text:
    Matthew B. Wells, Administrator, Appellee, v. Baltimore & Ohio Southwestern Railroad Company, Appellant.
    1. Contributory negligence—what considered in determining. In determining whether a party was at the time of an injury in the exercise of due care for his safety, the locality, surroundings, conditions, and all of the circumstances are to be considered.
    2. Contributory negligence—what competent to rebut. Held, in this case, that the unreliability of the bell alleged to have been ringing as a warning to the person injured, was competent upon the question of his exercise of due care.
    3. Instructions—in language of statute. An instruction in the language of the statute is ordinarily not subject to complaint.
    4. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    Kramer, Kramer & Campbell and Kagy & Vandervort, for appellant; Edward Barton, of counsel.
    Charles H. Holt, W. F. Bundy, and Noleman & Smith, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

This is an appeal from a judgment in favor of appellee for the sum of $2,000 on account of the death of appellee’s intestate, occasioned by a collision between a wagon driven by him and a train of appellant, at the crossing of a public street called Broadway in the city of Salem.

The declaration contained three counts, charging the appellant in the first count with negligence in propelling its train over and across said street at a high and dangerous rate of speed, and in the second count in running said train at a high and dangerous rate of speed over said crossing, without giving the statutory-signals by bell or whistle, while in the third count the appellant was charged with running said train over the crossing at the rate of fifty miles per hour in violation of the ordinance of the city of Salem regulating the speed of the train to fifteen miles per hour.

The main track of appellant upon which the collision occurred extended through the city of Salem in a direction almost due east and west, crossing the street named Broadway which extended north and south at almost right angles. Appellant’s depot was located just north of the main track a distance of near fifty feet west of the west line of Broadway, and for some four hundred feet west from the west line of Broadway adjoining and parallel with the main track the depot platform was extended. At the west end of the platform was a tool house, and at a short distance west of the tool house the railroad track curved slightly to the south. This curve was a one degree curve.

Immediately south of the main track at a distance of twelve or fifteen feet from it, and parallel with it, is another track called the passing track which also crosses Broadway, and immediately south of the passing track is another parallel track called the house track, which connects with the passing track just west and near the west line of Broadway, but the frog where the -north rail of the latter track intersects and crosses the south rail of the passing track is ■ sixty-three feet west of the west line of Broadway. This house track also extends west. Broadway was eighty feet wide and much travelled* There was a two-story mill building located about twenty-five feet south of the main track, the east line of which was the west line of Broadway. Between the north side of the mill building and the tracks was a road which ran westerly parallel with and near the house track from Broadway to the southwest part of the city. The road was narrow and there were no buildings between it and the main tracks.

On March 11, 1908, appellee’s intestate, James E. Cooper, was then and had been for sometime engaged in delivering goods about the city of Salem and for this purpose drove a team of ponies hitched to a covered wagon. He had been accustomed to use the road and crossing on Broadway and was familiar with them. On the day mentioned, he had delivered some goods to a customer named Beard three blocks west of Broadway and some two hundred feet south of the tracks, and returned to Broadway along the narrow road. Before Cooper drove towards Broadway, a freight engine had been switching cars on the passing and house tracks in the neighborhood of Broadway, and by the time he reached there it had backed onto the house track, the east end of the engine being at the frog before mentioned. Between the frog and Broadway, there were no cars or engines on the house or passing track. Cooper drove onto Broadway and in attempting to drive, over appellant’s tracks, the wagon in which he was riding was struck by a passenger train of appellant going east on the main track, resulting in the death of Cooper. The train made no stop at the depot at Salem.

Numerous errors are assigned and they may be considered in the order in which they are urged in appellant’s argument.

It is not contended there was no evidence tending to prove the averments of negligence charged in the declaration, but it is contended the evidence so manifestly preponderates in favor of appellant upon this question the verdict cannot stand. We agree, if the verdict is clearly and manifestly against the weight of the evidence, this court has the power, and it is its duty, to review the action of the trial court in refusing to set aside the verdict, although it does not appear it was not the result of the impartial and honest judgment of the jury, nor that it resulted from passion, prejudice or improper motive.

There was a sharp conflict in the testimony as to the speed of the train and also whether the statutory signals were given. A number of witnesses testified both for and against appellant upon both alleged breaches of duty.

Several witnesses, employes of appellant, some of whom were upon the train, estimated its speed at its approach to the crossing at from twelve to fifteen miles per hour and a witness not an employe, said the train was running so slowly he thought it would stop at the station. About an equal number of witnesses who saw the train, testified its speed to have been from thirty-five to sixty miles an hour.

The engineer did not see Cooper until he was within forty feet of the place of the collision. The fireman did not see him before he was struck. At the instant the engineer saw Cooper, he applied the emergency brakes and states the train ran three hundred and sixty feet beyond the crossing before it stopped. Other witnesses testify it ran much farther.

It will be seen the testimony upon this question is in such conflict it cannot be reconciled, and the same is true respecting the signals. A number of witnesses testify signals were given, and a number testify they were not or did not hear them. It is argued the employes of appellant, being more familiar with the operation of trains, are better qualified to judge of speed and therefore their testimony is entitled to more weight than t,hat of witnesses who are not so familiar. There was no method of calculating the speed other than by the opinions of witnesses, and the jury having seen them and heard them testify and having considered such physical facts disclosed by the evidence as were material, we are of opinion their conclusion upon the branch of the case charging appellant with negligence, is not so clearly against the weight of the evidence as to call for a reversal.

The law required of appellee’s intestate that degree of care which a reasonably prudent person under the like circumstances would have exercised for his own safety. It is urged he failed in this, and the court erred in not directing a verdict for appellant, or if not, at all events the verdict is so clearly against the evidence the judgment should be reversed.

The locality, surroundings, conditions and all the circumstances are proper to be considered in determining the question, which is peculiarly one of fact for the jury.

There was evidence that-as Cooper came from the west he stopped some fifty feet west of the mill a minute or so, and as soon as the switching engine had cleared the crossing at Broadway and backed west to the frog, he drove on along the narrow road to the street and in doing so the engine was escaping or popping steam while the bell was ringing. Cooper’s ponies shied at the engine and started in a brisk trot out on the street and north over the crossing. He was called to by others but in the noise and in driving did not appear to hear or understand. There was also testimony that the crossing bell was ringing. In addition to the engine which was standing on the house track, there were a number of freight cars standing on the middle or passing track west of the street, which as it appears would in some degree obstruct the view of a train coming from the west over the curve to a person approaching the crossing from the south as Cooper was. How soon before he reached the main track he could have seen the oncoming train, does not appear, but that he did not see it until he was fairly upon the track and that he was- not seen by the engineer until the train was within forty feet of his wagon, and not seen by the fireman at all, does clearly appear. The degree of care to be observed by him should be measured also by the circumstance whether or not the statutory signals for that crossing were given, which was a question for the jury. The object of this requirement is for the protection of persons traveling on the highway and all persons so traveling have the right to expect the law will be observed and the signals given, and it is not negligence per se in approaching a crossing to fail to look and listen. Although if it appears from all the evidence that in the exercise of ordinary care a person is required to look and does not and is injured in consequence, there can be no recovery.

We have carefully considered all the evidence bearing upon this question and we conclude there was no error in the refusal of the court to direct a verdict and that the verdict is not clearly against the weight of the evidence.

It is complained improper evidence was admitted over appellant’s objection. Witnesses were permitted to state the train was running fast and one witness stated that it was running faster than other passenger trains she had seen.

The statement it was running fast was too indefinite to enlighten the jury and so was the comparison, and the testimony should have been rejected, but appellant had the opportunity to cross-examine whereby the testimony could have been made more definite, and we are of opinion anyway it did appellant no harm.

. There was testimony on behalf of appellant that the crossing or signal bell maintained at the crossing was ringing and in rebuttal evidence was introduced that the bell was out of order at times and that it would ring continuously when there was no train at or near the crossing. It was a material circumstance going to the question of Cooper’s want of care that the bell was ringing as a warning of an approaching train and the rebuttal evidence was admissible as tending to show the bell was not reliable and taken in connection with Cooper’s frequent driving over the crossing which tended to show knowledge in him of its unreliability, there was no error in admitting it.

Error is assigned on the giving of appellee’s instructions one and three. They are in the language of the statute and on this ground not objectionable. Heffernan v. Bail, 109 Ill. App. 231; C. & E. I. R. R. Co. v. Crose, 113 id. 557. They contain all the necessary elements and so far as we can see they are in all respects correct statements of the law.

We have given the questions involved arising upon this record a careful consideration and finding no substantial error the judgment is affirmed.

Affirmed..


source: Caselaw Access Project

author: Mr. Justice Shirley

license: Public Domain

text:
    J. H. Hundley, Appellee, v. John O. Coen, Appellant.

      Judgments—what not final. While the judgment after issue upon plea in abatement resolved for the plaintiff is quod recuperet, yet such judgment is not final; there must be proof of damages before a final judgment for damages can be recovered.
    Action commenced before justice of the peace. Appeal from the Circuit Court of Richland county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1909.
    Reversed and remanded.
    Opinion filed February 11, 1910.
    Homer C. Coen, for appellant.
    H. G. Morris, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

In an action brought by appellee against appellant before a police magistrate to recover damages claimed for baling hay, appellant filed a sworn plea of nonjoinder of defendants alleging that if anyone was liable that one Francis J. Coen was jointly liable with appellant. From a judgment rendered by the magistrate in favor of appellee the cause was appealed to the Circuit Court There was a trial by the court and a judgment in favor of appellee against appellant for the sum of $132.65, damages for labor and for costs and also for the sum of $10 attorney’s fee to be taxed as costs.

By the fourth assignment of error it is assigned that the court erred in assessing damages against appellant on the merits without hearing any evidence to sustain appellee’s claim or to show his right to recover.

We have examined the record and find no evidence to support the judgment for the damages assessed. Substantially all thg evidence introduced was upon the issue made by the sworn plea of appellant. There is some evidence that appellant offered appellee $100 by way of a compromise claiming that while he owed for baling hay appellee owed him for destroying some hay, hut there' is no evidence in the record to support the judgment for the amount rendered.

In an action sounding in damages in a case like this, the judgment for plaintiff on the issue made by a plea in abatement is quod recuperet, but the judgment is not final but only interlocutory and there must be proof of damages before a final judgment for damages can be recovered.

“It is well settled that in ordinary actions at law in courts of record, the judgment on the finding of the issue for the plaintiff upon a plea in abatement is interlocutory or final according to the nature of the action. If the action be for damages in assumpsit or in tort, it is interlocutory. But if it be in debt for a sum certain or for a specific recovery of lands or goods, it is final.” Steele v. Grand Trunk Junction Ry. Co., 20 Ill. App. 368.

We assume the court found against the appellee on his plea, and in this there was no error, but the court should have required evidence to support the judgment for damages.

We are of opinion also that appellee was not entitled to the allowance for an attornéy’s fee for wages as laborer or servant, also assigned for error. The evidence did not bring him within the class entitled to the allowance of an attorney’s fee.

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

Reversed and remanded.


text:
    S. N. Gash, Appellee, v. Home Insurance Company of New York, Appellant.
    1. Insurance—how defense under “vacant or unoccupied clause” should be determined. The meaning of the terms “vacant, unoccupied or uninhabited” is a question of law; whether at the time of the fire the house was “vacant, unoccupied or uninhabited” is a question of fact.
    2. Insurance—when defense under “vacant and unoccupied clause” not established. Held, that the enforced absence of the occupant of the premises in question under the circumstances in this case, was not such a breach of the conditions of the policy as to render it void, as a matter of law.
    3. Insurance—what waives proofs of loss. Denial of liability waives proofs of loss; likewise, the interposition of several matters of defense, without specifying as a defense the failure to present proofs of loss.
    4. Instructions—must not single out evidentiary facts.. An instruction is improper which singles out a mere evidentiary fact which combined with other facts went to prove or disprove the main fact.
    Assumpsit. Appeal from the Circuit Court of Wayne county; the Hon. J. R. Creighton, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed February 11, 1910.
    John R. Holt and Cooper & Burgess, for appellant.
    Creighton & Thomas, for appellee.
   Mr. Justice Shirley

delivered the opinion of the court.

Appellant on December 27, 1904, issued to appellee a policy of insurance for two hundred dollars covering his one story frame dwelling from loss or damage by fire or lightning for the term of three years.

On February 20, 1907, the house was destroyed by fire and appellant refusing to pay the insurance, this suit was brought and resulted in a judgment for appellee for the sum of two hundred dollars.

The errors claimed and urged in appellant’s brief are the refusal of the court upon the conclusion of the evidence to direct a verdict in favor of "appellant on its motion, and in giving, refusing and modifying instructions.

The policy contained a condition commonly called the “vacant or unoccupied clause” and it is contended that under all the evidence the court should have held as matter of law the premises at the time of the fire, were by the terms of the policy vacant and unoccupied without the written consent of appellant and should have given the peremptory instruction.

This condition of the policy was as follows: “If the premises described shall * * * become vacant, unoccupied or uninhabited without written consent hereon then * * * this policy shall be null and void.”

The testimony showed that the house was completely destroyed, and at the time of the fire it had been leased by appellee to one Shoaf, who had been living there with his family. The house was located in a bottom which seems from the testimony to have been subject to overflow. The fire occurred about the 20th day of February, 1907, and about the first of that month the floods came, overflowing the bottom and rising in the house until the waters reached the windows.. At .this time Shoaf took his family, some bedding and things, and moved out by boat to a vacant house on higher ground and above the level of the flood. He erected a sort of scaffold in the house where he placed all his furniture such as a table, safe, stoves, bedsteads, chairs and the like. "When the waters receded Shoaf on about the 18th and 19th of February, went back, took down the scaffolding, scrubbed out the accumulated mud and built a fire to dry the house. This was preparatory to moving his family back which it was intended to do the next day after the fire. Shoaf’s furniture left in the house was also burned.

There was no conflict in the substance of the testimony and it shows that Shoaf at the time was a tenant ; that the absence of himself and family from the house was enforced and unavoidable; and that it was only temporary with the intention to return as soon as it was possible to occupy the house after the flood. The evidence does not show any one was there in the physical occupancy of the house or watching it during the flood or at the time of the fire.

Does this state of facts show a breach of the condition of the policy above set forth as a matter of law?

The meaning of the terms “vacant, unoccupied or uninhabited” is a question of law. Whether at the time of the fire the house was “vacant, unoccupied or uninhabited” is a question of fact. Rockford Ins. Co. v. Storig, 137 Ill. 646.

We have not been able to find the term “uninhabited” defined by any law writer and we presume it was used in its ordinary sense as not being a place of abode, a dwelling, a habitation, and the evidence is clear in showing no breach of this condition.

“Vacant means empty of everything but air, wherefore a house full of furniture, clothing, etc., left in charge of servants, is not vacant. Unoccupied means no one has the actual use or possession. Occupancy means actual use as a dwelling house and leaving some one to look after it is not a sufficient substitute for the care and supervision involved in occupancy. The house must be used by human beings as their customary place of abode.”. May on Insurance, sec. 249a.

A very large number of cases are reported furnishing decisions upon what does or does not constitute a breach of such a condition in a policy, each depending upon its own peculiar facts. It must be admitted that to require the constant presence of some one in the house would be unreasonable and would not be held to be in contemplation of the parties to a contract with such a provision in it.

The contract must not only have a reasonable construction, but as its provisions are inserted for the benefit of the company, it should be construed most strongly against the insurer. No intendment will be indulged in favor of a forfeiture thereunder. Rockford Ins. Co. v. Storig, supra.

The following eases announce principles which we approve upon the question of fact involved.

“Temporary absence of the tenant or dweller on the night of the fire is not a vacancy.” LaSalle v. Ins. Co., 43 N. J. L. 468.

“A temporary absence from Wednesday until Monday to attend a funeral is not a vacating of the premises that will avoid the policy.” Franklin Ins. Co. v. Kepler, 95 Pa. St. 492.

“Where the assured had taken possession of the house for the purpose of permanent occupancy, had moved in her furniture and goods and was cleaning up the house preparatory to living in it, it was held the house was not ‘vacant or unoccupied’ although she slept in a building a few rods distant and did not eat or sleep in the house and after a few days went off on a business trip, during which the house was burned.” Shackelton v. Sun Fire Office, 55 Mich. 288.

We are of opinion after examination of a number of cases that the enforced absence of the tenant under the circumstances here was not such a breach of the conditions of the policy as to render it void and the court did not err in refusing to direct a verdict for this reason.

Criticism is made of instruction No. 3 given on behalf of appellee. It tells the jury in substance that temporary absence on account of health, business, convenience or on account of occurrences over which they have no control, would not make the house vacant so as to avoid the policy. As applied to the evidence in this case which shows the house was not vacant as we view it, the instruction was not misleading.

We think also there was no error in modifying ap-' pellant’s instructions 6 and 8. Both instructions as asked told the jury that if the property was vacant, unoccupied or uninhabited without the written consent of the company, appellee could not recover. The court modified them by inserting “as explained in these instructions.” As we think there was no error in defining or explaining the terms vacant, unoccupied or uninhabited in instruction number 3 for appellee, there was no error in the modification.

Instructions 10 and 11 refused for appellant stated that the mere fact that some articles of furniture were left in the house did not of itself determine the question whether the house was vacant, unoccupied or uninhabited but the question should be determined from all the evidence. While it was true that the mere fact that there was furniture in the house did not of itself necessarily determine the question, yet as the instructions single out a mere evidentiary fact which combined with other facts went to prove or disprove the main fact and to comment upon it, it was not error to refuse them. Where an ultimate fact depends upon a number of evidentiary facts, it is not error to refuse instructions that single out each evidentiary fact and instruct that proof of such latter fact alone does not of itself determine the ultimate fact. We also think there was no error in refusing instruction number 12.

It is claimed no suEcient proof of loss was made as required by the terms of the policy. It appears from appellant’s letter of April 3, 1907, to appellee, that liability was denied solely on the ground that the house was vacant, unoccupied and uninhabited at the time of the fire. It further appears that in appellant’s notice of special matter intended to be relied on, filed with its plea of the general issue, the only defense relied on was, the premises were vacant, unoccupied and uninhabited. This was a waiver of proofs of loss.

We are of opinion there is no error calling for a reversal of the judgment and it is aErmed.

Affirmed.


author: Mr. Presiding Justice Chytraus

text:
    Rudolph Wurlitzer Company, Defendant in Error, v. Charles F. Dickinson, Plaintiff in Error.
    Gen. No. 14,788.
    1. Corporations—when foreign may maintain action in this state. A foreign corporation which has complied with the act of 1899 but which has not complied with that of 1905, is entitled to maintain actions in this state for the full corporate period of its charter.
    2. Evidence—what books of original entry. If a charge is made in duplicate by means of the use of carbon paper upon blanks provided for that purpose, both copies are original and competent; likewise, a book of first entry into which the charges shown on such carbon slips are transcribed, is competent as a book of original entry.
    3. Evidence—what constitutes an account stated. If statements of account are rendered, received and retained for a long period of time without objection, a presumption of account stated arises.
    4. Assumpsit—what defense to action upon account stated. A defendant in an action charging an account stated may show fraud or mistake, but the burden of proving the same is upon such defendant.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Anthony J. Clarity, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Statement by the Court. Upon a trial by a jury the Rudolph Wurlitzer Company, plaintiff, recovered a verdict in the court below for $76LQ1 and obtained! a judgment thereupon against Charles F. Dickinson, the defendant. The defendant prosecutes this writ of error to reverse that judgment. The action is assumpsit and the recovery was for the principal and interest of six notes of $25 each and for an amount found due upon an account. The account had its basis in certain goods, wares and merchandise, sold and delivered. The plaintiff is an Ohio corporation. Plaintiff had procured a license on March 24, 1900, from the Secretary of State to carry on its business in this state. The license was procured and issued pursuant to the law of 1899. When it was obtained, plaintiff paid the fee fixed and complied with the other requirements of that law. In 1905 the state enacted a new law relative to admitting foreign corporations to do business in the state.
    F. Wm. Kraft, for plaintiff in error.
    Ferguson & Goodnow, for defendant in error; E. C. Ferguson and O. J. C. Wray, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Defendant contends that, although plaintiff had paid the required" fee and complied with the other requirements of the act of 1899 and had obtained a license under that law to do business in this state and to prosecute suits in its courts, yet plaintiff may not maintain this suit or any suit in any court of this state. This contention is based upon the fact that the state adopted a new law in 1905, a non-compliance by plaintiff with that later law and the inhibition contained in that law prohibiting foreign corporations, who shall have failed to comply therewith, from maintaining any suit in the courts of the state. The requirements for permission to do business in the state contained in the act of 1905 are somewhat different from those contained in the act of 1899.

Plaintiff first came into this state and began to do business here while the law of 1899 was in force. The act of 1899 provided for admitting foreign corporations of plaintiff’s class and character to do business and maintain suits in this state when they had paid a specified fee and complied with certain other requirements of the act and, also, for the issuance of certificates accordingly by the Secretary of State. Section three of the act provided that: “Such certificates shall be taken by all courts in this state as evidence that the said corporation is entitled to all the rights and benefits of this act.” Further, the same section provided that: “Such corporation shall enjoy those rights and benefits for the time set forth in its original charter or articles of association, unless this shall be for a greater length of time than is contemplated by the laws of this state, in which event the time and duration shall be the limit of time set out in the laws of this State.” The meaning and intent of this provision undoubtedly was that the rights and benefits granted by the act should be enjoyed for the life of the corporation according to its charter or articles of association, granted, issued or approved by its home state, unless such grant of time were inconsistent with the provisions of the law of this state with reference to like corporations:

Plaintiff introduced in evidence a properly authenticated copy of a certificate issued March 24, 1900, by the Secretary of State of Illinois to the plaintiff, certifying that: “said The Eudolph Wurlitzer Company is from the date hereof duly authorized to do business in the State of Illinois for a term of 99 years, and is entitled to all the rights and privileges granted to foreign corporations under the laws of this state.”

Unquestionably, as argued by defendant, the law of 1899 was repealed by the act of 1905. But that is an immaterial circumstance. The repeal of the law did not affect plaintiff’s rights, acquired under the law of 1899 previous to its repeal, to do business and to prosecute suits in this state for a period of 99 years.

Contracts may arise from legislative enactments and when such a contract has arisen it cannot be impaired by subsequent enactments. This is said, however, with this qualification that the police power of the State cannot be limited or affected by its contracts. City v. P., C., C. & St. L. R. R. Co., 146 Ill. App. 403.

In American Smelting Co. v. Colorado, 204 U. S. 103, a question quite similar to the one now before us arose. In that case the State of Colorado, by the enactment of a new law relating to the terms upon which foreign corporations would be permitted to do business in the state, sought to impose upon foreign corporations a certain annual state license tax. This tax, if sustained, would have been more burdensome upon foreign corporations previously admitted to do business in the state than any requirement permissible under the previous law. The new law was enacted in 1902 and the Smelting Company, a New Jersey corporation, had been licensed and was doing business in the state under a law of 1897. The company resisted the imposition of the new burden on the ground that a contract had arisen between it and the state, when the company complied with the requirements of the earlier law and thereunder procured a license to do business in the state, and insisted that the contract which had arisen continued during the period provided for by the earlier law. The United States Supreme Court, reversing the state courts, sustained this contention of the Smelting Company and held that the act of 1902 could not be enforced as against the Smelting Company because by such enforcement the obligation of the existing contract would be impaired.

We are of the opinion that when plaintiff was given its certificate to carry on business in this state for 99 years, a contract arose accordingly, and, therefore, defendant’s contention that plaintiff cannot maintain a suit because it had not complied with the requirements of the law of 1905 is without merit. What regulations plaintiff may or may not be subjected to by the state is a question not involved in the present suit.

One other ground is urged for the reversal of the judgment. The judgment is made up of $158.12 for principal and interest upon six notes given by defendant to plaintiff and $602.89 due upon an open account for goods, wares and merchandise bargained and sold. Defendant makes the complaint that the amount due upon the account was proven by “improper evidence.” The argument made upon that branch of the case is to the effect that the evidence by which the $602.89 was proven to be due was not competent. The transactions and account involved extended from May 8, 1907, to February 7, 1908. In connection with selling goods, it was plaintiff’s manner of doing business, at the time of each sale, to use charge blanks and to fill in an original and carbon duplicate with the items of goods sold and the amounts the same were sold for. Although the witnesses called the one the original and the other a carbon copy, both being made simultaneously, are, in fact and in law, originals. • The one called the original was sent with the goods to the purchaser and the other was retained by plaintiff. The day following sales the items and amounts of the sales were posted from the carbon copy retained into an account book of the plaintiff’s which the witnesses called a ledger. This book, being a book of first entry, we regard as a book of original entry. The court permitted the retained carbon copies of the charge blanks, which showed the sales to defendant, and the defendant’s account, shown in the so-called ledger, to be introduced in evidence, after a sufficient foundation had been laid. No error was committed by the trial judge in this respect. Furthermore, a statement of the account was rendered to defendant each month and the last statement, showing a balance of $602.89 to be due, was mailed to the defendant March 1, 1908. The evidence shows that, at the time of the trial, June 1, 1908, no objection to the account rendered on March 1, 1908, had been made to the plaintiff. Under the circumstances of this case, this absence of objection for such a length of time made the account rendered an account stated and made the account and proof that the account had been so rendered admissible in evidence upon that theory. When a rendered statement of an account has been retained, without objection to the account or to the items contained therein, for such a length of time that the recipient has had a reasonable time within which to express objections, then he is in law regarded as having waived his objections, if any he had. Thereafter, if an action as upon an account stated be brought upon the claim, the original character or form of the debt, as well as what kind of evidence was necessary to establish the same, is unimportant, for the cause of action is then not upon the original contract or transaction, but upon the promise, implied by the law where there is none expressed, to pay the balance. Dick v. Zimmerman, 207 Ill. 636. While the recipient of an account rendered, which through lack of objection on his part has ripened into an account stated, is precluded from opening up previous disputes between the parties regarding the various items of the account, he is not precluded from showing fraud or mistake; but if he raises any such issue the burden of proof is upon him to establish it. Oil Company v. Van Etten, 107 U. S. 325, 330-1, 333-4; Concord Apartment House Co. v. Alaska Refrigerator Co., 78 Ill. App. 682, 687; Weigle v. Brautigam, 74 Ill. App. 285, 292; B. S. Green Co. v. Smith, 52 Ill. App. 158, 160. There is sufficient evidence in this record to justify the rendition of the judgment, so far as the $602.89 is concerned, upon the theory of an account stated.

There is also evidence to the effect that in the early part of February, 1908, defendant admitted owing the money.

We find no reason for disturbing the judgment of the court below. The judgment will be affirmed.

Affirmed.


text:
    Frederick Barnard et al., Defendants in Error, v. Fannie J. Willard, Administratrix, Plaintiff in Error.
    Gen. No. 14,832.
    Mtoíioipai, Couet—presumption as to correctness of judgment. Upon review the judgment of the Municipal Court is presumed to be correct until the contrary is shown.
    Assumpsit. Error to the Municipal Court of Chicago;, the Hon. Judson F. Goma, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    G. C. Niemeyer, for plaintiff in error.
    Harvey T. Fletcher, for defendants in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

This suit was brought in the Municipal Court to recover the principal and interest upon a promissory note for $125 and the amount of $191.05 due upon an open account for printing done. Upon a trial by the court without a jury a judgment was rendered against the defendant for $329.80. Defendant prosecutes this writ to have that judgment reversed.

There is no dispute but what the printing was done for defendant at his request; nor is there any dispute as to the reasonableness of the prices charged. Defendant contends that the account is barred by the statute of limitations. One. of the plaintiffs testified the defendant had promised, within less than the statutory period of limitation from the time the suit was brought, to pay the account, and the last item of credit appearing upon the • account as given the defendant was given within less than the statutory period of limitation from the time the suit was brought. Defendant denied having made any promise such as testified to by the witness. In this respect there is a conflict in the evidence. As to the note and interest thereupon there is no dispute. No sufficient reason for reversing the judgment of the trial court has been presented by plaintiff in error.

Upon review “The judgment of the Circuit Court is presumed to be correct until the contrary is shown,” said the Supreme Court in Laird v. Dickinson, 241 Ill. 380, 383. The same rulé obtains with reference to judgments of the Municipal Court upon review.

The' judgment must be affirmed.

'Affirmed.


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    P. A. Bertram, Defendant in Error, v. Otto Bergquist, Plaintiff in Error.
    Gen. No. 14,845.
    1. Contracts—what does not justify abandonment. A contractor who agrees to build a house for a specific sum is not justified in refusing to carry out his undertaking because of the error of a subcontractor in making his bid which error induced such subcontractor to refuse to accept the work.
    2. Measure of damages—in action for refusal to carry out building contract. In case of the contractor refusing to enter upon and perform a building contract, the measure of damages is the difference between the cost of constructing, by contract, the building the contractor agreed to put up, and the fair cash market price of erecting such building.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Adelob J. Petit, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed February 15, 1910.
    Frank Foster, for plaintiff in error.
    Poynton & Poynton, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Defendant, Bergquist, a builder, undertook to build a house for plaintiff, Bertram. The house was to be built according to certain plans and specifications and for a sum of $4,500. The contract was made on August 10, 1907. Two days thereafter, on August 12, Bergquist came to plaintiff and stated that the subcontractor for the mason work would not go on with that work, because of a mistake he had made in figuring the work which had led him to bid $450 instead of $908. There were some negotiations between plaintiff and defendant for a couple of days. Plaintiff offered to increase the contract price $100 or $150 if defendant would go ahead with the work under the contradi. Defendant took the plans and specifications and procured some more figures on the mason work. In the evening of August 14, defendant said he could not go on with the contract and he returned the plans and specifications to plaintiff on the 15th of August. Plaintiff let the contract to John F. Johnson for $4,750, who signed the contract on August 15, 1907. Johnson was a contractor who had bid in competition with Bergquist. The court asked Johnson whether the plans and specifications were the same as before, to which Johnson replied that there were some changes in the basement. Upon this state of facts the court below rendered a judgment of $250 in favor of Bertram in this suit brought by him against Bergquist to recover damages for breach of the contract. The defendant prosecutes this writ of .error.

When Bergquist signed the contract to build the house for Bertram for $4,500 he became bound to do so. Whether the mason contractor, or someone else with whom Bergquist was dealing, had made a mistake in bidding or refused to go on with his work did not concern Bertram. Bergquist was nevertheless obliged to go on with his contract and erect the building. For failure in that respect he became obligated to Bertram in such damages as the latter might sustain. The case has been tried, however, upon a wrong theory as to the measure of damages. The measure of damages in such case is not the difference between the price in the broken contract and the price at which the owner may let a new contract for the erection of the building to some one selected by Mm. There is no evidence whatever in this record that the price fixed in the new contract is the fair and reasonable cash market price and value for doing that work and furnishing those materials wMch Bergquist, by his contract, undertook to do and furnish. Indeed the question asked by the court brought an answer wMch indicates that, to some extent at least, the work and materials are not the same under the two contracts. The measure of damages is the difference that the cost of constructing, by contract, the building Bergquist contracted to put up, may, at the fair cash market price, be greater, if any, than the contract price at which Bergquist undertook to erect and complete the same. The fact alone that one contractor undertook to erect the building for $4,750 did not establish that sum to be the fair cash market price or value. No damage havmg been proven according to any measure of damage known to the law, the judgment must be reversed and the cause remanded for another trial.

Reversed and remanded.


text:
    Grand Boulevard Automobile Garage Company, Defendant in Error, v. Grand Boulevard Rink, Plaintiff in Error.
    Gen. No. 14,847.
    1. Forcible entry and detainer—when service of five days’ notice sufficient. Held, that the service in this case upon the corporate defendant was sufficient, no officer of the corporation being found, the notice being delivered to a person upwards of twelve years of age apparently in full charge of the demised premises.
    2. Forcible entry and detainer—statute authorizing recovery

      of rent■ construed. Possession may be awarded and judgment for a full month’s rent given notwithstanding at the time of rendering such judgment the full month’s rent may not have been earned; justice can be subserved by ordering a stay of execution until such time as the month’s rent in question has been earned.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. McKenzie Cieeand, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Opinion amended and refiled March 1, 1910.
    Charles S. Frank, for plaintiff in error.
    Menz J. Rosenbaum and Louis M. Cahn, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

A judgment for possession of the premises involved and for $100, upon a claim for rent joined in the action, was recovered by the plaintiff company in the Municipal Court, in a forcible detainer suit, on July 25, 1908. To reverse that judgment defendant prosecutes this writ.

By a written lease plaintiff had leased “the second floor of the building situate at the northeast corner of Grand Boulevard and 40th street,” Chicago, to defendant for a term commencing September 30, 1907, and ending April 30, 1909. The lease provided for $100 per month rent, payable, in advance.

On the 6th day of July, 1908, the rent for that month not having been paid, plaintiff caused a five day notice and demand to be served under section 8 of the Landlord and Tenant Act, chapter 80 of the Revised Statutes. The notice and demand was, in substance, that there was $100 due for rent, of which payment was demanded, and that unless payment were made on or before July 11, 1908, the lease of the premises would be terminated. Payment was not made within the time specified and the suit now before us was • brought.

At the trial plaintiff, inter alia, introduced in evidence the five day notice with a sworn return thereupon. The return is to the effect that Joseph L. Daube served the notice and demand on July 6, 1908, “by delivering a copy thereof to the within named Grand Boulevard Rink, a corp., by leaving said copy with Donald L. Morrison, a party in charge of the within described premises, no officer of said company being found upon said premises.” Daube was called as a witness and upon direct examination testified that when he left the notice with Morrison the latter was a person upwards of twelve years of age and “was in charge of and upon the premises described in the complaint.” Dp on cross-examination he testified Morrison was “in full charge” of the premises at the time in question, and that he believed Morrison was preparing and fitting up the premises for dancing school purposes. Section 11 of the Landlord and Tenant Act provides than when a sworn return is made the same shall be prima facie evidence of the facts therein stated.

No evidence was introduced at the trial by the defendant. The defendant, however, then made and now makes the defense that there was no service, as required by law, of the five day notice; that is, that the evidence and affidavit were insufficient to show that Donald L. Morrison was a proper person upon whom to serve the notice. Section 10 of the Act referred to provides that the notice may be served by delivering a “copy thereof to the tenant, or by leaving the same with some person above the age of twelve years, residing on or in possession of said premises; and in case no one is in the actual possession of said premises, then by posting the same on the premises.” Whoever drafted the return of service upon the notice chose not to follow the verbiage of the statute and say, in the terms of the statute, that the notice was served upon a person in possession of the premises, and thereby he took some chances. It is rarely wise in pursuing a course prescribed by a statute to attempt to improve upon the verbiage. We think, however, that as it appears no officer of the tenant corporation was found upon the premises when the notice was served and that Morrison was then upon the premises and in full charge thereof, service of the notice upon him was a sufficient compliance with the statute. The statute must be interpreted reasonably and in view of its purpose. This was not an instance where no one was in the actual possession so as to permit the posting of the notice, under the statute. In the connection and under the circumstances in which the term “in possession” is used in the statutes we consider actual possession to he referred to. When Morrison, in the absence of the officers of the tenant corporation, was in “full charge” of the premises he was in actual possession of the premises within the intent and meaning of this statute. The defendant stood by, at the trial, silent when the evidence in this respect was introduced. The reason- ■ able inference is that Morrison was in full charge of defendant’s premises, rightfully, on behalf of the defendant, and not wrongfully or for some one else. Defendant had an opportunity to speak to the contrary and said nothing.

Paragraph three in section 48 of the Municipal Court Act now in force provides that: “In forcible detainer cases the plaintiff may unite with his claim for possession of the property any claim for rent or damages for withholding possession of the same.” This provision is similar to section 38 of the Practice Act, except that section 38 does not provide for recovery of damages for the wrongful withholding of possession of premises. Under the provision in the Municipal Court Act plaintiff herein united, in this suit brought below, its claim for the July rent with its claim for possession of the property involved. Plaintiff thus prosecutes his two claims or causes of action at the same time and in the same suit. The claim for rent is for rent for the month of July. This rent for the ■ month of July became due and payable on the first day of July. The cause of action for the whole month’s rent accrued on the first day of July, in advance, and on that day plaintiff became entitled to recover the whole month’s rent in a separate common law action had he so chosen. Section 48, above mentioned, while it provides for joining or uniting the two causes of action in one suit, in nowise purports to or does disturb an already accrued cause of action for rent or to affect the amount of rent which shall be recoverable in the action for rent joined or united in the same suit with the action for possession. No common law principle disturbs the already accrued cause of action, because the plaintiff, who seeks to recover the current month’s rent by suit, owing to defendant’s continuous default, also insists upon terminating the lease. We cannot read into the legislative enactment a provision that the amount recoverable by the plaintiff upon his cause of action for rent shall be any less when he unites his two causes of action than it would have been had he brought separate suits. If defendant wishes to acquiesce in plaintiff’s termination of the lease let him surrender possession and then plead to the action for the rent accordingly. Entirely apart from the new statutory provision for the uniting of the two causes of action in the same suit, the law gives the plaintiff his right of recovery of the rent. This new provision merely provides for enforcement of his right in the forcible detainer proceeding wherein he recovers possession. There was no delay in the proceedings in the case at bar, yet, had there been no writ of error, plaintiff would have been unable to enforce surrender by the tenant wrongfully withholding possession until July 31, the last day of the current month. This is an illustration of the practical operation of the new mode of procedure for the recovery of rent due, under circumstances most favorable to the landlord. We see no force in the argument of plaintiff in error that rendering judgment for the rent for the entire current month “is equivalent to ordering the return of goods and giving, at the same time, judgment for their value.” On July 31 the rent for the current month was wholly earned. Should any instance ever occur where injustice might be possible, to any extent, by reason of the rendition of judgment for possession before a current month’s rent, for which judgment is rendered, has been wholly earned, the court will unquestionably protect the defendant by the exercise of its power to temporarily stay its process for possession. As authorities in point see: Guild v. Reilly, 9 New Jersey Law Jour., 209; Davidson v. Donadi, 2 E. D. Smith, 121; Cushingham v. Phillips, 1 E. D. Smith, 416; Hinsdale v. White, 6 Hill, 507; Johnson v. Oppenheim, 35 N. Y. Superior Court (3 Jones & Spencer) 440, affirmed in 55 N. Y. 280. We see no error in the rendition of judgment for rent for the entire month of July.

The judgment will be affirmed.

Affirmed.


text:
    Adeline A. Lau, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 14,866.
    1. Negligence—when concrete sidewalk not reasonably safe. Held, that the undry concrete sidewalk at the time and place in question in this case was not reasonably safe for public travel.
    2. Contrlbutobt negligence—when person using undry concrete sidewalk not guilty of. Held, that it was not negligence as a matter of law for a person to walk over an undry concrete sidewalk which was unbarricaded.
    3. Sidewalks—when notice of unsafe condition not essential to fasten liability. If a city has authorized the construction of a sidewalk and it is permitted to remain in an unbarricaded and unsafe condition for the period of two hours in which time an injury results, a recovery against such city, irrespective of such city’s having notice of such unbarricaded and unsafe condition, will be sustained.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Statement by the Court. This is a writ of error prosecuted by the city to reverse a judgment in favor of the plaintiff. There was a trial by jury. The judgment is for a personal injury sustained in falling through a cement or concrete sidewalk in course of construction. The sidewalk was so nearly completed that it lacked merely the finishing coat or layer of fine sand or granite dust which gives the walk a smooth surface. The concrete was not yet thoroughly dry; it was in the condition which might be termed “green.”
    On May 9, 1907, the city issued a permit whereby it granted permission to John Zacsh to build a cement sidewalk in the front of the premises No. 33 Elston avenue. The work of building the sidewalk was being prosecuted May 14, 1907, not by the city but pursuant to its permission. Along in the afternoon of that day, between four and five o’clock, plaintiff came along and as she and other persons stepped upon the sidewalk it caved in. At and about the sidewalk there was construction material, such as piles of sand, boards and crushed stone. There is testimony, uncontradicted, that both the south and north ends—the street runs north and south—as well as the curb side, of the walk being built were barred by boards at 3 o’clock preceding the occurrence in question. It appears, however, that the boards barring passage had been removed to permit the bringing of the surface material onto the sidewalk by wheelbarrows. The defendant produced witnesses who testified that one of the workmen, holding a board in his hands with which he apparently was about to bar passage over the sidewalk, called out as plaintiff and others came along, with a view to warning them. Witnesses called on behalf of plaintiff denied that any such thing occurred. Some trouble in connection with the trolley wire had stopped street cars north of the place in question and plaintiff, with others, had come off a car and were going south on Elston avenue to take a Milwaukee avenue car south of the place in question. The level of the sidewalk was seven feet above the surface of the ground. The concrete was laid between iron girders which ran across the sidewalk and supported the concreté. Light boards were placed underneath and held the concrete in place until it dried and acquired the proper strength. As plaintiff and two men came along and stepped upon the south section of the concrete work in the sidewalk in question, it gave way and went down to the ground beneath, carrying the three persons with it. There is no dispute either as to plaintiff having suffered injury or as to the extent of it.
    Edward J. Brundage and John R. Caverly, for plaintiff in error; Edward C. Fitch and Aaron R. Eppstein, of counsel.
    Harvey E. Wynekoop and Morse Ives, for defendant in error; Symmes & Kirkland, of counsel.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

The undry concrete sidewalk at the time and place in question was certainly not reasonably safe for public travel. The jury were clearly justified in finding and returning a verdict, in effect, that permitting persons to use the sidewalk, at the time and place in question, for public travel, was a lack of exercise of ordinary care on the part of whoever was charged with the duty to then and there exercise such care in order to prevent injury to persons rightfully using the sidewalk.

We regard the city of Chicago as liable, and, in view of the grounds and principles upon which we hold the city to be liable, it is of no consequence that there was such a short period of time—less than two hours —before plaintiff was injured, during which the unsafe sidewalk remained in the nnbarricaded condition. There is no place here for the application of the doctrine of constructive notice. The city authorized and knew of the work which was going on in connection with the sidewalk at the time and place in question and, because of such authorization and in view of the city’s obligation to the public relative to streets and sidewalks, the law places upon the city the responsibility for the condition of the sidewalk which existed at the time when the plaintiff was injured. The question is one of obligation, regardless of notice; there was no occasion for the plaintiff to establish constructive notice.

It is a general rule of law that one under the duty and obligation to use ordinary care in a particular connection must use such care as will be commensurate with the requirements of the conditions and circumstances and with the character of the risks and dangers reasonably to be apprehended and guarded against. Where risk or danger of injury to any one is not to be anticipated, a less degree of care is sufficient to be regarded as ordinary care than where some particular risk or danger is to be anticipated. When the city, charged with the care and control of the streets and sidewalks, on May 9, 1907, authorized the building of this concrete sidewalk in front of 33 Elston avenue, the city authorized the creation of a condition of special risk and danger at the time and place in question, to such of the public as might rightfully have occasion to then use that sidewalk. The authorization of the creation of the special risk and danger was followed by a duty to exert such correspondingly greater activity, in the exercise of care in the protection of the public concerned, as would protect those in the exercise of ordinary care from injury by reason of the increased danger.

“One who authorizes a work which is necessarily dangerous, and the natural consequence of which is an injury to the person or property of another, is justly to be regarded as the author of the resulting injury.” Village of Jefferson v. Chapman, 127 Ill. 438, 444, approved in Economic Fuel Gras Co. v. Myers, 168 Ill. 139, 146. This rule is applicable with double force where, as here, a city primarily chargeable with a duty imposed by law, in respect to keeping streets and sidewalks safe for public travel, authorizes the doing of work in connection with those streets and sidewalks which is Accompanied with atténdant special risk or danger.

In Schmidt v. Chicago, 107 Ill. App. 64, 68, it was contended that a death resulted from the city’s negligence in permitting an improperly insulated arc light lamp to' hang too low down, close to the sidewalk. The city argued that there was no claim either that the city owned or operated the light or that it was the city’s duty to inspect the insulation of the arc lights used in the city. To this argument the court replied: "We think, however, the light being shown to be upon a public street of the city, the city is responsible for its presence there, and was bound to use care commensurate with its dangerous character to protect people passing on the streets.”

Had the city itself been building the sidewalk here in question, it would have been in duty bound to take the requisite precautions to prevent the injury which occurred, and, had it failed, it would have been compelled to respond in damages. The duty to exercise ordinary caré to maintain the streets and sidewalks in a reasonably safe condition for public travel rests primarily, as respects the public, upon the city, and this obligation, primarily to discharge this duty, cannot be evaded, suspended or cast upon others by anything the city may do. Village of Jefferson v. Chapman, 127 Ill. 438, 445; Hogan v. Chicago, 168 Ill. 551, 559. The city being under the primary obligation, imposed by law, to exercise ordinary care to keep the streets and sidewalks of the city in a reasonably safe condition, where an injury has occurred, which is attributable to the fact that a street or sidewalk was not in a reasonably safe condition, the city presents no defense by showing that the injury occurred on account of negligence in connection with work being done upon a street or sidewalk by an independent contractor or by reason of some condition created in a street or sidewalk by an independent contractor. Such is the doctrine of the cases above cited. The city is liable in such case, although it may have contracted away control and supervision of the work being done and may have no immediate control over the workmen. Village of Jefferson v. Chapman, ib.; Hogan v. Chicago, ib; Where the city authorizes and permits work upon or interference with a street or sidewalk by an abutting owner, its duty, obligation and liability are no less than when such work and interference are by an independent contractor. There is no reason for making a distinction. An owner of private land may at will surrender possession and control of his land and thereby relieve himself of responsibility for what may occur thereupon as the result of negligence óf the party in possession; but municipal corporations are charged with such obligations and responsibilities in connection with their streets and sidewalks and public places that they may not by surrender of possession and control likewise at will relieve themselves from responsibility.

On the question of the warning of the plaintiff by one of the workmen the jury found against defendant. There is no such preponderance of evidence showing that the warning reached plaintiff as to justify us in holding that the jury was wrong.

The jury also found against defendant on its contention that the surrounding appearances and conditions were such as to warn plaintiff of the danger whereby she suffered injury. We cannot say that plaintiff, her situation in life being considered, understood or realized, or that an ordinarily prudent person, under the circumstances, should have understood that there was any danger of the sidewalk caving in. To her it may have appeared perfectly safe to walk upon. We think the jury was justified in finding her not guilty of contributory negligence.

When a municipal corporation does work, or causes work to be done by an independent contractor, or authorizes work by an abutting owner or by some one else in a street or sidewalk under its control, it is bound to know continuously what is being done, the character of the work and the conditions as-they change and exist from time to time; in short, whether there is any danger which may cause injury to the public.

We see no reason for disturbing the judgment.

Affirmed.


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    In re Estate of George C. Benton, Deceased. Charles W. Ward, Trustee, as Claimant, Appellee, v. C. Arch Williams, Administrator pro tem., Appellant.
    Gen. No. 14,855.
    1. Witnesses—what does not disqualify. If a witness ceases to have an interest in the result of a proceeding in which he is called he is not incompetent to testify against one .suing or being sued in a representative capacity.
    2. Tbial—examination of witnesses. In the examination in chief of a witness, relative to a conversation, the effort of the examining attorney should be and he should so frame his questions as to draw from the witness what was said by the respective. parties to the conversation, that is, in the first place the exact language used, but if that be not possible, then the substance of what each person said, and not the witness’ conclusion or inference as to what was said, or as to the state of mind of the person speaking with reference to the subject-matter of his statement. It is the witness’ recollection only that is competent testimony.
    3. Tbusts—when claim of trustee for advances cannot he recovered. If a trustee advances money to pay a note secured by real estate mortgage given by the deceased whose estate he is handling, he cannot recover such advances out of personal estate of such deceased if such personal estate was not liable for the discharge of the note so secured.

      Contested claim in court of probate. Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed February 15, 1910.
    Statement by the Court. This cause originated in the filing of a claim for $6,917.50 by Henry P. Merriam and Charles W. Ward, trustees under the last will and testament of George C. Benton, deceased, against the estate of said decedent in the Probate Court of Cook county. On July 16, 1906, the Probate Court disallowed and dismissed the claim and from that order of disallowance Charles W. Ward, sole surviving trustee, appealed to the Circuit Court of Cook county. The cause was tried in the Circuit Court before a jury, a verdict was rendered in favor of the claimant and a judgment rendered upon the verdict against the estate for $7,916.91, on March 7, 1908, to be paid in due course of administration. From that judgment this appeal is prosecuted. As Charles W. Ward was executor of the last will and testament of George C. Benton, deceased, as well as trustee thereunder, as stated, the estate was represented in the Circuit Court, in the matter of this claim, by C. Arch Williams, who was appointed by the court as special administrator to defend the estate against the claim. George C. Benton died, testate, in 1902 and left him surviving Susan D. Benton, his widow, and a granddaughter, Harriet S. Ward (daughter of Charles W. Ward), his only next of kin and heirs at law. Susan D. Benton, the widow, renounced under the will and elected to take under the statute. She subsequently died, in March 1906, and her estate is pending in the Probate Court.
    After certain legacies, with which we are not now concerned, and a provision that the widow should have the furniture and household goods, the will of Benton provided for a life estate in his homestead property to his widow, Susan D. Benton, his brother Alphonse S. Benton and the latter’s wife Emma S., jointly, and the survivor or survivors. All the rest, residue and remainder of his estate, real or personal, was given to Henry P. Merriam and Charles W. Ward as trustees to manage and control, to pay $150 per month out of the net income to Mrs. Benton during her lifetime and, upon the death of Mrs. Benton, to transfer and convey all the trust estate to the granddaughter, Harriet Stephen Ward, if of age, or if not, then as soon as she attained her majority.
    When the widow renounced under the will she beT came entitled to one-third of the personal estate, absolutely, and a dower interest in the real estate of the deceased.
    The claim in question arose out of an indebtedness of $50,000 secured by mortgage to the.Berkshire Life Insurance Company upon certain real estate, corner of La Salle avenue and Oak street, in Chicago, purchased by George C. Benton. The deed executed at the time of the purchase bears date July 1, 1901, is made by William H. Pusheck and Helen his wife as grantors, to George C. Benton, upon an expressed consideration of $100,000, and contains the following provision: “This conveyance is made subject to the lien of a certain mortgage to Berkshire Life Insurance Company, dated November 8, 1899, * * * given to secure the payment of fifty thousand (50,000) and interest at 6% per annum; and this conveyance is made subject to all interest accruing after July 8,1901. Also subject to existing, leases, and to all taxes and assessments levied after the year 1900. ’ ’ r William H. Pusheck, grantor in the deed to Benton, had no interest in the property conveyed but, as a matter of convenience, held the title thereof in trust for his brother Charles A. Pusheck, and, at his instance, conveyed the property to Benton.
    The $50,000 encumbrance was evidenced by seven notes dated November 8, 1899, one for $35,000 numbered 1 and payable in five years, six for $2,500 each, numbered consecutively from 2 to 7 inclusive. Numbers 2, 3 and 4 were payable on or before two, three and four years after date, consecutively, and numbers 5, 6 and 7 were each payable on or before five years after date. William H. and Charles A. Pusheck executed the notes jointly. Note No. 2 for $2,500, which matured first, was paid by George C. Benton in his lifetime.
    Charles W. Ward, trustee, predicates his claim upon the payment by him, on November 8, 1902, of the two principal notes numbered 3 and 4, and the then accrued interest upon all the notes, except No. 2, and upon the interest which has accrued to him since that date upon the amount he then paid, all of which makes a total of $7,916.91. That the payment was made is undisputed. In the record it is conceded that the remainder of the $50,000 indebtedness has since been paid by Charles W. Ward, trustee, and that the notes representing this remainder have been cancelled; that the payment was made too late for the filing of a claim against the estate by the trustee and that no claim therefor is made. The record does not disclose the date of payment of this remainder, neither does it disclose whether George C. Benton left any personal estate, or whether the real estate mortgaged has been released from the lien of the mortgage.
    Steere, Williams & Steere, for appellant.
    Holland & Elliott, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Over the objection of the representative of the estate of Benton, Charles A. Pusheck, called as a witness on behalf of the claimant, was permitted to testify. His testimony related to what took place between .him and George C. Benton at the time of the purchase of the encumbered property regarding the assumption of the encumbrance by Benton. That permission is assigned as an error. The first section of chapter 51 of our Revised Statutes, the Evidence and Depositions Act, provides, so far as now material, that by reason of Ms or her interest in the event of any civil proceeding, either as a party or otherwise, no person shall be disqualified as a witness therein, except as stated in the act. Section two of the act provides that by virtue of the preceding section no party in such proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, when any adverse party sues or defends as executor or administrator of any deceased person, unless when called as a witness by such adverse party. Pusheck not being a party, the question is whether he was incompetent by reason of the provision that no “person directly interested in the event” of the proceeding shall be allowed to testify.

Can the event of tMs proceeding affect Pusheck, all the circumstances of the case considered? We think not. It is only contended that Pusheck is interested in the event of tMs proceeding, and consequently an incompetent witness, if he is concerned in the question raised herein whether Benton, in his purchase from Pusheck, assumed the $50,000 indebtedness. In view of the facts disclosed by this record we find, irrespective of the testimony of Pusheck, that, when he was called upon to testify and for a long time prior thereto, it was absolutely immaterial to Pusheck whether Benton had or had not assumed the $50,000 indebtedness. The facts disclosed by the record are such that at the time Pusheck testified he was not under a present or contingent liability upon the notes evidencing that indebtedness, under no circumstance could liability on his part thereafter arise upon those notes. As between Pusheck and Benton the real estate securing the payment of that debt became the primary fund for its payment through the sale and the deed of conveyance executed by Pusheck to Benton. This is established by the terms of the deed. That the effect of the sale and conveyance is, to that extent, favorable toward the release of Pusheck from liability for the debt is indisputable. Under some circumstances it would have been of advantage to Pusheck to have had it judicially established, at the time he testified, that Benton assumed the debt at the time of his purchase. But so far as present or future liability at the time he testified was concerned, such was not the case here. No one will contend that, when living, Benton, while continuing to own and hold the real estate under the deed from Pusheck, could, by acquiring the notes, or any of them, in question in any manner, have recovered thereupon from Pusheck. - So long as that real estate continued to be held by an heir or devisee of Benton under that deed, neither his personal representative, the administrator, nor the claimant, the trustee, who had acquired the real estate by devise from Benton, could, in any event, recover from Pusheck upon those notes. It appears from the record that the first note which became due of the. $50,000 was paid by Benton in his life-time, when it became due. Ward testified that on November 8, 1902, after Benton’s death, he, as trustee, paid notes numbered three and four, with certain interest, not that he purchased or took an assignment of these notes. Indeed he states that he paid them because the Berkshire Life Insurance Company, the holder, threatened to foreclose and made some demand which he regarded as unreasonable. The evidence shows that these two notes were marked paid and thereby cancelled. It also appears that later Ward, as trustee, paid the remaining notes and the record shows that these remaining notes have been marked paid and are thereby cancelled. There is a probability that they were paid in 1904, when they became due. Thus it appears that, while owning and holding that real estate which, under the deed from Pusheck and so far as he is concerned, has, since Benton became owner thereof, been the primary fund for the payment of the indebtedness, Benton or his devisee has paid all the notes evidencing the debt and that all the notes have been cancelled. Under these circumstances we are compelled to hold that when the notes were paid the fee and the mortgage interests merged and the debt was then extinguished, at least as far as Pusheck was concerned. There is not the slightest evidence to indicate any intent to keep the indebtedness alive after the making of the payments nor is there room for indulging in any legal presumption that there was such intent, as against Pusheck. No principle of law or equity would now permit a present holder of these notes or any of them, or any one who might acquire them or either of them, to hold Pusheck liable by reason thereof. When Pusheck testified there was no present liability or possibility of any future liability on his part in respect of these notes. Pusheck was a competent witness.

Dr. Pusheck is the only witness on the subject of assumption of the mortgage indebtedness by Benton. Unless his testimony establishes that there was a parol assumption of the debt, by Benton, the terms of the purchase stand as shown by the deed from Pusheck. Pusheck testified twice1—first in the Probate Court and then in the Circuit Court. It appears from his testimony that he did not personally conduct the negotiations which resulted in the sale. He met Benton,' however, three or four times in the course of the negotiations. Three agents conducted the negotiations ; two of these are dead and the third is insane.

In determining the question of assumption we are obliged to analyze more closely and comprehensively the character and probative value of Pusheck’s testimony because of the exercise of less care by examining counsel than should have been exerted in the examination of this witness. In the examination the effort should have been to ascertain what was said by the parties—Benton and Pusheck—respectively, on the subject in question, rather than toward obtaining the witness’ conclusion or inference as to Benton’s state of mind upon the question or the witness’ conclusion as to the result, after they were through, of his negotiations or conversations with Benton. It may be that owing to lack of recollection the very language used by the parties in conversing could not have been obtained; but, if that were so, then the substance of the remarks made should have been elicited. When a witness does remember the language used, the substance is not competent; and before resorting to the substance it should be ascertained whether the witness recalls the language itself. If a witness can remember neither the language used nor the substance of what was said by either of the respective participants in a conversation as to which he is called upon to testify, then no testimony of that witness is competent to charge either of the participants, in respect of what was then said, as upon a promise or agreement. Judgments by courts cannot be predicated upon the conclusions or inferences drawn by a witness, from what has been said, as to what has been promised, agreed or assumed by another, if objection is made, nor upon a witness ’ imagination in that regard, however honest the witness may be. In determining upon rights and liabilities it is only the recollections of witnesses that can properly influence the courts. In a legal controversy it is the function of the court—not of the witnesses—to draw the conclusions and determine whether anything has or has not been “assumed,” “promised” or “agreed” in a particular conversation involved, after the court has heard the testimony as to the language, in verbatim or in substance, that was used by the parties respectively. A rule that witnesses should inform the court what, in a conversation, a party had “assumed,” “promised” or “agreed” and that the court, by its judgment, should charge parties accordingly would be an absurdity. In Earn on Facts, 230, is to be found an interesting incident in this connection which occurred in a celebrated trial in 1858. Counsel asked the question of a witness: “Did you go as a spy?” The Chief Justice, Lord Campbell, interposed, saying: “Ton had better get the facts from bim, and you can draw any inference you please.” In objecting the Attorney-General then said counsel has a right to inquire minutely into all the witness has said or done, but he has no right whatever to put a question that embodies his own characterization or description of something. The question being insisted upon the Chief Justice, after consulting with the other learned judges, Chief Baron Pollock, Mr. Justice Brie and Mr. Justice Crowder, held that the question was irregular and improper “not on the ground that the witness is called on to criminate himself, and may refuse to answer, but on the ground that he is called upon to draw an inference from the facts.”

Dr. Pusheck testified in the Circuit Court in December, 1907. He had previously testified in the Probate Court, in the matter of this same claim, in April 1906. In the Circuit Court, substantially, the first four questions asked of him, bearing upon the question of the assumption of the mortgage indebtedness by Benton, were: “I will ask you, doctor, whether Mr. Benton assumed that mortgage?” “Did Mr. Benton promise to pay that mortgage?” “What was the purchase price agreed upon?” and “Why was this $100,000 named in the deed?” As the question then before the court was whether, in one of the three or four conversations, there had been a parol assumption of the mortgage indebtedness by Benton, the questions called, merely, for the conclusions of the witness and were all incompetent. The witness was, however, only permitted to answer the last two. Over objections on the ground that conclusions only were called for and testified to, in response to those two questions and thereafter, the witness testified that the purchase price agreed upon was $70,000; that $100,000 was inserted in the deed as the consideration because that was really the value of the property; that Benton paid $20,000 in cash and “was” to “retain the balance to wipe out the notes as they became due;” that Benton retained this balance, “Because there was a mortgage of $50,000 on it (the property), which he was to pay when it became due.” Where-after counsel asked the question: “He retained that to pay the mortgage?” and the witness answered: “Yes sir.” This is all the testimony of the witness, upon direct examination, that it is at all material to consider. After the last question and answer opposing counsel said: “I object to that as a conclusion of the witness.” The court replied to this objection by asking: “Is that what was said there?” to which the witness replied: “Yes sir.” Assuming, as is most probable, that by “that, what was said,” in his question, the trial judge referred to the last question and answer, it still remains quite clear that the witness was testifying not to what was said by any particular person, but to his conclusion, and it is perfectly clear that the witness definitely testifies to nothing as having been said by Benton. Indeed we are in nowise informed by the testimony of the witness who said that which the trial judge referred to—whether it was said by Benton or Pusheck. At no time was the witness asked what any one said; nor, except in that vague and uncertain way drawn from the witness by the court, does the testimony of the witness indicate or purport that the witness undertook to testify to what anyone had said. The witness does not testify as to when the conversations spoken of or any of them took place—whether early in the negotiation for the purchase, at the time of the execution or of the delivery of the deed, or after the deed of purchase had been delivered. Upon cross-examination it developed that Dr. Pusheck had testified in the Probate Court to the effect that he sold the property for $20,000 cash, subject to the mortgage, and that that was all there was to it; that there was no different arrangement between himself and Benton than as shown by the deed, except in respect to the consideration being less than $100,000, the sum stated in the deed; and that all there was to the transaction was that he, the witness, gave the warranty deed for $20,000, subject to the encumbrance.

The testimony of Dr. Pusheck having been most carefully considered, the nature, character, and substance of all his testimony having been regarded together with all the facts and circumstances, we have arrived at the conclusion that there is no evidence whatever in this record upon which a finding that Benton promised to pay the $50,000, or that he assumed that mortgage indebtedness as part of the consideration, can properly and justly be based.

It is clear to us that the terms of the purchase were only as stated in the deed of conveyance. Benton took the property subject to the encumbrance. It follows that the claimant can recover nothing from the estate however much it would seem Benton would have preferred this mortgage indebtedness should have been paid by his personal estate rather than that it should be taken out of his granddaughter’s estate.

The judgment of the Circuit Court will be reversed and the cause will not be remanded.

Reversed.


text:
    Anna Hauer, Plaintiff in Error, v. Marshall E. Sampsell, Receiver, Defendant in Error.
    Gen. No. 14,877.

      Negligence—when proof shouting cause of action will not sustain recovery. A plaintiff who fails to prove the cause of action alleged in his declaration cannot recover although he may prove another and different cause of action; in such a case it is not only a variance hut it is also a failure of proof.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed February 15, 1910.
    Charles C. Spencer, for plaintiff in error.
    John A. Rose and Frank L. Kriete, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Anna Hauer, plaintiff below, prosecutes this writ of error to reverse a judgment for the defendant. The judgment was rendered upon a verdict returned pursuant to a peremptory instruction given at the. close of the plaintiff’s case. The suit was brought to recover damages for a personal injury sustained in being thrown to the ground from a car in a cable street car train. The plaintiff was thrown, it was alleged, because the train, which had been standing still, was suddenly and violently started forward. The peremptory instruction was given on the ground of such a variance between the allegations and the evidence that there was a complete failure of proof of the cause of action.

The declaration contains two counts. The first count, so far as material, alleges that on May 23, 1903, defendant was running and operating a certain train of street cars on Milwaukee avenue, in Chicago, in a northwesterly direction across the intersection of that avenue and Paulina street, and that at or near that intersection the train was stopped and plaintiff “then and there became and was a passenger” on one of the said cars. Further, in respect to defendant’s duty and breach thereof, the count alleges that by means of the premises it became and was the duty of defendant to safely carry plaintiff; but defendant, not regarding his duty in that behalf, while plaintiff “was in the act of getting onto said car” to be carried as a passenger, and “had then and there stepped onto the footboard or step at the side of said car,” by his servant in charge of the car, “while the plaintiff was so in the act of getting onto said car # * * then and there, without notice or warning, unlawfully, wilfully and maliciously caused the said car to be suddenly and violently started forward, whereby the plaintiff was” thrown from the car to the ground and injured.

The second count begins with the same introductory statement, except that in this count it is alleged that at the intersection the train “came to a stop and the plaintiff then and there intending to take passage in and to get into one of the said cars of said train,” all of which, it is stated, defendant well knew. The duty and the breach are in this count stated to be that by means of the premises it became and was the duty of defendant “to receive the plaintiff on said train as such passenger” and to safely carry her; bnt that defendant, “while the plaintiff * * * was in the act of getting into one of the cars of the said train * * * and had then and there stepped onto the foot-board or step at the side of said car,” by his servant in charge of the train, “while the plaintiff was so engaged in the act of getting into said car as aforesaid, then and there, without notice or warning, unlawfully, carelessly and negligently caused the said car to be suddenly and violently started forward, whereby the plaintiff was” thrown from the car to the ground and injured.

In both counts the breach of duty—the specific charge—is alleged to be in the management or operation of the car or train, that is, that without notice or warning to plaintiff the car was “suddenly and violently started forward, whereby the plaintiff was” thrown from the car and injured. True, in the one count the allegation is that the sudden starting occurred while plaintiff was in the act of getting upon the car and that the act was wilful and malicious, and in the other count the allegation is that the sudden starting occurred while plaintiff was in the act of getting into the car and that the act was merely careless and negligent, but in both counts the cause of action^the specific act of breach of duty, whether wilful or negligent—is alleged to be the sudden and violent starting of the car.

From the evidence it appears that Mrs. Hauer, a lady about 43 years of age, stood at the southeast corner of Milwaukee avenue and Paulina street, on the afternoon of the day in question, waiting to take a Milwaukee avenue car going northward, and this cable train came along. The last car, in the train was the one in connection with which she was injured. That car was an open one with an aisle lengthwise in the center, seats that ran across it, and each two seats faced each other. There was a footboard along the side of the car from which passengers could step into the car. All the seats of the car were filled and passengers were standing in the aisle and on the foot-board. Plaintiff testified that after the car had stopped a number of persons got on the car; that she stepped up at about the middle of the car and put a grocery or market basket she was carrying on the floor of the car between two seats facing each other; that these seats were filled with passengers; that the conductor—who was in the middle of the car, in the aisle—pushed her basket off the car and told her to get off; that when he pushed the basket she “grabbed” it and both she and the basket then fell in the street. She also testified that the car was standing still when she put the basket on the floor and she then stepped up so that she stood with both feet on the footboard and took hold of the car with one hand; that the conductor rang the bell first (evidently for the car to start) and when he pushed the basket off and told her to get off the car was moving; that the ear had already started and was going while she stood on the foot-board and was holding on the car; that while the car was going she let go the car handle, grabbed after and fell over the basket, and that she dropped the handle she was holding and tried to save the basket and fell. Plaintiff had one witness besides herself. His testimony is slightly at variance with her \s and perhaps more favorable to her, but when her own testimony is taken into consideration in explanation of it, not to such an extent as to ‘tend to prove that her fall occurred by reason of*the car being suddenly and violently started forward.

Unquestionably plaintiff did fall from the car and suffer severe injury; but she did not suffer injury from the cause she in her declaration charges against the defendant. Clearly, according to her own testimony, she was not thrown from the car by the car being started forward suddenly and violently.

It is unnecessary to cite authorities to the effect that a plaintiff who fails to prove the cause of action alleged in the declaration cannot recover, although he may prove another and different cause of action. In such case it is not only a variance but it is also a failure of proof.

The judgment of the trial court will be affirmed.

Affirmed.

Mr. Justice Mack took no part in the consideration of this case.