text:
    National Surety Company, Appellee, v. Charles D. Stone & Company, Appellant.
    Gen. No. 23,113. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap,, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of facts.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action "by National Surety Company, a corporation, plaintiff, against Charles D. Stone & Company, a corporation, defendant, to recover on a written agreement of defendant to save plaintiff harmless on surety "bonds executed by it for defendant. From a judgment for plaintiff for $300, defendant appeals.

      Abstract of the Decision.
    Indemnity, § 11

      —when agreement to indemnify surety construed as not including liability on bonds not requested. In an action by a surety company to recover on a written agreement by which defendant applied to have the company furnish all bonds which he “requested,” and which states that defendant “requests” the company to become surety on the bonds “above applied for,” and that he agrees to save the company harmless, no recovery can be had for a loss on a bond which was not requested in the written application and which defendant did not request plaintiff to furnish, where there is also no course of dealing shown from which such request might be implied nor any custom from which it might be inferred, nor circumstances estopping defendant to deny the making of the request.
    Baker & Holder, for appellant.
    William R. Medaris, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Matchett

license: Public Domain

text:
    Catherine Field, Appellee, v. Henry Frank, Appellant.
    Gen. No. 23,186. (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 84

      —when evidence sustains verdict for services. In an action to recover for services rendered, evidence examined and held sufficient to support a verdict for plaintiff.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Catherine Field, plaintiff, against Henry Frank, defendant, to recover for services rendered.. From a judgment for plaintiff for $300, defendant appeals.
    Guy M. Walker, for appellant.
    Edward J. Green, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.


text:
    Hillman’s, Appellee, v. Israel Lazovsky, Appellant.
    Gen. No. 23,201. (Not to be reported in full.)
    Abstract of the Decision.
    Contracts, § 203

      —what constitutes severable contract. Where a carpet is ordered at a certain price per yard and a certain price per yard for laying it, the agreement of purchase and that for laying the carpet are severable, and where delivery is made at the purchaser’s building with his knowledge, the title to the carpet passes to him and he becomes liable for the purchase price even though the carpet is stolen before it is laid.
    Appeal from the Municipal Court of Chicago; the Hon. Howard Hates, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed January 31, 1918.
    Statement of the Case.
    Action by Hillman’s, a corporation, plaintiff, against Israel Lazovsky, defendant, to recover for goods sold and delivered. From a judgment for plaintiff for $77.75, defendant appeals.
    Harry Gr. Wexler, for appellant.
    Johnson, Paltzer & O’Donnell, for appellee; Paul O’Donnell, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Holdom

text:
    Walter Szszatkowski, by John Szszatkowski, Appellee, v. Peoples Gas Light & Coke Company and Charles L. Day, on appeal of Peoples Gas Light & Coke Company, Appellant.
    Gen. No. 23,492.
    1. Master and servant, § 844

      —when chauffeur not engaged in operation of car for employer. A chauffeur in the paymaster's department of a gas company who volunteers to take the superintendent of another department home in his closed car because of danger to the health of the superintendent in riding, in an open car, and gets the paymaster’s consent to the temporary exchange of cars by the respective departments, and injures a person upon his way back to the garage on the return trip, is not engaged in the operation of the car for his employer so as to render the latter liable for the chauffeur’s negligence.
    2. Master and servant, § 844*—when master not liable for negligent act of employee. A master is not liable for the negligent act of an employee unless done in furtherance of the master’s business.
    3. Appeal and error, § 1802*—when judgment reversed without remanding. The Appellate Court may reverse without remanding where it finds the facts in controversy different from those found by the trial court and also where it reverses for errors of law which cannot be obviated or cured on another trial.
    Appeal from the Superior Court of Cook county; the Hon. Marcus A. Kavanash, Judge, presiding. Certiorari denied by Supreme Court (making opinion final.).
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Meagher, Whitney, Ricks & Sullivan, ' for appellant; Oliver R. Barrett and Francis L. Daily, of counsel.
    Pollock, Sullivan & Livingston, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

In an action for personal injuries, the jury found a verdict of not guilty as to defendant Day and of guilty as to defendant Gas Company, and assessed damages at $7,000, from which latter verdict plaintiff remitted $2,000, and the court, after overruling motions for a new trial and in arrest of judgment, entered judgment against the company for $5,000, and it brings the record here for review by appeal.

We shall consider but one phase of the case as it appears from the facts in evidence as related to the averments of the declaration. The declaration avers in each of its counts that both the defendants, the Gas Company and Day, at the time of the accident and injury to plaintiff, damages for which were sought against both and recovered against the Gas ^Company, operated and managed the automobile which collided with the motorcycle which plaintiff was riding and operating at the time of the collision. The defendant Day, and one Cummings, the chauffeur of the automobile which collided with plaintiff’s motorcycle, testified as witnesses for both plaintiff and defendant and from their testimony, which is not contradicted, the following facts are deducible:

That the defendant Day was superintendent of the Street Meter Department of the Gas Company; that the chauffeur, Cummings, was not under his charge or subject to his orders or directions; that on the day of the accident Day had a bad cold and left his employment with the intention of going to his home; that he lived at Winnetka and bad the use of a car owned by the company in which he intended to go to his home; however, as he was going from the Gas building to the street he met the witness, Cummings, who was a chauffeur in the employ of the company and operated a pay car. Cummings had been driving his pay car in the south division on that morning and at the time he was accosted by Day was waiting to make another trip. Day told Cummings that he was ill and was going home in his touring car and remarked, “I suppose it will mean the death of me for me to ride home in my open car.” Thereupon Cummings suggested that as the pay car had only a small pay roll to attend to that afternoon he would speak to the paymaster and see if he could arrange to take Day home in the closed pay car and have the paymaster use Day’s touring car and chauffeur. The paymaster gave his consent and the change was made. Day’s chauffeur took Cummings’ place on Day’s car and Cummings drove Day to his home in Winnetka in the pay car and left him at his home. At the time of the accident the car in charg’d of Cummings was on its return journey to,the garage of the Gras Company at Chicago.

On this evidence and in these circumstances can it be said that the company’s pay car was at the time of the accident being operated by the company? We think not. The automobile was loaned by the company to Cummings, a chauffeur, to do something which was not in the course of his employment or the business which the company engaged him to transact. When the accident occurred Cummings was on the return journey from Winnetka, where he had left Day, and in so doing was not engaged in the business for which he was employed. It therefore follows that as Cummings at the time of the accident was not engaged about the business of the company, the company is not liable in an action for damages resulting from his negligence. The rule is well stated in Morier v. St. Paul, M. & M. Ry. Co., 31 Minn. 351, thus:

“The doctrine of the liability of the master for the wrongful acts of his servant is predicated upon the maxims, ‘respondeat superior’ and ‘qui facit per alium facit per se.’ In fact, it rests upon the.doctrine of agency. Therefore, the universal test of the master’s -liability is whether .there was authority, express or implied, for doing the act; that is, was it one done in the course and within the scope of the servant’s employment? If it be done in the course of and within the scope of the employment, the master will be liable for the act, whether negligent, fraudulent, deceitful, or an act of positive malfeasance. Smith, Mast. & Serv. 151. But a master is not liable for every wrong which the servant may commit during the continuance of the employment. The liability can only, occur when that which is done is within the real or apparent scope of the master’s business.”

We think this case comes within the ruling in Slater v. Advance Thresher Co., 97 Minn. 305, and Miller v. National Automobile Sales Co., 177 Ill. App. 367. In the Miller case, supra, the automobile which caused the accident 'was owned by the defendant, and the evidence showed that one J. D. Wiener was its acting president and business manager; that on the day of the accident Wiener, accompanied by his son and daughter, started for his home in one of defendant’s machines. At the time of the accident Wiener had quit his business affairs for the defendant company and was operating the machine for his own personal use, namely, to take his children home and have a drive; and it was held that as Wiener at the time of the accident was not engaged in the business of the defendant and the act done not in any way within the scope of his employment, there could be no recovery.

In the Slater case, supra, the automobile was being operated by the servants of the defendant for their own personal matters and not on any errand or business of the owner. It was held there could be no recovery against the owner, and the judgment was reversed with directions to the trial court to enter a judgment on the merits for the defendant.

In Clark v. Buckmobile Co., 107 N. Y. App. Div. 120, the general manager of an automobile company took a day off and went out of town. On his return he telephoned requesting that another employee come to the depot for him with an automobile of the company. This was done, and while the automobile was on the way from the depot with the manager of the company and his children the accident occurred. The judgment of the trial court was reversed upon the ground that in order to establish liability the persons must not only be general employees of the defendant, but must be employed in the defendant’s business and not merely in their own recreation and pleasure at the time the injuries are caused.

In Pennington v. Grand Trunk Western Ry. Co., 277 Ill. 39, it is laid down as a rule of practice for this court that it may reverse without remanding when one of two conditions is presented by the record, viz.: Where this court finds the facts in controversy different from those found by the trial court, and also where it reverses for errors of law which cannot be obviated or cured on another trial. The questions which we here decide are mixed questions of fact and law. In applying the law to the facts we find that there is no actionable liability proven against the defendant Gas Company, while the trial court evidently found as a fact that the liability of the company had been established by such evidence. In these findings we differ from the trial court and hold that the proofs under the law exculpate the defendant company from any liability for the accident appearing from the several counts of the declaration. We are also of the opinion that the errors of law for which we reverse the judgment can be neither obviated nor cured on another trial.

As the testimony proves that the chauffeur, Cummings, was not engaged in the business of the defendant at the time of the accident, and that the act done was not within the scope of his employment with defendant, the judgment of the Superior Court is reversed with a finding of fact.

Reversed ivith finding of fact.

Finding of fact. The court finds as an ultimate fact that the defendant did not operate or manage the automobile in question at the time of the accident and injury to plaintiff set out in the declaration and each count thereof.


text:
    H. H. Evans et al. v. Illinois Surety Company. James S. Hopkins, Receiver, Appellant, v. John A. McCormick, Treasurer, Appellee.
    Gen. No. 23,545.
    1. Bills and notes, § 16

      —what constitutes promissory note. A certificate of deposit is in legal effect a promissory note.
    2. Indemnity, § 9*—what does not constitute deposit in hank within terms of bond. There is a loan of funds to a bank by the treasurer of a drainage district, and not a deposit within the terms of an indemnity bond conditioned upon the hank well and faithfully performing and discharging its duties as depository of funds of the drainage district and paying out the funds so deposited in accordance with" the warrant, check or direction of the drainage district treasurer, and accounting for and paying over all moneys received by it as such depository, where the treasurer at the time a certificate of deposit hearing interest falls due surrenders such certificate and receives a new one payable in three months with interest and a check for the amount of accrued interest.
    , 3. Principal and surety, § 6*—how undertaking of surety construed. The undertaking of a surety must be strictly construed, and he cannot be held beyond the terms of his undertaking by implication or construction, and cases of doubt should he resolved in favor of the surety.
    Dever, J., dissenting.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed with directions.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.

      A. J. Hopkins, for appellant.
    Defrees, Buckingham & Eaton, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the ’ opinion of the court.

A bill was filed in the Superior Court in an action as above entitled, in which a receiver was appointed for the Illinois Surety Company. John A. McCormick, treasurer of the Sanitary District of Chicago, filed an intervening petition in that proceeding against James S. Hopkins, receiver of the Illinois Surety Company, to enforce the alleged liability of the Surety Company as surety on a certain bond in the penalty of $25,000, dated Juné 2,1914, running to J. A. McCormick, treasurer of the Sanitary District, in which bond the LaSalle Street Trust & Savings Bank was principal. The bond recited that:

“The condition of the foregoing obligation is such that whereas, The LaSalle Street Trust & Savings Bank has been designated by said obligee as depository of funds and moneys coming into his hands as such Treasurer of said Sanitary District of Chicago, and
“Whereas, said Obligee may from time to time deposit said funds and moneys with said The LaSalle Street Trust & Savings Bank;
“How,. Therefore, the condition of the foregoing-obligation is such that if the' said The LaSalle Street Trust & Savings Bank shall well and faithfully perform and discharge its duties, as such depository, and pay out the funds and moneys so deposited with it and each and every part thereof, in accordance with the warrant, check or direction of the said J. A. McCormick, as such Treasurer, and shall account for and pay over all moneys received by it as such depository, then this obligation shall be null and void, otherwise to remain in full force and effect.
The LaSalle Street Trust & Savings Bank,
(Seal) By C. B. Munday.
Attest:
Jno. H. Bife,
. Secretary.
Illinois Surety Company,
By A. J. Hopkins,
Attest: President.
Chas. E. Schick,
Secretary.”

The petition averred that on June 11, 1914, McCormick, as treasurer of the Sanitary District, deposited in the LaSalle Street Trust & Savings Bank $50,000 of its funds and moneys; that pn the next day the bank closed its doors and ceased to do business and that one William C. Niblack was appointed receiver; that McCormick demanded of both the bank and its receiver payment of the said $50,000, which was refused. McCormick assigned as breaches of the bond that the bank did not well and faithfully perform and discharge its duties as depository; that it did not pay out the funds and moneys deposited with it in accordance with the warrant, check or direction of appellee, and also that it did not account for and pay over all moneys received by it as such depository.

The answer of the receiver admitted the receivership proceedings; that McCormick was treasurer of the Sanitary District; the existence of the LaSalle Street Trust & Savings Bank; the making and delivering of the bond; the insolvency and receivership of the bank; and then pleaded as an affirmative defense that before the execution of the bond it was represented to the Surety Company that the bank was about to receive $75,000 from the Sanitary District in cash; that McCormick as treasurer would deposit the same in the bank on condition that the bank would execute to him depository bonds therefor; that three surety companies, of which the receiver’s company was one, did execute bonds identical with the bond declared upon, each for $25,000; that McCormick as treasurer did not deposit $50,000 in funds and moneys of the Sanitary District on June 11, 1914; that instead of requiring payment of $50,000 due and payable under certificate of deposit made on March 4, 1914, and due on June 4, 1914, McCormick gave extension of time for its payment, without the consent of the Surety Company, as a result of which the Surety Company stood discharged ; that McCormick as treasurer of the Sanitary District entered into an agreement with the bank whereby he should receive 3 per cent, interest quarterly on said $50,000; that he did receive interest thereon without knowledge of the surety, and that such agreement was in violation of section 81 of the Criminal Code, wherefore the moneys represented by the certificates of deposit taken by McCormick as treasurer were not collectible, whereby the surety was discharged ; that McCormick as treasurer of the Sanitary District did not deposit .the $50,000 in the bank, but on the contrary loaned the same to the bank, and that in fact McCormick’s transactions were loans and not deposits, and therefore not within the protection of the bond. To this answer a general replication was filed.

On the hearing of 'the intervening petition McCormick testified that the claim was made for funds of the Sanitary District and in support thereof introduced in evidence the following:

“Time Certificate of Deposit.
The LaSalle Street’ Trust and Savings Bank of Chicago.
No. 265-261
Chicago, Illinois, June 11, 1914.
John A. McCormick, Treas. has deposited with us Fifty Thousand.............00/100 Dollars payable to the order of himself in current funds on the 3rd day of September, 1914, without grace,’ on the return of this Certificate properly endorsed interest from June 3rd, 1914.
Chas. Gr. Fox,
Vice President and Cashier.
E. Stapleton,
Teller.
Not subject to check.”
Endorsed “John A. McCormick, Treas.”

Proof of demand upon the bank and its receiver was duly made and refusal to pay proven. The certificate of deposit above set out was a renewal of a previous certificate of date March 3, 1914. At the time that certificate was surrendered a cashier’s check for $375, payable to McCormick, treasurer, was delivered to him for interest on the surrendered certificate.

It had been the practice between McCormick as treasurer of the Sanitary District and the Bank, for the former to surrender to the latter the certificates of deposit as they matured, McCormick taking the interest by a cashier’s check and another certificate of deposit for the principal running three months. There was no deposit of money at the time the certificate of deposit in evidence was issued, but simply a surrender of the certificate of deposit, the certificate last issued taking its place.

The certificates of deposit were taken without the consent of the Surety Company and without its knowledge. As stated by counsel for appellee, “The evidence is not conflicting—only the inferences drawn therefrom by counsel.” To this statement we accord our assent.

There are two propositions the solution of which must control our decision: First, Did McCormick, as treasurer of the Sanitary District, deposit in the LaSalle Street Trust &. Savings Bank, on June 11, 1914, $50,000, the moneys of the Sanitary District, or did he on that date renew a loan of $50,000 which he had theretofore made to the bank?

This court has held that certificates of deposit in the nature of the one in evidence for $50,000 are instruments in writing under sections 3 and 4, ch. 98, Rev. St., title “Negotiable Instruments Act” (J. & A. ¶¶ 7620, 7621), that they are negotiable instruments and assignable by indorsement; that, when such a certificate is indorsed and offered for surrender, the amount due is payable to the person presenting the same for surrender and payment. Kavanagh v. Bank of America, 145 Ill. App. 201. The Supreme Court held in affirming this ease in 239 Ill. 404, that a certificate of deposit is in legal effect a negotiable promissory note. Pryor v. Bank of America, 240 Ill. 100.

The liability of appellant must be measured by the conditions and provisions of the bond in evidence, and in so doing the purpose of the giving of the bond must be borne in mind. The LaSalle Street Trust & Savings Bank had been designated by the Sanitary District as the depository of its funds and moneys coming into the hands of its treasurer, and in this regard the bond reads, “Whereas, said Obligee may from time to time deposit said funds and moneys with said * * * Bank,” contemplating the deposit of moneys in the bank to the credit of the treasurer of the Sanitary District. The obligation upon the part of the bank, the principal obligor, is that it shall “well and faithfully perform and discharge its duties, as such depository, and pay out' the funds and moneys so deposited with it and each and every part thereof, in accordance with the warrant, check or direction of the said J. A. McCormick, as such treasurer, and shall account for and pay over all moneys received by it as such depository.”

It is beyond dispute that the averment that the $50,000 was deposited with the bank June 11, 1914, is not sustained by the proof. Neither funds nor money of the Sanitary District was deposited on that day with the bank. What really happened was that the former certificate of deposit for $50,000, which had matured, was surrendered, the interest thereon paid by a cashier’s check, and the certificate of deposit in evidence issued as a renewal payable, not on check or warrant or at the direction of appellee, but on the 3rd of September, 1914, without grace, on its return properly indorsed. On the certificate was a special condition that it was “not subject to check.”

It is patent that on June 11, 1914, McCormick as treasurer of the Sanitary District lost control of the $50,000 for the time being and, until maturity by its terms, of the certificate of deposit, which certificate of deposit was taken without the knowledge or consent of the Surety Company. This certificate was the last in a series commencing June 3, 1913, a year prior to the giving of the bond in suit, each of which ran for a period of three months, and all of which were issued and received without the knowledge or consent of the Surety Company. The bond was, in effect, surety for money deposited subject to check, and was not surety for money loaned to the bank. The certificate of deposit evidences a loan to the bank of $50,000, which did not mature until September 3, 1914.

At the time the bank became insolvent the money in this certificate was not due. Furthermore, we have grave doubts whether under the terms of the certificate of deposit the money, so far as the bank was concerned, was the money of the Sanitary District. The certificate states that “John A. McCormick, Treas. has deposited with us $50,000.00, payable to the order of himself, in current funds,” etc. This certainly does not disclose that the funds deposited were other than those of McCormick personally. Be this as it may, however, the money was not a deposit, but was a time loan to the bank upon interest. It was held in City of Sterling v. Wolf, 163 Ill. 467, that the undertaking of a surety must be strictly construed, that he cannot be held beyond the terms of his undertaking by implication or construction, and that cases of doubt are generally resolved in favor of the surety. The certificate of deposit in evidence is a negotiable instrument in the nature of a promissory note, not an obligation contemplated by the bond of the Surety Company, nor do the conditions of suck bond make the Surety Company liable as surety.

There are two crucial questions argued by appellee for affirmance: One is that appellee on June 11, 1914, deposited in the bank $50,000, the moneys of the Sanitary District of Chicago; the other, that appellee’s transaction with the bank on that day was a deposit within the intent and meaning and purview of the bond sued upon. Neither of these contentions is sustained. In the light of the conclusions to which we have come on these two questions, the remaining questions argued by appellee fall out of the case.

Appellee did not deposit on June 11, 1914, $50,000 in the bank, nor was the transaction which McCormick had with the- bank on that day and for which he took the certificate of deposit in evidence within the intent, meaning or purview of the surety bond in suit. What was said in Kavanagh v. Bank of America, supra, stamps the transaction here involved ás a loan.

We do not think the ruling of the Supreme Court in People v. Belt, 271 Ill. 342, has any application to the case before us. The Belt case was a criminal case and the holding of the Supreme Court was, in effect, that the defendant banker could not escape the effect of the Criminal Code by giving a certificate of deposit for money received when he was knowingly insolvent. To have held otherwise would have allowed the violator of the act to escape on a mere subterfuge. The character of the instrument was not of importance, but whether the banker was insolvent at the time he took the money, evidenced by the certificate, was. The court held in the Belt case, supra, that the object which the Legislature attempted to accomplish by making it a crime for a banker, broker or other person engaged in the banking business to receive deposits at a time when he knows he is insolvent was to protect the public, no matter what the form of the receipt issued as evidence of the fact of the making of such deposit; therefore the nature and character of the instrument which evidenced the transaction was of no importance to a conviction.

The decree of the Superior Court allowing the claim of appellee against the Illinois Surety Company for $25,000, and ordering its payment in due course of administration, is hereby reversed with directions to the Superior Court to disallow the claim.

Decree reversed with directions.

Mr. Justice Dever dissents.


text:
    The People of the State of Illinois, Defendant in Error, v. John M. Tananevicz, Plaintiff in Error.
    Gen. No. 23,556. (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Hugo Pam, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Statement of the Case.
    Prosecution by the People of the State of Illinois, plaintiff, against John M. Tananevicz, defendant, for receiving as a banker, while knowingly insolvent, a deposit in contravention of Rev. St. ch. 38, sec. 25a (J. & A. ¶ 3517). From a judgment of conviction, defendant brings error.
    The jury rendered a verdict of guilty and fixed the punishment at imprisonment in the. penitentiary for three years and a fine of $280. On this verdict the court sentenced defendant to the payment of the fine of $280 and to confinement in the penitentiary for a term of from one to three years.
    Smith & Petersoh, for plaintiff in error.

      Abstract of the Decision.
    1. Criminal law—what reviewed when hill of exceptions stricken from files. Where the bill of exceptions is stricken from the files in a criminal case, there is left for review only such parts of the common-law record as are assigned and argued as error.
    2. Criminal law, § 333

      —when words in verdict fixing punishment deemed to he surplusage. Even though a jury in a prosecution for a felony has no power to fix the punishment in a verdict finding him guilty, under the Act of July 1, 1917, relating to paroles, section 3, providing that the jury in felony cases' or in cases where the crime is punishable by imprisonment in the penitentiary or jail in its verdict shall not fix the limit of duration of confinement, yet all matter following the finding of guilty in a verdict finding defendant guilty and fixing the term of imprisonment and iniposing a fine may be regarded as surplusage where the verdict is complete upon disregarding the words fixing the punishment, and the court may impose the proper sentence.
    Maclay Hoyne and Edwin J. Baber, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Walter L. Manning and Lulu Manning, Appellees, v. Jacob L. Kesner, Appellant.
    Gen. No. 23,580. (Not to be reported in full.)
    Abstract of the Decision.
    1. Landlord and tenant, § 84

      —what does not constitute parol evidence varying terms or substance of lease. In an action by-lessees against the landlord for breach of a covenant in a lease as to the use of the premises, evidence of conversation between defendant’s agent and the plaintiffs at the time of making the lease, as to the location of a new entrance to the premises in case one should be made by the lessor, was admissible to aid the court in the construction of the covenant in the light of the situation of the parties at the time the writing was executed, and did not constitute parol evidence which varied the terms or substance of the lease.
    2. Evidence, § 372*—who may testify as to value of goodwill of,

      business. The owners and operators of a business are competent witnesses as to the value of its good-will.

      Appeal from the Municipal Court of Chicago; the Hon. Joseph P. Raefebty, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Walter L. Manning and Lnln Manning, plaintiffs, lessees, against Jacob L. Kesner, defendant, the landlord, to recover for breach of a covenant in a lease. From a judgment for plaintiffs for $1,100, defendant appeals.
    D’Ancona & Pflattm, for appellant.
    Thomas B. Lantry, for appellees.

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

   Mr. Presiding Justice Holdom

delivered the opinion-of the court.

3. Appeal and error, § 1245*—when insufficiency of evidence may not be complained of. Appellant cannot complain of the insufficiency of evidence as to the value of the good-will of a business due to his own objection to the admission of evidence relating thereto,i

4. Words and phrases—“good-mil” defined. The good-will of a trade, consists merely in the probability that the old customers will continue their patronage of the old place.


text:
    Thomaso Bianco, alias Tom White, Appellee, v. A. C. O’Laughlin Company, Appellant.
    Gen. No. 23,605.
    1. Master and servant, § 94

      —when master liable for injury to servant. The master is not an insurer of the safety of his servant and he can only be held liable for consequences which he may reasonably be expected to anticipate as a result of his conduct.
    2. Master and servant, § 191*'—when master not under duty to warn servant. A master is not bound to warn a servant who is engaged in handling an air pressure whitewashing machine with another laborer, who is" working the pump, of the danger of his getting his eye full of whitewash, resulting in the loss of the sight thereof, due to the sudden expulsion of the air upon disconnection of the hose from the machine for the purpose of finding out what is stopping the flow of the liquid, without shutting off the stopcock which keeps back the air and liquid, where an injury of such a nature had never before been known.
    Appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding. Certiorari denied by Supreme Court (making opinion final).
    Heard in this court at the October term, 1917.
    Reversed with finding of fact.
    Opinion filed March 5, 1918.
    Charles E. Heckler, for appellant; C. W. Lamborn, of counsel.
    Charles A. Scott, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is a case between master and servant and is for personal injuries suffered by plaintiff, as he claims, through negligence attributable to defendant.

A trial before court and jury resulted in a verdict and judgment for $6,250, and defendant brings the cause here for review by appeal.

Plaintiff was a general laborer employed by defendant in connection with the operation of its stone quarry property in the Township of Proviso. On the east side of the quarry was a mill in which stone taken from the quarry was crushed. There was a shop for repairing tools, an office building and a superintendent’s house opposite the mill, and in connection with its quarry and mill defendant operated a farm' of about 39 acres upon which hay was the prevailing crop. There was a solid board fence about 5% feet high opposite the superintendent’s house, from which point it extended west for about 400 feet and separated the highway from the quarry pit. At the time plaintiff was injured he was spraying whitewash over the side of this board fence next to the highway.

On the day of the accident plaintiff and another laborer were directed by the superintendent to take the whitewashing machine and whitewash the board fence. The whitewashing machine consists of a cast-iron stand mounted on a board. On the left side of the support is a pump, which is operated by hand.- This pump works on the same principle as an' ordinary well pump and consists of a piston and a plunger on the end of the piston, both working by means of a handle in a cylinder or pump stock with the necessary valves to control the lifting of the liquid. Attached to the bottom of the pump is a rubber hose about 2 inches in diameter called the intake hose, which is inserted in the barrel or bucket containing the liquid to be sprayed. Stretched over the end of this intake hose, which is inserted in the container, is a wire netting with a fine mesh, designed to strain the liquid as it is sucked in .by the pump and to prevent any insoluble substances from passing through. the pump. The liquid passes through the pump and out through a discharge pipe on the right side of the pump.. Resting on top of this' discharge pipe and having an opening at its lower end connecting therewith is a hollow iron cylinder about 4 inches in diameter and 2 feet long, called the air chamber. A rubber discharge hose about 8 feet long and 1 inch in diameter is connected with the discharge pipe. Connected with this discharge hose is a section of small iron pipe in which is inserted a stopcock. Screwed into this stopcock section of pipe is a longer piece of iron pipe of the same diameter known as the spraying rod. On the end of the spraying rod is a spraying nozzle or cap. This nozzle is in two pieces, which screw into each other by complementary threads. The spray nozzle is solid except for some fine holes through which the liquid must pass and which produces the spray. On top of the air chamber is a gauge with a dial which 'registers the amount of air pressure on the liquid. The liquid rising in the chamber compresses the air therein and produces an air cushion, which exerts a pressure against, the liquid in the discharge tube and causes .it to be expelled with a considerable degree of force, depending on the amount of compression in the chamber, and also serving to keep up a regular flow. In operating the machine it was customary to keep pumping until the dial on the gauge showed about 80 pounds ’ pressure in the chamber and then stop until the pressure began to fall and then to pump again. In operating this machine, hard substances not soluble would accumulate in the small holes in the spray nozzle and stop them up so that the flow of the liquid would be stopped. In correcting this condition the stopcock was turned so as to shut off the pressure in the spraying rod, the nozzle in which the fine holes are situated was unscrewed and the dirt cleaned out, or the stopcock was opened so the pressure behind would force the dirt out. Then the stopcock would be closed again, the pressure in the rod shut off, the cap replaced and the machine would again be ready for work.

Plaintiff did the spraying and the other laborer pumped the machine. In the course of this work the spray became clogged. The superintendent removed the clog by first closing the stopcock, then taking off the cap from the end of the spray pipe and then opening the stopcock again, and when this was done the accumulated material in the pipes blew out. The superintendent then replaced the cap and, after testing the machine to see that it worked all right, went away. This happened more than once on the day of the accident. At one time the whitewash came out "with a great deal of force and sprinkled the superintendent’s face and clothes. It was then found that the small hose was split at the place where the spray nozzle fitted over the spray pipe. Plaintiff then, by direction of the superintendent, carried the machine over to the repair shop where a repair man cut off the end of the hose where it was split, put it back over the end of the pipe and clamped it on again; plaintiff then took the machine back to the fence and began working again and the machine worked all right for 10 or 15 minutes thereafter. The manner of the occurrence of the accident is about as follows:

After making the repairs above mentioned and within 15 minutes following its renewed operation the spray stopped working; plaintiff then undertook to remedy the difficulty himself. He proceeded to close the stopcock, took off the spray cap and opened the cock again, but nothing came out. The plaintiff then waited for the superintendent to come; the superintendent passed near where plaintiff worked on his way from the office to the quarry, but he did not stop. Plaintiff then tried to unscrew the spray pipe at the connection in front of the stopcock but could not separate the parts at that place; he then unscrewed the spray from the rubber hose. While unscrewing the pipe from the hose plaintiff was kneeling down with one hand on the hose and one on the pipe, and just as he got the hose unscrewed from the pipe the whitewash from the hose flew into his face and entered his eye in a large quantity and became impacted under his eyelid and remained there for more than an hour. The accident, we judge from the proof, undoubtedly happened through plaintiff’s unscrewing the nozzle to remove the clog without first closing the stopcock. Plaintiff had the end of the pipe pointed towards his face as he was unscrewing the cap, which caused the contents of the pipe to shoot into his eye from the pressure in the machine. The whitewash remained in his eye some considerable time before it was removed and resulted in so destroying the corneal tissues that the sight of the eye was destroyed.

The declaration consisted of three counts, the first two of which charged that plaintiff was inexperienced and unfamiliar with the dangers and perils in operating the whitewashing machine and that defendant failed to give plaintiff warning of the danger and perils in manipulating it, disconnecting it and separating it into its component parts, which dangers were known .to the defendant. The third count charged that defendant was negligent in furnishing plaintiff with a defective and unsafe machine. Upon the trial the third count was amended by inserting a charge of negligence in that defendant failed to give plaintiff any warning “of the dangerous nature of the substance used therein,” referring to the whitewash in the machine. Defendant pleaded the general issue and also the plea of the statute of limitations to the first count as amended, to which latter plea plaintiff demurred, which demurrer was sustained.

Defendant urges for reversal that there was no proof of actionable negligence and that its motion for a directed verdict should have been given; error in sustaining "the demurrer to a plea of the statute of limitations and in the court’s rulings upon the evidence and in its instructions to the jury.

There is no evidence that the whitewashing machine or any of the appliances connected therewith were defective or out of repair at the time of the accident, or that the accident resulted from any defect in the machine or its appliances. The liability, therefore, of defendant must be restricted to the negligence charged in the amendment to the first count, which is the failure of defendant to instruct plaintiff that the material used in the machine was whitewash and that it would cause injury if he got it into his eyes.

In the first place, defendant could hardly he held to be negligent in not informing plaintiff of the ingredients of whitewash or in not anticipating that plaintiff would get any of it into his eye in the large quantity in which it did get there, and that it would be allowed to remain in his eye long enough to destroy its sight.

It is argued that the ingredients of whitewash are of common knowledge and likewise of common usage among the class of people to which plaintiff belongs, as an agency of cleanliness and decoration; that plaintiff was in fact familiar with whitewash by having come into actual contact with it; that for more than a year previous to the accident he had pumped for the same machine in whitewashing the same fence; that he had observed that the nozzle or spraying portion of the machine would become clogged by particles becoming solidified in the spray; that he had observed the manner of dealing with such stoppage, as he had been an eyewitness to the superintendent’s manner of so doing. Two witnesses, Bales, the superintendent, and one Binks, vice president of the company who manufactured the machine, both testified that they had had whitewash or lime in their eyes and that it did not hurt or burn or destroy the sight. Bales said it didn’t hurt him and Binks said that “it irritates your eye a little bit.”

No duty was imposed by law on defendant to warn plaintiff against the unexpected. It could not anticipate that plaintiff would squirt the whitewash into his eye. An accident of this nature was an extraordinary occurrence. How could defendant have anticipated such an extraordinary occurrence as that plaintiff would squirt his eye full of the whitewash and allow it to stay in his eye for more than an hour with the resulting destruction of its sight? In Pinkley v. Chicago & E. I. R. Co., 246 Ill. 370 [1 N. C. C. A. 480], it was held that if a servant knows that the handling of timbers treated with a coal-tar preparation containing creosote will produce a burning of the skin sufficient to cause it to peel off, the master owes him no duty to warn him of such danger, and the fact that the servant becomes permanently poisoned as a result of handling such timbers does not render the master liable unless he knew or by the exercise of ordinary care could have known that such a consequence might result, and failed to warn the servant. The master is not an insurer of the safety of his servant and he can only be held liable for consequences which he may reasonably be expected to anticipate as a result of his conduct.

In 2 Parsons on Contracts (1st Ed.) 456, it is stated as a legal proposition that “every defendant shall be held liable for all of those consequences which might have been foreseen and expected as the result of his conduct, but not for those which he could not have foreseen and was therefore under no moral obligation to take into consideration.”

Defendant was under no legal obligation to anticipate the occurrence of plaintiff’s squirting the whitewash into his eye in the manner in which he did. It was not bound to anticipate thát such an unusual incident might occur, for all the proofs show to the contrary, plaintiff’s injury being the first of such a nature that was ever known to arise from the cause alleged in the amended third count of his declaration.

Whether plaintiff comes within the Workmen’s Compensation Act we do not decide, nor are we prepared to say that the amendment of the first count of the declaration does not state a new cause of action so as to-make the plea of the statute of limitations a good plea in bar, or that the action of the court in sustaining the demurrer thereto was erroneous, as, in view of what we have already said, a decision of these questions is not necessary to a disposition of the appeal.

The trial court should have instructed a verdict for the defendant as asked, and for its failure to do so the judgment of the Circuit Court is reversed with a finding of fact.

Reversed with finding of fact.

Finding of fact. The court finds as an ultimate fact that the defendant is not guilty of the negligence charged against it in plaintiff’s declaration or in any count thereof.


text:
    Peter Lorenz, trading as Lorenz Motor Service, Appellee, v. Hans P. Jensen and Niels M. Steenhill, Appellants.
    Gen. No. 23,613. (Not to be reported in full.)
    Abstract of the Decision.
    1. Principal and agent, § 114

      —when prima facie case in action to recover price of coal ordered by defendants’ agent made out. In an action to recover the balance of an account for coal sold for use in defendants’ apartment building, in which the defense is that defendants’ agent had no authority to purchase on credit, a prima facie case is made out where plaintiff proves the ordering of the coal by the agent, the delivery to and consumption of the coal in the building, and the amount due and unpaid for such coal. .
    2. Principal and agent, § 114*—when principal liable for coal ordered by agent. Irrespective of the question of the authority of/ an agent in charge of an apartment building to purchase coal on credit, the owner is liable for coal which is ordered by such agent and consumed on the premises.

      Appeal from, the Municipal Court of Chicago; the Hon. Harby P. Dolan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed with $67 damages assessed against defendants.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Peter Lorenz, trading as Lorenz Motor Service, plaintiff, against Hans P. Jensen and Niels M. Steenhill, defendants, to recover for a balance due for coal for defendants’ apartment building, part of which was ordered by defendants’ agents. Prom a judgment for plaintiff for $672.22, defendants appeal.
    Sonnenschein, Berkson & Lautmann, for appellants.
    T. P. Monahan, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

3. Costs, § 67*—when statutory damages for vexatious appeal assessed. When the defenses interposed in an action against the owner of an apartment building to recover a balance due for coal lack merit and are interposed for delay, statutory damages will be assessed.


text:
    C. A. Whyland, trading as American Credit & Trust Company, Appellant, v. Chicago Bonding & Surety Company, Appellee.
    Gen. No. 23,621.
    1. Indemnity, § 8

      —when application provides for monthly examination of accounts of employee. The. answer in an application for an employee’s fidelity bond in response to the question as to at what intervals applicant’s accounts, books, stocks and securities will be inspected and audited and verified with funds on hand or in bank, that such inspection and audit will be made “at least once in every........months,” must be deemed as imposing the duty of a monthly examination.
    2. Contracts, § 199*—when ungrammatical words not ignored. It is not the policy of the law to ignore words in a contract, though ungrammatical, where they can be interpreted and given effect in the light of the context of the instrument.
    3. Indemnity, § 6*—when employer failing to ascertain peonía^ tions of employee may not recover on renewed bond. Where an employee, whose fidelity is insured, by a bonding company, is a defaulter at the expiration of his term of employment, and the employer, at the time he makes a false statement as to the correctness of the employee’s accounts for the purpose of renewing the bond, could, by a slight examination, discover the peculations, he cannot recover on the new bond.
    4. Indemnity, § 24*—when evidence that insurer took security from third persons properly excluded. In an a.ction on a fidelity bond by the assignee of an employer against a bonding company, evidence proffered to prove that defendant had taken security from third parties to protect itself from loss under the bond is properly excluded.
    5. Indemnity—when instruction on right of recovery on renewed bond where prior dishonesty of employee not disclosed is correct. In an action by the assignee of an employer against a' bonding company on a fidelity bond, an instruction that if the jury believed that, by the exercise of ordinary care, plaintiff’s assignor or plaintiff could have discovered before a specified date the fraud and dishonesty of the principal, the employee, then, as to any loss sustained after such date as the result of the fraud of the employee after the date at which plaintiff’s assignor or plaintiff could have, by the exercise of ordinary care, discovered the same there could be no recovery, held to be correct.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Frank Schoenfeld and David K. Tone, for appellant.
    Sabath, Stafford & Sabath, for appellee; Charles B. Stafford, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The cause of action in this suit has been determined by two juries in favor of defendant. On the first verdict a new trial was awarded, but judgment of nil capiat was entered upon the second verdict, from which plaintiff prosecutes this appeal. Unless in the trial appealed from errors in procedure occurred of such harmful effect upon the legal rights of defendant as to call for a reversal and a third trial, the disputed facts may be regarded as settled in favor of defendant.

The action is upon an employee’s fidelity bond, in which Joseph A. Sprange was the principal and defendant the surety, insuring plaintiff’s assignor, the American Credit & Trust Company, against fraud, dishonesty, embezzlement or misappropriation of funds by Sprange as its cashier and bookkeeper.

It is argued for reversal that the trial court erred in refusing to instruct a verdict in favor of plaintiff for the amount of his claim with interest, that prejudicial errors in procedure occurred involving the court’s rulings on evidence, in its giving and refusing to give instructions to the jury, and in permitting improper remarks of defendant’s counsel in the presence of the jury.

The bond as originally given was renewed for one year from November 5, 1914, with variation of plaintiff as obligee after March 4, 1915. In the original application, signed by plaintiff for the American Credit & Trust Company, plaintiff being then manager of the company and owner of all its stock, a so-called employer’s statement was signed, containing the following:

“In consideration of the issuance of the above bond by the Chicago Bonding and Surety Company, the undersigned agrees that the above answers shall be warranties and conditions precedent to the issuance and continuance of said bond.”

Among the questions and answers in the statement were these:

“Q. At what intervals will applicant’s books, accounts, stock and securities be inspected and audited and verified with funds on hand or in bank?
“A. At least once in every........months.”

On October 14, 1914, in response to an expiration notice and for the purpose of obtaining a renewal of the bond, the following certificate, dated November 2, 1914, was furnished "defendant:

“To Chicago Bonding and Surety Company, Chicago:
This is to certify, That since the issuance of the above bond Mr. Sprange has faithfully, honestly and punctually accounted to me for all money and property in his control or custody as my Employe; has always had proper securities and funds on hand to balance his accounts, and is not now in default to me.
Dated Nov. 2, 1914.
Signed American Credit and Trust Co.
By C. A. Whyland. ’ ’

Plaintiff claimed that at the time suit was commenced Sprange was a defaulter, and the evidence shows that the first shortage in his accounts was June 27, 1914, and that abstractions of money continued three or four times a month thereafter until November, 1914, when they amounted to about $1,900.

It is contended by plaintiff that the answer to the question as to the inspection, auditing and verification of Sprange’s books, etc., imposed no duty upon plaintiff, because the answer to the question was indefinite, being, as above recited, “At least once in every...... months,” therefore imposing no obligation on plaintiff to make any examination. To this contention we cannot yield our assent.

By legal interpretation the duty was imposed upon plaintiff to make an examination once every month. It is not the policy of the law to ignore words in a contract, though ungrammatical, where they can be interpreted and given effect in the light of the context of the instrument. Furthermore, we think that by the certificate which plaintiff gave on application for a renewal he recognized, if not expressly at least by a fair implication, the duty resting upon him in virtue of his answer to the question preceding it. In faith of the verity in such answer of the representations that Sprange had accounted to plaintiff honestly and punctually for all moneys or property in his control or custody, that he had always had the proper securities and funds on hand to balance his accounts, and was not then in default to plaintiff, the defendant renewed the obligation for one year. We have no right to assume that defendant would have renewed its obligation had plaintiff stated the truth—that nothing was known in regard to the correctness of Sprange’s accounts, as to whether he was a defaulter and dishonest, or was at the time the renewal was requested a defaulter in a large sum.

The statement that Sprange was not at the time it was made in default was admittedly false. He, Sprange, whs at that time a defaulter. He had embezzled the money of plaintiff in a clumsy, obvious way, easy of detection. This statement was the larger consideration for renewing the bond, the money consideration being a premium of $15. The falsity of the statement vitiated the contract, for if only a slight examination had been made the peculations would have been discovered, as they were by the mere comparison, made subsequent to the renewal, of the bank balance with Sprange’s books. Plaintiff cannot escape the legal or moral effect of his statement. He is bound by it, and its falsity is sufficient ground for defeating the claim now made. It is not a case of difficult accounting, an honest examination of which might have deceived an alert examiner and left the frauds undiscovered. To this effect is United States Fidelity & Guaranty Co. v. First Nat. Bank of Dundee, 233 Ill. 475. Here there was no examination of Sprange’s accounts, which were so blunderingly kept that a superficial examination of them would have disclosed that the keeper thereof was a rogue and an embezzler. The holding in Drabek v. Grand Lodge of Bohemian Slavonian Benev. Society, 24 Ill. App. 82, that if the principal in the bond was a defaulter at the close of his previous term of office, and the president of the society, with knowledge of such fact, falsely represented to the defendants that his accounts were correct, thereby inducing them to deliver the bond in suit, the action thereon cannot be maintained, is decisive against plaintiff’s claim. The facts in the record impute to plaintiff such knowledge of the falsity of the statement as to debar him from now insisting that he in fact did not know the falsity thereof, means of knowledge being within his control and accessible to him. In the light of his statement, it will be assumed that he advantaged of the information open to him.

The cases cited by plaintiff to support his contention that negligence on his part has no effect upon his right of recovery are in no sense parallel to the instant case, but are grounded on entirely different circumstances and conditions.

It was not error to exclude evidence proffered in an attempt to prove that the defendant had taken security from third parties to protect itself from loss under the bond in suit. Such evidence was beside the question before the court, and if admitted could in no sense affect the liability of defendant pro or con. It was immaterial when such security may have been, if it was, taken. It would not warrant a recovery if there was no liability. Such security whenever received, if this suit fails, as it so far has, will probably be returned by defendant to the parties from whom the same was taken. The remarks of counsel objected to as improper find some support in the record, although they might with more propriety have been omitted.

The following instruction is objected to as constituting reversible error:

“If the jury believe from the evidence that by the exercise of ordinary care the American Credit & Trust Company, or the plaintiff, could have discovered before the 12th day of March, A. D. 1915, the fraud and dishonesty of the principal in the bond, Joseph Arthur Sprange, then, as to any loss or any moneys misappropriated or taken fraudulently by the said Sprange after the date at which said American ^Credit & Trust Company, or the plaintiff, could have, by the exercise of ordinary care, discovered the same, there can be no recovery, and as to said losses, which occurred after such time, the jury should find the issues for the defendant.”

We think this instruction as applied to the proofs, bearing in mind the false statement in faith of which the bond was renewed, states a correct legal principle. We find no reversible error in the rulings of the court on any of the instructions.

Finding no reversible error in the record, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Josie Markus, alias Jessie Markus, Appellee, v. Aetna Insurance Company of Hartford, Connecticut, Appellant.
    Gen. No. 23,632. (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Josie Markus, alias Jessie Markus, plaintiff, against Aetna Insurance Company of Hartford, Connecticut, defendant, on a fire insurance policy in the sum of $2,000. From a judgment for plaintiff for $1,500, defendant appeals.
    The court gave orally the following instruction:
    “Now I think it is the law of this State that if one purports to act as the agent of an insurance company and received application for insurance and accepts the premium upon such insurance, goes to the company and secures the policy of insurance and returns the policy to the assured, and does everything that is necessary to do to accomplish the issuance of the insurance, I think it is the law of this State that the insured in this case, the plaintiff, would have the right to assume that this representative was the proper representative with proper authority to do whatever he did do in the issuance of the policy, whatever was necessary in the issuance of that policy and that to the extent of bringing knowledge of the conditions of the property he was the representative of the defendant, and if yon believe from the evidence in this case that the representative of the plaintiff, that is the plaintiff’s husband, fully and fairly stated to this representative the condition of the title to that property, the condition of the property itself, the character of the property, and that he wilfully concealed nothing that the defendant ought to know with respect to the property, then I think the defendant is not in a position here, gentlemen, to say that it has been deceived or misled by the plaintiff in this case, who is bound by the acts of its representative.”
    Abstract of the Decision.
    1. Insurance, § 285

      —when insurer charged with notice of alterations in building. A provision in a fire insurance policy granting permission for alterations and repairs to complete a building thereon is in itself ample to charge insurer with notice of the fact that the building is in process of being changed or altered.
    2. Insurance, § 71*—who has insurable interest in building. One who is in possession of land sold upon contract upon which a burned building owned by her is located has an insurable interest in the building.
    3. Municipal Court or Chicago, § 17*—propriety of oral instruct tions. The giving of oral instructions is permissible in the Municipal Court of Chicago.
    4. Instructions, § 46*—when province of jury not invaded. In an action on a fire insurance policy, an instruction o,n the binding effect upon defendant of the acts of a person purporting to act as agent in the procurance of insurance as an agent, held not to invade the province of the jury.

      Charles B. Obermeyer, for appellant.
    Gurdon Williams, for appellee.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

5. Witnesses, § 278 —what is not proper impeachment. Evidence of matter immaterial to an issue is not competent as impeaching proof.


text:
    Thomas McGuire, trading as McGuire & White Detective Agency, Appellee, v. City of Chicago, Appellant.
    Gen. No. 23,680. (Not to be reported in full.)
    Appeal from the County Court of Cook county; the Hon. David T. Smiley, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Thomas McGuire, trading as McGuire & White Detective Agency, plaintiff, against the City of Chicago, defendant, to recover money paid as detective license fees for the years 1910 to 1915 under an invalid ordinance.
    The case is governed by the decision in Rath v. City of Chicago, 207 Ill. App. 117.
    Samuel A. Ettelson, for appellant; Donald P. Vail, Wilbur F. Hartman and George A. Curran, of counsel.
    Landon & Holt, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    James Chesney and E. L. Chesney, trading as Chesney Sheep Company, Appellees, v. Union Pacific Railway Company, Appellant.
    Gen. No. 23,689. (Not to be reported in full.)
    Abstract of the Decision.
    1. Witnesses, § 194

      —when memoranda, may he used to refresh memory. A witness may refresh his memory from memoranda made by him at the time of the occurrences about which he testifies, or from reading therefrom when his memory fails.
    2. Appeal and error, § 1469*—when admission in evidence of

      memoranda used to refresh memory is harmless error. After memoranda from which a witness refreshes his memory have been proven and used by the witness in testifying, it is not reversible error to admit them in evidence, since the jury can determine by comparing the memoranda with the testimony whether there is any variance.

      Appeal from the Circuit Court of Cook county; the Hon. Robert E. Crowe, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Statement of the Case.
    Action by James Chesney and E. L. Chesney, trading as Chesney Sheep Company, plaintiffs, against the Union Pacific Railway Company, a corporation, defendant, to recover for damage to an interstate shipment of sheep from Altamount, Wyoming, to South Omaha, Nebraska, but diverted by agreement to Chicago, due to negligence of defendant, as initial carrier, en route, consisting of feeding unwholesome hay, unnecessary jolting of cars, unnecessary delays in transit and derailing of cars. From a judgment for plaintiffs for $1,419.37, defendant appeals.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellees.

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

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

3. Evidence—who may testify as to reasonable running time of stock train. An experienced grazier may testify as to the reasonable running time of train of stock from the point of loading to the destination.

4. Evidence, § 407 —who may testify as to loss in weight of sheep in transit. An experienced grazier who knew all about a shipment of sheep from their birth was competent to testify as to the weight of the sheep when they left the pasture and the average loss in weight in transit.

5. Cabbiebs, § 248*—when unreasonable delay in transit causing injury to sheep shown. In an action against an initial interstate carrier for injury to and partial loss of a shipment of sheep, alleged to be due to the negligence of defendant, evidence held sufficient to sustain a finding that there was an unreasonable delay in transit causing damage to the amount of the verdict.

6. Appeal and ebbob, § 1401*—when verdict not disturbed on appeal as contrary to evidence. A verdict will not be disturbed on appeal as contrary to the evidence where the record discloses proof of a probative force which, if given credence by the jury, is sufficient to sustain the verdict.

7. Cabbiebs, § 241*—when notice of claim of injury to stock timely. A notice of claim of injury served on the initial carrier within three days after the arrival of a shipment of sheep at the destination and sale, held to be timely irrespective of whether it was given before or after the intermingling of the sheep with other stock.

8. Cabbiebs, § 188*—when initial carrier liable for injury to shipment while in charge of connecting carrier. Under the Carmack Amendment to the Interstate Commerce Act, the initial carrier, despite a change in the destination with its consent, is liable for damage occurring to the shipment whilé in charge of the connecting carrier en route.

9. Instbuctions, § 151*—when properly refused. It is not error to refuse instructions covered in the main charge.


text:
    Louis C. Krueger, Appellee, v. Roxford Knitting Company, Appellant.
    Gen. No. 23,699. (Not to be reported in full.)
    Abstract of the Decision.
    Master and servant, § 32

      —what is ground for termination of contract of employment. Misconduct of an employee, consisting in withholding money in his hands and in peculation in his expense account, is ground for termination of a contract of employment.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and judgment of nil capiat here.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Louis C. Krueger, plaintiff, against Box-ford Knitting Company, a corporation, defendant, for wages and damages claimed upon a discharge of plaintiff by defendant. From a judgment for $468.50 for plaintiff, defendant appeals.
    Budolph Frankenstein, for appellant.
    William A. Morrow, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Robert J. Garlick, Appellee, v. S. I. Shane, trading as Shane & Company, Appellant.
    Gen. No. 23,741. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 13b

      —discretion as to granting continuances. Rule 13 of the Municipal Court of Chicago, relating to the granting of continuances, is clearly discretionary.
    2. Municipal Court of Chicago, § 13b*—when discretion in denying second continuance fairly exercised. The discretion of the trial court in denying a motion for a second continuance in the Municipal Court of Chicago is fairly exercised, where the amount involved was small, the case was twice on the trial call and continued once at the instance of defendant’s counsel, and at the time the case was continued on the first motion the court admonished counsel to be ready to proceed with the trial at the time set for hearing and, if he could not be present himself, to have some other member of his firm look after the case, and the only ground for the second continuance was the absence of one of the counsel in the trial of another case.
    Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stewart, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Robert J. Garliek, plaintiff, against S. I. Shane, trading as Shane & Company, defendant. From a judgment for plaintiff, defendant appeals.
    Adam:s, Follansbee, Hawley & Shorey, for appellant.
    Stuart B. Krohn, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.


text:
    Olney J. Dean & Company, Appellee, v. William Mavor Company, Appellant.
    Gen. No. 23,748. (Not to be reported in full.)
    Abstract of the Decision.
    1. Payment, §34

      —when receipt does not operate as complete, settlement. The acceptance hy a building contractor without question of a subcontractor’s receipt in settlement of a certain account, stating that the receipt did not cover certain items for extra material, constituted an acquiescence hy the contractor in such statement that those items remained unsettled.
    2. Building and construction contracts, § 103*—when material shown to be subcontractor’s property. Evidence held to show that certain steel rods which were worked into a building by, plaintiff as subcontractor were plaintiff’s property, notwithstanding some of them were on the premises at the time defendant ordered them, in an action to recover their value.
    Appeal from the Municipal Court of Chicago, the Hon. William N. Gbmmill, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Olney J. Dean & Company, a corporation, plaintiff, against William Mavor Company, a corporation, defendant, to recover for work and material furnished by plaintiff as subcontractor to defendant as contractor on a certain building. From a judgment for plaintiff for $262.04, defendant appeals.
    Lucius & Lucius, for appellant.
    Thompson, Clark & Boat, for appellee.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

3. Interest, § 24*—what is vexatious withholding of payment. The withholding by a contractor of payment of a subcontractor’s claim was vexatious where no reason appeared for disputing the claim.

4. Interest, § 8*—when recoverable. Interest is recoverable upon a claim sued for, for money due under a contract in writing, under section 2, ch. 74, Rev. St. (J. & A. 6691).


text:
    J. B. Kilroy, Appellant, v. Justrite Manufacturing Company, Appellee.
    Gen. No. 23,787. (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 18

      —when denial of motion for nonsuit is improper. On trial by the court without a jury of an action in the Municipal Court of Chicago, the denial of a motion for a nonsuit made upon indication by the court in remarks, upon a motion by defendant for a finding, in defendant’s favor, that the court was inclined to grant the latter motion, was erroneous, as the decision of the latter motion was not the finding contemplated by section 70, ch. 110, title “Practice” (J. & A. If 8607), providing that a plaintiff may suffer a nonsuit before submission of the case to the court for final decision, and section 30 of the Municipal Court Act (J. & A. U 3342), providing that a plaintiff may suffer a nonsuit before the court states its finding.

      Appeal from the Municipal Court of Chicago; the Hon. Hugh R. Stjswart, Judge, presiding.
    Heard in this court at the October term, 1917.
    Reversed and remanded with directions.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by J. B. Kilroy, plaintiff, against Justrite Manufacturing Company, a corporation, defendant, to recover damages for injuries to plaintiff’s automobile from a collision with defendant’s. From a judgment of nil capiat, plaintiff appeals.
    F. J. Canty and J. C. M. Clow, for appellant.
    Sabath, Stafford & Sabath, for appellee; Charles B. Stafford, of counsel.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

2. Automobiles and garages, § 6*—when violation of ordinance is proximate cause of accident. The failure of defendant in driving his automobile to observe a city ordinance inhibiting any vehicle from driving onto a boulevard without first bringing such vehicle to a full and complete stop was negligence attributable to defendant which was the proximate cause of the accident to plaintiff’s automobile.

3. Automobiles and garages, § 6*—when driver of automobile colliding with another automobile not guilty of contributory negligence. The driver of an automobile has the right to assume that the driver of another automobile, with which it collides, will obey an ordinance prohibiting any vehicle from being driven onto any boulevard without 'first bringing such vehicle to a full stop, and he is not guilty of contributory negligence in acting upon such assumption.


text:
    Antonio Tarallo, Plaintiff in Error, v. L. W. Hubbell Fertilizer Company, Anton J. Cermak and Walter Brown, Defendants in Error.
    Gen. No. 24,021.
    1. Appeal and error—when assignment to wrong branch of Appellate Court vacated. A cause which has previously been in the Appellate Court is on a subsequent appeal assigned to that branch which decided it on prior review, but if through inadvertence it is assigned to another branch, the assignment is with the consent of that branch vacated.
    2. Appeal and error, § 1734

      —when judgment on former appeal is conclusive. The decision of the Appellate Court on a former appeal as to the validity of a judgment on an appeal bond and the annulment of the sale thereunder, the court having jurisdiction of the parties and the subject-matter, is conclusive on a second appeal, not only as to the questions actually raised, but also as to such as might have been presented.
    Error to the Superior Court of Cook county; the Hon. Denis E. Siilkivan, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Rehearing denied March 18, 1918.
    Cairoli Gigliotti, for plaintiff in error.
    Allen G. Mills, for defendants in error.

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

   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause comes to this court by transfer from the Supreme Court of the State, to which tribunal complainant inadvisedly took the case by writ of error. See 281 Ill. 286, where a sufficient statement of the case appears., To the bill referred to in case, ante, the defendants interposed a demurrer which being sustained the bill was dismissed for want of equity.

As we view the record the question for our determination is the validity of the Municipal Court judgment challenged by the bill. If it is impervious to attack, the case is at an end regardless of the many other questions raised.

The judgment involved is for $532.81 and costs.

We will now briefly state the sinuous path of this litigation which, for an amount so comparatively insignificant, has but few equals in the jurisprudence of this State.

In June, 1914, the Hubbell Fertilizer Company commenced suit in the Municipal Court of Chicago against D. Jacobellis, which resulted in a finding and judgment for plaintiff. Jacobellis brought the cause to this court by appeal and gave an appeal bond in which complainant was surety. On this same judgment Jacobellis sued out a writ of error from this court, and, failing to file the record in the appeal case within the time prescribed by statute, the appeal was dismissed. On a consideration of the writ of error case, the judgment of the Municipal Court was affirmed. 195 Ill. App. 410. A petition for a rehearing in the writ of. error case was denied. A suit on the appeal bond given in the appeal case was had in the Municipal Court of Chicago against Jacobellis as principal and Antonio Tarallo as surety, and on a trial the judgment set forth in the bill in this writ of error was obtained. Soon after the entry of this judgment complainant Tarallo, surety on the bond, appealed to this court for a rule on the plaintiff in that case, its counsel and the trial judge, to show cause why they should not be held in contempt- for an alleged violation of the supersedeas issued in the writ of error case. This motion on hearing was denied. This court was then appealed to, to vacate the order dismissing the appeal against Jacobellis in which the appeal bond was given. This motion was also denied. Tarallo then sued out a writ of error on the appeal bond action. Upon a hearing the judgment was affirmed by this court. See L. W. Hubbell Fertilizer Co. v. Jacobellis, 199 Ill. App. 379. After the rendition of the judgment by this court a petition for a rehearing was filed and denied, and a petition for a certificate of importance and an appeal to the Supreme Court was also made and denied. A petition was then filed in the Supreme Court for a writ of certiorari, which the Supreme Court dismissed for want of jurisdiction. Jacobellis then filed a bill in the Superior Court to enjoin a sale under the judgment entered in the appeal bond action. A motion for an injunction in that case was denied, whereupon Tarallo filed a petition in the United States Supreme Court for a writ of certiorari to this court, which petition was denied. Tarallo then filed a bill in the United States District Court in Chicago seeking to vacate the judgment affirmed by this court and for an injunction, which bill Tarallo afterwards dismissed. An execution was issued on the appeal bond judgment and levied upon real estate of Tarallo, which real estate was sold by the sheriff to Walter Brown and a certificate of sale thereon issued to him. Then came the bill to which the demurrer of defendants was sustained and the same dismissed for want of equity, from which decree this writ of error is prosecuted.

The following most unusual statement is made by complainant’s counsel in his brief before us:

“The case at bar is possibly the most peculiar ever presented for review to a court of appellate jurisdiction in the United States. It is so peculiar that no law could be found to apply to it in statutes or reports. But there is the law of common sense which supplies the deficiency.”

The difficulty lies with counsel and is of his own creation. The principles of both law and procedure applicable to the conditions of this cause are well settled and can be found in the books; they have been judicially pronounced by this court in two opinions filed in the cases in the 195 and 199 volumes of the reports of this court, supra. The law of common sense invoked by counsel seems to have been avoided by him or else the many tribunals to which he has appealed are very dense.. He has run the race with this little case from the Municipal Court of Chicago through the State courts of review, the chancery jurisdiction of the Federal District Court, and the nisi prius courts of chancery jurisdiction in Chicago, and has likewise appealed to the United States Supreme Court at Washington for a writ of certiorari to this court, in all of which he uniformly failed of success and in none of which did he ever obtain one favorable ruling. Surely, it must occur to counsel after such experiences that his case is without merit and his contentions not well made.

Some matters of an impertinent and scandalous nature are found in the bill, one of which attacks a former member of this court who has since gone to his final reward full of years and honors, with the affection of his associates on the bench and the respect and admiration of the bar who practiced before him. We shall not further notice this matter except to say that every word found regarding the same is false, unwarranted and without the slightest semblance of support either in fact or by the record.

A point is made that the cause was first assigned to a branch of this court' and the order of assignment subsequently vacated, and therefrom an inference of irregularity is indulged by counsel, which inference is entirely unwarranted. While the fact of assignment and vacation is as stated, the order of vacation was made in pursuance of the well-settled practice of this court in like matters. A cause which has previously been in this court is on subsequent appeals assigned to that branch of the court which decided the case on prior review. If, however, through inadvertence such case is assigned to a branch of the court other than the one which so considered and decided it, the assignment is, with the consent of the branch to which the cause was assigned, vacated.

The matter involved in the case reported in 199 Ill. App. 379 is practically the same as that involved and decided by this court in 195 Ill. App. 410; hence the vacation of the original order of assignment.

The questions of the validity of the judgment upon the appeal bond sought to be overcome and the annulment of the sale on execution thereunder were decided by this court in 199 Ill. App. 379. All the parties to the appeal bond were then before this court and their rights adjudicated in that case, which adjudication is not now open to challenge by any of the parties to the record. Every matter material to a defense which could have been urged on that appeal, and every question now before the court on this writ of error was argued and advantaged of there.

An inspection of the proceedings reveals no irregularity in any respect. The court had jurisdiction of the parties and of the subject-matter of the cause, and its decision settled all the rights of the parties and is consequently a bar to any further relief. It is not only a question of what was presented to us for adjudication in that case, but what might have been so presented, and everything, which could have been urged must be held, under the doctrine of res adjudícala to have been included in the decision and the controversy forever settled. As said in Barrett v. Chicago Terminal Transfer R. Co., 271 Ill. 642:

“The affirmance of the judgment determined adversely to the appellant * * * all questions that could have been raised in the case, as well those going to the jurisdiction as those going only to the regularity of the proceedings. Such affirmance finally adjudicated that the trial court had jurisdiction of the subject-matter and of the parties and had proceeded in all respects according to law. The record was not thereafter subject to attack, whether collateral or direct. ’ ’

The Barrett case, supra, is on principle and fact akin to the case before us.

The judgment before us for review has already been reviewed and our judgment on that review is not only binding on all the parties but on this court. The judgment is not subject to collateral attack; and the power to attack it further on direct proceeding has been exhausted. Every phase of the litigation here projected has been decided upon the merits of each particular case, and there has been so little doubt concerning these merits that all the various courts appealed to are a unit in their holdings. There is neither law, merit nor common sense in complainant’s defenses.

The decree of the Superior Court dismissing complainant’s bill for want of equity is affirmed.

Affirmed.


author: Mr. Justice Dever

text:
    Public Agency Company, Appellant, v. Charles Kronauer, Appellee.
    Gen. No. 23,500. (Not to be reported in full.)
    Abstract of the Decision.
    Bills and notes, § 443

      —when failure of consideration shown. Evidence held to warrant the finding that the note sued on was procured from defendant as the result of fraudulent representations as to the value of certain stock for the purchase of which it was given at the time the note was executed, and that there was an entire failure of consideration for the note, in an action by the last indorsee against the maker of the note to recover thereon.
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    •Statement of the Case.
    Action by Public Agency Company, a corporation, plaintiff, against Charles Kronauer, defendant, to recover on a promissory note for $1,250, payable to the order of the United Service Company as payee. From a judgment for defendant, plaintiff appeals.
    Maximilian J. St. George, for appellant.
    Dudley Taylor, for appellee.

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

   Mr. Justice Dever

delivered, the opinion of the court.


text:
    Louis Smith, Plaintiff in Error, v. Sanitary District of Chicago, Defendant in Error.
    Gen. No. 23,552. (Not to be reported in full.)
    Abstract of the Decision.
    Automobiles and garages, § 6

      —when shown that plaintiff’s servant guilty of contributory negligence in collision. Evidence held to warrant the finding that plaintiff’s servant was guilty of negligent conduct in the control and operation of the car he was driving which proximately contributed to cause the accident to the car in a collision with defendant’s car, in an action to recover damages for the injuries sustained in such accident.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jarecki, Judge, presiding.
    Heard in this court at the October term, 1917.
    Affirmed.
    Opinion filed March 5, 1918.
    Statement of the Case.
    Action by Louis Smith, plaintiff, against Sanitary District of Chicago, defendant, to recover damages for injuries to plaintiff’s automobile while endeavoring to avoid a collision with defendant’s automobile. From a judgment for defendant, the plaintiff, brings error.
    Edward H. Morris and T. Webster Brown, for plaintiff in error.
    'Moses, Bosenthal & Kennedy, for defendant in error; Hjrsch E. Soble, of counsel.

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

   Mr. Justice Dever

delivered the opinion of the court.