text:
    John Gulliksen, Defendant in Error, v. White Eagle Brewing Company, Plaintiff in Error.
    Gen. No. 21,584.
    1. Assumpsit, Action of, § 59*—when action for use and occupation lies. An action for use and occupation will generally lie where there is no question of plaintiff’s title to the premises, but not where such title is questioned.
    2. Assumpsit, Action of, § 59*—when action for use and occw pation lies against party in possession. An. action for use and occupation will lie by the owner of premises against a party in possession not holding under a hostile or adverse title after notice to pay rent; such was the rule' at common law and has not been changed by the Landlord and Tenant Act (J. & A. If 7039).
    3. Assumpsit, Action of, § 89*-—when evidence is sufficient as to value of use and occupation of premises. In an action for use and occupation, rent paid by a tenant is admissible in evidence as to the value of the use and occupation of the premises, and is sufficient.

      Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.'
    Affirmed.
    Opinion filed February 7, 1917.
    Smietanka, Johnson & Molthrop, for plaintiff in error; James T. Fales, of counsel.
    Christian C. H. Zillman, for defendant in error.
   Mr. Justice Taylor

delivered the opinion of the court.

The writ of error in this case is prosecuted to reverse a judgment rendered by the Municipal Court of Chicago in favor of the defendant in error (hereinafter designated the plaintiff) and against the plaintiff in error (hereinafter designated the defendant).

The plaintiff’s statement of claim recited that the suit was brought for use and occupation by the defendant of the premises No. 2654 W. 20th street, Chicago, for the period beginning November 5,1913, and ending November 17, 1914, at the rate of $65 per month; that said premises during all that time were owned by and the property of the plaintiff.

Defendant by its affidavit of merits denied that it was indebted to the plaintiff in the sum of $780, or any other sum, but admitted being in possession of the premises from November 25, 1913, to November 17, 1914, under a lease dated June 11,1913, from one Catherine Piekarz, who, the defendant claimed, was the owner of the premises. The defendant also denied that the- premises were the property of the plaintiff during the period in question. The case was tried on January 21, 1915, without a jury, and judgment was entered in favor of the plaintiff for the sum of $780 and costs'.

The plaintiff offered in evidence a number of documents, one of which was a deed dated October 23,1913, executed by the bailiff of the Municipal Court,, pursuant to a judgment obtained on May 1, 1912, against John Kieca and Katarzyna Kieca, conveying to the plaintiff (John Gulliksen) the premises in question. The plaintiff also offered in evidence a letter dated November 25, 1913, from the attorney of the plaintiff addressed to the defendant notifying it:

“That said Gulliksen is the owner of the property at 2654 W. 20th street now occupied by you under a lease from Katarzyna Kieca, and that as such owner the said Gulliksen . claims the right of the premises from you and you are herewith notified and requested to pay all rents to said Gulliksen and that should you not comply with this request the said Gulliksen will hold you liable for use and occupancy of the premises.”

The only other evidence offered by the plaintiff was the testimony of one Zillman, who stated that after sending the above letter he had a conversation over the telephone with the president of the defendant company; that the latter stated that the company was in possession of the premises under a written lease executed by Mrs. Kieca; that he, the witness, then told the president of the company that' the plaintiff claimed the property under the bailiff’s deed and that the plaintiff wanted the property and would hold the company liable for it; that the president of the company subsequently told him, the witness, that the company was paying $65 a month for the property; that the company was still in possession and that since the notice above mentioned was served upon it, the company had paid its lessee, Mrs. Kieca, the rent due at the rate of $65 per month.

The evidence was objected to by counsel for the defendant upon the ground that the action, being for use and occupation of the premises, the evidence was inadmissible, and further, that part of the evidence that pertained to the rent paid by the defendant was objected to on the ground that it does not tend in any way to prove the rental value of the premises in an action for use and occupation. Counsel for the defendant then moved to strike out all the evidence offered by plaintiff and for a finding in favor of the defendant. Both of which motions were overruled.

The plaintiff was then called under section 33 of the Municipal Court Act (J. & A. ft 3345) by the defendant and testified that he did not get into possession of the premises in question and had no lease or any contract with the defendant and that the defendant never agreed to pay him anything for use and occupation; that he, himself, never made any demand for actual possession but that, through his attorney, he made a demand for rent.

The defendant offered in evidence a lease dated June 11, 1913, from Catherine Biek'arz to the defendant of the premises in question for a term of five years from November 1, 1913, to October 30, 1918, at $85 per month, and also offered in evidence testimony that the defendant was then in possession of the premises in question under said lease and that there was at that time pending in the Superior Court of Cook county, Illinois, in chancery, case number 38,418, a suit in equity brought by Katarzyna Kieca against Walter Gula, John Gulliksen and White Eagle Brewing Company to set aside as a cloud upon the title, on the ground of fraud, a deed from the bailiff of the Municipal Court of Chicago to John Gulliksen, which deed is the one hereinbefore mentioned. The defendant’s evidence also showed that the defendant was in possession of the premises in question on the 11th day of June, 1913, and on November 26,1914. The defendant contends that this is an action for use and occupation and that as there was no contract, express or implied, between the plaintiff and defendant, no recovery can be allowed. The defendant places great emphasis on the case of Fender v. Rogers, 97 Ill. App. 280. In that case the title of the lessor did not appear, bnt the court says: “It does inferential'ly appear that her (lessor) possession (which preceded lessee’s) was adverse and hostile to, and in no manner under or derived from appellant.” There is obvious conflict in the statements of the law as they appear in many dicta in the cases that have to do with this subject; and the confusion seems to arise by reason of the fact that in some cases there is no question as to who has the title and therefore the right of possession, while, in others, the evidence does not sufficiently prove who has the title and therefore who has the right to possession. In the latter class of cases generally a suit for use and occupation will not lie while in the former it will. The Fender case (supra) and Hill v. Coal Valley Min. Co., 103 Ill. App. 41, belong to the latter. In the instant case there is no evidence of an adverse or hostile title. The defendant makes the claim in his affidavit of merits and his argument; but as long as there is no evidence in support of that position, we must presume what the evidence proves, that is, the title to the premises since October 23, 1913, has been in the plaintiff. In fact in the brief of the defendant it is stated that, “The title of Mrs. Kieca was sold out by the bailiff of the Municipal Court in an action brought against Mrs. Kieca, the lessor of the Brewing Company.” The case is therefore simplified and resolves itself into one wherein an owner of real estate, after notifying a party in possession, which possession is not based on a hostile or adverse title, to pay all future rent to him or to be held liable for use and occupation. This case may be considered as a simple suit by the owner against one in possession who was notified in season that he would be held liable for occupying and using the property. The plaintiff might have sued him in ejectment or forcible entry and detainer; he saw fit, however, to rely upon the notice he gave and then sue him for the user. Such a cause of action was good at common law and that right has not been extinguished by the Landlord and Tenant .Act. The defendant claims no defense save the technical one that such an action will not lie for use and' occupation. We have been unable to find any such law. There are misleading dicta, but no apt decisions.

The defendant contends that the evidence as to the value of the use and occupation was incompetent and insufficient. We are of the opinion that the evidence was proper and, there being none in opposition, it was sufficient. United States v. Whipple Hardware Co., 191 Fed. 945.

Finding no errors that justify a reversal, the judgment will be affirmed. , 1

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Taylor

license: Public Domain

text:
    Marie Slad et al., by Marie Slad, Plaintiffs in Error, v. Frank G. Hajicek, Defendant in Error.
    Gen. No. 21,608.
    (Not to be reported in full.)
    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, 1915.
    Affirmed.
    Opinion filed February 7, 1917.
    Statement of the Case.
    Action by Marie Slad, Vaclav Slad, Frank Slad, Louis Slad, Mary Sykora, Emil Slad, Emily Slad, Charles Slad, and Anton Slad, Bessie Slad, Joseph Slad and Rosie Slad, minors, by Marie Slad, their next friend, plaintiffs, against Frank Gr. Hajicek, defendant, to recover for alleged conversion -by defendant,¡¡pf moneys collected by him as agent for plaintiffs’ aeceased ancestor prior to the latter’s death. From a judgment dismissing the action at plaintiffs’ cost, on demurrer to the declaration, plaintiffs bring error.
    Abstract of the Decision.
    1. Executors and administrators, § 70

      —what constitutes part of personal estate of decedent. Money collected by an agent and held by him for investment for his principal becomes on the principal’s death a part of his personal estate and subject to ad-n ministration by the Probate Court.
    2. Courts, § 104

      —when Probate Court has jurisdiction of action against administrator of estate collected as agent for decedent prior to latter’s death. Where a declaration filed against the administrator of an estate individually by the widow and heirs of the deceased charged him with converting funds of the deceased collected by him prior to the death of the decedent and held for investment for the decedent’s benefit and which were not reported by him as administrator as assets of the estate, held, on demurrer that an action at law for such conversion would not lie, as the Probate • Court had taken and retained jurisdiction and would have full power on proper petition to afford relief.
    The declaration and bill of particulars set up that the defendant had been appointed administrator of the estate of Frank Slad, deceased, the husband of the plaintiff Marie Slad and father of the other plaintiffs, and that he had not inventoried as administrator any part of the sum alleged to have been collected by him as agent for the deceased and to have been retained for the purpose of investment for the benefit of the deceased.
    Charles E. Selleck, for plaintiffs in error.
    Joseph Z. Klenha, for defendant in error;. Hwass & Luebeck, of counsel.

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

   Mr. Justice Taylor

delivered the opinion of the court.


text:
    Gustav Muller, Appellant, v. R. H. Neumeister, Appellee.
    Gen. No. 21,631.
    1. Judgment, § 441

      —when note is not merged into.' A promissory note is not so merged into a judgment entered thereon as to preclude recovery in a subsequent action on the note aided by attachment where such judgment was vacated before plea filed in such suit.
    2. Bruns and notes, § 422

      '—when note sued on in action aided by attachment and bearing indorsement of prior entry of judgment is admissible in evidence. A note sued on in action aided by attachment bearing an indorsement thereon that judgment had theretofore been entered on such note is admissible in evidence in such attachment action under pleadings showing the entry of such judgment, notwithstanding the copy of the note set forth in the declaration does not contain such indorsement and although explanation of the presence of the notation is not first given.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 7, 1917.
    A. Gr. Dicus, for appellant.
    William A. Bogan, for appellee.

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

   Mr. Justice Taylor

delivered the opinion of the court.

This is an attachment suit commenced on January 31, 1913, in the County Court of Cook/county by Muller against Neumeister on a judgment note dated July 18,1908, for $732.85 due six months after date. Nearly four years prior to the beginning of this suit, that is on March 24, 1909, Muller obtained judgment in the Municipal Court by confession for $754.35 on the same note. That judgment was still outstanding at the time of the institution of the present attachment suit. The declaration in the present case is on the common counts with an additional count on the note of July 18, 1908. The defendant pleaded nonassumpsit, and on November 22, 1913, two other pleas, the first of which was, in substance, as follows:

“That the plaintiff ought not to have his suit because on March 24, 1909, he impleaded defendant in the Municipal Court of Chicago for the non-performance of the same promises and on February 3, 1913, plaintiff came into that court and confessed that he would not further prosecute said suit but withdrew himself, therefore it was considered by the court that plaintiff should take nothing and that defendant should go hence without day as by the records appear, which judgment remains in force, etc.” and the second of which was, in substance, as follows:

“That plaintiff impleaded defendant in the Municipal Court for not performing the same promises; that plaintiff recovered judgment therein on March 29, 1909, for $754.35, for his damages as by the record appears, which judgment remained' in full force and effect at and after the commencement of suit, etc.”

The plaintiff filed a replication and amended replication and a second amended replication. The first replication alleged that the judgment of March 24, 1909, had been set aside on February 3, 1913, on the motion of the defendant. The first amended replication alleged that the judgment of March 24, 1909, was not in force; that there was no such record; that on January 18, 1913, defendant entered his motion to vacate and set aside said judgment of March 24, 1909, which motion was continued from time to time until on February 3,1913, the Municipal Court set aside and vacated the judgment of March 24,1909, and dismissed said cause out of said court.

The second amended replication alleged that there was not on January 31,1913, nor thereafter any record of any supposed recovery or judgment such as is mentioned in defendant’s pleas.

The court entered an order striking from the files the first amended replication and ordered the defendant to file a rejoinder to the second amended replication. The defendant filed a rejoinder setting up that the plaintiff ought not to have his action because on January 31,1913, the Municipal Court granted a judgment against defendant upon the same promises for $754.35, which judgment was in force at the time of the commencement of this suit.

The cause was tried by the court without a jury. Plaintiff offered in evidence a judgment note dated July 18,1908, payable six months after date to Gustav Muller, or order, for the sum of $732, which note was signed E. H. Neumeister.

Plaintiff in making the offer said that he confined it to the face of the note as originally made. Across the face of the note, as offered, there appeared the following words and figures:

“Judgment For $754.35 & Costs Entered March 24, 1909 Homer K. Galpin.”

The defendant objected on the ground that the note was merged in the judgment and that the copy of the instrument set forth in the declaration did not correspond with the note offered in evidence. The trial judge ruled that “the indorsement that judgment had been entered would preclude liability” and entered judgment for the defendant. Was the exclusion of the note with this indorsement upon it erroneous? While it is true that in many cases a document will not be received in evidence where there is indorsed upon it some statement which defeats the purpose for which it was offered, or renders it incompetent as evidence until the presence of the notation is first explained by the introduction of competent evidence, we do not think the present case falls within that rule. An examination of the pleadings shows that it is alleged on behalf of the defendant that a judgment was entered against him in the Municipal Court on the same day as that indicated by the indorsement on the face of the note, and that an order of judgment was entered upon that date is expressly admitted by the plaintiff’s amended replication, and impliedly by his second replication, and therefore no explanation in regard to the notation was required. It did devolve on plaintiff, however,, to sustain the allegations made in his replications. If he offered evidence sustaining, his second plea that there was no record of a judgment existing on January 31, 1913, either by reason of the fact that the judgment was void, if it was void, or for any other reason, that would have sustained his -right of action on the note. But the question arises, and ought here to be answered, as to whether the first amended replication which sets out the vacation of the judgment on February 3, 1913, three days after this suit was started, was a good replication. The facts disclosed by the pleadings are as follows: The affidavit of attachment shows the nonresidence of the defendant and an indebtedness on the promissory note amounting to $897.93; the declaration sets out the common counts and a special count on the note, and a copy of the note sued on; the defendant, pleads that a judgment was entered in the Municipal Court prior to the bringing of this suit; the replication shows that a motion was made by the defendant to vacate that judgment before this attachment was sued out, and that the judgment was actually vacated three days thereafter. Defendant’s contention is that the note was merged in the judgment, and that, in consequence, it could not be the basis of an attachment.

It is necessary for us first to consider what is meant when it is said that a cause of action is merged in a judgment. Obviously nothing more is meant than that the court has considered a plaintiff’s claim, and, after proper judicial proceedings, pronounced a judgment which invests the plaintiff with the right to enforce it by court process. The demand is the identical demand which the plaintiff had before, but it has taken on new attributes, and it cannot henceforth be pleaded except in its new form; in other words, as an adjudicated demand. It follows from this that if the judgment entered on the note is a valid judgment, the plaintiff, to be technically correct, should have declared upon the judgment, and a plea of former judgment on the notes was, in the absence of a replication, a good plea. Does a replication, which shows that at the time the plea was filed the judgment had already been vacated, show that the demand then stood in the identical form in which it was declared upon1? We think that the análogy of a case where a prior suit was pending at the time suit is instituted is very persuasive. There, admittedly, the plaintiff had no right to maintain the second suit while the first suit was pending, but if the former suit is dismissed before plea, or even before trial, the second suit may be maintained. We think, moreover, that every dictate of reason is in favor of sustaining plaintiff’s right to his attachment on the case made out by the declaration, plea and first replication.

The position taken by the defendant is based entirely upon a matter of form and is therefore technical. It cannot be claimed that at the time the attachment suit.was begun there was not outstanding an obligation on the defendant towards the plaintiff. It is true that the evidence of that obligation had been temporarily changed from a promissory note to the record of the judgment, but at no time was the indebtedness of the defendant extinguished. Merger is not extinguishment. Counsel for the defendant likens this case to one where the payee of a note sues the maker before the note is due. In the latter ease, however, there does not exist at any time, until the note is due, an indebtedness to the payee; whereas, in the instant case, evén though the plaintiff sued in attachment on the note and there was outstanding at that time a judgment on the note, there was in existence all the time a debt from the defendant to the plaintiff. The defendant does not deny that the plaintiff had a demand which entitled him to maintain his action, for a judgment may as well be the basis of attachment as the note, but the defendant claims that the evidence of that demand had been changed at the time he brought his suit. If, as stated in the replication, the plaintiff’s demand had been restored to its original form, namely, a demand evidenced by a promissory note, it then became entirely consistent with the cause of action originally declared upon. We do not wish to intimate that a plaintiff may bring a suit when he has no rightful claim against the defendant, but only to hold that where, as here, there is outstanding, at the time of the institution of the proceeding, an obligation on the defendant, and the plaintiff in beginning his • suit misconceives the evidence upon which it is based, he may be allowed, where such a change takes place in the interim, as to rectify the error as to the evidence, to proceed with his cause of action. We are, therefore, of the opinion that the replication, if sustained by evidence, would entitle the plaintiff to judgment, and that the fact that plaintiff’s claim had been reduced to judgment at the time the attachment was sued out on the notes is sufficiently answered by the allegation in the replication that prior to the filing of the plea the judgment had been vacated. We think, moreover, that it would be extremely unfortunate if any technical rule were to compel a different holding in such a case, since' the facts disclosed by the pleadings show an indebtedness due the plaintiff, and a ground entitling him to a judgment. If his right to maintain this attachment were to be denied by reason of the fact that the indebtedness had been changed from a judgment back to the form in which he had declared upon it, the result would unquestionably be to defeat the ends of justice. The judgment is, therefore, reversed and remanded to the Municipal Court for further proceedings in conformity with the views herein expressed.

Reversed and remanded.


author: Mr. Presiding Justice Barnes

text:
    Hodges Fiber Carpet Company, Defendant in Error, v. Hugro Manufacturing Company, Plaintiff in Error.
    Gen. No. 21,109.
    (Not to he reported in full.)
    Error to the Municipal Court of .Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1916.
    Affirmed.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action by Hodges Fiber Carpet Company, a corporation, plaintiff, against the Hugro Manufacturing Company, a corporation, defendant. From a judgment for plaintiff, defendant brings error.
    William D. Johnson, for plaintiff in error.
    Herman S. Waldman, for defendant in error; Morris K. Levinson, of counsel.

      See Illinois Notes Digest, Yols. 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.

1. Depositions, § 34 —when will not be suppressed because of defect in notary’s certificate. The failure of a notary’s certificate to depositions taken before him subsequent to the time set for taking same to show an adjournment is a mere irregularity which is not sufficient to warrant suppression of the depositions in the absence of evidence tending to show injury or surprise of one of the parties thereby.

2. Depositions, § 35 -—when motion to suppress is too late. Where depositions were returned promptly and notice of their taking given to the opposite party’s attorney six months prior to trial, held that it was his duty to ascertain whether such depositions had been returned and to present a motion to suppress them before the case was called for trial, and it was then too late.


text:
    Globe Indemnity Company, Appellee, v. Jacob Kesner, Appellant.
    Gen. No. 21,870.
    1. Indemnity, § 1

      —what is nature of contract of. A written obligation to indemnify a party in a certain amount on certain specified conditions has the characteristics of a bond.
    2. Indemnity, § 21

      —what are not defenses to action on bond. Failure of consideration or to execute another bond agreed to be executed are not defenses to an indemnity bond.
    3. Indemnity—when obligor of bond is estopped to deny recitals of bond. Where the defendant had executed a bond reciting that the obligee had executed or agreed to execute a bond in a certain “penal sum” on appeal in a certain case and agreeing to indemnify the obligee as to any payment made by the obligee in consequence of having executed such appeal bond, held, in an action on such indemnifying bond, that the purport of such recitals in such bond was that the obligee therein had executed an instrument adequate to effect the appeal sought and defendant would be es-topped from denying such recitals, whether the obligee executed a technical penal bond or not on such appeal.

      4. Debt, Action of, § 17

      —when judgment is not reversibly erroneous. A judgment for damages alone in an action in debt is irregular in form only and not reversible on that ground.
    5. Interest, § 28

      —when rate of interest on foreign judgment is at rate fixed by domestic statutes. Interest on a foreign judgment should be at the rate fixed by the domestic statute in the absence of competent proof of the foreign interest statute.
    Appeal from the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and judgment here.
    Opinion filed February 9, 1917.
    Modified and refilled February 19, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    D’Ancona & Pelaum, for appellant.
    Adams, Crews, Bobb & Wesgott, 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.

This action is founded on an indemnifying bond whereby appellant bound himself to pay appellee the sum of $15,500 on certain conditions therein named. In that form it has all the characteristics of a bond. (Chicago Sash Door & Blind, Mfg. Co. v. Haven, 195 Ill. 474.)

Following the paragraph containing the formal obligation the instrument reads:

“The condition of the aforegoing obligation is such, that whereas, at the special instance and request of said obligors and on the security hereof, the company has executed, or agreed to execute, a bond in the penal sum of fifteen thousand five hundred dollars, to on appeal in re Margaret V. Hayes against J. L. Kesner Company dated the Twenty-Sixth day of November, 1912, conditioned for the payment of judgment and costs in the above.

“Now Therefore, if the above bounden Jacob L. Kesner shall and do pay annually in advance, the premium or charges of one hundred fifty five ($155.00) Dollars, made by the Company for executing said bond and continuing same, and shall hold and keep harmless the Company from and against any and all liability, loss, damages, costs, charges and expenses of whatever nature or kind which the Company shall or may at any time sustain, incur, or be put to, for, or by reason or in consequence of the Company having given - and executed the said bond; also all costs and expenses which it may incur in investigating any claim made thereunder or in or about prosecuting or defending any action, suit or other proceedings which may be commenced or prosecuted against said Undertaking on Appeal or against the Company, upon the said bond or any wise in relation thereto; then this obligation to be void, otherwise it is to be and remain in full force and "virtue.

(Signed) Jacob L. Kesner (Seal)”

Defendant pleaded failure of consideration, which was not proven and need pot be considered, for it is no defense to a bond (Raven case, supra), and also failure “to execute a bond in the penal sum of $15,500” on the appeal referred to in the instrument, which was practically the same defense. In fact there was no legal defense pleaded.

In conformity with undenied allegations of the statement of claim, plaintiff (appellee) made proof of the bond sued on, of the judgment of a New York Court for said Margaret Y. Hayes against said J. L. Kesner Company, of the execution by plaintiff of an “undertaking on appeal” therefrom, of the dismissal of the appeal, of a suit and judgment against plaintiff on said undertaking, of the payment of $14,656.14 in satisfaction thereof, of interest at six per cent, from date of payment, and of a due and unpaid premium for $155, aggregating $16,496.58, for which the court assessed plaintiff’s damages, defendant offering no evidence.

The assigned errors relied upon go to the court’s finding, 'the refusal to hold certain propositions of law, admission of evidence, and the form of the judgment. All hinge on one fact—the undertaking referred to.

Appellant’s point of law is that his'liability on the bond sued on cannot be extended beyond express terms of his agreement. That is conceded. But his argument is predicated on considering the execution of a penal bond by plaintiff as a condition of the bond sued on. What is thus referred to as a “condition” of the bond is a mere recital in its “whereas” clause. The conditions thereof are stated in the following paragraph, and appellant’s liability rests on his undisputed nonperformance of them. It is with the conditions to be performed by the obligor and not the obligee that this action is concerned.

When analyzed, appellant’s only point is that proof of such undertaking on appeal, claimed by appellee to be authorized by the New York practice, is not proof of plaintiff’s execution of a penal bond. As before stated, this seems to go merely to the question of failure of consideration, which could not properly be pleaded.

But regardless of whether plaintiff’s agreement contemplated a technical “penal bond,” or an “undertaking on appeal,” as it is referred to in the quoted final paragraph, or whether by such reference the latter is not properly read as if incorporated in the indemnifying bond (5 Cyc. 757), especially as it was executed the same day and became a part of the same transaction, still the undisputed facts remain that appellant received the benefit of carrying up the Kayes case on appeal through plaintiff’s execution of “said undertaking on appeal,” and that plaintiff, in consequence of such undertaking, had to pay the judgment appealed from.

As we view it, the purport of the recitals in the bond sued on is that' plaintiff executed an instrument adequate to effectuate the appeal sought, and appellant is estopped from denying them. (Arnott v. Friel, 50 Ill. 174; Courson v. Browning, 78 Ill. 210; Mix v. People, 86 Ill. 329.)

It is difficult to see how this became an issue necessitating hearing evidence thereon, for the fact of the execution of an “undertaking on appeal” was pleaded and not denied, and the case does not come here on the sufficiency of the statement of claim to support a judgment.

In this view of the case it is unnecessary to inquire into the character of the instrument executed by plaintiff, or whether there was competent proof of the New York statutes authorizing it. It is enough, as the proof shows, and appellant admits, that the appeal sought was effected through an instrument executed by plaintiff in consequence of which it had to pay the judgment appealed from. It was to indemnify plaintiff against just such a consequence that appellant executed the bond here sued on, and, having. failed to perform its conditions, he cannot escape liability thereon.

As the submitted and refused propositions of law required treating the above recital as a “condition” of the bond, they call for no additional comment.

A reversal is urged ¡because the action is one of debt and the judgment should accordingly be in the usual form for the penalty, as the debt, to be discharged on payment of the damages. In George J. Cooke Co. v. Burke, 148 Ill. App. 155, this was treated as matter of form and not ground for reversal. Appellant urges it is matter of substance and cites Frazier v. Laughlin, 6 Ill. 347; Freeman v. People, 54 Ill. 153, and the Happen case, supra.

But as the interest on the judgment paid by appellee was computed at the rate of six per cent, as allowed by the statute of New York without competent proof of such statute, we should enter the judgment here that should have been entered below, the case having been heard without a jury, and, in doing so, enter it in the usual form. Even if the rules of the Municipal Court are properly in the record, we do not think they authorize a different form of judgment there.

The judgment will be entered for the amount of the penalty, $15,500 as a debt, to be discharged upon payment of the damages, assessed at. $17,479.25. This amount includes the amount of the Hayes judgment with interest at five per cent, from time of its payment and the unpaid premium of $155 aforesaid. While the damages exceed the penalty, it is not and cannot be questioned that interest is recoverable in such case even though that be the result.

Reversed and j-udgmewb here.


author: Mr.. Presiding Justice Barnes

text:
    John F. Devine, Administrator, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,938.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. M. L. McKinley, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed with finding of fact.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of Hilda E. Hillman, deceased, plaintiff, against Chicago City Railway Company, defendant, to recover damages for the death of the deceased who was killed by defendant’s street car. From a judgment for plaintiff, defendant appeals.
    The deceased was struck down and killed in attempting to cross in front of a moving streét car after passing behind another on a parallel track five feet away. The accident occurred at the intersection of three streets. The deceased was familiar with the locality. Immediately after a car started she walked from behind it to the other track and was struck and killed.
    Abstract of the Decision.
    1. Street railroads, § 111

      —when burden of proof is on plaintiff to prove exercise of ordinary care in action for negligent injuries. In an action against a street railroad company to recover for personal injuries due to defendant’s negligence, it is incumbent on the plaintiff to prove the exercise of ordinary care for his own safety and he cannot recover without making such proof irrespective of defendant’s negligence.
    2. Street railroads, § 98

      —when pedestrian passing from behind car over parallel track is guilty of contributory negligence. It is negligence in fact for a pedestrian in passing from behind one street car that necessarily obstructs his vision of one approaching .from an opposite "direction on an adjacent parallel track to attempt to cross the latter track without first looking to see whether there is a car so approaching, when, in the ordinary course of affairs, one may be there.
    3. Street railroads, § 133

      —when denial of motion for directed verdict in favor of defendant in action for death of pedestrian is erroneous. In an action to recover for the death of plaintiff’s intestate by being struck down and killed by defendant’s street car, held that the evidence contained no direct proof that the deceased used ordinary care for her own safety and that the circumstances were not such as to supply it, and that the court erred in denying a motion for a directed verdict for defendant at close of plaintiff’s case.
    John E. Kehoe and Watson J. Ferry, for appellant.
    Bussell M. Wing and Bert Wing, 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.. Presiding Justice Barnes

delivered the opinion of the court.

4. Evidence, § 465 —when positive, testimony is stronger than negative testimony. The negative testimony of witnesses that they heard no gong sounded is unavailing against the clear and positive testimony that the gong was sounded, in an action to recover for defendant’s alleged negligence in the operation of its street car.


text:
    Gertrude L. Emerson, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,983.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clinton F. Ibwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action by Gertrude L. Emerson, plaintiff, against Chicago City Railway Company, defendant, to recover damages for injuries sustained by plaintiff while alighting from defendant’s street car in which she was a passenger. From a judgment for plaintiff for $5,000, defendant appeals.
    The declaration charged negligence by defendant in starting the1 car while plaintiff was attempting to alight therefrom, and in permitting a metal strip on the rear step of the car to be-in a loose.and unsafe condition whereby the heel of plaintiff’s shoe was caught under it, causing her to be thrown therefrom into the street.
    John E. Kehoe and Charles Le Rot Brown, for appellant; John R. Guilliams, of-counsel.

      Abstract of the Decision.
    1. Cabriebs, § 476

      —when evidence sufficient to show negligence in maintenance and operation of street car. In an action to recover damages for injuries sustained while alighting from a street car, evidence held sufficient to sustain the findings of the jury both as to defendant’s negligence in starting the car while plaintiff was attempting to alight therefrom and in permitting a metal strip on the step to be in a loose and unsafe condition.
    ' 2. Evidence, § 108

      —when evidence of experiment is admissible. In an action to recover damages for injuries sustained while alighting from a street car, where a witness testified that right after the accident he had put his heel on the step of the car to see if it would catch on the plate, as plaintiff claimed her injury had been caused, and that it did, held that such circumstance was not so dissimilar from plaintiff’s as described as to make such evidence repugnant to the rule against allowing proof of experiments, and that the judgment would not be disturbed on account of the admission of such evidence.
    3. Damages, § 124

      —when verdict for personal injuries is excessive. In an action by a woman to recover damages for personal injuries, where_ it appeared that her leg was fractured, that she suffered considerable pain and was laid up for six months, held that a verdict and judgment for $5,000 should be reduced by $1,000.
    F. A. Denison and John L. McInerney, 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:
    Augusta Lehmann et al., Appellees, v. City of Chicago, Appellant.
    Gen. No. 22,041.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Adeeor J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Augusta Lehmann, Emelie W. Peacock, Edward J. Lehmann, Augusta E. Spies, Otto W. Lehmann and Edith M. Behr, plaintiffs, against City of Chicago, defendant, to recover rent for certain premises for the months of March, April and May, 1911. Prom a judgment for plaintiffs, defendant appeals.
    The defendant leased the premises from June 1, 1908, to June 1, 1910, with the privilege of renewal for another year provided defendant gave six months’ notice. Ño notice was given, but in November, 1909, the defendant’s agent had a talk with plaintiffs’ agent as to extending the lease to March 1, 1911, and defendant claimed that they then so agreed, which plaintiffs denied. Possession was retained to March 1,1911, and rent demanded and paid each month to December 1, 1910. Warrants were issued for the succeeding three months but not delivered, the comptroller not being “ready to pay.”
    Samuel A. Ettelson, for appellant; Leon Horn-stein, of counsel.
    Henry L. Wallace, for appellees.

      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.

1. Landlord and tenant, § 477 —when notice by lessor’s agent to quit at expiration of term does not affect character of tenure thereafter. Where a lease expired by its terms at a certain date, a notice by the lessor’s agent that possession of the premises would be expected to be surrendered at that date would have, if authorized, no legal effect or bearing upon the character of the lessee’s tenure after expiration of the lease, if the landlord assented to the holding over.

2. Landlord and tenant, § 441 —when evidence sufficient to show holding over under terms of lease. Evidence held insufficient to show an oral agreement by lessor’s agent to extend the lease to March 1, 1911, or his authority so to extend it, and sufficient to show a holding over on the terms of the lease without a new agreement, in an action to recover rent for such holding over.

3. Landlord and tenant, § 88 —what does not constitute election by landlord to treat tenant as one from year to year. Accepting payment of monthly rent after expiration of a lease according to its terms is an election by the landlord to treat the tenant as one from year to year.

4. Landlord and tenant, § 485 —when notice to quit at expiration of term is waived. A notice given a tenant to quit the premises at- the expiration of his lease according to its terms is waived by the landlord demanding and receiving rent after such expiration of the lease.

5. Landlord and tenant, § 88 —when city holding over is bound as tenant from year to year. A city, lessee under an authorized lease, holding over after the expiration of the lease according to its terms without a new agreement is bound the same as a private individual to a tenancy, from year to year.


text:
    The E. R. Stege Brewery, Appellee, v. Joseph O. Kostner, Appellant.
    Gen. No. 23,020.
    1. Vendor and purchaser, § 160

      —when purchaser under contract of sale may procure equitable title. Before a purchaser under a contract of sale has performed all of the conditions required of him by the contract he does not have even an equitable title to the property.
    2. Estoppel, § 38

      —what are requisites of. An estoppel must be reciprocal and binding on both parties.
    3. Vendor and purchaser—when purchaser of land is not es-topped to claim, right of possession as against tenant failing to exercise option of extending lease. Where a lessee, under a lease giving him an option of extending the same' upon giving notice on a certain date, told' a prospective purchaser, prior to that date, under a contract of sale of the premises, that he intended to exercise such option, but he did not do so, and thereafter the premises were sold and were acquired by such purchaser, held that the purchaser was not estopped to claim the right of possession on a bill by the lessee to restrain the prosecution of a forcible detainer action for possession of the premises on expiration of the lease, nor was any right conferred on such lessee by reason of the lessee having so told the purchaser that he intended to exercise such option.
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. Frederick A. Smith, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.
    Moses, Rosenthal & Kennedy, for appellant.
    Simeon Straus and Ira E. Straus, 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.

_ This is an appeal from an interlocutory order restraining appellant from prosecuting a forcible detainer suit for possession of certain real estate and from attempting to assert in any way Ms claim that appellee’s lease therefor expired September 30, 1916

The order was entered on the bill of complaint, the answer and certain affidavits, and appellee attempts to justify it on the ground of equitable estoppel, but we find nothing in the facts averred and relied on that creates one.

The controlling facts, as admitted, are that appellee, the complainant, obtained a lease to the premises from the owner, the McGough estate, for a term beginning September 26, 1911, and terminating September 30, 1916, by the terms of which the lessee was given the option until March 1, 1916, of a five years’ extension thereof; that complainant gave the lessor no notice of its purpose to exercise the option until March 7, 1916; that the lessor declined to regard the notice as a sufficient exercise of the option and conveyed the premises May 1, 1916, subject to said lease but without any special reservation of such privilege, to one Rothschild, who, on the same day, executed a ninety-nine year lease therefor to appellant, and later sold him the building thereon; that appellee continued to attorn to said lessor until July, 1916, after which it paid the rent to appellant.

On October 22, 1915, appellant entered into a contract with the lessor to purchase said premises, but never consummated it. The bill avers that prior to March 1,1916, appellant informed complainant that he had such a contract and asked appellee’s president whether it intended to exercise its option to extend the lease and was informed by him that it did so intend. It is mainly upon this particular circumstance that appellee predicates its claim of equitable estoppel. While the answer denies that anything was said between the parties with regard to the exercise of said option, and alleges that appellant merely undertook to negotiate for appellee’s surrender of the premises before May 1, 1916, and is supported by the affidavits, the issues of fact thus raised are immaterial if the bill itself does not set forth facts that create an equitable estoppel.

The bill does not aver that complainant made an agreement of any kind with Kostner or relied on any promise, representation or act of his, fraudulent or otherwise, by reason of which it was misled or was induced not to give notice to the McG-ough estate before March 1, 1916, of its intention to exercise the option. The mere fact that when complainant learned that Kostner had a contract for the premises it informed him that it intended to exercise the option, created no estoppel against him, and conferred no right upon itself. It was bound to know that before a purchaser under a contract of sale has performed all of the conditions required of him by the contract he does not have even an equitable title to the property (National Fire Ins. Co. of Hartford v. Three States Lumber Co., 217 Ill. 115; Chappell v. McKnight, 108 Ill. 570; Walters v. Walters, 132 Ill. 474); and that as its right to exercise such option was by virtue of its contract with the lessor, a notice to one who had neither a legal nor an equitable title to the premises and between whom and it there was no privity of contract or relationship, was wholly ineffective. There was nothing in this state of facts that excused complainant’s failure to duly notify the lessor of its intention to avail itself of the option.

When, therefore, complainant’s claim for equitable relief is reduced to a final analysis, it is not based on being misled or deceived by anything that Kostner said or did but rests solely on its own declaration to him that it intended to do something which in fact it never did and was not prevented by Kostner from doing, namely, exercise its option before March 1, 1916. An estoppel must be reciprocal and binding on both parties. (Siegel, Cooper & Co. v. Colby, 176 Ill. 210.) Here there was no mutuality in anything said or done that is set forth in the hill, and nothing by way of false or fraudulent representation, or otherwise, on which complainant relied or had a right to rely. We fail to find in its averments any of the essential elements of an estoppel.

The restraining order must he reversed.

Order reversed.


author: Mr. Justice McDonald

text:
    James L. Marino for use of Flavia Trucco, Executrix, Plaintiff in Error, v. Antonio Parisi and Nicola Monaco, Defendants in Error.
    Gen. No. 21,747.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.
    Reversed and judgment here.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Garnishment proceeding hy James L. Marino for use of Flavia Trueco, executrix under the last will and testament of Joseph Trueco, deceased, plaintiff, against Antonio Parisi and Nicola Monaco, defendants, based upon a judgment in favor of the executrix against Marino for $277.50 and costs. From a judgment for defendants, plaintiff brings error.
    Ernest Saunders and Frank A. Ramsey, for plaintiff in error.
    No appearance for defendants in error.

      Abstract of the Decision.
    1. Garnishment, § 15

      —when cogarnishee furnishing funds to contractor may not be garnisheed. In a garnishment proceeding against two defendants, where it was shown that one of such defendants had a contract with the other to furnish him the funds for constructing a certain building which the nominal plaintiff had contracted with the latter to construct for an agreed price, held that there was no claim or demand by the plaintiff against the co-garnishee furnishing the funds, so as to authorize garnishment.
    2. Mechanics’ liens, § 62

      —when right of subcontractor to lien is waived by contractor. Where a building contractor by his contract waives any and all liens for himself and all subcontractors, the latter have no enforceable lien.
    3. Garnishment, § 69

      —when garnishee paying debt after garnishment is wrongfully discharged. Where the evidence showed that the garnishee had a building contract with the nominal plaintiff in the garnishee proceedings at the time of service of process and was indebted to such plaintiff and thereafter paid him a certain sum under such contract, held that it was error for the court to discharge such garnishee.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    Chicago & Riverdale Lumber Company, Appellee, v. W. S. F. Tatum, trading as Tatum Lumber Company, Appellant.
    Gen. No. 21,894.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.
    Statement of the Case.
    Action by Chicago & Riverdale Lumber Company, a corporation, plaintiff, against W. S. F. Tatum, trading as Tatum Lumber Company, defendant, to recover a balance claimed to be due on a sale of a quantity of millwork and material to be used in the construction of a dwelling house and of lumber and building material to be used in the construction of a garage. From a judgment for plaintiff for $3,581.35, defendant appeals.
    The parties executed, two contracts, March 1, 1911, and July 3, 1911, in the State of Mississippi, relative to the material in question. The former contract consisted of the plaintiff’s offer in writing to furnish for a specified sum the millwork and material described in a schedule attached to the writing to be used in constructing the dwelling house and for another specified sum the lumber and building material described in another schedule attached to the writing to be used in constructing the garage, and of defendant’s acceptance in writing of such offer. The second contract referred to the former and to a controversy in regard to a portion of the work furnished and that this second contract was executed in order to make an amicable settlement of such controversy; and provided inter alia that the defendant should use such of the delivered material as conformed to the plans, specifications and full-size details, that the plaintiff would replace and make good all such delivered material that did not so conform and any material damaged in shipping, and that plaintiff would so conform all future shipments of material; that should plaintiff not so conform all delivered material within fifteen days after notice, the defendant was authorized to replace or furnish same and charge the cost thereof to plaintiff, and to do the same as to all future material not so conforming within sixty days after the building was ready for measurement upon thirty days’ written notice; and with bond by plaintiff for performance. Shipments, which had been stopped upon the controversy arising, were resumed after the second contract. Complaints continued that some of the material received did not conform to the measurements called for by the plans and specifications. Defendant was also a lumber dealer and shipped lumber to the plaintiff, receiving credit therefor and for defective millwork furnished by plaintiff and returned.
    Abstract of the Decision.
    1. Building and construction contracts, § 1

      —What constitutes contract for furnishing building material. Where an offer was made and accepted to furnish certain building material described in certain estimates and a schedule attached to the offer, but which made no reference to the plans and specifications for- the building, although such plans and specifications were before the person making the offer when he prepared such estimates and schedule, held
      that the estimates and schedule were complete in themselves and constituted the contract of the parties.

      Herbert A. Schryver, for appellant.
    Archibald Cattell, for appellee.

      See Illinois Notes Digest, Veis. 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 McDonald

delivered the opinion of the court.

2. Evidence, § 322 —when parol evidence is inadmissible to add to or vary terms of contract. In an action by a person making an offer to furnish building material described in certain estimates and a schedule attached to the offer, but which made no reference to the plans and specifications for the building, to recover the price agreed to be paid under the contract, held that as the estimate and schedules constituted the contract, parol evidence to show that the plans and specifications were a part of the contract, that plaintiff had agreed to furnish all material called for by them, and that the contract was partly written and partly oral, was inadmissible.

3. Accord and satisfaction—when contract for furnishing building material is an accord and satisfaction as to damages arising under prior contract. Where a controversy arose under a contract to furnish certain building material called for by estimates and schedule furnished as to certain of such material delivered not conforming to the plans and specifications for the building, which had not been made part of the contract, and a second contract was entered into by the parties as a settlement of such controversy and provided that material, delivered and to be delivered, should be made by the party furnishing such material to conform to the plans and specifications or upon his failure so to do after notice that the other party was authorized to so conform such material, held that the two contracts should be construed together and that the second contract was a complete accord and satisfaction for all damages accruing prior thereto.

4. Sales, § 364 —when contract does not deprive buyer of right to recover damages for breach of contract. Under a contract to furnish certain building material according to the plans and specifications for the building and providing that on the party agreeing to furnish such material failing so to furnish same the other party was authorized to purchase the material and charge same to the first party, held that such remedy of the other party was optional with him and did not deprive him of his common-law right to recover damages for a breach of the contract nor limit the first party’s liability for such breach.

5. Customs and usages, § 27 —when evidence of custom is insufficient. In an action to recover the value of material furnished, claimed to have been in part of scant dimensions, evidence held insufficient to show a custom permitting a lumber company to furnish material of scant dimensions so generally applicable or recognized as to be admissible, or that defendant had knowledgi of such a custom or presumably contracted with reference to it.

6. Sales, § 331 —when instruction as to measure of damages in action to recover for value of millwork and material is erroneous. In an action to recover for the value of certain millwork and material, an instruction that plaintiff was entitled to recover the fair market value of extras at the time and place they were furnished, held to be erroneous, as such instruction should have differentiated as to extras of the same general character as those specified in the contract, and should have stated that, as to those, recovery should be according to the contract price.


text:
    Cedar Rapids & Iowa City Railway & Light Company, Appellee, v. Sprague Electric Company, Appellant.
    Gen. No. 21,918.
    1. Damages, § 68

      —what is effect of not using reasonable diligence to mitigate. The rule that a party may recover damages caused by defective construction of property presupposes that the injured party has used reasonable diligence to protect himself from avoidable consequences after discovery of the defect, and his damages are therefore limited to such expenses as he could not have avoided by the exercise of reasonable care.
    2. Damages, § 68

      —when buyer may not recover damages resulting from use of voarranted article known to be defective. Where a warranted article proves defective and the danger of its continued usage becomes obvious to the buyer of such article, who knowingly continues to use' it without remedying the defect, he does so at his peril, and he cannot, in an action against the seller for breach of warranty, recover for such damages as result of such negligent conduct on his part.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed February 9, 1917.

      Cummins, Roemer, Milkewitch & McKenna, for appellant; Elijah N. Zoline, of counsel.
    Moses, Rosenthal & Kennedy, for appellee; Henry H. Kennedy and S. Sidney Stein, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.

Appellee, the Cedar Rapids & Iowa City Railway & Light Company (plaintiff below) recovered a judgment on a directed verdict against the defendant, the Sprague Electric Company, for the sum of $6,717.40, to reverse which this appeal has been prosecuted.

Plaintiff’s action is predicated on a contract of warranty, by the terms of which defendant agreed to furnish and erect for the plaintiff at its plant in Cedar Rapids, Iowa, a monorail electric shovel and runway, to be used by the latter to convey coal to its power plant. This carrying device was operated on an overhead monorail mounted on a steel structure about thirty feet high and seven hundred feet long. .This structure, also referred to as a runway, was supported on each side by a row of perpendicular columns, connected on top by transverse beams, all joined and braced so as to form a continuous structure.

The overhead monorail consisted of a series of adjoining I-beams placed midway between the steel columns, and extended the full length of the structure. The beams comprising the monorail or runway beam were fastened underneath the transverse beams above, and were secured thereto by means of iron brackets or lugs. These brackets were riveted to the bottom of the upper flange of the runway beam and to the transverse beams above, and were so secured that the weight of the conveyor as it passed over the runway beam was upon the brackets and not directly upon the rivets which held them in place.

At one point on the runway, however, the lug or bracket was omitted, the runway beam or monorail being secured directly to the crossbeam above by means of four three-fourths inch rivets, two on each side of the beam, placed in holes drilled through the upper flange of the runway beam, so that when the conveyor passed- this point its weight was directly upon these four rivets. The section of the monorail so fastened at one end is identified in the record as beam “B-20.”

The conveyor was electrically propelled, and, when in operation, traveled along the lower flanges of the I-beams comprising the monorail. The operator’s place was in a small inclosure, or “cage,” suspended from the monorail.

After the conveyor had been in operation about eight months, the riveted end of the said beam B-20 gave way under the weight of the conveyor as it passed that point, precipitating it to the ground and causing' the almost instant death of the operator, one Duncan, who was an employee of the plaintiff.

Subsequently the legal representative of the said Duncan sued plaintiff in the Iowa courts for wrongfully causing his death, and recovered a judgment for $6,161.40 and costs, which amount plaintiff now seeks to recover over from defendant, on an alleged breach of the following warranty contained in the contract under which defendant constructed. the said tramway apparatus and equipment:

“The company (defendant) guarantees the apparatus and equipment, covered by this agreement, to be free from imperfections in their manufacture for a period of one year from date of invoice. Should any such defects appear within that time traceable to above causes, the".company will repair or replace such defective parts, if an inspection proves the claim. This guarantee also covers the runway beam against rolling, curling or buckling, due to operation of monorail on its lower flange.”

It appears from the evidence that, shortly after the plaintiff began to operate the conveyor, one of the rivet heads sheared off and fell to the ground, when the conveyor passed the point at which beam B-20 was riveted to the crossbeam above, and after an inspection thereof by plaintiff’s employees the rivet was replaced. Thereafter, the rivets continued to shear at this point—sometimes one and sometimes two at a time—and plaintiff continued to operate the conveyor, after replacing them. After the conveyor had been in operation for about six weeks, plaintiff substituted three-fourths inch bolts for the rivets. However, these too proved inadequate, for the weight of the conveyor caused the bolts to break or shear from time to timé, as had the rivets.

No complaint was ever made by plaintiff to the defendant, regarding any defect in the construction of the tramway. Some difficulty was experienced with the electrical apparatus in the conveyor, and defendant’s electrician, one Rowlands, was sent to Cedar Rapids to make some changes in the motor. On this occasion Duncan informed Rowlands of the insecure beam fastening; that the rivets and bolts had sheared, and that they came near having a serious accident a few days before; that he (Duncan) had noticed a severe jar as the conveyor passed that point, and that upon- investigation he discovered that two of the bolts supporting the monorail had broken off. This took place shortly after the substitution by plaintiff of bolts for rivets.

The evidence further shows that Rowlands then took the matter up with one Ford, who was plaintiff’s chief engineer and whose duty it was, inter alia, to look after the condition of the runway beam, i. e., the monorail, and informed him that it was dangerous to operate the conveyor over it in that condition; whereupon Ford stated that he was well aware of the necessity of a bracket at this point, and referred Rowlands to his (Ford’s) immediate superior, one Martin, who was the assistant superintendent of the plant, for permission to make the bracket. Rowlands further testified that he immediately went to the said Martin and told him substantially what he had already stated to Ford, and asked Martin to authorize the making of such a bracket; that Martin said he would have it attended to; that subsequently he (Rowlands) went back to Ford and discussed with him the manner in which the bracket should be made and put up.

The evidence also shows that at the time in question plaintiff’s superintendent, one Green, was out of the city, and that the said Martin was in charge of the plant during Green’s absence; that the said Ford took the matter up with Green upon the latter’s return, but that Green refused to issue an order to make the bracket and stated it was “up to the Sprague Electric Company to fix that.”

Rowlands further testified that at the time in question he made a written report of the matter to the defendant, wherein he stated the situation, and that he had arranged to have plaintiff make a bracket; that he sent one copy thereof to defendant’s Chicago and the other to its New York office.

The testimony of Ford was, substantially, a corroboration of Rowlands’ testimony, and also showed that the cost of making the bracket in question would have been approximately $6, and that plaintiff had facilities for making it.

Pursuant to Green’s direction, no bracket was made, and plaintiff continued to operate the apparatus in its •then condition until the date of the accident, without notifying defendant that it had in the meantime decided not to make the necessary change, or that it was relying upon the defendant to do so.

Defendant contends that upon this state of the record plaintiff cannot recover over for the accident in question.

From the foregoing it clearly appears that, prior to the fatal accident, plaintiff had knowledge of the inadequacy of the fastening of the beam at the point in question, and fully realized the danger of operating the conveyor while in such condition; that, notwithstanding this knowledge on its part, it continued to operate the conveyor without making the necessary changes itself or notifying defendant to do so under its contract of warranty.

The rule, that a party may recover damages caused by defective construction of property, presupposes that the injured party has used reasonable diligence to protect himself from avoidable consequences, after discovery of the defect, and his damages are therefore limited to such expenses as he could not have avoided by the exercise of reasonable care. 13 Gyc. 76; Sedgwick on Damages (8th Ed.), vol. 1, p. 295, and cases there cited.

It is undisputed that the apparatus furnished by defendant was defective - in the foregoing respect, and therefore unsafe. Plaintiff knew that if the runway beam gave way while the cage was passing the riveted end of beam.B-20, serious consequences would follow; and plaintiff was fully aware that by supporting the said beam with an iron bracket, in place of rivets or bolts, the danger would have been obviated. Its assistant superintendent had already agreed to make the necessary alteration. Yet, in the face of this situation, plaintiff’s superintendent (Green), upon his return to the city, concluded not to make the bracket, and stated that he would look to defendant to remedy this defect, but without giving defendant notice thereof.

While the purchaser of a warranted article may rely upon his warranty and recover damages for a breach thereof, yet where such warranted article proves defective and the danger of its continued usage becomes obvious to the purchaser, who knowingly continues to use it without remedying the defect, he does so at his peril, and he cannot, in" an action against the vendor for breach of warranty, recover for such damages as result from such negligent conduct on his part. (Merrimac Chemical Co. v. American Tool & Machine Co., 192 Mass. 206, 78 N. E. 419; Razey v. J. B. Colt Co., 106 N. Y. App. Div. 103, 94 N. Y. Supp. 59; Uhlig v. Barnum, 43 Neb. 584, 61 N. W. 749.) To hold otherwise would be to construe the contract of warranty as one of insurance.

Plaintiff makes the point that its assistant superintendent, Martin, had no authority to agree to make the bracket in question. From an examination of the evidence, ye are of a contrary opinion, for it is clear that, when tins agreement was made, Martin was in charge of plaintiff’s plant; that Green was out of the city at the time, and that on such occasions Martin had full authority to act in Green’s stead.

Plaintiff had, from the very beginning, replaced sheared rivets without ever notifying defendant, and had afterwards substituted bolts for the rivets, also without defendant’s knowledge. When these too proved inadequate, and Rowland’s attention was directed to their insufficiency while in Cedar Rapids, he immediately took the matter up with the man then in charge of the plant (Martin), explaining to him the urgency of supporting the runway beam with a bracket in place of rivets or bolts, and Martin assured him it would be attended to. Having consented to this arrangement, it was incumbent upon plaintiff to either carry it out or at least notify defendant that it had decided to annul it, and that it would require defendant to fulfil its warranty.

But even in the absence of any such agreement, it was plaintiff’s imperative duty,.upon discovery of the infirmity in the beam fastening, to either make the necessary alteration—the expense of which would have been trifling—or to notify defendant to do so, in the meantime discontinuing the use of the conveyor in its unsafe condition. In any view of the ease, there can tie no escape from the conclusion that plaintiff was flagrantly careless in this regard, and that its negligent conduct was the proximate cause of the fatal accident. Manifestly, therefore, the court erred in directing a verdict for the plaintiff in the sum of $6,717.40, and in refusing to direct a verdict for the defendant. Accordingly, the judgment will be reversed.

Reversed.


text:
    Wood Street Planing Mill Company, Appellant, v. Industrial Board of Illinois et al., Appellees.
    Gen. No. 21,941.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Petition by Wood Street Planing Mill Company, petitioner, against J. B. Vaughn, Peter J. Angsten and Robert Eadie, Industrial Board of Illinois, for a writ of certiorari to review proceedings before that Board under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, ¶5475(1) et seq.], wherein an award of $3,500 was made as compensation for the death of one Charles Brichacek. From a judgment quashing the writ of certiorari and dismissing the petition, petitioner appeals.
    Abstract of the Decision.
    • 1. Workmen’s Compensation Act, § 13

      —•when findings of Industrial Board will not be disturbed. Where the evidence before the Industrial Board upon which an award was based was conflicting as to whether the deceased was engaged in the course of his employment when he was killed, but was sufficient from which to reasonably infer that he was then so employed, held, on a petition for a writ of certiorari to review such award, that as the statute has conferred on said Board the sole right to pass upon questions of fact and the credibility of witnesses, the Appellate Court was powerless to disturb its findings, notwithstanding the Board attached undue weight to suspicious circumstances.
    2. Workmen’s Compensation Act, § 12

      —when evidence is sufficient to show that employee was killed while engaged in the course of his employment. In proceedings before the Industrial Board under the Workmen’s Compensation Act [Cal. Ill. St. Supp. 1916, f| 5475(1) et seg.], to recover compensation for the death of an employee, evidence held sufficient from which to reasonably infer that the deceased was when killed engaged in the course of his employment while operating a ripsaw in his employer’s planing mill.
    John A. Bloomingston, for appellant.
    David K, Tone, for appellees.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    The People of the State of Illinois ex rel. James J. Brady, Auditor of Public Accounts, Appellee, v. La Salle Street Trust & Savings Bank et al. In re Intervening Petition of Wexford Company, Appellant.
    Gen. No. 21,954.
    (Not to be reported in full.)
    Abstract of the Decision.
    Equity, § 110

      —when petition for intervention is properly dismissed. Where a party petitioning to intervene in a suit failed on the hearing of his petition to present any evidence in support thereof or to apply for a continuance for the purpose of procuring the testimony of a witness stated by him to be material, then absent from the city, held that there was no error in dismissing such petition.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.
    Rehearing denied February 19, 1917.
    Statement of the Case.
    Bill by the People of the State of Illinois ex rel. James J. Brady, as auditor of public accounts, complainant, against La Salle Street Trust & Savings Bank and others, defendants, Wexford Company, a corporation, intervener, to dissolve the La Salle Street Trust & Savings Bank and for appointment of a receiver therefor. From an order dismissing the intervening petition, the petitioner appeals.
    John M. Duffy, for Wexford Company.
    Hiram T. Gilbert and Charles Le Boy Brown, for appellee. -

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    White Oak Coal Company, Appellee, v. William Foster Burns and Mrs. Mary F. Burns, Appellants.
    Gen. No. 21,968.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Appeal and error, § 1165

      —what remains for review after striking MU of exceptions from, record. Where a bill of exceptions is stricken from the record there remains for consideration only such points as the common-law record presents for review.
    2. Appearance, § 8

      —when party is not properly before court. Where one of two joint defendants was not served nor his appearance entered except as agent for his codefendant, held that such defendant was not properly before the court, and that no valid judgment could be entered against him, notwithstanding, an order denying a motion to file an additional plea recited that the motion was made by “defendants,” as the word “defendants” included only those defendants who had been served or entered appearance.
    3. Judgment, § 199

      —when void as to all joint defendants. Where defendants are sued jointly, a judgment which is void as to one is void as to all.
    Appeal from the County Court of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action in assumpsit by White Oak Coal Company, a corporation, plaintiff, against William Foster Burns and Mary F. Bums, defendants. From a judgment for plaintiff, defendants appeal.
    George F. Ort, for appellants.
    Adams, Crews/ Bobb & Wescott, for appellee; George B. McKibbin, of counsel.

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

   Mr. Justice McDonald

delivered the opinion of the court.


text:
    John Pfiester, Appellee, v. Western Union Telegraph Company, Appellant.
    Gen. No. 22,057.
    1. Telegraphs and telephones, § 31

      —when evidence as to damages is inadmissible as being too speculative. In an action to recover damages for failure to deliver a telegram offering to pay the plaintiff a certain salary, held that the plaintiff’s testimony that had the telegram been delivered he would have accepted such offer was too speculative and conjectural to form the basis of a judgment for damages, and was inadmissible.’
    2. Telegraphs and telephones, § 37

      —when evidence is insufficient to show that sender would have accepted offer of employment if telegram had been promptly delivered. In an action to recover damages because of failure so to deliver the telegram, evidence held insufficient to support plaintiff’s contention that he would have accepted a certain telegraphic offer of employment had the telegram been delivered in due time.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed February 9, 1917.
    West & Eckhart, for appellant.
    George P. Merrick, for appellee.

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

   Mr. Justice McDonald

delivered the opinion of the court.

John Pfiester, plaintiff below, recovered a judgment for $2,000 against appellant, the Western Union Telegraph Company, for failure to deliver to him a certain telegram.

Plaintiff was a professional baseball player, employed by the Chicago League Ball Club. On May 3, 1912, he was notified by letter that his services were no longer required by that club, and that they had been released to the Milwaukee club of the American Association, and directed that plaintiff report.to the latter club at once for duty. Upon receipt thereof, plaintiff went to the Chicago office of the defendant company and sent the following telegram to the Milwaukee club:

‘ ‘ Chicago, Ill., May 3, 1912.

“Mr. H. Duffy,

Ball Park,

Milwaukee, Wis.

“Will pitch for you at three thousand per season.

Jack Pfiester,

4525 Washington Blvd.,

Chicago, Ill.”;

to which the Milwaukee Club replied as follows:

“Milwaukee, Wis., May 3, 1912.

“Jack Pfiester,

4525 Washington Blvd.,

Chicago, Ill.

Will give you three hundred per month.

Hugh Duffy.”

Defendant, in transmitting the latter message to Chicago, erroneously gave plaintiff’s address as 4526 Washington Boulevard, and owing to this error the said telegram was not delivered.

It appears from plaintiff’s testimony that on May 14, 1912, he inquired at the Chicago office of the defendant regarding the telegram from the Milwaukee club which he was expecting, and was informed that a telegram had been sent him from Milwaukee which, however, had not been delivered, and that plaintiff might see a copy thereof at the Cincinnati office of the defendant. Why this telegram was sent to the Cincinnati office is not disclosed by the record. It further appears from plaintiff’s testimony that on the following day (May 15th) he went to Cincinnati to interview the president of the National Commission of organized baseball, and, that while there, called at the office of defendant, where he was shown a copy of the telegram in question.

It will be seen, by reference to the undelivered telegram hereinabove quoted, that the Milwaukee club rejected plaintiff’s offer to pitch “at three thousand per season,” and made a counter proposition to pay him three hundred dollars per month, which would have amounted to considerably less than the figure named in plaintiff’s telegram. It was plaintiff’s contention that he would have accepted this counter offer had he received it, and, over objection, he was permitted so to testify. His claim for damages rests entirely upon such contention, and- without such testimony on his part there was no proof of any damage.

While the admissibility of evidence of this character has never been directly passed upon by our Supreme Court, yet both reason and the weight of authority reject it as being too speculative and conjectural to form the basis of a judgment for damages. It was plaintiff’s mere conclusion, based on a condition which did not exist at the time, and arrived at in the light of events which had subsequently transpired. The evidence was therefore inadmissible. Smith v. Western U. Tel. Co., 154 Ill. App. 499; Tully v. Western U. Tel. Co., 141 Ill. App. 312; Western U. Tel. Co. v. Ferguson, 157 Ind. 64.

But plaintiff’s testimony in this regard is refuted by his own admitted conduct, for the evidence shows that, even after having learned on May 15th of the offer in question, he made no effort to act thereon until several weeks later. The notice of May 3rd from the Chicago club expressly stated that the manager of the Milwaukee club desired him to report for duty at once. With this notice was inclosed a check to cover plaintiff ’s railroad fare to Milwaukee. The baseball season was already under way at this time, and the Milwaukee club had contracted with the Chicago club for plaintiff’s services for the season. Plaintiff entered into telegraphic negotiations with the Milwaukee club on the very day he received notice of his release by the Chicago club. There can be no question that plaintiff realized the necessity for prompt action, nevertheless, he waited from May 15th until sometime in June before acting upon the offer in question. Such conduct does not comport with plaintiff’s assertion that he would have accepted said offer had he received the telegram in due time. On the contrary, it bespeaks the utmost indifference to the situation, and can be reconciled only with the theory that plaintiff for the first time gave serious consideration to the offer of the Milwaukee club when he reported there in June. His own evidence, therefore, tended to show that he would not have accepted the offer in question on May 3rd, had he received the telegram, conveying it, in due time. On this state of the record, it is obvious that the trial court erred in denying defendant’s motion for a directed verdict. Hence, the judgment will be reversed.

Reversed.


author: Mr. Justice MgGoorty

text:
    Mary Kittier, Administratrix, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 21,803.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Negligence, § 48

      —when is proximate cause of injury. Negligence may be the proximate cause of an injury of which it is not the sole cause, and if one party’s negligence concurred with some other event, other than the fault of the injured party, to produce the injury, so that it clearly appears that but for such negligence the injury would not have happened, and both circumstances are closely connected with the injury in the order of events, such party is responsible, even though his negligent act was not the nearest cause in order of time.

      Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Affirmed.
    Opinion filed February 9, 1917.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Mary Kittier, as administratrix of the estate of Charles P. Kittier, deceased, plaintiff, against Chicago & Western Indiana Railroad Company, Chesapeake & Ohio Railway Company of Indiana and Chicago City Railway Company, defendants, to recover damages for alleged wrongful killing of the deceased. From a verdict and judgment against the Chicago & Western Indiana Railroad Company and assessing damages of plaintiff at $10,000, and finding the other defendants not guilty, said company appeals.
    Worth E. Caylor, for appellant.
    James C. McShane, for appellee.

      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. Justice MgGoorty

delivered the opinion of the court.

2. Railroads, § 738 —when evidence is sufficient to sustain finding that street car motorman is not guilty of contributory negligence. In an action to recover damages because of the death of a street car motorman who was killed after he had started his car forward across an intersecting track upon a signal from his conductor and after the railroad gates were raised, evidence held sufficient to warrant the finding of the jury that the deceased was not contributorily negligent.

3. Negligence, § 74 —when no duty exists to anticipate. Anticipation of negligence in another is not a duty which the law imposes.

4. Railroads, § 625 —what constitutes implied invitation by gateman for street car motorman to cross tracks. When a railroad gateman raises his gates it is an implied invitation from him to a waiting motorman on a street car on an intersecting track to proceed to cross the railroad tracks.

5. Workmen's Compensation Act, § 12 —when refusal of instruction as to unavailability of defenses of assumed risk, etc. is not reversible error. In an action against three defendants to recover damages for alleged wrongful killing, held not reversible error to refuse an instruction requested by one defendant that the defenses of assumed risk, fellow-servant and contributory negligence were not available to a codefendant, the employer, found not guilty, because it had elected not to come under the Workmen’s Compensation Act, where there was nothing in the record intimating that such defenses were not available as to such codefendant who alone was found guilty.

6. Judgment, § 217 —when refusal of motion in arrest of judgment is not error. The mere fact that the declaration in an action to recover damages because of death contains in each count two separate causes of action, one against one defendant under the Workmen’s Compensation Act and one against another defendant under the Death by Wrongful Act Statute, does not make the refusal of motion in arrest of a judgment against the latter defendant alone erroneous.


author: Mr. Justice McGoorty

text:
    Sarah Levitan, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 21,888.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action by Sarah Levitan, plaintiff, against Chicago City Railway Company, Chesapeake & Ohio Railroad Company, Chicago & Western Indiana Railroad Company and Calumet & South Chicago Railway Company, defendants, to recover damages for injuries sustained in a collision between a street car and a train of the Chesapeake & Ohio Railroad Company at a grade crossing. The action was dismissed as to the Chesapeake & Ohio Railroad Company and a verdict of not guilty was rendered as to the Calumet & South Chicago Railway Company. From a verdict of guilty and judgment against the remaining defendant and assessment of damages at $10,000, the Chicago City Railway Company appeals.
    It was urged by defendant that the trial court erred in giving the following instruction:
    “The plaintiff is not bound to prove herbase beyond a reasonable doubt, but is only bound to prove it by the preponderance of the evidence. The court instructs the jury that while, as a matter of law, the burden of proof is upon the plaintiff, and it is for her to prove her case by a preponderance of the evidence, still if the jury find that the evidence.bearing upon the plaintiff’s case preponderates in her favor, although but slightly, it would be sufficient for the jury to find the issues in her favor.”

      Abstract of the Decision.
    1. Instructions, § 87

      —when instruction on preponderance of evidence is not erroneous. In an action to recover damages for personal injuries, an instruction that the burden is upon the plaintiff to prove his ease by a preponderance of .the evidence and that if the jury find the evidence bearing on “plaintiff’s case” preponderates in his favor even slightly it would be sufficient to find the issues in his favor, held not objectionable as leaving the jury to determine what constitutes “plaintiff’s case,” regardless of whether that case was alleged in the declaration or not.

      It was also urged that the court erred in giving the following instruction as to the measure of damages:
    “If from the evidence and under the instructions of the court the jury find for the plaintiff then the jury will be required to determine the amount of her damages. In determining the amount of damages the plaintiff is entitled to recover in this case, if any, the jury have a right to, and they should take into consideration all the facts and circumstances as shown by the evidence before them, the nature and extent of plaintiff’s physical injuries, if any, so far as the same are shown by the evidence to be the direct result of the alleged accident, her suffering, if any, resulting from such physical injuries, if any, and such future suffering, if any, as the jury may. believe from the evidence she has sustained or will-sustain by reason of such injuries; her loss of time and inability to work, if any, on account of such injuries, and the jury may find for her such sum as they believe from the evidence and under the instructions óf the court will be fair compensation for such injuries, if any, so far as such damages and injuries, if any,, are qllegpd in the declaration and proved on the trial, and it- is not necessary that any witness should express an opinion as to the amount of such damages.”
    This case arose out of the same occurrence as the case of Kittier v. Chicago & W. I. R. Co., ante, p. 439.
    Franklin B. Hussey and Charles Le Boy Brown, for appellant; John B. Guilliams, of counsel.
    Edward J. Green and A. H. Banes, for appellee; Harry F. Brewer, of counsel. ' ,

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

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

   Mr. Justice McGoorty

delivered the opinion of the court.

2. Damages, § 207 —when instruction as to manner of arriving at verdict is erroneous. In an action to recover damages for personal injuries, an instruction as to measure of damages which instructed- the jury to consider “all of the facts and circumstances as shown by the evidence,” held objectionable, and the giving of same reversible error where the damages found were very high and apparently excessive.

3. Damages, § 24 —what is measure of for loss of time because of injuries. In an action to recover damages for personal injuries, the extent of recovery for loss of time on account of the injuries would be the value of the person’s services in the conduct of the business then engaged in.

4. Damages, § 207 —when instruction as to non-necessity of any witness expressing an opinion as to the amount of, is erroneous. In an action to recover damages for personal injuries, in the absence of specific evidence as to the value of services during the time lost due to disability, it is misleading and prejudicial to instruct the jury that it is not necessary “that any witness should express an opinion as to the amount of such damages.”

5. Instructions—when instruction directing a verdict is erroneous. An instruction which directs a verdict as to one defendant but prefaces same with conditions as to a codefendant having no connection with the directed verdict is objectionable.


author: Mr. Justice McCoorty

text:
    Sarah Levitan, Appellee, v. Chicago & Western Indiana Railroad Company, Appellant.
    Gen. No. 21,899.
    (Not to be reported in full.)
    Abstract of the Decision.
    Appeal and error, § 1803

      —when case reversed and remanded for new trial. Where one of two consolidated cases is reversed and remanded for new trial, the same action must be taken regarding the other case.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed and remanded.
    Opinion filed February 9, 1917.
    Statement of the Case.
    Action by Sarah Levitan, plaintiff, against Chicago & Western Indiana Railroad Company and Chicago City Railway Company, defendants, to recover damages for personal injuries. Case was consolidated for hearing with the case of Levitan v. Chicago City Ry. Co., ante, p. 441.
    Worth E. Caylor, for appellant.
    Edward J. Creen and A. H. Ranes, for appellee; Harry P. Brewer, of counsel.

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

   Mr. Justice McCoorty

delivered the opinion of the court.