author: Mb. Justice Smith

text:
    George Kenneth Young, Appellee, v. James L. Williams et al. James L. Williams, Appellant.
    Gen. No. 16,013.

      Negligence—what essential to recover. In order to recover for negligence not only must there be alleged and proved a duty, but also a breach of that duty and an injury resulting from such breach.
    Action in ease for personal injuries. Appeal from the Superior Court of Cook county; the HoN. G-eobge A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed.
    Opinion filed January 16, 1912.
    Rehearing denied January 30, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This action on the case was brought by the plaintiff, George Kenneth Young, by his next friend, against appellant, James L. Williams, and one Homer G. Howard, to recover damages for personal injury. On the trial the jury’s verdict found both defendants guilty, and assessed plaintiff’s damages at $3,000. The court set aside the verdict as to the defendant Howard, and granted him a new trial. The plaintiff then dismissed the suit as to Howard; and the court rendered judgment against defendant, James L. Williams, who appeals.
    James L. Williams was the owner of an apartment 'building at No. 4815 Prairie avenue, in the city of Chicago. Homer G. Howard was his. renting agent. The building was heated with steam. Some time during January, 1905, it was necessary to replace two of the radiators in the third apartment, or flat, of this building, because they leaked. The floor under the radiators had become weak, and this also required some repairs. The apartment was occupied by plaintiff’s mother and other members of the family. The building fronted west, and at the back of it there was a large private porch about seven feet in width and of the length of the width of the building. The porch was enclosed on the north and east by a rail, and on the south by a substantial partition extending from the floor to the ceiling. There was a door leading into the porch from the back stairs. The porch was screened in and was used as a place for the children of the family to play during the day, and also for others to sit on summer evenings. It was used exclusively by the tenants (the plaintiff’s mother and her family) of the third apartment, of which it was a part. It was cleaned and taken care of by them. The plumber who did the work took out the two radiators and placed them in this back porch. One of them was placed against or near the railing about in front of the kitchen door and about the middle of the porch, and the other was placed in the northeast corner of the porch. The radiators remained in these positions several weeks prior to the accident here involved.
    On Sunday, March 26,1905, about nine o’clock in the morning, the plaintiff went out on the porch above described, and after four or five minutes some of the other members of the family heard something fall and then the screams of the boy. They hurried out and found the boy lying on the floor of the porch and on him the radiator that had stood in front of the kitchen door. Upon examination by a physician, it was found that one of the plaintiff’s legs was broken; he was taken to a hospital, and a further examination revealed the fact that both bones of the leg were fractured below the knee, and one of them, the tibia, was protruding. He was in the hospital seven weeks, and was afterwards treated for some six or eight months. On complete recovery, the injured leg was found to he slightly shorter than the other.
    McCabe, Cloyes & Kull, for appellant.
    Bryan, Duval, McCormick & Wilbur, for appellee.
   Mb. Justice Smith

delivered the opinion of the court.

The evidence shows without controversy that the radiator stood in the position where it was at the time of the accident from the' first part of January, 1905, until March following. During this time it was in the premises leased to F. E. Janes and Mrs. E. Young, the mother of plaintiff, and was therefore under the control and disposition of the plaintiff’s mother. She could have removed the radiator from her premises at any time. If it constituted a danger or a, menace as it stood in the position where it was placed by the plumber who disconnected it from the building, it was her duty, or that of Mr. Janes, to remove it, or to so place it that no injury could be occasioned by it. From the facts appearing in the evidence the reasonable inference is that it was not dangerous unless some intervening force was exerted upon it which caused it to fall, for it had stood upon the floor where it was placed for upwards of two months.

The duty of appellant alleged in the amended declaration was to keep the premises in a safe and habitable condition, and “to prevent the placing of obstructions upon any of the stairs or balusters or landings or porches or other means of ingress or egress to or from said premises and buildings,” and that appellant violated that duty by wrongfully and negligently permitting and suffering the heaters to be and remain on the porch oh stairway or landing for several weeks. As applied to a stairway or landing or porch of the building which were under the charge and control of appellant as owner, and were used by the tenants of the building as a means of ingress or egress to or from the premises rented by them, as averred in the declaration, we think the duty of the appellant as owner to keep them safe and free from hazard and danger is plain and beyond question, but as applied to the facts shown in the case we are of' the opinion that appellant violated no duty legally resting upon him, which directly caused the injury.

In Chicago Union Traction Co. v. Giese, 229 Ill. 260, the principle of the law is re-stated as follows:

“The first requisite in establishing negligence is to show the existence of some duty and its violation. Negligence consists in the violation of a duty owing by the party inflicting the injury to the person injured. Back of every instance of negligence must be found a duty to the individual complaining, an observance of which would have avoided the injury. To state the principle in other language, in every case involving actionable negligence there must exist three essential elements: First, the existence of a duty on the part of the person charged to protect the complaining party from the injury received; second, a failure to perform that duty; and third, an injury resulting from such failure. When these elements concur they unitedly constitute actionable negligence, and the absence of any of these elements renders the pleading bad or the evidence insufficient, as the case may be. (2 Cooley on Torts, 3d ed., p. 1411, and cases cited.)

In our opinion two of the essential elements necessary to actionable negligence do not appear from the evidence in this case. The evidence does not show a duty on the part of appellant to remove the radiator from the premises occupied by his tenants; and second, assuming that such duty existed on the facts shown and he failed to perform it, the injury was not occasioned by such failure. The proximate cause of the injury was the force exerted upon the radiator which caused it to fall on the plaintiff. This force was exerted at the time of the accident, and necessarily^ intervened between the negligence claimed and the injury. The alleged negligent act of having the radiator in the porch and failing to remove it did not under the evidence proximately cause the injury. The injury was not the direct or proximate, natural or probable result of leaving the radiator standing in the porch.

Carter v. Towne, 103 Mass. 507, was an action in tort for carelessly and unlawfully selling to the plaintiff, a child eight years old, two pounds of gunpowder, which the plaintiff fired off and was thereby injured. It was held that the powder, having been in the legal custody and control of the plaintiff’s parents for more than a week before the injury, the act of- the defendant was not the direct proximate natural or probable cause of the injury.

In C. B. & Q. R. R. Co. v. Stumps, 55 Ill. 367, 374, it was said:

“The appellants are not responsible for causing this accident, merely, but only for negligence in causing it; and negligence is the omission of the means reasonably necessary, not absolutely necessary, to avoid injury to others. * * * When an accident has once occurred, because it is seen, after the event, that the use of a particular precaution would have effectually prevented it, that does not show that it was the duty of the appellants, beforehand, to have adopted that precaution. The duty was to have used every reasonable precaution, and not every absolutely necessary precaution, to avoid injury to individuals.
“The question is, rather, what would have been the course of a very prudent person, prior to the accident; whether he would have thought exposure to injury from such a cause, such a probable source of danger as to have required the adoption of any further precautions and safeguards than those used to protect against it.”

See also Illinois Steel Co. v. Zolnowski, 118 Ill. App. 209; Braun v. Craven, 175 Ill. 401; Sjorgren v. Hall, 53 Mich. 274; Hubbell v. Yonkers, 104 N. Y. 434; McGowan v. C. & N. W. Ry. Co., 91 Wis. 147.

A careful examination of the evidence leads ns to the conclusion that there is no evidence in the case which warrants or supports the verdict of the jury that appellant was guilty of negligence which caused or contributed to the injury of appellee.

As this conclusion strikes at the root of the action it is unnecessary to consider the other questions argued by counsel.

The judgment of the Superior Court is reversed with a finding of fact.

Reversed.


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Gross Loge des Deutschen Order des Harugari des Staates Illinois, Appellants, v. Maria Brausch et al., Appellees. Same v. Eliza Lowen et al., Appellees. Same v. Mina Trowbridge et al., Appellees. Same v. Emilie Bogenhagen et al., Appellees. Consolidated For Hearing.
    Gen. No. 16,027.
    Gen. No. 16,028.
    Gen. No. 16,029.
    Gen. No. 16,030.
    Fraternal benefit societies—who entitled to funds of subordinate lodge upon dissolution. Held, under the constitution and by-laws of the particular order involved in this ease, that the grand lodge of such order was entitled to the money in the possession of the subordinate lodge at the time of the surrender of its charter.
    Bills for accounting, etc. Appeals from the Circuit Court of Cook count j; the Hon. Lockwood Honoke, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded with directions.
    Opinion filed January 16, 1912.
    Sol Levisohn and Israel Cowen, for appellant.
    Matthew J. Iiuss, Joseph Sabath and Ammeri, Humphrey & Joyner, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

By its amended bills of complaint in four cases in the Circuit Court, the Grand Lodge of the German Order of Harugari of the State of Illinois (Die Gross Loge des Deutschen Ordens der Harugari des Staates Illinois), claimed accountings and decrees against subordinate lodges respectively (and their officers), which had surrendered their charters as such lodges to the complainant, but had refused to account and pay over the moneys in their hands in accordance with the regulations, by-laws and rules of the order. In each of the 'bills the subordinate lodge and its officers are made defendants. In all respects, except the amounts claimed the bills of complaint are alike and seek an accounting and recovery upon the theory that the moneys and funds sought to be recovered are impressed with a trust, and on the voluntary surrender of the charter and dissolution of the lodge in each case, such moneys and property should be paid over and delivered to the complainant, in pursuance of the regulations, by-laws and rules of the order.

The cases were consolidated for hearing in the Circuit Court, and a decree was entered in each case dismissing the bill for want of equity. The complainant, the Grand Lodge of the State of Illinois, prosecutes an appeal from each decree, and the appeals in Numbers 16,028, 16,029 and 16,030 in this court have been consolidated by order of the court with number 16,027 for hearing upon one set of abstracts and briefs.

The bills and the evidence show the character of the organization of the complainant and its subordinate lodges. This in part appears in Freundschaft Lodge v. Alchenburger, 235 Ill. 438, and in the same case in this court, Alchenburger v. Freundschaft Lodge, 138 Ill. App, 204.

The averments of the bills and the proofs show that the United States Grand Lodge of the German Order of Harugari is a voluntary organization with a constitution governing its actions and that it is the Supreme Lodge within the order of Harugari. Subordinate to it are the Grand Lodges in the various states, among which is the complainant, the Grand Lodge of the State of Illinois. This lodge exercises the highest jurisdiction in this state and is exercising its power under the fraternal state law of Illinois of 1893. Subordinate to the Grand Lodge of the state are subordinate lodges within the state, consisting of men’s lodges and women’s lodges. Prior to the Constitution of 1904 the women’s lodges had no participation in the death fund of the order, but after that period they became entitled to such participation by paying an increased per capita tax amounting to $1.20 per annum. The order is organized not for pecuniary profit but is a fraternal society.

In the years 1894 and 1895 respectively four subordinate lodges to the complainant, namely, Hertha Lodge No. 73, Einigeit Lodge No. 74, Treue Schwester Lodge No. 79 and Immergruen Lodge No. 82, all of the Hertha Degree, received and accepted their charters from the complainant. The charters of the above defendant lodges were signed by the officers of the United States Grand Lodge, and the State Grand Lodge. The charters for all the four subordinate lodges, defendants, were the same except as to dates and names. They each provided that the lodge should consist of at least five members, and that the books and papers of the lodge must be submitted at all times to the Grand Lodge for examination whenever dissatisfaction is expressed by any member with the decisions and resolutions of the lodge,- that each officer before his installation should be examined as to whether he possessed the "necessary qualifications, by the president or by any grand officer deputized for the purpose. Each lodge was empowered to enact such by-laws as it might deem best for the welfare of the lodge, provided such by-laws should not be in conflict with the constitution of the order. Each lodge was granted all rights and privileges of a lodge as long as it worked within the limits of the constitution. Should, however, the lodge transgress the same, then the charter and papers and all the property of the lodge should be forfeited and delivered to the Grand Lodge. In case the lodge cannot exist all its property must be delivered to the Grand Lodge.

The Hertha degree was a degree used by the order and had for its purpose the giving to women, married and unmarried, the opportunity to participate in advancing the tenets and privileges of the order, such as mutual assistance in sickness, distress and death, as well as the promotion of, social ties among families through'lodge meetings and festivities.

By the Constitution of the United States Grand Lodge it is provided that the State Grand Lodge has final jurisdiction and is the highest tribunal of the order within the state, and that no subordinate lodge can exist without the consent of the State Grand Lodge, and if application for a charter is made the Grand Lodge possesses the power to accept or reject such application, and in case of acceptance it shall recommend the same to the United States Grand Lodge. The State Grand Lodge, with the consent of the United States Grand Lodge, is empowered to shspend any charter for any period of time or to revoke the same, and may also amend the constitution for subordinate lodges within its jurisdiction, in order that the laws shall correspond with the laws of the state where such Grand Lodge exists; also to accept appeals to redress all wrongs existing in subordinate lodges, to designate and regulate all ways and means for its own support, and to perform all other matters which promote the interests of the order, provided the same do not conflict with the laws of the order or country.

The evidence tends to show that the defendant lodges received their charter existence from the Illinois State Grand Lodge, and accepted such charters and acted under the same, recognizing the jurisdiction of the State Grand Lodge. Each of the defendant lodges became and was, pursuant to special act of the legislature, approved March 26, 1869, a corporation, and they each remained a Harugari lodge as such up to or about the first day of October, 1904, when each of the said defendant lodges by unanimous vote, for reasons which are not important or material here, returned the fraternal charter under which they had been existing, through their representatives, to the State Grand Lodge and the State Grand Lodge, the complainant, has ever since had possession of the same. The defendant lodges, however, refuse to pay their funds or deliver their securities over to the State Grand Lodge, according to the by-laws and charter regulations of the order, and have either retained the same or divided the funds and moneys among their members, or have transferred such moneys and funds to new organizations which were organized by the members of the respective defendants when they voted to surrender their charters..

The controversy in these cases arises upon the true intent and meaning of the charter, by-laws, rules and regulations of the order with regard to the proper and rightful 'custodian of the moneys, funds and property of subordinate lodges which have dissolved and surrendered their charters. The contention of the complainant is that under the charters, by-laws, rules and regulations of the order, such moneys and property should be delivered by the subordinate lodges, upon their ceasing, to be lodges in the order, to the State Grand Lodge, the complainant, by which such moneys, funds and property pire to be held in trust for any new organization or lodges which may be formed in place of the dissolved lodges, when the moneys, funds and securities so turned over to the Grand Lodge of the State were to be paid and turned over to the new organizations.

The constitution of the United States Grand Lodge in Article XII, Section 6, provides:

“If a subordinate lodge is suspended for a certain period, or expelled, or its charter is surrendered or forfeited, it becomes the duty of the last installed officers and members, or those who may be possessed thereof, on demand duly made, to assign, transfer and deliver the charter, books, papers, property and funds of the lodge to the president or vice-president who may especially be authorized for this purpose by the Grand Lodge or its president. Any officer or member refusing to deliver any of the property of the lodge when demanded shall be and remain expelled forever even if the charter and all the property be returned to the lodge.”

Section 7 of the same Article provides, that all effects and funds which are received by the Grand Lodge under Section 6 shall be kept separate and apart from the other funds and property of the Grand Lodge, and shall never be and constitute a part of the funds of the Grand Lodge, but shall always be preserved and be returned to the Lodge after the expiration of its suspension, and reinvestment of its charter; provided, however, if such Lodge is not renewed or installed within three years the funds shall be embodied in the general funds of the Grand Lodge.

The proofs show that prior to the filing of the bill in each case a notice in writing was served upon each of the defendants which had money, funds and securities and property of their respective lodges by the complainant, the State Grand Lodge, demanding immediate delivery thereof to the Grand Secretary of the complaihant, and designating certain persons in the notice named to receive the same. This notice was given in accordance with the constitution of the order.

Upon' consideration of the evidence and proofs, which are very voluminous, we are of the opinion that the complainant, the Grand Lodge of the State of Illinois, under the by-laws, rules and regulations of the order, became entitled to the money in the possession of each lodge upon the surrender of the charter of that lodge, and that it was the duty of the defendant lodges respectively, upon the voluntary surrender of their charters, to turn over to the complainant all property belonging to the lodge, and pay over all funds belonging to the lodge to the complainant.

We are of the opinion that the proofs show that the defendant in each case wilfully violated the laws, rules, and regulations of the society in disposing of the funds shown to be in its hands and possession in the manner in which those funds were disposed of. In our opinion the money shown to be in the possession of the respective defendants was contributed under the charter and by-laws and rules and regulations of the order, and was dedicated to the purposes of the order; and that from the time when it was contributed to the defendant lodges it was held in trust by those lodges and their officers, or by those into whose hands it was committed, for the uses and purposes of the order and under the rules and regulations of the order. It was also held by the defendant lodges and their officers respectively in trust to pay over to the State Grand Lodge, the complainant, in case of the surrender of the charter of the defendant lodges and the dissolution thereof. The defendants, therefore, either as lodges or as members of the lodges had no power to divert the money in their hands from the purposes of the order.

In State Council v. Sharp, 38 N. J. Eq., page 24, there was involved the question as to the right of the Grand Order of the United American Mechanics to recover and hold for the purposes of that order funds of a subordinate council which had voluntarily disbanded and surrendered its charter to the State Council, and had divided all of its effects among its members, and it was held that the moneys in the hands of the defendants were impressed with a trust; and that the attempt of the subordinate council to distribute the money contrary to the rules and regulations of the order was a violation of the trust, and that the complainant had a right to recover the funds so attempted to be diverted.

In Knights of Pythias v. Germania Lodge, No. 50, 56 N. J. Eq., 63, a similar question was presented, and the vice-chancellor held as follows:

“It is familiar law that funds accumulated as were these here in question become, as soon as paid in, impressed with a trust with all its consequences. In this case, the terms of the trust are found in the constitutions of the Supreme, Grand and subordinate lodges, and the laws of the former and by-laws of the latter. The funds' being impressed with such a trust cannot lawfully be diverted therefrom, and all persons aiding and assisting in such diversion are guilty of a breach of trust and liable for the consequences.” (Citing numerous authorities.)

In Hermanns-Soehne v. Wolfer, 42 Col. 393, a suit was brought by the Grand Lodge of the Sons of Hermann against certain individuals, who were formerly officers of a subordinate lodge of the same order, to recover certain funds alleged to have been wrongfully diverted and appropriated among themselves and other members of the subordinate lodge. The subordinate lodge in that case had disbanded and had divided its assets among its members, instead of paying them over .to the Grand Lodge as required by the constitution of the order. The court held upon the authority of the above cited cases that the assets held by the subordinate lodge and its officers were held in trust, and that the Grand Lodge could maintain an action against the officers of the subordinate lodge for the funds misappropriated and divided among themselves without bringing an action against the subordinate lodge itself although incorporated, since the Grand Lodge had the right to follow the trust fund into the hands of such officers.

In our opinion, the bill presents a well established ground for an accounting and recovery against the defendant lodges, respectively, for all funds and property in their hands at the time of the surrender of their charters; and that the evidence tends to show that the defendant Hertha Frauenverein had on hand at the time of the surrender of its charter the sum of $802.93; and that the Treue Schwester Lodge, No. 79, defendant, and the other defendant members of such lodge, had on hand the sum of $2,089.04 belonging to such lodge; and that the Immergruen Lodge No. 82 had the sum of $605.34 belonging to such lodge; and that the defendant Einigkeit Frauenverein had the sum of $993.73 on hand when it surrendered its charter.

Iñ our opinion, the complainant is equitably entitled to a decree against the defendants respectively for the above amounts, and that the chancellor erred in dismissing the bills for want of equity.

A motion was made by the appellees and reserved to the hearing that the appeals be dismissed for the failure to file an abstract of record in compliance with the rules of court, or that appellant be ordered to pay the costs of the additional abstract filed herein. Both branches of the motion are denied.

The decree in each case is therefore reversed and the case is remanded with directions to the court below to enter a decree in favor of the'complainant in each case for the amount of money shown by the evidence to be in the hands of or possessed by the respective defendants.

Reversed and remanded with directions.


text:
    Law Union & Crown Insurance Company, Appellee, v. Harry E. Dunn et al., on appeal of Thomas Prather, Appellant.
    Gen. No. 16,059.

      Suretyship—obligation of grantee to indemnify against mortgage indebtedness. “Whenever the mortgage debt forms a part of the consideration and is deducted from the purchase money, the grantee is bound to the extent of the property, to indemnify the grantor, but is not personally liable for the mortgage debt.”
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    Matthews S. Bradley, for appellant; Goodman, Frank & Colbert, of counsel.
    Wilson, Moore & McIlvaine, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This appeal is from a foreclosure decree of the Circuit Court, foreclosing a mortgage of $25,000 upon lot 22 in the subdivision of lots 67 to 70 in the east part of Ellis addition to Chicago. The question presented arises on that part of the decree which directs that the east 170 feet of the lot shall he first sold to satisfy the mortgage.

The lot has a frontage on Ellis avenue of 66 feet and a depth of 243 feet. The east 170 feet of the lot are improved- by a four story twelve flat building, having a frontage of 66 feet and a depth of about 110 feet.

The entire lot became the property of John W. Ulm, subject to the mortgage of $25,000. By a warranty deed, dated May 20, 1908, and recorded July 18, following, Ulm conveyed to appellant, Thomas Prather, the easterly 170 feet of the lot, with the building thereon, subject to the encumbrance of $25,000. The undisputed evidence is that the land and the building located on the easterly 170 feet of the lot were worth from $66,000 to $75,000.

On June 1, 1908, Ulm conveyed by warranty deed to appellee, John U. Hoffman, lot 22, except the easterly 170 feet thereof. The deed was one of general warranty, and in it no reference was made to the encumbrance of $25,000. The price paid by Hoffman was $4,000. On the same date Hoffman by a trust deed conveyed the westerly 66 feet of lot 22 to the Chicago Title & Trust Company, trustee, to secure a note for $3,000, payable in five years, with interest at six per cent. The trust deed contained covenants of general warranty, and made no mention of the $25,000 encumbrance. The note secured by the trust deed to the Chicago Title & Trust Company is owned by appellee, Maria A. Warren.

As to the transaction by which appellant Prather became the owner of the east 170 feet of the lot and improvements thereon, the evidence shows that he traded a ranch in California therefor. Prather was informed in that transaction that there was an encumbrance of $25,000 on the property which fell due the 21st day of May, 1908. He inquired whether he could renew it, and subsequently after the trade was closed, Prather requested appellee, Hoffman, to arrange a loan for $25,000 at the best rate obtainable.

Ulm testified that Prather was to assume the mortgage, and that he asked if he could renew it, and that Ulm told him he could not answer that question, but presumed that it could be renewed. Ulm further testified before the master that he offered the property, subject to this $25,000, for the California ranch, provided the ranch was what they thought it was, and that Prather offered the ranch to him for the equity in the building subject to the $25,000 mortgage; and the trade was ultimately made upon this basis. It is clear we think from the evidence that Prather agreed to take the east 170 feet of the lot in question, subject to the $25,000 mortgage. The negotiations finally ripened into a contract, as above indicated, whereby Ulm agreed to convey to Prather in consideration of $10 and other good and valuable considerations the easterly 170 feet of lot 22 above described, subject to the trust deed in controversy securing the $25,000 note, and Prather agreed to convey to Ulm the California ranch in consideration of $10 and other good and valuable considerations.

In our opinion the correspondence between the parties introduced in evidence shows that Prather at the time the contract and conveyances were made, and subsequent thereto, considered himself bound to take care of the $25,000 mortgage, and that in his mind the entire $25,000 constituted an encumbrance upon the 170 feet and building which he purchased, and formed a part of the consideration which he paid for the property. The parties so construed the contract after it was made, and we think that that construction corresponded with the- facts and the real agreement of the parties.

The provision in the decree to which appellant objects is the direction that the east 170 feet of the lot be first offered for sale separately, and the question thus presented is whether in trading his California ranch for the east 170 feet of the lot on Ellis avenue with the flat building thereon, appellant took the property subject to the entire encumbrance and regarded the encumbrance as a part of the consideration for the property; or, in other words, whether the entire encumbrance was in fact deducted from the price which he was to pay for the property and should in equity be charged against his property instead of against the property of the appellees.

In Pingrey on Mortgages, sec. 1020, it is said:

“Whenever the mortgage debt forms a part of the consideration and is deducted from the purchase money, he (the grantee) is bound to the extent of the property, to indemnify the grantor, but it is not personally liable for the mortgage debt.”

In 27 Cyc. 1371 c., it is said:

“Where a part of mortgaged premises is sold under and subject to the mortgage, it becomes primarily liable therefor, and the liability of the remainder of the land, whether retained by the mortgagor or sold to other persons, secondary, so that the rule as to subjecting the parcels in the inverse order of alienation does not apply. But according to some of the authorities the mere recital in the deed that the land sold is subject to the mortgage is not enough to bring about this result, but there must also be something to show that the purchaser becomes responsible for the mortgage debt, as where it is declared to be part of the consideration, or the amount of it is deducted from the purchase price.”

The above doctrine is supported and upheld in Drury v. Holden, 121 Ill. 130; Zabriskie v. Salter, 80 N. Y. 555; Brown v. South Boston Savings Bank, 148 Mass. 300, and many other cases.

There is no real controversy here as to the law of the case as we read the briefs. The doctrine of mar-stalling the assets in the inverse order of alienation, urged by appellant, has no application to this case. Brisco v. Power, 47 Ill. 447; Monarch Coal & Mining Company v. Hand, 197 Ill. 288.

In our opinion the provision of the decree complained of was proper and equitable upon the evidence shown in the record. The decree is affirmed.

Affirmed.


text:
    John Huston et al., Appellees, v. Louis M. Newgass et al., Appellants.
    Gen. No. 16,076.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    Newman, Northrup, Levinson & Becker, for appellants ; Harry Goodman and Chester E. Cleveland, of counsel.
    Guerin, Gallagher & Barrett, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This action of assumpsit is brought by the payee in a draft, against the acceptors, for nonpayment. The acceptance was by letter written before the draft was issued. The case has been to the Supreme Court on review from a former trial, and is reported in Huston v. Newgass, 234 Ill. 385. The material facts are stated in the opinion of the Supreme Court and the substantive law governing the case is there laid down. Appellants urge that the Superior Court erred in denying the motion of defendants to exclude each of the counts in the declaration from the consideration of the jury on the ground that there was no evidence to sustain the same. We are of the opinion that the court did not «err in denying the motions of the defendants.

It is next urged that the court erred in denying the motion of the defendants to exclude all the evidence and direct a verdict in their favor. There is no sound basis in the case for urging error on this ground.

It is also urged that the court erred in admitting in evidence certain checks marked Exhibits 14 to 23, which were given for the fourteen horses composing the shipment of July 20, 1904, on the ground that the checks were immaterial because the draft of July 21 shown in evidence does not come within the terms of the letter of April 15, 1904, by which defendants accepted in advance the draft. While the checks were not necessary evidence in order to authorize the plaintiffs to recover we think they were admissible upon the ground that they tended to show the manner in which the business was conducted by Grindell and Dainty while they were purchasing horses for shipment to the defendants.

It is claimed that the trial court erred in admitting in evidence the checks marked Exhibits 1 to 13 and 24 to 32 because such checks were not given for the fourteen horses composing the last shipment to defendants. The remarks made with reference to the other exhibits are applicable to these, and we think the court did not err in admitting the evidence.

The draft dated July 21, 1904, was admitted in evidence. Error is urged on admission of the draft because it did not come within the terms of the letter of April 15, 1904. We think there was no foundation for the objection and the court properly admitted the draft.

The trial court did not err in excluding’ evidence tending to show that the partnership of Dainty & Grin-dell was dissolved before the last shipment, for the reason that there is no evidence tending to show that the plaintiffs were notified of such dissolution, and under the law as laid down in Huston v. Newgass, supra, the partnership was not dissolved as between plaintiffs and Grindell and Dainty until notice of its dissolution was served upon plaintiffs.

For the same reason the court properly excluded evidence tending to show that the last shipment was made by I. Grindell and not by Dainty & Grindell.

It is urged that the first instruction given at the request of the plaintiffs was improper in that it submitted to the jury as a question of fact whether the draft of July 21, 1904, was drawn pursuant to the terms of the letter of April 15, 1904, and whether that letter was an acceptance of the draft of July 21; and furthermore it is urged that the instruction purported to tell the jury under what circumstances plaintiffs would be entitled to a verdict, and improperly singled out part of the evidence and ignored material evidence, and also ignored defendants’ theory of the case.

In our opinion these objections are based upon either a strained or unnatural construction of the instruction or a misconception of its purport and plain meaning. The instruction may be obnoxious to objections in some of its phrases, but it states the law of the case and it was not misleading to the jury.

It is urged that the court erred in giving the second instruction asked by the plaintiffs, upon the ground that the instruction improperly told the jury that they must not take into consideration what the horses were sold for after they were received by the defendants. The ruling of the court was proper. The evidence as to what the horses were sold for after they were shipped to Chicago was irrelevant and immaterial to the case.

It is urged that the court improperly told the jury in the seventh instruction, given at the instance of the plaintiffs, that any evidence tending to show a dissolution of the partnership of Dainty & Grindell was wholly incompetent and should be disregarded by the jury. This we think was a correct instruction, under the ruling in Huston v. Newgass, supra.

We do not think that the eighth instruction, given by the court at the request of plaintiffs, left the jury to speculate as to the amount, if anything, due to plaintiffs on account of the cause of action set forth in the declaration.

The court refused an instruction requested by the defendants to the effect that the common counts of the declaration consisted of several different counts, but that they should give consideration to only one of the counts, namely, the count for money had and received, and so far as that count was concerned, they should find in favor of the defendants, unless they believed from the evidence and under the instructions of the court, that the plaintiffs were entitled to recover from the defendants the amount which the fourteen head of horses comprising the carload of horses shipped on or about July 20, 1904, brought at the sale of horses at the Hnion Stock Yards. The court ruled correctly in refusing the instruction.

The court also refused the second instruction requested by the defendants, to the effect that if the jury believed from the evidence that the plaintiffs presented or caused to be presented to the defendants for payment the draft set out in the plaintiffs’ declaration, bearing date July 21, 1904, and it was given for a considerable amount more than I. Grindell or Dainty & Grindell had paid for the horses shipped to Newgass & Son on or about July'20, 1904, and that Newgass & Son refused to honor and pay the draft for the reason among others that the same was for an excessive amount, the plaintiffs could not recover from the defendants upon the draft. We think upon the evidence offered in the case the refusal of the instruction was correct, as it did not state the law applicable to the case.

By the third instruction requested by "the defendants the court was asked to inform the jury that they should take into consideration only those checks which were given on account of the cost of the fourteen head of horses which comprised the carload of horses shipped on or about July 20, 1904. The court refused to give the instruction. The instruction if given would in our opinion have been misleading and improper, and the ruling of the court in refusing to give it was correct.

Appellants urge that the court erred in refusing to submit to the jury special findings numbered 1, 2, 3 and 4 requested by defendants. We do not think that material error was committed by the court in refusing to submit the findings to the jury.

Upon a careful consideration of all the evidence offered in the case we are of the opinion that it abundantly sustains the verdict of the jury, and the special findings. The evidence in the record leaves no doubt whatever in the mind of the court that the verdict and judgment was amply supported by the evidence produced in the case, and that the court and jury could not under the evidence arrive at a different conclusion from that expressed in the judgment.

We find no reversible error in the record, and the judgment is accordingly affirmed.

Affirmed.


text:
    Warren Pease, Appellee, v. Chicago Crayon Company, Appellant.
    Gen. No. 16,106.
    1. Mandamus—when demand to inspect corporate records sufficient. Held, in this ease, that both the written and verbal demands made to inspect corporate records were sufficient, and that such demands having been refused mandamus was properly awarded.
    2. Mandamus—when objections cannot be urged on review. It is too late to urge on review for the first time that a writ of mandamus requiring an inspection of corporate records to be accorded to a stockholder, runs only against the corporation.
    3. Mandamus—bwrden to establish improper purposes in seelcvng inspection of corporate records. If a corporation has reason to believe that the motives actuating an application to inspect corporate records are illegal and refuses inspection on that ground, it assumes the burden to prove such improper or illegitimate purpose.
    Mandamus. 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; 1909.
    Affirmed.
    Opinion filed January 16, 1912.
    A. D. Gash, for appellant.
    Pease, Smietanka & Polkey, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee, who is one of the shareholders of appellant, an Illinois corporation, filed a petition for mandamus setting out his ownership of fifteen shares of the capital stock of appellant; that he had made demand on the corporation to be allowed an inspection of its books and that the demand was refused. The petition further sets forth the purchase of the stock by appellee, and that immediately upon such purchase he offered to surrender the certificate and asked the sec-rotary of appellant to issue him a new certificate; that this demand was refused upon the ground that the stock represented by the certificate had been sold in legal proceedings, and that appellee thereupon began a suit and obtained a decree that a stock certificate be issued to him for his shares, which decree upon appeal to the Appellate and Supreme Courts respectively was affirmed. Pease v. Crayon Co., 235 Ill. 391.

After appellee’s right to the stock had been settled by the above litigation he obtained his certificate. The petition further sets forth that appellee made both verbal and written demands for the right to inspect the books of appellant, and sets out a written demand dated Chicago, December, 1908, and the refusal to comply therewith.

To the petition appellant interposed a general and a special demurrer. The special grounds assigned were as follows:

1. That the second, third and fourth paragraphs on page one and all of pages two and three of the petition are immaterial in the case to the issue raised by the prayer therein.

2. That reference to the demand for dividends and refusal of said defendant was immaterial to the issue raised therein, there being no prayer for dividends and there being an allegation that another suit for dividends is pending.

3. That said petition pleads a demand for permission to examine the books by an expert bookkeeper or accountant, whereas the pretended demand was in writing, set out in the petition, and is not a demand but only a request for permission to examine the books.

4. That the request asks for all the minute books of the corporation, whereas the plaintiff is not legally entitled to examine the minutes of the directors ’ meetings. ...... . :

5. Because said petition alleges and says that such examination is desired for speculation purposes and not for a legal purpose of a stockholder.

6. Also that the petition is in other respects uncertain, informal and insufficient.

The court overruled the general demurrer and all of the special demurrer except clause number four, and the defendant excepted to the ruling and stood by its special and general demurrer. The court awarded a writ of mandamus directed to the defendant commanding it to permit George Catto or such other responsible or reputable person as petitioner shall appoint to make an examination of all the books of account of said defendant, general ledgers, general cash books, general journals, customers’ ledgers and all records, documents and files of said company except its minute books. To the entry of this judgment appellant excepted and an appeal was prayed and allowed.

It is urged that the writing dated Chicago, December, 1908, set out in the petition, is a mere request for permission to examine the books and is not sufficient. It is claimed that an absolute demand to inspect the books, and refusal of the demand, is necessary before the extraordinary remedy of mandamus may be invoked. In our opinion the written demand contained in the writing above referred to is sufficient, but beyond that the petition alleges a sufficient verbal demand.

It is next urged that the demand to inspect the books should have been addressed to the officers in charge of the books and not to the corporation, and that because the corporation alone is made a party defendant to the suit the judgment should be reversed.

The prayer of the petition is as follows:

“Wherefore your petitioner prays a writ of mandamus directed to the Chicago Crayon Company and its officers and directors, commanding them forthwith,” etc.

The writ which was ordered by the court ran only against the corporation. After the petition was filed process was issued and the defendant first filed a general demurrer to the petition and then, upon leave given, a special demurrer. In the special demurrer the point is not made that the writ was improperly directed to the corporation. In our opinion it is now too late for appellant to make that point in this court. It was not made in the court below. Crown Coal & Coke Company v. Thomas, 60 Ill. App. 234; Town of Harlem v. Emmert, 41 Ill. 319; Greene v. Masten, 66 Ill. App. 345.

We think that by failing to file a plea in abatement or set up the point on demurrer in the trial court the appellant waived its right to raise the point here. It is not mentioned in the assignment of errors.

It is contended that mandamus to inspect books will not be granted to satisfy the curiosity or to aid the stock market speculations of the stockholder. There is no basis for this contention to be found in the record. The petition does not give rise to any such contention. The petition sets out the reasons which actuated appellee and shows that those reasons are proper and meritorious. The shareholder is not required to show any reason or occasion rendering an examination of the books proper, or a definite or special purpose. The custodian of the books and papers of the corporation cannot inquire into the motives or purposes of the stockholder. If the defendant has reason to believe that the motives were improper or illegitimate, and refuses the inspection on that ground, it assumes the burden of proof of such improper of illegitimate purposes. Stone v. Kellogg, 165 Ill. 192.

In our opinion the judgment of the court below was proper, and it is accordingly affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    Fannie Kinney, Appellee, v. Village of Harlem, Appellant.
    Gen. No. 16,060.
    1. Trial—when conduct of counsel not ground for reversal. The asking of a question with reference to an alleged offer of compromise will not reverse where objection thereto is promptly sustained by the court.
    2. Instructions—when upon ordinary care not erroneous. Held, that the requirement of a particular instruction complained of that the plaintiff should have been in the exercise of due care at the time of the accident and as charged in the declaration, did not limit the necessity of the exercise of due care within too narrow a compass.
    Action in case for personal injuries. 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, 1909.
    Affirmed on remittitur.

    Opinion filed January 17, 1912.

      Remittitur filed January 26, 1912.
    Martin W. Grosse, for appellant; Parker & Bigheimer, of counsel.
    Donald H. McGilvray, for appellee; Warren Pease, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the Circuit Court for $1,650, as damages for personal injuries alleged to have been occasioned by the negligence of appellant in maintaining an unsafe and dangerous sidewalk.

Appellee was injured on October 14, 1903, while walking upon a plank sidewalk on the west side of Beloit street between Cleveland and Madison streets. That she was caused to fall by the tipping of a loose plank in the walk does not admit of doubt. There is some controversy in the evidence bearing upon the condition of the walk. If the testimony of the witnesses, called on behalf of appellee, is true, the sidewalk in question was unsafe and out of repair, and had been in that condition for a sufficient length of time to charge appellant with constructive notice of such condition. On behalf of appellant several witnesses testified that the walk had been rebuilt in 1902, and that at the time appellee was injured the planks and stringers were sound and well fastened. The record discloses, however, that Jacobs, the street commissioner employed by appellant, had no difficulty in finding the loose plank, which caused appellee to fall, immediately after she was injured.

The case was tried in March, 1909, and the record discloses that most of the witnesses, who testified for appellant as to the condition of the walk in 1903, had not had their attention called to the subject until within a few days before the trial. In view of this circumstance, the jury were doubtless of the opinion, as we are, that the recollection of appellant’s witnesses was somewhat faulty, with respect to the condition of the walk five years and a half prior to the trial. The verdict is not against the manifest weight of the evidence, either as to the negligence of appellant or as to the exercise by appellee of due care for her own safety.

It is urged that appellant was prejudiced by the conduct of counsel for appellee in asking appellant’s witness, Schwass, whether he saw appellee and asked her to accept $1,500 in settlement of her claim. Objection to this line of examination was promptly sustained by the court, and the testimony of the witness disclosed that he did not get an opportunity to talk with appellee. The incident does not require a reversal of the judgment.

The first instruction given at the instance of appellee is not subject to the criticism urged. The declaration alleges that appellee was in the exercise of due care while passing on and upon the walk. The requirement in the instruction that appellee should have been in the exercise of due care at the time of the accident, and as charged in the declaration, did not limit the necessity of the exercise of due care by her within too narrow a compass. Peterson v. Chicago Trac. Co., 231 Ill. 324; Knox v. American Rolling Mill Corp., 236 Ill. 437; Krieger v. A., E. & C. R. R. Co., 242 Ill. 544. The doctrine of assumed risk has no place in the case.

The second instruction given at the instance of appellee is without fault. The instruction expressly requires that the injury complained of should have resulted from the unsafe condition of the sidewalk. The third instruction given at the request of appellee does not direct a verdict, and states the law with substantial accuracy. The instructions tendered by appellant and refused by the court were properly refused. Some were covered by other instructions given to the jury; some were inapplicable to the case, and some contained inaccurate statements of the law.

It is claimed by appellee that, as a result of appellant’s negligence, she sustained a permanent injury to her spine, hut a clear preponderance of the evidence refutes such claim. The damages awarded by the jury for the injuries actually sustained are manifestly excessive. If appellee will remit $650 from the judgment, it will he affirmed for $1,000; otherwise the judgment will be reversed and the cause remanded.

Affirmed if remittitur accepted; otherwise reversed and remanded.

Remittitur filed and judgment affirmed January 26, 1912.


text:
    Phil J. Sommer, Appellee, v. Gottfried Brewing Company, Appellant.
    Gen. No. 16,087B.

      Verdicts—when set aside. A verdict will be set aside on review as against the evidence where the Appellate Court is of the opinion that it is clearly and manifestly against the weight thereof.
    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, 1909.
    Reversed and remanded.
    Opinion filed January 17, 1912.
    O’Donnell & O’Donnell an'd Mark B. Sherman, for appellant.
    Kruse & Peden and Boy C. Merrick, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This is a suit brought by the appellee, Phil J. Sommer, against the Gottfried Brewing Company, appellant, to recover a balance o£ $3,653, claimed by appellee to be due him from appellant for wages or salary from November, 1897, to December, 1903. Appellant filed a counter claim against appellee, claiming a balance due it of $888.09. A trial by jury in the Circuit Court resulted in a verdict and judgment against appellant for the full amount of appellee’s claim.

In view of the fact that the counter claim filed by appellant involves items covering the entire period of appellee’s employment, beginning in 1893, it is relevant to consider the evidence relating to the terms of such employment and the conduct of the parties with respect thereto. There is some contrariety in the evidence relating to the precise time appellee’s employment commenced in 1893. Appellee insists he was employed in February, while the evidence offered on behalf of appellant tends to show his actual employment and wages commenced on June 24th, but the precise time is not of controlling importance. In 1893 appellant, being desirous of establishing an agency for the sale of its beer in West Pullman, employed appellee as its agent to solicit saloon keepers there to become its customers, to deliver beer to such customers from a store house to be there established, and to collect for beer sold and delivered. It is agreed that as compensation for his services appellee was to receive $80 a month, and that appellee was to be paid 40 cents per barrel upon the return to the brewery of the empty barrels. Appellee insists that the payment of 40 cents a barrel was to be made to him for commissions as additional compensation for his services, and as an incentive to greater effort on his part, while appellant insists that such payment was to be made to appellee for spending money to be used in procuring customers for appellant, and in retaining the good will of such customers. Upon this issue the testimony of the witnesses who were present when the contract of employment was entered into clearly preponderates in favor of appellant, and the documentary evidence, offered by appellee, consisting of monthly statements, prepared by him, of business transacted from June 24, 1893, to December 1, 1897, is decisively corroborative of appellant’s insistence. In the statement for October, 1893, appears the charge to appellant for “Spending $123.35,” and this amount corresponds exactly with the total at 40 cents a barrel upon the number of barrels indicated upon appellant’s books, as having-been returned empty by appellee, up to November 1, 1893; and in the several of said monthly statements following, the amounts charged by appellee to appellant for “Spending,” correspond in some instances exactly, and in other instances so approximately, with the totals at 40 cents a barrel upon the number of barrels indicated upon appellant’s books as having been returned empty in each of said months, it cannot be doubted that the 40 cents a barrel in question was understood by appellee to be spending money, and was so used by him. It is conceded that the statements appearing in appellant’s books of the number of barrels of beer received and sold by appellee, and of the number of empty barrels returned to the brewery, are correct. In, further confirmation of the fact that 40 cents a barrel was allowed appellee for spending money, it appears that in each of said months appellee gave to appellant his receipt, wherein it was stated that said amount was “for spending.” The aggregate of the amounts so received by appellee up to December 1, 1897, was $5,021.50.

Upon the several monthly statements so prepared by appellee appears an account of the number of barrels of beer on hand and received; the number of barrels of beer sold; the amount of cash collected from customers; the amount retained by appellee for wages and spending money; the amount paid helper and for incidental expenses of the business; and an amount indicated as “Bah,” which last amount was, in each instance, in excess' -of the total amount accounted for as retained and paid out by appellee. In other words, each of said statements shows upon its face a balance unaccounted for to appellant, the aggregate amount of such balances up to December 1, 1897, being $2,-135.26. In the chronological order of the transactions involved this balance of $2,135,26 forms the basis of appellant’s counter claim against appellee.

In March, 1897, appellee’s territory was enlarged to include Crete or Chicago Heights, and his salary was increased to $100 per month, with a like allowance as theretofore for spending money of 40 cents on each barrel returned. This arrangement continued until December, 1897, when appellee’s territory was again enlarged to include South Chicago, Hammond and Kankakee, and his salary was increased to $135 per month, with a general allowance for spending-money to be paid to appellee upon statements therefor, approved by appellant’s vice-president an'd general manager. It is claimed by appellee that under the agreement then made his salary was to be $125 per month until May, 1898, and that thereafter his salary was to be $150 per monlth, while appellant claims there was no agreement that appellee should be paid more than $125 per month. During the six years from December, 1897, until December, 1903, when he tendered his resignation to take effect December 31st, appellee drew only the sum of $100 per month as wages, and claims that, in pursuance of an understanding with the president and general manager of appellant, the balance of his salary, amounting to $25 per month up to May 1, 1898, and, as he claims, amounting- tó $50 per month thereafter, he permitted to remain arid accumulate in the treasury of appellant, as savings, to be drawn out by him upon demand. The total amount claimed by appellee to have been thus retained by appellant for him is $3,653, to recover which amount he brought this suit and obtained a verdict and judgment as heretofore stated.

It is claimed by appellant that the balance of $2,-135.26, as shown by the monthly statements prepared by appellee, and $2,485.26, as shown by appellant’s books, was the amount due and owing from appellee to appellant on December 1, 1897, while the claim of appellee is that said amount of $2,135.26 represents money actually spent by him from the date of his employment in 1893 to December 1, 1897, in procuring customers for and advancing the business interests of appellant, and that said money was so spent with the knowledge and consent of appellant. Appellant further claims that in December, 1897, when appellee’s salary was increased to $125 per month, it was conceded by appellee that he was then indebted to appellant in the amount of said balance of $2,485.26, and that it was then arranged and agreed between the parties that appellee should draw only $100 per month of his salary, and that $25 per month of his salary should be retained by appellant and credited upon appellee’s said indebtedness to it. Each month thereafter appellant credited appellee’s account with the sum of $25 as upon said indebtedness, and the amount remaining due and unpaid to appellant on account of said indebtedness thus appears to be $736.09, which amount, together with $152 claimed by appellant to have been collected by appellee in 1901 and 1903 and not accounted for, constitutes the counter claim of appellant against appellee.

■The claim of appellee that the balance of $2,135.26, as it appears upon his statements, is the aggregate of the am'ounts spent by him each month in procuring customers for appellant, and in advancing its business interests, is not consistent with the showing made by the statements themselves. If, as is claimed by appellee, the several amounts which constitute said balance were so spent by him from month to month, it is evident that the statement for each succeeding month would show an amount in addition to that shown in the statement for the preceding month, as and for money so expended. As a matter of fact the statements show the contrary in many instances. The statement for October, 1893, shows a balance of $344.15, while the statement for November, 1893, shows a balance of $232.27, and the following show the like as to the several balances instanced: January 1894, $389.-72; February 1894, $287.92; July 1894, $1,331.65; August 1894, $453.48; October 1894, $1,213.93; November 1894, $1,022.18; December 1894, $951.58; January 1895, $902.11; April 1895, $1,408.99; May 1895, $832.65 ; July 1895, $1,530.18; August 1895, $1,152.34; September 1895, $831.98; January 1896, $1,433.33; February 1896, $1,409.88; March 1896, $1,5Í9.41; April 1896, $1,232.27; August 1896, $1,789.20; September 1896, $1,678.31; October 1896, $2,074.36; November 1896, $1,-901.43; December 1896, $1,835.90; June 1897, $2,134.21; July 1897, $2,127.59; August 1897, $2,135.13; September 1897, $2,124.28; October 1897, $2,111.96. The verdict of the jury was necessarily predicated upon a finding that the balance in question was not due and owing from appellee to appellant, and in that respect it is against the manifest weight of the evidence, both documentary and the oral testimony of witnesses.

Upon the issue also as to whether the salary of appellee, in excess of $100 per month, was held by appellant to be applied upon the indebtedness, or as a savings fund for appellee, the verdict is against the clear preponderance of the evidence. During the six years appellee claims to have been accumulating a savings fund in the treasury of appellant, it does not appear that he ever requested a statement of his account. It is not claimed that appellant was to pay or be charged with interest upon such savings fund. The admitted conduct of appellee in the transaction is wholly inconsistent with the fact that he was in debt to a building and loan association during most of the period involved, and is also inconsistent with the usual course of business dealing.

It is not without significance that in reply to appellee’s written communication to appellant, under date of December 12, 1903, wherein appellee resigned his position, appellant, on December 14th following, wrote to appellee accepting his resignation and requesting him to call at its office and make arrangements for the payment of his indebtedness to it, and that appellee made no reply thereto.

Over the objection of appellant, the witness, G-etze, called on behalf of appellee, was permitted to testify that it was customary for certain other brewing corporations to allow their agents spending money, amounting to $200 and $300 a month, for the purpose of working up trade. This testimony was improperly admitted. The contracts of employment were not ambiguous, and were not shown to have been entered into in view of any established trade custom or usage.

The judgment is reversed and the' cause remanded.

Reversed and remanded.


text:
    Henry B. Cram et al., Appellees, v. Elsie Waddell et al., Appellants.
    Gen. No. 15,997.
    1. Bedemption—who entitled to rents and profits during running of period of. The owner of the equity of redemption is entitled to the rents and profits of premises foreclosed until the expiration of the time of redemption.
    2. Bes judicata—when right to rents and profits not determined. In a foreclosure proceeding where the contest was as to the right to a decree of foreclosure the question of the right to rents and profits arising after sale is not necessarily determined.
    3. Bes judicata—limitation of general rule. While the principle of res judicata embraces not only what has actually been determined in a former case but also extends to any other matter properly involved and which might have been raised and determined in it, yet this rule is not applied where the question urged as impliedly adjudicated was made the basis of an order in the principal ease and not in a separate and independent proceeding.
    4. Costs—taxation of, in chancery. The taxation of costs in chancery cases is ordinarily in the discretion of the chancellor and the exercise of such discretion will not be' set aside on appeal in the absence of a showing that it has been abused.

      Foreclosure. Appeal from the Superior Court of Cools county; the Hon. Fablin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed December 13, 1911.
    Rehearing denied January 18, 1912.
    John R. O’Connor, for appellant, Jacob Grlos.
    Herman W. Stillman, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

September 15, 1904, Henry B. Cram and James C. Hamlen, trustees, etc., filed their bill in the Superior Court to foreclose a trust deed for $3,000 on lot 2 of a certain subdivision in the city of Chicago, executed by William Gf. Waddell, and Rosalie Self ridge and Jacob Grlos were made parties defendant to said bill, under the general averment that they had or claimed to have some interest in the premises, which interest, if any, had accrued since, and was subject to, the rights of the complainants under and by virtue of said trust deed. With certain other defendants to said bill, Rosalie Self ridge joined in an answer neither admitting nor denying the material allegations of the bill, but calling for strict proof of the same. The defendant Grlos filed his answer to said bill, wherein he denied that “complainant” was the owner of the premises, arid averred that he was the owner thereof; denied all the material allegations of the bill, and averred that the cause of action, if any existed, did not accrue within ten years. ' Said answer further averred that said premises were, on August 25, 1903, by virtue of a certain pluries writ of execution against said Waddell, sold at public vendue by the sheriff of Cook county to said defendant, to whom a sheriff’s certificate of sale therefor, and thereafter a sheriff’s deed, were issued; that by reason thereof defendant acquired a good and valid fee simple title to said premises. Hpon replications being filed to said answers the canse was referred to a master, who, after taking the evidence submitted by the respective parties, filed his report, wherein he found that the complainants were entitled to a decree of foreclosure in accordance with the prayer of their bill.

As to the claim of the defendant G-los, the master found that he was seized and possessed of the right, title and interest in said premises acquired by him under and by virtue of a sale thereof under execution and sheriff’s deed, and then held the same subject to the prior lien of the trust deed. The master made no finding relative to the interest in said premises of the defendant, Rosalie Selfridge. The decree of foreclosure was entered June 16, 1905, and provided for a sale of the premises in accordance with the prayer of the bill. No reference is- made in the decree to any right or interest of either the defendants, Rosalie Sel- • fridge or Glos, in the premises, bnt the master is thereby directed to hold the surplus, if any, realized from the sale of the premises, subject to the further order of the court.

The record discloses that on November 24, 1896, being more than seven years prior to the filing of the bill in this proceeding, a decree for foreclosure was entered in the Superior Court in a proceeding then there pending to foreclose a junior trust deed on the same premises; that at a sale of said premises had in pursuance to said decree on December 21, 1896, the same were sold to one Rose, who assigned the master’s certificate of purchase to Rosalie Selfridge, to whom the master, on February 3,1903, executed his master’s deed therefor; said deed being expressly made subject to the prior lien of the trust deed involved in the present proceedings. The record further discloses that, acting under the decree of June 16, 1905, the master sold said premises on September 1, 1905, to the complainants for an amount sufficient to pay the sum found due thereon, with interest, costs and expenses of sale. It further appears from the record that during the pendency of the present foreclosure proceedings one Knott was appointed by the court as receiver to collect the rents, issues and profits of the premises, and that he in fact acted as such receiver until January 30, 1908, when, upon the petition of Rose B. Selfridge (being the same person heretofore designated as Rosalie Selfridge), setting forth that she was the owner in fee of said premises, subject to the lien of the trust deed described in the bill of complaint, and therefore entitled to any funds in the hands of said receiver, he filed his final report, wherein he showed a balance on h'and of $573.89, which amount he was directed by the court to pay to said Rose B. Self ridge, unless objections should be filed within five days. Within the time limited, the defendant, Grlos, filed objections to said report, to the approval thereof, and to the order directing the payment of said fund to the said petitioner. The defendant, Ulos, also filed his answer to the said petition, denying the' right of the petitioner to said fund, and asserting his right thereto under and by virtue 'of the sheriff’s deed to him of the premises involved. Upon replication filed to said answer, a reference was ordered to the master to take the evidence as to the ownership of the fund in the hands of the receiver, and return the same, together with his findings of fact and law, to the court. Thereafter the master filed his report, wherein he found that the petitioner, Rose B. Selfridge, was entitled to said fund as against Grlos, by reason of her priority in the equity of redemption during the time of the receivership and previously. The objections filed by Grlos to said master’s report were overruled by the chancellor and a decree entered, directing the receiver to pay said fund to the petitioner, Bose B. Selfridge, and taxing the costs of such reference to Grlos.

This appeal is prosecuted by Grlos to reverse such decree.

That the owner of the equity of redemption is entitled to the rents and profits of the premises, until the expiration of the time of redemption, admits of no doubt. Davis v. Dale, 150 Ill. 239; Stevens v. Hadfield, 178 Ill. 532; Standish v. Musgrove, 223 Ill. 500; Ruprecht v. Muhlke, 225 Ill. 188.

While appellant of necessity substantially concedes that appellee, as a matter of fact, was the owner of the equity of redemption, he insists that, as she failed to set up her rights by answer to the bill, or to establish them by proof upon the first reference to the master, she has had her day in court, and her lien on the premises was cut off by the decree of foreclosure.

The record does not wholly sustain such insistence. There was no controversy between appellee and the complainant in the foreclosure proceedings as to their relative rights, and there was then no fund known to be in the hands of the receiver, as rents and profits of the premises. Appellant, on the other hand, was resisting the right of the complainant to a decree for foreclosure. There was, however, no finding by the master that appellant was the owner of the equity of redemption, and the rights of the appellant, if any, are not even mentioned in the decree, much less adjudicated and determined. The decree. does not pretend to settle any conflicting interests between appellant and appellee, as to any surplus arising from the master’s sale, or as to any fund in the hands of- the receiver, but simply provides that, if a surplus arises from the sale by the master, he shall hold the same subject to the further order of the court. If the decree of foreclosure and sale had adjudicated the respective rights of appellant and appellee, a different question would be presented.

True, as has been said, the principle of res judicata embraces not only what has actually been determined in a former case, but also extends to any other matter properly involved, and which might have been raised and determined in it (South Park Com’s. v. Ward, 248 Ill. 299), but this doctrine is wholly inapplicable here, because the order from which this appeal is prose- ■ cuted was entered in the principal case, and not in a separate and independent proceeding, in which it was sought to litigate the right to the fund in question.

It was established beyond question that appellee and not appellant was the owner of the equity of redemption of the foreclosed premises, and thus entitled to the funds in controversy, and the decree directing the receiver to pay such funds to appellee was right.

The taxing of costs in chancery cases is ordinarily in the discretion of the chancellor, and the exercise of such discretion will not be set aside on appeal in the absence of a showing that such discretion has been abused. Carroll v. Tomlinson, 192 Ill. 398. There is no such showing here, and the decree is affirmed.

Decree affirmed.


author: Mr. Justice Duncan

text:
    Daniel M. Miers, Appellee, v. Charles H. Fuller Company, Appellant.
    Gen. No. 15,987.
    1. Contracts—advertising, construed. Held, that the particular contract in question in this case did not require the particular advertising matter in question to be printed alongside of unpaid reading matter etc., that there was a blank space in the contract in which to designate the position of the advertisement and that in the absence of designation there was no obligation on the part of the publisher to print such advertising matter in any particular place.
    2. Contracts—defense available against assignee. Contracts which are not negotiable instruments are subject to the same defense in the hands of assignees as they would be in the hands of the original holders.
    3. Contracts—when not laeldng in mutuality. Held, under the facts of this case, that the particular contractual obligation was not subject to the contention that it was unilateral in character.
    4. . Contracts—effect of acceptance of written proposition. Where a party accepts and -adopts a written contract, even though not signed by him, he shall be deemed to have assented to its terms and conditions and to be bound by them.
    5. Contracts—when letter in pari fixing relations of parties need not be supported by consideration. If a letter is to be construed as part of a written contract and not as representing a separate transaction it is germane to the original contract and the same consideration which supports the written contract likewise supports the letter.
    6. Instructions—when upon preponderance of evidence not erroneous. An instruction upon this subject which enumerates a number of matters that the jury may consider in determining upon which side lies the preponderance of evidence, is not erroneous if it likewise contains a conclusion as follows: “and from all these facts as shown by the evidence and from all the facts and circumstances so shown, the jury must decide on which side is the preponderance.”
    7. Pleading—what competent under general issue. Recoupment is proper under the general issue, or under the general issue with notice.
    8. Parties—who appropriate defendant in action upon contract. A person signing a contract in his own name without limitation and Who pays the consideration therefor is a proper defendant in an action brought on such contract.
    9. Assignments—who cannot question. In an action upon a contract which has been assigned to the plaintiff the defendant is not entitled to question the matter of the assignment if such defendant has been allowed to interpose its defense precisely as though the action had been instituted by the original holder of the contract.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed November 15, 1911.
    Rehearing denied January 18, 1912.
    Statement by the Court. This is a suit in assumpsit by Daniel M. Miers against the Charles H. Fuller Company on a written contract. Judgment was rendered for Miers and against the Company, a corporation, for $2,800, and the latter has appealed.
    Appellee sued as the assignee of the Selah-Patterson Company and the Weekly Supplement Company, New York corporations. At the time the said contract was made the Selah-Patterson Company was engaged in publishing the “Selah-Patterson Pictorial and Colored Supplement,” an insert or booklet printed in New York, forwarded and sold by it to about one thousand different country newspapers throughout the United States as an advertising medium. The country newspapers would, in turn, insert this colored supplement in their Sunday editions, and thus distribute it to a large number of subscribers, aggregating about 750,000. The Selah-Patterson Company solicited advertising and sold space in this colored supplement. December 10, 1906, appellant, advertising agent or broker of a magazine entitled ‘ ‘ Cheerful Moments, ’ ’ wrote an order directing the publishers of the Colored Supplement to insert an advertisement one-quarter page in colors, in three editions of said supplement, at the rate of $1,275 per issue, beginning at once. Appellant charged its clients, the magazine people, $1,500 for each insertion of the advertisement, and was paid by them $4,500 in full for the three insertions. About the time this contract was made the Selah-Patterson Company assigned all its property, good will and accounts and contracts to the Weekly Supplement Company. About January 8, 1907, the Weekly Supplement Company assigned this account sued on to appellee, after it had assumed said contract and had published the said advertisement in three numbers or editions of said colored supplement, to wit, in numbers 15, 16 and 17 thereof. Appellant has paid for one advertisement or insertion, No. 15, after it was gotten out and distributed. The other issues, Nos. 16 and 17, have not been paid for by appellant or by any one else.
    Arthur W. Underwood and Marvin E, Barnhart, for appellant.
    Charles S. Graves, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

The first contention made by appellant for reversal of the judgment is that appellee did not show compliance with the terms of the contract by the Weekly Supplement Company. The order for printing in this case was Addressed to the publishers of said supplement in substantially this language:

‘‘Please insert inclosed advertisement of Cheerful Moments three times in your weekly, all editions commencing at once, in space of one-quarter page in colors. Charge us net rate $1,275 per time. Extra space, pro rata, * * * and we reserve the right of discontinuing or canceling this contract by paying for space used, according to the schedule of rates under which this contract was made. * * Send your publication regularly to our address, and copy containing each insertion to advertiser.”

Mr. Winslow, President of the Weekly Supplement Company, testified that the advertisement in question was printed in numbers 15, 16 and 17 of the Weekly mentioned in the contract, those being the three numbers printed just after the date of the contract; that the advertisement covered a quarter page and was printed in colors; that they were shipped hy the Weekly Supplement Company to the country newspapers for whom they were prepared and th'at they sent them out with their weekly editions; and copies were returned by these various papers showing that they had printed and circulated them; that numbers 15 and 16 went out between December 22nd and December 26th, 1906, and No. 17 went out between the 1st and 10th of January, 1907. It is also proved by the record that copies of each edition containing the advertisement were delivered to Charles B. Adams, advertising* manager of “Cheerful Moments.” We think the proof was ample to show compliance with the written terms of the contract above set forth, except as to the matter of the requirement of mailing a copy of the publications to appellant. It will not be necessary for us to pass upon the question of whether or not appellant has waived its right to raise the question of the sufficiency of the proof of performance of the contract, because not raised in the court below, as contended by appellee, as the cause must be retried. As we read the contract, there is no requirement therein requiring the advertisement to be printed alongside of unpaid reading matter, etc. There was a blank space in the contract in which to designate the position of the advertisement in the supplement; but as appellant failed to indicate in the space or elsewhere any position for the advertisement, the contract cannot be held to bind appellee or his assignors to print its advertisement in any particular position .in the supplement.

As to the defense of fraud raised in this case, it appears that all of appellant’s evidence was admitted on that question, and that it raises no objections to the instructions given or refused by the court and bearing on that question. It appears to be simply a question of fact to be determined by the jury, and as the cause is to be remanded for another trial, it would not be proper for us to discuss any of the evidence on the ■merits.

Appellant also complains of the giving of four of appellee’s instructions Nos. 8, 9, 10 and 12, and insists that they do not state legal principles that are applicable to this case. In this contention, we think that appellant should be sustained. It appears from the uncontroverted evidence in this case, as testified to by Mr. Charles B. Adams, advertising manager of “Cheerful Moments,” that the contract, or order for the printing in this case, was secured for the Weekly Supplement Company by' Mr. Fletcher and Mr. Selah, who solicited the order of Mr. Adams; that Fletcher told Adams that he was solicitor for advertising for the Weekly Supplement Company and introduced Mr. Selah to Adams as the Secretary of the Supplement Company; that in the presence of Mr. Fletcher and Mr. Lovell, treasurer of said Company, Mr. Selah, secretary of the Company, promised Adams that, if the Cheerful Moments people would insert the advertisement in the Weekly Supplement at the terms of $1,500 an issue for the three issues, that he would guarantee the Cheerful Moments people against loss, and would repeat the advertisement until they received $4,500 in returns from the advertisement in the way of subscriptions. Mr. Adams agreed to make the advertisement on those terms, and obtained Selah’s promise that this guaranty would be put in writing and signed by some proper officer of the Weekly Supplement Company, and delivered to the owners of Cheerful Moments. With this understanding Mr. Adams wrote out an order for this advertisement and gave it to Mr. Fletcher to take it to the agent of the Cheerful Moments people, Charles H. Fuller Company, who then placed the order in suit with the Supplement Company. Mr. Lovell afterwards went to the office of the Cheerful Moments Company, and delivered to that Company a letter or contract in writing purporting to be the one promised to Mr. Adams by Mr. Selah, which letter was written on a letterhead of the Weekly Supplement Company, and in the words and figures as follows:

“December 31, 1906.
Publisher Cheerful Moments—
Dear Sir: Our understanding of the advertisement you have given us through the Charles H. Fuller Advertising Agency, amounting to $1,500 an issue, for three insertions, $4,500 in all, to be paid to us by said agency as due each month, is that if you do not receive $4,500 or more in returns from the said advertisements, we will repeat the same, without cost, using another puzzle, until you have received the above amount.
Tours very truly,
Weekly Supplement Company,
Frank A. Selah,
Secretary. ’ ’

The original order for printing discloses on its face, as does the foregoing letter, that Charles H. Fuller Company, appellant, was really only acting as an agent of the Cheerful Moments Company in signing the order herein sued on and designated as the “contract.” If the foregoing letter, addressed to Publisher of Cheerful Moments, was really authorized by the Weekly Supplement Company, it must necessarily be regarded as a part of the original contract sued on in this case. While it is true that all conversations prior to a contract and leading up to the same must be considered as merged in the terms of the written contract and not admissible in evidence to vary the terms thereof; yet, it is always permissible for parties to correct their written contract by another writing, when it does not correctly state the actual terms of the contract. When they do correct them in writing, or rewrite them for the purpose of expressing them more fully and correctly, the parties are just as much bound by such further stipulations and corrections as if a court of equity at the suit of one of the contracting parties had by its decree corrected the contract by inserting the stipulated matters, on the grounds of mutual mistake or some other recognized equitable grounds. This letter does not purport to make any new contract, but simply to state in writing, at the request of Mr. Adams, what was really a part of the original contract. The evidence makes it clear that this statement or letter was intended to bind the Weekly Supplement Company. The only real question about the letter being a part of the contract is as to whether or not it was authorized to be written and delivered by the Weekly Supplement Company. It was written before the assignment to appellee, and binds him as well as his assignors, as the contract is not a negotiable instrument in the sense that the legal title passed to appellee free of defenses against the assignors. The doctrine of unilateral contracts, want of mutuality, etc., that is, that the letter was invalid because only signed by the Weekly. Supplement Company, was not applicable in this case. The court in instructions numbered 8 and 9 for appellee told the jury, in substance, that if they' found from the evidence that the letter was only signed by one party and not by the other, that the contract or letter would be void for want of mutuality, as one party could not be bound thereby unless the other was also bound thereby. If those instructions are correct propositions of law, then how is appellant bound by the original order which is only signed by appellant? The law is that where a party accepts and adopts a written contract, even though not signed by him, he shall be deemed to have assented to its terms and conditions and to be bound by them. Memory v. Niepert, 131 Ill. 623; Ames v. Moir, 130 Ill. 582; Forthman v. Deters, 206 Ill. 159.

Instructions Nos. 9, 10 and 12 were also erroneous, because they, in substance, informed the jury that there should be a new and valid consideration passing between the parties for the delivery of said letter, or it would be invalid and not binding. They also stated that a gratuitous promise was not a sufficient consideration. These instructions were misleading, and should not have been given to the jury. They treated the letter and the original order as distinct and separate contracts, while in fact, if authorized,, the letter was part of the original contract and well supported by the original considerations.

We find no error in the giving of appellee’s instruction No. 2. It is not subject to the objections raised to it. It does enumerate a number of matters that the jury may consider in determining upon which side is the preponderance of the evidence on any proposition. But it does not require the jury to determine from them alone on which side the preponderance is, which is the usual vice that makes this instruction bad. It concludes thus, “and from all these facts as shown by the evidence and from all the facts and circumstances so shown” (i. e., shown by the evidence), “the jury must decide on which side is the preponderance.” C. U. T. Co. v. Hampe, 228 Ill. 346; E. J. & E. Ry. Co. v. Lawlor, 229 Ill. 621.

There was considerable evidence tending to show that Fletcher and Selah were authorized to make this contract, and that they did make it on behalf of the Weekly Supplement Company. They had with them, when the contract was made with Adams, the original necklace puzzle by Sam Loyd, which was to form the principal feature in this advertisement, and also the list of country newspapers to whom it was to be sent. The terms for prizes to those who should solve them were changed by Selah and Adams, and made to read differently so they would not be in conflict with postal regulations, and were finally printed by the Weekly Supplement Company just as they had prepared, them. Appellee sought to make the defense that neither Selah nor Fletcher was authorized to make this contract, and that they had no power or authority to do so by virtue of any office or employment that they had with the Weekly Supplement Company. This question should have been properly submitted to the jury by instructions clearly stating the law applicable thereto. If the letter was authorized by the Weekly Supplement Company, it furnished a defense to a portion of all of appellee’s claim in the nature of a breach of warranty, as the Weekly Supplement Company had ceased to publish the pictorial supplement, and had thereby put it out of its power to comply with the agreement to continue repeating the advertisement until the Cheerful Moments Company had realized $4,500, etc. This was matter of recoupment, and appellant was entitled to make the defense under the general issue, or the general issue with notice. Hutt v. Bruckman, 55 Ill. 441; Tully v. Excelsior I. Works, 115 Ill. 544.

There are a number of other questions raised by appellant upon this record that in our judgment are untenable, and do not require discussion. Appellant was paid the money for this advertisement, signed the contract in its own name without limitation, and was, therefore, properly sued in its own name by appellee. Whether or not there was a consideration for the assignment to appellee by the assignors is no matter of defense in this case. Appellant was allowed to make the same defense against appellee as.if his assignors had sued, and, therefore, he had no cause of complaint. If the assignment was a pure gift to appellee, his assignors had a right to make the gift, provided they in no way interfered with any legal defense against the assignors that appellant had before assignment. Appellee was also entitled to legal interest from the date the issues were published.

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

jReversed and remanded.