text:
    Armanis F. Knotts, Appellant, v. The Lake Shore & Michigan Southern Railway Company, Appellee.
    Gen. No. 16,875.
    1. Contracts — where implied between owner and volunteer broker for compensation. Though a mere volunteer cannot recover for services rendered without a contract of employment, yet if the owner of property knows that an alleged volunteer is a broker and is trying to effect a sale and expects compensation, and it appears that the owner encouraged the broker and led him to believe that he would be compensated, a contract will be implied, if a sale is consummated by the broker.
    2. Trial — when motion to direct verdict denied. A motion to direct a verdict should be denied if there is any evidence upon which, considered in its most favorable light to the opposite party, the jury could reasonably find a verdict for such party.
    3. Trial — when error to direct a verdict. It is error to direct a verdict for the defendant in an action for commissions for the sale of real estate, where plaintiff was a real estate broker and the correspondence and conversations with the defendants seem to indicate an understanding that he was representing them and expected compensation, and that they did not dissent.
    4. Agenct — when of real estate agent ratified. Though a real estate broker begins work for the vendor as a mere volunteer his agency is acquiesced in and ratified, if the vendor understands that he expects a commission if a sale is effected and no inclination to disagree is indicated, but he is knowingly permitted to act upon that understanding until the benefit of his work is received.
    •Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    Bomberger & Sawyer and Marvin E. Barnhardt, for appellant.
    Glennon, Cary, Walker & Howe, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In the summer of 1905, Armanis F. Knotts, the appellant (plaintiff in the court below), who was a real estate agent, located at Hammond, Indiana, learned that the United States Steel Company desired to build a new plant and that it was looking for land in Indiana for that purpose. The Steel Company’s attorney asked the plaintiff if he had any of that kind listed for sale; and at his suggestion appellant saw Judge Gary, the chairman of the Board of Directors of the Steel Company, regarding the matter. Judge Gary told him that if the Steel Company could find a good location and the price was right, it would buy land for a plant, but would pay no commissions, which must be paid by the sellers. Following this conversation, plaintiff sold for divers parties, to the Gary Land Company, a subsidiary corporation connected with the Steel Company, about 8,000 acres of land in the vicinity of Pine Station, Indiana, which is on the line of the railroad of the defendant company. The defendant then owned a tract of 170 acres adjoining one of the parcels of land thus sold. On July 7 or 8, 1905, plaintiff called on S. W. Brown, superintendent of the western division of the defendant company in Chicago; told him that a large industry wished to locate near Chicago; that he, plaintiff, thought that he could sell land in Indiana to it, if he got enough together to suit its purpose, and asked Brown whether defendant would sell the 170-acre tract at Pine Station to such a concern. Brown replied by asking plaintiff what concern it was. Plaintiff declined to tell him, and Brown then asked the plaintiff whom he desired or wanted to represent. Plaintiff told Brown that he desired to represent the seller; that he had to represent the seller and could not represent the buyer, for the reason that it was definitely understood between him and the prospective buyer that the buyer would not pay any commissions.

Evidently Brown took up the matter with his superiors ; for on July 20,1905, he wrote to the plaintiff: “I beg to say, that I am instructed to inform you that we wish to help in every way to locate industries, and especially paying ones, on our line. I believe there will be no trouble in purchasing the property, but application must be made in writing and submitted to the executive board of directors of the New York Central Line, who have to pass on all sales of property before permission can be given. Will you be able to arrange to have such application made out in a formal manner?” To this letter plaintiff replied, July 26, 1905: “Complying with your suggestion, I hereby make application to the executive board of directors of the New York Central Line for the least possible cash price at which a very large and wealthy corporation could secure that portion of the land in Calumet county, at Pine Station,” (describing the tract) “for the purpose of locating thereon an industry that would employ from 1,500 to 2,000 men, with very large ship-' ments in and out. If the price and inducements aré satisfactory to the concern wishing the location, and it can secure other lands adjoining on the east and west sufficiently to answer its purpose, which I am now trying to do, I will then arrange so that the transaction may be carried on directly between the parties interested.”

Several interviews with Brown followed, and in September, 1905, it was suggested by another Mr. Brown, who was present at one such interview, that the plaintiff be sent to Cleveland to see Mr. Marshall, the general manager of the defendant company. Brown gave the plaintiff a pass over defendant’s railroad to Cleveland for that purpose, and on September 19th, plaintiff called on Marshall in Cleveland and repeated to him in substance the conversation he had previously had with Brown. Marshall insisted on knowing the name of the prospective buyer. Plaintiff objected, but when Marshall said that it would be impossible for him to do anything until he knew the name of the buyer, the plaintiff gave Marshall that information under his pledge not to divulge it. On September 20, 1905j plaintiff, by letter, requested Marshall to make a proposition for the sale of the land, suggesting that it was necessary to act speedily. In reply, Marshall wrote to plaintiff, September 22, 1905: “If, by selling the land which we own in the vicinity of Pine Station, and which is outlined in red on the attached blue print, a plant satisfactory to our company will he located at that point, we will sell the property at the average selling price of adjoining property, we to receive for that portion of our property fronting on the lake, the average price of the adjoining lake front property, and to receive for the remainder of our property the average price of the adjoining land surrounding. * * * The above subject to the approval of our hoard of directors who, under our rules, must pass on these matters.” To this ¡ letter plaintiff replied, September 25, 1905: “Yourjj letter and blue print received. 'After Mr. Brown of; your company, at Chicago, called up and reported to; me what you said, I arranged with the head of the concern to whom I wished to sell the property, to have him take up the matter with your company directly.”

At the interview with' Mr. Marshall in Cleveland, Marshall suggested to plaintiff that as - Judge G-ary and Mr. Newman, the president of the defendant company, both lived in New York, and they would have to ultimately pass on the matter, he, the plaintiff, ought to go to New York to see Mr. Newman. Following this suggestion, the plaintiff, on October 2, 1905, called on Newman in New York City. Plaintiff testified that Newman greeted him as though he knew who he was and what he came for. Plaintiff told Newman the purpose of his visit. Newman said, “Who are you representing?” Plaintiff replied: “I want to repre-. sent you in the sale of the land,” to which Newman responded, “No, I mean, to whom are you going to sell the land?” Plaintiff then asked Newman if he knew Judge Gary, and receiving an answer in the affirmative, plaintiff said, “I wish yon would call him up,” whereupon, Newman called up Judge Gary on the telephone. Plaintiff heard Newman say, “Mr. Knotts of Hammond is here with reference to some land that we own in Lake county, Indiana, and he informed me that you would like to buy it for the purpose of locating a factory there,” and also overheard Newman say to Judge Gary in substance: “We will sell you the'land at the prevailing price for land in that vicinity.” Plaintiff then returned to Hammond, and on October 16, 1905, wrote to Marshall, telling him that he had seen Newman and “heard him dictate a letter relative to the deed, etc.”, and inquiring as to the progress of the sale. On the same day, plaintiff wrote to Newman, inquiring what progress had been made “to consummate the sale of the Pine Station, Lake county, land to Judge Gary and his associates,” to which Newman replied, October 18, 1905, “I understand that Judge Gary will appoint some one representing his company to take up with Vice-President Brown, the matter of price for the land. When an agreement on that has been reached, the necessary steps will at once be taken to prepare deeds, etc., for execution.”

After the - sale was concluded, plaintiff sent a bill to Marshall, January 12, 1906, which was returned with a letter stating: “So far as my knowledge goes, we did not sell the land through you, and made no ¡^agreement to pay you a commission.” Plaintiff then brought suit in the Municipal Court, where it was tried before a jury. The plaintiff was the only witness, and at the conclusion of his evidence, theVourf, on motion of defendant, instructed the jury to find the issues for the defendant, which was done. A motion for new trial was interposed and overruled, and judgment entered on the verdict, from which the plaintiff appeals.

It is contended by appellant’s counsel that the court erred in directing a verdict for defendant, and by appellee’s counsel that there was no evidence tending to show a contract of employment, and that the plaintiff was a mere volunteer. While it is true that a mere volunteer cannet recover compensation for services rendered without any contract of employment, or rendered in spite of the refusal or against the wish and desire of the owner, (Wilcox v. Andrews, 150 Ill. App. 27; Morton v. Barney, 140 Ill. App. 333; Rees v. Spruance, 45 Ill. 308), yet, where it appears that the owner knows that the alleged volunteer is a broker, that he is endeavoring to effect a sale to a prospective buyer and expects to receive compensation for his services if successful, and where it also appears that with such knowledge on the part of the owner, the broker was encouraged by the owner to aid in the sale, and led by the owner to believe that he would receive compensation, a contract to pay compensation will be implied, if the sale is thereafter consummated through the efforts of such broker. Steidl v. McClymonds, 90 Minn. 205; Kinder v. Pope, 106 Mo. App. 536; Tinkham v. Knox, 18 N. Y. Supp. 433. By such conduct, the owner impliedly approves the agency of the broker.

In Story on Contracts, 5th Ed., Sec. 491, it is said: “So also the silence of either party will import assent to the terms of the contract whenever it would have been incumbent on him to express his dissent if he did not agree thereto, or where his silence is explicable only by the presumption of his assent.” It is not claimed that either Brown or Marshall dissented when plaintiff told them he desired to represent the seller because the buyer would not pay any commission, but appellee’s counsel insist that Newman did express his dissent, when, in response to plaintiff’s statement, “I want to represent you,” Newman said: “No, I mean to whom are you going to sell the land?” It is urged that the word “No” thus used was an expression of dissent to the overtures made by the plaintiff. We cannot thus construe Newman’s statement, in the light of what followed, and of the other evidence in the record. The sentence quoted evidently meant, “Ton do not understand me. What I meant by my question was, to whom are you going to sell the land?” At any rate, that was a reasonable inference from the testimony and one the jury would have the right to draw. We think the court erred in directing a verdict. Upon a motion to direct a verdict, the court cannot weigh the evidence. If there is any evidence, (beyond a mere scintilla of evidence) from which, when considered in the light most favorable to the plaintiff, a jury could,- “without acting unreasonably in the eye of the law,” find a verdict for the plaintiff, the motion must be denied. Libby v. Cook, 222 Ill. 206. We think it is a fair and reasonable inference from the plaintiff’s evidence and the correspondence .above mentioned, that the officers of the defendant company fully understood that the plaintiff expected to receive a commission if, through his efforts, a sale was consummated, and that they not only did not do or say anything to indicate their disapproval or disinclination to agree with the plaintiff in this reasonable expectation, but on the contrary, knowingly permitted him to believe that such was their understanding of the matter, and to act upon that belief until after they had received and accepted the benefit of his work. By so doing, they acquiesced in and ratified his agency, even though he began his work as a mere volunteer.

The judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Mary E. Lecklieder, Plaintiff in Error, v. Chicago City Railway Co., Defendant in Error.
    Gen. No. 16,887.
    1. Instruction's — cautionary. In an action by a woman for injuries received because of the alleged sudden starting of a street car, an instruction that it is the duty of the jury to consider the defendant corporation as though it were a living person, and to consider the evidence with the same fairness as if the contest were between two women, does not relate to the credibility of witnesses or to the weight of the evidence, but is a cautionary instruction which is largely in the court’s discretion.
    2. Instructions — duty of jury. The jury may be instructed that it is their duty to determine the facts from the evidence and to apply to such facts the law as stated in the instructions.
    3. Instructions — duty of jury. It would seem that the jury may be told, where compensatory damages only are sought, that it is their duty to assess damages if they find for the plaintiff.
    4. Words and phrases — appears. The word “appears” as used in legal documents and among lawyers means manifest or proved, but as ordinarily used means seems, or probably true.
    5. Instructions — harmless error. An obstruction that if it “appears” that the accident was due to certain want of care by the plaintiff no recovery can he had, though not approved will not reverse where other instructions state that recovery could be had if from the evidence the jury find that the accident occurred as alleged in the declaration, and it seems that the jury were not misled.
    6. Instructions — contributory negligence. An instruction as to contributory negligence is proper in an action against a street railway company for injuries where there is evidence that, in running to get on a car in motion, the plaintiff caught her foot on a switch handle.
    7. Contributory negeigence — when question for the jury. Where, in an action against a street railway company, it appears that the plaintiff in running to board a car in motion, caught her foot on a switch handle, the question of contributory negligence is for the jury even upon the theory that contributory negligence assumes negligence by the defendant.
    8. Instructions — when not objectionable as singling out testimony of one witness. An instruction, stating that no recovery can be had if in passing from the walk to a street car the plaintiff tripped over a switch handle and was not injured because of the sudden starting of a car, is not objectionable as singling out the testimony of one witness where such matter was substantially the whole theory of the defense.
    9. Instructions — when error cannot he complained of. Error in instructions cannot be complained of where the party complaining submitted instructions containing the same error.
    10. Instructions — when repetition will not reverse. Repetition in instructions will not ordinarily reverse if correct statements of law are given therein.
    11. Instructions' — when repetition should not reverse in absence of other error. In an action against a street railway company for injuries, repetition of accurate “stock” instructions as to sympathy, the disabilities of the plaintiff, and that the defendant is not an insurer, should not reverse where there is no other error.
    Error to the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 21, 1912.

      Certiorari denied by Supreme Court (making opinion final).
    Fyffe & Adcock and Brundage, Wilkerson & Cassels, for plaintiff in error; Earl D. Hostetter, of counsel.
    James G. Condon and Watson J. Ferry, for defendant in error; Leonard A. Busby, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff in error brought suit in the Superior Court against the defendant in error for personal injuries, alleged to have been sustained while in the act of boarding one of defendant’s street cars at the corner of Halsted street and Archer avenue, Chicago, on the evening of November 2,1904. The suit was twice tried. In the first trial the verdict was for the plaintiff, and from the judgment thereon defendant appealed to the Appellate Court, where the judgment was reversed and the cause remanded. (142 Ill. App. 139.) Upon the second trial, the jury returned a verdict of “not guilty,” and from the judgment entered upon that verdict, the plaintiff has prosecuted this writ or error.

The case was tried on a declaration containing two counts. In one, the negligence averred is the alleged wrongful and sudden starting of a street car which the plaintiff was in the act of "boarding, whereby she was thrown to the ground and injured. In the other, the negligence averred is that while the plaintiff was in the act of boarding the car, defendant wrongfully started the car suddenly, and the plaintiff’s foot was caught, whereby she was thrown to the pavement and injured. The plaintiff, a woman aged fifty-eight, and her son, thirty-four years of age, gave evidence tending to prove the averments of the declaration. Their story is, that while they were standing in the street at the corner above mentioned, a street car came along Halsted street from the south and stopped with the front platform almost directly in front of them. At this place there was in the street an iron lever or switch handle, encased in a small iron frame in the pavement. The switch is turned by raising one end of this lever. Plaintiff and her son testified that just as she put one foot on the step of the front platform, and while she was holding the “grab rail” with her left hand, the car started forward-with a sudden jerk, and that plaintiff was swung around and her foot struck against the handle of the switch, throwing her to the pavement and causing a severe injury. Defendant’s evidence tended to prove that plaintiff and her son were standing on the sidewalk until the street car, having-stopped at the place indicated had discharged its passengers and had moved .on, when plaintiff ran towards the front platform but, before reaching it, she stumbled over the switch handle, which was being- held up by the conductor, and was thereby thrown to the pavement and injured.

It is first urged that the verdict is not justified by the evidence. Two theories of fact were presented by the evidence, as above stated, neither of which is unreasonable nor improbable. We have examined the abstract and briefs of counsel and given them patient consideration, and without entering upon a discussion of the evidence, it will he sufficient to say that we do not flunk the court erred in overruling the motion for a new trial. The only other errors assigned are in the giving of instructions for the defendant. The court gave five instructions for the plaintiff and nineteen for the defendant. All hut two of the latter are objected to, and several in particular are criticised at some length. By the seventh instruction the court told the jury that it was their “duty” to consider the defendant in all matters pertaining to the trial as though it were a living person instead of a street railway corporation, and that it was their “duty to hear and consider the evidence with the same fairness and impartiality, and arrive at the same verdict,” as if the contest were between two women. The use of the words “it is your duty” in this instruction is objected to, and the case of I. C. R. R. Co. v. Burke, 112 Ill. App. 415, is cited as an authority for the proposition that instructions regarding the credibility of witnesses and the weight of evidence “should never be peremptory or mandatory in form.” The reason given by the court in that case is as- follows: “Any instruction tending to hamper a jury in the free exercise of its own judgment as to the credibility of witnesses or the weight of evidence is error; not in all cases sufficient to warrant a reversal, but always error.” The instruction in question does not relate to the credibility of witnesses, nor to the weight of the evidence in the ordinary sense, and does not in any degree tend to hamper the jury in the exercise of its judgment upon either of such questions. It properly falls within the class known as cautionary instructions, the giving or refusal of which is very largely in the discretion of the court. C. U. T. Co. v. Goulding, 228 Ill. 164; Donk Bros. v. Thil, 228 Ill. 233, 244. Moreover, it has been held that it is not error to tell the jury, in some cases, that it is their duty to do what the law clearly requires them to do. For example, a jury may be told, in an action in whicb compensatory damages only are sought, that if they find for the plaintiff, it is their duty to assess damages. Consolidated Coal Co. v. Haenni, 146 Ill. 614; City of Salem v. Webster, 192 Ill. 369, 374. The jury may also be told that it is their duty “to find and determine the facts from the evidence, and having done so, then to apply to such facts the law as stated in these instructions.” N. C. St. R. Co. v. Wellner, 206 Ill. 272, 274; C. & E. I. R. R. Co. v. Burridge, 211 Ill. 9; and that in determining upon which side the preponderance of evidence is, “the jury should” (or must) “take into consideration the opportunities of the several witnesses for seeing or knowing the things about which they testify,” etc. C. U. T. Co. v. Yarus, 221 Ill. 641.

The ninth instruction consists of two sentences, the first of which is approved in Goss Printing Co. v. Lempke, 191 Ill. 199, and Devaney v. Otis Elevator Co., 251 Ill. 28, and the last of which sentences is approved, in substance, in Ottawa Gas L. & C. Co. v. Graham, 28 Ill. 73, and N. C. St. R. Co. v. Fitzgibbons, 79 Ill. App. 632.

The sixteenth instruction is as follows: “If it appears from the evidence that the plaintiff attempted to board the car in question while it was in motion, and that her fall and injury were due to that fact, and that such conduct on her part was a want of ordinary care for her own personal safety, then you are instructed that she cannot recover in this case, and the verdict should be not guilty.” Two objections are urged against this instruction; first, that the words “if it appears” are misleading and do not,necessarily have the same meaning as the words “if the jury believe” or “if the jury find;” second, that there was no evidence that the plaintiff was injured by reason of her attempting to board a moving car. As to the latter objection, there was evidence introduced by the defendant, tending to prove that the plaintiff was injured by tripping over the switch handle while she was running towards the front platform and making an effort “to grab the rear handle of the front end of the platform,” and we think this evidence was sufficient to entitle the defendant to an instruction of this character. The other objection is a more serious one. The word “appears” is commonly used in two senses. In one sense, it has the same meaning as manifest, obvious or proved; but in another sense it means only seems, or probably true. In legal documents, such as decrees, orders of court, etc., and among lawyers, it is common to use the word as having the first of these meanings, such as in the phrase “it appears to the court;” but to the layman the expression “it appears to me” ordinarily carries no other significance than “it seems to me,” in the sense that it is probable or likely. By other instructions, however, the jury were told in substance that the case must be decided by the jury on the evidence, under the instructions of the court; that if they believed from the evidence that the plaintiff was injured in the manner and from the causes (stating them) alleged in her declaration, they should find the defendant guilty; and that they had the right, upon a consideration of all the evidence, to say where the truth lies upon any material fact. While, therefore, we do not approve the form of the sixteenth instruction in the respect noted, we do not think the jury were misled by it in this case.

Two instructions were given on the theory of contributory negligence. The fifteenth instruction is, in substance, the same as that approved in Flynn v. C. C. Ry. Co., 250 Ill. 460, 468, and the twenty-second i's an instruction defining the term “contributory negligence.” It is not claimed that either is incorrect, but it is urged that the case was not tried on the theory of contributory negligence; that contributory negligence assumes negligence on the part of the defendant, and that at no time during the trial did the defendant admit, or fail to deny, negligence on its part. Wherefore, it is said, it was not entitled to an instruction on the theory of contributory negligence. We think the objection is extremely technical. “The law of contributory negligence forbids a recovery by one who, by his own fault, brings an injury upon himself.” So. Chicago City Railway Co. v. Adamson, 69 Ill. App. 110, 113. In any event, the instruction was proper to be given for the reason that there was evidence from which the jury might have inferred that the plaintiff tried to get on the car after it had started, and in doing so, caught her foot on the switch handle. If such were the facts, it was a proper question for the jury to decide whether the plaintiff was guilty of contributory negligence, even under the theory mentioned in the objection.

The twenty-first instruction told the jury that if they believed from the evidence, that while passing from the sidewalk to the car, plaintiff tripped over the switch handle and was thereby injured, and that she was not injured by reason of the car being started, then they should find the defendant not guilty. It is urged that this instruction singles out and gives undue prominence to the evidence or testimony of a single witness. We think the objection is not well taken. It was substantially the whole theory of the defense, and it is familiar law that either party has the right to submit instructions upon his theory of the case, if it has a basis in the evidence upon which to rest. C. U. T. Co. v. Browdy, 206 Ill. 615, 623. The plaintiff gave two instructions containing the same error, if it be an error, and therefore, cannot complain.

Finally, it is urged that there was an undue repetition of instructions regarding sympathy and disabilities of the plaintiff; instructions telling the jury that defendant was not an insurer, and instructions as to the care required of the plaintiff. While the practice of repetition has been frequently disapproved, yet if the instructions given are correct statements of the law, repetition will not ordinarily be ground for reversal. Gould v. Mag. Metal Co., 207 Ill. 172. The instructions so complained of were what have come to be known as “stock” instructions. No question is raised as to their accuracy, and we do not think that in this case, in the absence of other error, the case should be reversed for this reason alone. Objections to some of the other instructions have also been urged, but we find no reversible error in them.

The judgment of the Superior Court will be affirmed.

Affirmed.


text:
    John G. Craig, Plaintiff in Error, v. Chicago Coach & Carriage Company, Defendant in Error.
    Gen. No. 16,915.
    1. Evidence — parol to explain contract. Where in an action for damages for a breach of warranty contained in a contract for the sale of an automobile, it appears that the words “as per cat.” after the word “guarantee” on the margin of the written contract were inserted after the sale and that the word “guarantee” was the only statement of warranty thereon at the time of the sale the plaintiff may show the nature of the guarantee by oral evidence.
    2. Practice — what evidence considered on motion to direct a verdict. On motion to direct a verdict for the defendant only the proof most favorable to the plaintiff can be considered.
    3. Practice — when testimony rejected on motion to direct a verdict. On motion to direct a verdict the court cannot reject improbable testimony unless it is contrary to some natural law.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.

      Joel C. Carlson, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.
   Mr. Justice Fitch

delivered the opinion of the court.

Plaintiff in error sued defendant in error in the Municipal Court for damages claimed to have heen sustained by reason of an alleged breach of warranty in the sale of an automobile. The plaintiff’s claim is that at the time he bought the automobile, the defendant warranted that the automobile would do all the work of the plaintiff, or if not, that defendant would take back the automobile and refund the purchase price, and that it also guaranteed the machine for one year against all defects in workmanship and material. Upon the trial in the court below, when the plaintiff undertook to prove an oral warranty, it was objected to upon the ground that there was a written contract. Plaintiff’s counsel claimed that the alleged written contract had been altered after it was signed. The alleged written contract was then produced. It was a paper entitled “contract,” signed by defendant, in which it agreed to sell and deliver to plaintiff the automobile.in question for $750, with a schedule, in abbreviated form, stating the style of the body, size of wheels, character of top, lamps, tools, painting, trimmings, etc.; and upon the margin, in lead pencil, was written the words ‘ ‘ Guarantee as per Cat.” In the lower left-hand corner appears also the signature of the plaintiff. There was evidence tending to prove that the words “as per cat.” referred to the catalogue, and were added after said contract was signed without the plaintiff’s knowledge; and plaintiff’s counsel, in offering to prove the oral guarantee above mentioned, claimed the right to make such proof in explanation of the word “guarantee.” The trial court refused to admit the evidence thus offered. There was evidence tending to prove that the automobile broke down nearly every time it was used, and that after it had been repaired by the defendant many times, plaintiff requested the defendant to take back the machine and refund the purchase price. There was no evidence that defendant refused so to do, beyond the facts that it did not do so, (although the plaintiff caused the machine to be placed in a garage subject to the order of defendant) and that this suit was brought. At the close of the plaintiff’s case, the court directed a verdict for the defendant, and this writ of error is sued out to reverse the judgment entered upon such verdict.

As the ease must be reversed and remanded for a new trial, we refrain from discussing the evidence further than is necessary to state the reasons for our opinion. If it be true, as the evidence of plaintiff’s witnesses tended to prove, that the words “as per cat.” were inserted in the contract after the sale, and that at the time of the sale the only statement of warranty or guarantee thereon was merely the word “guarantee,” then it was competent for the plaintiff to show, if he could, the terms of such guarantee. Fuchs & Lang Co. v. Kittredge & Co., 242 Ill. 88. “Where the agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is per se unintelligible, such explanation not being inconsistent with the written terms.” Quoted from Greenl. on Ev., Sec. 282, in Razor v. Razor, 142 Ill. 375, 379. To the same effect are Ruff v. Jarrett, 94 Ill. 475, and Stone v. Mulvaine, 217 Ill. 40. We think the court erred in not admitting the offered evidence on this point.

With the contract there was offered in evidence the carbon copy made at the same time, and defendant’s counsel point out the fact that during the discussion, out of the hearing of the jury, concerning the offer of the plaintiff to prove the oral agreement as to the guarantee, the trial court said: “I will tell you what. I think about it, the jury not being here. The evidence all becomes unbelievable in view of the contract copies;” and this view of the evidence is urged as supporting the instruction to find the issues for the defendant. “In passing upon a motion for a directed verdict the court does not weigh evidence. It looks only to the evidence supporting the claim of the party against whom the motion is directed, and that in the light most favorable to him. Contradictory evidence, however strong, cannot be considered.” Balsewicz v. C. B. & Q. R. R. Co., 240 Ill. 238, 244. On such a motion, only proof most favorable to plaintiff can be considered. The court cannot reject improbable testimony, unless it is contrarv to some natural law. Zetsche v. C. P. & St. L. Ry. Co., 238 Ill. 240. The plaintiff’s evidence, on such a motion, must be “taken to be true.” Waschow v. Kelly Coal Co., 245 Ill. 516, 519. “To hold otherwise is to deny to plaintiff the right of trial by jury.” Libby v. Cook, 222 Ill. 206, 213. In our opinion, there was evidence in the record fairly' tending to prove the plaintiff’s cause of action, and it was error for the court to direct a verdict.

For the reasons indicated, the judgment of the Municipal Court will be reversed and remanded for a new trial.

Reversed and remcmded.


text:
    Clara Dressel and Thomas F. Hunt, Administrators, Appellees, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,934.
    1. Master and servant — instructions. It -would seem that it is reversible error to give instructions which direct a verdict and ignore the defense of assumed risk when the relation of master and servant is shown to exist, unless, as a matter of law, the facts do not show that the servant assumed the risk.
    2. Master and servant — when fellow-servant cannot recover. If a motorman and an electrical laborer repairing a trolley wire are fellow-servants, such laborer cannot recover against the common master for injuries caused by the negligence of the motorman in running his car at a high speed when the tracks were “greasy” and in failing to keep a proper lookout.
    3. Master and servant — negligence. If a motorman and an electrical laborer are not fellow-servants such laborer can recover against the master for the negligence of the motorman in approaching an unlighted viaduct at a high rate of speed without keeping a proper lookout.
    4. Master and servant — fellow-servants. Whether a motorman and an electrical laborer engaged in repairing trolley wires are fellow-servants is a’question of fact for the jury.
    5. Master and servant — instructions. Where the question whether an electrical laborer injured by the alleged negligence of a motorman and such motorman are fellow-servants is not negatived by the declaration, instructions that if the jury find from the evidence that defendant was guilty of negligence as alleged in the declaration, and that such negligence caused the injury, and that the one injured exercised ordinary care, the verdict should be for the plaintiff should not be given.
    6. Master .and servant — instructions. In an action against a street railway company for the death of an electrical worker caused by the alleged negligence of a motorman, it is not error to refuse an instruction to the effect that if the jury find from the evidence that there was a safe way for such laborer to repair the wire in question and an unsafe way, and that deceased chose the unsafe method, then no recovery can be had, since it assumes that the way selected was unsafe and does not specify that the method chosen must have contributed to the injury.
    7. Street rahroads — duty to those using street. A street railway company owes to all persons using a public street with due care the duty to exercise reasonable care in operating its cars and that fact that one so using a street is a servant of the company does not release it from its duty.
    8. Master and servant — pleading. In an action against a street railway company for death caused hy the alleged negligence of a motorman where the declaration proceeds on the theory that the company was under a duty to deceased as a member of the community and does not state that the relation of master and servant existed, it states a good cause of action and if the evidence shows the existence of the relation, this may be a defense or it may not, according to circumstances.
    9. Street raiijroads — pleading. A declaration states a good cause of action against a street railway company where it alleges a duty upon the company, by its servants in charge of a car, to keep a proper lookout and to operate the car in a safe manner to prevent it from colliding with a wrecking wagon on which deceased was working in the exercise of due care, which duty the company failed to perform and allowed the car to collide with the wagon, thereby killing the deceased.
    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.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    John E. Kehoe, C. LeRoy Brown, for appellant.
    Edward Maher, for appellee; Guerin, Gallagher & Barrett, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a judgment for $7,350, recovered hy appellees as damages for negligently causing the death of John Dressel, deceased. The declaration contains two counts. The first count alleges that defendant (appellant here), on October 22, 1904, operated a street railroad on Archer avenue, a public highway in Chicago, and used thereon an electric street car, which was under the management of defendant’s servants, who were driving the same on said highway towards a subway near the intersection of Archer avenue and Twenty-third street; that it was the duty of the defendant, by its servants in charge of the car, “to keep a proper look-out, and to run and operate its said electric car in a safe manner, so as to prevent it, the said electric car of the defendant, •from' running against and colliding with a certain wrecking wagon, upon which the deceased, John Dressel, was then and there standing, working at the fixing and repairing of an electric wire which was strung under the subway aforesaid, at or near the place aforesaid, and while he, the said John Dressel, was then and there in the exercise of due care and caution for his own safety in that behalf;” that defendant, in disregard of its duty, did not keep a proper look-out and did not operate its car with care so as to prevent it from colliding with the wrecking wagon, but carelessly and negligently failed to do so, and the car collided with the wrecking wagon upon which Dressel was working “in his employment as an electrical laborer, and while he was exercising due care and caution for his own safety;” by means whereof, Dressel was thrown from the wagon to the ground and killed. The second count, after alleging the same facts concerning the operation of the street car upon the public highway at the subway mentioned, avers that it then and there became the duty of the defendant, by its servants, “to run and operate its said electric car at a reasonable rate of speed, so as not to collide and run into a certain wrecking wagon, which was then and there upon the tracks of the defendant, and upon which the deceased, John Dressel, was then and there employed as an electrician and electric repairer, to undertake certain repairs on a wire which was strung under the subway aforesaid;” that the defendant disregarded said duty, and negligently ran its car at a high and dangerous rate of speed, and ran into and collided with the wrecking wagon upon which Dressel was working with due care; by means whereof, Dressel was thrown to the ground and killed. To these counts, the defendant filed a plea of the general issue.

Upon the trial before a jury in the Circuit Court, it appeared from the evidence that Dressel was an employe of the defendant company: that he had charge of the wrecking wagon mentioned in the declaration; that he was working at the time with two other employes named McCauley and Spotten. The wrecking wagon, or “repair wagon,” as it is sometimes called in the evidence, consisted of a wagon about twelve feet long, carrying what is called a “tower,” a skeleton framework Structure rising six and one-half feet above the body of the wagon, upon which the men stood while repairing trolley wires. Attached to each of the front corners of the wagon was a common barn lantern. At about 11:30 p. m. on October 22, 1904, the three men were repairing a broken wire underneath a bridge or viaduct over a subway on Archer avenue, between Wallace and Butler streets. Archer avenue runs' northeast and southwest. The first street west of the subway is Wallace street, the second Emerald avenue, and the third Halsted street. The street car tracks curve to the south in passing through the sub-, way from the west. The repair wagon was standing in the east bound or southerly track, under the subway. The horses were facing northeast, and the rear end of the wagon projected several feet beyond the westerly end or side of the subway bridge. There were no street lamps in the subway, the nearest street lamp being an electric light 200 feet away. Spotten was standing on the ground holding the horses’ heads. McCauley and Dressel were on top of the tower, working at the broken wire. Dressel had with him there one of the lanterns which he had taken from the front of the wagon. The other lantern remained in its place at one of the front corners of the wagon. An electric car, forty-eight feet long, came from Halsted street into Archer avenue on the southerly track. When it reached Emerald avenue, Spotten saw it and called out to Dressel that a “car was coming pretty, fast.” Dressel told Spotten to go and flag it or stop it, but did not get down from tbe tower. Spotten tried to unfasten tbe lantern from tbe front of tbe - wagon, found be would not bave time to do so, and tben ran southwesterly on tbe track, waving bis bat in bis band and thus endeavoring to stop tbe coming car. Mc-Cauley descended from tbe tower to tbe wagon seat, and Dressel tben waved bis lantern across tbe track from bis position on top of tbe tower. Spotten, running towards tbe car, reached a point about 150 feet west of tbe subway before tbe car passed him. He was unable to attract tbe attention of tbe motorman, who testified that be did not see Spotten, nor did be see either of tbe lights on the wagon. Tbe motorman also testified that when be reached a point about 150 feet from tbe subway, be noticed a dark object under tbe subway, and at once shut off tbe power, applied bis brakes, and with bis foot opened tbe sand spout; that tbe track was a “greasy” track, by which be meant a track that was partly wet and partly dry, causing tbe car wheels to slip and slide along tbe track. Tbe car bit tbe wrecking wagon, capsized it, and Dressel was thrown to tbe ground and killed.

As we bave reached tbe conclusion that tbe case must be reversed and remanded, we refrain from discussing tbe evidence further than is necessary to show tbe reasons for our conclusion. It is contended that there were errors in tbe admission of evidence, and that tbe deceased was guilty of contributory negligence. As to these contentions it will suffice to say, that upon a consideration of all tbe facts shown in this record, we cannot say, as a matter of law, that tbe deceased was guilty of contributory negligence, and we do not think that the alleged errors in tbe admission of evidence, if conceded to be errors, were of such a character as to reverse tbe case, if standing alone.

Tbe trial court gave to tbe jury, at tbe request of tbe plaintiff, three instructions, the gist of each of which is that if the jury find from the evidence that the defendant was gnilty of negligence as alleged in the declaration, that snch negligence caused the injury to the deceased, and that before and at the time of such injury the deceased was in the exercise of ordinary care for his personal safety, then the verdict should be for the plaintiff. These instructions direct a verdict and ignore the defense of assumed risk. It has been held in several recent cases, that it is reversible error to give such instructions when the relation of master and servant is shown to exist, unless it can be said, as a matter of law, that the facts do not show that the servant assumed the risk. Krieger v. A. E. & C. R. R. Co., 242 Ill. 544; Cromer v. Borders Coal Co., 246 Ill. 451; Cantwell v. Harding, 249 Ill. 354. If it were not for the uncontradicted fact that the negligent act, if any, which proximately caused the injury, was the act of the motorman in approaching a subway in the darkness at full speed, fourteen or fifteen miles an hour, when he knew, as he himself testified, that the tracks were “greasy” and that under such conditions he could not possibly stop his car in less than 150 feet, we would have no difficulty in finding that the remaining facts and circumstances shown do not make out a case of assumed risk. But it is frequently stated, in the authorities upon this subject, that a servant assumes the risk of the negligence of a fellow servant within the legal meaning of that term, as one of the “ordinary risks” of his employment. C. & N. W. R. R. Co. v. Moranda, 93 Ill. 302, 321; I. C. R. R. Co. v. Cox, 21 Ill. 20; Fitzgerald v. Honkomp, 44 Ill. App. 365; 26 Cyc. 1279. Whether this statement be technically accurate or not, it is firmly established in this state, that a master cannot be held liable for damages for an injury, the proximate and sole cause of which is the negligence of a fellow servant, such as defined in the Moranda case, supra. In either view, if the motorman was a fellow servant of the deceased, the plaintiff, under the law, could not recover damages from the common master for an injury caused by the negligence of the motorman; and if, on the other hand, the motorman was not a fellow servant of the deceased, then the master would be liable for the negligence of the motorman. The question of whether the motorman and the deceased were fellow servants is therefore of vital importance under the facts of the record now before us. In Bennett v. Chicago City Railway Co., 243 Ill. 420, 428, it is said: “Whether two persons, servants of a common master in a given case, are fellow servants is a mixed question of law and fact. Lake Erie & Western Railroad Co. v. Middleton, 142 Ill. 550. The definition of fellow servant is a question of law. Indianapolis & St. Louis Railroad Co. v. Morgenstern, 106 Ill. 216; Hartley v. Chicago & Alton Railroad Co., 197 Ill. 440. The question of the relation of fellow servants is ordinarily one of fact, and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to be drawn therefrom, is such that all reasonable and intelligent men must reach the same conclusion.” In that case, a conductor on a Cottage Grove avenue car was injured by the alleged negligence of the motorman of a Sixty-third street car, which collided with the Cottage Grove avenue car at a crossing after the motorman had applied his brakes and endeavored to stop his car, but was unable to do so, because the tracks were greasy. In the dissenting opinion, two of the judges of the Supreme Court were of the opinion that the conductor and motorman were fellow servants, but in the opinion of the majority of the court, it is said (p. 432): “All reasonable minds would not reach the same conclusion on this question on the facts in this case. That question was, therefore, one of fact that was properly submitted to the jury.” We are of the opinion that the same is true of the facts in this case, viz: That all reasonable minds would not reach, the same conclusion from such facts, upon the question whether the motorman and the deceased were fellow servants. It was, therefore, a question of fact for the jury, and the instructions mentioned should not have been given without modification.

Complaint is also made of the refusal of the court to give an instruction which told the jury that if they believed from the evidence that there existed a reasonably safe way, and also a dangerous way, to do the work, each of which ways was equally open to the deceased, then “if Dressel selected the unsafe method of doing said work through carelessness or because it involved less exertion on his part, then the plaintiff cannot recover.” There are three objections to this instruction: First, in substance, it was covered by other instructions; second, it assumes that Dressel selected an unsafe method, and third, it omits the necessary qualification that the method selected contributed to his injury. There was no error in refusing the instruction.

It is also urged that the declaration does not state a cause of action, because (it is said) the evidence shows that it is a master and servant case, and no facts are alleged showing that the master owed any duty to the deceased, or that the deceased did not assume the risk, or that the alleged negligence was not the act of a fellow servant. While it is true that the evidence showed that the relation of master and servant did exist, yet neither count of the declaration alleges that such a relation existed, and in neither count is any breach of a master’s duty charged or relied on as a ground for recovery. The declaration is drawn entirely upon the theory that the defendant owed to Dressel, as a person lawfully upon a public highway, the duty of so operating its street car thereon, by keeping a proper look out, and by running its car with reasonable speed, as not to injure him while he was exercising due care for his own safety. We have been referred to no authority for the proposition that where a declaration does not seek to recover for any breach of a master’s duty, and does not allege facts tending to show that the relation of master and servant was in any way involved, it is necessary for the plaintiff to allege facts showing that he did not assume the risk and that he was not a servant of the defendant. If that were true, such negative averments would be necessary in every case where a street car company negligently ran into a man or a wagon on a public thoroughfare. It seems to be assumed by appellant’s counsel, that a street car company owes no duty to one who is its servant unless such duty arises out of the relation of master and servant. Such an assumption overlooks the obvious fact that an employe does not cease to be a member of the community simply because he has an employer. A street railway company owes to all persons who, in the exercise of due care, are lawfully using a public street, the duty of exercising reasonable care in the operation of its street cars over such street; and the declaration proceeds entirely upon that theory. The fact that the evidence shows that the relation of master and servant exists may furnish a defense or it may not, according to the facts of the case. Considered purely as a pleading, we think the declaration states a good cause of action.

For the reasons indicated, the judgment of the Circuit Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    Edward McGovney, Appellee, v. C. Goesel, Appellant.
    Gen. No. 16,948.
    1. Sales — warranty. A finding of the trial court that the defendant warranted a certain engine sold to be a 15 horse-power engine, and that there was deceit and fraud in the sale, is fully supported by evidence which, although contradictory, tends to show that the engine had been standing on defendant’s premises for several years, that he knew it was practically worn out and had it painted so as to appear in good condition and that he had warranted it to have 15 horse-power on being informed by the plaintiff as to the purpose for which it was to be used.
    2. Trial — propositions of law. It is proper to refuse a proposition of law drawn on a theory not applicable to any theory advanced in the case.
    3. Trial — propositions of law. It is not error to refuse a proposition of law which is a repetition, in substance, of one marked “held.”
    4. Appeals and errors — harmless error. Where propositions of law relate only to questions which the court has ruled upon in the trial, which rulings are otherwise preserved for review by the record, an error in marking such propositions “held” or “refused” is harmless error.
    5. Evidence — weight. A proposition of law stating that when a plaintiff is uncorroborated and the defendant and two witnesses state the facts differently, and all have equal opportunities for knowing the facts and none of the latter are impeached, their testimony should outweigh that of the plaintiff, is an inaccurate statement of the law.
    6. Witnesses — credibility. A proposition of law that the testimony of a witness cannot be disregarded unless he is impeached by some recognized mode for impeaching a witness, is inaccurate.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Michael Frank Cure, for appellant.
    Edward G. Purkhiser and John S. Reynolds, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

In 1908, Edward McG-ovney, appellee, hereinafter called the plaintiff, owned a 6 horse-power International gasoline engine, which he had purchased from appellant, hereinafter called the defendant, in 1907, for $325. On October 15, 1908, plaintiff effected a trade with the defendant, in which the plaintiff delivered to the defendant the engine above mentioned and his promissory notes for $200, and received from the defendant, in exchange therefor, a Challenge gasoline engine, valued at about $500. The plaintiff took the Challenge engine from the defendant’s place of business in Tinley Park, Illinois, to the plaintiff’s farm, located near the village of Mokena, some five or six miles away. A few days after, plaintiff endeavored to operate the engine, but was unable to do so. He telephoned that fact to the defendant, who sent his son, a machinist, to the farm, but the son met with no better success. Thereupon, defendant sent to the plaintiff’s farm an expert, named Frendendal, from the Challenge factory. The expert tried, during a whole day, to make the machine develop more than six or eight horse-power, but was unable to do so, and the following day, plaintiff sent the engine back to defendant’s place of business and left it there in his yard. In January, 1909, McGovney brought suit in assumpsit. There were several special counts in the declaration, and also the common counts. In the special counts plaintiff claimed damages for breach of an alleged warranty that the Challenge engine was a 15 horse-power engine, and for fraud and deceit in the sale of the same to the plaintiff. Upon a trial before the court, without a jury, the court found the issues for the plaintiff, and assessed the plaintiff’s damages at $512.50, from which judgment the defendant appeals.

Though many alleged errors are assigned in the record, the brief and argument of appellant’s counsel are confined to two propositions: First, that the finding is against the evidence; second, that the court erred in marking “refused” a number of propositions of law which were submitted to the trial court. The evidence is conflicting. The plaintiff testified to the facts stated above, and also that in July or August, 1908, he had a conversation with a son of the defendant, who was in the employ of the defendant, regarding an exchange of the plaintiff’s International engine for a larger and more powerful one, and a Challenge engine was mentioned. On August 5, 1908, defendant wrote to plaintiff ; “If you like to buy the large second hand engine, the new water cooling pump will be ready tomorrow noon, ’tis the best second hand engine we have, and I will warrant it all right; new engine for that size costs about 9 or 950.” One of the plaintiff’s witnesses who lives at Tinley Park, testified that he saw the Challenge engine in defendant’s yard many times prior to October, 1908; that it had been there about four years; that defendant put a new cooling device and a circular tank on it and repainted it; that it was an old and practically worn out machine. The expert, Freudendal, testified that he also saw the engine in defendant’s yard about a year prior to October, 1908, and made an examination of it at that time; that he had then been asked by defendant to say what could be done with it, and that he told defendant to send it to the factory to be overhauled. That witness also testified that the engine was practically worthless; that there was “not enough compression” in the engine, and the exhaust valve was too small and would choke before any power could be produced; that it could not be made to produce power, unless it was thoroughly overhauled, which would cost nearly as much as a new engine. The plaintiff further testified that before making a trade, he told defendant that the International engine was not large enough for his uses; that he wanted a larger engine for threshing grain, which his six horse-power engine would not do, whereupon, defendant expressly guaranteed that the Challenge engine would produce fifteen horse-power; that at that time defendant started the engine and ran it a while; that plaintiff placed a fence board, three inches wide, under the fly wheel as a sort of test of power, and as it appeared to work all right, he made the trade, relying upon defendant’s warranty. "Defendant and his two sons squarely contradict- all of plaintiff’s evidence regarding the alleged oral warranty. They testified that defendant expressly stated that he would not guarantee a second hand engine, and that plaintiff might make such test as he wished to make before making the trade; but that plaintiff expressed himself as satisfied with the test he made.

In view of the very earnest contention of appellant’s counsel regarding the facts, we have examined the record with care; and without entering upon a further discussion of the evidence, ,it will suffice to say that we are of the opinion that the finding of the trial court is fully supported by the evidence, and that the court did not err in finding the issues for the plaintiff.

Regarding the propositions of law, we find there were twenty, submitted, of which the court marked five “held” and the remainder “refused.” Of those refused, two are drawn on the theory of an implied warn ranty, which are inapplicable to any theory of liability advanced in this case. Another, the seventh, is a mere repetition, in substance, of one which was marked “held”. One, the twentieth, refers to the alleged error of the court in admitting in evidence the letter of August 5, 1908, to which defendant objected and preserved his exception; and the remainder, Nos. 8 to 19 inclusive, all related to the weight of the evidence and the credibility of the witnesses. The court might, without impropriety, have marked the 20th proposition “held,” but the purpose of submitting propositions of law is to determine whether the trial judge entertains correct views of the principles of law involved in the proceeding. Wherever the propositions submitted relate only to questions, which the court has ruled upon in the trial, and which rulings are otherwise preserved for review by the record, “as in case the propositions of law relate merely to the rules of law governing the admission or rejection of evidence on which the court has ruled, and to which rulings proper objections and exceptions have been preserved,” an error in marking such propositions “held” or “refused,” or in refusing to consider the same, is harmless error. Union Traction Co. v. City of Chicago, 202 Ill. 576, 585. The same rule might be applied, perhaps, to the remaining propositions of law regarding the weight of the evidence and the credibility of witnesses, but they were all properly refused for another reason, namely, that none of them is entirely accurate in its statement of the law. Most of them undertake to state under what circumstances a trial judge may disregard the entire evidence of a witness, and each of such propositions omits some material element recognized by all the authorities. For example, the 9th states that when a plaintiff is uncorroborated and the defendant and two witnesses state the facts differently, and all have equal opportunities for knowing the facts and none of the latter are impeached, their testimony should outweigh that of the plaintiff. This omits several elements of value in weighing the testimony of the witnesses, such as the appearance of the witness upon the stand, his apparent candor and fairness, the probability or improbability of his statements, and other like circumstances which may affect the credibility of witnesses. The 10th states that the testimony of a witness cannot be disregarded unless he is impeached by some recognized mode “for impeaching a witness,” omitting the familiar rule that the uncorroborated evidence of a witness may be disregarded if the court, sitting as a jury, believes from all tbe evidence tbat be bas wilfully sworn falsely to a material fact. Others omit all of tbe recognized tests for weighing evidence, and others require tbe court to be “satisfied”, instead of merely believing from tbe evidence, that a state of facts bas been proved. After a careful examination of tbe several propositions thus submitted and marked “refused”, we are of tbe opinion tbat no reversible error in this respect was committed by tbe trial court.

Defendant’s counsel found it necessary to file an additional abstract of tbe record. We have found it necessary to refer frequently to such additional abstract to correctly understand tbe evidence.

Tbe judgment of tbe Circuit Court will be affirmed and tbe cost of tbe additional abstract will be taxed against tbe appellant.

Affirmed.


text:
    Isadore LaBelle, Appellee, v. Grand Central Market Company, Appellant.
    Gen. No. 16,962.
    1. Landlord and tenant — eviction. A verdict finding that a tenant has been evicted from a cigar booth is not against the manifest weight of the evidence, where the evidence, although contradictory, tends to show that a detective was stationed before the booth who informed everyone that no sales were being made at that booth, and that subsequently persons were procured who removed the fixtures and stock of goods from the booth and there was further evidence that the tenant had paid his rent and complied with the lease until such eviction.
    2. Evidence — weight. The use of the phrase “Although hut slightly” in án instruction on the preponderance of evidence is not objectionable as misleading.
    3. Frauds — statute of — leases. A lease which is void because of the statute of frauds becomes a month to month tenancy where the tenant enters into possession and pays the monthly rent agreed upon.
    4. Landlord and tenant — notice to quit. A month to month tenant is entitled to notice to quit.
    5. Damages — eviction of tenant. Where a tenant with his stock and fixtures valued at $480 is evicted from a cigar booth with a most wanton disregard of his rights, a verdict for $1,000 is not excessive.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Dunn & Hayes, for appellant.
    Charles H. Mitchell, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

From a judgment rendered by the Superior Court, Cook county, in favor of appellee and against appellant, for $1,000, for damages sustained by an alleged wrongful eviction, the defendant appeals to this court and urges the following reasons as grounds for reversal : 1. The verdict was excessive; 2. The plaintiff’s first instruction was erroneous; 3. The verdict is against the weight of the evidence. It appears from the evidence that appellant was the owner of a building located at West Harrison and Loomis streets, Chicago, which was divided into stalls or booths that were leased to retail merchants. This building is called, by the witnesses, a market. One George H. Shank was the builder of the market and an officer of the defendant company, and after September 19, 1908, his son, Edward B. Shank, was the manager of the market. Prior to that date the renting agent was one De-Kopski. The plaintiff, LaBelle, applied to DeKopski on the premises for a space in the market for a retail cigar and tobacco stand. DeKopski offered, and La-Belle accepted, a stall near the middle of the market, which DeKopski told LaBelle he could occupy as long as lie wanted to at $30 a month. LaBelle paid $10 down, it being understood that the rent should not begin until September 15, 1908, the day set for the opening of the market to the public. LaBelle then purchased store fixtures, consisting of a ten-foot show case with closed doors, a case for his stock of cigars and tobacco and the other fittings for such a stand, and rented a cash register, all at a cost of about $180, and put in about $300 worth of cigars and tobacco.

After LaBelle had occupied this stall about a week, he became disssatisfied with it and went to George H. Shank, who, LaBelle testified, told him there was a stall in the main aisle on Loomis street which he could have for $40 a month, and that upon that understanding he took possession of the last mentioned stall. He also testified that three days later, September 26, 1908, George H. Shank requested him to move across the aisle to make way for a penny arcade, to which La-Belle agreed, and his fixtures and stock were moved by defendant’s employes. LaBelle testified that on that day he paid DeKopski $30 as the balance of the first month’s rent; that the receipts for both payments to DeKopski were put into the cash register.

It appears from the testimony of one Newburger, the “house detective” of appellant, that about October 13, 1908, George H. Shank, in the presence of his son, Edward Shank, told the detective to stop LaBelle from selling cigars; “that Mr. Connery has exclusive rights here, and we have to get him out of here.” Connery was in the same business as LaBelle, and had two such stands in the market. The detective stationed himself the next morning in front of LaBelle’s booth and told everyone who came to buy cigars, that La-Belle was not selling goods that day, and by this means practically stopped LaBelle’s sales; that after closing time that night, about‘eleven or twelve o’clock p. m., the detective, in pursuance of instructions from defendant, procured the aid of the night watchman and a couple of other employes, and in the absence of La-Belle, removed all his fixtures and stock of goods from the booth and put Connery’s fixtures in their place, and thereafter Connery maintained the possession thus obtained; that LaBelle’s cigars were moved into a room near the poultry market, where the janitor and others helped themselves to the cigars. G-eorge H. Shank denied that he had any talk with LaBelle, and denied that he had anything to do with the moving of LaBelle’s goods, and that he talked to Newburger about it. Edward Shank testified that he had no knowledge until about October 15th, that LaBelle had moved from his original stall, and that he then told LaBelle to move back, which LaBelle refused to do, and refused to pay another month’s rent, which was then demanded; that thereupon, Shank said, “that if he did not remove his appurtenances in five days, I would have to remove them for him.” Shank admitted that he told New-burger, on October 18th, to stand in front of the booth and not allow LaBelle to continue business, and that about October 20th, he directed the janitor force to remove the fixtures. He denied any knowledge as to what became of LaBelle’s goods. Upon this evidence the jury found the issues for the plaintiff, and after an examination of the record, we think that the verdict is in accord with the weight of the evidence.

The instruction complained of states, in effect, that while the plaintiff must prove his case by a preponderance of the evidence, “still if the jury believe that the evidence bearing upon the plaintiff’s case preponderates in his favor, although but slightly, it would be sufficient for the jury to find the issues in his favor.” The use of the words “although but slightly” is objected to as misleading. We think the instruction was proper, under the evidence. It has been approved as a correct statement of law in the following cases: Taylor v. Felsing, 164 Ill. 331; Donley v. Dougherty, 174 Ill. 582; Chicago City Railway Co. v. Bundy, 210 Ill. 39, and Hanchett v. Haas, 219 Ill. 546.

It- is urged that the occupation of LaBelle was a mere tenancy at will or hy sufferance, for the alleged reason that the lease was verbal and contrary to the statute of frauds. We cannot agree with this contention. A lease which is void under the statute of frauds becomes a month to month tenancy, and the tenant is entitled to notice to quit, where he enters into possession of the premises agreeing to pay rent monthly, and pays at that rate. (Warner v. Hale, 65 Ill. 395; Sebastian v. Hill, 51 Ill. App. 272; Mollitor v. Thom Van Co., 118 Ill. App. 293.)

If the story told by the plaintiff be true, and it is in most respects corroborated by Newburger, the eviction was a most wanton disregard of the rights of La-Belle. Under such circumstances, we do not regard the amount of the verdict and judgment as excessive. Statutory damages have been asked for by LaBelle’s counsel, but we do not think that there is sufficient evidence in the record that the appeal was prosecuted for delay to warrant us in assessing such damages.

The judgment of the Superior Court will be affirmed.

Affirmed.