all at once forget the object of their fright and jump towards it because their own driver hurriedly caught them by the bits, presents too large a draft upon the imagination of one who knows anything about horses. The use of the word “ran” by these two witnesses who testified in behalf of defendant was not supplemented by any other testimony that indicated that the horses were frightened by deceased. One of these witnesses, who was riding on a car coming from the south, said: “My attention was first directed to the team because I saw them getting frightened at the sweeper. When they got frightened they started to turn right toward the sweeper, toward the track the sweeper was on.” The other witness stood beside the motorman and said the deceased “ran” towards the heads of the horses, but he did not see bim get hold of their heads. The motorman, testifying for defendant, said: “He moved- slowly and walked up to them. ’ ’ Another of defendant’s witnesses said: “He caught hold of ,the reins under the horses’ neck. While he was dong this, the sweeper was coming along at the same rate of speed.” • Plaintiff’s two witnesses testified that he was holding the horses by the head and when the car got to within fifteen to twenty-five feet, they swerved around. There was virtually no difference in theory as to the cause of fright. All of defendant’s own witnesses describe the horses as in a state of fright at the approaching car. Defendant’s claim rests upon a mere scintilla of evidence and not on evidence that reasonably tends to support its theory. In that state of the testimony, we are not disposed to regard the refusal of such instruction as reversible error. But, if there was any ground whatever justifying submission of either the third or fourth count to the jury, then that instruction, without qualification was improper.

Error is also urged to the giving of the following instruction:

“8. The court instructs the jury that the law only required the deceased, Richard Kroessin, to exercise ordinary care for his own safety at and before the time he received the injury, and what is ordinary care depends upon the circumstances of each particular case, and is such care as a person of ordinary prudence would usually exercise under the same or similar circumstances.”

In criticism of this instruction, it is said that it assumes a person of ordinary prudence would have permitted himself to be surrounded by circumstances similar to those permitted by deceased, and was prejudicial in that it diverted the jury’s attention from defendant’s contentions that the deceased was contributo rily negligent, (1) in facing the horses with their left instead of their right sides towards the curb on that side of the street contrary to a city ordinance; and (2) in getting into the situation occupied by him at and before the time he received the injury. It expressly refers to the exercise of care “at and before the time he received the injury,” and we do not think it was calculated to mislead the jury in other respects. In fact, one of defendant’s own instructions on the same matter is equally subject to the same criticism. We think the judgment should be affirmed.

Affirmed.


text:
    Racine Lumber & Manufacturing Company, Defendant in Error, v. G. W. White Lumber Company, Plaintiff in Error.
    Gen. No. 19,999.
    1. Corporations, § 754

      —where service is ineffective to confer jurisdiction. Where a contract with a nonresident plaintiff corporation was made and performed without the State and service was had upon a nonresident defendant corporation after it had ceased to do business in the State and had withdrawn and revoked the authority of its resident agent to be served, service of process upon such agent fails to give the court jurisdiction to render a valid judgment against the defendant nonresident corporation.
    2. Contracts, § 236*—determination of place of execution and performance. Where a contract was entered into through correspondence with defendant at its home office in another State and the correspondence with the local office was after the contract sued on was made and accepted, and it was admitted that the original order was made from a second State by mail sent to the home office, accepted and returned, and the subject-matter of the contract was shipped from the home office, but the correspondence in regard to the filling of the order was with the local office, held that the contract was made and to be performed without the State of the local office.
    Error from the Municipal Court of Chicago; the Hon. Oscar M. •Tobrison, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded with directions.
    Opinion filed December 22, 1914.
    Pam & Hurd, for plaintiff in error; Burrell J. Cramer, of counsel.
    Musgrave, Oppenheim & Lee, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

We shall designate the parties as known in the court .below.

The question presented by this writ of error is whether jurisdiction was obtained of defendant against whom judgment was taken by default. Later defendant, specially appearing for such purpose, moved the court to vacate the judgment and quash the return of service. Both parties were nonresident corporations, plaintiff having been incorporated in Wisconsin and defendant in Indiana. The return showed service on one McChesney, vice-president of defendant, April'23,1913. Defendant was licensed to do business in this State the year before, and, pursuant to the provisions of our statute relating thereto, designated said McChesney as the person on whom service could be had in all suits commenced in this State, but it discontinued its Chicago office at the end of 1912. On March 13th, its Illinois license was cancelled. On April 17th, McChesney ceased to be vice:president. His services as local agent for the defendant in Illinois ceased about the time of the discontinuance of the Chicago office. Action was formally taken by the stockholders of the company January 10, 1913, ratifying such discontinuance.

The question arises, therefore, whether under such circumstances the revocation of the agent’s authority rendered the service on him ineffectual. As to where the contract sued on was made, counsel before us disagree. But we think "an admission of counsel for plaintiff removes any doubt on that subject. The record shows that after counsel for defendant contended that the contract was entered into through correspondence with defendant at its home office in Indiana and that the correspondence with the local office in Chicago was after the order sued on was made and accepted, counsel for plaintiff admitted that the original order was made by plaintiff “at Racine, Wisconsin, forwarded in the mails, sent to Spencer, Indiana, accepted by mail and returned to Racine,” but added, “that in regard to the filling of the order, the lumber was shipped from Indiana, but the correspondence was with the Chicago office.” The correspondence referred to was not put in evidence, and plaintiff now claims that the last part of the admission shows that the transaction sued on was in the State of Illinois. We cannot agree with this contention. The admission clearly shows that the contract was made and was to be performed outside of the State of Illinois, and that correspondence was had thereafter relating to carrying out the contract. That being the case, the authorities relied upon by plaintiff are not applicable. They do not relate to a state of facts like those at bar where it appears that the transaction did not take place in or with a citizen of the State in which jurisdiction of the court was sought.

The purpose of statutes requiring foreign corporations to appoint persons upon whom service may be had is important in this connection. It is succinctly stated in Mutual Reserve Fund Life Ass’n v. Phelps, 190 U. S. on page 158, as follows: ‘ ‘ This and other kindred statutes enacted in various States indicate the purpose of the State that foreign corporations engaging in business within its limits shall submit the controversies growing out of that business to its courts, and not compel a citizen having such a controversy to seek for the purpose of enforcing his claims the State in which the corporation has its home.”

This case is cited by defendant. But there the defendant, a foreign corporation, was still doing business in the State although its license so to do had been revoked, the plaintiff was a citizen of the State, and the cause of action arose out of transactions between the parties while the defendant was carrying on business in the State under a license from it. Under such circumstances service on the person authorized to receive it prior to revocation of the license was deemed good.

We think the question here involved, however, is settled by the decisions in the case of Hunter v. Mutual Reserve Life Ins. Co., 184 N. Y. 136, affirmed in 218 U. S. 573. That was a suit brought in New York by a resident of North Carolina upon judgments obtained in the latter State against said insurance company which was organized under the laws of the State of New York. The service on which such judgments were procured was made on the statutory agent after the company had ceased to do business in North Carolina, had withdrawn from the State and had revoked the authority given by it for such service. These judgments were based on five insurance policies issued by the insurance company,—one to a resident in North Carolina while it was doing business there and the others to residents of New York and New Jersey, who long after defendant had attempted to withdraw from business in North Carolina, assigned their claims to residents of that State. The judgment on the policy issued to the resident of North Carolina was not questioned, but the judgments on the other policies were held to have been obtained without jurisdiction. Referring to statutes relative to obtaining service on foreign corporations, the Court said that they “have always been regarded as primarily designed for the protection of citizens of the State enacting the legislation and who might acquire rights under contracts executed with them or for their benefit while they were such citizens.” As to the insurance company’s right to revoke the authority for service upon it in North Carolina, the Court said that citizens of that State, who had taken contracts from the defendant while it was doing business there in reliance upon the power of attorney authorizing such service, were entitled to have it remain unrevoked because they were regarded as having made contracts upon the faith of it, but that the assignee of the claims or contracts growing out of the New York and New Jersey policies occupied no such position; that they were not of the class for whose protection the authority for service was originally executed. The decision of the United States Supreme Court, after a thorough review of several cases relating to this subject (many of them cited here by defendant in error), and the distinctions to be drawn between them, sustains the reasoning of the New York court. Here no citizen of this State is interested. The contract was entered into and to be performed outside of this State and between nonresident parties. Under ■such circumstances the authority was revocable and no jurisdiction of the court was obtained by such service, .as McChesney was no longer its agent for service or an officer of the company. The court, therefore, erred in overruling the motion to vacate the judgment and quash the return of the summons. The judgment' will be reversed and the "cause remanded with directions to grant such'motion.

Reversed and remanded with directions.


text:
    H. S. Richardson Coal Company, Plaintiff in Error, v. Anton J. Cermak and William Hereley Company, Defendants in Error.
    Gen. No. 20,021.
    I. Fraudulent conveyances, § 15—scope of Bulk Sales Act. The Bulk Sales Act (Hurd’s R. S. 1913, ch. 38a, 4, 5,) relates to a business or trade where, in the ordinary course and regular prosecution thereof, the goods or chattels are not ordinarily and regularly sold by the owner in bulk.
    2. Fraudulent conveyances, § 15*—scope of Bulk Sales Act. The Bulk Sales Act (Hurd’s R. S. 1913, ch. 38a, Ifli 4, 5,) is held not to apply to a sale of a team of horses, including harness and wagon, used personally by the vendor in hauling coal for others at a compensation of so much per ton.
    3. Fraudulent conveyances, § 15

      —property not affected by Bulk Sales Act. The Bulk Sales Act (Hurd’s' R. S. 1913, ch. 38a, W 4, 5) does not contemplate that one called upon to render personal services cannot sell chattels, goods or things appurtenant thereto unless its conditions are complied with.
    4. Fraudulent conveyances, § 15*—property excluded from operation of Bulk Sales Act. Where the vendee of a team of horses and harness and wagon replevined them when levied upon as the property of the vendor, the sale of such property was not void for want of the statement and notices as required by Hurd’s R. S. 1913, ch. 38a,. W 4, 5.
    Error to the Municipal Court of Chicago; the Hon. John K. Prindiville, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed.
    Opinion filed December 22, 1914,
    Rehearing denied January 5, 1915.
    Henry D. Coghlan, for plaintiff in error.
    Levisohn & Levisohn, for defendants in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

The only question presented on the record is one of law, whether what is known as the Bulk Sales Act of 1913 (Hurd’s B. S. 1913, p. 906, ch. 38a, |[|[ 4, 5,) applies to a sale of a double team of horses, including harness and wagon, which the vendor had been personally using to haul coal for others at a compensation of so much per ton.

The case was a replevin' suit, tried before the court without a jury, and the court refused to hold as law a proposition submitted by plaintiff to the effect that said act does not apply to such a sale or transfer, and gave judgment for defendant. We think the court erred.

The act renders fraudulent and void as against the creditors of a vendor, unless the vendee complies with certain conditions therein named, “the sale,' transfer or assignment in bulk of the major part or the whole of a stock of merchandise, or merchandise and fixtures or other goods and chattels of the vendor’s business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the vendor’s business” and was construed in G. S. Johnson Co. v. Beloosky, 263 Ill. 363, as prohibiting the sale of any goods and chattels in bulk otherwise than “in the ordinary course of trade in the regular prosecution of business,” and it must be presumed, we think, to relate to a business or trade where, in the ordinary course and regular prosecution thereof, the goods or chattels, whatever they might consist of, are not ordinarily and regularly sold by the owner in bulk.

But here the vendor was working for wages, and under the Act of June 21st, in force July 1, 1895, (Hurd’s E. S. 1913, p. 1246) the services of his team may be included in a judgment for wages, where it is necessary to the performance of his labor. Manifestly the act did not contemplate that one called on to render personal services cannot sell the chattels, goods or things that are appurtenant thereto unless the conditions imposed by said act are complied with. Otherwise a lawyer could not sell his library, a surgeon his instruments, a broker his office furniture, or a carpenter his tools, without compliance with such conditions. If such were the proper interpretation of the act, we could hardly imagine a more burdensome restriction upon one’s property rights.

The sale was not void for want of the statement and notices required by the act, but with delivery of possession passed title to the replevined property to plaintiff in error, the vendee, from whom it was taken by defendants in error on an execution levied against the property of the vendor. As plair tiff in error still retains possession of the property, "he judgment below will be reversed and judgment will be entered here in its favor.

Reversed.


text:
    City of Chicago, Defendant in Error, v. John Niesdesmialek, Plaintiff in Error.
    Gen. No. 20,045.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, % 26

      —insufficiency of statement of facts. A “statement of facts” consisting of a mere narrative of witnesses’ testimony, or its substance, will be stricken from the record upon motion, since such a document does not meet the requirement of the Municipal Court Act, § 23; If 6, (Hurd’s R. S. 1913, ch. 37, § 286, J. & A. T 3335), and assignments of error based entirely upon such a document cannot be considered on appeal.
    Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by the City of Chicago against John Niesdesmialek. From a judgment in favor of the plaintiff defendant brings error.
    A. S. Lakey, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Albert J. W. Appell, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Ludwig A. D. Gathemann, Plaintiff in Error, v. Samuel Rosenfeld, Defendant in Error.
    Gen. No. 20,115.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 257

      —necessary allegations. In an action by a tenant for damages caused by gaseous fumes, an allegation that the tenant did not know the danger of using a water heater does not show that the tenant had a right to rely on the existence of a vent pipe or connection therewith, and states nothing for which the landlord was responsible.
    Error to the Superior Court of Cook county; the Hon. Ciabence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Lndwig A. D. Gathemann against Samuel' Eosenfeld to recover damages resulting from the presence of gaseous fumes in a bathroom of demised premises from the use of a gas' water heater without a proper vent pipe connection. The plaintiff was a tenant of defendant. Plaintiff’s demurrer to defendant’s plea of the statute of limitations was overruled and upon his electing to stand by his demurrer, judgment was entered for defendant. Plaintiff brings error.
    Charles J. Trainor, for plaintiff in error.
    Kraus, Alschuler & Holden, for defendant in error; Thomas J. Lawless, of counsel.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Landlord and tenant, § 257 —allegations necessary to charge landlord for defective gas pipe. In an action by a tenant to recover for damages resulting from gaseous fumes, where the declaration, failed to disclose any defect in the vent pipe or, if one, that it was concealed, or that knowledge of it was chargeable to the landlord, or that it was not discoverable or ascertainable by the tenant, it lacks the elements essential to such a cause of action.

3. Landlord and tenant, § 257*—what a new cause of action. Where an amended declaration sets up the negligence of the landlord in failing to warn or inform the tenant of a defect in demised premises, and the dangers connected therewith, after the landlord knew of them, instead of as previously alleged, the landlord’s failure to use a vent pipe connection for a gas heater, and his permitting its use by the tenant, it constitutes a different cause of action such as is barred by the statute of limitations.


text:
    Frank T. Baird, Defendant in Error, v. Gustav K. Nelson, Plaintiff in Error.
    Gen. No. 20,141.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Frank T. Baird against Gustav K. Nelson for real estate commissions alleged to be due for procuring a purchaser for defendant’s premises. From a judgment against defendant in favor of plaintiff, defendant brings error.
    Martin & Martin, for plaintiff in error.
    Francis A. McDonnell, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Abstract of the Decision.

Brokers, § 51 —what constitutes procuring cause of sale. Where it appeared that the owner and purchaser of property were brought •together through an agent in June, 1912, when the sale was effected, and plaintiff had submitted the property to the same party about April, 1911, but negotiations for its sale ceased after September, 1911, and plaintiff never disclosed the name of the prospective purchaser to the owner or his agent, nor the name of the owner to the prospective purchaser, though requested to do so, and the prospective purchaser did not accept the terms submitted by the plaintiff, the evidence is held to show that the negotiations between the plaintiff and the purchaser were abandoned and that the plaintiff’s efforts were not the procuring cause of the sale such as to entitle him to recover commissions.


author: Mr. Presidirg Justice Barnes

text:
    Frank Kubasiak, Defendant in Error, v. Louis D. Los, Plaintiff in Error.
    Gen. No. 20,165.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Frank Kubasiak against Louis D. Los for the return of money alleged to be withheld. From a judgment in favor of plaintiff, defendant brings error.
    Defendant contended that the money was given bim in payment of services rendered under a contract with plaintiff to collect an insurance policy. On the death of his wife, plaintiff became entitled to seven hundred and fifty dollars as beneficiary to insurance in a fraternal organization. Defendant was the local manager of the organization. His duties were merely to obtain new members and to collect dues during the first five months of their membership. His sole compensation was a commission derived from the business he procured.
    Abstract of the Decision.
    Pjrincipal and agent, § 41

      —legality of agent's contract to collect insurance policy. The evidence is held not to justify a holding, as a proposition of law, that defendant could not enter into a legal contract with plaintiff to collect an insurance policy in a fraternal organization, since it does not appear that the defendant, as local manager, sustained any relation of a fiduciary character with the organization.
    Albert H. Fry, for plaintiff in error.
    Max L. Kasmar, for defendant in error.

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

   Mr. Presidirg Justice Barnes

delivered the opinion of the court.


text:
    Margaret Moore, Plaintiff in Error, v. Chicago City Railway Company, Defendant in Error.
    Gen. No. 20,187.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph SAbath, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed December 22, 1914.
    Statement of the Case.
    Action by Margaret Moore against the Chicago City Railway Company for personal injuries sustained in alighting from a street car. From a judgment in favor of defendant, plaintiff brings error.
    Abstract of the Decision.
    Street railroads, § 131

      —when verdict is against weight of evidence. Where a passenger testified that she was assisted off a street car hy the conductor and that the car started while she had only one foot on the ground and still had hold of the car handle, and she fell on her side receiving certain, bruises, and two passengers who got off the front end of the car testified that she had fallen on the street and the car suddenly stopped shortly thereafter leaving her on the ground four or five feet back of the car, and the plaintiff’s testimony was corroborated in other particulars, the verdict for the defendant is held to he against the weight of the evidence.
    Plaintiff and three other passengers testified to the occurrence. Defendant had no witnesses to the res gestae. It was contended that there was such inherent improbability and conflict in the testimony given in behalf of the plaintiff that the jury were justified in rejecting her theory of the accident and may well have believed that she attempted to alight from the car before it stopped.
    N. J. Shupe, for plaintiff in error.
    Warren D. Bartholomew and Frank L. Kriete, for defendant in error; W. W. Gurley and J. E. Guilliams, of counsel.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    John E. Nyman and Hal N. Orr, Defendants in Error, v. Ferdinand G. Gasche and Mrs. Ferdinand G. Gasche, Plaintiffs in Error.
    Gen. No. 20,208.
    (Not to he reported in full.)
    Abstract of the Decision,
    1. Tbial, § 199

      —effect of conflicting evidence on motion for directed verdict. A motion for a directed verdict is properly overruled where the evidence is conflicting.
    2. Appeal and ebbob, § 601*—necessity for preservation of motion for new trial for review of sufficiency of evidence. The weight or sufficiency of the evidence will not be considered in the absence of the proper preservation of a motion for a new trial.

      Error to the Municipal Court of Chicago; the Hon. David Sullivan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Rehearing denied January 5, 1915.
    Statement of the Case.
    Action by John E. Nyman and Hal N. Orr against Ferdinand & Gasche and Mrs. Ferdinand G. Gasche for dental services rendered to the latter. From a judgment in favor of the plaintiffs, defendants bring error.
    Assignments of error were predicated on the alleged insufficiency of the evidence bearing on the questions whether the contract for services was with one or both of the plaintiffs and whether there was a breach of contract and failure to perform on their part.
    Knapp & Campbell, for plaintiffs in error; John R. Cochran, of counsel.
    Rosenthal & Hamill, for defendants in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

3. Appeal and bbbob, § 800 —insufficiency of transcript to preserve ruling on motion. The failure to preserve a motion for a new trial on the ground of the weight or sufficiency in the bill of exceptions is not obviated by a recital in the clerk’s transcript that such a motion was made and overruled.

4. Instbuctions, § 133*—presentation of opposing theories. An instruction framed to present plaintiffs’ theory of the case and not that of defendants’, which is presented by other instructions given at defendants’ request, is not erroneous.


text:
    Wallace L. De Wolf et al., Appellees, v. Marguerite Springer, Executrix, Appellant.
    Gen. No. 20,220.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed December 22, 1914.
    Statement of the Case.
    In an action by Wallace L. DeWolf and others against Marguerite Springer, as executrix, an order entered found due from Warren Springer in his lifetime the sum of $25,000, and provided, “that judgment be and" the same is hereby entered upon said finding against the estate of said Warren Springer, deceased, and against said Marguerite Springer as executrix of the last will and testament of the said Warren Springer, deceased.” Such order was amended by striking out the words “estate of said Warren Springer, deceased,” and adding “as a claim of the seventh class to be paid in due course of administration.” The defendant appealed and questioned the power to amend such judgment subsequent to entry.
    Abstract of the Decision.
    1. Judgment, § 256

      —what amendment may he allowed after term. An amendment to a judgment against the estate of a person- and against the executrix of such person by striking out the words as to the estate and adding words requiring the claim “to be paid in due cpurse of administration,” makes a change in a matter of mere form and not of substance, and such amendment may be made after the term from the pleadings and files in the case and the entries in the clerk’s minute books.
    2. Executobs and adminxstbatobs, § 272*—when claim against estate may he classified in judgment. The classification of a claim against a deceased person in a judgment is a matter of form and is proper under the statutes as to the allowance of claims against estates.
    3. Judgment, § 252*—when judgment may he amended after term. Consent to the entering of a judgment against an estate goes to the substance rather than to the form of the judgment, and the court may under the statute of amendments and jeofails, correct such judgment in order to render it effective “so that it shall not be reversed and annulled.”
    Eugene M. Bumphrey, for appellant.
    George W. Wilbur, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Gridley

text:
    Edward J. Toolan, Defendant in Error, v. Chicago Daily News Company, Plaintiif in Error.
    Gen. No. 19,512.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Habry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed with finding of facts.
    Opinion filed December 22, 1914.

      Abstract of the Decision.
    1. Master and servant, § 838

      —when master liable to third person for servant’s negligence.. A master is. the person who has the choice, control and direction of the servant, and such master is liable to strangers for the negligence of his servant unless he abandons contrdl 'tb another who hires the servant.
    2. Master and servant, § 867*—when evidence insufficient to show liability of master to third person. In an action by a driver of a vehicle for injuries sustained in a collision, where it appeared that the defendant, a newspaper company, leased the wagon which caused the injury under an arrangement, whereby the driver of the wagon was paid by the lessor, who was reimbursed by defendant; but such wagon was also used by another newspaper company, the defendant in turn being reimbursed for such use; and at the time of the collision the wagon was being used by the other newspaper company instead of the defendant, a finding that the relation of master and servant existed between the defendant and the driver of the wagon at the time of the collision was not justified by the evidence.

      Statement of the Case.
    Edward J. Toolan, plaintiff, commenced a fourth-class action in the Municipal Court of Chicago to recover damages for personal injuries against the Chicago Daily News Company, a corporation, and S. N. Pierson, Henry Pierson and Charles B. Pierson, trading as S. N. Pierson & Sons, defendants. The joint appearance of all the defendants was entered and the cause submitted to the court for trial without a jury. At the close of the plaintiff’s evidence the suit was dismissed as to the three Piersons and the trial proceeded against the News Company as sole defendant. At the close of all the evidence the court found the News Company guilty as charged, and assessed plaintiff’s damages at one hundred dollars in tort. After overruling a motion for new trial, the court entered judgment on the finding against the News Company and the defendant brought error.
    Matz, Fisher & Boyden, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.