author: Mr. Justice McSurely

text:
    National Iron & Steel Company, Appellant, v. Robert W. Hunt et al., trading as Robert W. Hunt & Company, Appellees.
    Gen. No. 20,760.
    1. Negligence, § 20

      -—liability in absence of privity of contract. Where a person undertakes to do an act or discharge a duty, hy which the conduct of another may be properly regulated and governed, the performance must be made in such a manner that those who are rightfully led to a course of conduct or action in reliance upon the proper performance of such duty will not suffer loss or injury by reason of its negligent performance, and in the event of loss, recovery may be had although no privity of contract is established.
    2. Negligence, § 20*—right to recover for negligent examination made at instance of another. Where plaintiff purchased certain material in reliance upon a certificate of test and examination made by defendants, who were experts in that line, which certificates were generally recognized throughout the trade as fixing the character and value of the materials covered, it was held that plaintiff was entitled to recover for the negligence of the defendants in making such examination and test, although made at the instance of the vendor of the materials, and there was no privity of contract between plaintiff and defendants.
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 29, 1915.

      John T. Evans, for appellant.
    Goodrich, Vincent & Bradley, for appellees; Warren Nichols, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

In this action plaintiff seeks to recover for damages claimed to have been sustained because of the negligence of the defendants. To the declaration, amended, a general demurrer was filed and sustained and judgment nihil capiat entered, from which plaintiff has appealed.

In the first count of the declaration, which technically is the second amended declaration, it is alleged substantially that plaintiff is a corporation engaged in the general contracting business in the State of Texas, dealing in steel rails and material of like kind and character; that on or about May 20, 1913, it purchased from H. M. Foster Company, a corporation engaged in a like business at Baltimore, Maryland, and elsewhere, a quantity of such materials dealt in by said Foster Company, and that such property so purchased by plaintiff was to be first class in kind and quality, and to be such as had been or would be inspected, examined, passed, approved and certified as first class in kind and quality by the defendants herein, acting in their said capacity as experts. It is alleged that defendants had been for several years prior to that time and are now engaged as experts in the' business or profession of inspecting, examining, testing and passing upon the character, kind and quality of steel rails and material of like kind; that they maintained during all of said time offices in Chicago, New York and elsewhere, and employed a large number of inspectors and other employees in and about said business; that they held themselves out to the public and to the plaintiff as experts in said line of work, profession or business; that such inspection, examination and testing were made for the use and benefit and at the request of users, traders and dealers in such materials, for a regular adequate consideration, and that the defendants, upon the completion of such testing, etc., issued or caused to be issued their certificates, classifying such materials so inspected, specifying the character, quality and class of the same, and that. such certificates intended to pass and did pass with the sale of such materials, and that the value of such services was principally represented by such certificates, and that such materials so examined and certified by the defendants were sold and traded in upon the representation as to kind and quality as specified in such certificates, such certificates being issued for the purpose of fixing the class and character of such materials so inspected, etc., and the value of the same; that such inspection, etc., were made in such manner as the defendants from time to time should determine, without any special instructions or supervision by the parties for whose use or benefit such services were being performed, and that during all of such time of inspection the materials were under the control of defendants; that by reason thereof it became and was then and there the duty of the defendants to exercise a reasonable degree of care and skill in inspecting, examining, etc., steel rails, etc., a-s submitted to them in their said capacity for inspection and examination, in order to protect the public and the plaintiff, who might rely upon said inspection in the purchase or use of steel rails, etc., so inspected or examined by the defendants; yet said defendants did not well and truly perform their duty as such experts in examining and passing upon and classifying and certifying to the class of steel rails, bars or flanges offered to them for examination in their said capacity as experts during the times herein set out, but on the contrary wholly failed to perform said duty which defendants owed to the public and the plaintiff in the manner following, to wit: The steel rails and other property purchased by plaintiff from the Foster Company were, at the time of such purchase, located in or near the city of New York, and the defendants, as experts, examined, inspected, passed and approved as first class in kind and quality the said property; that said inspection was made shortly before or shortly after the purchase and sale, as heretofore stated; that upon the completion of such examination the defendants issued their certificates in regular form, classifying all of the property so covered by said purchase and sale as first class in kind and quality, and délivered such certificates to the Foster Company, which certificates were thereafter tendered and delivered to the plaintiff herein upon the consummation of such purchase and sale; that the Foster Company was dealing in such materials for the purpose of reselling the same to the plaintiff or other parties, all of which was known to the defendants at the time of such inspection and examination, or by the exercise of due care should have been known; that plaintiff, relying upon such examination and the certificates issued, consummated the purchase of the property, paying therefor the sum of $11,000, a fair, reasonable cash value of said property, but which at the time of such purchase was not worth to exceed the sum of $3,000; that by reason of the failure of the defendants herein to exercise a reasonable degree of skill and care, as it was their duty to do, the defendants' classified as and certified that such property was first class, when in fact it was not, being defective in many particulars, all of which should have been known to the defendants by the exercise of reasonable care, whereby plaintiff has suffered damages-.

The second count is similar to the first, with the additional allegation that the defendants were the agents of the Foster Company, but in view of the opinion we have reached we do not deem it necessary to discuss this second count.

The question for our determination is, in brief, are defendants liable to plaintiff under the facts above alleged? The novelty and difficulty of the inquiry may be conceded, but this court has concluded that there is a liability legally deducible from the facts stated, and that the general demurrer should have been overruled. It is apparent that there is no privity of contract between plaintiff and defendants, and were there no exception to the general rule that where there is no privity there is no duty, there would of course be no breach with ensuing liability. Hut there is an excep-l tion to this general rule, which seems to be this, that where a person undertakes to do an act or discharge a duty by which the conduct of another may be properly regulated and governed, he is bound to perform it in such a manner that those who are rightfully led to a course of conduct or action on the faith that the act or duty will be duly and properly performed shall not suffer loss or injury by reason of his negligence. Substantially this language is found in Wharton on Negligence, (2nd Ed.) p. 365, where it appears as a quotation from the opinion in Sweeny v. Old Colony & N. R. Co., 10 Allen (Mass.) 368. The same statement was adopted by Mr. Justice Hoar in his opinion in Coombs v. New Bedford Cordage Co., 102 Mass. 572. We find this same principle applied in a great number of cases, of which there seems to be a complete compilation in the opinion in O’Brien v. American Bridge Co., 110 Minn. 364. In most, if not all, of these cases, however, it appears that by the negligent discharge of such duty persons using the instrumentality in question would necessarily be exposed to risk and danger; and it was said in Moon v. Northern Pac. R. Co., 46 Minn. 106: “One may owe two distinct duties in respect to the same thing,—one of a special character to one person, growing out of special relations to him; and another, of a general character, to those who would necessarily be exposed to risk and danger from the negligent discharge of such duty.” In a large number of cases there have been recoveries for personal injuries caused through the negligent discharge of such a duty, and, by analogy, it would seem that under the same circumstances one suffering injury to his property should also be entitled to damages.

In volume 39, English Chancery Division, page 39, we find reported the case of Cann v. Willson, in which the principle above stated was applied to facts which are more like the facts set forth in the present declaration than any appearing in any other reported case we have seen. One Spark applied to Cann & Son, plaintiffs, for a loan on real estate security. Plaintiffs required a valuation of the property. Spark employed defendant, Willson, to make this valuation, who, after inspection, gave a written opinion as to the value to Spark. Spark gave the opinion to plaintiffs, and upon the strength of this the loan was made. Subsequently Spark defaulted, and the property proving insufficient to answer the mortgage, plaintiffs brought suit against Willson for damages, alleging that he had not used due skill and care in making the valuation, although knowing it was to be used as the basis of a loan. Will-son in defense alleged, inter alia, that he was not employed by plaintiffs and owed them no duty. The Court, in holding defendant liable, in its opinion said that defendant was under an obligation to plaintiffs apart from any question of contract, and further that “when a man makes an untrue statement with an intention that it shall be acted upon without any reasonable ground for believing that statement to be true, he makes default in a duty^ which was thrown upon him from the position he has taken upon himself.” And further, with reference to the particular facts in the case, the Court said, substantially, that the defendant knowingly placed himself in that position, and in point of law incurred a duty towards the plaintiffs to use reasonable care in the preparation of the document called a valuation.

Such statements seem to be in accord with the law, but the difficulty arises in the application of them to a new state of facts. Defendants in the instant case were engaged in the business of expert inspection and testing of steel rails and similar materials, with offices in various cities. They invited the public to use, and offered for compensation, their skilled, expert services in this respect. Their certificates of inspection passed with sales and fixed the class and character of such materials. Plaintiff relied upon such certificates in making the particular purchase in question, which was known to defendants. We should surmise that the very purpose of such certificates when once issued would be to expedite sales by relieving dealers of the necessity of other inspection or tests. In these highly specialized times there must be many lines of business in which traders and dealers in commodities do not do their own inspecting and testing, but avail themselves of experts with the training and experience of those engaged exclusively in such expert services. It can hardly be contemplated that the results of such services are solely for the use of the first party employing them, but rather they are also for the assurance of the purchaser who buys, relying upon the certificates of inspection. accompanying the purchase. Such certificates imply the exercise of proper care and skill in the examination and tests. We see no reason in justice why, under such circumstances, there should not be a duty owing from- such experts to such a purchaser to exercise reasonable care in performing the services which are offered for the benefit both of the seller and the buyer.

Our opinion being as above indicated, we hold that the defendants in this case may be called upon to respond in damages, that the declaration has stated a good cause of action, and that it was error to sustain the demurrer thereto. The judgment will therefore be reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    Trinity Methodist Episcopal Church of Chicago, Defendant in Error, v. Marie Methodist Episcopal Church of Chicago and James M. Wheaton, Plaintiffs in Error.
    Gen. No. 20,762.
    1. Appeal and error, § 1883

      -—when affidavit of defense properly stricken in action on bond. In an action on a bond on a writ of error in a forcible entry proceeding, where the affidavit of defense failed to deny a failure to prosecute the writ of error with effect or noncompliance with the judgment, the denial therein simply going to the dismissal of the writ of error from the judgment rendered against the particular defendant named in the bond, the judgment itself running not only against this defendant but others, it was held that the affidavit was insufficient and was properly stricken from the files.
    2. Appeal and error, § 1877*—what not a defense in action on bond. In an action on a bond given on a writ of error in a forcible entry proceeding, the right of the defendant, a religious corporation, to recover rents from real estate cannot be considered.
    3. Appeal and error, § 1886*—right to have damages assessed by jury in action on bond. Under Practice Act, sec. 59 (J. & A. ¶ 8596), the defendant in an action upon a bond given upon the prosecution of a writ of error in a forcible entry proceeding is entitled to have the damages assessed by a jury, notwithstanding the striking out of his affidavit of defense.
    4. Appeal and error, § 1034

      —when rules not judicially noticed. Rules of the Municipal Court will not be judicially noticed in the Appellate Court.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed March 29, 1915.
    Brundage, Landon & Holt, for plaintiffs in error.
    Eddy, Wetter & Pegler and Jasper F. Rommel, for defendant in error.

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

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

   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit on a stay of execution bond. The bond recites a judgment obtained by the Trinity Methodist Episcopal Church of Chicago against the Marie Methodist Episcopal Church of Chicago in a forcible detainer suit, and the condition of the bond is the prosecution of a writ of error with effect and compliance with the judgment and payment of costs and rent, in case of affirmance by the Appellate Court, from which the writ of error had been sued out. Plaintiff’s statement of claim alleged a breach in that the Marie Methodist Episcopal Church of Chicago had failed to prosecute with effect the said writ of error, in that said writ was dismissed by the Appellate Court, and that the defendants have not complied with the judgment and paid costs and rent as provided in said bond. To this defendants filed an affidavit of defense, which upon motion by plaintiff was stricken from the files. Defendants say this was error because by their affidavit they denied the breach alleged by plaintiff. In our opinion they did not sufficiently deny it. There is no denial of a failure to prosecute the writ of error with effect or that there has been no compliance with the judgment of the court with payment of costs and rent; the denial made simply g’oes to the dismissal of a writ of error from a judgment rendered in the Municipal Court against the particular defendant named in the bond, the judgment itself running against not only this defendant but two others. This was not sufficient, and there was no error in striking it from the files.

The point as to the power of plaintiff, a religious corporation, to recover rents from real estate cannot be made in this suit upon the bond. McCarthy v. Chimney Construction Co., 219 Ill. 616.

After the affidavit of defense was stricken and the entry of an order of default, the defendants requested the court to call a jury to assess damages, stating to the court that the damages were not liquidated. This motion was denied. Thereupon plaintiff requested that judgment be entered for $1,200 upon the statement of claim. Defendants’ attorney moved the court to hear evidence as to the amount of damages to be assessed, but the court denied this motion. The court then asked the attorney for the plaintiff as to the amount of the damages, and the attorney informed the court that the damages were $1,200, whereupon the damages were assessed at this amount “and judgment entered on statement of claim for $1,200, to be satisfied upon the payment of $1,200 damages.” These proceedings were erroneous. The defendants were entitled to have the damages assessed by a jury; it is so provided by section 59 of the Practice Act (J. & A. ¶ 8596). See Mann v. Brown, 263 Ill. 394, where it is held in effect that the only instance that might excuse the failure to assess damages by a jury, where one is demanded, is when the judgment can be “no more nor no less than the face of the bond.”. That is not the situation here, where the amount to be recovered, which includes rent, can only be determined from evidence.

As to any argument based upon the rules of the Municipal Court, we reassert that we cannot take judicial notice of such rules. Sixby v. Chicago City Ry. Co., 260 Ill. 478.

For the errors indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Mid-City Trust & Savings Bank, Defendant in Error, v. Chicago, Milwaukee & St. Paul Railway Company, Plaintiff in Error.
    Gen. No. 20,768.
    1. Carriers, § 60

      —when carrier liable to purchaser of bill of lading. The Bill of Lading Act (J. & A. ¶ 2188), providing that where a bill of lading states that the goods are received “shipper’s load and count” the carrier shall not be liable for error in count or description of goods, does not relieve the carrier as against an innocent purchaser of the bill of lading, where, in fact, no goods whatever have been received by it.
    2. Carriers, § 60*—when act of agent fraudulently issuing bill of lading within scope of authority. Where an agent of a common carrier fraudulently issues a negotiable bill of lading for goods not in fact received by him, his act in so doing is so within the scope of his apparent authority as to render the carrier liable to an innocent purchaser for value of the bill of lading.
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.

      J. N. Davis, for plaintiff in error; H. H. Field, of counsel.
    Gustav E. Beerly, for defendant in error; Ellis S. Chesbrough, of counsel.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff filed its statement of claim in the Municipal Court, and defendant filed an affidavit of defense, which on motion was stricken from the files, and judgment was entered against defendant, which it seeks to have reversed.

By its statement of claim plaintiff alleged that it was the holder of a negotiable bill of lading issued by the defendant, a copy of which was attached to the statement; that plaintiff gave “value in good faith relying upon the description of kind, quantity and condition of the goods therein mentioned or described in the said bill”-; that afterwards it demanded of the defendant the delivery of said goods, but defendant “failed, neglected and refused to deliver or surrender said goods to the plaintiff, to the damage of the plaintiff in the sum of $312.80. ’ ’ The bill of lading attached is a negotiable bill, and the goods are described as one car of “Brewers’ Refuse”; it is signed “Nelson W. Pierce, Agent, Per H. C. W.,” and upon its face are these words: “Received by C. M. & St. Paul Ry. Co. (Team Tracks Kinzie Street) Sept. 6, 1913. ‘Shippers’ L. C. & Tally. Not responsible beyond terminal stations on this line. N. W. Pierce, Agency, Chicago, Illinois.” This bill of lading is described by the parties as “Exhibit A. ’ ’

The affidavit of defense alleged the nature of the defense to be that defendant did not at any time receive a car of Brewers’ refuse and “that the consignor named in plaintiff’s exhibit ‘A,’ through fraud, deceit and misrepresentation, influenced the agent of this defendant, who executed said bill of lading on behalf of the defendant, to issue said bill of lading; that the agent signing said bill of lading as covered by plaintiff’s exhibit ‘A’ acted outside of the scope of his authority in executing said bill of lading.”

After the motion to strike had been argued the parties entered into a stipulation which, in substance, was that in the event the court should determine that the defendant’s affidavit did not “present a good and sufficient or legal defense” judgment should be entered against defendant for $312.80, both parties waiving the right to introduce evidence.

We hold that the court committed no error in striking the affidavit of defense and entering judgment.

Counsel have argued many phases of this controversy, but as we view it the lights of the parties are determined by statute. The facts fall squarely within section 23 of the Statute entitled “An Act in regard to bills of lading and to create, define and punish certain criminal offenses in relation thereto. Approved June 5, 1911, in force July 1, 1911,” chapter 27, Illinois statutes. (J. & A. jf 2188.) By this section it is provided in part that:

“If a bill of lading has been issued by a carrier or on his behalf by an agent or employee the scope of whose actual or apparent authority includes the issuing of bills of lading, the carrier shall be liable to

(a) The consignee named in a non-negotiable, or

(b) The holder of a negotiable bill,

Who has given value in good faith relying upon the description therein of the goods, for damages caused ' by the non-receipt by the carrier or a connecting carrier of all or part of the goods or their failure to correspond with the description thereof in the bill at the time of its issue.”

It is to be noted that defendant’s allegation that its agent “acted outside of the scope of his authority in executing said bill of lading,” does not negative the fact that he was acting within the scope of his actual or apparent authority to issue bills of lading. The conditions which may relieve the carrier from liability are stated in this section of the statute thus: “The carrier may, also, by inserting in the bill the words ‘shipper’s load and count’ or other words of like purport, indicate that the goods were loaded by the shipper and the description of them made by him; and if such statement be true, the carrier shall not be liable for damages caused by the improper loading or by the non-receipt or by the misdescription of the goods described in the bill. ’ ’ Regarding the words on the bill of lading before us, “ ‘Shippers’ L. C. & Tally,” as indicating facts which would relieve the carrier from liability, it should be noted that the exculpatory result is conditioned not only on the presence of such words but also on the fact that they must “be' true.” Obviously there can be no “shipper’s load and count” where no goods whatever were received, and this, defendant claims to be the fact. The statutory words “by the non-receipt” must refer to a situation where there was in fact a loading and tally of goods by the shipper but subsequently a shortage is found; to make them applicable to a case where no goods whatever were received would make them inconsistent with the fact of goods loaded and counted by the shipper.

Under the statute and the facts appearing and conceded by the statement of claim and affidavit of defense, the defendant was liable, and the judgment is affirmed.

Affirmed.


text:
    Metropolitan Life Insurance Company, Appellant, v. William I. Kinsley and J. F. Corbett, Appellees.
    Gen. No. 20,772.
    Interpleader, § 19

      —when attorneys’ fees not allowed. No soHeitor’s fees will be allowed to a party filing a bill of interpleader, but only his costs.
    Appeal from the Superior Court of Cook County; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed March 29, 1915.
    Hoyne, O’Connor & Irwin, for appellant; Carl J. Appell, of counsel.
    No appearance for appellees.

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

   Mr. Justice McSurely

delivered the opinion of the court. '

The only question we are called upon to determine upon this appeal is whether the chancellor in the exercise of his general equitable powers may allow solicitor’s fees to a party filing a bill of interpleader. This court is already on record that such fees cannot be allowed. In Delta & Pine Land Co. v. Sherwood, 187 Ill. App. 167, in considering this same question, we referred to the opinion of the Supreme Court in Chapin v. Dake, 57 Ill. 295, which considered the allowance of a solicitor’s fees to a bank filing a cross-bill of interpleader, in which opinion the court said: “On the cross-bill of the Fifth National Bank, it should not have been allowed $100 solicitor’s fees, but only its costs. It should have paid an additional $100 into court”; and in the opinion of this court we proceeded to say: “The rule that an interpleader cannot be allowed solicitor’s fees is clearly stated in the case cited, and the rule so stated has not been modified by any subsequent decision of the Supreme Court. The rule in this State is that the court cannot allow a solicitor’s fee in the absence of a statute authorizing it to do so. This was the rule in partition cases before the statute of 1869. Adams v. Payson, 11 Ill. 26; Eimer v. Eimer, 47 Ill. 373; Campbell v. Campbell, 63 Ill. 502. See also Constant v. Matteson, 22 Ill. 546; Wilson v. Clayburgh, 215 Ill. 506; Modern Woodmen of America v. Conner, 129 Ill. App. 652. The practice of allowing to an interpleader solicitor’s fees has been common in the courts of this county, but on the authority of Chapin v. Dake, supra, we hold that there is no authority for making such allowance.” Subsequently application was made to the Supreme Court for a writ of certiorari in this cáse, which application was denied, making our opinion final.

The decisions in cases in other states do not persuade us to alter our opinion as above expressed.

Consequently we hold there was no error in the order of the' chancellor herein refusing to allow solicitor’s fees to the complainant filing’ the bill of interpleader, and the order is affirmed.

Affirmed.


author: Mr. Presiding Justice Barnes

text:
    Helen Mills, Administratrix, Plaintiff in Error, v. First State Pawners Society, Defendant in Error.
    Gen. No. 20,438.
    Pawnbrokers and secondhand dealers, § 2

      —when pledge in excess of statutory amount not available. Where the pledgor of goods attempted to evade the provisions of the Pawners’ Societies Act (J. & A. ¶ 2681) prohibiting loans to any one person in excess of two hundred and fifty dollars, by taking out loans far in excess of that amount in the names of fictitious persons, the property pledged cannot be replevied by his personal representative on the theory that the loans being illegal were void, since even though defendant was cognizant of the character of the transaction, the parties being in pari delicto, no cause of action could arise out of the transaction.
    Error to the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch AppelHte Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Arthur C. Bachrach, for plaintiff in error.
    Tenney, Harding & Sherman, for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

Plaintiff in error brought an action in replevin and trover to recover articles of jewelry, or their value, from defendant in error, to which they were pledged for loans obtained by plaintiff’s intestate, one Pfeil. We shall refer to the parties as plaintiff and defendant respectively. Judgment was for defendant, and the only question involved is whether plaintiff had a cause of action.

The defendant is a corporation organized under the Pawners’ Societies Act (Hurd’s R. S. 1913, ch. 32, p. 618), section 3 of which provides that “in no case shall the amount loaned to any one person exceed the sum of two hundred and fifty dollars.” (J. & A. 2681.) At the time of Pfeil’s death he was indebted to the defendant for said loans in a sum exceeding eight thousand dollars, for which the pledges in question were given. While no one of the loans exceeded the sum of two hundred and fifty dollars and no two appear to have been taken out in Pfeil’s name, they were obtained under his directions and for his benefit in the name of fictitious persons.

That Pfeil deliberately engaged in a scheme to circumvent said provision of the statute is conceded. Whether defendant did was a controverted question, but one unnecessary to consider; for if defendant was not cognizant of the real nature of the transactions, it is admitted that plaintiff had no cause of action; and if defendant was, then the loans, being expressly prohibited by statute, were illegal and void (Penn v. Bornman, 102 Ill. 523), and the parties thereto, being in pari delicto, no cause of action could arise out of the transactions. (Bishop v. American Preservers’ Co., 157 Ill. 284; Ellison v. Adams Exp. Co., 245 Ill. 410; McMullen v. Hoffman, 174 U. S. 639.)

It is unnecessary to expatiate upon the familar maxims cited and applied in the cases referred to and applicable here. According to plaintiff’s own statement of the case, Pfeil conspired with the defendant to violate the statute; according to defendants, Pfeil induced it to make the loans on fraudulent representations as to whom they were for. Either state of facts would defeat the recovery. To the former, plaintiff’s intestate being in pari delicto, the maxim potior est conditio defendentis applies, to the latter, the cause of action springing out of a fraud, the maxim ex dolo malo non oritur actio applies. Two things are manifest, therefore: (1) That on plaintiff’s own theory of the facts the cause of action arises out of illegal transactions; and (2) that defendant’s unlawful possession of the articles pledged could not be proved without going into the illegal transactions and Pfeil’s complicity therein.

The cases above cited are in point. In the American Preservers’ Co. case, supra, an action of replevin was defeated because the plaintiff’s right of possession was based on a bill of sale executed to accomplish an unlawful purpose in which it „ participated. The court said: “The general rule of law is, that a contract

made in violation of a statute is void, and that, when a plaintiff cannot establish his cause of action without relying upon an illegal contract, he cannot recover.” (p. 317.) In the Ellison case, supra, a shipper sought to recover from the express company the value of goods destroyed in the course of transportation, which he had knowingly and wilfully procured at less than regular established rates therefor in violation of the Interstate Commerce Act. The court held that as the cause of action had its basis in a contract of carriage that was an intentional evasion of the law, it came within the rule that a contract entered into in violation of an express statutory prohibition cannot be made the basis of an action in a court of justice; and the court said: “No person who has participated in a transaction forbidden by statute will be allowed to assert rights growing out of it.” (P. 417.)

The words of Lord Mansfield in Holman v. Johnson, Cowp. 341, are particularly applicable to the present case: “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of his country, there the court says he has no right to be assisted.”

But it is argued by counsel for plaintiff that if the loans were illegal, the reception of the pledges was unlawful and, therefore, recovery of them or their value may be had, citing Schroeppel v. Corning, 5 Denio (N. T.) 236, and other cases where replevin or trover was successfully maintained. In each the property was pledged to secure loans tainted with usury. Several of them were decided upon statutory provisions relating to usurious loans. But in the absence of such provisions, the governing principle on which recovery is allowed in that class of cases is that the law does not regard whatever is done to obtain money on usurious terms as the voluntary act of the borrower. In the Corning case, supra, the court said: “He is not looked upon as a free agent, nor as a violator of the law; and to such a case the maxims, volenti non fit injuria, and, in pari delicto potior est conditio defendentis, have no application.” (P. 241.) As put by Mr. Justice Story: “He stands in vinculis, and is compelled to submit to the terms which oppression and his necessities impose on him.” (1 Story’s Eq. Jur. [12th Ed.] sec. 302.) The same principle was applied in Smith v. Cuff, 6 Maulé & Selwyn’s Bep. 160, a case where a debtor, who had entered into a composition agreement with his creditors, was permitted to recover from one of them whom he had by private agreement paid in full, Lord Ellenborough saying: “This was not a case of par delictum; it was oppression on one side and submission on the other; it can never be predicated as par delictum when one holds the rod and the other bows to it.” See also Smith v. Bromley, Doug. 696, where the principle was again recognized.

But the principle on which recovery is allowed in that class of cases has no application here. Pfeil was under no restraint or oppression; rather he was the aggressor in a deliberate scheme to violate a positive statute and thwart its purposes. In such a case the law lends no assistance to the wrongdoer or to those relying on his turpitude. The judgment will be affirmed.

Affirmed.


text:
    Abraham J. Liebman, Defendant in Error, v. William B. Austin, Plaintiff in Error.
    Gen. No. 20,478.
    Abstract of the Decision.
    1. Mortgages, § 733

      —what shows contract to settle second mortgage in consideration of waiver of redemption. Where a third mortgagee acquires certain other property by purchase from the owner of the mortgaged property by a deed reciting that a portion of the purchase price of the purchased property be retained by the third mortgagee to apply on incumbrances on the mortgaged property, including incumbrance of a second mortgagee, such recital constitutes evidence sufficient to corroborate the second mortgagee’s claim that the third mortgagee promised to settle the second mortgagee’s incumbrance in consideration of the second mortgagee’s promise to forbear from redeeming the mortgaged property after foreclosure sale.

      (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Rehearing denied April 27, 1915.
    Statement of the Case.
    Action by Abraham J. Liebman, against William B. Austin for breach of contract. From a judgment for plaintiff, defendant appeals.
    Liebman and Austin being in the position of second and third mortgagees respectively, Liebman claimed that in consideration of his forbearing to redeem the premises from a foreclosure sale Austin agreed to pay Liebman the amount of his claim. A deed was introduced in evidence conveying certain other property from the mortgagor to Austin and providing that a certain portion of the purchase price thereof should be retained by Austin to apply on incumbrances on the mortgaged property, securing Liebman’s note.
    Charles A. Churan, for plaintiff, in error.
    John S. Lord, for defendant in error.

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

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.

2. Appeal and error, § 966 —when question not presented in record not considered. The question of the duty of a party to reduce damages resulting from a breach of contract will not be considered in appeal where such question is not raised in the record.

3. Fbatjds, statute of, § 118*—when must he pleaded. Statute of Frauds to be available as a defense must be pleaded.


text:
    The People of the State of Illinois, Defendant in Error, v. Nelson King, Plaintiff in Error.
    Gen. No. 20,634.
    (Not to be reported in full.)
    Error to the Criminal Court of Cook county; the Hon. Charles A. McDonald, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Reversed and remanded.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Prosecution by The People of the State of Illinois against Nelson King on an indictment charging larceny and operation of a confidence game. From a judgment entered on a verdict of guilty, the defendant prosecutes a writ of error.
    The record on appeal showed an indictment against the plaintiff in error containing two counts, one charging the obtaining of thirty dollars by means and use of the confidence game and the other larceny of that sum, the waiver of the “felony charge” by the People, a plea of “not guilty of obtaining money by false pretenses, ’ ’ a waiver of jury trial by plaintiff in error, and an order adjudging the defendant guilty of obtaining money by false pretenses upon the indictment in the cause and a plea of guilty, and sentencing him to the House of Correction for one year.
    Abstract of the Decision.
    Criminal law, § 371

      —when conviction on waiver of felony improper. Where, in an indictment charging the defendant with obtaining thirty dollars by means and use of a confidence game and with larceny of that sum, the “felony charge” is waived by the People, no conviction can be had for obtaining money by false pretenses inasmuch as the waiver eliminated both charges, no conviction being valid on any charge not set forth in an indictment even though entered on a plea of guilty.
    Edward H. Wright, for plaintiff in error; George W. Blackwell, of counsel.
    No appearance for defendant in error.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


text:
    Charles B. Stafford et al., trading as Sabath, Levinson & Stafford, Appellants, v. Barbara Vacek et al., Appellees.
    Gen. No. 20,876.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John R. Cavebly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Suit dismissed and stricken from docket.
    Opinion filed April 13, 1915.

      Abstract of the Decision.
    1. Appeal and error, § 633

      -—when court without power to allow appeal nunc pro tunc. The Municipal Court of Chicago is without jurisdiction to order the entering of an order nunc pro tunc allowing an appeal from a judgment rendered more than a year prior to such order, no such order having in fact been made within the statutory period.
    2. Motions, § 12*—what is function of nunc pro tunc order. The office of an order nunc pro tunc is simply to validate an actual proceeding already taken and not to cure a defect caused by failure to take such proceeding.
    Statement of the Case.
    The plaintiffs, Charles B. Stafford, Adolph J. Sabath, Harry C. Levinson and Albert Sabath, trading as Sabath, Levinson & Stafford, having had, in an action against Barbara Vacek, Anna Vacek and Hattie Vacek, a judgment rendered against them in the Municipal Court, filed in the Appellate Court a transcript of the proceedings had, which was defective in that it did not show that an appeal had been taken. After a motion made by the defendants for dismissal, the plaintiffs were granted leave to and did file an additional transcript which, however, failed to show any order, allowing an appeal, made prior to the granting by the Appellate Court of leave to file the additional transcript. It showed, however, a provision for filing a bond and a bill of exceptions and contained an order entered nunc pro tunc allowing an appeal more than one year after entry of judgment.
    Sabath, Stafford & Sabath, for appellants.
    Q. J. Chott and Anton Zeman, for appellees.

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

   Mr. Presiding Justice Barnes

delivered the opinion of the court.


author: Mr. Justice Cridley

text:
    Charles H. Trott, Plaintiff in Error, v. The Baltimore & Ohio Railroad Company and The Baltimore & Ohio, Southwestern Railroad Company, Defendants in Error.
    Gen. No. 20,324.
    1. Cabbiers, § 186

      —when reshipment does not affect continuous passage. Where perishable goods, shipped in a car over connecting railway lines, are reconsigned by the shipper, while in the possession of the carrier at their original destination, the shipment is one continuous passage, and each carrier beginning with the initial carrier is presumed to have received the shipment in good order, and the last carrier is prima facie negligent, in the absence of evidence of the place where the goods were damaged in transit, and the burden is upon it to prove that it provided all suitable means of transportation and exercised that degree of care which the nature of the case required.
    2. Carriers, § 199*—when presumption against final carrier rehutted. Where the final carrier proves that it transported the goods in transit only a short distance and was in possession of them only a short time, and no evidence of its negligence is introduced, the presumption of its liability is rebutted.
    3. Carriers, § 123*—what insufficient to disprove negligent icing. Where it appears that the final carrier is not negligent, the next preceding carrier is prima facie negligent where perishable goods are damaged in transit and evidence by this carrier that the car was iced and that there was no delay, introducing no evidence of the temperature of the car or that any inspection was made, does not sufficiently prove that the defendants exercised that degree of care which the nature of the goods required.
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in this court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 13, 1915.
    Rehearing denied April 27, 1915.
    Statement by the Court. This action was commenced on March 7, 1912, against The Baltimore & Ohio Bailroad Company, hereinafter referred to as the B. & O. Co., to recover the sum of $585 for damage to 585 crates of cucumbers, contained in car “F. G. E., 16269.”
    In his original statement of claim plaintiff alleged that the cucumbers were shipped by him from Corpus Christi, Texas, on June 7, 1909; that they were consigned to him at St, Louis, Missouri, and were subsequently reconsigned to William Fisher & Sons, at Columbus, Ohio; and that at the time of shipment the cucumbers were in first-class merchantable condition, but when found in the possession of the B. & O. Co., “final carrier,” on June 14, 1909, at Columbus, Ohio, they were in a bad and unmerchantable condition and were rejected by the consignees. In its affidavit of merits the B. & O. Co. alleged: (1) That it was not negligent in the handling of said cucumbers; (2) that if the same were in a bad and unmerchantable condition upon arrival at Columbus, Ohio, that condition was due to inherent defects in and from the nature of the cucumbers; and (3) that it has no knowledge as to whether or not the cucumbers were in first-class condition at time of shipment and demands, strict proof thereof. The B. & O. Co. also filed a claim of set-off, verified by affidavit, in the sum of $140.15 “for balance of freight charges upon said car, F. Gr. E. 16269, containing said shipment of cucumbers, from Corpus Christi, Texas, consigned to C. H. Trott, St. Louis, Missouri, and diverted to William Fisher & Sons, Columbus, Ohio, by direction of the plaintiff.”
    On October 2, 1912, on motion of plaintiff, all records, papers and proceedings were amended by making The Baltimore & Ohio Southwestern Railroad Company, hereinafter called the Southwestern R. Co., a co-defendant, and subsequently plaintiff filed an amended statement of claim in which he made substantially the same allegations as in his original statement of claim, except that it was stated that when the cucumbers were found in the possession “of the defendants, final carriers,” they were in a bad and unmerchantable condition, etc. It was ordered that the affidavit of merits of the B. & O. Co., previously filed, stand as its affidavit to plaintiff’s amended statement, and the Southwestern B. Co. filed an affidavit of merits, in which it made substantially the same allegations as made in the affidavit of the B. & O. Co.
    On January 28,1914, after a hearing before the court without a jury, the court found the issues against the plaintiff as to his claim, and also found the issues against the defendant, B. & 0. Co., as to its claim of set-off, and, after overruling plaintiff’s motion for a new trial, the court entered judgment against plaintiff for costs, which judgment plaintiff by this writ of error seeks to reverse.
    Harry S. Ditchburne, for plaintiff in error.
    Calhoun, Lyford & Sheean, for defendants in error.

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

   Mr. Justice Cridley

delivered the opinion of the court.

It appears from the evidence that plaintiff, on June 7, 1909, at Corpus Christi, Texas, delivered merchantable cucumbers, fresh, green and in good condition, to the St. Louis, Brownsville & Mexico Railroad Company, as initial carrier, for transportation to St. Louis, Missouri; that they were properly packed and crated in 585 crates and were properly loaded in car “F. G. E. 16269,” and were consigned by plaintiff to himself at St. Louis; that the car arrived at St. Louis on June 11, 1909, over the road of the Missouri, Kansas & Texas Railway Company, and was placed on a “team track”; that thereafter plaintiff reconsigned or diverted the cucumbers contained in the car to William Fisher & Sons, Columbus, Ohio, by order given said last mentioned railway company, which order was accepted; that after passing over the line of railroad known as the “Terminal Railroad” the car was delivered to the defendant, Southwestern R. Co., at East St. Louis, Illinois, on the morning of June 13, 1909, at 10:25 o’clock, and that an agent of said defendant thereupon “signed the interchange furnished by the Terminal Railroad” and gave that company said defendant’s “clear receipt” for the car; that there were “M. K. & T.” seals on both sides of the car when it was “checked in” at East St. Louis and when placed in the train for Columbus, and that the car was not opened by said defendant at East St. Louis; that the car arrived at Columbus over the railroad of said defendant and was delivered by it to the defendant, B. & 0. Co., a,t 3:10 p. m. on June 14, 1909, which company carried the car to the Union Depot, a distance of about one mile, and placed the car on the “team track” at about 3:15 p. m. on the same day; that upon inspection the cucumbers contained in said car were found to be in a bad and unmerchantable condition, and were rejected by the consignees, William Fisher & Sons; that thereupon the cucumbers were sold for the defendant, B. & O. Co., and the net sum of $108.85 realized from the sale; that the total freight charges due when the car arrived at Columbus were $240; that said sum of $108.85 was received by the B. & O. C'o., which sum, after deducting an icing charge of $9, was applied on said freight charges; and that the fair market value of the cucumbers, in good condition, at Columbus, on June 14, 1909, was $1 per crate, or $585.

The evidence does not disclose where, between Corpus Christi and Columbus, the cucumbers were damaged. Neither does the evidence clearly disclose what caused the damage. Some of the witnesses testified to the effect that fresh, green cucumbers, in good condition, if put in a refrigerator car, would remain in good condition while in transit for a period of ten days, provided the car from time to time was properly iced, but that if the car was allowed to become heated such cucumbers would spoil and turn in color. And one of plaintiff’s witnesses, who inspected the cucumbers upon their arrival at Columbus, testified that they were “yellow and shriveled at the ends and had the appearance of having been heated.”

From the evidence, as above outlined, we think it may properly be inferred that somewhere, between Corpus Christi and Columbus, the car in question was negligently allowed to become heated and the cucumbers thereby damaged.

“In the absence of evidence locating the damage to goods in transit over several connecting lines, a prima facie presumption arises that the last carrier is the negligent one.” St. Louis, I. M. & S. R. Co. v. Coolidge, 73 Ark. 112, 114; Hutchinson on Carriers (3rd Ed.) sec. 1348. When the initial carrier receives goods in good order, the law presumes that each successive carrier, intermediate between the initial and last carrier, receives them in good order; and this presumption, working through to the last carrier who delivers them in bad order, casts the burden upon it to prove that it provided all suitable means of transportation and exercised that degree of care which the nature of the goods required, or to prove that the damage occurred before it received the goods (St. Louis, I. M. & S. R. Co. v. Coolidge, supra; Ruddell v. Baltimore & O. R. Co., 175 Ill. App. 456, 457); and this presumption is equally applicable to the next preceding carrier where it is shown that the damage did not occur or could not have occurred while the goods were in the possession of the last carrier. Hutchinson on Carriers, sec. 1348; Pennsylvania R. Co. v. Naive, 112 Tenn. 239, 264; Stolze v. Ann Arbor R. Co., 148 Wis. 205, 208; Harper Furniture Co. v. Southern Exp. Co., 144 N. C. 639, 644. And the presumption applies to perishable goods (Trakas v. Charleston & W. C. R. Co., 87 S. C. 206, 208; Forrester v. Georgia R. Co., 92 Ga. 699; Ruddell v. Baltimore & O. R. Co., supra), and to goods in sealed cars. Stolze v. Ann Arbor R. Co., supra; Col-bath v. Bangor & A. R. Co., 105 Me. 379, 383; Beeds v. Wisconsin Cent. R. Co., 90 Minn. 36, 38. The purpose of the presumption is to “cast the burden of proof upon the party having the knowledge or means of knowledge to ascertain the truth.” St. Louis, I. M. & S. R. Co. v. Coolidge, supra. And the presumption is one of convenience and necessity. Colbath v. Bangor & A. R. Co., supra; Moore v. New York, N. H. & H. R. Co., 173 Mass. 335, 337.

Counsel for plaintiff contends that under the evidence the trial court erred in entering judgment against plaintiff and in favor of both defendants. It appears that the last carrier, the B. & O. Co., transported the car in question for a distance of about one mile and had possession of the car for only a very short space of time before it was placed on the team track at Columbus and opened and the cucumbers inspected, at which time, according to the testimony of a yard clerk of said defendant, the car “was cold.” It is obvious that the deterioration in the cucumbers as proved could not have occurred while the car was in the possession of said defendant, B. & O. Co., and we think that the presumption of its liability was rebutted. Stolze v. Ann Arbor R. Co., supra. Counsel, in effect, admits this but argues that the presumption of liability on the part of the defendant, Southwestern R. Co., was not sufficiently rebutted, and that the Southwestern R. Co. is liable.

To rebut the presumption of liability said defendant “showed for an icing record that 4,200 pounds of ice had been placed in the car on June 13,1909, before delivery” of the car to it; that on June 14th, at 6:40 a. m., at Cincinnati, Ohio, 2,500 pounds of ice had been placed in the car; and that there was “no delay in transit in the handling of the car between East St. Louis and Columbus.” On cross-examination one of the defendant’s witnesses testified that there was an icing station about seventy miles, and another icing station about one hundred ninety miles, west of Cincinnati, and that the capacity of the ice tanks in the car was 9,000 pounds. We are of the opinion that this evidence, taken in connection with the other evidence in the case, is not sufficient to rebut the presumption of liability on the part of the Southwestern B. Co., which the law casts upon it. As we have above seen, when an initial carrier receives perishable goods in good condition, each successive carrier, intermediate between the initial and final carrier, is presumed to receive them in good condition. In the present case the cucumbers were shown to be in good condition when delivered to the initial carrier at Corpus Christi, and the law presumes that the cucumbers were received in such condition when the defendant, Southwestern B. Co., received them from the Terminal Bailroad at East St. Louis. This presumption is strengthened, we think, by the fact that said defendant gave to the Terminal Bailroad a “clear receipt” for the car. Morganton Mfg. Co. v. Ohio River & C. Ry. Co., 121 N. C. 514, 518. Said defendant introduced no affirmative evidence that the damage to the cucumbers occurred before the car was delivered to it. And we do not think the said evidence as to the icing of the car and as to there being no delay in the transit of the car between East St.- Louis and Columbus sufficiently proves that the defendant “exercised that degree of care which the nature of the goods required” while the same were in its possession. The record does not enlighten us as to the temperature on June 13th or 14th, whether or not proper inspection as to condition of the ice tanks was made from time to time en route, or whether or not the car was kept cold during the entire trip from East St. Louis.

The trial judge certified to the making of certain decisions on questions of law involved in the case. The court held, in substance, that the diversion or reconsignment order given by plaintiff to the Missouri, Kansas & Texas Railway Company, and its acceptance, constituted a new contract of carriage between plaintiff and said railway company; that the shipment of the car from Corpus Christi to Columbus could not properly be considered as a through shipment; that plaintiff, by showing that the cucumbers left Corpus Christi in good condition and arrived at Columbus in bad condition, did not sufficiently establish a prima facie case against the defendants or either of them; and that in order to raise the presumpton of liability on the part of either of the defendants it was necessary for plaintiff to show by direct proof that the cucumbers were in good condition at St. Louis, Missouri.

Counsel for plaintiff contends, in substance, that, notwithstanding it appears that the cucumbers were diverted or reconsigned after their arrival on the team track at St. Louis, a sufficient prima facie case against the defendants was made; that defendants, as connecting carriers, are each presumed to have received the cucumbers in good condition, and that the trial court erred in holding that plaintiff must affirmatively show that the cucumbers were in good condition at St. Louis. Counsel for defendants rely upon two cases decided by this court, viz: Deatwyler v. Oregon R. & Nav. Co., 176 Ill. App. 597, and Fish v. Pere Marquette R. Co., 169 Ill. App. 629, as sustaining the holdings of the trial court. These were actions brought against the initial carrier who, under the facts and circumstances shown, was held discharged of liability. In Ruddell v. Baltimore & O. R. Co., 175 Ill. App. 456, certain oranges were delivered in good condition to the initial carrier at McPherson, California, to be shipped to Chicago. While en route they were diverted from Chicago to Baltimore and were delivered by the Northwestern Railroad Company, a connecting carrier, to said Baltimore & Ohio Railroad Company, and by that company conveyed to Baltimore. Upon their arrival at Baltimore they were found in bad condition, and Ruddell sued and obtained judgment against the Baltimore & Ohio Railroad Company, final carrier, .for damages. It was urged in this court that, inasmuch as the original destination of the oranges was Chicago and as they were diverted to Baltimore, Ruddell could not recover without showing that they were in good condition when delivered to the Baltimore & Ohio Railroad Company, at Chicago. It appeared that the Baltimore & Ohio Railroad Company collected the entire freight from McPherson to Baltimore as one continuous transportation. The judgment of the lower court was affirmed.

The present case is quite similar to the Ruddell case, supra. It appears that the total freight charges due when the car arrived at Columbus was $240, and that the defendant, B. & O. Co., applied the net'receipts from the sale of the cucumbers in part payment of said charges, and in its affidavit of set-off claimed a balance of $140.15, as due on the freight charges from Corpus Christi to Columbus. In the Ruddell case the diversion order was given and accepted before the goods had arrived at'the original destination, while in the present case such order was given and accepted after the goods had arrived at the original destination. We do not think this makes any material difference. In each case the goods were still in the possession of the connecting carrier. The owner or consignee of goods has the right to divert or change the destination of them at any time while they remain in the possession of the carrier. Lewis v. Galena & C. R. Co., 40 Ill. 281; Ruddell v. Baltimore & O. R. Co., supra. And no reason is perceived why the shipment of the cucumbers in the present case should not be treated as a continuous shipment from Corpus Christi to Columbus, or why the established presumptions, above referred to, should not be applicable to the defendants. In our opinion the trial court erred in holding that it was necessary for plaintiff to show by direct proof that the cucumbers were in good condition at St. Louis, Missouri, in order to raise the presumption of liability on the part of the defendants, or either of them.

For the reasons indicated the judgment of the Municipal Court is reversed and the- cause remanded.

Reversed and remanded.


author: Mr. Justice Gridley

text:
    George Studtmann, Defendant in Error, v. Union Grove Creamery Company, Plaintiff in Error.
    Gen. No. 20,415.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John K. Pbindiviule, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed in part and reversed in part with finding of fact.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Action by George Studtmann, against the Union Grove Creamery Company, the plaintiff in his affidavit for attachment declaring on an account stated and for goods sold and delivered, and stating that the defendant was about fraudulently to dispose of its property against the interest of his creditors. Defendant gave bond and made an affidavit to the merits. From a judgment in favor of the defendant on these issues, defendant excepted and brings error.
    Abstract of the Decision.
    1. Account stated, § 3

      —when evidence sustains judgment. Evidence in an action upon an account stated held sufficient to sustain a judgment in favor of plaintiff.
    2. Attachment, § 47*—when evidence insufficient to sustain issues. Evidence on an issue in attachment held insufficient to sustain plaintiff’s claim that defendant at the time suit was brought, or at any other time, was about fraudulently to conceal, assign or otherwise dispose of its property so as to hinder and delay its creditors.
    Francis E. Croarkin, for plaintiff in error.
    Levisohn & Levisohn, for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    Fred E. Jahp, Defendant in Error, v. The Elite Livery and Snyder Teaming & Transfer Company, Plaintiffs in Error.
    Gen. No. 20,441.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwabd T, Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.

      Abstract of the Decision.
    1. Bills and notes, § 335

      —when maker and guarantor jointly liable. The liability of the maker of a note and the guarantor thereof is not several, and both are properly joined as defendants in an action thereon.
    2. Corporations, § 255*—when resolution of directors unnecessary to guaranty of note. Where a corporation transferred all of its property to another corporation, the stock of both corporations being virtually owned by the same person, and a petition in bankruptcy was filed against the former, whereupon a compromise was effected by which in consideration of the latter being permitted to retain the assets so transferred it would guaranty the notes of the former corporation given to its creditors, in pursuance of which the manager of the grantee corporation guarantied such notes; it cannot be contended that such guaranty was invalid because of the want of a resolution of the board of directors of such grantee authorizing its manager to indorse and guaranty tlje notes.
    3. Corporations, § 440*—when guaranty of note not ultra vires. A corporation guarantying the notes of another corporation in consideration of the compromise of bankruptcy proceedings, and the retention of property by the former claimed to have been transferred to it by the latter in violation of the Bankruptcy Act, cannot invoke the doctrine of ultra vires as a defense in an action on the notes.

      Statement of the Case.
    Action by Fred E. Jakp in the Municipal Court of Chicago against The Elite Livery, a corporation, and Snyder Teaming & Transfer Company, a corporation, herein called Snyder Co., to recover the amount due on a promissory note, given by The Elite Livery to secure the claim of one of its creditors and signed by the Snyder Co. by its manager, as guarantor, who signed for The Elite Livery as its president. From a judgment for plaintiff for $309.99, defendant brings error.
    Raymond C. Lyon, for plaintiffs in error.
    Levisohn & Levisohn, for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

4. Costs, § 67 —when damages assessed on writ of error for delay. Where the contentions made the basis for a writ of error are without merit and of such a character that a reversal of the judgment could not reasonably have been hoped for, damages may properly be assessed.


text:
    The William Herely Company, Defendant in Error, v. The Elite Livery and Snyder Teaming & Transfer Company, Plaintiffs in Error.
    Gen. No. 20,442.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edwakd T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Statement of the Case.
    The facts of this case are the same as in that of Jahp v. Elite Livery, ante, p. 249, except that the note here was payable to the William Herely Company. The same judgment was rendered below as in the Jahp ease, the same contentions were raised in this court by counsel and the same decision made and judgment rendered by the Appellate Court.
    Raymond C. Lyon, for plaintiffs in error.
    Levisohn & Levisohn, for defendant in error.
   Mr. Justice Gridley

delivered the opinion of the court.


text:
    John D. Casey, Administrator, Appellant, v. Charles Deinet, Appellee.
    Gen. No. 20,449.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Mazzini Slusseb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and remanded.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Action by John D. Casey, administrator of the estate of Julia M. Dickinson, deceased, against Charles Deinet to recover the sum of ten thousand dollars for the wrongful death of said Julia M. Dickinson as the result of the alleged negligence of the defendant.
    The decedent was a tenant of the defendant and at the time of the injury, which subsequently resulted in her death, was engaged in assisting another tenant of the defendant occupying an apartment above that leased by the deceased. While leaning against the railings on the porch, they gave way, precipitating her to a roof below, resulting in injuries which subsequently caused her death. At the conclusion of the plaintiff’s evidence, on motion of the defendant, the court orally instructed the jury to find the defendant not guilty, not because of the insufficiency of the evidence, but upon the grounds, as orally stated by the court, that “the declaration contains no allegation of any facts from which the court can conclude that plaintiff’s intestate was lawfully upon the premises in question or that the defendant owed her any duty,” and that “the declaration does not state a cause of action.” From the judgment entered in favor of the defendant on the verdict so returned, the plaintiff appeals.
    Abstract of the Decision.
    1. Trial, § 212

      —when sufficiency of pleading cannot be tested by motion for directed verdict. A defendant pleading to the merits, without demurrer, cannot test the sufficiency of the declaration by a motion for a directed verdict.
    2. Trial, § 185*—when oral peremptory instruction imp-roper. An oral instruction to the jury to find a defendant not guilty of negligence is in violation of section 73 of the Practice Act (J. & A. ¶ 8610).
    McMahon & Cheney and E. C. Reniff, for appellant.
    P. H. Bishop, for appellee.

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

   Mr. Justice Gridley

delivered the opinion of the court.


text:
    E. DeLue & Company, Defendant in Error, v. D. D. Spear, Plaintiff in Error.
    Gen. No. 20,486.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Charles A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the October "term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Action by E. DeLue & Company, a corporation, against D. D. Spear to recover rent claimed to be due under the terms of the following written agreement:
    “Chicago, June 7, 1911.
    “I, D. D. Spear, hereby agree to rent the second floor of 3847 Cottage Grove from June 12, 1911, to April 30, 1913, from E. DeLue & Co., for $40 monthly rental from June 1, 1911, and sign a lease for same. In addition I agree to pay $250, in cash, $5 at time of signing this contract and balance of $245 on or before June 12, 1911.
    (Signed) D. D. Spear,
    E. DeLue & Co., Incorporated. Seal. Chicago, Illinois.”
    Plaintiff claimed that after the defendant had entered into possession he refused to execute a formal lease of the premises but occupied the same until some time in June, 1912, when he vacated, and that the premises stood vacant from July, 1912, up to and including the month of April, 1913. Plaintiff also asserted an additional claim against defendant for $350, for ten months’ rent of the third floor of said premises covering the months of July, 1912 to April, 1913, inclusive, at an agreed rental of $35 per month, the defendant having vacated the latter premises at the same time that he vacated the premises described in above agreement.

      Abstract of the Decision.
    1. Landlord and tenant, § 6

      —when memorandum sufficient as a lease. A memorandum signed by the parties thereto setting forth the period of the tenancy, the premises and rental, is binding on the parties thereto the same as a formal written lease, and the lessor may recover rent for the unexpired term where the lessee quits without legal justification.

      Among the defenses set forth in defendant’s affidavit of merits were the following: (1) That under
    the provisions of said written agreement plaintiff was to furnish a written lease for the premises but that the same was not executed; (2) that defendant did not either occupy said third floor of the premises or enter into a verbal lease therefor with plaintiff; and (3) that each of the several supposed promises in plaintiff’s statement of claim mentioned was an agreement not to be performed within the space of one year from the making thereof, and no memorandum thereof in writing was signed by the defendant, or by any person thereunto by him lawfully authorized.
    The case was tried before .the court and jury, and at the conclusion of all the evidence the court directed the jury to return a verdict in favor of plaintiff in the sum of $435, upon which verdict judgment against the defendant was entered. The court held that the sum of $400 was due plaintiff under said written agreement of June 7, 1911, and $35 for one month’s rent for the third floor of said premises.
    From this judgment, defendant brings error.
    Edward J. Kelley and Coleman S. Everett, for plaintiff in error.
    Frederic A. Fischel, for defendant in error.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Landlord and tenant, § 6 —when refusal to execute lease does not affect prior agreement. Where a memorandum of a lease setting forth premises, term and rental is signed by the parties thereto, a subsequent refusal by the tenant to sign a formal written lease does not render the memorandum lease any the less binding.

3. Landlord and tenant, § 284*—when liable for month’s rent on abandonment. Where a tenant enters into possession of premises leased under a verbal lease for a term exceeding one year, he is liable for a month’s rent as a tenant from month to month unless due notice of his intention to terminate the tenancy is given the lessor.


text:
    Anton Fuerst, Defendant in Error, v. Oscar Stone and Herman Salzberg, Plaintiffs in Error.
    Gen. No. 20,505.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Frank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here with finding of facts.
    Opinion filed April 13, 1915.
    Statement of the Case.
    The plaintiff, Anton Fuerst, in his original state-, ment of claim, filed on December 23, 1913, alleged that his claim against Oscar Stone and Herman Salzberg, defendants, was upon an “account stated between the parties” about June 30, 1913, for $100, of which amount $25 had been paid, leaving a balance due of $75. To this statement of claim the defendants filed an affidavit of merits in which it was alleged that they were not indebted to plaintiff in any sum, but that on the contrary plaintiff was indebted to them in the sum of $25; that about June 30, 1913, plaintiff repreeexited to defendants that he would procure for them a certain building on West 26th street in Chicago, for the sum of $4,800, upon payment to him of $100 for his services to be rendered in procuring said building; that defendants agreed to purchase said building for said sum of $4,800, and thereupon paid plaintiff $25 with the understanding that if plaintiff procured said building for them defendants would pay plaintiff the additional sum of $75, but that if paintiff did not procure said building plaintiff would return to defendants said sum of $25; and that defendants were ready, willing and able to purchase said building for said sum of $4,800, but that plaintiff was unable to procure said building and has not returned to defendants said sum of $25. The defendants also filed a statement of claim for set-off for said $25. To this claim of set-off plaintiff filed an affidavit of merits in which plaintiff admitted that such sum of $25 was so paid plaintiff, and that the property on West 26th street was not delivered by plaintiff to defendants, but plaintiff alleged that said sum of $25 was afterwards, at the request of defendants, “Applied upon a prior indebtedness of defendants to plaintiff of $100.”
    Upon the above statements of claims and answers thereto, the cause came on for trial March 5, 1914, before the court without a jury. Before the trial was concluded plaintiff, on March 9,1914, filed an amended statement of claim in which he seemingly abandoned his claim for an account stated, and in which he alleged that about May 1, 1913, defendants promised to pay plaintiff, “acting as a salesman for Joseph Streska, real estate broker in the City of Chicago,” the sum of $100 for “looking up for them any real estate bargain which should be approved by them and put through”; that plaintiff did look up and put through with defendants’ approval a “real property bargain from one Alois Slunecko” and defendants became indebted “to plaintiff’s principal” in the sum aforesaid, which sum defendants refuse to pay; that plaintiff “is the actual bona fide owner of aforesaid claim, same having been duly assigned to him about June 30, 1913”; and that there is now due plaintiff from defendants the sum of $75.
    To this amended statement of claim the defendant, Salzberg, filed an affidavit of merits on behalf of both defendants in which he alleged that plaintiff did not perform any services for defendants at their request, that plaintiff is not a licensed broker as required by the Chicago Code, secs. 192-198 inclusive; that plaintiff was not acting as a salesman for Joseph Streska in negotiating said real estate transaction between defendants and said Alois Slunecko, and that said Streska was not a licensed real estate broker in Chicago; that in the transaction referred to plaintiff acted as the agent for said Slunecko and not for defendants; that the alleged claim of said Streska against defendants was not assigned to plaintiff; and that plaintiff is indebted to defendants in the sum of $25 for cash paid as more fully set forth in defendants’ claim of set-off.
    On March 21, 1914, the trial court found the issues against defendants and assessed plaintiff’s damages at $75, and entered judgment against defendants on the finding, from which they bring error.
    Shulman & Shulman, for plaintiff in error.
    No appearance for defendant in error.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Assignments, § 31 -—what assignee must show. In an action by the assignee of a chose in action, the plaintiff must prove an indebtedness of defendant to the plaintiff’s assignor and the assignment of same to the plaintiff.

2. Brokers, § 5*—what is effect of failure to procure license. One acting as a real estate broker without a city license cannot recover commissions.


text:
    Margaret E. Slosson, Appellant, v. Martin H. Slosson, Appellee.
    Gen. No. 20,523.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John M. O’Connor, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Bill in the nature of a hill of review by Margaret E. Slosson against Martin H. Slosson to set aside a decree of divorce entered in her favor April 30, 1912. The original bill was filed March 19, 1913, to which defendant demurred and the demurrer was sustained. The amended bill was filed December 23,1913, and from the decree of the Superior Court of Cook county dismissing the same for want of equity, complainant appeals.
    The amended bill alleged, in substance, that on August 11, 1909, complainant was lawfully married to the defendant at Kenosha, Wisconsin; that on March 14,1912, defendant, by his cruel treatment hereinafter mentioned, and by the “threats and coercion” of his agents, “caused your oratris to file” in the Superior Court of Cook county a bill for divorce against defendant on the ground of extreme and repeated cruelty; that on April 24, 1912, said cause was called for trial, at which time both parties were present by their solicitors and complainant testified in open court to the acts of cruelty as set forth in said bill; that the trial resulted in a decree, “procured at the instance of the defendant” on April 30, 1912, which purported to dissolve the said marriage; that complainant begs leave to refer to said pretended decree, etc., and “to make said decree and all of the proceedings a part hereof, as though set forth herein at length;” that said pretended decree ordered that complainant should receive $1,800 in full of all alimony, $250 for solicitor’s fees and $150 for certain incidental expenses, which amounts “were paid and the records were satisfied in open court; ’ ’ that out of the amount received by complainant she was compelled to pay debts to the amount of $500 incurred prior to the entry of the decree, and that a portion of the remainder has been spent in paying doctor’s bills and defraying necessary living expenses.
    In the fourth paragraph of the bill complainant alleged that the filing of said bill for divorce, and the proceedings had thereafter culminating in said purported decree, “was not her free and voluntary act and deed, but was done at the instance and was brought about by the fraud, coercion, duress and undue influence of the defendant”; that complainant filed said bill for divorce at a time when she “was ill, unable to work for a livelihood, was without means or friends to support her, and was actually in need of the necessaries of life, and was actually starving, and had but meagre food for several weeks prior to the hearing.” She further alleged, in substance, that defendant had treated her in a cruel manner, and in February, 1911, refused to live with her; that she took a position as cashier in a barber shop in Chicago; that shortly thereafter an attorney employed by defendant informed her that a divorce from defendant was the only settlement of her domestic troubles that could be made; that subsequently she employed a Chicago attorney and requested him to see defendant and effect a reconciliation, if possible, and if not to procure separate maintenance for her; that said attorney did not start any litigation but0 succeeded in obtaining from defendant $75 per month for two or three months; that in July, 1911, defendant stated to complainant over the telephone that he would send her $65 per month for one year and that she would have to be content with that or get nothing; that in September, 1911, she went to Seneca Falls, N. Y., for her health, and while there received $65 from defendant for the October allowance ; that in November, 1911, she was notified by her said Chicago attorney that no more money would be sent to her until she applied for and obtained a divorce; that she telegraphed and wrote defendant requesting her November allowance but received no reply from him; that she pawned her diamond ring to get sufficient funds to return to Chicago, and upon arriving in Chicago employed another attorney who filed a bill for separate maintenance in her behalf against defendant; that no service of process in said suit could ever be made on defendant; that during the winter of 1911 and 1912 she only received the sum of $65 from defendant, designated as her November, 1911, allowance ; that in order to live she was compelled to pawn her watch and other personal articles and borrow money from friends, and existed in consequence under the most miserable circumstances; that by reason of the long-continued inhuman treatment by defendant, and the physical illness and mental anguish she suffered by reason thereof, she was “mentally incompetent to transact business or consent to file a bill for divorce”; that defendant, knowing the mental condition of complainant, “conspired with his attorney and one William Schroeder” of Kenosha, Wisconsin (who was employed by the same firm that employed defendant), to cause complainant to file a bill for divorce, and they induced complainant to file such a bill, under an arrangement whereby defendant was to pay complainant $1,500 and make complainant the beneficiary in a life insurance policy on the life of defendant for $12,000; that defendant did not have his life insured for $12,000, or in any amount, in favor of complainant; that said Schroeder telephoned complainant and stated that he would see that his employer kept the defendant out of the jurisdiction of the court indefinitely unless complainant would continue with the divorce proceedings, and that complainant would never get a cent of money from defendant; that as soon as- the bill for divorce was filed, the defendant entered his appearance in said suit by his attorney; that said bill for divorce was filed, and said pretended decree of divorce was procured, pursuant to said conspiracy to accomplish such end and purpose, which conspiracy was entered into between defendant, his said attorney and said Schroeder, and “to which your oratrix was not a voluntary party, but because of the paralysis of her will and the mental incompetency under which she was suffering she was unable longer to resist the attacks of her husband, and permitted defendant to carry out his designs; and that said pretended decree of divorce was procured from said court at the special instance and through the instrumentality of the defendant.”
    Complainant further alleged that the acts of cruelty testified to by her at said divorce trial “were true,” and that said acts were only a small part of the physical torture which defendant inflicted upon her in order that he might force her to secure a decree of divorce; that “owing to her mental condition and paralysis of the will she did not testify fully as to all the facts ’ ’; that if at the time of the trial she had had control of her will power, and had been in proper mental condition she would have disclosed said conspiracy; and that “in her mental condition she was afraid that she would remain in actual need of the necessities of life unless a decree for divorce was obtained. ’ ’
    Abstract of the Decision.
    1. Equity, § 574

      —when Mil of review insufficient. Bill in the nature of a bill of review to set aside the decree of divorce rendered in favor of complainant on the ground that such decree was procured through the fraud, coercion, duress and undue influence of the defendant and as the result of the mental incapacity of the complainant, held insufficient on the ground that allegations setting forth the grounds for the bill were mere conclusions.
    Complainant farther alleged that she did not file a motion to open said decree dr prosecute an appeal “because she was compelled to devote her time to regain her mental and physical health, ’ ’ and that 11 after she had sufficiently gained her mental poise to fully comprehend the situation into which she had been thrust, she consulted a lawyer and was informed as to her rights in the matter and brought this her suit to annul said decree.”
    George C. Guthrie and George W. Pennington, for appellant.
    Miller, Starr, Packard & Peckham and Henry J. Toner, for appellee.

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

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

   Mr. Justice Gridley

delivered the opinion of the court.

2. Judgment, § 343 —what are requisites of hill to impeach judgment. A bill to impeach a judgment or decree for fraud must substantially state the facts relied on as constituting the fraud.

3. Fraud, § 72*—what are requisites of allegations setting up. The party alleging fraud must set forth in his pleadings the facts relied upon to show same, and mere conclusions of the pleader without averments of the facts will not support an allegation of fraud.

4. Judgment, § 321*—when may he annulled for fraud. While a court of equity may annul a judgment or decree obtained by fraud, to justify the exercise of the power it must be made clearly to appear that the judgment or decree has no other foundation than fraud.

5. Divobce, § 61*—when decree not set aside at the instance of successful party. A decree of divorce rendered in favor of the complainant upon her allegations and proof of extreme and repeated cruelty will not be set aside on a bill in the nature of a bill of review by such complainant setting forth that the grounds upon which said decree of divorce was based, and her testimony in support thereof were in fact true, but that she was induced to institute such proceeding through the fraud of the defendant.

6. Divobce, § 59a*—when allegations of hill of revieio insufficient. Allegations in a bill in the nature of a bill of review to set aside a decree of divorce rendered in favor of the complainant in a suit instituted by her to the effect that at the time of the institution of such proceedings she was in pecuniary distress and suffered vexation and annoyance by the acts of defendant, held insufficient to show such coercion, duress and undue influence on the part of the defendant as to justify the relief sought.

7. Equity, § 560*—when hill to set aside decree fails to explain laches. A bill to impeach a decree of divorce entered in favor of the complainant in a suit instituted by her, on the ground that such proceeding was instituted through the fraud, coercion and undue influence of the defendant, held insufficient to explain a delay of nearly a year in filing a bill to impeach said decree.


text:
    R. B. Brumbaugh, Defendant in Error, v. Emma M. Candler, Plaintiff in Error.
    Gen. No. 20,570.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Percy L. Persons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Action by B. B. Brumbaugh against Emma M. Candler on a check for six hundred and fifty dollars and on an account stated for one hundred dollars. In response to an advertisement by the plaintiff in a newspaper that he was selling out the contents of a furnished house, the defendant called at the house and selected certain pieces of furniture which were delivered to the defendant who gave plaintiff her check, payment of which was subsequently stopped, and promised to pay one hundred dollars additional. The defendant claimed that she had been deceived as to the character of the goods inasmuch as they were not permanent furnishings of a residence but were replaced from time to time by new goods as sales were made.
    The evidence showed that notwithstanding the misleading character of the advertisement, the defendant knew the kind and quality of the goods purchased, that the furniture was in fact new and was not the used furniture of a “fashionable house.” From a judgment against defendant for seven hundred and fifty dollars, she brings error.
    McEwen, Weissenbach, Shrimski & Meloan, for plaintiff in error.
    MoInerney, Power & Byrnes, for defendant in error.

      Abstract of the Decision.
    Sales, § 411

      —when misleading advertisement not available. Where as a result of a misleading advertisement of goods for sale the defendant subsequently makes a purchase after being informed of the true character of such goods and circumstances surrounding the sale, the contention that the advertisement was calculated to deceive will not avail as a defense, the goods being actually worth the price paid for them.

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

   Mr. Justice Gridley

delivered the opinion of the court.


author: Mr. Justice Smith

text:
    George H. Helberg, Defendant in Error, v. Benjamin F. Odell, Plaintiff in Error.
    Gen. No. 20,104.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Action by George H. Heiberg against Benjamin F. Odell to recover money paid under protest. . Heiberg on taking up his note was charged by defendant a sum for attorney’s fees and interest, which he paid under protest. From a judgment in favor of plaintiff, the defendant brings error.
    Benjamin F. J. Odell, pro se.

    No appearance for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

Payment, § 43 —when excess payment may he recovered. Where the maker of a collateral note pays, under protest, to the holder a sum as attorney’s fees and excess interest not demandable under the terms of the note, such sum may be recovered in a suit against him.


text:
    Johnston City Coal Company, Defendant in Error, v. Adolph Kuecken and Minnie Kuecken, Plaintiffs in Error.
    Gen. No. 20,280.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmlll, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Reversed and remanded.
    Opinion filed April 13, 1915.
    Rehearing denied April 27, 1915.
    Statement of the Case.
    Action by Johnston City Coal Company, a corporation, against Adolph Kuecken and Minnie Kuecken to recover the purchase price of goods delivered. Plaintiff alleged delivery to defendants, trading as partners under the firm name and style of Wm. Kuecken & Company. Defendants in their affidavits of merits, without denying delivery to the firm, did deny delivery to them as members of the firm, and further denied that they ever transacted business as copartners under such firm name and. style as alleged. From a judgment for plaintiff below, defendants bring error.

      Abstract of the Decision.
    Pleading, § 117

      —what not an admission by failure to deny. Where in an action to recover the price of coal alleged in the statement of claim to have been sold to the defendants as partners, the defendants while not explicitly denying the value nor the delivery did deny that same was delivered to them as partners, or that they were partners, a ruling that plaintiff was not required to prove price or delivery on the ground that same not having been denied was admitted, is erroneous.
    Henry D. Coghlan, for plaintiffs in error.
    Maguire & Mooney, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.


text:
    Louis Goldschmidt and Beatrice Sackerman, trading as Goldschmidt & Sackerman, Plaintiffs in Error, v. George Lessaris, Defendant in Error.
    Gen. No. 20,400.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John J. Rooney, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed April 13, 1915.
    Rehearing denied April 27, 1915.
    Statement of the Case.
    Action by Louis Goldschmidt and Beatrice Sackerman, trading as Goldschmidt & Sackerman, against George Lessaris to recover damages alleged to have been sustained by plaintiffs as the result of fraud, deceit and breach of warranty on the part of the defendant in Ms sale to them of a moving picture theater at 3506 South Halsted street, Chicago. Plaintiffs claimed that defendant represented and warranted to them at the time of the sale that the heating and ventilating system then in the theater in every respect conformed to and complied with the law ordinances in the city of Chicago then in force and effect prescribing and regulating heating and ventilating for theaters of the class purchased by plaintiffs; that the ventilating system of the theater at the time of the purchase by plaintiffs was not proper, lawful, satisfactory or fit, but at the time was unlawful, improper, unsatisfactory and unfit, and that defendant had been informed before the sale of the theater and had been notified by the city of Chicago that no license from said theater to operate said theater would be issued on July 1, 1913, unless the city was first furnished satisfactory evidence of the intention of the owner or lessee to supply a fit, proper, lawful and satisfactory ventilating system in and to said theater on or before October 1, 1913/ and a reasonable deposit made with the city, guarantying the same, all of which was denied by the defendant, who asserted that plaintiffs did not rely upon any representation by him as to the condition of the premises or to the ventilating system therein but that they had carefully examined said premises and ventilating system and that same was open to their scrutiny and examination before the purchase.
    From a judgment for defendant, plaintiffs prosecute error.
    George M. Bagby, for plaintiffs in error.
    Homer Sullivan, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and error, § 1034 —when rules of Municipal Court not judicially noticed. The Appellate Court will not take judicial notice of rules of the Municipal Court.

2. Appeal and error, § 482*—when no question of law presented. Where on a trial before the court without a jury no propositions of law were submitted, no questions of law are presented for review.

3. Fraud, § 12*—what is effect of independent investigation. No action for damages arising from fraud will lie where the plaintiff relies wholly on his own inspection of the thing purchased and not on any fraudulent statement of the defendant.


text:
    Frank M. Turek, Defendant in Error, v. Frank Opava, Plaintiff in Error.
    Gen. No. 20,429.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph S. LaBuy, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed with finding of fact.
    Opinion filed April 13, 1915.
    Statement of the Case.
    Frank M. Turek brought an action against Frank Opava to recover commissions. The plaintiff, at a third party’s request to purchase property for him, approached the defendant and entered into negotiations with him looking to the purchase of his property by the third party, which negotiations, however, were discontinued before a sale was consummated, the defendant refusing to enter into a contract. From a judgment rendered against him, the defendant brings error.

      Abstract of the Decision.
    Brokers, § 32

      —when employment must be shown. Where a real estate broker acting for another who desires to purchase real estate approaches the owner of certain property and negotiates for the purchase thereof, no contract will he implied therefrom on the part of such owner to pay the broker for his services.
    Frank C. Souhrada and Anton W. Schroeter, for plaintiff in error.
    Jones, Kerner & Posvic, for defendant in error.

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

   Mr. Justice Smith

delivered the opinion of the court.