text:
    Charles L. Wood, Plaintiff in Error, v. Minnie N. Foster, Defendant in Error.
    Gen. No. 17,658.
    1. Brokers—commissions. Where plaintiff enters into a written contract with defendant to act as her agent in the sale of her property and is to receive a fixed compensation, it is a question for the jury whether there is an oral agreement that defendant is to receive extra for additional work in persuading vendee to assume liability for special assessments.
    2. Evidence—effect of statement of amount due for services. The fact that plaintiff, who acted as agent for defendant in the sale of her property, renders a statement for the amount due for commissions and services on the day the deed is delivered is not conclusive evidence that plaintiff is not entitled to additional compensation for extra services.
    3. Practice—when improper to direct verdict. In an action for one half the amount of special assessments, which amount plaintiff claims defendant promised to pay him for inducing the vendee to whom he sold her property to assume such special assessments, it is error to direct a verdict for defendant where there is a conflict in the evidence.
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    E. F. Mastersoh, for plaintiff in error.
    Gtjerih, Gallagher & Barrett, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

This suit was brought by the plaintiff in error, hereinafter called the plaintiff, against the defendant in error, hereinafter called the defendant, upon a contract for services. There was a trial before the court and a jury. The jury, by direction of the court, returned a verdict in favor of" the defendant.

The abstract is- defective. It does not contain a synopsis either of the statement of claim .or the amended statement. We have, however, gone to the record, and find plaintiff’s claim to be for “$409.50 for services rendered the defendant at her special instance and request on or about March 5th, 1907, as per a prior agreement, relating to the special assessment, confirmed June 30th, 1904, for curbing, grading and paving Green Street, Chicago, and for Seventy-five Dollars interest thereon since said services rendered. ’ ’

The defendant’s affidavit of merits is not given in the abstract. We have gone to the record for that and find that the defense consisted in the alleged fact that “on or about March 7, 1907, the defendant paid plaintiff in full for all services performed for her to date * * * that no agreement, special or otherwise, was made between plaintiff and defendant for payment by defendant to plaintiff of the amount sued for in this case, or any part thereof.”

The defendant and plaintiff entered unto a written contract as follows:

“Chicago, January 28, 1907.
“Mr. Charles L. Wood, Deab Sib: In consideration of your sendees in connection with the sale of the premises, Nos. 16, 18, 20 and 22 So. Green Street, Chicago, Illinois, I hereby agree to pay you the sum of Nine Hundred and Forty Dollars ($940), in addition to the regular 2%% commission.
“The sale is to be at the price of $32,900.
“This agreement is void, if said sale is not consummated on or before April 1,1907.
“Tours truly,
“Mbs. Minnie N. Fosteb. “Price and conditions accepted.
“C. L. Wood.’*

It appears that a sale of the property was had to one Allis at the price of $32,900, and that Allis assumed all instalments of- special assessments not then due.

It is the contention of the plaintiff that after making the written contract with Mrs. Foster, and on the same day, the fact that there were unpaid instalments of special assessments was discussed, and that Mrs. Foster agreed with him that if he could relieve her in some way from having to pay them, she would pay him, in addition to the amounts mentioned in the written contract, one-half of the amount thus saved by her; that the plaintiff had prepared a form of contract to be executed by Mrs. Foster and Allis, in which the vendee agreed to pay the instalments of special assessments referred to, that after Mrs. Foster had signed the contract he took it to Allis and succeeded in persuading him to sign it, and thereafter succeeded, when the transaction was closed, in getting Allis to accept a warranty deed in accordance with the terms of the contract, in and by which deed Allis assumed the pay•ment of the assessments. The amount of these assessments was $819.12.

The testimony of Barbara Schottler, who had an office in the same suite with the plaintiff, was taken, and was to the effect that in the early part of February, 1907, the defendant came to the office of the witness, who had had charge of collecting rents on the property; that the plaintiff was present, and that there then occurred a conversation between the plaintiff and the defendant, in which the matter of the special assessments was mentioned; that the defendant expressed her hope that she would be able to “get rid of paying” the assessments; that defendant said that she had offered Mr. Wood one-half of the special assessment judgment against her property “if she could get rid of paying.”

The testimony of the plaintiff with respect to what occurred on the day the written agreement was entered into was denied by the defendant and to some extent, at least, her denial was corroborated by her two sons who were present. Defendant denied most of the statements made by Miss Schottler, but did not deny her testimony to the effect that defendant had requested her to use her influence in getting the plaintiff to take less than one-half of the $819.12.

It is to be noted that the original contract of employment is dated January 28, and that the transaction was closed bn March 5th.

It is the contention of the defendant that the judgment should be affirmed because the subsequent oral promise of the defendant to pay the plaintiff compensation for his services, if ever made, was void for want of consideration, for the reason that in the prior written contract the plaintiff had obligated himself to perform all services in connection with the sale. The case of Kerfoot v. Steele, 113 Ill. 610, is cited as a controlling authority. In that case, as in this, a written agreement was entered into, and before the sale was completed Kerfoot & Co. were required to perform a large number of services which, it was claimed by them, were not included in the written agreement.

Under the terms of .the written agreement herein, which fixed the minimum price of the sale at $32,900, Mrs. Foster would have been obliged to pay the special assessments referred to, if they had become a lien upon the property, as they apparently had. The contract at that time had not been signed by Allis, and the contention of the plaintiff is that he performed additional services by virtue of the oral agreement.

In the case last referred to it was said: “To found a claim for additional compensation, fairness would seem to have required that defendants should have been given distinctly to understand, before rendering the services, that additional compensation would be asked for them.”

The contention of the plaintiff is that not only was defendant given distinctly to understand that additional services would be rendered, but that she contracted that if these additional services resulted in the saving to her of the amount of the special assessments, the plaintiff should have as additional compensation one-half such amount.

If the testimony of the defendant is to be believed, the written contract must be said to have provided for the payment to the plaintiff of compensation for all services performed by him in the transaction. If, on the other hand, the testimony of the plaintiff is to be believed, he would be entitled to additional compensation. It was for the jury to determine, under all the facts and circumstances of the case, who was telling the truth.

There was testimony in the record tending to show that a blank check signed by the defendant was given to the plaintiff, which he was- authorized to use in paying the special assessments, if he could not persuade the purchaser to assume such liability. On the other hand, at the time the deed was delivered a statement was rendered by the plaintiff in which was this item: “Com. and service on sale, $1762.50.” It is argued by the defendant that payment of this amount having been made by the defendant on that day, it is conclusively shown that the plaintiff understood the contract to be as claimed by the defendant. The argument is persuasive but not conclusive.

The trial court erred in directing a verdict for the defendant. -The judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Western Valve Company, Defendant in Error, v. Franklin Hardin et al., Plaintiffs in Error.
    Gen. No. 17,690.
    1. Municipal court—bill of exceptions. Where judgment is entered on June 10 in the Municipal Court, and within thirty days a motion for new trial is entered and set for hearing which is disposed of August 9, a motion to strike from the record the bill of exceptions filed within thirty days from that date is properly denied.
    2. Mechanics’ liens—evidence to show that defendant owned property. In a mechanic's lien action, where the evidence does not show that defendant is owner of the property in question or has any contract with the principal contractor, a judgment against defendant will be reversed.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion originally filed June 24, 1913.
    Rehearing denied and opinion modified and refiled July 8, 1913.
    William A. Rogan, for plaintiffs in error Franklin, P. K. and Ellen A. Hardin.
    Eastman & White, for defendant in error; Ralph R. Hawxhurst, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

In this case a motion has been made to strike from the record what is called a bill of exceptions or stenographic report, because not filed within thirty days after the rendition of the judgment. Judgment was entered on June 14, 1911, and within thirty days from that time a motion to vacate the judgment and for a new trial was entered and set for hearing at a subsequent date. The motion was not disposed of until August 9, 1911, and the bill of exceptions or stenographic report was filed within thirty days after that date. On the authority of Hosking v. Southern Pac. Co., 243 Ill. 320, the motion must be denied.

The amended statement of claim, filed March 2,1911, recites that the plaintiff’s claim is for a mechanic’s lien upon certain described premises for goods, wares and merchandise. sold by plaintiff to the defendants McLeod and Ledbetter, as copartners, who had a contract with P. K. Hardin and Franklin Hardin, defendants, owners of the described real estate; that the goods, wares and merchandise were delivered to the premises between July 29, 1910, and August 9, 1910. On the same date leave was granted to file an amended statement of claim, and an order made that all records, papers and proceedings in the cause be amended by making Ellen A. Hardin a defendant, and that a writ of summons issue to her; also for publication as to certain of the defendants. On the following day a second amended statement was filed, adding to the original statement an additional paragraph to the effect that at the time notice was served “upon the said owner of the above described premises” there was due to McLeod and Ledbetter from said owner a sufficient amount to cover the amount which the plaintiff claimed as a mechanic’s lien; that this last allegation was made on information and belief; that if there was not a sufficient amount at the time of the service of the notice, due from the owner to the contractor, the owner was nevertheless liable for having failed to require the necessary statement and schedule from the contractor, as under the statute in such cases is made and provided. The statement further alleged that the defendant Ellen A. Hardin, at the time of the commencement of the suit, “held the legal record title to the premises, although the premises were not conveyed to her by Franklin Hardin until after the service of notice upon him by the plaintiff.”

Affidavits of defense were filed by the three defendants who have prosecuted this writ of error, making the claim that no statement of claim was filed within four months after the time that the final payment became due; denying joint liability with the other defendants, and averring that after August 2, 1910, Franklin Hardin and P. K. Hardin were not the owners of the property. The affidavit of the defendant Ellen A. Hardin alleged that she never contracted with McLeod and Ledbetter to furnish material, and that she did not “with her knowledge and consent permit the furnishing of any material to said premises.”

An order was entered finding McLeod and Ledbetter in default in not complying with the order to file affidavit of merits or defense. Further proceedings were had which resulted in a finding by the court, that the plaintiff corporation was entitled to a mechanic’s lien upon the premises in question, and a further finding that the plaintiff was entitled to recover from the defendants and each of them the sum of $268.85, whereupon judgment was entered accordingly.

Section 33 of chapter 82, E. S., provides:

“Petition shall be filed or suit commenced to enforce the lien created by sections twenty-one (21) and twenty-two (22) of this act within four months after the time that the final payment is due the sub-contractor, laborer or party furnishing material.”

The claim of the plaintiffs in error appears to be borne out in the record that the suit was not brought against Ellen A. Hardin until more than five months after payment was alleged to have become due to the plaintiff; that there is no showing that any notice was ever served upon Ellen A. Hardin or P. K. Hardin on behalf of the plaintiff; that the only notice in the record is one addressed to Franklin Hardin, and that as to him the theory of ownership in him was- abandoned in the final amended statement of claim.

In section 28 of the act it is provided that in actions at law provided for by the act, as in suits to enforce the lien, the owner shall be liable to the plaintiff for no more than the pro rata share that such person would be entitled to with other sub-contractors out of the funds due to the contractor from the owner under the contract between them, except as theretofore provided in the act for laborers, and that such actions at law shall be maintained against the owner only in case the plaintiff establishes his right to the lien. The section further provides that judgments, where the lien is established, shall be against the contractor and owner jointly but shall be enforced against the owner only to the extent that he is liable under his contract, as provided by the act, and shall recite the date from which the lien thereof attached, according to the provisions of sections 1 to 20 of the act, but that this should not preclude a judgment against the contractor personally where the lien is defeated.

It is clear from the record that Ellen A. Hardin had no contract, as owner or otherwise, with the principal contractor. The plaintiffs in error insist that no proof was offered as to the ownership by any of them of the property in question. The record shows that the defendant in error claimed that at the time the statutory notice was served Franklin Hardin was the owner of the premises, and that notice was therefore served upon him.

Whatever may have been the rights of the parties in the matter of enforcing a lien for the amount of their claim as material men against the property in question, we find nothing in the record which, under the provisions of the statute heretofore referred to or any other provision to which reference has been made in the briefs, warranted the entering of a judgment at law against Ellen A. Hardin. No attempt was made to show, so far as we are able to discover, who was the actual owner of the property at any particular time.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Robert E. Baxter, Defendant in Error, v. Lizzie B. Miller, Trading as Miller’s Buena Park Express, Plaintiff in Error.
    Gen. No. 17,716.

      Damages—evidence. Held., in an action for the value of a whole stalagmite table top together with a broken one alleged to have been lost by defendant, that the evidence does not tend to show that the broken top had any value and the proof as to the loss thereof is unsatisfactory.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    Leo Koretz, for plaintiff in error.
    John S. Dornblaser, for defendant in error; Henry J. Kramer, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment for $600 was rendered in this case as the alleged value of one stalagmite table top said to have been in good condition, and a second stalagmite table top which the record shows was broken into three pieces.

It appears that the defendant in error (plaintiff) made a contract with the plaintiff in error (defendant) to take certain articles of furniture and other things from one place to another in the city of Chicago; that by the original' contract she was to take one table top to the Nelson Company, and there have delivered to her another to be brought back to plaintiff’s house. She was also required to take certain property from the Derby Desk Company. It would appear that when the property taken from the Derby Desk Company under the contract was received there were loaded on the wagon the three broken pieces.

The court found that the defendant did not deliver to the plaintiff the stalagmite in question, and recovery was had as for a conversion.

It is asserted in the brief of the plaintiff that the stalagmite taken from the Nelson Company was shown to have been worth $400, and that taken from the Derby Desk Company $200.

A finding was made in favor of the plaintiff on June 16, 1910, and the defendant made a motion for a new trial. A year later additional testimony was taken on behalf of both parties, and on June 24, 1911, a judgment was entered upon the finding made the year previously.

We have searched the record in vain for any evidence tending to show that the three broken pieces of stalagmite had any value. One witness for the plaintiff, who was the only one who seems to have been asked specifically what the value of them was, testified that they had no value. This was corroborated by a witness whose testimony was taken on behalf of the defendant. The witnesses for plaintiff did not qualify themselves to testify on questions of value. On direct examination the plaintiff stated that in making his original contract with the defendant he told her that the stalagmite table tops were very valuable and would have to be handled carefully; that they “ranged all the way from $500 to $700.” The defendant denied having had any such conversation. On his cross-examination he testified that he presumed she was not going to call at the Derby Desk Company for that table top at all; that the table top at the Derby Desk Company was broken, that he did not know in how many pieces; that it was the more valuable table top of the two; that the table top was in good condition when he sent it to the Derby Company. There is no claim, however, that the defendant took this table top to the Derby Company, but on the other hand, the testimony given by a witness for the plaintiff, an employe of the Derby Company, is to the effect that the Derby Desk Company had the three broken pieces of stalagmite in its possession for about a year and a half. The same witness testified that he did not know what their value was, if they had any value, that they were “all black with dirt from being kicked around the store,” and were in that condition when delivered to the defendant.

Plaintiff’s witnesses testified that stalagmite had no market value in Chicago in 1909. A witness for the defendant, a man who had been in the marble business for more than 40 years and who seemed to have the best information on the subject of any of the witnesses, and who was disinterested, gave it as his opinion that a sound piece of stalagmite, such as the one claimed to have been lost, was worth in Chicago in April, 1909, about $48, and that the three pieces referred to had no value whatever.

The proof as to the loss of the broken pieces is also unsatisfactory. The plaintiff claimed not to know anything about these pieces having been taken from the Derby Desk Company’s store until long after the occurrence. A witness for the defendant who assisted in loading the wagon testified that after they had “unloaded the stuff at Nelson’s” he and the driver were told by the plaintiff to go to the Derby Desk Company and bring a stone back from there to his house; that the witness said to plaintiff he did not have any order to do that, but was told by the plaintiff that it would be all right with Mrs. Miller; that plaintiff further told him “if there was nobody at home to leave it on the back porch;” that the three broken '-pieces of stone were taken from the Derby Company and were placed by him upon the back porch, there being no one in the house. The plaintiff, when called in rebuttal, did not deny the testimony of this witness, but testified that he did not find “any broken table top with mahogany base” on the back porch.

In our opinion a great injustice was done the defendant in the rendition of this judgment and there should be a new trial. The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.


text:
    William Corbett, Trading as The Chicago Building Materials Company, Defendant in Error, v. United States Metal & Manufacturing Company, Plaintiff in Error.
    Gen. No. 17,754.
    Municipal court—affidavit of defense. In an action in the Municipal Court for money alleged to be due for a carload of “structural steel scrap, ’ ’ where it is not claimed in the affidavit of merits that the contract was for anything other than such scrap, defendant cannot contend that he bought “shearings” and not the scrap.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    Leman & Rigby, for plaintiff in error.
    John S. Hummer, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

The statement of claim in this case sets forth the alleged right of the plaintiff to recover for money due and owing to the plaintiff from the defendant for one carload of “structural steel scrap” sold and delivered on December 19, 1910. The affidavit of merits sets up as a defense that the “structural steel scrap” which the plaintiff undertook to sell and deliver on the day aforesaid was' not of the quality or condition contracted for by the defendant with the plaintiff, and that by reason thereof the defendant refused to accept the same.

It seems from the record that the plaintiff was the owner of a quantity of “structural punehings” and “structural steel scrap” which were located at the plant of the George W. Jackson Company. Negotiations were had between the parties which resulted in the defendant writing to the plaintiff on December 9, 1910, the following letter:

“This will confirm purchase from you of one carload of structural punehings at $12.50 net ton, and 2 carloads of structural steel scrap at $12.25 gross ton. less 50c per ton commission to us, f. o. b. cars The Geo. W. Jackson plant.

“Kindly arrange to have the cars weighed and set in, and advise us when you are ready to load.”

Two cars were taken and paid for. The car in question was loaded and was billed by the Jackson Company to the defendant at North avenue station of the Chicago & Northwestern Railway Company. It remained there a few days, and then a bill of lading was issued by that company to the defendant, by which the car was consigned to the Inland Steel Company at Indiana Harbor. The plaintiff insists that the Inland Steel Company purchased it from the defendant. The defendant claims that this is not the fact; that in some way it was acting as agent for the Inland Steel Company, and that this is borne out by the language of the letter of acceptance, which has in it the words, “less 50c per ton commission to us, f.o.b. cars The Geo. W. Jackson plant.” The plain construction of this letter, however, is that the commission, if such it may be called, was to be paid by the plaintiff, and the other parts of the letter clearly show the confirmation of the purchase by the defendant from the plaintiff, acting in its own behalf and not for someone else.

The case was tried before the court without a jury, a finding had in favor of the plaintiff, and judgment entered upon that finding.

Most of the questions presented to us on this writ of error are questions of fact. As to those questions it is sufficient to say that we have carefully examined the record and have reached the conclusion that the weight of the evidence was with the plaintiff.

The contention of the defendant, as we understand it, is that it bought “shearings,” and not “structural steel scrap.” This contention is not tenable in view of the affidavit of defense. By rule 19 of the Municipal Court “every allegation of fact in any statement of claim * * if not denied specifically or by necessary implication in the affidavit of defense * * * shall be taken to be admitted except as against an infant or a lunatic.” Nowhere in the affidavit .of merits is it claimed as a defense that the contract between the parties was for anything other than “structural steel scrap.” The testimony is conflicting as to whether the car contained something other than “structural steel scrap,” and there is testimony to the effect that “shearings” are “scrap:”

In effect the court found that the contract between the parties had been complied with with respect to the quality and character of the material. After a careful examination of the record we are unable to say that the conclusion so reached was erroneous.

Entertaining, as we do, this view of the case, it is unnecessary to consider many questions raised in the briefs, among others whether the defendant’s act in causing a reshipment of the property to the Inland Steel Company amounted to an acceptance; whether the attempted rejection came too late; whether the fact that the defendant made no offer to return the property precludes entertainment of its present contention that the material was not in accordance with the terms of the contract; whether, if there was an acceptance, it was made under a mistake of fact, etc.

We have carefully considered the question as to alleged errors of the court in the reception of testimony, and are of opinion that if errors were committed they were harmless as being related to subjects having nothing to do with the substantive questions of fact raised by the statement of claim and the affidavit of defense. The judgment will be affirmed.

Affirmed.


text:
    F. D. West, Appellee, v. Ranney Refrigerator Company, Appellant.
    Gen. No. 17,788.
    1. Sales—instructions. In an action for failure of defendant to comply with a contract for the purchase of certain goods of plaintiff, where the contract provides that defendant agrees to purchase certain goods in a specified time, it is proper to refuse an instruction that plaintiff must prove that defendant made a demand upon him for the goods and if defendant failed to make that demand he should be found not guilty.
    2. Sales—instructions. It is proper to refuse an instruction that plaintiff failed to prove that he did not deliver to the defendant certain mechanisms in a certain time and therefore defendant should be found “not guilty,’’ where action is brought for failure to comply with a contract providing that defendant agrees to purchase certain mechanisms of plaintiff and the evidence tends to prove that defendant refused to take the mechanisms.
    3. Evidence—question as to capital stock of defendant company. In an action against defendant company for failure to comply with a contract providing for the purchase of certain mechanisms of plaintiff, it is error to permit a question which resulted in an answer as to the amount of the capital stock of defendant, but it does not require reversal.
    Appeal from the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.

      Bowles & Bowles, for appellant.
    Dellenback, Biese & Cody, for appellee.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was rendered against the appellant (defendant) upon a claim of the appellee (plaintiff) based upon the failure of the former to comply with the provisions of a contract, with respect to the purchase from the plaintiff of 1,500 complete “scale mechanisms.”

It appears that 600 scales had been made by the plaintiff and received and paid for by the defendant. There was evidence tending to show that the plaintiff suffered damages by loss of profits in the sum of $2,190, and a verdict of the jury was rendered in that amount, upon which verdict judgment was entered.

We are asked to reverse this judgment without remanding the cause, on the alleged ground that there was no evidence tending to support the verdict. It is also said that the court erred in rulings on the admission of testimony, and in the charge to the jury.

By the terms of the contract the plaintiff undertook to give to the defendant the sole and exclusive right to use and sell his “improved scale,” as disclosed and claimed in a' certain application for letters patent mentioned in the contract. He further agreed to fur-' nish defendant on or before November 1, 1908, and upon demand thereafter, complete scale mechanisms and to deliver the same at defendant’s factory at Greenville, Mich., at the rate of $2.50 each, each scale mechanism to include all metal parts of the scale except the table or ice rack, and to have a maximum capacity of 200 pounds. He further agreed to protect the defendant from suits for infringement. Defendant undertook ,to purchase and pay for 600 complete scale mechanisms on or before August 1, 1909, and to pay therefor the sum of $1,500 in cash or to give its note. There are other provisions in the agreement. The fifth, being the one upon which recovery was had, reads as follows:

“Furthermore, said Company agrees to purchase from said West fifteen hundred (1,500) said complete scale mechanisms within the period of time beginning August 1st, A. D. 1909 and ending August 1st, A. D. 1910, and to pay to said West immediately upon delivery thereof the sum of Thirty-Seven Hundred and Fifty ($3,750) dollars, at the rate of two dollars and fifty cents each ($2.50) in cash or by ninety (90) day note bearing six per cent (6%) interest.”

It is argued by the defendant that no recovery in this case should have been allowed because, as it is alleged, the contract is severable, and the proof, it is claimed shows that the 600 scales delivered were not made in accordance with the contract, and that therefore the defendant was released from any obligation to purchase more under the contract. It is said the scales which were delivered did not have a maximum capacity of 200 pounds, as required by the contract.

In the letters in the record, written by the defendant to the plaintiff, with respect to the scales delivered, we find no suggestion that they were not in accordance with the contract, but, on the other hand, intimations that the understanding of the defendant was that they would be made of any size that might be specified by the defendant from time to time. In letters to some of its customers the defendant wrote to the effect that the weighing device in their refrigerators had proved very satisfactory, that they were absolutely accurate and filled all requirements; to others, that they would weigh correctly within a half pound or a pound, etc., and that that was near enough for ice scales.

With respect to the charge given to the jury it should be said that the court, before the jury retired, gave to counsel opportunity to make objections, rule 8 of the Municipal Court requiring that objections to the giving or refusing of oral instructions be made immediately upon the giving of the charge and before the jury retire. Counsel for defendant said he had no objections to make. He thereupon asked the court to charge the jury “on the question that the plaintiff must prove by a preponderance of the evidence that the defendant made a demand upon the plaintiff, between the period of August 1, 1909, and August 1, 1910, for 1,500 scale mechanisms, and if he failed to make that demand that they should find the defendant not guilty.” This requested instruction was properly refused, because the case being one upon a contract, it would not have been, under any circumstances, a proper verdict to find the defendant “not guilty,” and for the further reason that it was not necessary that there be proof that the defendant had made a demand upon the plaintiff in order that the plaintiff might recover under paragraph five of the contract.

A second instruction was requested to the effect that the plaintiff had failed to prove by a preponderance of the evidence that the plaintiff did not deliver to the defendant 1,500 scale mechanisms in the period mentioned, and that therefore the defendant should be found “not guilty.” This instruction was also properly refused. The basis of the plaintiff’s claim was that the defendant had refused to comply with the terms of the contract, and the testimony, both on behalf of the plaintiff as well as on behalf of the defendant, tended to show that the defendant refused to take the scale mechanisms as required by said fifth paragraph.

Two other instructions were asked, but bore on the same matter, and we think were properly refused. The court permitted a question to be asked, which resulted in the answer by one of the witnesses to the effect that the capital stock of the defendant was $50,000. The objection should have been sustained, but we do not think the error so serious as to require a reversal of the judgment. The judgment will be affirmed.

Affirmed.


text:
    Lillie Bertha Mooney, Defendant in Error, v. Charles A. Valentynowicz, Plaintiff in Error.
    Gen. No. 17,826.
    Negotiable instruments—when payment of note not shown. Held, that payment of a note on which action was brought was not shown.
    Error to the Municipal Court of Chicago; the Hon. George J. Cowing, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed on remittitur.
    Opinion filed June 24, 1913.
    Rehearing denied July 8, 1913.
    J. Amos Blume, for plaintiff in error.
    George J. Gilbert, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

Judgment was entered on a note for $126, in which judgment an attorney’s fee of $15 was incorporated. This amount is mentioned in the cognovit, and the trial judge evidently did not observe that there was no provision in the note itself for attorney’s fees. After judgment was entered it was opened and testimony heard on the question as to whether or not the note had been paid.

We think the court was correct in holding that payment had not been shown. The judgment will therefore be affirmed provided the defendant in error enters in this court within ten days a remittitur in the sum of $15. Otherwise the judgment will be reversed and the cause remanded.

Affirmed on remittitur; otherwise reversed and remanded.

Memittitur filed and judgment affirmed June 26,1913.


author: Mr. Justice Clark Mr. Justice Barnes

text:
    The People of the State of Illinois, Defendant in Error, v. Leo Levin, Plaintiff in Error.
    Gen. No. 18,680.
    Criminal law—where information is sufficient. An information in the language of the statute charging defendant with a violation of section 10 of the Motor Vehicle Act of 1911 is sufficient, since the statute sufficiently describes the offense.
    Barnes, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Hugh B. Stewart, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 24, 1913.
    Louis Greenberg, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Zach Hofhmmer, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

Plaintiff in error pleaded guilty to a charge of violation of the provisions of section 10 of the Motor Vehicle Act "of 1911 (paragraph 269j, page 2044, compilation of 1912 E. 8.)

The language of the information is:

“that Leo Levin *' * * on the 21st day of June, A. D. 1912, at the City of Chicago, aforesaid, did then and there upon a public highway situated within the corporate limits of the city aforesaid, drive a motor vehicle at a speed greater than is reasonable and proper having regard to the traffic and the use of the way so as to endanger the life or limb or injure the property of any person, * * * informant further says that the above violation then and there occurred upon a public highway within the jurisdiction of the South Park Commissioners, to wit: Michigan avenue boulevard between 12th street and 13th street * * * contrary to the form of the statute. * *

It is said that this information is insufficient in that it charges no offense. The information is in the language of the statute, and in certain circumstances the statute makes such an information sufficient. Section 6, division XI of the Criminal Code.

It is argued by the plaintiff in error that because portions of the statute make provision as to what shall be prima facie evidence of proof of excessive speed in certain localities, ten miles in the business section of the city, etc., the information does not charge an offense, as it does not allege the character of the public highway nor the rate of speed at which the vehicle was charged to have been operated. The contention is evidently based upon the idea that a person may run his motor vehicle at any place or under any circumstances at a rate of speed not in excess of ten miles an hour, without violating the provisions of the statute, or upon the idea that the information must set out the facts so that the court, from the information itself, can reach a conclusion as to whether of not the speed was unreasonable, under the circumstances.

It has been held that an indictment under the Act of June 3,1889, to suppress the selling, giving or showing to minors of any publication principally made up of criminal news, sufficiently describes the offense in the language of the statute, without setting out the prohibited matter or excusing a failure to do so. Strohm v. People, 160 Ill. 582.

An indictment for larceny as bailee is sufficient which charges the crime substantially in the words of the statute defining the offense, and it is not necessary to allege the particular facts constituting the crime, as in' the case of larceny at common law. McCracken v. People, 209 Ill. 215.

An information charging the defendant with having violated the act to prevent and punish frauds in the practice of law, by holding himself out as an attorney at law and by representing that he was authorized to practice law when he had not been regularly licensed to practice law in the courts of this state, is sufficient, as the charge is not of a common law offense and, as where the offense is statutory, it is sufficient to allege it in the words of the statute providing the statute sufficiently defines the crime. People v. Schreiber, 250 Ill. 345.

Plaintiff in error cites the case of People v. Trumbley, 252 Ill. 29, as a controlling authority. In that case, however, the offense was not charged in the language of the statute, and did not contain sufficient allegations of fact to bring the case within the statute.

Our conclusion is that the statute itself sufficiently describes the offense, and that the information, being based upon it, is sufficient. The judgment is affirmed.

Affirmed.

Mr. Justice Barnes

dissenting: I cannot concur in

the foregoing opinion. It is sufficient to follow the language of the statute provided it describes a crime. So far as the information employs the language of the statute, it does not describe a crime. The Motor Vehicle Act prohibits three things,—(1) driving such vehicle at a speed greater than is reasonable and proper having regard to the traffic and the use of the way, (2) driving at a speed so as to endanger the life or limb of any person, and (3) driving at a speed so as to injure the property of any person. The act makes certain specified circumstances a prima facie violation thereof, but neither these nor any other are alleged in the information, which leaves facts “necessary to be averred to be derived by inference from an allegation of a mere conclusion of law.” Gunning v. People, 189 Ill. 165. Section 6 of division XI of the Criminal Code does not dispense with the rule requiring necessary facts to be pleaded with reasonable certainty. (Id.) The information avers no facts with regard to the traffic or use of the way from which the inference may be drawn that the speed was unreasonable; nor does it allege that the life or limb of any particular person or persons was endangered, or any state of facts from which that might be inferred; nor does it state that any particular property was injured. It is also bad because it pleads in the alternative the several offenses prohibited. Bishop on Criminal Procedure, vol. 1, secs. 326, 585.


author: Mr. Presiding Justice F. A. Smith

text:
    The Fruit Growers State Bank of Saugatuck, Michigan, Defendant in Error, v. Herman Peters, Trading as Peters Brothers, Plaintiff in Error.
    Gen. No. 17,456.
    1. Principal and agent—evidence of authority. In an action for money advanced to defendant’s agent at defendant’s request where plaintiff bank discounted drafts drawn by the agent on defendant, evidence as to the course of dealing between defendant, the agent, and the bank is admissible to show the relation of the parties and the capacity in which the agent acted.
    3. Principal and agent—where evidence shows authority of agent. In an action for money advanced to defendant’s agent, where the evidence shows that the agent buying fruit in Michigan drew drafts on defendant in Chicago who telegraphed to plaintiff that he would pay all drafts attached to invoices for fruit shipments, there is sufficient proof that the agent had authority to draw the drafts.
    3. Negotiable instruments—where principal agrees to accept draft before it is drawn. Where defendant agrees to accept drafts to be drawn by his agent who is buying fruit, he becomes liable for the amount paid on the drafts as fully as if he had previously accepted them on their face.
    Error to the Municipal Court of Chicago; the Hon. John J. Boones’, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.

      Charles A. Butler, for plaintiff in error.
    Worth E. Caylor, for defendant in error.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

An action was brought by the defendant in error against the plaintiff in error in the Municipal Court of Chicago to recover from the defendant money loaned and advanced to one A. W. Tryon, an agent of the defendant, at defendant’s request and for the benefit of defendant, and a recovery by the plaintiff was had in that court. This writ of error brings before us the judgment and record for review. The plaintiff in the cause is a bank located at Saugatuek, Michigan, and the defendant is Herman Peters, doing business under the name and style of Peters Brothers, in the city of Chicago. The proof showed that A. W. Tryon, for some time prior and up to the transactions resulting in the above action, was purchasing fruit and shipping the same to Peters Brothers as their agent.

Tryon’s place of operation was at Fennville, Michigan. Tryon, by telephone, requested the plaintiff in the action to advance money on shipments of fruit which he was buying for Peters Brothers, the defendant. This the bank refused to do unless it had instructions from the defendant. Thereupon Tryon telegraphed defendant at Chicago to wire the Fruit Growers State Bank of Saugatuek, “Honor drafts invoices attached.” On the same day. the defendant telegraphed plaintiff, “Will pay drafts Tryon attached invoices shipments fruit.” Upon the faith of this telegram, the plaintiff discounted drafts drawn by Tryon on Peters Brothers, attached to all of which drafts were invoices of fruit.

About October 7, 1910, Tryon was drawing large amounts, and was told by the cashier of plaintiff that he would have to keep a balance with the plaintiff. Tryon replied that he could not do that because he was only drawing drafts as fast as he was buying, and could not keep any balance but would verify the previous matter by getting Peters to send the bank another wire. The plaintiff, on the same day, received the following telegram from Peters Brothers: “Will pay Try on’s draft attached to invoice on grapes.” This was evidently sent in response to a telegram sent by Tryon to Peters Brothers, which reads as follows: “Wire bank at Saugatuck honor draft car grapes invoice attached.” Pursuant to authority thus given, the bank paid on October 3rd a draft for $220.80; on October 4th a draft for $192.26; on October 8th a draft for $492.62; on October 14th a draft for $200, and another draft on the 14th for $168.20,—all of them being paid upon presentation by Peters Brothers. Two other drafts were drawn by Tryon on Peters Brothers, one dated October 8, 1910, for $250, and one dated October 10, 1910, for $250, but were not paid. $112.64 was paid on a draft for $500, dated October 13, 1910. The total amount paid on the last three drafts was $612.64. On October 18th, the plaintiff bank received a letter, from Peters- Brothers, dated October 17,1910, stating that the drafts they were paying were simply advances on fruit they were buying from Tryon, and claimed that the fruit was not of the kind they had contracted for, and that they were getting a different kind of fruit, put up differently; and the same day the bank received a telegram from Peters Brothers as follows: “Tryon’s drafts don’t cover shipments. We will only pay his drafts- subject inspection goods here. Whenever we guarantee we will send telegram covering specified shipment.” After receiving this telegram and letter the bank paid out no more money. The total amount paid to Tryon under the authority given by defendant below and unpaid by him was $612.64.

This was substantially the evidence on which the court rendered judgment for the plaintiff. It is urged on behalf of the plaintiff in error, defendant below, that the proof in the record does not show agency on the part of Tryon, and that the defendant can only be held liable for unpaid drafts drawn for shipments actually made. It is argued that the conversation of Tryon with the cashier of plaintiff was improper and incompetent to show agency on the part of Tryon. It is urged, further, that the trial court erred in admitting the evidence of the cashier of the plaintiff bank concerning the conversations with Tryon, and that there is no evidence in the record showing that any merchandise was ever shipped to or received by the plaintiff in error, defendant below, and that the bank cannot recover without showing actual shipments of fruit to defendant, plaintiff in error.

The proof, in our opinion, shows that Tryon had authority to draw the drafts upon the defendant for fruit with invoices attached, and that the bank was authorized by Peters to advance money on the drafts so drawn. The whole course of business between Tryon, plaintiff in error, and the bank was properly admissible to show the relation of the parties, and the capacity in which Tyron acted. The course of business as shown by the evidence, tends to prove that Tyron was the agent of the plaintiff in error; but however that may be plaintiff in error agreed to accept the drafts before they were drawn, and he became liable for the amount paid on the drafts as fully as if he had previously accepted the drafts on their face. Hall v. First Nat. Bank of Emporia, 133 Ill. 234; Huston v. Newgass, 234 Ill. 285.

The judgment is affirmed.

Affirmed.


text:
    The People of the State of Illinois for use of State Board of Health, Defendant in Error, v. A. G. Fairfax, Plaintiff in Error.
    Gen. No. 17,598.
    1. Physicians and surgeons—form of verdict in action for practicing medicine without a license. Where the issue under the pleadings is whether defendant, accused of practicing medicine without a license, is guilty of a second offense arid if not found guilty no fine could be imposed thereunder for a first offense, it is proper to give the jury only a form for a verdict of guilty of a second offense in case they find defendant guilty.
    2. Physicians and surgeons—practicing medicine without a license. A statement of claim is sufficient on which to base a claim for second conviction for practicing medicine without a license, where it states that the claim is for $200.00 for a penalty as provided for a subsequent offense of a violation of a certain act described,, that it is the contention of plaintiff that defendant has practiced medicine as defined in section 7 of said act without a license as provided for in sections 2 and 3 of the act, that the offense was committed in Chicago on or about a certain date, and that defendant has been previously convicted of the offense.
    Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    Edward H. Morris, for plaintiff in error.
    Charles Alling, Jr., for defendant in error.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

An action was brought -by the People of the State of Illinois, for the use of the State Board -of Health, against A. G. Fairfax, plaintiff in error, to recover a penalty for the alleged violation of chap. 91, par. 13, Hurd’s E. S. 1911. There was a trial by jury and a verdict finding defendant guilty, and fining him $200. After overruling a motion for a new trial, judgment was entered on the verdict.

It is urged that the court below improperly-instructed the jury as to the verdict. By the instruction the jury were told that in case they found the defendant guilty, they were to use the form for verdict submitted by the court, which was:

“We, the jury, find the defendant guilty of a violation of an act to regulate the practice of medicine in the State of Illinois and to repeal an act therein named, approved April 24, 1899, in force July 1, 1899, and we further find that the defendant has been previously convicted in the Municipal Court of Chicago, on the 25th day of November, A. D. 1910, for practicing medicine without a license so to do, and assess a fine against the defendant, A. Gr. Fairfax, in the sum of $200.”

On the question of whether there had been a prior conviction of the plaintiff in error, there was offered in evidence a certified copy of a judgment entered in the Municipal Court of Chicago November 25, 1910, in which the People of the State of Illinois, for the use of the State Board of Health, were plaintiffs against the plaintiff in error, Case No. 301,391. There was also evidence offered which was not controverted showing that plaintiff in error was the same person named as defendant in the record of the former conviction. Neither of these facts was challenged either in the affidavit of merits or in the evidence at the trial. The issue for the jury under the pleadings was whether defendant was guilty of. a “subsequent offense,” the penalty for which is $200, and not for a first offense. If not found guilty of a second offense, no fine could be imposed thereunder for a first offense. The form of verdict was therefore correct.

It is further urged as a ground for reversal that the statement of plaintiff’s claim was not sufficient to base a claim for second conviction. The amended statement of claim filed March 11, 1911, states as follows :

“The claim of the plaintiffs is for two hundred dollars, for a penalty as provided for a subsequent offense of a violation of an Act (describing it). It is the contention of the plaintiffs that the defendant has practiced medicine as defined in Section 7 of said act by treating and professing to treat and prescribing certain material remedies for the physical ailment of another person, without a license so to do as provided for in Sections 2 and 3 of the said act. The said offense was committed in the City of Chicago on or about December ‘21 and 22, 1910. Defendant hhs been previously convicted of practicing medicine without a license in Illinois, ISTo. 302,191.”

This statement of claim was sufficient to apprise the defendant, plaintiff in error, of the nature of the suit and that a' prior conviction would be relied upon.

There is no material error in the record, and the judgment is affirmed.

Affirmed.


text:
    I. B. Jacobs, Defendant in Error, v. R. K. Maynard Piano Company, Plaintiff in Error.
    Gen. No. 17,631.
    1. Contract—evidence. In an action for a prize in a puzzle contest held, that there was no contract whereby defendant contracted to “pay a genuine bank cheek ’ ’ to plaintiff for his solution of the puzzle.
    2. Contracts—what letter does not acknowledge absolute obligation. A company which conducts a puzzle contest does not acknowledge any absolute obligation to plaintiff by a letter providing “We congratulate you on your success as your name was submitted by the judges of our puzzle contest awarding you a substantial amount; we enclose herewith a bank check for the amount you have been awarded.”
    Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with finding of fact.
    Opinion filed June 24, 1913.
    Marvin E. Barnhart, for plaintiff in error.
    Moses, Bosenthah & Kennedy, for defendant in error; S. Sidney Stein, of counsel.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

An action was brought by I. B. Jácobs, defendant in error, against the B. K. Maynard Piano Company, plaintiff in error, to recover the amount of a fourth prize, namely, a $150 bank check, one of the prizes offered in a certain advertisement of the plaintiff in error. February 5, 1911, plaintiff in error published in the ‘‘Chicago Tribune” an advertisement for a puzzle contest which provided for certain prizes, the fourth prize being a bank check for the above amount. The prizes were to be awarded according to the neatness of the correct answers and solutions of the puzzle. About 2,000 correct solutions were received in reply to the advertisement. The plaintiff in error had a committee of award, consisting of its president, treasurer and its. advertising manager, who examined all the replies and solutions and awarded the prizes at that time.

The defendant in error solved the puzzle correctly, sent in his answer and solution on the advertisement as taken from the paper, the correct figures being inserted on that piece of paper, but he was not awarded any of the prizes. The fourth prize was awarded to Mrs. B. A. Kirkpatrick on her answer and solution in accordance with the advertisement, and in the opinion of the committee of award, on the basis of its merit as regards neatness, etc.

Plaintiff in error voluntarily sent conditional checks, but not all drawn alike, to apply upon purchases of pianos as an advertising proposition to all who solved the puzzle correctly, and accompanied most, if not all, of them with a printed circular letter. One of these checks and its accompanying circular letter is the basis of defendant in error’s- claim, no contention being made by him or proof offered by him that his solution or answer was- entitled to the fourth prize on the basis of neatness. No contention was made nor was proof offered by him tending to show any fraud in the awarding of the prizes.

. The letter and the check enclosed therein, upon which defendant in error based his claim, were dated February 11,1911. The clause of the letter upon which reliance is made, and must be made, for the contention of the defendant in error is as follows:

“We congratulate you upon your success, as your name was submitted by the judges of our puzzle contest, awarding you a substantial amount; we enclose herewith a bank check for the amount you have been awarded. ’ ’

The enclosed check bears date “Chicago, Feb. 11, . 1911,” and reads:

“The National Produce Bank of Chicago,
Clark and Lake Streets.
Pay to The Order of
John M. Barnhart, Advertising Manager.. .$150.00 One Hundred Fifty........................Dollars.
This check good only as part payment for any piano or player piano in our stock, at regular retail price, when endorsed by John M. Barnhart, Advertising Manager, and countersigned by our treasurer if presented at our office on or before February 25, 1911.
Not more than one of these checks accepted on any one piano.
(Signed) R. K. Maynard Piano Co.,
By R. K. Maynard. ’ ’

It is contended on behalf of the defendant in error that the advertisement, coupled with the performance by the defendant in error of. the act called for in the advertisement, created a contract on the part of plaintiff in error to “pay a genuine bank check” to defendant in error. The argument is that the advertisement offered a $150 bank check as a prize for a correct solution of a certain puzzle and that the acceptance of the offer was made by the defendant in error when he solved the puzzle and sent in a correct solution to the plaintiff in error, and that the ensuing letter and purported check which were sent to the defendant in error amount to an acknowledgment of the performance of the act or work called for by the advertisement, and that, therefore, a contract was completed, and the plaintiff in error is indebted to the defendant in error for the amount of $150.

Upon a careful examination of the advertisement contained in the record, the letter of February 11, 1911, and the check inclosed, together with the testimony in the case, we are of the opinion that they do not constitute a contract between the parties to the action. The award of the prize was not made to the defendant in error, but to Mrs. E. A. Kirkpatrick. The subsequent letter of February 11, 1911, enclosing a check payable to .the order of J. M. Barnhart, Advertising Manager, does not constitute an acknowledgment of any absolute obligation to the defendant in error. Whether Mrs. Kirkpatrick has ever been paid the fourth prize awarded or not, or whether she received a check similar to the one received by the defendant in error, concerning which so much appears in the record, is immaterial and irrelevant. The judgment of the Municipal Court of Chicago is reversed with a finding of fact.

Reversed with a finding of fact.


text:
    Leonard H. Mayer, Trading as Mayer’s Garage, Defendant in Error, v. Astor Auto Company, Plaintiff in Error.
    Gen. No. 17,668.
    Appeals and errors—when judgment sustained by evidence. In an action on a bill for repairs and storage of certain automobiles of defendant, where the evidence shows only a few items are in dispute and defendant produces no evidence to sustain his claim that he is entitled to credit, the judgment is affirmed.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    Thomas M. Headen, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

The defendant in error, Leonard H. Mayer, doing business as Mayer’s Garage, sued the Astor Auto Company, plaintiff in error, for the balance on a bill for repairs and storage of certain automobiles of the plaintiff in error. The bill covers a period of a number of months. Most of the items were not disputed. The items in dispute were set out by the plaintiff in error, defendant below, in its affidavit of merits, in which it claimed that it was entitled to a credit from the plaintiff in the sum of $24.10, and specifying the items making up this amount. No evidence was offered by the plaintiff in error tending to show that it was entitled to this credit. The only evidence offered in the case was that of Leonard H. Mayer, who was called as a witness and gave testimony as to the items making up the sum of $24.10 and the other items contained in the defendant in error’s statement of claim.

Upon a consideration of the evidence, we are of the opinion that the judgment of the court below is correct and ought not to be disturbed. The judgment is affirmed.

Affirmed.


text:
    W. Rosenberg, Defendant in Error, v. C. Miller, Plaintiff in Error.
    Gen. No. 17,697.
    1. Sales—evidence of acceptance. Where plaintiff undertakes to make a suit for defendant at an agreed price and after the suit is delivered defendant returns the coat which the evidence shows is not properly made, the fact that she did not return the skirt until later does not justify the conclusion " that she accepted the suit.
    2. Appeals and errors—where ■evidence sustains judgment. In an action to recover the contract price for making a suit, where the evidence shows that the suit does not fit and that plaintiff refused to "fit the suit in accordance with the contract after defendant returned it, a judgment for defendant is affirmed.
    Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed with a finding of fact.
    Opinion filed June 24, 1913.
    Harry R. Hurlbut and Samuel B. Bang, for plaintiff in error.
    Fowler, McDonnell, Rosenberg and MacPhail, for defendant in error..
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment in favor of the defendant in error, W. Rosenberg, in an action brought by him against the plaintiff in error for goods, wares and merchandise, sold, delivered'and made for the plaintiff in error.

The only testimony offered in the case was that of plaintiff in error, who was called for examination under section 33 of the Municipal Court Act. The evidence in the case discloses that the defendant in error, Rosenberg, undertook to furnish a suit for the plaintiff in error at an agreed price of $55, and after many fittings- delivered the suit to the plaintiff in error at her house. The plaintiff in error returned the coat on the following day claiming that it did not fit her and that the goods were not made according to the contract. The evidence shows that the coat was not properly made and that the plaintiff in error declined to accept it. The mere fact that she did not return the skirt, as to which no complaint was made, does not justify the conclusion that she accepted the suit. Defendant in error refused to fit the suit in accordance with the contract and brought the action in question to recover the agreed price of the suit. Thereupon plaintiff in error returned the skirt. The evidence fails to show that the defendant in error performed his contract. The judgment is reversed with a finding of fact.

Reversed with a finding of fact.


text:
    R. E. Boyer, Plaintiff in Error, v. Chicago & Erie Railroad Company,. Defendant in Error.
    Gen. No. 17,741.
    1. Carriers—where trunk of one in. charge of car of poultry is stolen. Where plaintiff, who is engaged by a shipper to accompany a car load of poultry, places a trunk in the car and the lock on the ear is broken in the middle of the night and the contents of the trunk stolen, plaintiff being carried under a contract whereby he assumes all risk of accident or damage to his property, cannot recover the value of the articles taken.
    2. Carriers—where goods are not delivered to carrier. No liability arises on the part of the carrier in respect to baggage where there is no delivery to the carrier.
    3. Carriers—property in possession of carrier. Carriers do not undertake to carry and safely deliver travelers’ effects which are not delivered into their custody.
    Error to the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    Ela, Gtbover, March & Eckert, for plaintiff in error.
    W. O. Johmsom and Bull & Johnson, for defendant in error; Arthur S. Lytton, of counsel.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

July 3, 1909, the plaintiff in error was engaged by a shipper of a carload of live poultry from Chicago to New York to accompany the poultry as the person in sole charge of the same. At the beginning of the journey, the plaintiff in error, for his own personal use and convenience, placed in the car in which the poultry was shipped a trunk containing certain of his clothes and personal effects and cooking utensils for cooking his meals on the journey. Plaintiff in error was the only person who had access to the car which was locked with a Yale lock, the only key to which was in the possession of the plaintiff in error.

During the journey and while the plaintiff in error was in the caboose of the train, the .poultry car was broken into by persons unknown and the contents of the plaintiff’s trunk in the car were removed therefrom. The action was brought to recover the value of the articles so taken from his trunk.

Plaintiff in error was carried on the freight train of the defendant company under a contract whereby he voluntarily assumed all risk of accident or damage to his property. This contract was signed by the plaintiff and was offered in evidence as a part of his case in chief. It was entered into by reason of the fact that plaintiff below was in care of the shipment of poultry and no charge was made for his transportation. His only duty was to care for such poultry and his only right to be and remain on the train of defendant was simply and solely by virtue of such duty. There is no question in the evidence that the plaintiff placed his trunk in the defendant’s poultry car, nor is there any question in the evidence that no agent or servant of the defendant had or could have access to the car which the plaintiff alone had access with the only key provided for that purpose. The trunk was placed in the car for the plaintiff’s sole use and convenience, and was not in any way connected with the shipment of live stock. There is no question made in the evidence but that the car was broken into in the middle of the night and that plaintiff’s trunk was broken open and the contents stolen therefrom by a person or persons unknown.

No liability arises on the part of the carrier in respect to baggage where there is no delivery to the carrier. The defendant in error assumed no duty with reference to the goods and property of the plaintiff in error for a breach of which it can be held liable. Michigan South. & N. I. R. Co. v. Meyres, 21 Ill. 627. In deciding the above case, the court said: “The property should have been shown to have come to their possession, and to have been lost by them, or that, they had by contract at Cleveland, undertaken to transport this baggage to Chicago.”

In Carpenter v. New York, N. H. & H. R. Co., 124 N. Y. 53, which was an action brought to recover the value of certain personal effects taken from the berth of a sleeping ear in which the plaintiff was traveling, it was said: “Carriers do not undertake to carry and safely deliver the effects of travelers not delivered into their custody.”

In Gleason v. Goodrich Transp. Co., 32 Wis. 85, the court held: “The rule of law is, that to charge a common carrier with the loss of property, it must be shown to have been delivered to him, or to his agent, for transportation. ’ ’

To the same effect is Henderson v. Louisville & N. R. Co., 123 U. S. 61; Elliott on Railroads (2nd Ed.), sec. 1654; Tower v. Utica & S. R. Co., 7 Hill (N. Y.) 47.

The judgment is affirmed.

Affirmed.


text:
    Equitable Trust Company of New York, Plaintiff in Error, v. P. H. Early, Defendant in Error.
    Gen. No. 18,095.
    Appeals and errors—insurance. The decision in the case is controlled by that in Equitable Trust Co. v. Harger, 177 111. App. 106.
    Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 24, 1913.
    Percival Steele,- for plaintiff in error; Harvey L. Cavender, of counsel.
    Arthur C. Hoffman, for defendant in error.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

This writ of error brings before us for review a judgment of the Municipal Court of Chicago, in an action of the fourth class in that court brought by the Equitable Trust Company of New York, a corporation, doing a general banking business, against P. H. Early, defendant in error.

The plaintiff’s suit is based upon a written instrument, executed in the State of Illinois, in words and figures as follows; to-wit:

“Chicago, Illinois, January 12, 1903 Mr. Archibald C. Haynes, General Agent, The Equitable Life Assurance Society, No. 25 Broad Street, N. Y.
Dear Sir: I hereby acknowledge having received from Mr. Geo. Schlesinger policy No. 1178284, being for $18,000 on my life in the Equitable Life Assurance Society. You are authorized and requested to place the said policy in force from this date, and I promise to pay the balance of the first annual premium, amounting to $600, as follows:
May 15th, 1903.......................$150
July 15th, 1903....................... 150
Sept. 15th, 1903....................... 150
Nov. 15th, 1903....................... 150
$600
. Very truly yours,
P. H. Early.”
(Endorsed)
“Archibald C. Haynes,
Gen’l Agent,
By E. W. Jones, Atty.”

The trial court found the issues for the defendant and entered judgment against the plaintiff for costs.

The questions presented by the record are precisely the same as those presented in Equitable Trust Co. of New York v. Harger, 177 Ill. App. 106, affirming the judgment below in that case. The Supreme Court has recently, at the term just closed, affirmed the judgment of this court. 258 Ill. 615.

Upon the grounds stated in the Earger case, supra, in our opinion, the court below properly found the issues for defendant.

The judgment is affirmed.

Affirmed.


text:
    John T. Neiner, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,409.
    1. Damages—evidence. In an action against a street railway company for injuries received in an accident held, that the testimony of experts and others proves that the ailments complained of by plaintiff existed prior to the injury and that the injury was not sufficient to produce the ailments shown.
    2. Witnesses—qualification of experts. Where a surgeon testifies in an action for personal injuries that some “gross change” was going on in plaintiff’s nervous system it is error to exclude a question as to whether the condition was of brief origin or was chronic, since the witness is not disqualified to answer because he is making a specialty of surgery.
    3. Evidence—what cross-examination of a physician improper. In an action for personal injuries, where a physician does not refer to the literature of medical writers in his direct examination, it is error to permit questions on cross-examination as to the standing of various medical writers and as to writings exhibited to the court and shown to the witness.
    Appeal from the Superior Court of Cook county; the Hon. Clabence N. Goodwin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    John E. Kehoe and C. Le Rot Brown, for appellant ; Leonard A. Bushy, of counsel.
    Adler & Lederer, for appellee.
   Mr. Presiding Justice F. A. Smith

delivered the opinion of the court.

This is an appeal from a judgment recovered by appellee, John T. Neiner, against appellant, Chicago City Railway Company, in an action for personal injuries. Appellee claimed that while he was alighting from a street car he was thrown to the ground by the sudden starting of the car of the defendant on which he was riding, and injured.

The declaration contained two counts. Each count alleged that plaintiff was a passenger and that while he was alighting from a street car of defendant on Forty-seventh street at Fairfield avenue in the city of Chicago, the car was negligently started and plaintiff was thrown with force and violence to the ground. The first count avers that the car was at a standstill when plaintiff prepared to alight. The second count alleges that before the car arrived at Fairfield avenue he signalled the servants of defendant that he desired to alight at that point, and that it then and there became and was the duty of the defendant to give the plaintiff an opportunity to safely alight therefrom and then and there stop the car a reasonable length of time to enable the plaintiff to alight, but that the defendant did not regard its duty nor use due care in that behalf, and that while the plaintiff was about to alight therefrom the defendant carelessly and negligently caused the car to be suddenly and violently moved, whereby the plaintiff was thrown with- great force and violence from the car to and upon the ground.

The evidence offered by the plaintiff - tends to show that he was a passenger on a Forty-seventh street car of the defendant from Indiana avenue to Fairfield avenue, and that the alleged accident took place October 20, 1909, at about four o’clock in the afternoon. The testimony as to the accident was given by plaintiff himself and by one Terven. They say that the plaintiff was thrown from the car to the ground while he was alighting therefrom at Fairfield avenue. Forty-seventh street at that place was not paved; it was a mere dirt road. There was a ditch on the side of the road next to the sidewalk. Terven testifies that he was on the rear platform of the car, which was a “pay-as-you-enter” car, and observed the plaintiff when he fell from the car, and that when the plaintiff fell, Terven swore at the conductor and jumped off the moving car after it had run about twenty feet. He claims that he went to the plaintiff and reached him a little over ten seconds after Terven had jumped off the car. Terven picked the plaintiff up and with the aid of a stranger, who did not testify, assisted the plaintiff to the home of his father, about one block north of Forty-seventh street. Terven testifies that he found the plaintiff lying beside the ditch on the north side of the roadway about twelve feet from the street car tracks, lying sprawled upon the street, face downward; that plaintiff was conscious when he picked him up.

It appears from plaintiff’s testimony that on the day of the accident he discovered no objective injury to his person. On the next day be found a bruise on the lower part of his left leg below the knee, and that about three days after the accident he felt a little soreness at the back of his head when he was combing his hair, though the skin at the back of the head was never broken. He did not know whether his head struck against something when he fell off the car, hut that the finding of this slight soreness caused him to believe that he struck his head against something, perhaps some part of the car, and that he then lost consciousness but regained it as soon as Terven picked him up.

The expert testimony in the case tends strongly to show that immediately after the accident the plaintiff was afflicted with multiple sclerosis, and that the principal question of fact toward which the evidence was directed on the trial was whether the ailment complained of was the proximate result of the injury to the plaintiff caused by the defendant’s alleged negligence, or whether it existed before the accident.

The day after the accident, the plaintiff went to a doctor in a free dispensary and told her that he had a sore leg and requested treatment. The doctor examined his leg and gave him a salve, and stated to him that she thought the bone was fractured, and, on the advice of the doctor, he went to the Post Graduate Hospital to have an X-ray photograph taken of his leg to see if there was a fracture, but an X-ray was not used. At the hospital he was turned over to Dr. Cubbins in its surgical department by whom he was examined. Dr. Cubbins testified that when the plaintiff came in he noticed he was rather unsteady; that he found upon examination of the injury that it was not a distinct injury; it was not severe enough to cause him to walk in the hesitating manner in which he was walking; that there was nothing serious about the bruise or injury upon the leg. The doctor noticed a certain quivering motion in plaintiff’s eyes, and a tremor of his hands, and had him walk and observed that he walked with that peculiar stiff-legged gait which made him very unsteady, and then diagnosed his case as some diffused nervous trouble and took him to Dr. Grinker who was a nerve specialist and had charge of the treatment of nervous diseases at the hospital. Dr. Cubbins observed that the nervous disturbance of the plaintiff was of an unusual type and that his real trouble was of that character rather than the bruise on his leg; and Dr. Cubbins’ tentative diagnosis of the trouble was multiple sclerosis, and that a very distinct change was going on in his nervous system.

Dr. Grinker first saw the plaintiff two or three weeks after the injury and found the mark on his leg over the shin bone was simply 9. discoloration; it was not a deep mark. “There was no injury,” he testifies, “to the bone. There was a discoloration of the skin, extending two or three inches down, showing that there had been something that had gotten well, that is all. I didn’t see it, it was all over with at that time.” It was somewhere about the middle of November, 1909, that Dr. Grinker first examined the plaintiff, and in some detail testifies to the symptoms which he found, and that he diagnosed the case as multiple sclerosis. Dr. Grinker had also very carefully examined the plaintiff within a week or ten days of the time of the trial of the cause. He testifies that the symptoms he found were substantially the same as those he found originally, except the exaggerated motions and that they were more intense.

The conclusion to be drawn from the evidence in the case is very clear. The actual physical injury sustained by the plaintiff as a result of the negligence of the defendant, if the defendant was negligent, was very light and inconsequential, and further that the early diagnosis of the plaintiff’s condition after the accident clearly pointed to the disease of multiple sclerosis. According to the testimony, this disease is not as common in this country as in Europe, and may be said to be not a common disease at all in this country. It is a disease, according to the testimony, of especially slow growth, and yet the manifestations may appear suddenly. Dr. Grinker testified that “multiple sclerosis, really means a number of places in the nervous system that are in the form of scars here and there just like the scars on the skin that is cut. It is the tissue or the cells of the body that come in to take the place of what is destroyed,—scars in the nervous system, in the brain, in the spinal cord, in the nerves. It is a disease which when it affects an individual causes symptoms or signs of the disease depending upon the very spot that has been destroyed by the scar which has taken the place of the nerves.' * * * The scar is an attempt of nature to fill up spaces that are lost. Where tissues are destroyed, the scar fills up the gap. The same thing occurs in the skin as does in the nervous system. Where the real nerves do the work and are not there any more the space is taken up by the tissue which is called giamatoses or scar tissue or sclerotic patches, and that tissue is dead forever. There is no work done by those nerves that are destroyed.” The testimony of all the physicians in the case shows that it is a chronic disease, and comes on slowly from the very nature of the changes that take placé in the nervous system. The fair inference to be drawn from the facts and circumstances shown in the evidence and from the testimony of the physicians, is that the disease from which the plaintiff was suffering when he first sought medical advice ,and was first examined after the accident, could not have resulted from the traumatism which he suffered by the alleged accident. Indeed, it is doubtful, from the evidence, that the disease is caused by traumatism, although there is some evidence that it may be caused by severe traumatism, but there is little doubt, if any, that it could not have been caused by the very slight bruises which the plaintiff suffered at the time of the accident.

In support of the above conclusion there is the testimony of fourteen witnesses who knew and observed the plaintiff for many years prior to the accident; that his gait had been, for at least two years prior to the time of the accident, of the character described by the physicians. The testimony of those witnesses showed that the plaintiff walked with a marked and peculiar lameness, a halting, shuffling, or spastic gait, and that he had a peculiarity of speech, and a peculiar tremor of the hands. Some of the witnesses described his gait as a dragging of his feet, or as if something was ailing in his knees, as- an irregular walk, a sort of shuffling. One witness says he was always dragging his feet. The plaintiff testified that he went to the County hospital after he had been examined at the Post Graduate Hospital, and was there examined by a physician. Dr. Kara testified that he was in the County hospital from December, 1910, as an interne, and that it was his duty to examine patients who applied for assistance at the County hospital. When a patient came there, it was his duty to inquire in detail as to various symptoms and make a record of his condition and the history of the case up to that time; that he examined the plaintiff when he appeared at the County hospital and noted the results of his examination upon a record sheet, which was produced at the trial, and he identified the record shown him as being in his handwriting*. Dr. Kara testified to the symptoms of multiple sclerosis and described to some extent the disease and noted the conditions and symptoms testified to by the other physicians, and, among other things, pointed out his statement in the record which says: “Claims that when walking his feet drag. Noticed this trouble in walking about two years ago.” This shows that the plaintiff himself knew and stated that he had the same symptoms two years before the accident.

The evidence, taken altogether, strongly tends to prove that the plaintiff was afflicted with the disease for two years prior to the alleged accident in question, and that the manifestations of the disease were so clear that people who knew him or came in contact with him, observed and marked the peculiar symptoms which the plaintiff manifested.

From the expert medical testimony in the case and from the testimony of observers of plaintiff during two or more years prior to the date of the alleged accident, it seems impossible to form the conclusion that plaintiff’s disorder was the proximate result of the injury to him caused by the defendant’s negligence. The evidence proves by a manifest and decisive preponderance that the ailments complained of by the plaintiff existed prior to the alleged cause of the injury, and that the injury received by the plaintiff at the time of the accident was not sufficient to produce the ailments shown, and that the disease could not have manifested itself so quickly after the alleged' injury if caused thereby.

The verdict is unsatisfactory. If plaintiff’s ailments were the proximate result of the injury, the verdict is altogether too small; if the ailments were not the proximate result of the injury, it is manifestly too large.

The court erred in its rulings on evidence. On the direct examination of Dr. Cubbins, the witness testified that there was no question in his mind but that some “gross change” was going on in plaintiff’s nervous system at the time of his examination. Defendant’s counsel then asked:

“Q. And from your examinations of the conditions in which you found him, what would you say as to the length of time it had existed? From your judgment about it as to whether it was of brief origin or whether it was chronic?”

An objection was sustained to this question on the ground that the witness was not qualified to answer. We think this was an erroneous ruling. The witness was not disqualified because he was making a specialty of surgery.

When Dr. Kuh was on the stand, his direct examination had not referred in any way to the literature of medical writers on the question whether falls or other forms of trauma were regarded as causes of multiple sclerosis. On cross-examination the court permitted the plaintiff to interrogate Dr. Kuh at length on the standing of various medical writers and as to the contents of some of their writings exhibited to the court and shown to the witness. We think this was improper and erroneous. Weyh v. Chicago City Ry. Co., 148 Ill. App. 165; Chicago City Ry. Co. v. Douglas, 104 Ill. App. 41; Union Pac. Ry. Co. v. Yates, 25 C. C. A. 103, 79 Fed. 584.

The court should have sustained a motion for a new trial. The judgment is reversed and the cause is remanded. •

Beversed and remanded.


author: Mr. Justice F. A. Smith

text:
    The People of the State of Illinois, Defendant in Error, v. Joseph Potempa, Plaintiff in Error.
    Gen. No. 18,784.

      Information—error in grammar. An information will not be held bad for a mere error in ’grammar.
    Error to the Municipal - Court of Chicago; the Hon. Isadore H. Himes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed June 24, 1913.
    Louis Greenberg, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The question raised by counsel for plaintiff in error is one of grammar, not of law. The information is sufficient, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Barnes

text:
    Jacob Malinovich and Esther Malinovich, Defendants in Error, v. George J. Cooke Company, Plaintiff in Error.
    Gen. No. 17,535.
    Landlord and tenant—liability for rent. In an action to recover rent under a written lease which provides that the lessee shall be exempt from liability for rent if at any time during the term a saloon license cannot be obtained for the. premises, it is proper to direct a verdict for plaintiff where the evidence does not support the defense that a license could not be obtained.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.
    Harry A. Daugherty, for plaintiff in error.
    William A. Cunnea and Joseph P. Rafferty, for defendants in error.
   Mr. Justice Barnes

delivered the opinion of the court.

The only alleged error relied on in the brief and argument of plaintiff in error, defendant below, is that the court directed a verdict for the plaintiffs at the close of all the evidence. The suit was brought to recover rent of plaintiff in error as lessee under a written lease. The lessee was exempt from liability for rent if at any time during the term of the lease, as stated therein, a “city of Chicago saloon license cannot be obtained for these premises.” It is contended that there was testimony tending to support the defense that one could not be obtained. There was evidence tending to show certain futile efforts to obtain one. But such evidence was unavailing in view of positive evidence by defendant’s own witness and agent to the very contrary of its contention. As no other question is involved, the judgment is affirmed.

Affirmed.


text:
    Elizabeth Hitzelberger, Defendant in Error, v. Samuel Kanter, Plaintiff in Error.
    Gen. No. 17,610.
    1. Assault and battery—where special finding is inconsistent with verdict. In an action for damages for assault and battery, where it is shown that plaintiff, a child nine years old, was picking a piece of colored glass out of a window of defendant’s saloon and that defendant in running after her stumbled and fell over her, the special finding of the jury that defendant did not intentionally hurt plaintiff is inconsistent with a verdict for plaintiff.
    2. Arrest—one committing a misdemeanor. Where plaintiff, a child nine years old, was committing a misdemeanor in picking a piece of glass out of defendant’s window, he had a right to arrest her without a warrant.
    3. Assault and battery—when intent is material. In an action for assault and battery, where the party inflicting the injury is no wrongdoer but is exercising a right or doing a lawful act and injury results to another, then the intent becomes material.
    Error to the Municipal Court of Chicago; the Hon. John D. Tubnbaugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed June 24, 1913.
    Lewis F. Jacobsom, for plaintiff in error.
    Boltom, Moriarty & Williams, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

This writ of error brings up for review a judgment for damages for an alleged assault and battery.

Plaintiff, a child nine years old, was picking a piece of colored glass out of a window of defendant’s saloon, and, when he approached her, she dropped it and ran away. He pursued her, and as he did so she fell and he stumbled over her. She testified that he kicked her. No other witness so testified. Two observers of the incident, plaintiff’s witnesses, testified that she fell, one saying that he did not kick her and the other saying that she did not see him kick her. The child was bruised about her face by the fall and had a discolored spot on her body but not on her leg, where she claimed she was kicked. After she fell he picked her up. The little girl said he “'jerked her up.” Two other witnesses, children, used the same phrase; one explained it by saying that “he pulled her up” and the other by saying that “he reached down and picked her up on her feet. ’ ’ Defendant denied either that he kicked her or “jerked” her up.

The evidence tending to establish an assault was unsatisfactory. It rested mainly on the testimony of a child nine years old, given more than a year after the occurrence. In fact, the weight of the evidence was the other way.

The jury made a special finding. To the interrogatory, “Do you find from the preponderance or greater weight of the evidence that the defendant wilfully or intentionally kicked or hurt the plaintiff 1 ’ ’ they answered, “No.”

The little girl was committing a misdemeanor in the presence of defendant which gave him a right to arrest her without a warrant. Section 4, div. VI, Criminal Code. In trying to apprehend her, he was in the exercise of a legal right, and it does not appear from the evidence that he did so with a design to injure her. If he kicked or hurt her under such circumstances, the finding of the jury, that it was unintentional, made the special finding irreconcilable with the general verdict unless they believed he “jerked” her. As to such finding the case is not different from Paxton v. Boyer, .67 Ill. 132. It was there held that where the party inflicting the injury is no wrongdoer, but is exercising a right or doing a lawful act, and injury results to another, then the intent becomes material. If, therefore, plaintiff relied on the alleged kick alone as constituting assault then the jury found the defendant was not in fault for the injuries suffered.

No special finding was requested as to whether the defendant “jerked” the plaintiff, but, as before stated, the evidence relating thereto was not sufficient to sustain a verdict. The evidence was insufficient to warrant a recovery and the judgment will he reversed.

Reversed.


text:
    J. E. Smedley, Defendant in Error, v. American Engineering & Construction Company, Plaintiff in Error.
    Gen. No. 17,679.
    1. Municipal court—stenographic report. In an action of the fourth class in the municipal court, where no stenographic report or bill of exceptions was signed or filed within thirty days after judgment was rendered as required by the Municipal Court Act, sec. 23, par. 6, and no extension of time was granted within that period, the court lost jurisdiction to sign or enter an order with reference thereto.
    2. Municipal court—stenographic report. Where the municipal court loses jurisdiction because no stenographic report or “bill of exceptions” is signed or filed within thirty days after judgment was rendered as required by Municipal Court Act. see. 23, par. 6, the parties cannot restore the jurisdiction of the court nor waive the statute by a stipulation extending the time to file the report.
    Error to the Municipal Court of Chicago; the Hon. John E>. Turn* baugh, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed June 24, 1913.

      F. J. Canty and J. C. M. Clow, for plaintiff in error.
    Dwight D. Boot, for defendant in error.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff in error raises only one question, namely, whether the plaintiff below proved an “account stated,” but this and all other errors assigned must rest upon the proceedings had at the trial. The transcript of them shows that" the so-called “bill of exceptions” was not signed by the trial judge or filed in the timé required by law.

It was a case of the fourth class. The judgment was rendered May 23, 1911. No stenographic report or bill of exceptions, as it is called in the record, was signed or filed within thirty days thereafter as required to be done under paragraph 6 of section 23 of the Municipal Court Act, nor was any extension of time for filing the same granted by the court within that period; hence the court lost jurisdiction to sign or enter an order thereafter with reference thereto. Lassers v. North-German Steamship Co., 244 Ill. 570.

An order was entered June 23rd, thirty-one days thereafter upon a stipulation -of the parties, extending the time to file said “bill of exceptions.” But the jurisdiction of the court could not be restored nor the provisions of the statute waived by stipulation. Wurlitzer Co. v. Dickinson, 247 Ill. 27; Haines v. Knowlton Danderine Co., 248 Ill. 259.

The motion of defendant in error to strike the transcript of the proceedings from the files will be granted, and there being no record of what we are asked to consider, the judgment is affirmed.

Affirmed: