author: Mr. Justice Brown

text:
    Dietrich M. E. Brun, Appellee, v. Chicago City Railway Company et al. On Appeal of Chicago City Railway Company, Appellant. Dietrich M. E. Brun, Appellee, v. Chicago City Railway Company et al. On Appeal of P. Nacey Company, Appellant.
    Gen. No. 17,431.
    Gen. No. 17,432.
    1. Street railroads, § 24

      —no common law duty to repair holes between trades. A street railway company owes no common law duty to a wagon driver to repair holes in the street between the tracks not due to the operation of the railway itself.
    2. Street railroads, § 15

      —when incorporating statute subjects company to ordinance obligations. The Act of February 14, 1859, incorporating the Chicago City Railway Company, subjects it to all the obligations imposed on the beneficiaries under Chicago ordinance of 1858, authorizing the construction of certain railways.
    3. Street railroads, § 45

      —when prima facie case of burden to repair is established. In an action against the Chicago City Railway for failure to repair a hole between its tracks, the company claimed there was no showing that Chicago ordinance of 1858, authorizing construction, was in force after its limitation or that the council had not elected to purchase the railway, that the scene of accident was within limits of Chicago in 1858, or that the railway was built under the ordinance. The Act of 1859 incorporated defendant and it was stipulated that defendant was operating a railway at the site of and at the time of the accident. Held, the ordinance, the Act and the stipulation taken together make a prima facie case that the burden to repair at the site of the accident rested upon defendant.
    4. Street railroads, § 45

      —when estopped to repudiate ordinance obligations. An electric street railway company enjoying the privileges of the Chicago ordinance of 1858, authorizing construction and operation, cannot contend that as the ordinance requires cars to be operated with animal power it must be presumed that its operation at the place where there was a hole between its tracks could not be under the ordinance, nor the conditions of the ordinance binding upon it.

      5. Street railroads, § 44

      —duty to repair imposed by ordinance. The Chicago City Railway Company cannot contend that Chicago ordinance of 1858 imposed no duty in the absence of an order of the council, to repair between its tracks a hole made by a contractor under express municipal authority, as section 7 of the ordinance imposed a present unconditional duty on it, and Municipal Code of 1905, § 1945, is an order concerning repairs- within the ordinance.
    6. Negligence, § 128

      —when defective declaration is cured by verdict. Where a declaration against a contractor for failure to refill a trench in a street properly is construed by the parties on the trial as sufficiently alleging that the hole was made by the defendant, the failure to aver that the hole was so made is cured by the verdict.
    7. Negligence, § 187

      —duty to refill trench in street properly. In an action against a construction company for an injury alleged to have been caused by its failure to fill a trench in a street properly, it cannot contend it was not liable for failure to maintain the street where instructions stated it was not its duty to maintain the street, but the question was whether it had been negligent in refilling in the first instance.
    8. Negligence, § 198

      —when contributory negligence in passing over track is for jury. In an action against a construction company for not filling a trench on a street properly, contributoi y negligence of a wagon driver in passing over the depression, under conflicting contentions whether it was latent or patent, is a proper question for the jury.
    9. Street . bailboads, § 45

      —when question whether depression was between tracks is for jury. Where, in an action against a street railway and a contracting company for injuries sustained by a depression in the street, it is doubtful whether the depression was between the railway tracks, such doubt is a question for the jury to resolve.
    10. Street railroads, § 45

      —when instruction taking from jury question of expiration of ordinance is harmless. In an action against a street railway company, an instruction taking away from the jury, by the use of the present instead of the past tense, the question whether an ordinance requiring repairs had expired is harmless where the ordinance had not expired.
    11. Negligence, § 234

      —when erroneous instruction on right to presume safety is cured. An instruction erroneously stating that plaintiff had a right to presume a street was safe for travel is cured by a statement, made a prerequisite, that plaintiff must have been in the exercise of ordinary care, and is not misleading.
    12. Instructions, § 151

      —may be refused when covered by those given. Inaccuracy in giving an instruction is harmless where the other instructions and the evidence render it improbable that the jury were misled.
    13. Negligence, § 213

      —when instruction is misleading. An instruction that a defendant is .not liable if a refilled trench in a street was left in a safe condition and subsequently became unsafe, is misleading, where it is material as to how soon a depression appeared and to what extent.
    14. Instructions, § 42

      —when improper to state instructions are the only law. It is proper to instruct that the jury should be governed as to the law of the case entirely by the instructions of the court, but it is improper to state that the jury “should consider that only as law which has been given by the court in the instructions.”
    15. Appeal and error, § 1095

      —when statement in brief of defendant is not binding on codefendant. Where in an action against a street railway and a contracting company, it is maintained a depression in the street was between the tracks of the railway company, a statement to such effect in the contractor’s brief is not binding upon the railway company.
    16. Appeal and error, § 1793

      —erroneous judgment as to one of two joint defendants is erroneous as to both. A monetary judgment for a wagon driver against a street railway company and a construction company is a unit as to both defendants, and is erroneous as to both if erroneous as to one:
    17. Appeal and error, § 1769

      —when remittitur required as condition of affirmance. Where the trial court has required a remittitur of two thousand five hundred dollars from a verdict of eight thousand five hundred dollars in a personal injury case, if the Appellate Court is of the opinion that the amount is still excessive it may require a reduction to four-thousand dollars as a condition for affirmance.
    Smith, J., dissenting.
    Appeal from the Circuit Court of Cook county; the Hon. Farlin Q. Ball, Judge, presiding. Heard in this court at the March term, 1911.
    Affirmed on remittitur; otherwise reversed and remanded.
    Opinion filed November 3, 1913.
    John E. Kehoe and C. LeRoy Brown, for appellant Chicago City Railway Company.
    Amos C. Miller and J. Homer Sullivan, for appellant P. Nacey Company.
    James L. Bynum and Edward Maher, for appellee; Guerin, Gallagher & Barrett, of counsel.

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

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

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

   Mr. Justice Brown

delivered the opinion of the court.

These appeals of the Chicago City Railway Company and the P. Nacey Company respectively are taken separately from a judgment for six thousand dollars against these two corporations jointly in favor of Dietrich M. E. Brun, the plaintiff and appellee. They were consolidated for hearing on one abstract but separate briefs and arguments filed by the appellants and one brief and argument by appellee.

The judgment was rendered by the Superior Court of Cook county on a verdict of a jury for eight thousand five hundred dollars. Two thousand five hundred dollars was remitted from this verdict by the plaintiff, whereupon the court overruled separate motions made by the appellant for a new trial and separate motions made by them in arrest of judgment, and rendered the judgment appealed from.

The suit in which the verdict and judgment were ■rendered was for personal injuries sustained by the plaintiff Brun under the following circumstances:

In the middle of the afternoon of October 15, 1906, a bright day, the plaintiff was driving one horse in a large express wagon at a walk or “a little jog of a trot” along Archer avenue in the city of Chicago. When he had reached a point near the intersection of Keeley street and opposite a building in course of erection known as 2836 to 2840 Archer avenue, one or both of the front wheels of the wagon dropped into a depression which stretched from the sidewalk curb in front of said building to the centre of Archer avenue. 'The depression was from two to three feet wide and at least eight to ten inches deep. There is a difference in the testimony concerning the depth. The jolt threw the plaintiff off his seat on the wagon. He fell on his head on the asphalt pavement with which Archer avenue is paved and was injured.

The depression was the consequence of the following acts of the P. Nacey Company and the city of Chicago:

September 7, 1906, the P. Nacey Company obtained from the city of Chicago a permit “To open the street in front of property known as 2836-40 Archer avenue, said work was to be completed 9/17/06. Amount of deposit $30. Opening to be rammed while being filled. This permit is granted and accepted on the express understanding and agreement that in all cases where openings are to be made across any railway tracks proper notice shall be given the railway company or the officers thereof of such opening, and that red signal lights must be displayed at night.
John E. Traeger,
Superintendent of Streets.
This department reserves the right to revoke this permit at any time. Paid September 7, 1906.”

The weight of the evidence is clearly to the effect that under this permit the P. Nacey Company on or about September 10th dug a trench from the front of the building in question, which was on the north side of Archer avenue, for the purpose of running a sewer from said building to the main sewer in the middle of the street.

On Archer avenue were two railway tracks of the Chicago City Railway Company, one north of the centre of the street, the other south of the centre. The space occupied by the two railway tracks, that is, the space within the rails of each track and about a foot in width on the outside of each track was paved with granite blocks. The remainder of the street was paved with asphalt. The P. Nacey Company in digging the trench cut out the asphalt in pieces two feet or more square and removed the granite blocks and piled them and the material taken from the ditch in the street. The ditch was dug at least six feet deep (perhaps nine) and the sewer laid. Under the asphalt, which was three or four inches thick, there was concrete six or seven inches thick, which was dug up with a pick; underneath that was dirt. The same day the P. Nacey Company began to refill the trench, first filling between the portion south of the northerly rail, that is, between the rails and between the tracks. The Company worked its men overtime to finish this portion of the filling and had completed it by eight o’clock in the evening of September 10th. The next day it finished the filling of the rest of the trench. The manner in which the Nacey Company refilled the trench was one of the matters in dispute in the cause. The question was left to the jury under instructions hereinafter mentioned. The superintendent of the Company testified, however, that he does not think the concrete under the asphalt was put back or any fresh concrete made and put under the asphalt blocks. The pieces of asphalt he says were replaced. As to the replacing of the granite blocks between the tracks there was discrepancy in the evidence.

The liability of the Nacey Company was placed by the plaintiff’s contentions on the failure to refill the trench properly and so as to make it reasonably safe to travelers on the street.

As left immediately after the filling, the space which had been occupied by the trench was a little (two or three inches) above grade, dirt having been put over the relaid blocks apparently to fill in the interstices. In a day or two the filling began to sink and a month afterward, when the accident occurred, the depression had, according to the variant testimony, reached a depth of from eight to twenty-four inches. The weight of the evidence, however, would seem to be that it was not more than a foot deep.

The liability of the Bailway Company is placed by the plaintiff’s claim on a basis different from that on which the Nacey Company is said to be chargeable. It is maintained that the Nacey Company is liable because it violated a duty resting on it to fill the trench properly, and that the Bailway Company is liable because it violated a duty resting on it to keep so much of the street as was occupied by it in good repair and condition. The space occupied by the trench having ceased to be in such good repair and condition on account of its being opened and insufficiently refilled, and having continued in a defective condition for a month or more, it became, it is contended, the duty of the Railway Company to see to it that it was placed again in a reasonably safe condition for travel.

Of course this duty, if it existed, furnished no ground for charging a liability on the Railway Com-if the depression or hole into which the wheel or wheels of the plaintiff's wagon dropped was not within that part of the street occupied by the Street Railway Company. The appellee asserts in argument that “There is no doubt whatever that appellee’s wagon wheel did fall into a depression between the tracks of the Railway Company. All the witnesses say that. The same thing is said in the Nacey Company’s brief.”

The assertion of the Nacey Company’s brief is not binding on the Railway Company, and the rest of the paragraph we have quoted from the appellee’s brief is perhaps too strong a statement, in view of the unsatisfactory and confused testimony on this point. The Railway Company on the contrary asserts that “It is somewhat doubtful under the evidence whether the hole into which his wagon wheel fell was inside the track.”

But on a careful review of all the testimony given on direct and cross-examination of. the witnesses on this point, it-is clear that at best only a “doubt” remains. That doubt, if it existed, was for the jury to resolve. It inheres in their verdict under the pleadings, evidence and instructions, we think, that they found that the wheel fell into a depression within that part of the street “occupied by the Railway Company” and south of the northerly rail thereof. We must suppose that they did so, if that supposition is necessary to sustain the verdict, for the evidence certainly tends most strongly to support that view. There was, however, no common law duty resting on the Railway Company to repair holes in the street between the tracks not due to the operation of the railway itself. Chicago Union Traction Co. v. Case, 129 Ill. App. 451. We must look, therefore, to the ordinances and statutes under which the Railway Company was operating its cars at . this place to ascertain if such a duty is imposed by them. It is the contention of the plaintiff that it is and various ordinances are pleaded and proved by him to sustain it.

As the judgment is a unit as to the two defendants and is erroneous as to both if erroneous as to one (Claflin v. Dunne, 129 Ill. 241), we may properly first discuss this contention, which is vigorously opposed by the Railway Company. It is primarily based on an ordinance of the City Council of Chicago passed August 16, 1858, and amended December 20, 1858. As amended the parts of it which were read in this cause and seem material are as follows: “An ordinance authorizing the construction and operation of certain horse railways in the streets of the City of Chicago.

Be it ordained by the Common Council of the City of Chicago:

Section 1. That there is hereby granted to Henry Fuller, Franklin Parmelee and Liberty Bigelow, and such other persons as may hereafter become associated with them and to their executors, administrators and assigns, permission and authority and consent of the Common Council to lay a single or double track for a railway with all necessary and convenient tracks for turnouts, side tracks and switches in and along the course of certain streets in the City of Chicago hereinafter mentioned, and to operate railway cars and carriages thereon in the manner and for the time and upon the conditions hereinafter prescribed: provided that said tracks shall not be laid within twelve feet of the sidewalks upon any of the streets.

Section 2. That said parties are hereby authorized to lay a single or double track for a railway in and along the course of the following streets in said City and extending the same as follows: Commencing on State street at the south side of Lake street, thence south to the present city limits. * * * Also commencing on State street at the junction of the Archer road, thence along the said Archer road to the present limits of the City. * * *

Section 3. The cars to be used upon said tracks shall be operated with animal power only. * * *

Section 7. The said parties, their associates and successors shall as respects grading, paving, macadamizing, filling or planking on the streets or parts of streets on which they shall construct their said railways, or any of them, keep so much of the respective streets as shall be occupied by their said railways, or either of them, in good repair and condition during all the time to which the privileges hereby granted to said parties shall extend in accordance with whatever orders or regulations respecting the ordinary repairs thereof may be passed or adopted by the Common Council of the said City; and the said parties shall be liable for all the legal consequential damages which may be sustained by any person by reason of the carelessness or misconduct of any of the agents or servants of the said parties in the course of their employment in the construction or use of the railways aforesaid or either of them.

Section 9. If the said parties, their associates or successors shall hereafter become incorporated, the rights and privileges granted to them by virtue of this ordinance shall extend to such corporation for the time and upon the conditions herein prescribed, and when such act of incorporation shall have been obtained, such corporation shall have all the rights and privileges hereby granted as the successors of said parties without further action of the Common Council.

Section 10. 'The right to operate said railways shall extend to the full time of twenty-five years from the passage hereof and at the expiration of said time the parties operating said railways shall be entitled to enjoy all of said privileges until the Common Council shall elect by order for that purpose, to purchase said tracks of said railways, cars, carriages, station houses, station grounds, depot grounds, furniture and implements of every kind and description used in the construction and operation of said railways or any of the appurtenances in and about the same, and pay for the same in the manner hereinafter mentioned.”

The connection with the Chicago City Railway Company is made by an Act of the Legislature of February 14, 1859, which it is provided by its own terms shall .be deemed a public act and noticed by all courts as such without pleading. This act, after creating Fuller, Parmelee and Bigelow, together with David A. Gage, a body corporate by the name of the Chicago City Railway Company, authorizes the said corporation to construct, maintain and operate a single or double track railway within the then present or future limits of the south or west divisions of the city of Chicago on such streets as the Common Council of Chicago had authorized said corporators, or any of them, to do, upon such terms and conditions and with such rights and privileges as the said Common Council has prescribed, and provides that all of the rights and privileges granted or intended to be granted to Franklin Parmelee, Liberty Bigelow, Henry Fuller and their associates in and by the ordinances of the Common Council and the amendments thereto are in all things affirmed and shall pass to and become vested in the City Railway Company.

We think that this establishes the connection and that the City Railway Company became possessed of all the rights and privileges and subject to all the obligations imposed on the original beneficiaries under the ordinance of 1858.

The Railway Company, however, claims in argument that there is no showing that the ordinance of 1858 was in force after 1883, the twenty-five years provided for by its terms having then expired.

The ordinance declares that the right to operate shall last at least twenty-five years and thereafter until the Common Council shall elect to purchase the railway.

The Railway Company argues that ‘ ‘ there is no evidence that the Council had not elected to purchase the railway, if any was ever built” under the ordinance.

There is a stipulation in the record in this case that “on Oct. 15, 1906, and for many years prior thereto, the Chicago City Railway Company, defendant in this suit, was operating a double track street railway on Archer avenue southwest from State street to the city limits, passing Keeley avenue and the site of the accident in this case.”

We think that the ordinance must be presumed to be in force and the Chicago City Railway operating under it, in the absence of evidence of purchase by the city or termination by other means. If the grant and its conditions were terminated, it was for the Chicago City Railway Company to show.

But the Railway Company also insists that there is no evidence that the intersection of Archer avenue and Keeley street was within the limits of the city of Chicago in 1858. The stipulation above quoted does not cover the matter, it maintains, because “many years” cannot be construed to mean forty-eight years, the stretch from 1906 back to 1858. We think that in the absence of anything to the contrary in the evidence, the stipulation should be construed as implying that the “city limits” for all the purposes of this case, including the application of the ordinance of 1858, were, on Archer avenue, beyond Keeley street.

The Railway Company say also: “So far as the evidence shows, no railway whatever was built on Archer avenue in 1858, or in any subsequent year, under and by virtue of the ordinance of 1858. There is no proof of the acceptance by any one of the ordinance of 1858 or the construction of anything under it.”

But to this we think the plaintiff makes the sufficient answer that the stipulation shows that the Chicago City Bailway Company has been operating a railway on Archer avenue, and that the ordinance of 1858 shown is the only one under which it could lay tracks in Archer avenue. If it is operating under any other ordinance, or has surrendered its rights and escaped its obligations under that of 1858, it has the burden of showing it..

The Railway Company contends that because a section of the ordinance of 1858 says that “the cars to be used on said tracks shall be operated with animal power only,” it must be presumed that its operation in Archer avenue could not be under that ordinance nor the conditions of that ordinance binding on it. We pass by the question whether this section of the ordinance not read in evidence must nevertheless be considered proved, to say that the complement of this proposition, made by the City of Chicago in Blair v. City of Chicago, 201 U. S. 400, namely, that the rights of the Bailway Company under this ordinance were lost by its change to animal power, was in that case negatived by the U. S. Supreme Court. We do not think the Bailway Company is in a position, to repudiate the obligations imposed on it by the ordinance while enjoying the essential privileges of it. Taken together, we think that the ordinance of 1858, the Act of 1859, before described, and the stipulation make a prima facie case that whatever burden concerning the portion of Archer avenue occupied by the railway was imposed on the beneficiaries named in the ordinance of 1858, rested at the time of the accident on the Chicago City Railway Company.

A further contention of the Bailway Company however is, that even if that burden did rest on it, it did not include the duty of repairing-or restoring the street between the tracks under the circumstances of. this case. The argument is that the duty defined by the ordinance of 1858 was only to keep such portion of the street as should be occupied by the railway in good repair and condition “in accordance with whatever orders or regulations respecting the ordinary repairs thereof might be passed in that behalf by the Common Council of Chicago,” and that no such “orders” were shown in evidence, but that on the contrary it was shown by the evidence that the street was torn up under the express permission of the city and that the city received a deposit applicable to and sufficient for the restoration of the street to its original condition as security that it should be so restored.

The appellee’s argument as to this is twofold: First, that section 7 of the ordinance of 1858 “lays a present, unconditional and continuing duty upon the grantees therein and their successors to keep the space between the tracks in Archer avenue in good repair and condition,” and that the words “in accordance with whatever orders or regulations respecting the ordinary repairs thereof may be passed or adopted by the Common Council of the said City” do not subject the duty to a condition precedent changing it from an absolute to a conditional duty, but enlarge the present, continuing, absolute and unconditional duty by reserving to the council the right to make additional and extra orders and regulations from time to time to meet changing conditions; and, secondly, that if the different construction of the Railway Company is correct, a subsequent ordinance in force in 1906, and then designated as section 1945 of the Revised Municipal Code of Chicago of 1905, which code was passed as a whole March 20, 1905, supplies sufficiently the “order or regulation” mentioned in section 7 of the ordinance of 1858.

The position of the Railway Company that this ordinance of 1905 was not properly proved, we think unfounded. It provides that “Every person or corporation operating a street railroad in the City * * * shall also keep in repair such portions of the streets as they severally have agreed or may agree with said City so to keep in repair.”

A majority of the court think that both contentions of the plaintiff above stated are well founded; that section 7 of the ordinance of 1858 places a present, unconditional duty on the Railway Company; and that section 1945 of the Code of 1905 is ‘ ‘ an order and regulation concerning ordinary repairs adopted by the Common Council.”

Passing now from the objections to the judgment made by the appellants, which relate only to the liability of the Bailway Company, to those which are applicable only to the Nacey Company, we are called on first to decide on a criticism of the declaration made in the argument of that Company. It is, we think, sufficient to say of this that the objection to the sufficiency of the declaration seems to us highly technical. The declaration was throughout the trial below construed by all parties as sufficient in the matter indicated, which matter is the obvious necessity of alleging that “the hole into which the plaintiff fell was a hole which the Nacey Company made.” The Nacey Company, by an ingenious minuteness of analysis, attempts in its argument to show that this allegation is wanting in the declaration and that its absence could be taken advantage of on motion in arrest of judgment, whatever was the proof. We think the declaration was good at all events after verdict. Sargent Co. v. Baublis, 215 Ill. 428.

The Nacey Company next insists that the preponderance of the evidenc shows that that Company used ordinary care in all its actions involved in this cause, and is therefore not liable. The argument of the Nacey Company is that the depression of itself does not prove that the original filling was improperly done; in other words, that the condition was not one where “res ipsa loquitur” applies; that to refill perfectly at once the trench necessarily opened was impossible ; that the Company did everything that the permit required, and that the arrangement with the city and deposit of money therewith implied that the city assumed the obligation of "any subsequent necessary restoration, and that the evidence shows that the accident occurred nearly a month after the Nacey Company ended its work.

This argument is answered by the plaintiff with the statement that the question left to the jury by the instructions, so far as the Nacey Company was concerned, was not whether the Company maintained the street in good condition, but whether it was in the first instance negligent in the manner of its refilling.

The 30th instruction given to the jury was: “The jury is instructed that it was not the duty of the defendant, the P. Nacey Company, to keep the street in a reasonably safe condition, but the burden is on the plaintiff to prove that the P. Nacey Company was negligent in its method of filling in the trench, and that the manner of putting back the earth in the trench was not such as would leave the street in a reasonably safe condition. Unless the plaintiff makes such proof by a preponderance of evidence, your verdict should be for the P. Nacey Company.”

The jury therefore had before them the question which the Nacey Company says they should have had, and decided it against the Company. This decision, however, the Company contends was against the clear preponderance of the evidence and should not be allowed to stand.

Examination of the evidence in detail does not convinee us of the soundness of this position. There was left by it, we think, a fair question for the jury, and on full consideration we deem it our duty to let its decision stand.

In addition to the objections to the judgment which we have discussed relating to the defendants separately and respectively, there are others vigorously insisted on by them which are pertinent to the case against them both.

The first is the allegation that either as a matter of law, requiring a peremptory instruction, or as a matter of fact, requiring the setting aside of the rendered verdict, there was proof made of contributory negligence on the part of the plaintiff. The gist of the argument of the appellants on this point is that the depression was conspicuous; that of the appellee that it was not patent but rather latent and concealed from a person situated and engaged as was he.

This question, we think, on consideration of all the evidence, was like that of the negligence of the Nacey Company, one for the jury under proper instructions. Such instructions were given. Nos. 14, 15 and 16 cover the matter fully.

Several of the instructions given at the request of the plaintiff are complained of by the defendants.

The Railway Company says that instruction 35 takes away from the jury, by the use of the present instead of the past tense, the question whether the ordinances had expired. It was not a question for the jury. It was for the court. If the opinion we have heretofore expressed is correct, the ordinance of 1858 had not expired by its terms, as there was no “purchase” shown. In that case, even if the instruction was technically wrong as to the ordinance of 1883, it could do no harm.

Instructions 4, 5, 7, 8 and 9 are all attacked by one or both of the appellants. The objections made. to them we do not deem it necessary to discuss. We think no one of them is erroneous.

Against instruction 6 both appellants argue, and the question made by it seems to us serious. It is:

“The Court instructs jury as a matter of law that if they believe from the evidence that the plaintiff, Dietrich Brun, went upon a public street in the City of Chicago, namely, Archer avenue, near Keeley and traveled over the same and while so traveling was in the exercise of ordinary care for his own safety, then the Court instructs the jury as a matter of law that the plaintiff had a right as a matter of law to presume that the said Archer avenue was reasonably safe for the purpose of ordinary travel.”

The italics of course are ours, used for the purpose of marking the clause which we think saves the instruction from technical error. If the plaintiff’s “ordinary care for his own safety” would have given" him knowledge of the defect, then “ordinary care for his own safety” would absolutely negative the absence of such knowledge; and it is only in the absence of such knowledge that he is authorized to presume anything.

If ordinary care would not have shown him the defect, and he had no knowledge otherwise, then no right to a “presumption” of any kind was necessary under the law to render the person responsible for the defect, and, having knowledge of it, liable to him. To say, therefore, that he was entitled to presume anything under these conditions is practically meaningless and harmless. Were it otherwise the instruction would have been erroneous. Chicago & A. R. Co. v. Sanders, 154 Ill. 531; Chicago City Ry. Co. v. McKeon, 143 Ill. App. 598.

But if -not technically erroneous, the question whether the instruction is not misleading becomes an important one and the argument that it might have been is not without force. We do not approve or commend it, but taken in connection with the other instructions and the evidence, we do not think it did, nor probable that it could have misled the jury.

The refusal of two tendered instructions, those numbered 43 and 38, is also said by the appellants to be reversible error. We do not think so. Tendered instruction 43 was to the effect that if the street was left in a reasonably safe condition by the Nacey Company and that it subsequently became unsafe, the Nacey Company was not liable. This instruction, so far as it was an accurate statement, was fully covered by the given instructions numbered 29, 30, 31 and 32.

Moreover, as phrased it might have been misleading. It would make a difference how soon subsequently a depression appeared and to what extent. If for the moment the street where the ditch had been filled was safe, but almost immediately began materially to sink, it would at least be relevant evidence tending to show bad filling.

Tendered instruction 38 was bad in form. Had it been confined to the proposition that the jury should be governed as to the law of the case entirely by the instructions of the court, it would have been correct. To say, however, that the jury “ should consider that only as law which had been given by the Court in the instructions” is to imply that the whole body of the law had been included in the instructions—a manifest absurdity.

We have examined all the rulings on evidence and the objections made to them carefully. These objections and those based on the language used in argument by the plaintiff’s counsel do not seem to us well taken or to need discussion here.

But the final ground of attack on the judgment has been the reason for hesitation in affirming it. The verdict was eight thousand five hundred dollars, and it was only on a remittitur of two thousand five hundred dollars that a new trial was denied. The damages as assessed by the jury were undoubtedly excessive, and in our opinion, after a very detailed examination of the testimony, expert and other, which bears on the subject of the damages, we think the judgment is clearly too large even after the remittitur.

If the amount can be said to be justified by some of the expert testimony, we think, nevertheless, that the clear preponderance of all the evidence is to the contrary. We are not willing to say that considering all the evidence we think that passion and prejudice govemed the jury in their decision. We do not therefore reverse the judgment unconditionally. But in view of our deliberate judgment as to the weight of the evidence on the subject of the damages, we shall affirm the judgment only on a further remittitur of two thousand dollars and interest on two thousand dollars from the date of the judgment, leaving the judgment at four thousand dollars with interest from its date.

” If the appellee remits within ten days to that amount, the judgment will be affirmed on both appeals. Otherwise it will be reversed and the cause remanded.

Affirmed if a remittitur to four thousand dollars and interest from the date of the judgment is filed within ten days; otherwise reversed and remanded.

Mr. Justice Smith dissents.


source: Caselaw Access Project

license: Public Domain

text:
    Joseph F. Marcinkevich, Defendant in Error, v. Jason L. Wilson, Plaintiff in Error.
    Gen. No. 17,587.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Action by Joseph F. Marcinkevich against George T. Wilson and Jason L. Wilson for broker’s commissions. Case dismissed as to George T. Wilson and from a judgment for $264.50, defendant brings error.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks for plaintiff in error; Burrell J. Cramer, of counsel.
    Brady & Rutledge, for defendant in error.

      Abstract of the Decision.
    1. Dismissal, nonsuit and discontinuance, § 11

      —one defendant may be dismissed .after verdict rendered. Where a verdict is rendered against two defendants in an action for services rendered, the Practice Act, § 39, J. &. A. H 8576, permits a dismissal as to one defendant and the entering of a judgment against the other.
    2. Brokers, § 28

      -—when unlicensed broker may recover. A person not a real estate broker under the meaning of Chicago Municipal Code may recover commissions without having had a broker’s license.
    3. Brokers, § 88

      —when evidence is sufficient for commissions. In an action to recover commissions for the sale of property, evidence held sufficient to sustain a judgment for plaintiff.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    The City of Chicago, Defendant in Error, v. Thomas Confare, Plaintiff in Error.
    Gen. No. 18,064.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Complaint by the City of Chicago against Thomas Confare for making, aiding, countenancing and assisting in making an improper noise, riot, disturbance, breach of the peace and diversion tending to a breach of the peace in violation of the Chicago Code of 1911, § 2012. From a finding and judgment of .conviction by the court, a jury having been waived, defendant brings error.

      Abstract of the Decision.
    Breach of the peace, § 1

      —what not "breach of ordinance. Evidence that a man crawled under a canopy of an elevated station and was looking through the cracks in the elevated station under women’s clothes as they were passing up and down the station, in the absence of any other showing, does not show a violation of the Chicago Code of 1911, § 2012. The prosecution should have been under another section of the Code.
    Adolph Marks, for plaintiff in error.
    William H. Sexton and James S. McInerney, for defendant in error; Edwin J. Raber and George L. Reker, of counsel.

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

   Mr. Justice Brown

delivered the opinion of the court.


text:
    Harry G. Green, Defendant in Error, v. David McGowan, Plaintiff in Error.
    Gen. No. 18,102.
    1. Judgment, § 114*—when default on improperly amended return is erroneous. Where a summons is returned as served on one defendant and not found as to all others and default is entered against the defendant served and afterwards the return is amended by erasing the name of the defendant defaulted and inserting the name of another defendant who is defaulted without notice of the change, held that the latter judgment should not be permitted to stand.
    2. Judgment, § 145*—when affidavit to set aside a default states a meritorious defense. Affidavit in support of a motion to vacate a default judgment, held to allege a meritorious defense.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 3, 1913.

      Edward H. Morris, for plaintiff in error; Martin J. Isaacs and T. Webster Brown, of counsel.
    Percival Steele, for defendant in error; Harvey L. Cavender, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

This writ of error is brought to reverse a judgment of $2,335 entered by the Municipal Court of Chicago in favor of Harry C. Creen against David McCowan on a default of the said McCowan for want of an appearance.

The record shows that on March 3, 1911, a praecipe issued out of the Municipal Court of Chicag’o at the demand of Harry C. Creen for a summons in assumpsit against David McCowan, Thomas McCinnis, Harry Belford and Bobert Young, setting the damages claimed at two thousand five hundred dollars. On the same day a statement of claim and affidavit of claim were filed, setting forth that the claim was “for money lost at gambling with the defendants” at 464 South State street, Chicago, and that there was due to the plaintiff from the defendants .the sum of two thousand three hundred and thirty-five dollars. A summons was issued on the same day against the four defendants named, which was returned not found as to all the defendants March 3,1911. On March 15,1911, an alias summons was issued and this on March 20, 1911, was also returned not found as to all the defendants. A pluries summons seems also to have been issued on March 15,1911, returned in the same manner on March 27,1911. Why a pluries should have been issued while the alias was still out and on the same day does not appear. March 27,1911, another pluries summons was issued against the four defendants, on which the return as it now appears is:

“Served this writ on the within named defendant, David McCowan, by delivering a copy thereof to.him and at the same time informing him, of the contents thereof this 1st day of April, 1911. The other within named defendants not found in the City of Chicago.
“Thomas M. Hunter, Bailiff.
“By Andrew G. Johnson, Deputy.”

On April 18,1911, Thomas McGinnis was called and defaulted and judgment entered against him for two thousand three hundred and thirty-five dollars and costs, and it was further ordered by the court that a scire facias issue against the other defendants.

May 11,1911, on motion of the plaintiff, the order of default and judgment entered on April 18, 1911, was vacated and the cause reinstated and leave was granted “to the plaintiff to have return upon the summons herein amended instanter.”

May 12, 1911, David McGowan was ruled to appear instanter, called and defaulted and judgment entered against him for two thousand three hundred and thirty-five dollars and costs, and a writ of scire facias ordered against the other defendants.

May 25, 1911, David McGowan appeared and moved the court to vacate the order of default and judgment entered against him on May 12,1911. This motion was heard on June 2,1911, and McGowan presented an affidavit setting forth that he was not on April 1,1911, or at any other time personally served with a summons in the cause; that he had no notice whatever of the pendency of said suit against him until after May 17, 1911; that about April 1, 1911, a man met him and asked him if his name was McGinnis, and said that he had a writ for McGinnis; that no writ, paper or summons of any kind was read to him or left with him or anything said to him about there being a summons for him, McGowan; that the first knowledge he had that there was a suit against him was by a letter from the plaintiff’s attorney dated May 17,1911, stating that there was a judgment against him; that on the next day he took the letter to his attorney; that he has a good defense to the. suit on the merits to the whole of the plaintiff’s demands, and that neither he nor any one acting for him within two years past gambled with the plaintiff, nor won two thousand three hundred and thirty-five dollars, or any other sum of money from said Green; that he knows a man named Thomas McGinnis, but that said McGinnis and he were never interested in any gaming or betting at 464 South State street, Chicago, and that said McGinnis never at any time had any interest with him in the premises 464 South State street or any business carried on thereon.

The.affidavit concludes: “This affiant is not jointly liable with the other defendants or separately indebted to the plaintiff on account of any money or property lost at gambling or any other account in any sum whatever. This affiant says that if any summons had been served upon him he would have through counsel appeared and made his defense to this suit. Affiant prays that said judgment may be vacated and set aside and he permitted to make his defense to this suit.”

In connection with this affidavit the defendant MeGowan presented and read to the court the return of the bailiff as originally made on the writ, showing service on McGinnis, but not on McGowan, and advanced as a further reason for allowing the motion the proposition that the statement of claim filed in the cause set up no cause of action against the defendant McGowan.

The plaintiff Green was allowed to read and file counter-affidavits, one of a personal agent who made oath to unsuccessful attempts to secure the attendance of Johnson, the deputy bailiff who made the return on the writ, and the other his own, to the effect that he, Green, saw Johnson deliver or attempt to deliver a copy of the summons in the cause to McGowan ‘‘on the date of the return of the summons in this cause as being served upon said David McGowan.” He further makes oath that “if the said Andrew G. Johnson were personally present, he would testify” to the same thing.

The court then overruled the motion to vacate the judgment and to allow McGowan to defend, to which order McGowan excepted.

It needs no extended discussion of this record to show that this order must be reversed and the judgment vacated.

Passing over the points made by the plaintiff in error that the statement of claim was insufficient, and that counter-affidavits should not have been heard, both of which points, however, we think are well taken, it would set a very dangerous precedent to allow a judgment to stand taken as this one was. The writ was returned as served on one defendant and not found as to all others. The defendant reported served was defaulted. The return was afterwards changed by erasing the name of defendant defaulted and inserting the name of another defendant. Then without notice to him of any such change, the second defendant was defaulted. Leave to the plaintiff to amend the return on the summons was indeed granted between these actions of the court, but how the summons was to be amended or whether the crossing out of one name and the writing in of another was “an amendment” made by the plaintiff or the deputy bailiff or some other person, does not appear.

The affidavit of the plaintiff that he saw the deputy try to serve or serve a copy of the summons on McGowan, even if considered, adds nothing to justify the default and judgment under these circumstances; nor of course does Green’s statement .of what the bailiff would swear to if he were present.

The plaintiff in error on his motion to set aside the judgment to vacate the default and to allow him to defend, presented an affidavit alleging a meritorious defense. It is immaterial whether this motion was addressed to an absolute obligation of the court or to its discretion. If it was to the latter, the discretion appealed to was abused in its use.

The order denying the motion to vacate the judgment against the plaintiff in error is reversed, the judgment is vacated, the default set aside and the cause remanded to the Municipal Court for proceedings which shall allow the plaintiff ,in error to defend against the suit as he may be advised.

jReversed and remanded.


text:
    Peter Muller and Jacob Muller, Appellants, v. Abraham Bernstein and Henry Wolff, Appellees.
    Gen. No. 18,147.
    1. Municipal Court of Chicago, § 5—power to adopt rules. Under the Municipal Court Act, §§ 20, 28, J. & A. ¶¶ 3332, 3340, the Municipal Court may adopt a rule providing for a statement of claim instead of a declaration, in cases of the fourth class.
    2. Municipal Court of Chicago, § 13

      —when statement of claim sufficient on motion to strike. The fact that a statement of claim contains among the items of damages enumerated some which are not recoverable, does not render it obnoxious to an equivalent to “a general demurrer” in a “motion to strike.”
    3. Landlord and tenant, § 176

      —liability of lessor when possession withheld by prior tenants. A lease giving lessee right to possession on a certain day and providing that lessee assumes responsibility for eviction of prior tenants in possession at date of lease, held to entitle lessee to damages for the time he is kept out of possession by such prior tenants where lessor had represented that he had given sufficient notice to terminate the leases of such prior tenants within the time agreed upon for lessee’s occupancy.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded.
    Opinion filed November 3, 1913.
    Campe, Koebel & Mechling, for appellants; Wyman & Jurgens, of counsel.
    Blum & Blum, for appellees.

      See Illinois Notes Digest, Yols. XI to- XIV, same topic and section number.

   Mr. Justice Brown

delivered the opinion of the court.

The plaintiffs below, appellants here, Peter Muller and Jacob Muller, sued the defendants below, appellees here, Abraham Bernstein and Henry Wolff, in the Municipal Court of Chicago and made a statement of claim, afterwards amended, hereinafter described as amended.

The defendants moved to strike the amended statement of claim from the files on the ground that it did not state a cause of action against the defendants. The court sustained said motion, whereupon the defendants moved to dismiss the plaintiffs’ suit at plaintiffs’ costs. This motion was also sustained and the suit dismissed. The plaintiffs appealed from this judgment of the court.

The amended statement of claim set forth that by a lease made a part of the statement the defendants leased two stores on Milwaukee avenue in Chicago to be occupied from May 7, 1910, to April 30, 1920, by which lease the defendants covenanted that the plaintiffs should be legally entitled to the possession of said premises on May 7, 1910; that at the time the lease was delivered to the plaintiffs said premises were in the possession of certain tenants of the defendants under existing leases, also made a part of the statement of claim; that at the time said lease was delivered to the plaintiffs there were also delivered to them certain notices purporting to terminate the existing leases to said tenants, and that at said time the defendants represented to the plaintiffs that said notices had been served upon the said tenants in possession and that said existing leases to said tenants would be terminated sixty days after March 7, 1910, and that plaintiffs would be entitled to possession of said premises on said date; but that in fact said notices had not been served on said tenants and that the plaintiffs did not become entitled to the possession of said premises on said May 7,1910; that on June 28,1910, the defendants prepared and caused to be served upon the said tenants in possession of said premises other notices, which notices were served on July 1,1910, and terminated said leases on August 31,1910; that by reason of the breach of the covenants of the defendants the plaintiffs were damaged to the amount of $1,377. Then followed a tabulated account which mentioned $10.10 as court costs paid out by the plaintiffs in unsuccessful suits by them against the prior tenants to secure possession, $30 as attorney’s fees in the said suits and $1,337 as “damages sustained by plaintiffs by reason of being deprived of the right to the possession of said premises from May 7th to August 31st, inclusive.”

The leases from the defendants to the prior tenants were from a preceding owner of the premises, from whom the defendants had purchased them. They ran from the first day of May, 1909, to the thirtieth day of April, 1912, but contained this clause:

“It is understood that in the event of a sale of the building in which the above mentioned premises are situated, said party of the first part reserves the right to cancel this lease by giving said party of the second part 60 days notice in writing. ’ ’

The lease from the defendants to the plaintiffs contained this stipulation:

“Tenth. It is further covenanted and agreed by the parties of the first part that the parties of the second part shall have the said demised premises free of any rent to July 1,1910, but said parties of the second part agree to assume all responsibility of eviction, if necessary, the present lessees of said demised premises, but' parties of the first part agree to serve as witnesses should their testimony be required.”

We think that the statement of claim stated a cause of action and that the judgment must be reversed and the cause remanded.

The most serious question is whether the clause in the lease from the defendants to the plaintiffs above quoted negatived the liability of the defendants to the plaintiffs for their legal and rightful exclusion from possession through the existence of a prior unterminated lease. We do not think it did. The lease to the plaintiffs implied a covenant for quiet enjoyment, but did not imply or express any covenant to place the second party in possession. That is, it implied that the parties of the first part had the legal right to give and the parties of the second part the legal right to enforce possession of the premises for the term reserved, but left to the second party the burden of enforcing that right. Gazzolo v. Chambers, 73 Ill. 75. The clause in question as we construe it did nothing more than make an express statement of the situation which the law made without it.

vThe construction that the “responsibility” (which was an inapt word to use) of evicting the tenants in possession was taken by the plaintiffs, whether or not an eviction was legally possible, does not seem to us as reasonable as the construction that in assuming the “responsibility” (by which was probably meant the labor arid cost) of eviction, it was assumed that the eviction was a legal possibility.

The other objections made by the appellees to the statement of facts seem less worthy of serious consideration.

If the striking of the statement of claim from the files and the dismissal of the cause was “a matter pertaining to the practice of the Municipal Court,” it was one in which “in the opinion of the Appellate Court” “relief is necessary to prevent a failure of justice.”

We can hardly be expected to declare either section 20 or section 28 of the Municipal Court Act of May 18, 1905, as amended June 3, 1907, unconstitutional. The first of these sections provides that the judges of the Municipal Court shall have power to adopt, in addition to or in lieu of the provisions contained in the act prescribing the practice in the Municipal Court or of any portion of said provisions, such rules regulating the practice in said court ag they may deem necessary or expedient for the proper administration of justice therein; and the other, that the judges of the Municipal Court may by rules provide that the practice in cases of the first class shall be the same as in the act is provided for eases of the fourth class. The court adopted a rule which provided for a statement of claim, instead of a declaration, in cases of the first class. It had a right to do so.

That the statement of claim contained among’ the items of damages enumerated some which were unrecoverable, if it be true, did not render it obnoxious to an equivalent to “a general demurrer” in the “motion to strike.”

We are not called upon to pass on what were or were not proper items; but it would seem that at least the rental value of the premises for the time the plaintiffs were held out of possession by the legal tenure of others should be included in the damages irrespective of the fact that their lease called for no rent during a portion of that time.

The judgment of the Municipal Court is reversed and the cause remanded to that court.

Reversed and remanded.


text:
    Johanna Theisen, Defendant in Error, v. Axel Nogard and Harry E. Lawver, Plaintiffs in Error.
    Gen. No. 18,152.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed with finding of facts.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Action by Johanna Theisen against Axel Nogard and Harry E. Lawver, trading as Harvard Dentists, to recover damages for injuries sustained Tby plaintiff alleged to have been caused by malpractice and negligence of defendants in performing dental work for plaintiff. From a judgment in favor of plaintiff for two hundred and seventy-five dollars, defendant brings error.
    Abstract of the Decision.
    1. Physicians and surgeons, § 22

      —when evidence insufficient to show malpractice in dental work. In an action to recover damages for malpractice in dental surgery and for negligence in performing dental work, causing plaintiff to suffer from a splintered and broken jaw, evidence held insufficient to sustain a recovery by plaintiff where it does not show malpractice nor the employment of any method other than that usually employed by dentists and there is no evidence of “a splintered and broken jaw.”
    2. Damages, § 206

      —necessity of instruction being based on the evidence. Instruction informing the jury that they might consider the loss of time and the damages from permanent as well as temporary injuries, if they are proved, is erroneous where there is no evidence of the value of the time “lost” nor any evidence of “permanent injuries” in the record.
    3. Instructions, § 118

      —necessity of being based on pleadings and evidence. An instruction must be on a theory advanced by the pleadings and which there is some evidence to support.
    James B. Poynton and Pattison & Shaw, for plaintiffs in error; Douglas C. Gregg, of counsel.
    No appearance for defendant in error.

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

   Mr. Justice Brown

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    Paul Hesse, Plaintiff in Error, v. Robert Zaffke, Defendant in Error.
    Gen. No. 18,062.
    1. Damages, § 251

      —right of trial court to order a remittitur. Unless a party in whose favor a verdict of a jury is rendered moves to remit therefrom, or consents thereto, the trial court can only grant a new trial or enter judgment on the verdict; the court cannot of its own motion order a remittitur. _
    2. Judgment, § 629

      —when payment to cleric of court does not preclude rights of party recovering judgment. Payment of the judgment and costs by the defendant to the clerk of the court cannot without plaintiff’s acceptance thereof, defeat his rights in the case.
    3. Appeal and error, § 1782

      —when compelling remittitur, reversible error. Action of trial court in entering an order of remittitur on its own motion, held, reversible error.
    4. Appeal and error, § 897

      —when evidence must be presented in transcript. Where the evidence is in no form presented in the transcript of record, the merits of the case cannot be considered.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1912.
    Reversed and remanded with directions.
    Opinion filed November 3, 1913.
    Myer Linker, for plaintiff in error.
    Shaeffer & Kompel, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

On a trial in the Municipal Court of Chicago the plaintiff in error, hereinafter called plaintiff, secured. a verdict of a jury against the defendant in error, hereinafter called defendant, for $297.95 for labor and material claimed to have been furnished the defendant by the plaintiff. The court of its own motion entered an order as follows: “It is ordered by the court that the plaintiff remit the sum of ninety-seven ($97.00) dollars from the amount of the verdict entered in this cause,” and thereupon denied the defendant’s motion for a new trial and entered judgment against the defendant for $200. The action of the court in entering of its own motion the said order of remittitur is urged by the plaintiff: as reversible error.

Unless a party in whose favor, a verdict of a jury is rendered moves to remit therefrom, or consents thereto, the court can only grant a new trial or enter judgment on the jury’s verdict. It seems to us that this rule of law is so well established in this State it needs no discussion. It may be observed that if a court of its own motion can by an order subtract from the amount fixed by the jury in its verdict, it would seem that by the same authority and power the court of its own motion could by an order add thereto.

The payment of the judgment and costs by the defendant to the clerk of the court cannot, without the plaintiff’s acceptance thereof, defeat his rights in the case. The evidence is in no form presented in the transcript of record and the merits of the case cannot be determined. Even if the evidence were so presented, we fail to see how the defendant could avail himself thereof.

The judgment is reversed and the cause remanded with directions to either enter judgment on the verdict or grant a new trial in the cause.

Reversed and remanded with directions.


text:
    Fannie Horowitz and Bessie Horowitz by Barnet Finkelstein, Appellees, v. Independent Western Star Order, Appellant.
    Gen. No. 18,008.
    1. Insurance, § 855

      —when society estopped to set up its laws as a defense. In.an action to recover on a certificate of membership in a beneficiary society wrongfully withheld from the member during his lifetime, society held estopped to set up as a defense that the laws of the society provide that an applicant shall not be considered a member until after he is in possession of the membership certificate.
    2. Insurance, § 851

      —when beneficiary may invoke aid of equity to recover on a certificate wrongfully withheld. Where a benefit certificate has been wrongfully withheld from member during his life time, the beneficiaries may invoke the aid of equity to adjust the controversy by final decree,
    3. Infants, § 34

      —authority of next friend to collect judgment. The prosecution of a suit for infants may be undertaken and conducted by a next friend, but he is not authorized to collect the judgment.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed November 3, 1913.
    William A. Jonesi, for appellant.
    Wharton Plummer and Joseph Epstein, for appellees ; Todd & Plummer, of counsel.

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

   Mr. Justice Smith

delivered the opinion of the court.

The appellees filed their bill in which they alleged inter alia, that the defendant was a fraternal beneficiary society organized and doing business under the laws of Illinois; that G-ussie Horowitz, their mother, became a member of the defendant society August 23, 1908; that she continued as such member, attending the meetings of Humboldt Lodge No. 151, a subordinate lodge of the said defendant, and was at all times recognized as a member thereof, and paid all dues and assessments required to be paid by her under the laws of the lodge and the defendant society; that she was duly initiated into said defendant society as a beneficial member and complied with all its laws and was a beneficial member thereof in good standing when on March 30, 1909, she died of pneumonia; that in her application of membership she designated the complainants as her beneficiaries; that her application was duly approved and deposited with I. Shapiro, the defendant’s Grand Secretary, who was authorized to receive same and empowered and directed to issue therein to said Gussie Horowitz a certificate of memin the defendant society, which said Shapiro neglected to do; that in said application was a printed instruction to the medical examiner that female candidates in any stage of pregnancy should be rejected; that at the time of making said application said Gussie Horowitz was not pregnant, but that she became pregnant long after the approval of the application; that she made repeated demands for the said certificate, but was unable to obtain same; that on or about January 26, 1909, the said Grand Secretary, Shapiro, learned of her pregnancy and knowing that she could not then pass the said examination by reason of her pregnancy, for the purpose and intention of wrongfully depriving her of the said certificate of membership, refused to issue the same unless she submitted to another medical examination, which she refused to do on the ground that she was and had been a member of the said defendant society since August 23, 1908, and was lawfully entitled to said certificate and made demand thereof and. same was refused and none issued to her; that soon thereafter she became ill and unable to commence an action to enforce the issuance of the said certificate and died March 30, 1909; that proofs were made of the said death and payment refused. The bill prayed that a decree be entered that said certificate be issued by the said defendant society and payment thereon of five hundred dollars be decreed complainants.

A demurrer was overruled and thereupon the defendant answered, admitting, inter alia,, that said Gussie Horowitz made such application and that the same was approved by its chief medical examiner, but denied that she was a beneficial member of the said society or that she was initiated therein as a beneficial member, or that she was so recognized, or that she complied with the rules and laws of the defendant society, or that she was entitled to a certificate of membership therein. On the fifing of a replication the cause was heard by the chancellor and a decree entered finding, inter alia, that on August 23,1908, Gussie Horowitz, the mother of the complainants, applied for membership in Humboldt Lodge No. 151, a subordinate lodge of the said defendant society, and on the said date was duly and lawfully initiated as a beneficiary member of the said lodge and .the said defendant society; that the said initiation took place at the date of the application under a special arrangement made with the grand officers of the defendant society in relation to charter members of the said subordinate lodge; that she paid all dues, assessments and charges required by the laws of the said defendant society and complied with all rules thereof and of the subordinate lodge; that the said Gussie Horowitz became and was in fact a beneficiary member of the defendant society and entitled to a certificate of membership therein; that the laws of the said defendant society provided that no applicant shall be considered a member of the said defendant society until after he has received the initiatory degree and is in possession of the membership certificate issued by the Grand Lodge through the Grand Secretary; that repeated requests were made for said certificate of membership and that the Grand Secretary was notified of the initiation of the said Gussie Horowitz and requested to issue to her a certificate of membership; that the said Grand Secretary was empowered to and under the laws of the said defendant society should have issued a certificate of membership to the said Gussie Horowitz, hut that the said Grand Secretary wrongfully refused to issue the said certificate; that the laws of said defendant society provided that pregnant women were not eligible to membership therein; that said insured became pregnant subsequent to her initiation as a member of the defendant society and that its Grand Secretary refused to issue a certificate to her unless she again submitted to an examination, and the said refusal was wrongful and without justification; that the insured died of pneumonia and the complainants were her beneficiaries and entitled to the said sum of five hundred dollars and decreed that said sum with interest thereon be paid to the complainants.

There was a conflict of testimony, but we are not disposed to hold that the weight of the evidence was clearly and manifestly against the findings of the chancellor on material issues of fact, as contended by the appellant.

The provision that no applicant shall be considered a member of the said defendant until after he “is in possession of the membership certificate issued by the Grand Lodge through the Grand Secretary” is claimed by the appellant to defeat the right to recover, and he cites Bishop v. Empire Order of Mutual Aid, 43 Hun (N. Y.) 472, and Niblack on Benefit Societies, sec. 139, p. 280. We do not think the authorities cited support the contention when applied to the facts in the case at bar. It appears to us that the rules announced by Mr. Niblack in sec. 138, to which we refer, support the appellees’ right to recover. We are of the opinion that the defendant is estopped from interposing the said defense. To hold otherwise would permit the defendant to avail itself of its own wrong.

It is urged that the right of recovery, if any, is in law and not in equity. As we understand the appellant’s argument it is in effect that the court would not now enforce the issuance of a certificate of membership on the life of the insured, for she being dead, the certificate would be void; and if it be held that a bill could have been maintained by the insured during her life to enforce the issuance of and delivery to her of a certificate of membership in the defendant society, then a complete contract could have been established by the appellees that would support an action at law and therefore there can be no recovery in equity. We do not agree with this contention. The defendant had not delivered to the insured a certificate of membership, and claimed that without said certificate, as required by the laws of the defendant society, which were binding on her, there could be no recovery. To establish that the insured had been entitled "to the said certificate and that it was wrongfully withheld by the defendant society, and contrary to its own laws, and that the complainants were the beneficiaries designated by the decedent, we think the appellees properly invoked the aid of a court of equity. These facts being established, which with the application, charter, bylaws, etc., made a complete contract between the parties, and with all the evidence further showed the appellees were entitled to recover; the court, having jurisdiction in chancery, rightfully and wisely adjusted the entire controversy by a final decree.

The appellant is much concerned over being required to pay the amount of this decree to the next friend. We agree with counsel that if it pays the amount to the next friend there may be some ground for apprehension. The error is perhaps in treating the next friend as the party complainant. The beneficiaries are parties complainant and the decree provides for payment to them and not to the next friend. The payment should therefore be into court or to a lawfully appoint; ed guardian, and it is not required to, and should not, pay the amount to the next friend. The prosecution of a suit for infants may be undertaken and conducted by a next friend, but he is not authorized to collect the judgment. 22 Cyc. 704.

We think the other points made are untenable, and no reversible error appearing’ in the record the decree is affirmed.

Affirmed.


text:
    Edgar J. Cook, Defendant in Error, v. B. F. Graham, Plaintiff in Error.
    Gen. No. 18,084.
    (Not to be reported in full.)
    Abstract of the Decision.
    Principal and agent, § 83

      —sufficiency of evidence. In an action for services and 'expenses incurred in connection therewith, finding of trial court as to value of services rendered and authority of plaintiff to incur expenses, held sustained by the evidence.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Action by Edgar J. Cook against B. F. Graham to recover for services and expenses incurred in connection therewith. From a judgment in favor of plaintiff for two hundred and seventy-five dollars, defendant brings error.
    Daniel W. Scanlan and John H. Miller, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    L. C. Carden, Defendant in Error, v. Chicago Railways Company, Plaintiff in Error.
    Gen. No. 18,123.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13—when statement of claim is sufficient. A statement of claim that may be insufficient if tested by demurrer under the strict rules of common law pleading may be sufficient under the Municipal Court Act and the rules of court.
    2. Damages, § 168

      —when question on willingness to submit to physical examination, improper. Plaintiff in a personal injury case cannot be compelled to submit to a physical examination by a physician, and a question whether plaintiff will submit, proper on cross-examination, may be improper on recross-examination.
    • 3. Appeal and error. § 1499*—when refusal to permit question on physical examination is harmless. Refusal to permit a question to plaintiff whether he will submit to a physical examination is harmless where the verdict would not have been diminished if the question had been permitted.
    Error to the Municipal Court of Chicago; the Hon. Joseph Z. Uhlib, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Action by L. C. Carden against the Chicago Railways Company for damages for personal injuries received in alighting from a street car. From a judgment for plaintiff for one thousand dollars, defendant brings error.
    Edward C. Stearns and Frank L. Kriete, for plaintiff in error; John R. Guilliams, of counsel.
    H. E. Wynekoop, for defendant in error; Edward Maher, of counsel.

      See lUinois Notes Digest, Yols. XI to XIV, same topic and section number.

   Mr. Justice Smith

delivered the opinion of the court.

4. Street railways, § 152*—verdict not disturbed unless against weight of evidence. Negligence and contributory negligence in a street railway accident case are primarily questions of fact, and the verdict of the jury thereon will not be disturbed unless clearly and manifestly against the weight of the evidence.


text:
    Margaret A. Pottinger, Defendant in Error, v. Gottlieb Erhardt, Plaintiff in Error.
    Gen. No. 18,167.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Frauds, Statute of, § 77

      —sufficient if lease is signed by lessee only. In an action for rent a lease signed by the lessee, which does not appear to have been signed by the lessor, is not within the statute of frauds, requiring instruments relating to a, term of more than one year to be signed by the party to be charged.
    2. Judgments, §. 61

      —when judgment by confession will not be vacated. Where a lessee petitions to vacate a judgment by confession for rent on the ground that the lease signed by the lessee was not signed by the lessor ai^d was within the statute of frauds, such defense is of no avail where the lessee had taken possession under the lease.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the March term, 1912.
    Affirmed.
    Opinion filed November 3, 1913.
    Statement of the Case.
    Action by Margaret A. Pottinger against Gottlieb Erhardt for rent under a lease. From a judgment by confession in favor of plaintiff, defendant brings error.
    Louis Ziv, for plaintiff in error.
    William E. Cloyes, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Northern Trust Co., Trustee, Appellant, v. Buck & Rayner, Appellee.
    Gen. No. 19,220.
    1. Descent and distribution, § 3

      —property descends by statute. The right to take property by will or descent is statutory in Illinois.
    2. Taxation, § 677

      —nature of inheritance tax. An inheritance tax is not a tax upon property, but is an excise tax or duty upon the privilege of taking property by will or descent.
    3. Taxation, § 677

      —inheritance tax reserves portion of premises to State. That a portion of premises is reserved to the State by terming it an inheritance tax does not alter the fact that such tax is a reservation to the State of a portion of the premises.
    4. Landlord and tenant, § 199

      —when lessee is not liable for inheritance tax. Where a lessee covenants to pay as additional rent all taxes and charges of every nature which the lessor shall be required to pay by reason of or on account of his interest in the land, but does not covenant to indemnify the lessor for such portion of the premises as the State may see fit to reserve to itself, on the death of the lessor the lessee is not liable for the inheritance tax on the premises.
    Appeal from the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in this court at the March term, 1913.
    Affirmed.
    Opinion filed November 3, 1913.
    Mason Brothers, for appellant; Henry B. Mason, of counsel.
    D ’Ancona & Pflaum, for appellee.

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

   Mr. Justice Smith

delivered the opinion of the court.

The appellant, the plaintiff below, filed a declaration in covenant against the appellee, the defendant below, the assignee of a certain lease. The appellee craving oyer of the lease and other instruments, proferí was made thereof and thereupon the appellee demurred. The court sustained the demurrer and the appellant electing to stand on its declaration, judgment was rendered against it and this appeal prosecuted therefrom.

It appears from the pleadings that one Ralph E. Starkweather on May 1, 1903, was the owner of a certain described lot, being the southwest corner of State and Adams streets in Chicago, and on said date made a ninety-nine year lease thereof. The lessees therein agreed to pay to the lessor a certain yearly rental, and further:

“Second, the lessees covenant to pay in the name of the lessor, as additional rent for the property above demised, promptly when due, all water rates and all taxes, assessments and municipal or governmental charges, general and special, ordinary and extraordinary, of every nature and kind whatsoever, which may, after April 30, A. D. 1905, during the life of this lease become payable (a) levied, imposed or assessed upon any land hereby demised or upon any improvements at any time during the life of this lease situated upon said land, or (b) levied, imposed or assessed upon any interest of the lessor in or under this lease, or (c) which the lessor shall be required to pay by reason of or on account of his interest in said land and improvements or in or under this lease; the first general annual taxes to be paid by the lessees being those levied for the year 1905 and payable in the year 1906, and the last being those levied for the year 2001. Every such tax, assessment and charge shall in any event be paid in time to prevent the addition of any interest or penalty thereto. * * *
Sixth. * * * The lessees further covenant that they will, at all times prior to the termination of this lease and to the delivery to the lessor of possession of said land and improvements, pay and discharge and indemnify the lessor against (1) any and all liens and charges of any and every nature and kind which may at any time be established against said land and improvements, or any part thereof, as a consequence, direct or indirect, of any act or omission of the lessees or as a consequence, direct or indirect, of the existence of the lessees’ interest under this lease; (2) any and all loss, cost, damage or expense sustained by the lessor (including the attorney’s and solicitor’s fees and the expenses of the lessor), (a) on account of or through the use of said land or improvements, or of any part thereof, by the lessees or by any other person whomsoever, for any purpose inconsistent with the provisions of this lease; (b) arising out of or directly or indirectly due to any failure of the lessees in any respect promptly and faithfully to satisfy their obligations under this lease; (c) arising out of or directly or indirectly due to any accident or other occurrence causing injury to any person or persons or property whomsoever or whatsoever resulting from the use of said land and improvements or any part thereof under this lease; (d) for which the said land and improvements or any part thereof or the lessor as owner thereof or interested therein may hereafter without the fault of the lessor prior to the termination of this lease and to the delivery to the lessor of said land and improvements, become liable, and especially (but not exclusively) any such loss, cost, damage or expense that may arise under any ordinance or statute or any municipal or governmental regulation. * * *
Eighth. The lessees covenant that if they shall fail promptly to satisfy any of their obligations under this lease, the lessor may (but shall not be bound so to do) advance and pay any moneys necessary to make good such default of the lessees; and if the lessor pay any rates, taxes, assessments or charges aforesaid, or redeem said land and improvements, or any part thereof, from any tax sale, or purchase and cancel any tax title based on any such sale (and the lessor is hereby fully authorized but not required to advance and pay money for any of said purposes), it shall not be obligatory upon the lessor to inquire into the validity of any such rates, taxes or assessments, or of any such sale, or of any such tax title. * * * The lessees further covenant to repay to the lessor, within ten (10) days after written notice is given them (the lessees) of any advance and payment above provided for, the principal sum or sums so advanced, with interest at the rate of seven (7) per centum per annum from the date of such advance until repayment thereof. ’ ’

The lessor died, leaving a last will and testament, whereby he devised the said lot, with certain other property, to the appellant, in trust nevertheless for the benefit of his wife and son. The will contained the following provision:

“In the event that my estate outside of my ‘State Street Property, ’ shall be- insufficient to pay my just debts, secured or unsecured, funeral expenses and the costs of administration, including in the costs of administration any succession, inheritance taxes or other like charges on my estate or on the interest of any devisee, legatee or beneficiary hereunder, then for the purpose of raising funds to pay the whole of the same, or one-half thereof, if only half of my estate be held in trust, I hereby direct and expressly authorize said trustee to borrow money for any one or more or all of said purposes and secure the same by mortgage or trust deed on said ‘State Street Property’ or on the interest of this trust thereon, and turn the money so obtained over to my executor to be applied in payment thereof. I make this provision in order that so much as possible of the income of my said ‘ State Street Property’ may be at once available under the terms hereof for the benefit of the beneficiary or beneficiaries hereunder.”

Under the provisions of the act to tax gifts, legacies, inheritances, etc., in force July 1, 1909, the said lot was appraised at $425,000, unincumbered, and with certain personal property making a total net amount of $440,542.50. From this' amount were exemptions amounting to $40,000, leaving an estate on which the County Court fixed the inheritance tax at the rate of two per cent., amounting to $8,010.65.

The appellant contended that under the provisions of the lease this tax should be paid by the appellee, which it declined to do. The appellant then paid the said amount and brought this action to recover therefor. The question whether the provisions of the said lease include the payment of the inheritance tax as one of the covenants of the lessee is the only question presented for our determination. The question is a new one so far. as we are advised, and a very nice one, by no means free from difficulty.

It is agreed by both parties that the appellee is not liable herein under either clause a or b of the said second paragraph of the lease. It is appellant’s contention that the appellee is liable under clause c thereof. The said second paragraph binds the appellee to pay as additional rental “all water rates and all taxes, assessments and municipal or governmental charges, general or special, ordinary and extraordinary, of every nature and kind whatsoever * * * (c) which the lessor shall be required to pay by reason of or on account of his interest in said land and improvements or in or under this lease. ’ ’ This language is certainly very broad and on first impression seems to plainly support the appellant’s contention. But on a review of the authorities and a careful consideration thereof and of the exhaustive and learned arguments of counsel, we have concluded that the inheritance tax, because of its nature, must be held not to be included within the terms of the said lease.

It has been repeatedly held that an inheritance tax is not a tax upon the property, but an excise tax or duty upon the privilege of taking property by will or descent. In Kochersperger v. Drake, 167 Ill. 122, the Court says: ‘ ‘ The amount reserved to the State from the estate of a deceased owner is not a tax on the estate, but on the right of succession.” In National Safe Deposit Co. v. Stead, 250 Ill. 584, it is said: “It has been decided by this court that an inheritance tax is a tax upon the right of succession and is not a tax upon the property itself.” To the same effect are: In re Graves’ Estate, 242 Ill. 212; People v. Griffith, 245 Ill. 536; Magoun v. Illinois Trust & Savings Bank, 170 U. S. 283; State v. Ferris, 53 Ohio St. 314; State v. Dalrymple, 70 Md. 294; State v. Hamlin, 86 Me. 495; In re Swift’s Estate, 137 N. Y. 77; In re Finnen’s Estate, 196 Pa. St. 72; Booth’s Ex’r v. Commonwealth, 130 Ky. 88; Knox v. Emerson, 123 Tenn. 409; Beals v. State, 139 Wis. 544; Morrow v. Durant, 140 Iowa, 437.

In Kochersperger v. Drake, supra, the Court says: “The laws of descent and the right to devise and take under a will within the State of Illinois owe their existence to the statute law of the state. The right to inherit and the right to devise being dependent on legislative acts, there is nothing in the constitution of this State which prohibits a change of the law with reference to those subjects at the discretion of the lawmaking power. The laws of descent and devise being the creation of the statute law, the power which creates may regulate and may impose conditions or burdens on a right of succession to the ownership of property to which there has ceased to be an owner because of death, and the ownership of which the state then provides for by the law of descent or devise.” North v. Graham, 235 Ill. 178; Selden v. Illinois Trust & Savings Bank, 239 Ill. 67; United States v. Perkins, 163 U. S. 625; Eyre v. Jacob, 14 Grat. Va. 422; Trippet v. State, 149 Cal. 521.

In National Safe Deposit Co. v. Stead, supra, the Court says: “It has been determined that the right of the State to such taxes is a vested right, and that such right vests in point of time at the time the estate vests, —that is, upon the death of the decedent. The State, therefore, has a vested financial right in the estate of every decedent in this State which is subject to the payment of an inheritance tax, and that right is equal in degree to that of the personal representative, the heir or the devisee of the decedent, and it vests at the same moment of time that the interest of the personal representative, heir or devisee vests.”

It is also said: “The proposition that the State has the right to provide for an inheritance tax and to levy the tax upon the right of the succession to the property and to provide that the State shall take a vested interest in the estate immediately on the death of the deceased, has become in this State axiomatic.”

In Re Finnen’s Estate, supra, the Court says: ‘ That which the legatee gets and keeps is the aggregate sum bequeathed, less the amount of the tax. The tax must be retained by the person who has the decedent’s property in charge. It is, therefore, not a tax upon the property or money bequeathed, but a diminution of the amount that otherwise would pass under the will or other conveyance, and hence that which the legatee really receives is not taxed at all. It is 'that which is left after the tax has been taken off. ’ ’

The right to take property by will or descent being statutory in this State, although it is considered otherwise in some States, and there being a reservation under the said statute to the State of a certain portion of the said premises that immediately vested in the State on the death of the decedent, and the said estate passing to the appellant is thereby to that extent diminished, it would seem to us to necessarily follow that at no time had the appellant any right or interest in the said portion so reserved to the State. If this view be sound, we think the appellee not liable for the reason that the lease by its terms does not, either expressly or impliedly, obligate the lessee to indemnify the lessor for such portion of the premises that the sovereign power, the State, may at any time see fit to reserve to itself. On the death of the decedent a certain portion of his said premises vested in the State and the remaining portion thereof vested in the "appellant. On that going to the appellant there was no tax, assessment or charge to be paid by the appellant under the statutes in question. The logic of appellant’s contention would lead to holding the appellee liable for a quarter, a third, or more of the said premises, were such portion by the inherent power of the State reserved to itself, which seems to us neither within the terms of the lease nor contemplated by the parties. Certainly not by the lessor, if the provision in his last will and testament providing for the payment of the inheritance taxes be considered.

How the portion of the premises may be reserved to the State, or collection made therefor, or that the same is termed an inheritance tax, an excise tax, duty, charge or any other of the many names it has been found convenient to designate same, in no way changes the rule that is by the logic of the decisions in fact a reservation to the State of a portion of the said premises.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice F. A. Smith

text:
    Hall Casket Company, Defendant in Error, v. Fred F. Roberts and Mary A. Roberts, Plaintiffs in Error.
    Gen. No. 18,485.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and judgment here.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Petition in Municipal Court of Chicago for citation brought by Hall Casket Company, a corporation, against Fred F. Roberts and Mary A. Roberts, to reach assets under the control of defendants to satisfy a judgment in favor of plaintiff against Fred F. Roberts. From an order in favor of plaintiff directing-defendants to turn over certain property to the bailiff of the Municipal Court, defendants bring error.
    Charles C. Spencer, for plaintiffs in error.
    Ernest C. Reniff, for defendant in error.

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

Abstract of the Decision.

Execution, § 270 —sufficiency of the evidence as to ownership of property on citation in Municipal Court. In supplementary or citation proceeding in the Municipal Court under section 64 of the Municipal Court Act as amended in 1907, J. & A. K 3381, evidence held to preponderate in favor of ownership of the property in the wife of the debtor.


text:
    States Printing Company, Defendant in Error, v. Leven Advertising Company, Plaintiff in Error.
    Gen. No. 18,571.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles E. Jennings, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by Currier Printing Company, a corporation, whose name was later changed to the States Printing Company, against Leven-Nichols Advertising Company, a corporation, whose name was later changed to Leven Advertising Company, on a claim for printing done by the plaintiff on the order of the defendant. From a judgment in favor of plaintiff for $172.50, defendant brings error.
    Isaac S. Rothschild, for plaintiff in error; Hugo M. Friend, of counsel.
    Nathan S. Schoenbrod and Blum & Blum, for defendant in error.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

Abstract of the Decision.

Principal and agent, § 181*—when agent contracting as principal, personally liable. In an action for printing of booklets and envelopes for the use of a third party, finding of trial court that defendant was liable on account of having ordered and supervised the printing work done, held sustained by the evidence.


text:
    James W. Storms, Defendant in Error, v. Edward R. Murphy, Plaintiff in Error.
    Gen. No. 18,653.
    (Not to be reported in full.)
    Abstract of the Decision.
    Municipal Court of Chicago, § 26

      —when trial court’s certificate not a statement of facts. A certificate by the trial judge to the effect that the evidence shown therein is a correct statement of the facts appearing on the trial- of the cause and all questions of law involved in the cause and the decision of the court upon all such questions, held not a statement of facts in compliance with the Municipal Court Act.
    Error to the Municipal Court of Chicago; the Hon. John D. Turnbaugh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Action by James W. Storms against Edward R. Murphy to recover for loss of personal property belonging to plaintiff while a guest at defendant’s hotel. From a judgment in favor of plaintiff for one hundred and ninety dollars, defendant brings error.
    E. L. Shaner, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.


text:
    Richard J. Ross, Plaintiff in Error, v. R. J. Ross Manufacturing Company et al., Defendants in Error.
    Gen. No. 18,667.

      (Not to be reported in full.)
    Abstract of the Decision.
    Corporations, § 289

      -—directors cannot increase their salaries as officers. A resolution by the majority of the board of directors of a corporation to increase their own salaries as officers is illegal and void, and a complaining stockholder need not establish the fact of the unreasonableness of the salaries.
    Error to the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 4, 1913.
    Statement of the Case.
    Bill in equity by Richard J. Ross against the R. J. Ross Manufacturing Company, a corporation, and Frank Drab, Harold Coleman and R. W. Preble, to declare void a resolution of board of directors increasing their salaries and for other relief. From a decree partially denying relief, complainant brings error.
    Vincent D. Wyman and Otto W. Jurgens, for plaintiff in error.
    Alfred E. Barr, for defendants in error.

      See Illinois Notes Digest, Vois. XI to XIV, same topic and section number.

   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.