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    James K. Sebree, Appellee, v. Board of Education of the City of Chicago, Appellant.
    Gen. No. 17,562.
    1. Landloed and tenant — how appraisal cannot be impeached. An appraisal made pursuant to the terms of a lease cannot -be impeached in the absence of fraud by the testimony of a party participating in making such appraisal.
    2. Landlord and tenant — what does not disqualify appraiser. The fact that an appraiser had previously acted in making an appraisement of the same property under the same lease, does not disqualify him from acting in the making of a second appraisal.
    3. Landlord and tenant — what does not vitiate appraisal. Held, under the circumstances of this case, the fact that the owner of the fee had paid the appraisers for their services In making the appraisal in question, as well as appraisals with respect to other property, did not vitiate such appraisal.
    4. Landlord and tenant — what does not vitiate appraisal. The fact that the appraisers whose appraisement was attacked were appointed or arranged for by one act of the owner of the fee to establish values upon a number of.pieces of property instead of being appointed and arranged for specifically and by one act to pass upon the value of the property involved, does not vitiate the appraisement made.

      5. Landlord and tenant — when provision as to appraisal not mandatory. Held, that a provision in a lease by which the appraisers were at liberty in forming their judgment of the value of the land without including the value of the improvements thereon, to take into consideration the improvements on such land, was permissive rather than mandatory.
    6. Landlord and tenant — what essential to set aside appraisal. In order to set aside an appraisal made pursuant to the terms of a lease, strong reasons must be shown.
    7. Evidence — when testimony given in similar action incompetent. Testimony given by a witness in a similar action where the parties are different, is incompetent.
    Appeal from the Circuit Court of Cook county; the Hon.' Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Cburt at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed November 28, 1911.
    Frank Hamlin and Angus Rot Shannon, for appellant.
    Musgrave, Oppenheim & Lee, for appellee; John H. S. Lee, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

In this case a hill was filed by appellee for the purpose of having set aside'by decree of court an appraisal of certain property theretofore made as a basis for fixing the annual rental to be paid by the appellee to the appellant in pursuance of a certain lease and supplemental lease entered into by the appellant, as lessor, and a lessee to whose right the appellee had succeeded by assignment prior to the making of the appraisement. On account of certain alleged irregularities in the making of the appraisement, as found by the chancellor from the evidence before him, the appraisement was by the' decree set aside. The value of the property was found by the decree to be $288,000 instead of $384,000 as fixed by appraisers, and the appellee was ordered to pay 6% thereon or $17,280 per year as the rental of the property under the terms of the lease and supplemental lease.

Errors are assigned by the appellant, and.crossTer-rors by the appellee, the former contending that the appraisement made should not have been set aside, and the appellee insisting that as the appraisement was set aside by the court, under the terms of the lease there was no new appraisement, and that the appraisement made ten years before, namely in 1895, should govern. By the appraisement of 1895 the value of the property was fixed at the sum of $190,000, thus fixing the annual rental at $11,400.

The property in question is lmown as lots 18 and 19 in block 142 in School Section Addition to the City of Chicago, and is part of the property upon which the Saratoga Hotel is situated. On the opposite side of the alley from these two lots are lots 20 and 21, also owned by the appellant. A valuation was placed by the appraisers upon these lots of the same amount as upon lots 18 and 19, and that appraisal is the subject of another appeal in this court in case No. 17563, in which the Board of Education of the City of Chicago is appellant, and Ava W. Farwell and others are ap-pellees. The two cases were heard together in the court below and similar decrees entered, the value of the properties involved in the two cases being fixed by the decrees of the court at the same amount in each case. The cases were consolidated in this court for argument, and were argued before and considered by us at the same time.

From the evidence as disclosed by the record, it appears that the Board of Education on or about the 8th day of May, 1880, leased to Francis B. Peabody lots 18 and 19 of block 142 for the period of fifty years. The lease provided for the payment of the sum of $2,736 per year as rent for the said premises for the first five years; afterft that time an appraisal to be made by “three discreet male residents of the City of Chicago, who are free holders,” to he appointed by the Board of Education. These three appraisers were to fix the cash value of the premises. The appraisement was to he signed and certified within three months prior to the 8th day of May, 1885, and the yearly rental for the next five years from May 8, 1885, was to he a sum equal to 6% of the valuation then and thereafter to be made. It was further provided by the lease that a re-appraisal should he made every five years by appraisers to be appointed by the Board of Education in like manner, the rental to be based on the same percentage. Under the terms of the lease personal notice of the appointment of appraisers was waived, and the lessee estopped from objecting in any way to their appointment unless such objection was made in writing to the Board of Education within thirty days after the appointment. The lessee was also estopped from objecting in any manner to the action of the appraisers unless such objection was made in writing and filed with the clerk of the Board of Education within thirty days after the filing of the valuation in the office of the clerk of the Board of Education. The lease provided that the rent should be payable quarterly in advance, and that the lessee should pay all water rates, taxes, duties and assessments. The lease permitted assignment to be made without the consent of the lessor, provided all rents, taxes, assessments and other charges were fully paid and discharged, and the lessor notified in writing of the assignment. An as-signee was to be subject to the same terms and conditions as the lessee, and it was provided that none of the covenants or agreements of the lease should be waived or forfeited by the act of any collector, employe or agent of the Board of Education, nor in any manner, except by the action of the Board of Education, at the regular meeting thereof. The lease further provided that in case the Board of Education should neglect or omit to appoint appraisers at any time as required by the provisions of the lease, then the rents reserved should be the same for the succeeding five years as for the preceding five year period.

It appears that an appraisal was had in February, 1885, which fixed the value of the property at $102,000. This appraisal being unsatisfactory to Francis B. Peabody, the lessee, he filed a bill of complaint for the purpose of having the appraisal set aside and the true cash value of the premises determined by the court. This resulted in a compromise between the litigants and the making of the supplemental lease heretofore referred to. The supplemental lease after providing for an extension of the lease to May 8, 1985, fixed the annual ground rent for the period of ten years from May 8,1885, at 6% of the appraisal made in that year; provided for a dismissal of the litigation, and for subsequent appraisals during each ten years of the life of the contract; that-at no time should the fixed valuation of the property be less than the sum of $81,600, being 80% of the valuation as found by the appraisal of 1885, until the year 1915, when the provision with respect to the minimum valuation clause should be abrogated. Other provisions of the supplemental lease are as follows:

“That in lieu of the method of appointing appraisers, for the purpose of ascertaining, determining and fixing the amount of rent to be paid for said demised land, as provided in and by the terms of said lease, and this supplement thereto, appraisers shall be appointed as follows:

The Board of Education of the City of Chicago, any judge holding the Circuit Court of the United States in and for the Northern District of Illinois, for the time being, and the Judge of the Probate Court of Cook County, Illinois, or the successor of said Court having probate jurisdiction, for the time being, shall each appoint one discreet male resident of the City of Chicago, not interested as lessee or mortgagee of school property in said city, to determine, under oath first duly taken, the true cash value of said demised land at the time of such appraisal, exclusive of the improvements thereon. ■

The person appointed by the Board of Education shall be the chairman of said appraisers, and shall call their meetings and preside thereat. Any two of said appraisers shall have power to make the appraisement.

In case the person appointed by the Board of Education shall, before an appraise'ment is made, die, resign, or neglect or refuse to act as an appraiser, the Board of Education may appoint another person in his place and stead as appraiser, with the same .power and authority as if he had been appointed in the first instance.

In case either of the persons, his successor or successors, appointed by any judge holding said Circuit Court of the United States, or by the judge of the Probate Court of Cook County, or the successor of said court having probate jurisdiction, shall die, or resign before an appraisement is made; and in case either of said persons, or the successor or successors of them or either of them, shall neglect, omit or refuse to act as appraiser, or to make or report an appraisement in accordance with the purport and intention of said lease and this supplement thereto, the Board of Education, upon evidence satisfactory to itself, may remove such person or persons for such neglect, omission or refusal to act as appraiser, or to make or report an ap-praisement, and the vacancy or vacancies so occurring either by death, resignation or removal, shall, on the request of either of the parties hereto, be filed within ten days after such request by the appointment of another person by the judge whose appointee has died or resigned or has been removed, and the person so appointed to fill such vacancy shall in every case have the same power and authority to make said appraisement as if he had been appointed an appraiser in the first instance.

If for any cause, the Judge of the Probate Court of Cook County shall be unwilling to exercise the power to appoint an appraiser under the terms of this indenture, the Judge of the County Court of Cook County shall act in the place and stead of said Judge of the Probate Court.

I£ is hereby declared by the parties hereto, that it is not the purpose of this instrument that the persons appointed as appraisers hereunder, or either of them, shall be the representatives of either of the parties hereto.

Fifth: That, notwithstanding anything in said lease, or in this supplement thereto contained, the persons who shall at any time be appointed thereunder to fix and determine the value of the leased land, for the purpose of ascertaining and fixing the amount of rent to be paid therefor, shall at all times, and under all circumstances, be held to be appraisers and not arbitrators, and shall not be bound to give notice of their meetings or proceedings to the parties hereto, except as hereinafter expressly provided:

(A) Upon their appointment, the appraisers shall cause a notice of the fact to be sent by mail, addressed to the lessee, his heirs, executors, administrators, 'successors, or assigns, at the City of Chicago, Illinois, or at such address in the City of Chicago, Cook County, Illinois, as he, they or it may have previously furnished to the lessor. All notices and papers which may be served on the lessee by the party of the first part, or by such appraisers, in all matters and proceedings concerning the subject-matter . of the appraisement, whether before pending, or subsequent thereto, shall be sufficiently served, if sent by mail, addressed to the lessee, at the City of Chicago, Illinois, if no other address shall have been furnished by said lessee, or if mailed to whatever address in 'said City of Chicago such lessee may have furnished as above provided.

(B) Within twenty (20) days after the mailing of said notice of appointment of appraisers, the lessee may, if he so desire, file with the appraisers, a written statement or argument for their information, and shall, at the same time furnish a copy of the same to the lessors.

(C) "Witliin twenty days after the receipt of such statement or argument by the lessor, it may cause to he filed with the appraisers a statement or argument in writing, a copy of which shall he furnished to the lessee.

(D) The lessee may file a reply to the statement or argument of the lessor within ten (10) days after receiving such copy.

(E) The sole purpose of the four preceding provisions is to allow the parties to present to the appraisers, information within their possession, and their views concerning the value of the demised land. But it is expressly understood and agreed that the appraisers shall not be concluded, in any event by the statement so made, but shall be at liberty to seek or obtain such information as they deem pertinent, either with or without notice to the parties and to make their appraisals upon all facts within their knowledge, notwithstanding anything contained in the said written statements above provided for.

Sixth: That, notwithstanding anything in said lease contained, the appraisers shall be at liberty in forming their judgment of the value of the land without including the value of the improvements thereon, to take into consideration, if and so far as they deem it pertinent to do so, the improvements on such land, and (the character, condition, value, cost, rental, expenses, and other particulars thereof, and any other facts or information, from whatever source, bearing upon the question of the actual value of said land; and it shall be the duty of the lessee to furnish the appraisers promptly, on request, a statement showing the rental receipts and disbursements on account of said improvements for five years, as near as may be, next preceding the time of the appraisement.

Seventh: In case of vacancies occurring among the appraisers, and delays in making or reporting of such appraisement shall arise in consequence thereof or in consequence of the appointment of other persons to fill such vacancy or vacancies, and the making and reporting of such appraisement shall be thereby delayed beyond the eighth day of May, in any year wherein the appraisement is to be made according to the terms of said lease, and -of this supplement thereto, it is provided that said appraisers may make and report such appraisement after said eighth day of May, and prior to the first day of July then next ensuing.

Eighth: And it is further understood and agreed by and between the parties hereto that should, there be for any cause a failure in the making of an appraisement in any year or years wherein an appraisement should be made under and according to the terms of said lease and this supplement thereto, the amount of annual rent to be paid by the party of the second part for the ensuing period of ten years shall not be rendered uncertain or undetermined by the reason of such failure in making an appraisement, but the sum to be paid as annual rental for and during the period of ten years from the eighth day of May in any year, when an ap-praisement should have been made, and failed to be made, shall be the same as that paid or reserved as rent during the last preceding period of ten yeart, prior to said eighth day of May. And no covenant in said lease or in this supplement thereto shall in any way be affected, waived or impaired by the failure in the making of such appraisements or either of them.

Ninth: The right reserved by said lease to said lessor to forfeit said lease for any cause, shall not be exercised until after sixty days’ notice to the lessee.

Tenth: That the covenants and agreements herein contained shall bind the respective successors, heirs, representatives, administrators, and assigns of said parties, and except as hereinbefore expressly changed or qualified, said lease shall stand and be in full force and effect, according to its terms, as originally executed and delivered.”

It seems that in 1905 there were, including the lease in question, about twenty-three leases between the Board of Education and sundry lessees or assignees of lessees, upon which appraisals were required in order to conform to the provisions of the various indentures. On or about February of that year John McLaren, William D. Kerfoot and Arba N. Waterman were appointed sncb appraisers. John McLaren was the appraiser selected by the Board of Education, William D. Kerfoot by a Judge of tlie United States Circuit Court at Chicago, and Arba N. Waterman by the Judge of the Probate Court of Cook County. On May 24,1905, the three appraisers submitted their appraisal in writing covering the various descriptions of property, including said lots 18 and 19.

In the bill filed in the case now before us it was represented to the court that the appraisal should be set aside because under the terms of the supplemental lease the duty of the appraisers provided for in said lease was to determine the true cash value of the demised land at the time of such appraisal, without taking into consideration the improvements thereon; that the appraisers, wholly disregarding their plain duty in that regard, did take into consideration the improvements upon the land; that the appraisers also took into consideration the rental value of other properties in the City of Chicago wholly different in character to said lots 18 and 19; that of the premises so taken into consideration by them, certain of said premises were interests in fee, wholly unburdened by any leasehold and not partaking in any way of the leasehold character of said lots 18 and 19; that such premises so taken into consideration were held under leases for a period of 99 years or more, without revaluation, and were improved with modern, fire-proof buildings, twelve stories and more in height, and wholly unlike and dissimilar to the improvements on lots 18 and 19; and that they therefore formed no criterion of the true cash value of said lots 18 and 19; that the true cash value of lots 18 and 19 did not and does not exceed the sum of $190,000; that the Board of Education, in the year 1895, without complainant’s knowledge or consent, inaugurated the custom of paying the appraisers of school fund property large sums of money for their services as appraisers, when rendered to its satisfaction, and has acted in accordance with said custom since that time; that Mr. McLaren was paid in the year 1895 the sum of $1,000 for his services as appraiser of school fund property; that the said Messrs. McLaren, Kerfoot and Waterman in the year 1905 knew that the School Board would pay them liberally for their services if they performed them to its satisfaction; that the complainant had no knowledge thereof; that after the appraisal was made and before the bringing of the suit, and without complainant’s knowledge or consent, the School Board paid to each of the said Messrs. McLaren, Kerfoot and Waterman the sum of $2,500 for their services, and also paid to one Aaron M. McKay $1,750 for services rendered by him, without complainant’s knowledge or consent; that this payment was made to McKay for services rendered by him in collecting information which the complainant alleges to be misleading; that two of the appraisers, namely, McLaren and Kerfoot, while engaged in making their valuation of said lots 18 and 19, were constantly and without complainant’s knowledge or consent in consultation respecting such valuation with the attorneys, officers and agents of the Board of Education, and with persons who are interested in the matter of obtaining high valuation of property in the vicinity of lots 18 and 19 for the purpose of rental and sale; that on such occasions complainant was not present, either in person or by representatives, and that the discussions held and the information furnished influenced the appraisers prejudicially to the rights of the complainant.

At the trial in the court below the charges of the bill were attempted to be proven by the records of the Board of Education and by the testimony of Mr. Mc-Laren given at the trial, and the testimony of Mr. Ker-foot taken in the case of Bosenthal vs. The Board of Education of the City of Chicago, and read into the record in this case. The testimony of both, these witnesses was objected to by the appellant on the ground of incompetency, in that an appraiser is never a competent witness to impeach his own appraisement. The testimony of Mr. Kerfoot was objected to on the further ground that it was taken in a case in which the parties were not the same. It apparently was admitted into the record on the theory that the case was of a similar character, and because the complainant, after due diligence, was unable to produce Mr. Kerfoot as his witness. On the trial it was shown that Mr. McLaren had formerly been a member of the School Board, and that he made the appraisal on this property with other property in the year 1895, and that he was paid by the School Board for .his services. It further appears that each of the three appraisers in the case which we are now considering was paid by appellant $2,500 after the making of the appraisal, which, as heretofore stated, comprised about twenty-three descriptions of property. There is also evidence that the appraisers were asked to make and did make an appraisal upon property at Twentieth street and Went-worth avenue, which the Board at the time contemplated leasing to the N. K. Fairbank Company; and also the property belonging to the Board and leased to George B. Weise; that they were not paid by the Board for making the valuations on the two properties last referred to, unless the sum of $2,500 heretofore referred to as having been paid to each of them included payment for services in respect to these two pieces of property also.

The appointment of Mr. McLaren as one of the appraisers came about in this way: The Committee on Buildings and Grounds of the Board of Education, on February 1, 1905, submitted to the Board a report in which was recited the provision of the supplemental lease heretofore referred to, as to the appointment of the three appraisers — one by the Board of Education, one by tbe Judge of tbe United States Circuit Court, and one by tbe Judge of tbe Probate Court of Cook County; and then follows this language:

“Your committee, therefore, recommends that the Board of Education of tbe City of Chicago appoint John McLaren as its appraiser to fix the value of such school fund properties and authorize and empower the President of the Board of Education to request the Judge of the Circuit Court of the United States in and for the Northern District of Illinois, and the Judge of the Probáte Court of Cook County, Illinois, to each select an appraiser for the purpose of fixing tbe value of such school fund properties, to the end that the rental value of said properties may be fixed and determined for the period commencing May 8, A. D. 1905, and ending May 7, A. D. 1915.”

On February 8, 1905, Mr. McLaren in accepting tbe appointment, in a letter addressed to the President of the Board of Education, used this language:

“Yours of yesterday with copy of action of Board of Education appointing me appraiser for tbe Board of Education to act with appraisers to be yet appointed in the appraisement of school land, was duly received.

I accept tbe appointment. As soon as I am notified of tbe appointment of tbe other two appraisers I will organize tbe commission and proceed to work.”

At the threshold of the case it is necessary for us to consider whether or not the learned chancellor in the court below was warranted by the evidence in setting aside tbe appraisal. In considering this question it should be determined first whether tbe testimony of Mr. McLaren and Mr, Kerfoot was competent. There is considerable discussion in tbe briefs as to whether or not there is a distinction between an appraisal and an arbitration. We think, however, that in passing upon the point now before us there is enough similarity so that the rule which would apply in the case of an arbitrator should apply equally in that of an appraiser. In Stone v. Atwood et al., 28 Ill. 30, the court had before it the question as to whether or not an arbitrator was a competent witness, and this language is used:

“Like a juror, lie cannot be called to impeach Ms award, but like Mm be can be called to sustain it.”

In the case of Pulliam v. Pensoneau, 33 Ill. 374, it was said:

“As a general rule, arbitrators will not be permitted to give evidence to impeach their award; to this rule there is an exception in cases of fraud” (citing authorities).

No fraud on the part of the appraisers is charged in this case, as we understand the record, briefs and arguments, and therefore the case does not come within the exception referred to in the foregoing excerpt. The rule so laid down in the early eases in Illinois seems to have been consistently adhered to, the last expression of it occurring in Stone v. Baldwin, 226 Ill. 338. Under the authority last mentioned, statements made by an appraiser after the appraisal is made may not be shown to impeach the appraisal, at least in the absence of fraud. We think, for the reason stated, that the testimony of Mr. McLaren and that' of Mr. Kerfoot was improperly received.

The testimony of Mr. Kerfoot was taken, as heretofore stated, in another case, and the learned chancellor expressed in his opinion great doubt as to its admissibility. Under recent decisions we think there is no question but that it was improperly received and should not be considered. London Guarantee & Accident Co. v. American Cereal Company, 251 Ill. 123.

While the appellee does not charge the three appraisers or any of them with fraud or improper motive, he insists that in this case ample misconduct “in a legal sense” is'shown to justify setting aside the appraisal; that the question should be not whether the improper acts complained of biased the appraisers, but whether they might have had that effect. It would seem that this was* the view of the matter taken by the chancellor, as appears from the fourth finding of fact in the decree, this finding being as follows:

“ (4) And the c'onrt further finds that while said appraisers had under advisement the appraisal of said lots, together with other lots held under similar leases from said defendant to other lessees, said appraisers were employed by the President of the Board of Education, who was a member of the Committee on Buildings and Grounds, and who was in that behalf acting under the instructions of the Committee on Buildings and Grounds, to perform on behalf of said Board of Education certain services not connected with their duties as such appraisers; that said employment was without the knowledge or consent of said complainant, and that said complainant did not know of said employment until a period more than thirty days after the filing by such appraisers of the said valuation or appraisement made by them in the office of the clerk of the said defendant, and that said employment was sufficient to invalidate their said appraisal of said lots eighteen and nineteen. That said appraisers in other respects failed and neglected to comply with the provisions of the said leases: and to perform their duties as appraisers, to such an extent as to invalidate said appraisement; that said John McLaren, before his appointment by said Board of Education in 1905, had been for many years identified with the administration of the affairs of the said Board of Education, as a member and president thereof, and as chairman of its Committee on Buildings and Grounds; that he had been appointed by the said Board of Education in the year 1895 to appraise the value of said lots in complainant’s bill described and also of other lots held on various other leases, and had received compensation solely from said Board of Education of Chicago for his services in making said appraisements, anlount-ing to Fifteen Hundred ($1,500) Dollars; that one or more of the said appraisers during all the time they were performing the duties of sa-id pretended appraisal in the year 1905, understood and expected that they would receive compensation from the said defendant, the Board of Education, for making said appraisement, and that said appraisers were each in fact paid by said defendant for their services as. such appraisers, which, said payment by said defendant amounted to the sum of two thousand five hundred ($2,500) dollars to each of the said appraisers, and was without the consent or prior knowledge of said complainant, and that said complainant did not know of said expectation on the part of the said appraisers or either of them, or of said payment, until a period more than thirty days after the filing’ by such appraisers of the said valuation or appraisement made by them in the office of the clerk of said defendant; that none of the said appraisers rendered any bill or statement of account for services to the said complainant, or to any of said other lessees, and did not expect to receive payment for their services from either complainant or the other lessees, or from any person or persons other than the defendant herein.”

As will appear from a reference to the supplemental lease, it was provided therein substantially that it was the purpose of said instrument that persons appointed as appraisers thereunder, or either of them, should not he the representatives of either of the parties thereto. It is insisted by the appellee that because in the report of the committee of the Board of Education recommending the appointment of Mr. McLaren, and in the reply of Mr. McLaren thereto, he is referred to as “its appraiser” and as “appraiser for the Board of Education,” it is demonstrated that it was the understanding both of the Board and Mr. McLaren that he was to act as the representative of the Board, which the appellee argues was in contravention of the provisions of the supplemental lease. We are unable to draw such conclusion from the language used. In our opinion, both the members of the Board of Education and Mr. McLaren meant by the language used to indicate that in compliance with the supplemental lease the Board of Education had selected Mr. McLaren to act with two others to be appointed by the judges, and that it would be his duty, having been so appointed by the Board of Education, to act as chairman of the appraisers, call their meetings and preside thereat. We think there is no reason for saying that by the language so used the Board can he said to have regarded Mr. McLaren as “its” representative to any greater degree than would be the other two appraisers when so appointed by the judges in accordance with the terms of the supplemental lease.

Appellee insists also that Mr. McLaren was disqualified because he acted as an appraiser of the same property in 1895, and was paid for so doing, which fact was not known to appellee. We do not agree in this contention. Carried to its logical conclusion it would mean that no man, however well qualified, could act as appraiser on more than one piece of property or on more than one occasion for the Board of Education. Inasmuch as it is not claimed that Mr. McLaren was influenced by the fact that he had been previously employed, but only that he might have been influenced, we do not think the appraisal should be set aside' on the ground stated. The same answer we think should be given to the argument of appellee that Mr. McLaren was disqualified because he had been formerly a member of the school board. Board of Education v. Frank, 64 Ill. App. 367.

The next complaint made is that the appraisers were each paid $2,500 by the appellant for making the appraisal of the property involved in this suit and other descriptions. In determining the force of this complaint the situation of the parties at the time the supplemental lease was entered into should be considered. IJp to that time the three appraisers had, under the lease, been appointed by the Board of Education and presumably paid for their services by the Board. In the supplemental lease no provision as to payment of the appraisers appears, but we understand it to be admitted by both sides that in such circumstances both parties would be liable to them for a fair amount. By the terms of the supplemental lease also the manner of the appointment of the appraisers was changed, and an opportunity was offered to the lessee to object if he chose to any appraiser selected, upon grounds that might seem to him to be sufficient. No objection in the present case was raised because, as appellee insists, he did not know until after the appraisal the facts upon which the complaints now made are founded.

By the terms of the supplemental lease, if no re-appraisal is made the rental for the following ten years is to- be based upon the terms of the previous appraisal. The appraisal of 1895, namely $190,000, as shown by the testimony of every witness in the case, is very much less than the present cash value of the property upon whatever basis that value is determined. It is not unnatural, therefore, that the appellee should use every effort to have the present appraisal set aside and endeavor to have the court by its decree determine that there was no proper re-appraisal in 1905, and that there is no power lodged in the court to make a re-appraisement; that as a consequence thereof the appraisement of 1895 must stand as a basis for the rents for the ten years period from 1905 to 1915.

It is difficult for us to see how there can be any assurance of a re-appraisement of the property under the terms of the supplemental lease, at any time, if the contention of the appellee is to prevail. The contention is, as we understand it, that the Board of Education prior to appointing an appraiser, may not agree to pay him any compensation for his services; indeed it must not even suggest that he may be paid for his services ; the appraisers appointed by the two judges likewise must not be told that they will be compensated for their services, and may not be paid therefor unless some prior agreement is made between the Board of Education and the lessee in respect to it. If the values of property in the central business section of the City of Chicago continue to enhance as they have in the past, we can very readily understand bow every lessee of school property wonld naturally be inclined to refuse to agree with the Board of Education upon the fees to be paid appraisers, so that perchance no new appraisement will be made, or if one is made it will be declared by the courts to be invalid on account of the fact that the appraisers are paid solely by the Board of Education. "We cannot think that this idea was in the contemplation of the parties at the time the supplemental lease was executed. Nor do we think that the offer to pay or the payment in the first instance of the appraisers by the Board of Education is, in the absence of fraud on the part of the appraisers, sufficient ground to set aside the appraisal.

It is claimed by the appellee that the appraisers in making their appraisal did not observe the requirements of section 6 of the supplemental lease as that section is construed by the appellee. Section 6 provides that notwithstanding other provisions of the lease, “the appraisers ‘shall be at liberty in forming their judgment of the value of the land without including the value of improvements thereon, to take into consideration, if and so far as they deem it pertinent to do so, the improvements on such land,” etc. As we understand the contention of appellee, this provision should in his opinion be construed as mandatory upon the appraisers, and not permissive, and that the ‘ ‘ cash value ’ ’ of the property without improvements is necessarily less because of what is regarded as an onerous condition of the lease, namely the clause providing for revaluation. It is perhaps unnecessary to discuss the question last raised, because the only evidence as to what the appraisers did take-into consideration is in the testimony of Mr. McLaren and Mr. Kerfoot, and this testimony we have already held to have been improperly received and not to be considered. In our opinion, however, section 6 of the supplemental lease should be treated as permissive and not as mandatory. The closing part of the section imposes upon the lessee the duty of furnishing to the appraisers promptly upon request a statement showing the rental receipts and disbursements on account of the improvements for five years, as near as may be, next preceding the time of the appraisement. If the property were improperly improved then of course these receipts would be less than if a building commensurate with the value of the land were upon it. Neither the lease nor the supplemental lease gives to the Board of Education any voice in determining the character of the improvements to be placed upon the property. That is a matter wholly for the lessee himself to determine. If by entering into a lease with burdensome conditions in it he has rendered it inadvisable or, as the attorneys for the appellee say in their argument, impossible, to construct upon the property a building suitable to the location and best calculated to bring the largest return, that fact, in our opinion, should have no weight with the appraisers in fixing the true “value of the land without including the value of the improvement thereon.”

The decree finds in terms that the valuation of $384,-000 fixed by the appraisers was excessive and far above the then true cash value of the demised land exclusive of improvements thereon at the time of the appraisal.

There appears in the record the testimony of six witnesses, three on behalf of appellant and three on behalf/of appellee. Thq valuation placed by one of the appellee’s witnesses was $216,000; the other two fixed the value at $288,000. Two of appellant’s witnesses placed the value at $488,000, and one at $504,000. It is significant that notwithstanding the burdensome conditions of the lease the appellee paid the sum of $85,-000 for an assignment of it to himself. The three appraisers who were supposed to have been selected on account of their knowledge of the subject placed the value at $384,000. This valuation we do not regard as excessive or as furnishing the slightest basis in connection with other competent evidence in the case for the conclusion or even the inference that the appraisers were prejudiced or biased or that they were influenced improperly in arriving at the conclusion which they reached. The wide difference in the valuation placed upon the property by the six witnesses at the hearing makes apparent the difficulty of ascertaining what the real value is. The parties by their contract have fixed a mode of determining this value, and the conclusion reached by the persons selected' for this purpose, whether they be treated as appraisers or arbitrators, should not be set aside except for very strong reasons which are plainly shown to exist. That is the doctrine, as we understand it, of Auditorium Association v. Fine Arts Building, 244 Ill. 532. In that case the court had before it an appraisal made of property on Michigan avenue, in Chicago. One of the appraisers, Mr. McCormick, was shown to be the owner of property near that in question, and it was insisted that‘he was thereby shown to be a prejudiced. and unfair appraiser because, as was asserted, the fact that he was an owner of nearby property would tend to prejudice him in favor of a higher valuation than was proper. It was also charged that Mr. McCormick did not confine himself to the testimony of the witnesses at the public hearings as the only source of information to aid him in arriving at a conclusion as to the value of the property. The court refused to set aside the appraisement, notwithstanding the fact that one of the three men appointed appraisers refused to join in it. In that case as in this, no charge of fraud was made against the appraisers. The court reaffirmed the doctrine of Pearson v. Sanderson, 128 Ill. 88, to the effect that rules governing appraisements are not the same as rules governing arbitrations, and held that an appraiser has the right to obtain information in any way he chooses.

The appraisement in the case before ns was signed by all three of the appraisers. No complaint is made of the conduct of Judge Waterman except the fact that he accepted remuneration from the Board of Education without the knowledge or consent of'the appel-lee.

Much emphasis was laid in the oral argument by the attorneys for the appellee upon the fact that the appraisers were appointed or arranged for by one act of the Board of Education to establish the values upon a large number of pieces of property, instead of being appointed or arranged for specifically and by one act of that Board to pass upon the value of the property involved in this proceeding. This objection is more formal than substantial. It is sufficient answer to say that in the objection or protest which was filed with the Board of Education no mention is made of it. In the report of the appraisers each piece of property is valued separately.

In our opinion the learned chancellor erred, for the reasons stated, in the conclusion he reached. The decree will therefore be reversed and the cause remanded with directions to the Circuit Court to dismiss the bill of complaint.

Reversed and remanded with directions.


source: Caselaw Access Project

author: Mr. Justice Clark

license: Public Domain

text:
    Ava W. Farwell et al., Appellees, v. Board of Education of the City of Chicago, Appellant.
    Gen. No. 17,563.
    This ease is controlled by the decision in Sebree v. Board of Education, ante, p. 276.
    Appeal from the Circuit Court of Cook county; the HoN. ThoMas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded with directions.
    Opinion filed November 28, 1911.
    Prank Hamlin and Angus Roy Shannon, for appellant.
    Musgrave, Oppenheim & Lee and Ashcrapt & Ash-crapt, for appellees; John H. S. Lee and E. M. Ash-crapt, of counsel.
   Mr. Justice Clark

delivered the opinion of the court.

This appeal is from a decree entered in the Circuit Court setting aside an appraisal theretofore made upon lots 20 and 21 in block 142 in School Section addition to the city of Chicago. The decree entered is substantially the same as that entered in a suit in which James K. Sebree was complainant, and the Board of Education of the city of Chicago defendant, (that case being the subject of appeal in this court and known as General Number 17562) except as to names of parties and descriptions of property. The two cases were considered together in the court below and also in this court.

For the reasons stated in the opinion filed this day in the case above referred to, General Number 17562, we think the decree was erroneous. (See Ante, p. 276.) It will therefore be reversed and the cause remanded with, directions to the Circuit Court to dismiss the hill for want of equity.

Reversed and remanded with directions.


author: Mr. Justice Smith

text:
    Simon T. Sutton, Administrator, Appellee, v. The Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 15,968.
    Contributory negligence — when attempting to cross railroad tracks constitutes. Meld, under the evidence, that the plaintiff’s intestate, in attempting to cross the railroad tracks upon which he was killed, was guilty of such contributory negligence as to bar a recovery.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of fact.
    Opinion filed November 28, 1911.
    Rehearing denied December 12, 1911.
    Hopkins, Peepers & Hopkins, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Joseph McFall was killed on the 6th day of January, 1908, by being struck by an eastbound express car of appellant, at the intersection of its tracks with Seventeenth avenue in the village of Maywood. On the morning of the accident, deceased and his son Joseph examined one of appellant’s time-tables, left their home in Maywood, walked to Madison street, and then west on Madison street to Seventeenth avenue. When they reached Seventeenth avenue they had a full view of appellant’s tracks for a mile to the west; and that view was practically unobstructed as they proceeded south on Seventeenth avenne to appellant’s passenger platform. There was no other train than the one in question anywhere in the vicinity to confuse or distract the attention of deceased or his son. "When they arrived at Seventeenth avenue they saw the train coming rapidly from the west, and started to run towards the station, a distance of about six hundred feet. The son said something to the deceased about the approaching train to the effect that it was running at the rate of fifty miles an hour, and as they ran toward the crossing of the right of way of appellant and Seventeenth avenue, the deceased was from six to ten feet behind the son. They ran rapidly in an effort to get across the eastbound track to the passenger platform to take the train.. As they got near to the track, the son fearing that they would not catch the train ran, ahead somewhat, and when the car was approaching at a high rate of speed, and only about two or three hundred feet away, the son dashed across the track in front of it to the platform. Seeing the imminent danger of his father he turned around and motioned to the deceased to stay where he was. "When the old gentleman got near the north or- westbound track of appellant, which runs just north of the eastbound track on-which the car was approaching, he stopped, hesitated for a moment, almost turned around, and then took hold of his hat, looked at the train, and again started to cross the track. He was unable to cross, and the train struck him. During the time that the deceased was approaching the track and while he stopped or hesitated, and almost turned around, the motorman of the train was continuously blowing his whistle.

The son testified that they did not know what train it was which was approaching, except that it was a train bound for Chicago. He testified that the accident happened at a quarter to ten o’clock, which was fully seven minutes before the local train would stop at Seventeenth avenue. Other witnesses placed the time at 9:40, twelve minutes or more before the local train was due.

Madison street, which parallels appellant’s tracks at the place of the accident, runs on west of Seventeenth avenue for about 1200 feet, and then turns to the south at right angles across appellant’s tracks, and then proceeds westerly, parallel with appellant’s tracks on the south side thereof. As the motorman approached the Madison street crossing, west of Seventeenth avenue, he was running his car, which weighed 45 tons and which was equipped with a whistle similar to a railroad whistle, at about 50 miles per hour. His car was on time. It was due to cross Seventeenth avenue at about 9:40 or 9:41, and the accident happened at just about that time. The motorman whistled for the Madison street crossing about 1200 feet away, and after crossing Madison street about 400 or 500 feet, he gave a crosssing whistle for Seventeenth avenue, consisting of two long and two short blasts. He saw deceased and his son approaching the crossing on a run, and after giving the crossing whistle and when about 300 feet west of Seventeenth avenue he commenced blowing a succession of six or seven sharp blasts or danger whistles. Deceased was then just about the north rail of the westbound track or about a rod north of the eastbound track on which the car was running. Deceased then stopped at this point, or hesitated for a moment, and then apparently thinking he could beat the car at the crossing, looked at his son, who was on the platform apparently motioning him to stay where he was, took hold of his hat and started to run across in front of the train.

When the deceased stopped north of the westbound track, the motorman, who had applied his brakes and brought his car down to 40 miles an hour 200 feet west of Seventeenth avenue, thinking that the deceased would stay in a place of safety after stopping, released his air in order to go forward in the usual way over the crossing. As the deceased started again the motorman shnt off his power, threw his emergency air-brake on, but in the short distance of four or five car lengths that remained between the car and the crossing, after the deceased started forward, it was impossible to stop the car in time to avoid the accident.

On the trial of the case appellant moved the court, at the close of the plaintiff’s evidence, and again at the close of all the evidence, to direct a verdict in favor of appellant. These motions were overruled by the court and exceptions were taken by appellant. The jury returned a verdict in favor of appellee, and judgment was entered on the verdict.

The errors relied upon by appellant for reversal of the judgment are that the court erred in refusing to instruct the jury to find the appellant not guilty, and other errors relating to rulings on instructions, which, in our view of the case, it is unnecessary for us to state or discuss.

The record and assignments of error raise the principal question in the case as to the liability of appellant for the death of the deceased; that is to say, as to whether the conduct of the deceased, at and prior to the accident, constituted such gross contributory negligence and such a lack of ordinary care for his own safety as prevents a recovery in this case by the plaintiff.

It is urged oh behalf of appellee that the deceased was completely exonerated from any imputation of contributory negligence because, in approaching and crossing the track in front of the car he acted under the belief that the car instead of being an express was a local car, and was coming to a stop at the station. It is urged that in reaching this conclusion, although it was a mistaken one, he was guilty of no negligence, but on the contrary acted as a reasonably prudent man would act under the circumstances.

We are unable, upon an examination of the evidence, to assent to this contention on the part of appellee. In onr opinion the evidence in the case shows that the deceased and his son had unobstructed view of the track from the time they reached Seventeenth avenue, some 500 or 600 feet north of the crossing in question, until they reached the right of way of appellant. There was nothing to interrupt their view of the approaching train during the time they were covering this distance along Seventeenth avenue. They saw the train approaching at a high rate of speed, and they were endeavoring to cross the track in front of it. It was an effort on the part of the deceased and his son to reach the crossing before the train arrived at the platform of the station, and in order to do so they realized that they would be compelled to run rapidly. The evidence is that they ran as fast as they could, and that the young man was able on account of his superior running ability to reach the crossing and pass over it in safety. The deceased was a short distance behind his son when the son passed over the tracks, and was warned by the blowing of the whistle, the knowledge that the train was approaching rapidly, and by the motion of his son’s hands, which he apparently saw, to stay where he was and not attempt to cross the track. Apparently the deceased gave heed to these warnings and stopped and partly turned around, according to the testimony of some of the witnesses, and then made up his mind to take the risk of attempting to cross the tracks before the rapidly approaching train.

There is no dispute as to any of the substantial facts of the case, and particularly as to the fact that the deceased stopped or hesitated just north of the westbound track in a place of safety, and then, in order to gain the platform before the car should pass, started again and ran directly in front of the train. The train was coming at a high rate of speed. There is no dispute that the motorman when he saw the deceased and his son approaching the track on a run, gave warning whistles, and when about 300 feet west of the crossing he threw off the power, put on the air brake, and blew a succession of six or seven sharp blasts or danger whistles. When the motorman saw that the deceased stopped and hesitated in a place of safety he, apparently thinking that the deceased intended to remain where he was, threw off his brakes and put on his power again. Then when he saw the deceased start forward in an attempt to cross ahead of the car he used every effort to bring his train to a stop before it reached the crossing and was unable to do so.

The evidence we think fails to show any negligence on the part of the motorman. It does on the other hand show gross contributory negligence on the part of the deceased.

The case is very similar to C. & N. W. Ry. Co. v. Weeks, 198 Ill. 551. It cannot be distinguished from that case, and we think the principles there announced are to be applied-here, and that the authorities cited in that case apply to this case.

In our opinion the principles to be applied in this case are clearly enunciated in L. S. & M. S. Ry. Co. v. Sunderland, Adm’r, 2 Ill. App. 307, and C. C. C. & St. L. Ry. Co. v. Arbaugh, 47 Ill. App. 360, is also in point and covers fully the questions here involved.

Many other cases in the reports of this state, bearing upon the question of contributory negligence at railroad crossings, might be cited; as for instance, I. C. R. R. Co. v. Batson, 81 Ill. App. 142, where the court said:

“A person has no right to blindly run into danger and then seek to recover damages for the resulting •injury from another; and a person will not ordinarily be permitted to recover damages from a railroad company for injuries received at a crossing, where the view of the railroad tracks was unobstructed for a considerable distance and such person went in front of a train without loooking', or listening, or ascertaining by any means whether it was safe to go upon the crossing.”

In Wabash R. R. Co. v. Monegan, 94 Ill. App. 82, the court said:

“It is the duty of persons about to cross a railroad to look about them and see if there is danger,; — not to go recklessly upon the road, but to take the proper precautions themselves to avoid accidents at such places. If a party rushes into a danger which by ordinary care he could have seen and avoided, no rule of law or justice can be invoked to compensate him for any injury he may so receive. (C. & A. R. R. Co. v. Gretzner, 46 Ill. 74; and see St. L. A. & T. H. R. R. Co. v. Manly, 58 Ill. 300).”

In Chicago Union Traction Co. v. Jacobson, 217 Ill. 404, 408, the court said:

“The law does not permit one to drive in the path of a moving car relying on those in charge of the oar to stop and protect him from injury. ’ ’

See also Railroad Company v. Houston, 95 U. S. 702.

The facts in this case are much stronger against the right of recovery than the facts in some of the cases above" quoted, the decisions in which are based upon negligence in failing to look or listen and to observe what was in plain view. In this case the deceased knew that the train was approaching rapidly and that it was only with the greatest effort that he could succeed in reaching the crossing before the train arrived. He took desperate chances and with the result that he lost his life. We are of the opinion that there is no possible ground of recovery, and that the court erred in refusing to instruct the jury at the close of the evidence in the case to find the appellant not guilty. This view of the evidence upon the main question of liability makes it unnecessary for us to discuss the other assignments of error.

The judgment is reversed with a finding of fact.

Reversed with finding of fact.


author: Per Curiam.

text:
    Lafrentz & Karstens Company, Appellee, v. Thomas J. Cavanagh, Appellant.
    Gen. No. 16,003.
    1. Accord and satisfaction — when established. If a cheek is offered under such circumstances as amount to a condition that it is to be received in full payment of a demand, an acceptance of the cheek will satisfy the demand, although the creditor protests at the time that it is not all that is due him, or that he does not accept it in full satisfaction of his claim, provided the amount due is unliquidated or there is a bona -fide dispute as to how much is due.-
    2. Words and phrases — “to balance account.’’ The words “to balance account,” of which “to bal. aeet.” are well known abbreviations, when used by a debtor in connection with the payment of money to a creditor, mean the difference between the debits and credits Of an existing unliquidated or disputed account and are equivalent to the phrases “in full payment of account” and “in full payment of ae- • count. ”
    3. Evidence — when expert testimony improper. Opinions of witnesses may not be received as evidence where all the facts on which such opinions are founded can be ascertained by and made intelligible to the jury.

      4. Evidence — os to what expert testimony competent. Seld, that it was competent to receive expert testimony as to whether or not th« words “to bal. aeet.” were placed on a cheek at the time of, or subsequent to, the execution of such check.
    5. Evidence — how competency of expert to be determined. The competency of a witness to express an opinion upon a question requiring expert knowledge is to be determined by the court in the exercise of a sound judicial discretion.
    6. Interest — unreasonable and vexatious delay. Held, that an allowance of interest for an unreasonable and vexatious delay of payment was justified where the jury found that the words “to bal. acct.” were written on a eheck after it was received and cashed by the creditor and after it again came into the possession of the debtor.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1912.
    W. A. CuNNea, for appellant.

      Bichard H. Peterson, for appellee.
   Per Curiam.

This is a suit to recover the value of a quantity of oats sold and delivered, brought by ap-pellee against appellant, and which resulted in a verdict and judgment in the Circuit Court in favor of ap-pellee for $81.88. Appellant appeals to this court.

Appellee claims that on May 8,1902, it sold and delivered to appellant at his barn, located at 3438 Wallace street, 4130 pounds of oats at 47 cents per bushel, valued at $60.65; that there had been several business transactions between the parties prior and subsequent to the sale in question; that on account of an error of appellee’s bookkeeper in posting the books of the firm the item sued for was omitted from the May statement sent to appellant; that some time in June, when the error was discovered, a corrected statement was sent to appellant which included the item in question; that appellant had not, up to the time of the last trial, denied the transaction, but only claimed he had no record of it; and that appellant had not paid for the said oats.

Appellant claimed at the trial that he had never received the goods alleged to have been sold to him, and testified as to the capacity of his oats bin; that he had purchased a few days before the transaction in question a quantity of oats, which, with what was already in the bin, was sufficient to fill it, and that he would have had no place to put the oats alleged to have been sold him by appellee.

The jury, by their verdict, evidently found that the oats were in fact sold by appellee and were received by appellant, and from a careful consideration of the record we are unable to say that the jury were unwarranted in so finding.

During the trial, appellant offered in evidence a check which purported to have been written and signed by Mm and sent to appellee in full payment of the disputed debt between them. The check was as follows:

“Chicago, Ill., Nov. 26th, 1902.
Kaspae & Kabel, Bankers,
523-27 Bine Island Avenue.
“Pay to the order of Lafrentz & Karstens Company Seventy-eight and 30-100 Dollars..'. $78.30 to bal. acct.
(Signed) Thomas J. Cavanagh.”

This check was endorsed on the back as follows:

“Pay to the order of Corn Exchange National Bank, Chicago. Lafrentz & Karstens Company, IT. N. La-frentz, Treasurer.”

Also:

“Paid through Chicago Clearing House, December 1st, 1902. Corn Exchange National Bank.”

The principal conflict in the evidence and the main questions to be considered and determined by this court arise with respect to this check.

Appellee contends that when this check was received and collected by it, the words ‘ ‘ To bal. acct. ’ ’ were not written thereon, but were placed there at some subsequent time; and that the amount of the check was credited to the account of appellant as part payment on the balance of the debt claimed by appellee to be due it. Lafrentz also testified for appellee that he had been a witness in four previous trials of the case and the check had not been offered in evidence by way of a defense, nor for any other reason, and that he had not seen the check from the time it was first sent to him in 1902 until the last trial in 1909. Henry Modt, ap-pellee’s bookkeeper, was first called as a witness by ap-pellee to testify as to facts concerning the bookkeeping entries made in regard to the transaction in question. After the check of November 26th was introduced in evidence Modt testified, over the objection of appellant, that he had been a bookkeeper for about thirty years; that he had handled thousands and thousands of checks, and that in his opinion the words, “To bal. acct.” were written later than the body of the check and signature; that he based his opinion upon the apparent difference in ink.

Appellant, on the other hand, testified that he had written the check himself; that everything on the check was in his handwriting; and that the words “To bal. aoct. ’ ’ at the lower left hand corner were written thereon when he sent it to appellee. Walter it. Werner, called as an expert witness on behalf of appellant, testified that he was a paying teller in a hank; that he was acquainted with the appearance ’of ink on checks as presented, as to whether all of a check was written at the same time or not, and that he was of the opinion that the writing on the face of the check was written by the same person, and the words “To bal. acct.” were written at the same time that the other' portions of the check were written.

Appellant seeks a reversal of the judgment below on the following grounds: (1) That the abbreviations on the check, “To bal. acct:” means to balance account, and that the action of appellee, in accepting and using the check reciting that it was to balance an account, the amount of which was in dispute, constituted an accord and satisfaction of the claim, and that appellee cannot subsequently claim that the check was received only as part payment; (2) that the court erred in admitting expert evidence as to the time when the words, “To bal. acct.” were written upon the check; and (3) that the verdict was excessive.

In regard to the first contention, the law is well settled that, if a check is offered under such circumstances as amount to a condition that it is to be received in full payment of the demand, an acceptance of the check will satisfy the demand, although the creditor protests at the time that it is not all that is due him, or that he does not accept it in full satisfaction of his claim. An acceptance in such a case is an acceptance of the condition, notwithstanding any protest he may make to the contrary. It must be shown, of conrsie, that the amount due is unliquidated, or that there is a bona fide dispute as to how much is due, and if, under such circumstances, the creditor accepts an amount, claimed by the debtor to be due, such acceptance constitutes a full satisfaction of the claim. It is not essential that the creditor actually knew that the amount received by him was offered in full payment of the disputed claim, but if the circumstances were such that, as a reasonable 'man, he should have so known, it is sufficient. Snow v. Griesheimer, 220 Ill. 106; Canton Coal Co. v. Parlin & Orendorff, 215 Ill. 244; Ostrander v. Scott, 161 Ill. 339. The words “to balance account,” of which “to bal. aoet.” are well known abbreviations, when used by a debtor in connection with the payment of money to a creditor, mean the difference between the debits and credits of an existing unliquidated or disputed account (Loeb v. Keyes, 156 N. Y. 529), and are equivalent to the phrases “in full payment of account” and “in full of account.”

Two reasons are advanced in support of the second contention: (1) because the time when the words “To bal. acct. ’ ’ were written upon the check was not a proper subject for expert testimony; and (2) because the witness had not properly qualified to testify as an expert. In support of the first reason appellant cites the case of Collins v. Crocker, 15 Ill. App. 107, wherein the court, in part, said: “The testimony objected to is nothing more or less than an expression of the opinion of the witnesses as to when a single line or scratch was drawn with pen and ink through five simple printed words. As a rule, the opinions of witnesses are inadmissible as evidence.” * * * “In this case, the subject-matter of inquiry was as to when the pen and ink line was drawn through the printed words, ‘if not paid at maturity.’ Surely this subject-matter of inquiry required no peculiar habits or study, or scientific knowledge to understand it. Permitting these wit nesses, therefore, to give their opinions as to when this alteration was made, was a fatal error which we think must reverse the judgment.”

The rule in this state is that the opinions of witnesses may not be received as evidence where all the facts on which such opinions are founded can he ascertained by and made intelligible to the jury. Yarber v. Chicago & Alton Ry. Co., 235 Ill. 589; Ill. Cen. R. R. Co. v. Smith, 208 Ill. 608; City of Chicago v. McGiven, 78 Ill. 347; Linn v. Sigsbee, 67 Ill. 75. The question to be determined at this point is, therefore, whether or not, by an inspection of the check in controversy, the jury were as competent, as was an expert witness, to determine whether the words “To bal. acct.” were placed there at the time of, or subsequent to, the execution of the check. The evidence as to the time when the words in question were written on the check is in hopeless conflict. If expert evidence can be introduced which will add something of value to the information already before the jury, we think it should be admitted. The jury will, of course, consider the credibility of expert witnesses, and the weight to be given their testimony, in the same manner as they consider the testimony of non-expert witnesses. The better .reason and the weight of authority are against the view expressed in Collins v. Crocker, supra. Sebastian v. Rass, 57 Ill. App. 417; affirmed in 160 Ill. 602; Porell v. Cavanaugh, 69 N. H. 364; Fulton v. Hood, 34 Pa. St. 365; see also note in 64 L. R. A. 303, at 310; and Wigmore on Evidence, sec. 2027. The court below properly admitted the evidence in question, and tlm contention of appellant that the inquiry was not a proper subject for expert testimony cannot be sustained.

Appellant’s contention that the witness Modt was not qualified to testify as an expert is untenable. The competency of a witness to express an opinion upon a question requiring expert knowledge is to be determined by tile court in tlie exercise of a sound judicial discretion. There was no abuse of such discretion in this case.

We are also unable to sustain appellant’s contention that the verdict is excessive. Whether the delay in payment was unreasonable and vexatious was a question for the jury. Davis v. Kenaga, 51 Ill. 170; Jassoy v. Horn, 64 Ill. 379. If the jury found, as they doubtless did, that the words “To bal. acct.”'were written on the check after it was received and cashed by appellee and after it again came into possession of appellant, they were warranted in finding that the delay in payment was vexatious.

There is no reversible error in. the record, and the judgment will be affirmed.

Judgment affirmed.


author: Mr. PresidiNG Justice Baume

text:
    James Dooley, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 15,975.
    1. VbRdicts — when set aside as against the evidence. A verdict which is against the clear preponderance of the evidence will for that reason he set aside on review.
    2. Evidence — as to what expert testimony competent. Opinions of experts may properly he received as to the character of an injury disclosed hy an X-ray sciagraph.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.
    JohN E. Kehoe and Watsou J. Feeet, for appellant.
    James C. McShawe, for appellee.
   Mr. PresidiNG Justice Baume

delivered the opinion of the court.

This appeal is prosecuted to reverse a judgment for $2,000, entered upon the verdict of a jury in the Superior Court, in an action in case to recover damages for personal injuries alleged to have been sustained by appellee through the negligence of appellant in violently and suddenly starting a car, while appellee was in the act of alighting therefrom. The first count of the declaration charges that the car had come to a stop and was thereafter negligently started forward without warning to appellee; and the additional count charges that, when the car had about reached the intersection of 51st and Halsted streets, its speed was greatly reduced for the purpose of receiving and discharging passengers, so that it was moving very slowly at said intersection, and while it was so moving, appellee, desiring to alight, got upon the lower step of the car preparatory to alighting, when said car was negligently started forward suddenly and' without warning, etc.

The only grounds argued for a reversal of the judgment are, that the verdict is against the manifest weight of the evidence, and that the trial court erred in admission of certain incompetent evidence.

It is uncontroverted that appellee was a passenger on one of appellant’s north-bound' cars on Halsted street, and that he was injured while attempting to alight therefrom south of the intersection of Hal-sted and 51st streets. A preponderance of the evidence tends to show that the car came to a complete stop at that point for the purpose of receiving or discharging passengers, and in conformity to a rule requiring a car to stop at the intersection of two streets, in each of which cars were operated.

Appellee testified that, just after the car crossed 52nd street, he signified his intention to the conductor to alight at 51st street, and that, as the car slowed up in approaching that street, he went on to the rear platform; that lie grasped the rail on the body of the car with his left hand, placed his right foot on the lower step and his left foot in the act of alighting, when the car started and he was thrown to the ground and injured; that he thought the conductor was on the rear platform at the time.

Several witnesses, called on behalf of appellee, testified that they saw him standing with one foot on the lower step in the position to alight, when the ‘ car came to a stop, and that, just as he was in the act of alighting, the car moved forward suddenly and he fell to the ground. Other witnesses, on behalf of ap-pellee, testified that they saw him in the like position on the car; that when the car had almost come to a stop, and appellee was about to alight, it suddenly moved forward and appellee fell. On behalf of appellant, the evidence tended to show that, after the car had stopped, appellee left his seat and started for the rear platform, at the same time calling, ‘‘51st street; ’ ’ that when he reached the platform and attempted to alight, the car had proceeded forward a distance of from ten to thirty feet from the point where it stopped, and was moving at the speed usually maintained in crossing street intersections. A preponderance of the evidence tends.' to show that appellee fell at a point in the street where the car usually stopped to receive and discharge passengers, thus corroborating the testimony of appellee’s-witnesses and discrediting the witnesses called for appellant. There is some contrariety in the evidence as to whether appellee, at the time he fell, had his left or right foot on the lower step, and whether he was looking north or east or northeast, and whether other passengers, and if so, how many, alighted from the car at the time it stopped, but the conflict in respect to these particulars is not of substantial significance. We are fully persuaded that the verdict of the jury is not against the clear preponderance of the evidence upon the vital issues involved.

It is urged that the court improperly permitted certain witnesses, called by appellee as experts, to state -their opinions, based npon their knowledge and observation, as to the character of the injury disclosed by the X-Bay sciagraph of appellee’s hip. The same objection to like evidence was involved in Jndejko v. C. C. By. Co., ante, p. 140, and was held to be untenable. We are content to abide the conclusion there announced.

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

Judgment affirmed.


author: Mr. Presiding Justice Baume

text:
    Michael Goldblatt, Appellee, v. J. C. Brocklebank, Appellant.
    Gen. No. 16,000.
    1. Negligence — when, in driving, automobile established. Held, ■under the evidence in this case, that the driving of the automobile in question in this case, was negligent and that the owner thereof was liable for a resulting injury.
    „ 2. Contributory negligence — how question of exercise of determined. Cases involving the conduct of persons about to cross a railroad track are to be distinguished from cases where a person is injured by being struck by an automobile while attempting to cross a public highway.
    3. Instructions — when as to question of negiigenee properly refused. An instruction which limits the necessity for the exercise of ordinary care upon the part of one charged with negligence to the precise time when the plaintiff was struck and injured, is properly refused.
    4. Instructions — when refusal of correct will not reverse. The refusal of a correct instruction will not reverse if its contents are substantially contained in another instruction given.
    5. Evidence — when opinion properly excluded. An objection is properly sustained to a question which calls for an opinion by one not shown to be an expert with reference to the possibility of stopping an automobile after the person injured was observed by the chauffeur.

      6. Evidence — when inquiry as to highest attainable speed not improper. Held, that such ah. inquiry was not improper where the charge of negligence was predicated upon the excessive speed at which an automobile was driven.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    Deerees, Buckingham, Ritter & Campbell, for appellant ; H. A. Fischer, Jr., of counsel.
    Edward Maher and James L. Bynum, for appellee; Guerin, Gallagher & Barrett, of counsel.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Appellee recovered a verdict and judgment against appellant in the Superior Court for $2,500, as damages for personal injuries alleged to have been occasioned by the negligence of a servant of appellant in driving an automobile. The declaration alleges that the automobile was recklessly and carelessly driven; that it was driven at a dangerous and unlawful speed; and that the servant of appellant failed to blow a horn or sound a signal.

In the forenoon of November 16, 1907, appellee went from his shop on the west side of Rush street, about forty feet south of "Walton place, to a saloon on the south-east comer of said streets, for the purpose of cashing a check for a customer. In returning from the saloon he proceeded hurriedly from the corner of said streets, diagonally in a southwesterly direction across Rush street, and had reached a point about the center of the street, when he was struck by or collided with appellant’s automobile, then being driven north on that street. The street at that point was thirty feet in width from curb to curb. At the time in question, a large garbage wagon, equipped with a high box, was standing on Rush street, about five feet west of the east curb and about fifteen feet south of Walton place; and a wagon was going south on Rush street, a little west of the center. The automobile was being driven by appellant’s chauffeur, and appellant’s daughter, aged about fourteen years, was seated on one of the rear seats. It is uncontroverted that, as the automobile approached the intersection of the streets, the chauffeur did not blow the horn or give any warning signal. The testimony of some of appellant’s witnesses tends to show that the muffler “cut out” on the machine was making considerable noise, but the testimony of appel-lee’s witnesses tends to show that the automobile was running noiselessly, and we think the jury were not unwarranted-in so finding. There is a like contrariety in the evidence as to the rate of speed at which the automobile was being driven. Appellant’s witnesses testified that the rate of speed was from ten to fifteen miles an hour, while the witnesses for appellee testified that the rate of speed was from twenty-five to thirty, miles an hour. Appellant’s chauffeur testified that, as he approached the corner of the streets, he noticed the garbage wagon, and also a man with a light wagon coming along the street, and that he slowed up some; and that the moment he saw appellee come from behind the garbage wagon he shut off the power and put on the brakes. A preponderance of the evidence tends to show that, notwithstanding the efforts of the chauffeur, as testified to by him, to stop the car, it did not come to a stop until it had run a distance of from seventy to seventy-five feet beyond the point where appellee was injured. We are fully persuaded that, upon the question of the speed of the car, the weight of the' evidence favors the contention of appellee. We have no hesitancy in holding that the negligence alleged in the declaration was established by the evidence. Automobiles have not the right of way upon public thoroughfares.

As bearing upon tie question of appellee^ due care for bis own safety, be testified that, as be approached tbe street after leaving tbe saloon, be looked up and down tbe street and did not see tbe automobile until it struck bim. Gibbons, a witness called for appellee, testified that tbe latter was looking north when be was struck, and it is not inconsistent with the situation, as it existed, to assume that appellee was looking at tbe wagon which was coming from tbe north at tbe time.

Appellant insists that the statement of appellee that be looked south, as be was about to cross tbe street, and yet did not see tbe car until it struck bim, is unworthy of belief, because, if be looked, be necessarily must have seen tbe car approaching. This insistence might prevail, if tbe garbage wagon bad not obstructed appellee’s view to tbe south,- as it undoubtedly did. Whether or not appellee was chargeable with such contributory negligence as precluded a recovery, because be failed to look uninterruptedly to tbe south, was a' question of fact for tbe jury, and we are not disposed to bold that a finding against appellant on that question was not justified. If appellee bad neglected to look to tbe north, be would have failed to exercise due care for bis safety. He could not well look in opposite directions at tbe same instant. Furthermore, tbe fact that the automobile approached tbe crossing noiselessly and at an excessive rate of speed were proper elements to be considered in determining whether or not appellee was in tbe exercise of due care for bis own safety.

Cases involving tbe conduct of persons about to cross a railroad track at grade are to be distinguished from tbe case at bar. A railroad track is a place of known danger. A railroad train cannot turn aside, but is limited in its operation within tbe bounds of tbe track, and has of necessity, when properly operated, a paramount right upon such track.

The instruction tendered by appellant and refused by the court was not improperly refused. It substantially limits the necessity for the exercise of ordinary care on the part of appellant’s chauffeur to the precise time when appellee was struck and injured. The rule of law sought to be invoked by the instruction was sufficiently covered by other instructions given at the instance of appellant.

Appellant’s daughter was not shown to be an expert, and the objection interposed to the question, calling for her opinion with reference to the possibility of stopping the automobile after the chauffeur observed appellee, and before the latter was injured, was properly sustained. The fact thus sought to be adduced was not controlling.

It is urged that appellee was improperly permitted to ask appellant’s chauffeur, on cross examination, the highest speed he could make on the machine. The inquiry was not wholly foreign to the issue involved, and was properly permitted.

We have considered the other objections urged to the rulings of the court in admitting and excluding certain evidence, but find nothing therein deserving discussion.

The record is free from prejudicial error and the judgment is affirmed.

Judgment affirmed.


text:
    Katherine Lowden, Appellee, v. John C. Wilson, Appellant.
    Gen. No. 16,009.

      Costs — when taxation will not l>e reversed. Where neither the motion to retax costs nor the report of the master upon which the action of the court in taking the master’s fees was predicated, is incorporated in the transcript, such action of the court will not be reversed on review.
    Appeal from the Circuit Court of Cook county; the Hon. Albert C. Harnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed December 13, 1911.

      Certiorari denied by Supreme Court (making opinion final).
    William Slack, for appellant.
    N. L. Piotrowski, for appellee.
   Mr. PresidiNG Justice Baume

delivered the opinion of the court.

In certain chancery proceedings, wherein appellee was the original complainant and wherein appellant was the original defendant and also a cross-complainant, pending in the Superior Court, and which had been referred to the master to take proofs and report the same with his conclusions of fact and law, a final decree was entered June 14, 1907, determining the rights of the parties. As to costs, the decree provided that defendant, Wilson, pay the costs of the suit, including the costs of the complainant embodied in the master’s report, to be taxed by the clerk of the court, and that execution issue therefor.

Counsel for appellant states that thereafter a writ ant’s costs, which execution lapsed and that subsequently a second execution issued for such costs, which execution was quashed. Neither of the executions is of execution was issued for the collection of complain incorporated in the record, and the record does not disclose npon whose motion, or npon what grounds the second execution was quashed.

It appears from the record that on February 15, 1909, there came on to be heard by the court the motion of appellant to retax the costs, theretofore taxed by the cleric, and the court, having considered the record and being fully advised, ordered and adjudged that said motion be denied, except as to the sum of $67, taxed as stenographer’s charges paid by appellee, which sum was disallowed for the reason that it was not included in the master’s report; and the court further ordered that the cleric issue an execution for the balance of the costs, as shown by the fee bill, viz.: $162.65. This is an appeal from that order.

Neither the motion to retax costs nor the report of the master, upon which the action of the court was predicated, is incorporated in the record. Appellant’s attack here is directed solely against the item of costs designated in the fee bill as “Master’s Fees, $150.00.” The record does not disclose the ground of attack upon’the fee bill in the court below. For aught that appears, the report of the master conformed in every particular with the requirements of proper practice in the statement of his claim for fees, and in that event, the decree, directing the clerk to tax the costs embodied in said report, was sufficiently specific and amounted to an adjudication by the court, upon an inspection of the report, that the claim of the master was just and proper.

There is nothing before us that requires a reversal of the order, and the same will, therefore, be affirmed.

Order affirmed. .

ERRATUM. Appellate Reports, Vol. 166 — Page 320. The bottom line should follow what is now the fifth line from the bottom of the page.

      ERRATUM. Appellate Reports, Vol. 166 — Page 320. The bottom line should follow what is now the fifth line from the bottom of the page.