text:
    Illinois Central Railroad Company, Defendant in Error, v. Chicago & Great Western Railway Company and N. Deutsch & Company, Plaintiffs in Error.
    Gen. No. 17,851.

      Replevin—finding justified by evidence. In replevin by a railway company for certain brasses specially marked, held, that the evidence justified a finding for plaintiff.
    Error to the Municipal Court of Chicago; the Hon. Chables N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed February 13, 1913.

      Jesse Lowenhaupt, for plaintiff in error N. Deutsch & Company.
    John G. Drennan, for defendant in error; Vernon W. Foster, Walter S. Horton and Blewett Lee, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff in error N. Deutsch & Co. sued out a writ of error from the Supreme Court to review the judgment of the Municipal Court in the above entitled cause, and urged that the constitutionality of a statute was involved. The Supreme Court held against this contention and ordered the case transferred to the. Appellate Court. See Illinois Cent. R. Co. v. Chicago & G. W. R. Co., 246 Ill. 620.

The same facts before the Supreme Court are now before this court, and in .the opinion of the Supreme Court these facts are stated succinctly as follows:

“The Illinois Central Bailroad Company brought an action of replevin in the Municipal Court of Chicago against the Chicago and Great Western Bailway Company and N. Deutsch & Co. to recover the possession of one hundred brasses marked ‘Illinois Central,’ ‘I. C. B. B.’ or ‘I. C.’ which were located in the freight yards of the Chicago and Great Western Bailway Company in Chicago, in car C. G. W. 8690. The value of the goods claimed was $100. Upon a trial by the court without a jury there was a finding that the plaintiff below was entitled to the possession of all the brasses described except one which was not marked, and that brass was returned to Deutsch & Co. in open court. Judgment was entered upon this finding, awarding the possession of the property described in the writ to the plaintiff below and assessing one cent damages against the defendants and the costs of suit. The defendants below have sued out a writ of error from this court to the municipal court to obtain a review of the judgment below.
“To establish its right to the possession of the property described in the writ, defendant in error proved that for more than eight years last past it had purchased all of its brass journals from the Hewitt Manufacturing Company, and that during the same time it had sold all of its brasses which were not fit for refilling or further service to the Hewitt company; that during said period the Hewitt Manufacturing Company caused to be stamped on the brasses manufactured for defendant in error the name or initials of the Illinois Central Railroad Company, and that such initials were not stamped on any brasses other than those manufactured for and delivered to the Illinois Central Railroad Company. It was also proven that none of the brasses so manufactured by the Hewitt company for the Illinois Central Railroad Company had ever been sold to any other person or had passed out of the possession of the Hewitt company to any one other than defendant in error; that the brasses in question were also stamped with the name of the Hewitt Manufacturing Company, and were identified in court as being the brasses manufactured by that company for and delivered to the defendant in error. It was shown further that all worn out or unfit brasses on the various lines of the Illinois Central Railroad Company were shipped to Burnside and there loaded on cars and shipped to the Hewitt Manufacturing Company.
“F. H. Smith, general manager of the Hewitt Manufacturing Company, testified that he had been employed by that company for sixteen years as general superintendent and district manager; that his company manufactured brass journals, commonly called ‘Brasses,’ and had been manufacturing these brasses for the defendant in error since 1893 and that these brasses are used exclusively for railroad purposes; that all of the brasses manufactured for defendant in error were specially marked either ‘Illinois Central’ or ‘I. C. R. R.,’ together with the pattern number thereon and the name of the Hewitt Manufacturing Company; that brasses so marked never go to any other railroad company or person than the defendant in error. He testified that from the general appearance of the brasses in question they had been manufactured by his company and sold and delivered to defendant in error.
“James S. Sheafe, mechanical inspector of the Illinois Central Bailroad Company, testified that defendant in error purchased all of its brasses of the Hewitt Manufacturing Company and sold all its scrap brasses, when no longer fit for use, to said company; that when brasses are in such condition that they can be re-filled, —that is, not too thin to be refilled,—they are refilled by the defendant in error at its shops at Burnside, and when they are too thin to be re-filled or otherwise no longer useful they are sold to the Hewitt Manufacturing Company as scrap. He testified that passenger brasses 'form 503’ are used exclusively in the suburban service in Chicago; that such brasses are made exclusively for use on suburban cars of defendant in error, and that he never knew of one of these brasses being out of the limits of the suburban service; that among the brasses found in the possession of plaintiffs in error was one marked 'Passenger 503.’
“The evidence shows that plaintiff in error the Chi-' cago and Great Western Bailway Company had no. interest or claim in the brasses in question except that of a carrier for plaintiff in error Deutsch & Co., who had delivered the brasses to the Chicago and Great Western Bailway Company to be shipped to St. Paul for the Great Northern Bailroad Company. Nathan Deutsch testified on behalf of the defendant in error that he was president of N. Deutsch & Co. and had been ever since its incorporation. He admitted that the brasses in question were hauled from the warehouses of N. Deutsch & Co. and delivered to the Chicago and Great Western Bailway Company, but he could not tell of whom he purchased the brasses nor how long they had been in the possession of his company. Several witnesses testified on behalf of plaintiffs in error as to the general course of business °mong smelters and dealers in metals, which testimony tended to show that railroad brasses were frequently bought and sold as scrap in much the same way that other scrap brass is dealt in. * * *
“From the statement of the evidence before set out it appears that defendant in error based its right to recover on its claim that it had bought the brasses in question from the Hewitt company, and that they had in some way come into the possession of Deutsch & Co. without the knowledge or consent of defendant in error. ’ ’'

After consideration of the testimony at length, especially the facts argued in the supplemental brief of plaintiffs in error, we discern no reason for concluding that the trial court was not justified in finding as it did. We therefore hold that the evidence before the trial court was sufficient to support a finding that the brasses in question belonged to the defendant in error.

As to the alleged errors committed by the trial court in holding a certain proposition of law at the request of the defendant, and the refusal to hold the proposition offered by plaintiff in error, while we are inclined to agree with counsel that section 242 of the criminal code is not relevant, yet, as the case was tried by the court without a jury, we see no reason to hold the action of the court in this regard to be reversible error.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice McSurely

license: Public Domain

text:
    Valberg Junget, Appellee, v. Aurora, Elgin & Chicago Railway Company, Appellant.
    Gen. No. 17,871.
    1. New trial—newly-discovered evidence. Newly-discovered evidence is not cumulative where only expert opinions, but nothing directly affirmative, has been introduced in evidence in regard thereto, and where defendant in such case, having used due diligence, discovers a new witness who will testify that plaintiff had been suffering from a disease, alleged to have been caused by an accident, previous to such accident, a verdict for damages will not be allowed to stand.
    2. Evidence—of expert, based on subjective symptoms. The opinion of a medical expert who has not treated plaintiff, but made an examination of her condition solely with a view to testifying as an expert, is not admissible when based on subjective symptoms which are purely voluntary and within control of plaintiff, as it rests on no other basis than the truthfulness of plaintiff, and she cannot be permitted to make self-serving evidence for herself.
    3. Evidence—of medical expert. Where a medical expert states that he got the history of plaintiff’s case before he examined her, and that his answers to the hypothetical questions assumed that such questions were true and were based on that and upon the history given him by plaintiff, where he has made the examination solely for the purpose of testifying, failure to strike out such answers is reversible error.
    4. Evidence—speculations as to outcome of disease. The opinion of a medical expert witness as to the tendency of a disease of plaintiff, or that certain results are liable to happen, where they are merely speculations as to the outcome, are prejudicial error.
    5. Evidence—of plaintiff’s refusal to permit examination admissible. The refusal of plaintiff to permit an examination by a physician appointed by defendant or the court is a fact which the jury may properly consider and which may be brought to its knowledge either by asking plaintiff in the presence of the jury if she will submit to such examination, or by proving her refusal out of the jury’s presence so to furnish the best evidence in her power as to the character and extent of her injuries.
    Action in case for personal injuries. 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.
    Reversed and remanded.
    Opinion filed February 13, 1913.
    Hopkins, Peffers & Hopkins and B. F. Richolson, for appellant.
    James L. Bynum and Edward Mayer, for appellee; Bernhardt Frank, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action to recover damages for personal injuries claimed to have been received by Valberg Jun-get, appellee, while she was a passenger on one of the cars belonging to the appellant. The jury awarded her $3,000, and judgment was entered on the verdict. We are asked to reverse this judgment on the ground that the amount is excessive, and for errors hereinafter referred to.

It is argued that the evidence proves that appellee was not seriously injured, and that from the nature of the accident she could not have received the injuries of which she complains. There was testimony tending to show that appellee is suffering from a cystic tumor of one of the ovariés, with attendant pains and suffering. Appellant denies that the accident produced this condition.

On the evening of August 11, 1910, appellee in company with her sister, Laura, and a young man by the name of Eeed, boarded one of appellant’s trains bound for the village of Maywood. The train in question consisted of three heavy interurban cars. The seats of the cars were leather upholstered, with springs beneath, and the backs of the seats were the same. The tracks were laid upon a foundation of gravel covered with cinders, then packed down. The accident occurred in the village of Forest Park, on appellant’s line. The train had stopped at Desplaines avenue at the station platform, than started up and proceeded two or three hundred feet west at a speed estimated by some passengers as a little faster than a walk, and by others as much faster. At this point the wheels of the first car and the front trucks of the second car left the rails and ran along over the ties for a short distance, testified to as about 50 or 55 feet, before stopping. While thus running, the north or right hand wheels of the front truck of the first car gradually sank into the packed cinders, so that when the train came to a stop the front car leaned to the north at an angle estimated at from 15 to 30 degrees. Many passengers testified that the stopping of the car was gradual, without any forward or sidewise lurching, and that they slid slightly in their seats while the train was stopping. Appellee, with her friends, was on the north or right hand side of the first car, towards the rear. Appellee sat facing west, in the direction the car was going, next to the car window, and Eeed sat in the same seat, next the aisle. The seat forward was turned to face easterly, and appellee’s sister, Laura, sat alone in that seat, leaning backwards and facing appellee.

Appellee testifies that when the accident happened she was thrown against the side of the car and that Eeed was thrown onto her; that she was pinned up against the side of the window, and could not get up until Mr. Eeed got up first. Eeed, called as a witness for appellee, testifies that he has no recollection of this. His statement is, “nothing happened to me more than simply that when the car left the track we were all jarred around.” The conductor testified that there was apparently a panic among the passengers.

Immediately after the accident appellee and her friends arose from their seats and went down the aisle from the first car into the second car of the train, and at that time appellee was laughing and joking. Shortly thereafter appellee alighted from the . train, walked about 300 feet down the track to a fruit stand at Desplaines avenue without any assistance, then walked 200 feet into a nearby park, called Forest Park. The party there entered an emergency hospital, where Laura, the sister, lay down. While there appellee still laughed and joked. The attending physician at the hospital examined sister Laura, and while he was doing so Eeed and appellee left the hospital and walked around the grounds of the park for half an hour and stopped in one of the shows. Upon returning to the hospital the attending physician offered to examine appellee to ascertain if she was injured, but he testified that she said, “there is nothing the matter with me.” This is corroborated by the nurse, although denied by appellee. Later on she claimed to have a bruise on her leg.

Appellee introduced evidence of her mother and aunt, and a doctor who treated her testified as to the condition of appellee after the accident. Considerable expert testimony was heard for both parties as to the possibility of the injury appellee may have received from such an accident as above described resulting in or producing a tumor of the ovary. Appellee’s witness, Dr. Lovejoy, testified that he found evidences of this tumor present the morning after the accident.

We have stated briefly the facts touching the' accident, not for the purpose of determining whether or not such an accident did produce the condition from which appellee is suffering, but rather as showing the importance of the controverted question of fact, as to whether or not appellee was suffering from this tumor prior to the time of the accident. This point becomes important in connection with the next point of appellant, namely, newly discovered evidence. Upon the motion for a new trial, the attorneys for appellant presented the affidavit of Mrs. Nellie L. Butler. In this affidavit Mrs. Butler says in substance that she had a close acquaintance with appellee and that upon a certain occasion in December, 1909, when she stayed all night with appellee, appellee showed her the condition of her bared abdomen and stated that she (appellee) was suffering from a tumor or abscess in her female organs, and that appellee on this occasion applied medicines with a vaginal douche, and that such medicines were used in the treatment of this condition. It is argued by counsel for appellee that this evidence is merely cumulative, and therefore not sufficient ground for a new trial; but we are referred to no place in the record where there is any evidence that appellee was suffering from the tumor before the time of the accident. True there is argument and expert opinion as to the fact, but nothing directly affirmative. As to the question of due diligence on the part of the attorneys for appellant, both attorneys who tried the case filed affidavits relating at great length the things they had done in attempting to ascertain the previous history of appellee, with special reference to her physical condition; that an investigator had interviewed Mrs. Butler prior to the trial, and that Mrs. Butler had not given them any information until after the trial had terminated. An additional affidavit made by Mrs. Butler was filed, in which Mrs. Butler admits that she gave the investigator for appellant no information when she was first approached; and she explains this by saying that she was friendly to appellee and did not wish to say anything which might prejudice her claim, but that after the trial she concluded that it was her duty to tell the attorneys all she knew about the matter.

If the allegations contained in the affidavit of Mrs. Butler are true, and if it should be a fact that appellee was suffering with a tumor and vaginal trouble for some time prior to .the accident, then this verdict shotild not stand. We are of the opinion that the ends of justice would be better served by granting a new trial, so that appellant may present the evidence of this witness to the jury for consideration.

It is claimed that many errors were committed by the trial court in rulings on medical evidence, and especially in refusing to strike out various portions of appellee’s medical testimony. A large number of instances are presented for our consideration, but we do not think it necessary to detail these. As there must be a new trial, such errors, if any, will probably not occur again. One such ruling was the refusal of the court to strike out the answer of Dr. Adams, testifying as an expert, as to the shrinking of the patient and as to the expression on her face, on the ground that these matters were subjective. We think that this should have been stricken out. Dr. Cox also testified practically to the same matter, indicating that his opinion was partially based upon subjective symptoms. Such answers have been held to be ground for reversal, as permitting physicians to give answers based upon subjective symptoms or those matters within the control of the patient. Shaughnessy v. Holt, 236 Ill. 485.

In Greinke v. Chicago City Ry. Co., 234 Ill. 564, the Supreme Court, on page 572, has stated the rule very clearly, after stating that subjective matters elicited by an attending physician are competent, as follows:

“No such safeguards, however, surround him when he is being examined by an expert whom he has employed to examine him and to give evidence in his ease which is about to be tried in court. To permit the injured party, while undergoing an examination by an expert in his employ, by jerks and twitches, by a pressure of his hand, by turning his toes in or by dragging one of his legs when walking, to thus make evidence for himself, and then to permit his expert to go before the jury and bolster up and strengthen by his opinion the self-serving testimony thus manufactured by the injured party, would open up the door wide for the grossest fraud, which might work upon his adversary the most palpable injury. * * * but what we do intend to hold is, that a physician who has not treated the injured party but who has made an examination of the injured party solely with a view to testify as an expert, should not be permitted to express an expert opinion to the jury based upon subjective conditions, and then be allowed to fortify his opinion by stating to the jury acts of the injured party which could have been purely voluntary and under the control of the injured party, and which may rest upon no other basis than the truthfulness of the injured party.”

This rule is too well established to require support by other citations.

Dr. Cox, the expert, stated that he got the history of appellee’s case before he examined her, and then stated that his answers to the hypothetical questions assumed that the hypotheses were true, and that his answers were based upon that and upon the history given him by appellee. A motion was made to strike out Ms answers, wMch was denied. This was clearly reversible error. Dr. Cox was not an attending physician, but had made his examination solely for the purpose of testifying as an expert. In Chicago Union Traction Co. v. Giese, 229 Ill. 260, the Supreme Court, after a lengthy discussion of the matter, held such a ruling to be reversible error. Such also was the ruling in Illinois Cent. R. Co. v. McCollum, 130 Ill. App. 267.

Physicians were also permitted to testify as to the “tendency” of the. disease, and that certain results were “liable” to happen. Other answers were permitted indicating merely a speculation as to results. To permit doctors to speculate as to the outcome is clearly prejudicial error. Lauth v. Chicago Union Traction Co., 244 Ill. 244. Other errors are argued, which it is not necessary to discuss. The case was extremely close on the facts as to the origin, Mstory and extent of the conditions appellee claimed to exist. It therefore was very important that rulings by the trial court should have been free from error. Errors which ordinarily may be considered harmless may, in a case like this, manifestly affect adversely the interests of one or other of the parties.

It is also urged that error was committed in sustaining an objection by appellee’s counsel to a question put to' appellee as to whether she was willing to have a physician employed by- appellant examine her, and also in sustaining- the objection to a question put to appellee as to whether she was willing to be examined by a doctor appointed by the court. While conceding the aptness of the opinion of the Appellate Court of the Fourth District in the case of Cole v. City of East St. Louis, 158 Ill. App. 494, where such a ruling was held not to be prejudicial, yet we are inclined to give more weight to the decision rendered in Schlechte v. Chicago Elec. T. Co., 157 Ill. App. 181, and also Sertaut v. Crane Co., 142 Ill. App. 49. In the last mentioned case the court, speaking through Justice Adams, said:

“if plaintiff’s refusal so to do (permit an examination) is a fact proper to be considered by the jury, as has been held and is recognized (by the Supreme Court) * * * then the fact of refusal must be brought to the knowledge of the jury either by asking the plaintiff in the jury’s presence whether he will submit to an examination, or asking him out of the jury’s presence, and if he refuses, by producing before the jury proof of his refusal. Manifestly, there is no practical difference in the two methods, so far as the effect on the minds of the jury is concerned. On the hypothesis that a plaintiff is honest and his injuries unfeigned, and that he has nothing to conceal, why should he refuse to submit to an examination? We •are of opinion that the refusal of the court to allow the plaintiff to be asked whether he would consent to an examination was prejudicial error.”

In the Schlechte case, supra, above cited, this point is discussed at considerable length, with a review of apparently all of the decisions in this state touching it, and the opinion concludes:

‘ ‘ The refusal of the trial court to allow the question to be answered by the plaintiff left the jury in uncertainty on the material point, whether plaintiff himself was willing to submit to an examination and so furnish the best evidence in his power as to the character and extent of the injuries for which he is seeking compensation.”

For the reasons above indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baume

text:
    City of Chicago, Appellant, v. Chicago & Oak Park Elevated Railroad Company, Appellee.
    Gen. No. 16,904.
    1. Municipal cobpobations—license fees on elevated railway cars. The ordinance passed by the City Council of Chicago on Oct. 1, 1894, authorizing the Chicago and Oak Park Elevated Railroad Company to construct an elevated road from Market street to Wabash avenue and requiring payment of a license fee of fifty dollars for each car “in regular use in lieu of all other licenses as regards the line hereby authorized,” is not a blanket measure and by its terms negatives any intention to repeal any part of the ordinances passed Nov. 24, 1890, and May 15, 1893, authorizing the construction of elevated roads on various streets and providing for the payment of an annual license fee of fifty dollars on “each car used by said company in transporting passengers for hire.”
    2. Municipal cobpobations—construction of ordinances. Where an ordinance grants a right, “subject to the provisions hereinafter contained,” the provisions following such grant are to be construed as being applicable alone to the specific grant made, unless amplified by express language or necessary intendment.
    3. Obdinances—construction of. Where two enactments are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication .
    4. Statutes—ordinances. The repeal of a statute or ordinance by implication is not favored in law, and the earlier enactment continues in force unless clearly inconsistent with and repugnant to a later enactment, or unless in the later enactment some express notice is taken of the former, plainly indicating an intention to repeal it.
    5. Municipal corporations—when not estopped from collecting license fees. Where an elevated railway company has for several years paid license fees under one ordinance, which have been accepted and receipted for by city officials, the failure or neglect, wilful or otherwise, of such officials to demand and collect from the company license fees as due and payable under the provisions of other existing ordinances, does not estop the city from recovery when not barred by a plea of the statute of limitations.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed February 19, 1913.
    Rehearing denied, and opinion modified March 8, 1913.
    Edward J. Brundage, for appellant; Charles M. Haft, of counsel. William H. Sexton, on reply brief.
    James J. Barbour, for appellee.
   Mr. Justice Baume

delivered the opinion of the court.

This is an appeal from a decree of the Circuit Court, dismissing, for want of equity, the amended and supplemental bill filed by the City of Chicago against the Chicago & Oak Park Elevated Railroad Company.

The bill alleges, in substance, that on November 24, 1890, the city council of appellant passed two certain ordinances designated respectively as “Exhibit A” and “Exhibit B.” The sections of the ordinance “Exhibit A,” here particularly involved, are sections 1 and 21, as follows:

_ “Section 1. That subject to the conditions, provisions, and limitations hereinafter set forth, permission and authority be and the same are hereby given to the Lake Street Elevated Railway Company, its successors and assigns, to build, construct, operate and maintain an elevated structure and place thereon a double track, on Lake street commencing at the east line of Crawford avenue and extending west to the city limits and commencing at the west line of Canal street and extending east to the east line of Market street.”

Section 21 provides that the company shall pay to the City of Chicago on the 1st day of May in each year, Fifty Dollars-for each and every car used by said company in transporting passengers for hire, and that at the time of said payment said company shall file with the city collector an affidavit, subscribed and sworn to by its president or other officer of said company, stating the number of cars so used by said company, and upon such payment being made the city clerk shall issue a license to said company for each of its cars so used, which license shall be issued as other licenses are issued, and each license shall contain the number of the car for which the same is paid, and which license shall be posted by said company in some conspicuous place inside of the car so licensed, and shall correspond in number to that of the car; provided, however, that such ears shall not already be liable for the payment of a license fee by virtue of any other ordinance granted to said company, its successors or assigns.

The ordinance “Exhibit B” provides for the construction of a railroad from the west line of Canal street to Crawford avenue, and section 18 of said ordinance contains the same provisions as to car license fees as are contained in section 21 of the ordinance “Exhibit A,” except the last proviso therein.■

The bill further alleges the passage by said city council on December 19, 1892, of an ordinance designated as “Exhibit C,” which approves a transfer from the Lake Street Elevated Railway Company to the Lake Street Elevated Railroad Company' of the rights under said prior ordinances.

The bill further alleges the passage by said city council on May 15, 1893, of an ordinance designated as “Exhibit D,” which authorizes the Lake Street Elevated Railroad Company to construct an elevated railroad, first, from Lake street to a point on Fullerton avenue between Sheffield and Larrabee streets; second, beginning at the main line of the elevated railroad at Market and Lake streets, extending to the south line of Madison street; third, a line of road connecting at the west line of Canal street extending north; fourth, beginning at the main line on Lake street within 750 feet of Halsted street and running in a southerly direction to the city limits; fifth, commencing at a point on the main line on Lake street between Hamlin avenue and 41st street on the west and extending in a southerly direction to the south line of Madison street; sixth, commencing at a point on the main line on Lake street, between Rockwell street on the east and California avenue on the west, and extending northerly to Diversey street, thence to the city limits. Section 12 of this ordinance contains the same provisions regarding car license fees as are contained in section 18 of the ordinance “Exhibit B.”

The bill further alleges the acceptance by the Lake Street Elevated Railroad Company of said ordinances and that appellee thereafter constructed an elevated railroad on Lake street from Canal street west to the city limits and from Canal street east to Wabash avenue and has since maintained and operated thereon cars for hire; that said ordinances provide that appellee should pay to appellant an annual license fee of $50 for each and every car used by it in transporting passengers for hire, and that at the time of said payments it should file with the city collector an affidavit subscribed and sworn to by its president or other officer stating the number of cars so used and that upon such payment being made a license should be issued, etc.; that appellee, though often requested, has refused and' failed to file with the city collector the affidavits required as aforesaid; that appellee has not paid to appellant the sum of $50 for each and every car used by it in transporting passengers for hire; that appellee paid to appellant annual car license fees as follows: in 1894, $4,000; in 1895, $3,200; in 1896 and 1897, $6,400; in 1898, $3,700; in 1899, $3,900; in 1900, $3,900; in 1901, $4,500; in 1902, $4,800; in 1904, $4,800; in 1905, $4,800; that appellee has become liable to file affidavits as by the terms of the said ordinances provided, and to pay car license fees, but though often requested, has failed and refused to file said affidavits; that appellee has not paid to appellant the sum of $50 for each and every car used by it in transporting passengers for hire, as provided by said ordinances, for the years 1906, 1907 and 1908; that in each of the years 1906, 1907 and 1908 appellee paid to appellant as annual car license fees for cars used by appellee in transporting passengers for hire, $4,800; that during said years appellee should have paid to appellant for annual car license fees a sum largely in excess of the said amounts; that during each of said years appellee used in transporting passengers*-for hire large numbers of cars for which it did not pay car license fees, as by the terms of said ordinances provided; that the exact number of cars used by appellee during each of said years is unknown to appellant, and that the said appellee, its officers and agents are the only persons having full knowledge thereof; that appellant is not able to state the full amount which is due to it on account of said car license fees, and has no means of ascertaining the same except from appellee, its officers and agents, and that appellée, its officers and agents falsely claim and pretend that there is not any sum due to appellant on account of car license fees. The bill prays that appellee may be required to answer the bill of complaint, and may be required to pay to appellant the sum of money that may be found due to it, and may especially answer and set forth: (a) How many cars were used by the Chicago & Oak Park Elevated Bail-road Company, formerly known as the Lake Street Elevated Bailroad Company, in transporting passengers for hire in the years 1904, 1905, 1906, 1907 and 1908; (b) the number of each car used by said company since its organization in transporting passengers for hire and the date upon which it took possession of said cars; (c) which of said cars has been used for the purpose of transporting passengers for hire in each of the years aforesaid.

The answer filed by appellee admits the passage of the ordinances of November 24, 1890, December 19, 1892, and May 15, 1893, as alleged, and the acceptance of said ordinances; admits that it thereafter constructed an elevated railroad from Canal street to the city limits, and from Canal street to Market street and on Market street from Lake street to Madison street, and on East Lake street from Market street to Wabash avenue; but denies that said road on East Lake street from Market street to Wabash avenue was constructed under and by virtue of any of said ordinances. Alleges the passage by the city council, on October 1, 1894, of an ordinance granting authority to appellee to construct an elevated railroad connecting at the east line of Market street extended north with the line of road then constructed and operated by appellee on Lake street and extending thence east upon Lake street to the east line of Wabash avenue, and the acceptance of said ordinance by appellee.

The sections of said ordinance of October 1, 1894, requiring particular notice, are sections 4, 12 and 16.

Section 4 provides that “all trains operated by said company over its line of road passing over the Lake street bridge eastwardly, shall at least alternately continue eastwardly over the line of road hereby authorized, and in case said company shall hereafter obtain the right to build or use a loop line for running its trains, then all trains proceeding eastwardly over Lake street bridge shall continue to proceed eastwardly over the elevated railroad hereby authorized, and no trains of said company shall move westwardly over the railroad hereby authorized, between Wabash avenue and Market street, except such trains as have first proceeded eastwardly over the elevated railroad hereby authorized.”

Section 12 is as follows:

“On the 1st of May, 1895, and on the 1st of May of each year thereafter, said company shall file with the City Collector, or other proper officer whose duty it is to collect license fees, an affidavit stating the number of cars in regular use by said company, and thereupon said company shall pay an annual license fee of $50.00 in advance for each and every car in regular use by it in transporting passengers for hire. Upon said payment being made the City Clerk shall issue a license to said company for each of its cars so_ used. The payment of which said license fee shall be in lieu of all other licenses to be imposed as regards the line of road hereby authorized by the City of Chicago.”

Section 16 is as follows:

“The line of road heretofore authorized to be built by said company under the ordinance passed December 19, 1892, and under the ordinances of November 24, 1890, being the line of road from Market street to 52nd street, upon Lake street, be and the same is hereby approved in compliance with said ordinances, and that the time for said company to complete the building and construction of the remaining portion of its line of road as heretofore authorized by the two ordinances of November 24, 1890, and the ordinance passed December 19, 1892, be and the same is hereby extended to July 1, 1897, and the other provisions of said ordinances are hereby re-enacted and extended.”

The answer further alleges the acceptance of said ordinance by appellee; a compliance by appellee on May 1, 1894, with the requirements of the provisions relating to car license fees contained in the ordinances enacted prior to October 1, 1894, and a compliance by it on May 1st of each year thereafter with the provisions relating to car license fees contained in the said ordinance of October 1, 1894; that the several sums of money paid by appellee to appellant as license fees for cars in regular use, as provided in the ordinance of October 1, 1894, were paid and tendered by appellee to appellant in full satisfaction and discharge of all moneys due for car license fees under the terms of the said various ordinances under which appellee then operated and now operates its railroad; that appellant has never from the time of the passage of the ordinance of October 1, 1894, until shortly before the filing of its bill, claimed that appellee should pay any license fees on its cars except on such as were in regular use in transporting passengers, and appellee has never since said time paid any license fees on cars except on suck as were in regular use; that appellant cannot in any event recover from appellee any sum for additional car license fees for any year prior to the year beginning May 1, 1896, for the reason that the alleged cause of action therefor did not accrue to appellant at any time within ten years prior to the filing of the bill of complaint herein, and that by reason of the laches of appellant in prosecuting its alleged cause of action it should be denied any relief whatever.

After replication filed to said answer the cause was referred to a master to take the proofs and report the same, together with his conclusions of fact.

It was admitted upon the hearing that on May 1st of each of the years following, appellee owned and operated the number of cars for each of said years as follows:

1895 125 cars
1896 125 cars
1897 124 cars
1898 124 cars
1899 124 cars
1900 124 ears
1901 139 cars
1902 139 cars
1903 167 cars
1904 166 cars
1905 166 cars
1906 166 cars
1907 166 cars
1908 166 cars

It was also then admitted that on or about the 1st of May of said years, appellee filed with the City Collect- or of the City of Chicago an affidavit stating the number of cars of appellee in regular use in transporting passengers, on the 1st of May of each of said years, as follows:

May 1st, 1895, 64 cars
May 1st, 1896, 64 cars
May 1st, 1897, 64 cars
May 1st, 1898, 74 cars
May 1st, 1899, 78 cars
May 1st, 1900, 78 cars
May 1st, 1901, 90 cars
May 1st, 1902, 90 cars
May 1st, 1903, 96 cars
May 1st, 1904, 96 cars
May 1st, 1905, 96 cars
May 1st, 1906, 96 cars
May 1st, 1907, 96 cars
May 1st, 1908, 96 cars

It was also then admitted that, at the time of the filing of said affidavits, appellee paid to appellant for car license fees $50 for each car therein stated to be in regular use.

The decree dismissing the bill for want of equity is predicated upon the finding of the chancellor that section 12 of the ordinance enacted October 1, 1894, is inconsistent with the provisions covering the payment of car license fees contained in the ordinances enacted November 24, 1890, December 19, 1892, and May 15, 1893, and that the same completely revised the subject matter of the payment of car license fees for cars operated by appellee over its railroad, and was intended by appellant and appellee to operate as a rescission and annulment of the provisions with reference to car license fees contained in said ordinances enacted prior to October, 1894, and as a substitute therefor; that none of the provisions of said ordinances enacted prior to October 1, 1894, with reference to the payment of car license fees, have been in force or effect since the acceptance of said ordinance of October 1, 1894, and that the only ordinance provisions now existing or that have existed since October 1, 1894, with reference to the payment of car license fees are those set forth in section 12 of the ordinance enacted October 1, 1894.

It is well settled that the repeal of a statute or ordinance by implication is not favored in law; that the earlier enactment continues in force, unless it is clearly inconsistent with and repugnant to a later enactment or. unless in the later enactment some express notice is taken of the former plainly indicating an intention to repeal it; that where two enactments are seemingly repugnant, they should, if possible, be so construed that the latter may not operate as a repeal of the former by implication. People v. Raymond, 186 Ill. 407; Galpin v. City of Chicago, 249 Ill. 554.

An examination of the various provisions of the ordinance of October 1, 1894, discloses that the primary purpose of the city council in enacting said ordinance was to grant to the Lake Street Elevated Railroad Company the right to construct and operate a line of railroad on Lake street from the east line of Market street to the east line of Wabash avenue. The first section of said ordinance expressly grants such right “subject however to the provisions hereinafter contained.” The provisions following such grant should, therefore, be construed as being applicable alone to the specific grant made, unless amplified by express language or necessary intendment. That the ordinance of October 1, 1894, was not intended to be operative as a blanket measure is evident from the frequent reference therein to the line of road “hereby authorized,” in contradistinction to the line or lines of road “heretofore authorized.”

■ The ordinances of November 24, 1890, and the ordinance of May 15, 1893, contain provisions requiring the payment by appellee of an annual car license fee of $50 for each and every car used in transporting passengers for hire, while the ordinance of October 1, 1894, contains a provision requiring the payment by appellee of an annual car license fee of $50 in advance for each and every car in regular use by it in transporting passengers for hire, and further provides that the payment of such license fee shall be in lieu of all other licenses to be imposed as regards the line of road “hereby authorized.” The only line of road “hereby authorized” was the line of road from Market street to Wabash avenue, and the language used expressly negatives an intention to make the car license fee provided for in the ordinance of October 1,1894, applicable to any line of road other than the one thereby authorized. If the car license fee provisions contained in the ordinances of November 24, 1890, and May 15, 1893, were intended to be superseded by the ordinance of October 1, 1894, the last proviso above referred to was clearly contradictory of such intention. That a repeal of the license fee provisions contained in the prior ordinances of November 24, 1890, and May 15, 1893, was intended is further negatived by the fact that section 16 of the ordinance of October 1, 1894, expressly re-enacts all of the provisions of said prior ordinances, except the provisions relating to the time for completing the road, which, was thereby extended to July 1, 1897. While the proof shows that appellee was operating an elevated railroad from West 52nd street, along Lake street, eastwardly across the Chicago river to Market street and south on Market street to Madison street, when the ordinance of October 1, 1894, was enacted, it is manifest from a reference to the provision in section 16 of said ordinance, extending the time for the completion of the remaining portion of the line of road, authorized by the ordinances of November 24, 1890, to July 1, 1897, that the entire line of road theretofore authorized was either not then completed, or that appellant erroneously assumed it was not then completed; otherwise the provision extending the time for its completion was meaningless. The physical situation involved is not difficult of comprehension, and the fact that the ordinance of October 1, 1894, applies only to a line of road 2,257 feet in length, from Market street to Wabash avenue, is of no significance, when it appears that it is the only line of road authorized by the ordinance. There was no physical impediment to the operation by appellee of the said line of road as a branch or spur line, and if appellee so operated the same until compelled by the provisions of said ordinance to operate said line of road as a continuous line in conjunction with the lines of road theretofore authorized, the license fee provision of said ordinance was available to appellant to enable it to collect a license fee for each car regularly used by appellee in transporting passengers for hire on such branch or spur line.

Counsel for appellee directs our attention to certain provisions of section 4 of the ordinance of October 1, 1894, as indicative of a clear intention on the part of the city council to thereby control the operation of the road as a whole, rather than of the particular line thereby authorized from Market street to Wabash avenue. We perceive nothing in this section, the provisions of which are heretofore set forth, that has any controlling influence in the determination of the question here involved. Indeed, the provisions of that section rather tend to accentuate the separateness of the line of road from Market street to Wabash avenue from the other lines of' road constructed and operated under prior ordinances. The first provision of said section merely requires that all trains passing over the Lake street bridge eastwardly shall at least alternately continue eastwardly on the line of road from Market street to Wabash avenue. This provision does not operate to compel appellee to run trains over the Lake street bridge eastwardly, but merely recognizes the right of appellee so to do, and requires at least each alternate train so passing over said bridge to continue eastwardly over the particular line authorized by the ordinance.

The second provision in the section relates to conditions not existing at the time the ordinance was enacted. In the absence of a provision in the ordinance of October 1, 1894, requiring the payment of car license fees on cars operated exclusively upon the line of road thereby authorized, it is doubtful whether any liability existed against appellee under any ordinance then in force to pay such license fees, and such provision in the ordinance of October 1, 1894, is properly referable to such situation as it then existed. The third and fourth provisions of said section 4 also relate to conditions not then existing.

We are clearly of the opinion that a repeal by implication of the provisions relating to the payment of car license fees contained in the ordinances of November 24,1890, December 19,1892, and May 15,1893, was not effected by section 12 of the ordinance of October 1, 1894.

In view of the conclusion arrived at by the chancellor that section 12 of the ordinance of October 1, 1894, operated as a repeal by implication of the provisions relating to car license fees contained in the prior ordinances, the further contentions of appellee, which it is insisted bar appellant from obtaining the relief sought by the bill, were not considered and determined.

It is insisted by appellee that the provisions relating to the payment of car license fees contained in the several ordinances are to be treated as contracts, entered into by appellant in its proprietary capacity, and not in its governmental capacity; that the conduct of appellant in accepting car license fees from appellee upon cars in regular use by it, as provided in section 12 of the ordinance of October 1, 1894, constituted a practical construction by appellant of the provisions of said ordinance in accordance with the contention of appellee that such provisions superseded the provisions relating to car license fees contained in the prior ordinances; that the acceptance by appellant of, and the receipts given by it to appellee for, an annual car license fee of $50 for each and every car in regular use by appellee in transporting passengers for hire, as provided in the ordinance of October 1, 1894, operated to discharge appellee from any liability to pay an annual car license fee of $50 for each and every car used by it in transporting passengers for hire, as provided in the prior ordinances.

For the sake of the argument it may be conceded that the provisions relating to car license fees contained in the several ordinances are to be regarded as contracts entered into by appellant in its proprietary capacity and not in its governmental capacity affecting the rights of the public.

The rule of practical construction may only he properly resorted to where the contract involved is ambiguous and uncertain, and as the provisions of the ordinances here involved are neither ambiguous nor uncertain, such rule is not applicable.

Section 2142 of the Municipal Code provides that the city collector shall receipt for any licenses that may be granted by the city and that his receipt shall be a discharge to the person to whom given to the extent and purport thereof.

The record discloses that on or about May 1, 1895, and on or about the first day of May of each year thereafter, appellee filed with the city collector an affidavit purporting to state the number of cars in regular use by it in transporting passengers for hire, and that appellee also then prepared a statement of account or bill stating the amount of its indebtedness to appellant for the ensuing year for licenses on the number of cars stated in said affidavit, and upon the payment by appellee of said amount the city collector receipted for the same as in full settlement of the amount, or as annual license for the number of cars stated. There is a slight variation in the phraseology employed in the several statements of account and receipts, but they are all properly referable to the liability imposed upon appellee by the ordinance of October 1, 1894, to pay a license fee of $50 for each and every car regularly used by it in transporting passengers for hire. We are unable to perceive upon what substantial ground receipts given to appellee for the payment of license fees payable under the provisions of the ordinance of October 1, 1894, can be extended or enlarged so as to cover license fees payable under the provisions of the prior existing ordinances, and operate to discharge appellee from its obligation to pay license fees payable under the provisions of such other prior existing ordinances. The failure or neglect, whether wilful or otherwise, of the city officials to demand and collect from appellee the license fees due and payable under the provisions of other existing ordinances can only operate here to prevent a recovery of such license fees beyond the period when such recovery is barred by the statute of limitations, when pleaded, as it was in the case at bar.

The original bill of complaint herein was filed February 26, 1906, and the right of appellant to recover annual license fees accruing prior to May 1, 1896, is tolled by the statute of limitations. It is admitted of record that on the 1st of May of each of the following years appellee owned and operated the following number of cars during each of said years, and that appellee paid license fees in each of said years upon the following number of cars, and that for each of said years appellee failed to pay license fees upon the number of cars, as follows:

Tear. No. of cars owned and operated by appellee. No. of cars upon which appellee paid license fees. No. of cars upon which appellee failed to pay license fees.
1896 125 64 61
1897 124 64 60
1898 124 64 60
1899 124 74 50
1900 124 78 46
1901 139 78 ' 61
'
1902 139 90 49
1903 167 90 77
1904 166 96 70
1905 166 96 70
1906 166 96 70
1907 166 96 70
1908 166 96 70

Other reasons might be assigned in support of our conclusion that the payment by appellee of license fees, as above stated, and the acceptance thereof and receipts given therefor by appellant, do not operate to estop appellant from demanding and recovering the license fees here involved, or to discharge appellee from the payment of such license fees, but we do not deem it necessary to extend this opinion by a discussion of such reasons.

The decree of the Circuit Court is reversed with directions to enter a decree finding that appellee is in- . debted to appellant for annual car license fees at the rate of $50 for each and every car used by appellee in transporting passengers for hire for the several years and for the number of cars as follows:

For 1896, 61 cars; for 1897, 60 cars; for 1898, 60 cars; for 1899, 50 cars; for 1900, 46 cars; for 1901, 61 cars; for 1902, 49 cars; for 1903, 77 cars; for 1904, 70 cars; for 1905, 70 cars; for 1906, 70 cars; for 1907, 70 cars; for 1908, 70 cars.

It is further ordered that in and by said decree appellee be directed to pay to appellant, within ninety days from the entry of said decree, the sum of $40,700, as and for annual car license fees so found to be due to appellant as aforesaid.

Decree reversed and cause remanded with directions.


text:
    Frank P. Illsley, Appellee, v. Peerless Motor Car Company, Appellant.
    Gen. No. 17,027.
    1. Agency—effect of contract making one “exclusive agent’’ in certain territory. Where defendant enters into a contract with plaintiff making him “exclusive agent” for the sale of its cars in certain territory, it is not to be distinguished from a contract giving “exclusive sale,” and a sale to a customer in plaintiff’s territory by the defendant directly or through an agent in other territory is a violation of the contract.

      2. Damages—where actual damage must he shown. Where defendant sells Its cars in violation of a contract making plaintiff exclusive agent in that territory, and the contract contains no provision • for the payment of commissions but contemplates that plaintiff’s profit shall be the difference between the purchase price and selling price, and it is not shown that there is a trade custom or usage which entered into the contract to the effect that plaintiff is entitled to commissions, it is incumbent upon plaintiff in order to recover more than nominal damages to prove actual damages.
    3. Damages—Where plaintiff must show sales could have heen made hy him. Where defendant sells its cars in violation of a contract making plaintiff exclusive agent in that territory, and the contract does not provide for commissions, and there is no proof of a trade custom which would entitle plaintiff to commissions, one of the elements necessary to be shown by plaintiff to entitle him to actual damages is that the sales in question could have been made by him if defendant or its agents had not made the same.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed February 19, 1913.
    Rehearing denied March 3, 1913.
    Montgomery, Hart & Smith, for appellant.
    Henry F. Dickinson, for appellee; William H. Tatge, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

This is a suit by Frank P. Illsley, appellee, against The Peerless Motor Car Company, appellant, to recover commissions on the sale of two automobiles, wherein a trial by jury in the Circuit Court resulted in a verdict and judgment against appellant for $2,039, to reverse which judgment this appeal is prosecuted.

By the terms of a written contract, bearing date October 10,1903, appellee was made the exclusive agent of appellant for the sale of its motor cars “in the territory included in the State of Illinois north of a line drawn east and west through the City of Vandalia, Illinois, to a line east and west located 125 miles north and east of Chicago with the exception of the City of Milwaukee, Wis.,—the State of Iowa east of a line drawn north and south through Des Moines, la.”

The contract further provides that appellee shall not contest or infringe a certain designated patent, nor keep on hand or dispose of any automobiles containing the inventions covered by said patent and not duly licensed thereunder; that appellant shall furnish to appellee such printed matter as appellant may publish, and that in its general advertising appellant will mention the address of appellee as agent for the territory named; that appellee shall do all local advertising, and conduct all local shows and exhibits at his own expense, the amount of such advertising to be at least equal to. that of other agents in said territory; that appellee shall maintain, at a suitable location in Chicago, proper salesrooms and repair and storage rooms, and shall at all times carry in stock at least one of appellant’s cars for demonstrating purposes and one or more new cars manufactured by appellant for sale at appellant’s list prices, and also such reasonable supplies as may be necessary; that appellee shall order from appellant not less than twenty-five 4 cylinder h. p. ears to be delivered, one immediately; one on January 1, 1904; one, February 1; two, March 1; five during April; eight during May, eight during June/that on all cars purchased from appellant appellee should be allowed a discount of 20% from the list prices, as fixed from time to time, f. o. b. cars, Cleveland, Ohio; that appellee shall pay 10% of the net price of all cars when the same are ordered and the balance in cash, or in draft attached to bill of lading, when cars are ready for delivery; that appellee shall devote his best energies to the sale of the products of appellant and to secure orders for the same as far in advance of delivery dates as possible, and to canvass through said territory and introduce said products there; that appellee shall refer promptly to appellant all inquiries received from territory other than his own, and shall not, except by permission from appellant in writing, sell or deliver any of such products in any territory other than Ms own; that neither appellee nor any one for Mm shall sell the products purchased from appellant at a price less than the list price at the time of such sale.

! The controversy here involved relates to the acceptance by appellant, either directly or through its agent at Milwaukee, of an order for, and the shipment by, appellant of a car, together with certain extras, for sale to Frank K. Bull, residing at Racine, Wisconsin, at the list price of $6,445, and also to the disposition of a car by appellant to A. C. Banker in Chicago at $3,750, the regular dealer’s price, less the dealer’s discount of 20%.'

The verdict and judgment awarded to appellee an amount equal to 20% of the list price to Bull and of the regular dealer’s price to Banker.

As regards the transaction with Bull, the evidence tends to show that shortly after the making of the contract between appellant and appellee, Bull visited the plant of appellant at Cleveland, Ohio, for the purpose of inspecting the cars manufactured by appellant, and with a view to purchasing one; that appellant immediately notified appellee by letter of the visit of Bull, and that he had assured appellant he would give an order for a duplicate of the machine which had been demonstrated to him there, and that appellant had informed Bull that the price of the car was $6,000, and that appellee controlled the territory in wMch he, Bull, resided, and expressed the hope that appellee might be successful in securing his business; that shortly thereafter Bull called upon appellee in CMcago and also had some correspondence with appellee regarding the purchase of a car; that Bull took some exceptions to the treatment accorded him by appellee and thereafter called upon the Jonas Automobile Company, the agent of appellant in Milwaukee, where, on January 19,1904, he executed a formal order, directed to appellant, for a car and extras for which he agreed to pay appellant $6,445; and thereafter appellant shipped said car and extras to Milwaukee, and the same were received and paid for by Bull.

Relative to the transaction with Banker, the evidence discloses that he was the sales agent of appellant prior to the appointment of appellee as such agent; that upon the termination of his agency Banker asserted a claim against appellant for damages arising out of his alleged wrongful dismissal and for a credit balance due him, which claim was finally settled by the delivery to him by appellant of a car upon the basis of a discount of 20% from the dealer’s list price of $3,750; that at the time such settlement was made appellant knew that Banker would doubtless sell the car at a price in advance of that at which it was delivered to him.

The sale to Bull was made without the knowledge or consent of appellee. Whether or not appellee assented to the delivery of the car to Banker in settlement of his claim against appellant is disputed.

First. It is insisted on behalf of appellant that the agency contract in question does not preclude appellant, as principal, from selling cars within the territory named, and that upon sales so made by it appellee cannot properly assert a claim for commissions; that a contract appointing an “exclusive agent” to sell goods within a designated territory is to be distinguished from a contract giving to one the “exclusive sale” of goods within such territory.

The obligations assumed by and imposed upon appellee by the terms of the contract in question serves to differentiate it from a contract wherein one is appointed an exclusive agent to sell land or the like, as in Gilbert v. Coons, 37 Ill. App. 448. In Marshall v. Canadian C. & Mfg. Co., 160 Ill. App. 114,'it is held that where there is an exclusive agency and the principal violates the contract by making sales directly and knowingly within the exclusive territory, he is clearly liable.

In the case at bar some of the reasons which entitled appellee to protection, within the designated territory, even against his principal, are stated by appellant in a letter to a firm doing business in Maryland, which had complained to appellant of the inadequacy of the commission allowed by appellee, thus:

“We note what you say about Mr. Illsley’s allowing you $100.00 for selling a car. Of course we cannot undertake to make Mr. Illsley give you a larger commission for making sale to a man in his territory. He has a certain number of cars ordered and expects to sell these cars through his regular sources, and in many cases our agents refuse to give any amount for assisting the sale as you suggest. Of course you understand that Mr. Illsley, or any other agent conducting a place of business with all the contingent expenses, has to get a considerable difference between the cost to him and the selling price to the purchaser in order to meet these expenses and leave any profit for himself. Also as we understand that the machine will be used in Chicago the customer will undoubtedly call on Mr. Illsley for instructions and accommodation, which are also an added expense to Mr. Illsley, while the amount that Mr. Illsley pays you will be entirely a clear profit. We therefore feel that in view of this the amount allowed you is by no means insignificant.
“We surely trust that you will see it in this light and try to negotiate the sale of the car through Mr. Illsley as suggested.”

In Garfield v. Peerless Motor Car Co., 189 Mass. 395, where the construction of a similar contract was involved, Orndorff, a resident of Worcester, purchased a car at the branch office of the defendant in Boston, and it was said:

“The contract was that the plaintiff was tó be the exclusive agent of the defendant for Worcester and vicinity. The sale in question was a violation of that contract. We do not agree with the defendant in his argument that the sale to Orndoff, being by the defendant itself, and not by an agent, was not in derogation of the plaintiff’s rights as an exclusive agent for the territory in question. In our opinion, a case where one is made an exclusive agent for the sale of his principal’s goods in a specified territory, unless there is something to control the phrase, is the same as the case where an agent is given the sole and exclusive sale of the goods of the principal, as was the agreement in Wiggin v. Consolidated Shoe Co., 161 Mass. 597. The right given here is exclusive of the principal, as well as of other agents. When it is said that the right is exclusive of the principal, it is not meant that the principal cannot sell. Of course, he can sell; but if he does, he violates the rights of his agent under the contract.”

That appellant so construed the agreement in question, and considered the place of residence of the purchaser and not the place where the sale was made, as determining the territory of appellee, is manifest from its repeated conduct and statements.

The court did not err in refusing to give to the jury the peremptory instructions tendered by appellant.

Second. While the right of appellee to recover nominal damages, by reason of a breach by appellant of the agreement, was clearly established, there is no substantive evidence in the record to support a recovery of 20 per cent, of the sale price of the cars as actual damages.

As in Garfield v. Peerless Motor Car Co., supra, the contract contains no provision for the payment by appellant to appellee of commissions upon cars and supplies sold, but contemplates that every such sale made within the designated territory should be made by appellee and that the profits of the latter should be the difference between the price at which he purchased and the price at which he sold. The contingency, which has arisen in this case, was, doubtless, not contemplated and is wholly unprovided for, and in the abseñce of proof of the existence of a uniform trade custom or usage, which entered into the agreement, to the effect that appellee was entitled to certain commissions upon all cars sold by appellant or its other agents within the designated territory, it is incumbent upon appellee, in order to entitle Mm to recover more than merely nominal damages, to prove actual damages, which is alone recoverable in an action for a breach of contract. La Favorite Rubber Mfg. Co. v. H. Channon Co., 113 Ill. App. 491; Cincinnati S. L. G. I. Co. v. Western S. L. Co., 152 U. S. 200.

In the absence of proof of such trade custom or usage, upon which to predicate an award of actual damages, one of the essential elements necessary to be shown by appellee in order to entitle him to actual damages, is that the sale or sales in question could have been made by Mm if appellant or its agents had not made the same.

Appellee made some attempt to establish the existence of such a uniform trade custom or usage, but signally failed to do so, and the record contains no substantive proof of the existence of such trade custom or usage. Neither is there any evidence in the record tending to show that appellee sustained actual damages by appellant’s breach of the contract.

The second instruction tendered by appellant was improperly modified by the court. As modified and given to the jury, the instruction was inconsistent and contradictory. We do not hold that the instruction was proper to be given to the jury as tendered, but merely hold that it was improperly modified. As tendered, the instruction does not permit a recovery of even nominal damages, to which appellee was at least entitled. If there shall be substantive proof of the existence of a trade custom or usage, as heretofore mentioned, upon wMch to predicate an award of actual damages, a like instruction, proper to be given, should not ignore such issue.

Other instructions tendered by appellant and refused by the court are not in harmony with the views here expressed and were properly refused.

The judgment of the Circuit Court is reversed and the cause remanded.

'Reversed and remanded.


text:
    Julius H. Geweke, Appellant, v. D. Hilsinger et al., Appellees.
    Gen. No. 17,069.
    1. Mechanics’ liens—formality in pleading. An owner, by-filing a petition for a general settlement under Mechanic’s Lien Act, §30, admits that the parties named as defendants have existing liens, and a defendant does not waive his right to a lien .by failing to assert it in his answer and by alleging merely such facts as tend to establish the amount due him from the principal contractor.
    2. Mechanics’ LiENS-^owreer cannot complain of finding as to amount due defendant from principal contractor. Where an owner files a petition for a general settlement under Mechanic’s Lien Act, §30, he is only directly concerned as to the amount found due from him to the principal contractor, and cannot complain of a finding as to amount due defendant from principal contractor.
    3. Mechanics’ liens—where motion to dismiss petition is properly denied. In an action for a general settlement under Mechanic’s Lien Act, §30, a motion made, after the time has elapsed within which defendant may assert his lien in another proceeding, to dismiss the petition on the ground that the answer of defendant when filed contained a prayer that he be dismissed with his reasonable cost, is properly denied.
    4. Mechanics’ liens—where extra work is performed by original contractor. In an action by the owner for a general settlement under Mechanic’s Lien Act, §30, where the petition prays for an accounting, an item of extra work is properly considered in determining the amount due the original contractor from the owner.
    5. Mechanics’ liens—time from which interest should be paid on amount due from owner to original contractor. In an action for a general settlement under the Mechanic’s Lien Act, a decree requiring the owner to pay interest on the amount found due from him to the original contractor from a date prior to the time the decree finds the contract was made, is erroneous.
    Appeal from the Circuit- Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed February 19, 1913.

      Ernest G. Kusswurm, for appellant; John B. Heinemann, of counsel.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellee Edwin D. Buell; Geary V. Stibgen, of counsel.
   Mr. Justice Baume

delivered the opinion of the court.

On February 5, 1907, appellant, Julius II. Geweke, filed his petition in the Circuit Court for a general settlement, under the provisions of section 30 of the act relating to mechanic’s liens, in force July 1,1903. The petition alleges the ownership by appellant of certain real estate and that on November 27, 1906, he entered into a contract with one Hilsinger, whereby the latter agreed to construct a certain building upon said real estate for $1,850, and to complete the same by March 1, 1907; that on February 1, 1907, said Hilsinger abandoned said contract; that various sums are due to various persons for labor performed and materials furnished in the construction of said building, and appellant fears that the contract price of $1,850 will be insufficient to satisfy all demands for labor and material necessary to complete the contract; that upon the demand of appellant said Hilsinger made a sworn statement, wherein it appears that there is due to the Morton Grove Lumber Company for lumber and mill work $650, to Joseph Pies for mill work $540, to C. B. Glass for mason work $175; that the estimated value of the labor is $172.50; that the statement of said lumber company shows $696.37 as the amount due to it, and $646.23, as yet to become due; that said Pies claims to have delivered and prepared mill work to the amount of $528; that said Glass claims that the mason work amounts to $375; that none of said claims have been paid except the sum of $200 to said Glass. The petition prays that said parties be required to interplead and that an accounting he had, etc. To this petition the William Sehroeder Lumber Company, doing business as the Morton Grove Lumber Company, and Joseph J. Pies filed their joint and several answer, wherein they set forth that there is due them $516.60 for lumber delivered and the further sum of $673.40 for lumber and mill work not delivered, making a total of $1,190; that the payment by appellant of $200 to said Glass was made in violation of their rights. The answer concludes with the usual prayer that the respondents “be hence dismissed,” etc. Answer was also filed by the contractor Hilsinger. Upon replications being filed to said answers the cause was referred to a master to take proofs and report his conclusions. Thereafter, appellee, Edwin D. Buell, trustee for the William Schroeder Lumber Company, bankrupt, was given leave to intervene and to “adopt all pleadings and proceedings on behalf of said William Schroeder Lumber Co.” On March 30, 1910, appellant moved to dismiss his petition as to said lumber company, said trustee in bankruptcy and said Pies, which motion was denied.

Neither the testimony taken by the master nor his report of his conclusions appear in the record.

The decree finds that the building contract was made, as alleged in the petition, and that Hilsinger abandoned the same; that the sum of $250 paid by appellant to Hilsinger was paid in violation of the rights of sub-contractors and material men and that appellant is not entitled to credit therefor, as against said subcontractors and material men; that Hilsinger at the request of appellant performed extra work to the amount of $265; that the cost of completing the building is $1,135; that appellant had paid for labor contracted for by Hilsinger and performed under the contract $176.70; that there was due from appellant to the administrator of the estate of Hilsinger $803.30, with interest thereon from May 1, 1906; that on December 4, 1906, said Hilsinger contracted with The William Schroeder Lumber Company for lumber to the amount of $650, and for mill work to the amount of $540, and that said lumber company delivered lumber and mill work upon the premises for use in the erection of the building according to the contract price to the value of $661.87; that such lumber and mill work was used in the. building and that said last named amount with interest from May 1, 1906, was due and owing to the said trustee of said lumber company from the estate of said Hilsinger; that there was a balance due from the estate of said Hilsinger to said Glass of $175, with interest from May 1, 1906; that said Buell, trustee in bankruptcy of The William Schroeder Lumber Company, and said Glass were each entitled to a mechanic’s lien upon the premises for the pro rata share of the amount found due them respectively of said sum $803.30, with interest from May 1, 1906. Further, the decree awards mechanic’s liens to said Buell as said trustee for $635.30, with interest thereon from May 1, 1906, and to said Glass for $168, with interest from May 1, 1906, together with costs including master’s fees fixed at $169, and taxed as follows: $39 to Glass, $65 to appellant, and $65 to said Buell as said trustee.

The errors signed and argued by appellant relate solely to matters affecting the appellee, Edwin D. Buell, trustee in bankruptcy of the estate of The William Schroeder Lumber Company.

First. It is urged that upon the petition and the answer thereto filed by said appellee the court was without authority to declare and enforce the right of said appellee to a mechanic’s lien. Section 30 of the act relating to mechanic’s liens, in force July 1, 1903, under the provisions of which it is conceded the petition was filed by appellant, manifestly contemplates that where such petition is filed by the owner the parties named as defendants therein have existing liens against the property involved which may be enforced in the proceeding according to their respective rights. The primary inquiry is directed to thé ascertainment of the amount due from the owner to the contractor, and the amount due each of the persons having liens. The same strict formality in pleading is not required as in other proceedings in law or equity. The right of appellee to a lien being admitted by appellant by the filing of his petition, appellee did not waive such right by failing to assert it in his answer and by alleging merely such facts as tended to establish the amount due him from the principal contractor.

Second. Appellant is only directly concerned as to the amount found to be due from him to the principal contractor, because the rights of appellee and his co-defendants are necessarily circumscribed and cannot extend or enlarge the liability of appellant beyond the amount so due from him to the principal contractor. Appellant, therefore, cannot be prejudiced by the finding in the decree as to the amount due to appellee from the principal contractor and cannot complain of the decree in that respect.

Third. More than three years after the filing of the petition herein and after the time had elapsed within which appellee might have asserted his claim for a lien in another proceeding, and long after the reference of the cause to the master, appellant moved the court for leave to dismiss his petition, which motion was denied. A dismissal by appellant of his petition as to appellee at the time stated would have seriously prejudiced the rights of appellee and the motion was properly denied. The mere fact that the answer of appellee when filed contained a prayer that he be hence dismissed with his reasonable costs did not require the court to dismiss the petition as to him upon appellant’s motion made three years thereafter.

Fourth. It is urged that the pleadings do not support a finding that any extra work was performed by Hilsinger the original contractor. The petition prays for an accounting, and for an ascertainment by the court of the amount due from appellant to Hilsinger, and the item of extra work, if any, was a proper subject of inquiry and determination.

Fifth. It is said that $65 of the amount taxed against appellant, as his share of the master’s fees for reporting the testimony, was improperly so taxed, because the order of reference did not direct the master to report the testimony. It is sufficient to say that there was no allowance to the master of fees for reporting the testimony and the fées'were not taxed for that service. The allowance of fees was properly made for taking the testimony and properly taxed for that service.

Sixth. The decree specifically finds that the contract between appellant and Hilsinger was entered into November 27, 1906, and that the contract between Hilsinger and The William Schroeder Lumber Company was entered into Décember 4, 1906. Notwithstanding such finding, the decree requires the payment of interest by appellant from May 1, 1906, upon the amount found due from him to Hilsinger, and awards interest to appellee from said date upon the amount due to him from Hilsinger. The evidence taken before the master is not incorporated in the record here, and we are unable to determine the date, other than the date of the entry of the decree, from which interest may properly be allowed. In view of the finding in the decree that the contracts were entered into on November 27, 1906, and December 4, 1906, respectively, wíiich finding is conclusive here, it is manifest that there is no theory upon which it could have been properly determined that interest ■ should be computed from May 1, 1906, and in this respect the decree is erroneous.

The decree is affirmed in all respects, except as to the allowance of interest from May 1, 1906, and in that respect the decree is reversed, and the cause remanded with directions to strike from the decree any allowance of interest from May 1, 1906, and to allow interest upon the several amounts there found due from May 16,1910, when said decree was entered. Three-fourths of the costs occasioned by this appeal will be taxed against appellant and one-fourth against appellee.

Decree affirmed in part, reversed in part, and cause remanded with directions.