text:
    Union Trust & Savings Bank, Trustee, et al., Defendants in Error, v. Kinloch Long Distance Telephone Company of Missouri et al., Plaintiffs in Error.
    1. Public policy—how determined. The public policy of a state is to be determined from its legislative declarations or in their absence from its judicial decisions.'
    2. Contracts—when void as against public policy. Any contract which tends to prevent competition or tends to interfere with the freedom of competition, entered into by a corporation whose duty it is under its charter to serve the public, is against public policy and void in Illinois.
    3. Contracts—when between telephone companies against public policy. A contract between telephone companies by which one of them is restricted and impeded in performing its public obligations is Contrary to public policy and void,

      Foreclosure. Error to the Circuit Court of Fayette county; the Hon. Thomas M. Jett, Judge, presiding.
    Heard in this court at the March term, 1911.
    Affirmed.
    Opinion filed April 12, 1912.
    Reynolds & Harlan and Patton & Patton, for plaintiffs in error.
    W. B. Mann and David K. Tone, for defendants in error; G. T. Turner, W. A. Loudan and Brown & Burnside, of counsel.
   Mr. Justice Shirley

delivered the' opinion of the court.

Defendant in error, Union Trust and Savings Bank of Bast St. Louis, Trustee, filed its bill alleging that on June 7, 1907, the Vandalia Telephone Company, hereinafter called Telephone Company, by a trust deed in the nature of a mortgage conveyed to defendant in error, Union Trust and Savings Bank of Bast St. Louis, all of its property, real and personal, of every description including its franchise, to secure bonds issued by it in the sum of seven thousand dollars and purchased by the Farmers and Merchants Bank. It was alleged that a portion of said bonds was due and unpaid to the said Bank and that said Telephone Company was in default. It was further charged that the Kinloch Long Distance Telephone Company of Missouri, hereinafter called the Long Distance Company, claimed to have some interest in the mortgaged property which was subsequent to the lien of the trust deed. The bill prayed a foreclosure and sale of the property.

The Telephone Company answered admitting the execution of the mortgage and the bonds, and that the bonds were due and unpaid, but denied that the Long Distance Company had any right or interest in the property described in the trust deed or any lien thereon.

The Long Distance Company answered the bill setting up that it had an interest in the property which was prior to the lien of the trust deed arising out of an agreement entered into prior to the execution of the deed, and that all parties had notice thereof. The agreement is set forth in the answer, and in substance recites that the Long Distance Company had long distance telephone lines in operation in several states, and in the operation of its lines desired to interchange business with the Telephone Company, and that the latter company had an exchange in Vandalia with lines to points in Fayette county, and desired to interchange business with the Long Distance Company, and in consideration of the premises the Telephone Company agreed to and did grant a license to the Long Distance Company to attach cross arms to certain of its poles in Vandalia, and to connect with its exchange through its switch boards, so an interchange of business might at all times be carried on, the Telephone Company to maintain its plant and all its appliances at its own expense. The fourth, fifth and twelfth clauses of the agreement read as follows:

Fourth: “No connection with any other line or lines except those actually owned, controlled and operated by the Telephone Company is contemplated or intended by the Long Distance Company in this agreement, and no connection with any other line will be given, or allowed to be given by the Telephone Company to the Long Distance Company’s lines under penalty of forfeiture of the rights herein contained, unless special agreement in writing is entered into between the parties hereto, and the third parties who desire to connect to the Long Distance Company’s system through the Telephone Company’s lines, in which agreement the Telephone Company becomes responsible to the Long Distance Company for every message delivered to the Long Distance Company’s lines by the third parties, and makes said third parties’ lines in every other respect a part of its own system, and bound by the terms and conditions of this agreement. Nothing in this section however shall be construed to prevent the Long Distance Company from connecting with other companies and exchanges at points outside of the City of Vandalia.”

Fifth: “The Telephone Company agrees to deliver to the Long Distance Company all messages originating on its own line or exchange, and which terminate at points reached by the Long Distance Company or its connecting lines, and the Long Distance Company agrees to deliver to the Telephone Company all messages it receives which terminate at points reached by the Telephone Company in the County of Fayette aforesaid. If the lines of the Telephone Company reach points outside of said County of Fayette which points are also reached by other ‘independent’ or ‘opposition’ lines, the Long Distance Company hereby agrees to distribute the business destined for such common point as equally as practicable between the Telephone Company and such other independent or opposition line or lines, but the Long Distance Company reserves the right to transmit all business to such common point over such line or lines as will enable it to render the best service.”

Twelfth: “The Telephone Company shall not sell or lease any of its wires or exchanges to any Telephone Company, or to any corporation or individual whatsoéver, so as to impair the provisions of this contract without the consent of the Long Distance Company; nor have the right to connect or exchange business with any company at or for points reached by the Long Distance Company or its connecting lines; nor have the right to do anything which will in any manner impair the obligations of this contract, or impair the efficiency of the long distance business or its connection with the Long Distance Company.”

Other clauses of the agreement not material to be set forth provide for the division of tolls and the method of transacting the business, and it is further provided the agreement shall remain in force during the life of the Telephone Company’s franchise to operate in Vandalia, and during any renewals or extensions thereof.

The answer further averred that by the terms of the agreement the Long Distance Company agreed not to sell or lease any of its wires or exchanges nor to do anything which would impair the obligations of the contract nor the efficiency of the long’ distance, business of, or connections with the Telephone Company; that the contract was of great value; that at the time of the execution of the trust deed and the delivery of the bonds the bank had notice of the agreement and that it was then being carried out; it was further averred that the contract was a charge upon the property of the Telephone Company prior to the mortgage.

To that part of the answer setting up that the contract was a charge superior to the lien of the trust deed, defendants in error filed exceptions which were sustained, and the Long Distance Company filed no further answer. Thereupon the cause was heard upon the bill, answers of both Telephone Companies, and the replication to the answer of the Long Distance Company.

The chancellor entered a decree finding that the said contract between the Telephone Companies and set up in the answer of the Long Distance Company was contrary to public policy and void; that said Company had no title to or interest in the property conveyed by the trust deed, and that the lien of the holder of the bonds was superior to the alleged claim of the Long Distance Company. The decree provided for a foreclosure and sale free from any such alleged lien. From this order and decree the Long Distance Company prosecutes this writ of error.

The main controversy arises upon whether the agreement was contrary to public policy and void because it tended to create a monopoly, stifle competition, and prevent the Telephone Company from discharging its obligations to the public under its charter.

By the twelfth paragraph of the agreement the Telephone Company agrees not to connect or exchange business with any other company for all cities and villages where the Long Distance Company maintains exchanges. This provision disables the Telephone Company from making any connection with any other long distance line having an exchange in the prohibited territory, and disables it from permitting its patrons at Vandalia from talking directly with persons in such territory who may have a telephone of some other long-distance exchange. It is not a question whether said company would in the absence of the contract make such connection or whether it desired to do so, but whether it is against public policy for it by contract to disable itself from furnishing such service so that it might not freely do so.

It has been said that the public policy of a state is to be determined from legislative declarations, or in their absence from its judicial decisions. McGinniss v. Boston and M. Consol. Copper & G. Min. Co., 75 Pac. 89; Picket Pub. Co. v. Board of County Commissioners, 92 Pac. 524. So far as we are aware there has been no legislation in this state regulating the connection of lines of different telephone companies, and the State through its legislative department has not declared its policy in this regard; we must therefore turn to its judicial decisions to determine if we can whether such contracts as the one before us should be held to be against public policy. What courts of other jurisdictions have held upon the subject is of.little value, if not in harmony with the policy of this state so far as it has been judicially declared. In the courts of some jurisdictions contracts like the one before us have been held void as being in contravention of public policy. The U. S. Tel. Co. v. Central Union Tel. Co., 171 Fed. Rep. 130; Home Tel. Co. v. Granby & N. Tel. Co., 146 Mo. App. 216; Central N. Y. T. & T. Co. v. Averill, 92 N. E. 206. In other jurisdictions similar contracts have been upheld. The U. S. Tel. Co. v. The Middlepoint Home Tel. Co., 13 C. C. ns. 337; The U. S. Tel. Co. v. Delphos Home Tel. Co., 19 Ohio Decisions, 193; The Home Tel. Co. v. N. Manchester Tel. Co., 92 N. E. 558. In the case of Home Tel. Co. v. Sarcoxie Light and Tel. Co., decided by the Supreme Court of Mo. on July 3, 1911, and cited by counsel for plaintiff in error, it was held a contract similar to the one here was not against public policy, but an examination of the opinion shows there was a competitive line and the contract complained of increased the usefulness of each party to it, so far as the general public was concerned. It created competition and not being a monopoly was not against public policy. In the case before us there was no competition out of Vandalia, and the patrons of the Telephone Company there were obliged to send their messages over the long distance wires and through its exchanges, whether they wished to do so or not.

Contracts between corporations operating under public franchises and discharging public functions which tended to interfere with the freedom of competition have been considered in the judicial decisions of this state, and have been uniformly held contrary to public policy and void.

In Chicago Gas Light Co. v. Peoples Gas Light Co., 121 Ill. 530, both companies were authorized by their charters to furnish gas to the public in the city of Chicago. They entered into an agreement dividing the territory between them and each agreed to lay no mains or pipes in the territory of the other nor to furnish or sell any gas to persons living therein for one hundred years. It was held the contract was void on the ground of public policy for the reason the parties thereby abandoned a public duty to furnish gas to all the city; "that their charters were the exercise of franchises belonging to the state; that the services to be rendered for the grant of them were of a public nature, and that the franchise was conferred as well for the benefit of the public as of the Gras Companies.

In The People ex rel. v. Chicago Gras Trust Co., 130 Ill. 268, it was held, that “Whatever tends to prevent competition between those engaged in an employment or business impressed with a public character is opposed to public policy and therefore unlawful; and whatever tends to create a monopoly is unlawful as being contrary to public policy. All grants creating monopolies and acts tending to prevent proper competition are by the common law illegal and void.” To the same effect, in South Chicago Ry. Co. v. Calumet Ry. Co., 171 Ill. 391, it was held that a contract between two street railway companies not to cross each other’s track at grade was in effect a contract not to cross each other’s tracks at all, and not to invade each other’s territory. It was held they owed a duty to the public to use their respective franchises unrestrained by contract, and any agreement between themselves or with others which tended to prevent the discharge of that duty was void. From these decisions it is clear that any contract which tends to prevent proper competition, or tends to interfere with the freedom of competition, entered into by a corporation whose duty it is under its charter to serve the public, is against public policy and void in this state.

By the agreement between these companies no patron of the Telephone Company could talk directly with anyone in any city or village where the long distance had an exchange except over the long distance lines to the exclusion of all other lines. If this was not a monopoly of such business, it at least tended to create one, and to interfere with the freedom of competition in the transmission of long distance messages.

In our opinion the chancellor correctly held the contract void; that the Kinloch Long Distance Telephone Company of Missouri had no title or interest in the property, and that the holder of the bonds was entitled to a foreclosure free from any alleged lien of the said Telephone Company.

The decree of the Circuit Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    Gamble-Robinson Commission Company, Plaintiff in Error, v. Delaware, Lackawanna and Western Railroad Company, Defendant in Error.
    Gen. No. 16,201.
    1. Common carriers—when laws of sister state govern contract of shipment. If the contract of shipment is entered into in another state the laws of such state control its interpretation and effect.
    2. Instructions—when in effect directing verdict erroneous. If an instruction eliminates from the jury material elements and practically directs a verdict for one of the parties it is ground for reversal.
    3. Instructions—when error not cured. If an instruction erroneously ignores material elements it cannot be cured by a correct instruction contradictory thereof.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 30, 1912.
    Anderson & Eaton, for plaintiff in error.
    Adams & Candee, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

In an action brought by plaintiff in error against defendant in error in the Municipal Court to recover damages occasioned by the alleged negligence of defendant in error in transporting 220 barrels of cranberries from New York City to Minneapolis, Minnesota, a trial by jury resulted in a verdict in favor of defendant in error and a judgment against plaintiff in error for costs, to reverse which judgment this writ of error is prosecuted.

On February 1, 1907, defendant in error, at the request of Titus Brothers, doing business in New York City, furnished to them a refrigerator car, for the through shipment of the cranberries in question to' plaintiff in error at Minneapolis, Minnesota. The cranberries were packed in barrels which were loaded into the car, and the bill of lading and contract of shipment therefor contained the following conditions:

“No carrier or party in possession of all or any of the property herein described shall be liable for any loss thereof or damage thereto, by causes beyond its control; or by floods or by fire; or by quarantine; or by riots, strikes or stoppage of labor; or by leakage, breakage, chafing, loss in weight; changes in weather, heat, frost, wet or decay; or from any cause if it be necessary or is usual to carry such property upon open cars. Claims for loss or damage must be made in writing to the agent at the point of delivery promptly after arrival of the property. No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route.”

The car was carried hy defendant in error to East Buffalo, New York, where it was delivered to the N. Y. C. & St. L. R. R. Co., which carried it to Chicago and delivered it to the C. M. & St. P. Ry. Co. on February 4, 1907. The last named carrier placed the car in its roundhouse on the day of its delivery to it, and so held the car until February 8, 1907, when it left for Minneapolis, where it arrived at 12:50 P. M. on February 10, 1907. At 7 A. M. on February 11th the car and the cranberries were inspected, and such inspection disclosed that three barrels of cranberries were frozen. In the evening of February 11th the car was removed to the fruit house and thereafter most of the cranberries were found to have the appearance of being thawed out after freezing.

It is not claimed by the plaintiff in error that there was any unreasonable delay in transporting the car from the point of shipment to destination, but a right of recovery is predicated solely upon the alleged absence of proof by defendant in error that reasonable care was exercised by the carriers in seeing to it that the doors of the car were kept closed and that the car was properly housed upon its arrival at Minneapolis, in view of the prevailing weather conditions.

The contract of shipment was entered into in the State of New York, and the laws of that State must control as to its interpretation and effect. Coats v. C. R. I. & P. Ry. Co., 239 Ill. 154.

By the law of the State of New York the acceptance by the shipper, on the delivery of goods for transportation to a carrier, of a receipt or bill of lading signed by the carrier expressing the terms and conditions under which they are received, and are to be carried, constitutes, in the absence of fraud or imposition, a contract controlling the rights of the parties. Kirkland v. Dinsmore, 62 N. Y. 171; Germania Fire Ins. Co. v. The M. & C. R. R. Co., 72 N. Y. 90.

In Thyll v. N. Y. & L. B. R. R. Co., 92 App. Div. 513, it was held that the provision in a contract of carriage that the carrier should not be liable for loss or damage by changes in weather, heat, frost, wet or decay did not relieve the carrier from liability if the goods were thereby damaged through its negligence. The evidence discloses that the temperature at Minneapolis on February 10, 1907, was from 21 degrees to 35 degrees above zero; that on February 11th the temperature there was from 9 degrees to 21 degrees above zero; that the temperature there on February 12th was from 17 degrees to 40 degrees above zero; and that upon each of said days the minimum temperature was reached in the morning.

Whether or not the cranberries in question were frozen and damaged while the car was on the side track in Minneapolis from 12 :50 p. m. on February 10th until the evening of February 11th when it was removed to the fruit house, and whether or not the carrier was negligent in permitting the car to remain on the side track for such length of time, were questions of fact to be determined by the jury under proper instructions.

The eighth and ninth instructions given at the instance of defendant in error wholly eliminate from the consideration of the jury the elements mentioned and practically direct a verdict for defendent in error, if the jury find that it exercised reasonable care with reference to the transportation of the cranberries in certain other particulars.

By the second instruction given at the request of defendant in error the jury were informed that all of the terms of the contract of shipment were binding upon plaintiff in error. One of the terms of said contract is that defendant in error should not be liable for loss or damage not occurring on its road or its portion of the through route. The contract in question relates to an interstate shipment.

Section 20 of the Act relating to Interstate Commerce, as amended June 29, 1906, provides in part as follows:

“That any common carrier, railroad or transportation company receiving property for transportation from a point in one State to a point in another State shall issue a receipt or bill, of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” Fed. Stat. Ann. (Supp. 1909) 273.

True, the seventh instruction given at the instance of plaintiff in error states the law with reference to the liability of the initial carrier correctly, but it did not cure the error in the second instruction given at the request of defendant in error. The two instructions are in direct conflict.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Albert Haas Lumber Co., Defendant in Error, v. Harty Bros. & Harty Co., Plaintiff in Error.
    Gen. No. 16,363.
    1. Sales—when custom competent. Held, that a local custom by which a local broker habitually settled disputes arising as to the grade and quality of lumber was competent.
    2. Sales—when previous course of dealmg competent. Held, that a previous course of dealing as to settlement of disputes was competent.
    Error to the Municipal Court of Chicago; the Hon. Wm 2ST. Gem-mill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 30, 1912.
    Bulkley, Gray & More, for plaintiff in error; C. Paul Tallmadge, of counsel.

      Eastman & White, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

This writ of error is prosecuted to reverse a judgment of the Municipal Court upon a verdict directed by the Court against plaintiff in error for $212.50. There is no appearance by defendant in error in this court.

On January 27, 1909, at the solicitation of Lewis E. Starr, doing business as a lumber broker in the city of Chicago, under the name of The Starr. Lumber Co., plaintiff in error ordered a car of lumber designated as “1” Smoke dried, Bgh., B & better yellow Pine finish,” at $25.50 per thousand feet. On the same day the order was communicated by Starr to defendant in error, doing business at Atlanta, Gfeorgia, and on February 1st following, the lumber was delivered to plaintiff in error upon the track. An examination of the lumber by plaintiff in error disclosed that it did not conform to the grade and quality of lumber ordered,- and plaintiff in error thereupon refused to unload the lumber, and.so notified Starr, the broker. Starr examined the lumber and found the same to be below grade, and directed plaintiff in 'error to sort it out and retain such of it as was up to grade and then told plaintiff in error he would sell the remainder to some one else. Plaintiff in error retained 2420 feet of the lumber, as up to grade, and the remainder, 14,510 feet, was sold by Starr to one Krueger, who hauled it away.

Defendant in error brought suit against plaintiff in error to recover for all the lumber shipped to it, and the amount of the judgment, upon a verdict directed by the court, represents the contract price less the freight. Plaintiff in error offered to pay for the lumber retained by it at the contract price.

Upon the trial plaintiff in error sought to show the existence of a general, uniform custom or usage in the lumber trade in Chicago, with respect to the authority of a local broker selling lumber for dealers, doing business in outside territory, to settle disputes arising as to the grade and quality of lumber shipped by such outside dealers, and to re-sell such portions as were properly rejected. Plaintiff in error also sought to show the previous course of dealing between defendant in error and Starr relating to transactions wherein disputes had arisen with reference to the grade and quality of lumber shipped by defendant in error to other vendees, upon orders secured by Starr. In both instances the proof sought to be adduced by plaintiff in error was held by the trial court to be incompetent and immaterial. The proof offered should have been admitted, and its exclusion was clearly prejudicial to plaintiff in error.

In Bailey v. Bensley, 87 Ill. 556, it was held that a person who deals in a particular market must be taken to deal according to the known, general and uniform custom or usage of that market; and he who employs another to act for him at a particular place or market must be taken as intending that the business to be done will be done according -to the usage and custom of that place or market, whether the principal in fact knew of the usage or custom or not. See also, Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561.

In Saladin v. Mitchell, 45 Ill. 79, the authority of a broker in conformity with commercial usage, to rescind-a sale, was expressly recognized.

Evidence of prior general course of dealing between a principal and agent is competent as tending to show the extent of the agency. Doan v. Duncan, 17 Ill. 272; Thornton v. Lawther, 169 Ill. 228; McIntosh v. Ransom, 106 Ill. App. 172.

For error in excluding the proffered evidence the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    John Mausley, Defendant in Error, v. John E. McMullen, Plaintiff in Error.
    Gen. No. 16,382.

      Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Error to Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 30, 1912.
    Novak & Pollack, for plaintiff in error.
    Wm. A. Jennings, for defendant in error.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Defendant in error recovered a verdict and judgment against plaintiff in error for $375 as damages for an alleged assault. The only ground urged for reversal of the judgment is that the verdict is against the manifest weight of the evidence upon the issue whether or not plaintiff in error assaulted and struck defendant in error.

Defendant in error testified, in substapce, that while waiting for a street car at the corner of 18th and Halsted streets, between 10 and 12 o ’clock on the night of September 14, 1909, he went into the saloon of plaintiff in error for the purpose of getting a drink; that he ordered a glass of beer and gave the bartender a two dollar bill and received the change; that while he was putting the change in his pocket plaintiff in error said to defendant in error, “You look like a nigger because your hair is curly,” and that he replied, "Then you do,’’ and asked when he could get a train for Gales-burg ; that plaintiff in error then asked him if he was a tramp, and he replied that he was not, but he was a stranger in that part of town; that plaintiff in error said, “I see you belong to the Eagles, too,” and he replied, “yes;” that he showefi plaintiff in error a book of the Order of Eagles, whereupon plaintiff in error charged him with being delinquent in the order and ordered him to get out of the saloon; that he had some money in the book, two ten dollar bills and one five dollar bill, which plaintiff in error threw upon the bar; that as soon as he recovered his book and money he walked through the swinging doors to the front door, and was leaning against the door waiting for a car when plaintiff in error, who had followed him, struck him on the right side of the face with his fist, in which plaintiff in error appeared to have a pair of knuckles; that the force of the blow broke the jaw of defendant in error. It is uncontroverted, that immediately after defendant in error claims to have been struck by plaintiff in error he went to the Canalport Avenue police station, a distance of three or four blocks from plaintiff in error’s saloon, and complained to the officers there on duty that he had been assaulted and his jaw broken; that one of the officers was detailed to accompany defendant in error to the saloon, and upon arriving there defendant in error pointed out plaintiff in error as the person who had struck him; that plaintiff in error then went to the police station, and upon the refusal of defendant in error to make a formal complaint against him no further steps were taken, and the parties went home; that after arriving at 1043 South Leavitt street, where defendant in error resided with his wife and family, his jaw became so painful that he went to the county hospital, arriving there about 1 o’clock A. M., and there remained under treatment for about a month.

On behalf of plaintiff in error, five police officers testified that defendant in error appeared to be intoxicated when he came to the station. Three officers testified that they examined the jaw of defendant in error. Two testified they found nothing to indicate defendant in error had been struck, or that his jaw was injured or broken, and one testified he found a little cut on the inside of defendant in error’s cheek, as if something hard had come in contact with it.

Plaintiff in error, his bartender, and one of several customers, who were in the saloon at the time in question, testified that defendant in error did not pay for the glass of beer which he ordered, and that he attempted to get another drink on the strength of his Eagle book; that plaintiff in error and his bartender told defendant in error they did not,sell drinks on books; that defendant in error then became noisy and abusive in his language and conduct and the bartender ordered him out of the saloon and took him through the swinging doors; that plaintiff in error did not follow defendant in error to the front of the saloon and did not strike him.

That the jaw of defendant in error was broken does not admit of doubt, and that he immediately made complaint to the police department, charged plaintiff in error with having struck him, and accompanied á police officer to the saloon of plaintiff in error and there in the presence of seven or eight persons, who were in the saloon when the alleged assault was made, identified plaintiff in error as the assailant, are facts and circumstances tending to corroborate defendant in error’s version of the affair. The opinions expressed by the police officers that defendant in error was intoxicated, arid therefore to some extent irresponsible when he came to the station, were predicated solely on the fact that he appeared to be excited and talked in a loud tone. The circumstances fairly justified the excited state of mind of defendant in error and his excitement was reason sufficient for his loud speaking. He is shown to have been sober when he went to the hospital, two hours later. Notwithstanding he was subjected to a most searching cross-examination relative to his whereabouts and doings during the afternoon and evening of the day in question, he was able to give in detail such a strict and apparently accurate account with respect thereto, in particulars wherein, if untruthful, he might have been impeached, that his mind and memory must have been acting normally during the time in question.

"We have read the evidence, not alone as abstracted, but in its entirety as it appears in the record, and are unable to say that the finding of the jury, approved by the trial judge, is against the manifest weight of the evidence.

The judgment is affirmed.

Judgment affirmed.


text:
    Nils Bergman, Appellee, v. The First Swedish Building and Loan Association of Chicago, Appellant.
    Gen. No. 16,432.
    Brokers and factors—what essential to recover real estate commissions. In order that a broker may recover commissions for an exchange of properties it must appear that the same was effected through his efforts or through information derived from him. In other words it must be established that he was the procuring cause.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed with finding of facts.
    Opinion filed March 30, 1912.
    Brecher & Chindblom, for appellant.
    William E. Keeley and G. Nat. Reeves, for appellee.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Plaintiff below recovered a verdict and judgment against defendant for $2,500, alleged to be due him for commission as a real estate broker for effecting an exchange of certain property in the city of Chicago, owned by defendant, for two farms containing 897 acres in LaPorte and Lake counties, Indiana, owned by Charles H. Garmon. To reverse such judgment the defendant prosecutes this appeal.

On October 19, 1905, appellee procured from N. F. Olson, the property agent of appellant, a statement of the rentals and expenses of the property known as the Franklin Building, then offered by appellant for sale or exchange, and appellee claims that Olson then agreed to pay him a commission of 2% per cent, upon a valuation of $100,000, for his services in finding a purchaser for said property. Appellee proposed an exchange .for some acres near Hegewich, but the proposal was not accepted. Thereafter, appellee, acting in conjunction with C. E. Schroer to find a purchaser for the property, caused an advertisement, for the exchange of the property without designating it by name or location, to be published in a newspaper. The advertisement was noticed by Charles H. Garmon, a hotel keeper, land owner and real estate broker, residing in Forrest, Illinois, who evidently communicated with Schroer in regard to the matter prior to a letter received by the latter about March 29, 1906, wherein Garmon states that he encloses a plat of 1,889 acres in Pulaski county, Indiana, and suggests that he might get the equity in appellant’s property and asks for a description and location of the same, so he can send a man to look it over. The next communication in evidence is a letter dated April 30, 1906, from Schroer to Garmon, informing the latter of the terms upon which an exchange of the farm in Pulaski county, Indiana, for appellant’s property might be effected, and suggesting, if such terms are satisfactory, Garmon have his man call at the office of appellee, who would show him the property. It is not controverted that Garmon came to Chicago in response to said letter, and in company with appellee examined the property, either indifferently or critically, but there is a direct conflict in the evidence as to the time when such examination was made, and as to what occurred upon that occasion. Appellee and Schroer both testify somewhat equivocally that Garmon came, to Chicago and examined the property in October, 1906, while Garmon fixes the time as May 2nd or 3rd, 1906. The facts and circumstances in evidence leave little room for doubt that the time fixed by Garmon is correct. In their statement of the case counsel for appellee in referring to the time when Garmon inspected the property say: “This was either in May or October, 1906.” Schroer’s letter to Garmon, inviting an inspection by the latter of the property, bears date April 30, 1906, and requests a reply, “at your earliest convenience.” On his cross-examination appellee testified, in substance, that Schroer’s letter to Garmon was written about a week before the latter went to Chicago. The manifest confusion of appellee and Schroer, as disclosed by the record, when, after testifying that Garmon went to Chicago in October, they were confronted with the letter of April 30, 1906, above referred to, clearly evidences they were mistaken.

Appellee testified that upon the occasion when Garmon inspected the property, the latter said he liked the property, and would write to appellee or come up personally and make a proposition, and that he (appellee) reported the substance of Garmon’s statement to Olson, the property agent of appellant.

It is uncontroverted that following the occasion of Garmon’s inspection of the property in May, 1906, appellee did not see Garmon again, or receive any proposition from him for an exchange, or have any further communication with him, directly or indirectly, relative to the property. Appellee testifies, however, that he often saw Olson and remarked that he (appellee) had not heard anything from Garmon and it was funny that he (Garmon) was so late or slow.

Garmon testifies that he did not own the land in Pulaski county, Indiana, but was acting as a broker in attempting to negotiate an exchange for it; that upon the occasion of his inspection of appellant’s property he told appellee he did not think he could get the trade through on the basis proposed.

• Olson testifies that appellee told him Garmon had looked at the building and said the price was too high and he would not take it; that appellee never came' with any other proposition from Garmon and the subject was not mentioned again by appellee until May, 1907, when he said he thought he was entitled to a commission.

The evidence further discloses, without contradiction, that during the time of the transactions here involved statements of the rentals and expenses of appellant’s property were given by Olson to several real estate brokers, who were negotiating for its sale or exchange; that Ernest Gameron, one of such brokers, advertised the property and thus, or personally, brought it to the attention of E. C. Ware, another broker, in February, 1907; that Ware, who had known Garmon for four or five years, communicated with him with reference to an exchange of the property and in response to such communication Garmon inspected the property with a view to exchanging for it two farms containing 897 acres owned by him in LaPorte and Lake Counties, Indiana; that prior to such inspection of said property Garmon was not informed it was the same property he had inspected in May, 1906, with appellee; that in the latter part of March, 1907, a provisional contract, negotiated by Ware on behalf of Garmon and by Cameron on behalf of appellant, for the exchange of the property, was executed; that in the latter part of May following’, the exchange was finally consummated and deeds passed, Carmón taking possession June 1, 1907; that broker’s commissions for negotiating said exchange of properties were paid by Garmon to Ware and by appellant to Cameron.

We are unable to perceive, upon a consideration of the foregoing evidence and admitted facts, any liability on the part of appellant to pay to appellee the commission claimed for procuring Garmon as a purchaser of the property.

Adopting the statement of the rule most favorable to appellee, it was incumbent upon him to show that the exchange was effected through his efforts or through information derived from him. Rigdon v. More, 226 Ill. 382; Henry v. Stewart, 185 Ill. 448; Hafner v. Herron, 165 Ill. 242.

Appellee and Cameron were equally the agents of appellant to procure a purchaser for the property. True, appellee first directed the attention of Garmon to the property and attempted to negotiate an exchange, but his efforts were wholly fruitless, not because of any default or failure on the part of appellant, but because Garmon abandoned the matter, and appellee thereafter made no further effort whatever to interest him in it. Ten months later, through the wholly independent efforts of Cameron, Garmon was induced to investigate a proposition involving the exchange of lands owned by him for certain property in Chicago, and not until he inspected such property was he apprised of the fact that it was the same property he had formerly inspected at the solicitation of appellee, and the exchange then consummated was uninfluenced by his former inspection of the property or by the long since abandoned efforts of appellee.

In McGuire v. Carlson, 61 Ill. App. 295, cited with approval in Patten v. Willis, 134 Ill. App. 645, it was said: “Hnless he specially agrees not to do so, an owner may employ two or more brokers; in such case it is the broker who is the efficient cause of the sale who is entitled to the commissions; and this right is not affected by the fact that such broker sells to one whose attention to the property had before been called by another broker. It is not the broker who first speaks of the property, but he who is the procuring cause of the sale, be he the first or second who engaged the attention of the purchaser.”

A case also in point here is Stone v. Maloney, 159 Ill. App. 366.

Appellee cites Patten v. Willis, 134 Ill. App. 645, and Morton v. Barney, 140 Ill. App. 333, as supporting a right of recovery by him, but in so far as the doctrine there announced is applicable to the facts in the case at bar, they sustain the position of appellant.

The judgment is reversed with a finding of facts.

Judgment reversed with finding of facts.

Finding of Facts: We find as ultimate facts that the exchange of properties here involved was not effected through the efforts of appellee, or through information derived from him, and that appellee was not the efficient or procuring cause of said exchange.


text:
    Albert Reinhold, Appellant, v. Olof Hansson et al., Appellees.
    Gen. No. 16,497.
    1. Appeals and errors—when dismissal upon ground that relief prayed had been obtained, denied. Where the decree requires modification such a motion will be denied.
    2. Jurisdiction—fund in custodia legis. Where money is in the possession of the court it has jurisdiction to direct the payment thereof to the party entitled thereto.

      Foreclosure. Appeal from the Superior Court of Cook county; the Hon. Arthur H. Chetlain, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Decree modified and affirmed.
    Opinion filed March 30, 1912.
    Tinsman, Rankin and Neltnor, for appellant.
    D. J. Normoyle, for appellees.
   Mr. Presiding Justice Baume

delivered the opinion of the court.

Qn July 7, 1909, Albert Reinhold filed his bill in the Superior Court against Olof Hansson and others to foreclose a trust deed. All of the defendants, save the trustee, answered the bill, and upon replication to said answer by the complainant,—the trustee being defaulted for want of answer, and the bill taken pro eonfesso as to him,—the cause was, on October 21, 1909, referred to the master to take and report the proofs, together with his findings thereon. The record discloses that on November 5, 1909, before any proofs were taken under said order of reference, a decree was entered in the cause, as follows:

“Upon motion of solicitor for defendants for leave to pay the principal, interest, court costs, attorneys’ fees, and Master’s fees into court, the same having been ascertained upon evidence heard in open court .by the court to be seventeen hundred twenty-three and 34-100 dollars, being as follows: Principal and interest $1,643.69, court cost $19.65, attorneys’ fees $50, master’s fee $10, and which amount has been paid by the defendants to the clerk of this court:

“It is hereby ordered that the order of reference hereinbefore made in above entitled suit be, and the same is hereby set aside, and it is further ordered by the court that the complainant deliver up to the defendants or their attorney the said unpaid coupon interest notes, principal note and trust deed instcmter, and also that the complainant deliver instanter to the defendants or their attorney the abstract and insuranee policy which they hold upon the real estate referred to in above entitled cause, and it further appearing to the court that the said sum of $1,723.34 has been paid to the clerk of this court,

“It is therefore ordered, adjudged and decreed that the said cause be, and the same is, hereby dismissed without further costs to either side. ’ ’

To reverse this decree the complainant below prosecutes this appeal.

Appellees heretofore filed their motion to dismiss the appeal upon the ground, generally, that appellant, having obtained all the relief prayed for in his bill of complaint, or that he was entitled to by the order dismissing the bill upon payment of the amount due, is not aggrieved by such, order and cannot appeal therefrom, and the disposition of such motion to dismiss the appeal was reserved to the hearing.

As an examination of the record discloses that the decree may properly be modified in the particular hereafter mentioned, the motion to dismiss the appeal is denied.

It is not claimed by appellant that the amount paid by appellees to the clerk of the Superior Court for principal and interest, court costs, attorneys’ fees and master’s fees was inadequate or insufficient, and the specific finding of fact in the decree that appellees had so paid said amount is sufficient to support the order dismissing the cause without further costs.

Complaint is made because the decree fails to direct the payment of the money to appellant. This complaint, made as justifying this appeal, is more chimerical than substantial. The money, having been paid to the clerk with the knowledge and sanction of the court, became a fund custodia legis, to be paid out upon the order of the court. Hammer v. Kaufman, 39 Ill. 87; Ferguson v. Sutphen, 8 Ill. 547.

Hpon motion in the court below appellant might readily have procured an order directing the clerk to pay the money to him, and thereby avoided this appeal. If the attention of the court had been directed to the failure of the decree to award the payment of the money to appellant, the decree would, doubtless, have been so drafted as to accomplish that result.

As it is conceded that appellant is entitled to the money deposited with the clerk of the Superior Court, this court may properly modify the decree, so as to thereby direct the payment of said money to appellant. The final ordering part of said decree, as above quoted, will, therefore, be modified so as to read as follows: “It is therefore ordered, adjudged and decreed that the clerk of this court pay said sum of $1,723.34 to the complainant and that the said cause be, and the same is, hereby dismissed without further costs to either side.”

As so modified, said decree will be affirmed, and each of the parties will pay one-half of the costs in this court.

Decree modified and affirmed.


author: Mr. Justice Duncan

text:
    Ben Strauss, Defendant in Error, v. Cohen Bros. Company, Plaintiff in Error.
    Gen. No. 16,339.
    1. Contracts—when parol evidence incompetent to aid construction. Parol evidence to explain the meaning of a written contract is not admissible where there is no ambiguity in the language used, nor apparent conflict in the terms of the contract.
    2. Contracts—how to he construed. In arriving at the intention of the parties effect must be given to every clause, word or term employed by the parties.
    3. Contracts—“advances” construed. Held, that an undertaking to make "advances” is not equivalent to an obligation to pay salary absolutely.

      Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and judgment here.
    Opinion filed March 30, 1912.
    Cratty Bros. & Jarvis, for plaintiff in error.
    James E. Gillis and William Capesius, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Ben Strauss sued Cohen Brothers Company, a corporation, for a balance of account of $566.68, alleged to be due him as salary and expenses as its traveling salesman. Cohen Bros. Company filed a set-off in the sum of $1,180.18 for advances made by them to Strauss in excess of the amount due him as such salesman, whom they alleged to have been employed at certain commissions on the amount of goods sold by him for it. In a trial before the court Strauss recovered a judgment of $366.62. The corporation prosecutes this writ of error.

The contentions of the parties to this suit are over the construction of the written contract entered into and signed by them in August, 1908. Defendant in error contends that by that contract he was to be paid in any event a salary of $1,200, or $100 per month, for his services regardless of the amount of his sales. Plaintiff in error contends that while it was to advance reasonable traveling expenses and in addition thereto $100 per month, yet, it was with the understanding and agreement that if the sum of such advances, expenses and $100 additional per month, should exceed the amount of commissions on all sales of defendant in error, provided for by the contract, that then such excess should be repaid by him to plaintiff in error. The contract appears to be complete in itself and to embody in very specific language the entire agreement of the parties. The parts of the contract bearing upon the contentions of the parties are the following paragraphs thereof, to wit:

“II. Said party of the second part (Strauss) agrees not to make any collections for or in the name of said Cohen Bros. Co., except on their written authority; nor to draw any drafts upon said Cohen Bros. Co., nor contract any debts on their account; and said party of the second part further agrees that he will render weekly an itemized account of all expenses necessarily incurred in the performance of his duties in the pursuit of business for the said party of the first part; the amount of said expenses to be at all times subject to the audit of said party of the first part before allowance.”

“IV. In consideration of the good and faithful performance of said duties by the party of the second part (Strauss) he at all times fully complying with the instructions of party of the first part, said Cohen Bros. Co. agrees to advance to the second party from time to time as may be necessary, reasonable traveling expenses and to further advance to second party on the first of each month, commencing with the second month of this contract, and continuing while same shall be in force between the parties, the sum of $100.00—One Hundred Dollars, with the understanding that the sum of such advances for any year shall not exceed (See below) per cent of the sales of said second party; and if at the close of the year’s shipments, the amount shown by computing-per cent on the sales of said second party, shall show an excess over and above the sum of moneys advanced by first party for traveling expenses, together with the drawing account, then any such excess sum shall be paid to second party by first party.

“V. Sales under this agreement to constitute actual shipments of merchandise to customers of said party of second part, minus all merchandise returned by purchasers, the said party of the first part reserving the right to reject any order sent in by party of the second part, either because of unfavorable investigation by credit department, or for any other reason. All mail orders to be credited to party of the second part.

“VI. It is further mutually agreed by and between the parties hereto that in case that party of the second part shall sell any article of merchandise below the marked price of same and if shipped, it shall also be optional with the party of the first part to include or exclude the amount of such article in computing sales of said party of second part; and it is further mutually agreed by the parties hereto, that in case of any failure in business of a customer of party of the second part, the amount of the account, if any, of such customer, owing to said party of first part, shall be subtracted from the amount of the sales of party of second part before computing commission.

“VII. This agreement to remain in force for the period from November 1st, 1908, to October 31st, 1909, with the mutual understanding and agreement that same may be terminated at any time by either of the parties hereto giving.thirty days’ notice in writing to the other.”

“Commission.

3 per cent for jobbing trade.

5 'per cent for Retail Trade Department Store.

7% per cent for Regular Retail Trade.”

The evidence in this case is, in substance, that defendant in error sold for plaintiff in error under said contract between $17,000 and $18,000 of goods; that the cancellations of sales were between $2,000 and $3,000, making the net sales less than $16,000; that the total expenses advanced him were $1,407.38, and that the total advanced him on his drawing account was $833.32, making the total advancements $2,240.70.

It is very apparent that if the plaintiff in error’s contention be sustained that the defendant in error is indebted to plaintiff in error, even if he be given the highest commissions on net sales, and that the judgment must in such case be reversed. The court held by written propositions of law against plaintiff in error’s contentions as to the proper interpretation of the contract, and, if correct in those holdings, its judgment must be sustained.

The language of this contract and the meaning thereof is clear and unambiguous. Paragraphs IV, V, and VI, above quoted, show clearly and beyond all doubt that the contract was purely a commission contract. The closing words of Paragraph IV, “and if at the close of the year’s shipments, the amount shown by computing-per cent, on the sales of said second party, shall show an excess over and above the sum of moneys advanced by first party for traveling-expenses, together with the drawing- account, then any such excess sum shall be paid to second party by first party, ’ ’ render it impossible for a court to legally construe the contract according- to defendant in error’s contentions. The entire contract and all its terms harmonize with our construction. The terms, “advance” and “advances,” found in said fourth paragraph are shown to be used understandingly and in their true sense by the parties, when all the contract is considered. “To ‘advance’ money is to pay it before it is due, or it is to furnish money for a specified purpose, understood between the parties, the money or some equivalent to be returned.” “An ‘advance’ is something which precedes. As applied to the payment of money, it implies that the parties look forward to the time when the money will be due the recipient.” “The ordinary use of the term indicates moneys paid before or in advance of the proper time of payment. To advance is to supply beforehand; to loan before the work is done or the goods are made.” Words and Phrases, Vol. 1, pp. 214, 217.

Parol evidence to explain the meaning- of a written contract is not admissible where there is no ambiguity in the language used, nor apparent conflict in the terms of the contract. In arriving- at the intention of the parties effect must be given to every clause, word or term employed by the parties, or in the quaint language of the law writers, “the contract must be collected from the four corners of the document." Mittel v. Karl, 133 Ill. 65; Webbe v. Ramona O. A. Co., 58 Ill. App. 222. “When the language employed is unequivocal, although the parties may have failed to express their real intention, there being no room for construction, the legal effect of the instrument will be enforced as written." Clark v. Mallory, 185 Ill. 227, 232.

It is strenuously argued by defendant in error that because in making remittances on the “drawing account,” plaintiff in error used such expressions in some of its letters to him, as, “we credit same on your salary account,” or “we enclose you check for salary,” that we must construe the contract to mean that defendant in error must in any event be paid one hundred dollars per month for his entire services without deductions therefrom. This is contended for on the ground that the word salary ordinarily means, “Compensation stipulated for services—annual or periodical wages or pay.” In plaintiff’s exhibit 4, letter of plaintiff in error to defendant in error of date April 22, 1909, in which this term “salary” was used, plaintiff in error made it plain to defendant in error that the term was used consistently with the language of the contract, by this further language: “It is just as I told you when you were here, if you had only to depend on the Cohen Bros. Company line, you would have fallen down in great shape and it was a good thing for you and us also, that the Monarch helped you out, and in order to come out even at the end of this year, you must try and sell other things but the duck coat line and get more into the general lines, otherwise, there will be no money in it for you nor us.” But in any event, the law is that where a contract is too clear to need explanation, parol evidence is not admissible to explain it. And again, while the interpretation by the parties to a contract as evidenced by their words and acts, will in cases of doubt, be resorted to for the purpose of arriving at their true intention, this rule is never allowed to govern when the effect will, as in this case, be to overthrow the plain terms of the contract. Western Ry. Equip. Co. v. Mo. M. I. Co., 91 Ill. App. 28; Street v. Chgo. W. and S. Co., 157 Ill. 605.

The court erred in holding that the contract provided for the unconditional payment of a salary or 'compensation to defendant in error of one hundred 'dollars per month, and in not finding that he was indebted to the plaintiff in error. Inasmuch, however, as plaintiff in error has expressly stated to us in its brief that it will not insist on a judgment for any definite sum, and has signified its willingness for ns to merely give a judgment in bar, of the action, the order of this court is that the judgment be reversed and that judgment be entered here in favor of plaintiff in error and against the defendant in error in bar to his suit and for costs.

Reversed and judgment here.


text:
    Western Valve Company, Plaintiff in Error, v. Michael G. Connell, Defendant in Error.
    Gen. No. 16,370.

      Sales—when contract several as to various articles. If a number of different articles are sold, and delivered, but a part returned and credit given therefor and payment made upon the balance of the account, the contract is to be regarded as several as to each article and it is immaterial if the articles returned are defective so far as the right to recover for the balance retained is concerned.
    Error to the Municipal Court of Chicago; the Hon. Wm. 1ST. Gemmill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed March 30, 1912.

      Eastman, Eastman & White, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

This is an action of the fourth class on an account for goods, wares and merchandise sold by the plaintiff in error, Western Valve Company, to defendant in error and at his special instance and request to the amount of $76.12, to wit:

Nov. 12, 1907, to Mdse.............. $439.31

Oct. 21, 1908, Cr. by Cash...........$100.00

Jan. 5, 1909, Cr. by Cash............ 50.00

Jan. 19¡ 1909, Cr. by Mdse.......... 30.24

Mar. 11, 1909, Cr. by Mdse.......... 10.50

Apr. 5, 1909, Cr. by Mdse........... 3.95

Aug. 17, 1909, Cr. by Mdse.......... 143.50

Oct. 12, 1909, Cr. by Cash........... 25.00 363.19

$ 76.12

Defendant in error filed his counter claim that plaintiff in error did not install the heating apparatus and boiler agreed upon, and that the heating apparatus installed was found to be insufficient and defective. Affidavits of claim were filed with both of said statements.

In a jnry trial the court heard the evidence for plaintiff in error and directed the jury to return a verdict for defendant in error, and then rendered judgment accordingly.

The evidence for plaintiff in error is, in substance, that its account was for a hot water heating plant consisting of a boiler tank, heater, radiators, valves and sundry other articles for a water heating plant; that defendant in error took to plaintiff in error his plans for the heating plant and told plaintiff in error he was to furnish the plant for his building • that they together determined from his plans what he required and that after plaintiff in error got together all of the various articles required, Connell took them to his house to have his plant installed; that plaintiff in error did not install the plant, nor agree to install it, nor tell Connell how to install it; that after it was installed the manager of plaintiff in error at Connell’s request went to the plant to see why it did not give satisfaction; that the manager found that the cause was a poor draught, a poor fire resulting from the smoke pipe which should have been ten inches reduced to nine inches, and that the smoke pipe from the laundry heater was connected directly into the galvanized iron pipe upon the boiler and chimney, thereby reducing the amount of area of the smoke pipe; that he told Connell exactly the trouble and what should be done, and that Connell claimed it made no difference; that afterwards Connell returned the boiler, four or five radiators and some valves, and got full credit on his account for them, and that he retained the remainder of the plant without objection and made another cash payment of $25.00 on the account; that cash payments were made, and that articles were returned by Connell, and he was given credits therefor on the dates the cash and articles were received by plaintiff in error, as shown in the foregoing account; that Connell was not told how much heat the plant would make, and was not promised any other articles in exchange for those returned by Connell; and it is further in evidence that Connell repeatedly promised to pay the account.

The evidence showed a prima facie right in plaintiff in error to recover the full amount of its balance on account, and there is absolutely no reason appearing for the court’s action in directing a verdict for the defendant in error. The claim was for the balance due upon radiators and valves and other articles retained by Connell. Such a contract of purchase may be regarded as several as to each article, and in the absence of further evidence it must be so regarded after a part of the articles are returned and full credit received for them, and the remainder are retained and further payments in cash made on the account. Woolen Mills v. Spring, 116 Ill. App. 27.

The articles returned were not included in the items upon which the plaintiff in error’s' claim was based; and, under the proof offered, it could make no difference whether they were defective and not suitable or satisfactory for the uses for which they were purchased, in determining the right of plaintiff in error to have its case submitted to the jury; It was the privilege of defendant in error, after he had returned part of the articles purchased and had gotten credit for them, to retain and use the other articles about which this evidence shows no complaint. But he could not retain and use them without paying for them the full price thereof, unless some right of recoupment be proved by him. We do not intend to be understood as holding that no defense could be made by the defendant in error by way of recoupment or set-off. There is simply no evidence in the record of a defense of any kind, and for the unwarranted action of the court, in directing a verdict and entering the judgment herein, the judgment is reversed and the cause remanded for trial.

Reversed and remanded.


text:
    Independent Brewing Association, Defendant in Error, v. Cooke Brewing Company, Plaintiff in Error.
    Gen. No. 16,417.
    1. Replevin—what not conclusive evidence of title. Held, that the fact that the name of the claimant was blown in bottles and that a particular manufacturer made and delivered such bottles to the claimant, did not conclusively show that the same were the property of such claimant or were ever in its possession.
    2. Personal property—what evidence of ownership. Marks and brands and letters on stock and other property are evidence tending to establish identity and ownership.
    3. Vendor and vendee—when possession of former will not prevail against true owner. A mere naked possession in a vendor will not hold against the true owner, and the latter may pursue his property and recover it from a purchaser without notice, when he has done nothing to estop him fom asserting his title.
    4. Bailments—effect where identical property is delivered to he restored in altered form. When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific thing, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return and the title to the property is changed,-—it is a sale.
    5. Evidence—when as to custom incompetent. Seld, that evidence of a custom not observed by the party sought to be charged was not competent upon the question of title to personal property.
    Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 30, 1912.
    E. F. Masterson, for plaintiff in error.
    Matthias B. Pittman, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

The Independent Brewing Association brought this action of replevin against the Cooke Brewing Company for the recovery of three hundred dozen crown finished pint glass beer bottles with names and marks of Independent Brewing Association blown in the glass, after written demand had been made therefor upon the Cooke Brewing Company for possession of the same which was refused. Cooke Brewing Company pleaded property in Boyal Brewing Company, a non-resident corporation of the State of Missouri. In response to the writ seventeen and one-half dozen bottles as described therein were turned over to the officer by Cooke Brewing Company, and in a trial before the court the court found the issues for the Independent Brewing Association, .and rendered judgment accordingly. Cooke Brewing Company sued out this writ of error.

The evidence in this record discloses that the Boyal Brewing Company bought the bottles in question, July 6, 1910, from the Northwestern Bottling Company of St. Louis by invoice, but it does not appear from the record how the latter company obtained them. Charles F. Cooke, president of the plaintiff in error, testified that the bottles were furnished to his company by the Boyal Brewing Co. of Kansas City to be filled with beer; that he saw the seventeen and one-half dozen bottles replevied in this case and noted what kind of bottles they were; that bottles like the bottle in evidence (a Prima) constituted 95 per cent of them; that they also had a label on them and that the first time he saw them was when the constable came to his brewery; that he would state positively that 95 per cent of the Independent bottles were Prima bottles, and that every one of them were twice examined by himself and Mr. Ostheimer; and that he would not let anybody take a" bottle away from the brewery that was not called for in the writ, and that he was there until the officers went away, and made them count them out there on the street. It further appears from the record that the bottle in evidence was marked by words blown in the glass, “Prima, Registered Property of Independent Brewing Association, Chicago,” “A. B. Co.” (on the bottom), and upon the outside of the glass are paper labels, one bearing’ the words, “Genuine Prima, our very best, Registered,” and on the other: “We guarantee that this beer is the genuine product of imported hops and finest barley, brewed according to the original Prima process, and is the brewer’s own bottling. Independent Brewing Association, Chicago. Prima Registered, pale lager, high grade, Independent Brewing Company, Chicago, Illinois. Trade Mark registered, United States and foreign countries, No. 587. Guaranteed by the Independent Brewing Ass’n, Chicago, under the Food and Drug Act, June 30, 1906.”- The evidence for the defendant in error further showed that the bottles had on their faces blown in the glass, the words, “This bottle not to be sold,” and that “A. B. Co.” signified that the bottles were made by the American Bottle Co. from whom defendant in error purchased that character of bottles; that such bottles were made specially for the Chicago trade of the Independent Brewing Association, and that they were never shipped out of Chicago and suburbs; that they never sold the bottles nor exacted money in advance for them, but always sold the beer in the bottles and with the distinct agreement that the bottles were to be returned to the brewery, and that the purchasers of the beer could not sell the bottles. The evidence tends to show that the bottles in question were not lost or stolen.

The real and decisive fact in this case is as to whether or not the bottles in question were sufficiently identified as the bottles of the defendant in error, or to speak more accurately, as-to whether or not they were ever its property and in its possession. The court was warranted by the evidence in finding that the defendant in error had never sold the bottles, conditionally or otherwise, and had never authorized any one to sell them. In other words, if the bottles had belonged to defendant in error and were once in its possession, which is virtually admitted in plaintiff in error’s argument, it never transferred the title thereto to any one else, nor authorized any one else to sell or dispose of them in any way, except to return them to it when emptied. While no witness could positively say that he ever saw any one of the bottles, and no witness- could testify to whom beer had been sold in these identical bottles, still we think the evidence warranted the court in finding that the bottles were the bottles of the defendant in error, and that they had gotten out of its possession by sale of beer in the bottles with the agreement that the bottles were the bottles of the defendant in error, and that the purchasers had no title thereto, and no right to transfer the title thereto, and were under contract to return them to the Independent Brewing Association as its property. We are not inclined to hold in this case that the facts that the words in evidence were blown in the bottles, and that the American Bottle Company made and delivered such bottles to the defendant in error, make a conclusive showing that the bottles in question are the bottles of the defendant in error, or were ever in its possession, even with the further facts proved that it never sold any such bottles or authorized any one to do so. The defendant in error did not make these bottles. Some bottles of the same character and make may have gotten out of possession of the American Bottle Co. into possession of other parties without ever having become the property of defendant in error. It is not very probable, however, that the defendant in error’s paper labels would be found on any bottles other than those that were the property of the defendant in error, and taking all the evidence in this case together we think the evidence sustains the finding of the court.

Marks and brands, and letters, on stock and other property, have been held by our courts to be evidence of identity and of ownership of such property. Bergen v. Riggs, 34 Ill. 170; Foster v. Wadsworth-Howland Co., 168 Ill. 514; Schweinfurth v. Dower, 91 Ill. App. 319; P., Ft. W. & C. Ry. Co. v. Callaghan, 157 Ill. 406; Hurst v. Territory (Oklahoma), 86 Pac. Rep. 280. Such evidence has special force where the label, brand and mark is the actual label, brand or mark of the owner, and placed or caused to be placed on the property by the owner thereof and for his use.

A mere naked possession in a vendor will not hold against the true owner, and the latter may pursue his property and recover it from a purchaser without notice, when he has done nothing to estop him from asserting his title. The purchaser must look to his vendor on the implied warranty of title. Klein v. Seibold, 89 Ill. 540; Fawcett v. Osborn, 32 Ill. 411. There are exceptions to this rule as set forth in the above authorities, but they are not applicable to this case.

When the identical thing delivered is to be restored, though in an altered form, the contract is one of bailment, and the title to the property is not changed; but when there is no obligation to restore the specific article, and the receiver is at liberty to return another thing of equal value, he becomes a debtor to make the return, and the title to the property is changed—it is a sale. Lonergan v. Stewart, 55 Ill. 44. Only the beer in the case at bar was sold, with the understanding that the containers, the bottles, were to be returned. As to the bottles the purchasers were bailees of defendant in error.

Plaintiff in error’s counsel has quoted Williston on Sales, p. 478, Sec. 314, as follows: “If the principal send his commodity to a place, where it is the ordinary business of the person to whom it is confided to sell, it must be intended that the commodity was sent thither for the purpose of sale.” The author gives the foregoing as a quotation from Lord Ellenborough in. Pickering v. Rusk, 15 East., 38. In that case Lord Ellenborough further said: “Where the commodity is sent in such a way and to such a place as to exhibit an apparent purpo.se of sale, the principal will be bound, and the purchaser safe. ’ ’ In that same section Williston further says: “Doubtless in the case here supposed the owner’s action in sending his goods to a salesroom is some evidence of authority to make a sale, but Lord Ellenborough seems to have supposed that a sale by the person intrusted would transfer a title to a purchaser even though the original owner intrusted the goods to the possessor for some purpose other than sale, which clearly appeared from the evidence. So far as Lord Ellenborough’s remarks contain this implication, they go beyond the law both before and since' the decision of the case in which the remarks were made.” He then cites Wilkinson v. King, 2 Camp. 335, written also by Lord Ellenborough, and Biggs v. Evans, (1894) 1 Q. B. 88; Gilman L. O. Co. v. Norton, 89 Iowa, 434; Quinn v. Davis, 78 Pa. St. 15, which support the text.

The court did not err in excluding evidence of the custom of breweries, generally, of selling beer and bottles together, or of their custom to have their purchasers to pay the value of the bottles and the beer in the first instance with right to the purchasers to return the bottles at the price paid or advanced for them. The evidence of such a custom of defendant in error prior to this suit would have been very material, but such was not the evidence offered.

For the reasons aforesaid the judgment of the Municipal Court is affirmed.

Judgment affirmed.


text:
    F. M. Cabiness, Appellant, v. Texas Tie and Lumber Preserving Company, Appellee.
    Gen. No. 16,475.
    3. Costs—propriety of taxation for expenses of talcing depositions of non-resident witnesses in chancery. Held, that section 37 of the Evidence Act applied and justified the taxation complained of.
    2. Costs—when taxation or apportionment in chancery not disturbed. The discretion of the chancellor in taxing or apportioning costs will not be interfered with by the reviewing court if such discretion be exercised according to equitable principles, and is supported by the evidence in the case.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. George A. Depot, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed March 30, 1912.
    George E. Wissler and Charles C. Spencer, for appellant.
    Scott, Bancroft & Stephens, for appellee.
   Mr. Justice Duncan

delivered the opinion of the court.

In an original suit in chancery the decree of the Superior Court provided that the bill should be dismissed at complainant’s costs. The clerk of said court in making up the bill of costs in said cause taxed against F. M. Cabiness, the complainant therein, the sum of $93.30 commissioners’ fees for taking depositions of the defendant’s witnesses before notaries in the states of Texas and Tennessee. The complainant made a motion to retax the costs, and the court allowed the defendant forty-seven dollars for commissioners’ fees in taking the depositions, and ordered the same taxed against the complainant in that suit. The complainant, Cabinees, has appealed from said order.

The evidence before the court upon the motion to retax costs was, in substance, that the total number of words in the depositions taken was 31,350; and that appellee paid the said notaries for taking said depositions the sum of $93.30.

Appellant’s objections to the allowance of said costs against him are, (1) that there is no provision of law in this state for the taxing as costs the expenses of taking depositions outside of Illinois; and (2) that the amount allowed by the court is grossly excessive.

The statute provides that whenever a party to a suit requires the examination of witnesses attending before any commissioner, judge, justice of the peace, clerk or other person authorized to take depositions, as provided by the statute, such party shall pay the expenses thereof, but may, if successful in the suit, be allowed for the same in the taxation for costs. Sec. 37 of Chap. 51, Hurd’s Rev. Statutes of 1909. The foregoing section undoubtedly applies to the expenses of taking depositions of non-resident witnesses in a chancery case as provided in Sections 26 and 28 of said Chapter 51.

“Upon the complainant dismissing his bill in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant full costs; and in all other cases in chancery, not otherwise directed by law, it shall be in the discretion of the court to award costs or not.” Sec. 18 of Chap. 33, Hurd’s Stat. of 1909.

The discretion of the chancellor in taxing or apportioning costs will not be interfered with by the reviewing court, if such discretion be exercised according to equitable principles, and is supported by the evidence in the case. Scott v. Beach, 172 Ill. 273; Highley v. Deane, 168 Ill. 266.

The amounts allowed for the taking of the depositions appear to be reasonable, at • any rate they are certainly not shown to be unreasonable. As they were proper items of costs, the order and decree of the court is affirmed.

Decree affirmed.