text:
    Cornelius Windle, Defendant in Error, v. The Empire State Surety Company, Plaintiff in Error.
    Gen. No. 14,635.
    1. Insurance—effect of failure to give notice of disability. In the absence of a provision in a policy so providing, the failure of the insured to give notice of disability does not work a forfeiture of his right of action.
    2. Insurance—what not essential to liability for disability. Held, under the policy in suit that it was not necessary to liability that the injury suffered should “immediately and continuously prevent the assured” from performing any kind of business, etc.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge,- presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 8, 1909.
    Stein, Mayer & Stein, for plaintiff in error; Harry W. Rosenblum?, of counsel.
    No appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class in the Municipal Court, by the defendant in error against plaintiff in error, on an accident insurance policy, plaintiff had judgment for $100, to reverse which defendant prosecutes this writ of error. The defendant in error has not filed a brief. One of the provisions of the policy sued on, under the head of “General Agreements,” is the following:

“ (1) Written notice of death or disability shall be given to the Company at its Home Office in New York City, as soon as it is reasonably possible to do so. Affirmative proof of death, loss of limb or sight, or duration of disability must be furnished to the Company within two months from time of death, loss of limb or sight, or termination of disability. Legal proceedings for recovery hereunder shall not be brought within three months from date of filing proof at the Company’s Home Office; or brought at all after six months from time of death, loss of limb or sight or termination of disability. Claims not brought as herein required shall be forfeited to the Company. ’ ’

The clause in such provision, “Claims not brought as herein required shall be forfeited to the company,” refers only to the “legal proceedings” for recovery on the policy. The policy contains no provision mailing the giving of notice of disability a condition precedent to a right of recovery on the policy, or for forfeiture in case such notice is not given. Plaintiff testified that he was injured May 11, and he gave no notice thereof until June 25. No excuse for such delay appears in the evidence. The defendant contends that such delay was unreasonable and is a bar to recovery upon the policy. The cases cited in support of this contention are cases where the policies provided that payment should be made only if notice should be given, or that if the notice was not given within the prescribed time, the policy should be void, or the right of action thereon barred. This policy contains no such provision. The defendant might easily have provided in the policy that no action could be brought thereon unless notice of loss had been given. Where the policy contains such provision, the courts have enforced- it. We cannot hold, in the absence of such a provision, that the failure of the plaintiff to give notice of disability worked a forfeiture of his right of action on the policy. Coventry Insurance Association v. Evans, 102 Pa. 281.

The policy contains the following provisions:

“A. Accident Indemnity. In case the Assured shall, during the term of this insurance, sustain bodily injuries effected solely through external, violent and accidental means—suicide, sane or insane not included— which injuries shall, directly and independently of all other causes, result in loss of life, limb, sight or time, as herein defined, the Company will pay the amounts below specified;

(1) If these injuries shall immediately and continuously prevent the Assured from performing any and every kind of business pertaining to his occupation, the Company will pay the Assured the weekly indemnity for the time actually lost, for a period not exceeding two hundred weeks;

(2) Or, when the injury received as aforesaid shall not wholly disable the Assured, but shall disable him from the performance of one or more of the duties pertaining to his regular occupation, the Company will pay the Assured during the continuance of such partial disablement a weekly indemnity at the rate of $2.50 for each $1,000.00 principal sum for a period not exceeding twenty-six (26) consecutive weeks.”

Under these provisions, if the assured sustains a bodily injury which shall directly result in loss of time as defined in the policy, the company is liable. It is not necessary to liability that such injury “shall immediately and continuously prevent the assured” from performing any kind of business, etc.; for the company is liable for partial as well as for total disability—for total under clause 1, and partial under clause 2, above quoted. To recover for partial disability it is not necessary, under the provisions of the policy, that such injury “shall immediately and continuously prevent the assured” from the performance of one or more of the duties pertaining to his regular occupation; but for partial disability the limit of recovery is $2.50 for each $1,000 principal, for a period not exceeding twenty-six consecutive weeks. The plaintiff testified that he was injured May 11 in assisting to unload marble from a wagon for his employer ; that he worked the remainder of May 11, May 12, and the forenoon of May 13; that after he became able to go out he could not lift marble, and that if he could have gotten a job where he would not have to lift marble, he would not be paid the union scale of wages, and that the union would not allow him to work.. Clearly, plaintiff was not entitled to indemnity for total disability under the provisions of clause 1, above quoted, for his injury did not “immediately and continuously prevent him from performing any and every kind of business pertaining to his occupation.” At most his testimony tended to show partial disability for twenty weeks. He was assured for $1000, and the limit of his right to recover for partial disability, under the testimony and the provisions of clause 2, was $2.50 a week for twenty weeks, or $50. The evidence is insufficient to support the finding and judgment for $100.

Plaintiff testified that he was injured'in unloading marble at St. Luke’s hospital May 11. The clear preponderance of the evidence is that plaintiff did not work at St. Luke’s hospital May 11; that his employer did not deliver any marble at said hospital on that day; that on said day plaintiff worked for his employer at the Fisher building.

But if it be conceded that from the evidence the court might properly find that the plaintiff was injured about the time testified to by him, the question remains whether the evidence is sufficient to support a finding that the disability for which he recovered was the result of such injury. He testified that his injury was brought about by a slab of marble falling against bim May 11; that he worked until noon of May 13; that he was in bed from May 13 to May 26; that May 27 he walked some distance, and then, for the first time, saw a physician; that he told the physician that he had a pain in his hack; that he thought it was a cold because he had, about May 10, worked in a building at Halsted and Seventy-ninth streets, which was entirely open, and that the weather on said day was raw and cold; that after his conversation with the physician 11 he believed that he had a claim against the defendant upon his policy of insurance.” The physician testified that he found plaintiff in an exhausted condition; that said condition might have been brought about by overwork, but that he thought that the pain was brought about by a strain. There is no testimony tending to show against or upon what part of plaintiff’s body the slab of marble fell. Neither the plaintiff nor his physician testified to any sign of injury on the person of defendant, and their testimony is the only testimony tending to show that plaintiff’s disability was the result of an injury. Their testimony is not, in our opinion, sufficient to support a finding that plaintiff’s disability was the result of an injury.

For the reasons indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Baker

license: Public Domain

text:
    Nikolas Salopolous, Administrator, Appellee, v. Tom Chamales, Appellant.
    Gen. No. 14,643.

      Verdicts—when set aside. A verdict will be set aside on review where clearly and manifestly against the evidence.

      Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Mancha Bruggemeteb, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 8, 1909.
    Rehearing denied November 22, 1909.
    Weissenbach & Meloan, for appellant.

      Whitman & Horner, for appellee.
   Mr. Justice Baker

delivered the opinion, of the court.

In an action of assumpsit by appellee as administrator of the estate of Mike Drapanes, deceased, against appellant, plaintiff had judgment for $1738, and the defendant appealed. The declaration consists of the common counts with an affidavit that there was due to plaintiff from defendant $1800'. Defendant filed June 21, 1907, a plea of non-assumpsit with an affidavit of defense to all of plaintiff’s claim except $738. Mike Drapanes, the intestate, and the defendant came from the same place in Greece, and were friends there and in Chicago. Drapanes died in Chicago in July, 1898, while the defendant was on a visit-to Greece.

The contention of plaintiff was that when defendant left Chicago he owed Drapanes $1800', and the contention of defendant was that he then owed him but $800. It was admitted that defendant was entitled to a credit of $68 for money paid by him while in Greece to the father of the intestate at his request.

In the bill of exceptions is a statement that page 73 of a certain book kept by plaintiff’s intestate was introduced in evidence, but the page is not in the bill of exceptions. The book was kept in Greek, and there is no translation of the entries sought’ to be introduced, in the bill of exceptions, except testimony that on the page referred to was the name “Chamales,” and before it the Greek letter “theta.” It appears from the testimony that the letter “theta” stands for “Theodore,” and that the defendant’s Christian name, in Greek, is Theodore.

If it be admitted that the page in question was introduced in evidence, it could not, without, a translation, have been considered by the jury or influenced them in arriving at a verdict.

Excluding from our consideration the evidence relating to the book, and the evidence for the plaintiff consists of the testimony of Vretos and. Charles Drapanes as to conversations with the defendant soon after the death of the intestate and nine years before the trial. Vretos when asked to state the conversation, said, “I can’t a little clear English you know,” and the testimony shows that his knowledge of English was very limited. The substance of his testimony was that defendant said that he owed Mike Drapanes only $800; that he had $1800 from him, but he had given him before $1000. Charles Drapanes was asked, in chief, “Did Tom (the defendant) say anything as to whether he owed Mike any money or not?” and answered, “He says, $800, not $1800 but $800.” Defendant testified that when it was stated to him that he owed Mike Drapanes $1800 he said, “I do not. I owe $800;” that he said that Mike Drapanes gave him $500 and $300 a short time before defendant went to Greece, and that Drapanes had paid to defendant $1000 which he owed him about four weeks before that time. By agreement of the parties defendant was permitted to testify in his own behalf as to transactions occurring in the lifetime of Mike Drapanes, and testified that he loaned Drapanes $1500; that he paid defendant $500, and three or four weeks before defendant went to Greece Drapanes gave him the other $1000 that he owed him; that afterwards Drapanes gave defendant $500 and $300.

The statement of defendant testified to by Vretos, that he had from Drapanes $1800 was accompanied with the declaration that $1000' of said sum was in payment of money advanced by defendant to Drapanes. The admission was accompanied with a declaration which was an answer to the admission so far as the latter related to $1000 of the $1800 he admitted he received of Drapanes. The declaration, which was an answer to the admission, was not in itself unreasonable or improbable, nor was there anything in the nature of the transaction or in the evidence tending to impeach such declaration. The declaration was corroborated by the testimony of the defendant as to the transactions between himself and Drapanes.

We think that the evidence is not sufficient to warrant a verdict for $1738, and that the court erred in denying defendant’s motion for a new trial.

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

Reversed and remanded.


text:
    John Schikora, Plaintiff in Error, v. Joseph Platzky, Defendant in Error.
    Gen. No. 14,649.
    1. Appeals and errors—upon what finding must he predicated. It is the duty of the trial judge to decide a case on the evidence uninfluenced by his recollection of the testimony given by any witness on the trial of another cause.
    2. Appeals and errors—what not considered in determining propriety of finding. The appellate court will not look into the remarks of the trial judge set forth in the bill of exceptions to ascertain what led him to the conclusion that judgment should be given for the party in whose favor it was rendered.
    3. Appeals and errors-—what cannot he urged as error. A party cannot complain of the act of the trial judge as error which act was brought about by some action of his own.
    4. Appeals and errors—when finding of court not disturbed. The finding of fact by a trial judge will not be set aside as against the evidence unless clearly and manifestly so.
    Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 8, 1909.
    John W. Jedlan, for plaintiff in error.
    Joseph C. Pisha, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In an action of the fourth class brought by plaintiff in error against defendant in error in the Municipal Court there was a finding and judgment for the defendant, to reverse which judgment the plaintiff prosecutes this writ of error. The following is the 61 statement of claim” in the praecipe-.

“Plaintiff’s claim is for $500 with interest thereon from November 20,1904. Said $500 being balance due on the $1,500 paid by the plaintiff when a minor on an oral contract with the defendant, which contract was disaffirmed by the plaintiff.”

The first ground of reversal stated in the brief for plaintiff in error is that: “A court should not take notice, in deciding one case, of what may be contained in the record of another and distinct case, unless it is brought to the attention of the court by being made a part of the record of the case under consideration.”

It appears from the bill of exceptions that the trial judge at the close of the evidence expressed the opinion that the testimony of plaintiff and his father conflicted with their testimony on the trial of another ease tried before him, and expressed a wish that the stenographer’s notes of their testimony at the trial of the other case be read to him; that plaintiff then had their testimony written up and delivered a copy to the trial judge.

That it was the duty of the trial judge to d.ecide the case on the evidence in the case, uninfluenced by his recollection of the testimony given by any witness on the trial of another case, cannot be questioned. But we cannot look into the remarks of the trial judge, set forth in the bill of exceptions, to ascertain what led him to the conclusion that judgment should be given for the defendant.

It was the plaintiff who delivered to the trial judge the transcript of the testimony of plaintiff and his father given on the trial of another case, and he cannot claim that the act of the judge in accepting and reading such transcript was an error in procedure; neither can the remarks of the trial judge, in a case tried without a jury, be held an error in procedure.

Plaintiff in error further contends that the judgment is against the evidence. In considering the question we must presume that the judgment was based on the evidence given on the trial of this case. Defendant was the owner of a building in which he had a meat market. About November 26, 1904, plaintiff, then eighteen years old, entered into a verbal agreement with defendant to purchase of him said building and the stock then on hand in said market. Sunday, November 27, plaintiff went to the market and the stock on hand was weighed and a sum of money paid by plaintiff to defendant. Monday plaintiff took possession of the market and carried on the same until Wednesday night, when he decided to disaffirm the purchase on the ground that he was a minor. He then turned over to the defendant the stock then on hand and the defendant paid to him $1125'. As to the facts above stated, there is no controversy. Plaintiff in error contends that the prices agreed on were ,$7000 for the building and $300 for the stock; that he paid, defendant $1800; $1500 on the price of the building and $300 for the stock; that Wednesday evening when he announced his intention to disaffirm, defendant said he would retain $500 out of the money paid on the ■ price of the building; that the stock on hand was then weighed and its value found to be $125; that the defendant paid to him $1000 of the $1500 paid on the real estate and $125 for the stock on hand.

The defendant in error admits that the price agreed on for the building was $7000', and contends that the stock on hand was weighed and invoiced; that the value thereof according to the invoice was slightly in excess of $500; that the parties then agreed on the price of $500 for the stock, and the plaintiff paid defendant only $1500, $1000 on the purchase price of the building and $500 for the stock. The further contention of defendant in error is that when plaintiff surrendered the possession of the market to the defendant Wednesday evening, November 30, the defendant took back certain stock at the agreed price of $125, and the plaintiff took away the- remainder of the stock then on hand; that defendant then paid plaintiff $1125, $1000 in repayment of the amount plaintiff had paid him on the price of the building, and $125' for the stock which the plaintiff turned back to him.

The question presented for the decision of the trial judge was one of fact, not of law. The defendant had entered into an agreement with a minor, and when the minor elected to disaffirm, was bound to return to Mm the money received from him, less proper allowances for stock sold to the minor wMch the minor had disposed of, or then elected to retain, and this, according to his contention, was done.

The evidence was conflicting and we cannot say that the court might not, from the evidence, properly find the facts in accordance with the contention of the defendant in error, and therefore cannot reverse the judgment on the ground that it is against the preponderance of the evidence.

Errors are assigned on the rulings of the court on propositions of law submitted by the plaintiff, but none of such rulings are referred to either in the brief or argument of plaintiff in error, and therefore must be held waived.

Finding in the record no reversible error, the judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    Meyer Levinson, Defendant in Error, v. David T. Lyon et al., Plaintiffs in Error.
    Gen. No. 14,622.
    1. Master and servant—when doctrine of assumed risk applies. If the work performed by the servant is simple, the danger open and obvious and known to the servant each and every time he performs the same, the doctrine of assumed risk operates against him.
    2. Master and servant—when reliance upon promise to repair does not preclude operation of doctrine of assumed rish. If the device complained of is simple and the danger obvious and practically" understood by the servant, a promise to repair by the master does not prevent the operation of the doctrine of assumed risk.
    Action,in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Mancha Bruggemeyer, Judge, presiding. ■ Heard in this court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed November 8, 1909.
    W. G. Shockey and Mills & Irose, for plaintiff in error.
    White, Mabie & Conkey, for defendant in error; Lemuel M. Ackley, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is a suit for personal injuries. Defendant in error, hereinafter called plaintiff, was in the employ of the plaintiffs in error, hereinafter called defendants, and while engaged in closing certain iron shutters in the defendants’ wholesale house, had his right wrist cut by a piece of glass which fell out of the window. He had been opening these iron shutters every morning and closing them every night for about five months as a part of. his regular employment. The accident occurred just before the hour of six o’clock in the evening of August 27th. The defendant was then eighteen years of age. He states that the piece of glass fell out of a lower gash, when he “raised the window to take the stick out; ’ ’ that there were no ropes or pulleys on it; that “the frame was rotten and parts of the glass were broken, and some wholly missing and they had to keep the window up with' a stick.” He states that he had raised the window with his left hand to take the stick out, and after the window was raised “some glass fell out and cut my right hand.” No one else was present or saw the accident. The glass was “puttied in on the outside of the window sash.” The iron shutters when open were held back by iron rods about three feet in length, which were fastened to the window sill. When holding the window open the loose ends of these rods were inserted in sockets of the iron shutters, but when not so in use, they were leaned against the window casing.

It is contended in behalf of the defendants that the trial court erred in denying a motion made at the close of all the evidence to instruct the jury to find the defendants not guilty; that inasmuch as the plaintiff knew of the alleged defective condition of the window and sash during the whole time when he was daily raising and lowering the lower sash in order to open and close the iron shutters, and by his own testimony is shown to have appreciated the danger for at least two months before the accident, he assumed the risk and cannot recover. The plaintiff testifies to the effect, that before the accident he had “several times communicated with the foreman or assistant foreman” of the defendants with reference to these windows; that the first time he did this was two months before he was hurt; that he then told the assistant foreman that when he was “going to close the window a piece of glass fell out and almost struck me and I almost got hurt;” and that the foreman said, “You go about your work and I will have it fixed;” that “this was two months before I got hurt that this pane of glass fell out;” that at another time he heard a crash and going back there saw a pane of glass out in the floor in front of that north window; that he raised it np and stood it against the wall and then walked over and told the assistant foreman, “There is a pane of glass fell out;” and that the reply was, “You go about your work and I will see to it and have it fixed;” that this was two weeks before he was hurt; that about a week before the accident he saw the foreman go and look carefully at the window and that a day or so later the foreman sent the assistant foreman to look at it and that later the plaintiff told the foreman “I almost got hurt about two months ago,” but received no answer; that he heard the foreman however say to the assistant foreman, “We had better get some one to fix this window there in the toy department and get some one to putty them up before some one gets them.”

Plaintiff’s version of the conditions under which he was injured clearly shows that he was fully informed as to the condition of the window and all the appliances during the whole five months in which he had been opening and closing it daily; that for the two months preceding the accident at least he was aware of the danger of being hurt by falling glass, but that nevertheless he voluntarily continued to raise and lower the sash and to open and close the iron shutters as he had done from the beginning of his employment. This work was of the simplest character. Whatever danger there was, was open and obvious, and every time he raised or lowered the window sash the plaintiff acted with full knowledge of such danger and assumption of whatever risk was involved in what he was doing. McCormick Machine Co. v. Zakzewski, 220 Ill. 522-530, and cases there cited.

In a suit against an employer in a case of this kind it is incumbent upon the plaintiff to establish not only that the appliance by which he was injured was defective, and that the master had or should have had knowledge of the defects, but that the plaintiff did not know of the defect and had not equal means with the master of knowing. Goldie v. Werner, 151 Ill. 551-556.

It is sought, however, in the case at bar to exempt the plaintiff from the operation of the rule applicable in cases of assumed risk on the alleged ground that the plaintiff made complaint and that promises to repair were made. It is argued that the plaintiff was led to believe repairs were about to he made and therefore did not assume the risk for a reasonable time following the promise, and is so relieved from assumption of risk. See Morden Frog Works v. Fries, 228 Ill. 246-247-250. The first of the alleged complaints was made two months before the accident, and the second two weeks before. In each case, according to the plaintiff, the reply was in substance, “You go about your work and I will have it fixed. ” If it he considered that a sufficiently reasonable time following this alleged promise had not elapsed when the accident occurred to charge the plaintiff with assumption of risk on that ground, it is yet indisputable that the danger was open and obvious, apparent to the dullest understanding, and that the appliance was of the simplést and most familiar character. Plaintiff understood the danger of glass falling as clearly as the employer or any one could. In such cases the rule of assumed risk is not suspended. The reason for this is sound. It would be absurd to say that an employe in the case of a simple and familiar appliance does not assume a perfectly obvious risk which he clearly sees and fully appreciates, merely because the employer has said he will have it fixed. It is true the employe is exempted from the application of the rule in cases where the defect which the master has promised to repair is one where some particular skill and experience are requisite to enable the employe ‘1 to know and appreciate the defect and the danger incident thereto, or where machinery and materials are used of which the servant can have little knowledge.” Kistner v. American Steel Foundries, 233 Ill. 35-37; Webster Mfg. Co. v. Nisbitt, 205 Ill. 273-277, and eases there cited; Dauchy Iron Works v. Nevin, 130 Ill. App. 475-479. The present is not such a case and moreover there is no evidence that the plaintiff relied on the alleged promise to repair or was in any way misled by it and 'so induced to continue to close the shutters as he had been doing for months. Morden Frog Works v. Fries, 228 Ill. 246-251-252.

We are of opinion for reasons indicated that the court erred in denying defendants’ motion to instruct the jury to find the defendants not guilty. The judgment of the Municipal Court therefore must be reversed with a finding of facts.

Reversed with finding of facts.


text:
    Antonia Gorra, Defendant in Error, v. Marie L. Sobra, Plaintiff in Error.
    Gen. No. 14,629.
    . 1. Res judicata— effect of justice’s judgment. A judgment rendered by a justice of the peace is conclusive of all defenses that were made or which might have been made before such justice.
    2. Municipal Coubt—status of. The Municipal Court is a court of record and is not a “court of like jurisdiction” to a justice of the peace, as such phrase is employed in the statute which forbids action upon a justice’s judgment to be brought in a court “of like jurisdiction” until after the expiration of seven years.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed November 8, 1909.
    Statement by the Court. ' The facts which are undisputed were found by the Municipal Court as follows :
    ‘£ The court finds from the evidence that on the 21st day of November, 1896, Antonia Gorra recovered a judgment for the sum of $87 and costs of suit against the defendant Marie L. Sobra, in the justice court of Waldemar Bauer, then a justice of the peace in and for Cook county, Illinois; that on the 1st day of October, 1903, the said Antonia Gorra assigned said judgment recovered before said Waldemar Bauer, against the said defendant, Marie L. Sobra, to Ulrich Daniels; that on the 8th day of October, 1903, the said Ulrich Daniels in the name of said Antonia Gorra commenced a suit on said judgment, rendered by said Waldemar Bauer in the justice court of Q. J. Chott, then a justice of the peace in and for Cook county, Illinois, and on the 27th day of October, 1903, in said suit against the said defendant and in favor of said plaintiff, recovered a judgment before said Justice Chott for the sum of one hundred and twenty-two dollars and 90|100ths and costs of suit; that on October 2,1907, the said Ulrich Daniels assigned said judgment recovered before said Q. J. Chott on the 27th day of October, 1903 (which was a renewal of the said judgment rendered by the said Waldemar Bauer on November 21,1896), to Isadore Wolfsohn. This suit is brought on the judgment rendered by said Q. J. Chott for the sum of one hundred twenty-two dollars and ninety cents and costs of suit on said 27th day of October, 1903, against the defendant in this case.”
    Emil A. Meyer, for plaintiff in error.
    Wolesohn & Wallbrunn, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

It is sought to reverse the judgment of the Municipal Court upon the alleged ground that it does not affirmatively appear that said Justice Chott had jurisdiction over the parties and the subject-matter, that said judgment is void for want of such jurisdiction and may be collaterally impeached. The statute provides (sec. 16, par. 133, chap. 79 R. S.) that suit may be brought upon a judgment of a justice of the peace within ten years after its rendition and not afterwards; “Provided however that no such suit shall be brought upon said judgment in a court of like jurisdiction within the same county where such judgment may be rendered until the expiration of seven years next after its rendition.” It is urged that by force of this statute Justice Chott had no jurisdiction to enter judgment in a suit brought upon a judgment of Justice Bauer less than seven years after the latter judgment was entered. It seems to be the contention of defendant in error that the statute in question is a statute of limitation and should have been pleaded before Justice Chott, and that as it does not affirmatively appear to have been so pleaded, such defense was waived. No written pleadings, however, are required in a suit before a justice. The defense may have been made before the justice and the question decided by him, or it may not. But he had jurisdiction to decide it, and if he decided wrongfully the defendant in the suit had the right of appeal. Not having so far as appears exercised such right, the judgment became conclusive as to all defenses that were made or might have been made before the justice.

The contention is further made that the Municipal Court is “a court of like jurisdiction” with a justice .of the peace, and therefore that the statute referred to applies to the Municipal Court before which the present suit was brought within less than seven years after the judgment by Justice Chott was rendered.. This contention is untenable. The Municipal Court is a court of record and its jurisdiction as defined by statute is far from making it a “court of like jurisdiction” with a justice court. This is too plain for argument.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    E. N. Altland, Defendant in Error, v. The Atchison, Topeka & Santa Fe Railway Company, Plaintiff in Error.
    Gen. No. 14,637.
    1. Common caebiebs—when exemption from liability for negligence sustained. If a special contract for exemption from liability for ordinary negligence is made in a state where it is valid and enforceable, such contract will be enforced in this state.
    2. Contracts—by what law governed. The validity of contracts will be determined according to the law of the state where made.

      Tort. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed November 8, 1909.
    Statement by the Court. —This is a suit brought by the defendant in error—plaintiff below—against the railway company—defendant below—to recover for alleged loss on a carload of plums, occasioned it is claimed by the failure of the defendant to stop and transfer said car—originally shipped and then on its way to New York—at Streator, Illinois, and send it to Chicago in accordance with an order to that effect from the plaintiff.
    The defendant introduced in evidence an instrument called a “general indemnity bond,” executed by the plaintiff, dated January 22, 1903, containing a clause as follows:

      “2. In all cases where at the request of said principal, any goods shall be diverted from their original route or destination, or consignee changed, or inspection permitted, said Santa Fe System and said other companies operating connecting lines as aforesaid are hereby by the undersigned and each of us fully indemnified and saved harmless from and against any and all liability, suits, costs, damages, expenses, losses or claims for loss or damage of every kind and nature which might be made against or suffered by the said Santa Fe System, or by said other companies operating connecting lines, on account or by reason of the granting of any such request or in any way connected therewith, including any bona fide failure or delay to accomplish such diversion, change of consignee or inspection.”
    The carload of plums was shipped August 29, 1903, from Pasadena, California, to New York over the Southern California Railway to Barstow, California, and from that point over the railway of the defendant. Eight days later it is said the car reached Streator, Illinois, on its way eastward. Before the car reached Streator and on September 5, 1903, the plaintiff went to the office of the commercial agent of the defendant at Los Angeles and signed an order, which is in evidence and is as follows:
    “SOUTHERN CALIFORNIA RAILWAY COMPANY.
    Request for Changes in Shipping Instructions or Delivery Without Surrender of Original Bill of Lading.
    Santa Fe.
    ------ 9—5--1903.
    Southern California Railway Company.
    Dear Sir:—
    On the 29th day of August, 1903, car No. 4656, initial S. F. R. D.
    Loaded with Plums, was shipped by us from Olivewood Sta. consigned to us
    at New York City, State of N. Y.
    Via Santa Fe.
    Please endeavor to accomplish the following changes with respect to the above, viz:
    Change consignee to Barnett Bros.
    Change destination to Chicago, Ill.

      Change routing to permit inspection and keep car fully iced to destination.
    And in consideration of the above changes,-hereby agree to hold the Southern California Railway Company, and each and all companies or corporations over whose line or lines of road the above shipment may be made, or by whom delivery may be made, or change accomplished, free from all liability and claims for loss or damage of any kind whatsoever, whether arising out of or consequent upon the above recited changes being’ accomplished, as requested, or the inability or failure of said company or companies from any cause to accomplish the said change, and to indemnify and save harmless the said company or companies, and each of them, against any loss, or damage, cost, expense, liability, suits or claims which may be made, brought or grow out of such changes being made as above requested, and to pay any and all additional charges made by any railroad company or companies connecting with the said Southern California Railway Company for accomplishing the said changes, and we further agree that if the Southern California Railway Company, or any of the companies above referred to under instructions herein shall have made delivery without surrender of Original Bill of Lading, to obtain and deliver the said document within a reasonable time to the agent of the Railway Company upon whom this request for diversion was made.
    Altlahd Fruit Co.,
    By E. N. Altland, Mgr.”
    This diversion order was received by the agent of the California Railway Company and of the defendant, and the clerk in charge of such matters ascertained about where the car in question was and telegraphed instructions to divert the car as requested in the order, to the agent of the defendant at Streator, Illinois, and sent a duplicate of the telegram to another employe of the defendant at Chicago. These telegrams were sent September 5, 1903. The telegram was received by the agent of defendant at Chicago, but the copy sent to the agent at Streator, whose business it was to see to the diversion, was not received at all, and this agent knew nothing of it until the car had passed Streator and was on its way to New Tork, where it arrived in due time in accordance with the original shipping directions given when the fruit was delivered to the defendant for shipment. The plaintiff seeks to recover for the alleged difference between the value of the goods in sound condition at Chicago, the place to which they were ordered to be delivered, at the time when they should have reached that place and the value of the goods at New Tork, the place to which they were shipped. The case was tried in the Municipal Court before a jury and a verdict returned in favor of the plaintiff. Judgment was entered in plaintiff’s favor for $220.55, from which this appeal is prosecuted.
    Egbert Dunlap, Lee F. English and Jambs L. Coleman, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Justice Freeman

delivered the opinion of the court.

The first of the grounds upon which defendant seeks to have the judgment of the Municipal Court reversed is that the bond and agreement executed by the plaintiff and in part set forth in the foregoing statement, are agreements to indemnify and save harmless the defendant against any liability, claim or suit arising out of a failure to accomplish the diversion of the car in question, and that these are valid releases which are a bar to the present suit.

By one of these instruments the defendant is fully indemnified against all suits and claims for losses of every kind and nature by reason of granting any request for diversion of goods from their original route or destination, “including any bona fide failure or delay to accomplish such diversion, change of consignee or inspection.” By the second instrument, in which the request is made in the present case that defendant will “endeavor to accomplish” the changes, the plaintiff agrees as a part thereof to save the defendant harmless from any liability and from claims of any kind whatever arising from “the inability or failure of said company or companies from any cause to accomplish the said change.” This phraseology is explicit, and if these agreements are valid this suit cannot be maintained. It appears that under sections 2174-5-6 of the California civil code a common carrier is permitted to limit its liability by special contract for ordinary negligence. That there was an effort made in good faith to “endeavor to accomplish” the transfer is, we think, apparent from the evidence. One copy of the telegram directing the transfer reached the agent in Chicago in due time. The duplicate copy attempted to be sent to the agent at Streator failed to reach its intended destination; but so far as appears the same effort was made and purpose shown to send it as in the ease of the copy which reached the Chicago agent. The effort having been made in good faith to endeavor to accomplish the diversion of the car as requested by the plaintiff, the question is whether these agreements made in California, and valid under the provisions of the civil code of that State, are enforceable in the case at bar in this State. . The sections of the California civil code referred to have been considered by the Supreme Court of that State. Among such cases are Michalitschke v. Wells Fargo & Co., 118 Cal. 683-689; Coit v. Western Union Tel. Co., 130 Cal. 657-661, and cases there cited, and Donion Bros. v. Southern Pacific Company, 151 Cal. 763-768. We are of opinion that these cases are conclusive as to the validity in California of contracts such as are here under consideration. It is said in the last of these cases above cited (p. 768) that section 2175 of the California civil, code “prohibits the carrier from entering into any contract in anticipation of gross negligence exonerating itself from liability therefor,” but that (p. 770) “so far as ordinary negligence is concerned the rule at common law has been abrogated by our code (sec. 2174) to the extent that the shipper and carrier may now contract for the purpose of limiting the liability of the latter therefor. The prohibition of the common law against a carrier limiting his liability for any kind of negligence is declared in this State by section 2175 only to apply to the limitation for gross negligence.” The construction by the California court of its civil code is we think applicable in the case at bar and controlling here as to the validity in that State of the agreements under consideration. The plaintiff’s assent thereto was manifested, as section 2176 of the California civil code requires it to be, when the instrument makes such “modification of the carrier’s obligations as in the present instance, by his signature to the same.”

Such being the law of the State in which the contract was made, and not having been made so far as appears “with a view to the laws of any other State, it must be governed by the law of the State where it was made.” Coats v. C. R. I. & P. Ry. Co., 239 Ill. 154-161. In that case the question is carefully considered and the cases in this State applicable are reviewed. The conclusion of the court on this matter is thus stated (p. 164): “Inasmuch therefore as the contract under the construction contended for by appellant, was partly to be performed in Iowa, it must, as to its validity, nature, obligation and interpretation be governed by the law of Iowa. ’ ’ In the case at bar the contract must in like manner be governed by the law of California, which exempts the defendant from liability under contracts such as those here involved.

Other questions are presented in the briefs, but in view of the conclusions stated, it is not necessary to consider them. The judgment of the Municipal Court must be reversed with a finding of facts.

Reversed loith finding of facts.


text:
    John C. McCoy et al., Plaintiffs in Error, v. McAnsh, Dwyer & Company, Defendants in Error.
    Gen. No. 14,646.

      Evidence—conclusions of witness not competent. A question which calls for the conclusion of a witness is improper and an objection thereto should be sustained.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 8, 1909.
    Rogers & Mahoney and Chilton P. Wilson, for plaintiffs in error.
    D ’Ancona & Pelaum, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action of forcible detainer to recover possession of a portion of the space on the second floor of a building, 168 Wabash avenue, Chicago, alleged to have been conveyed to the plaintiff by the lease ih evidence, but possession of which was not delivered by the lessor to the plaintiffs, but was subsequently given to the defendants.

The lease in question was made by Importers & Manufacturers Company April 11, 1907, for a term beginning May 1, 1907. The lessees were absent from the city at that time and did not take actual possession of the leased premises until the latter part of August or the first of September following. They paid the rent, however, regularly, and no question of rent is involved. The written lease was introduced in evidence by the lessees, and describes the premises leased as “all that space in the second floor of the building known as number 164-166-168 Wabash avenue that lies west of a lath and plaster partition to be erected approximately forty-nine (49) feet east of the west building wall, running in a direct line from the north to the south building wall and extending from floor to ceiling, excepting all the space used for elevators, hallway and stairways, and as shown by the diagram hereto attached, which is hereby made a part and parcel of this lease.” The diagram referred to contains arrows showing the limits of the space leased and other lines tending to define the space in controversy. This space is a small room apparently taken off of the west end of the hall at a point west of the elevators. At the time the lease was executed this space was partitioned off by a door from the hall and also partitioned from the room north of it. The door separating it from the hall and elevators east of the space or small room in question was when open slid back southward alongside of the elevator space, and when closed shut off the small room in question from the hall. On its north side the partition separating the room from the rest of the space described in the lease was constructed to the height of about eight feet of wood and the upper part to the ceiling was of glass.

Subsequent to the execution of the lease above mentioned to plaintiffs, the same lessor on the 18th of April, 1907, executed a lease to the defendants, McAnsh, Dwyer & Co., of the entire second floor of the building known as 170 and 172 Wabash avenue, except such space as was occupied by stairways and elevators. This building apparently joins the building in which are the premises leased to plaintiffs in which is the small room or space cut off from the hallway and now in controversy. The south wall of the space, which for convenience we designate as the small room, was the “south building wall” described in the lease to plaintiff as the south limit of the space leased to them. When the defendants took possession of the premises covered by the last mentioned lease the plaintiffs had not moved into the building and the defendants took possession also of the space or small room in question and made some changes connecting said room with the premises described in their own lease. They continued to use and occupy this room and were in possession and occupancy of it at the time of the trial.

There was some conflict in the evidence as to conversations between representatives of the various parties and as to admissions said to have been made by the president of the lessor corporation. The claim was also advanced by the attorney acting nominally at least for and representing the defendants, that the plat attached to the plaintiffs’ lease had been changed after its execution by the addition of certain line or lines, tending to show that the space in question was enclosed from the hall. This claim is not supported by the evidence. The controversy is purely one of fact. It appears that the plat attached to plaintiffs’ lease differs in this respect from a plat attached to the copy of the lease in possession of the lessor, but the evidence tends to show that such difference was never called to the plaintiffs’ attention and that the lease delivered to them is in the same condition in that respect as when they received it. It thus appears from the lease itself that the space in dispute was in fact an enclosure or small room and not a part of the hall at the time the lease was made. It is true that the president of the lessor corporation was erroneously permitted over objection to state that the room in question “was the west end of the hallway.” The question called for a conclusion of the witness and the objection to it should have been sustained. We think the room is clearly shown to have been an enclosure by itself at the west end of the hall and separated from the hall by a sliding door. It further appears from the lease itself and the plat attached to and made a part thereof, that this room was included in the description of the space thereby leased to the plaintiffs. The lease describes the space demised to plaintiffs as- “running in a direct line from the north to the south building wall ’ ’ excepting the space used for elevators, hallway and stairways, "and as shown by the diagram hereto attached.” Without including the room in question the terms of this description cannot be complied with. We conclude therefore that as the space in controversy was included in the description of the lease and was not a hallway and therefore not excepted from the space demised, the plaintiffs are entitled to its possession.

The judgment of the Municipal Court will therefore be reversed, and judgment will be entered here for possession of the premises in question.

Reversed and judgment here.


author: Mr. Justice Freeman Mb. Justice Baker

text:
    Henry Lederer et al., Plaintiffs in Error, v. Jared W. Fox et al., Defendants in Error.
    Gen. No. 14,656.
    1. Landlord and tenant—what not nuisance. A landlord is not liable for injury to the property of a tenant caused by the overflow of water from premises occupied above by other tenants, such overflow resulting from a faucet which had not been provided with a waste or overflow pipe or other means for carrying off the water.
    2. Landlord and tenant—what not alterations. Notwithstanding a provision in a lease prohibiting a tenant from “making alterations, amendments or additions to the building,” such tenant has the right to place locks upon his premises.
    Baker, J, dissenting.

      Tort. Error to the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 8, 1909.
    Statement by the Court. —This is a suit in which the plaintiffs seek to recover for loss alleged to have been caused by negligence of the defendants in permitting an overflow of water upon their premises which ran down and damaged merchandise of the plaintiffs, consisting of wall paper, stored on a floor below.
    There is a stipulation as to facts. Plaintiffs were tenants of the Vescosity Oil Company, which leased to them the front room on the second floor of the building known as 21 and 23 River street, Chicago. The wall paper conceded to have been damaged was stored in the room so leased. The said Oil Company had also leased to the defendants the fourth floor of said building, which was used by defendants for the storage of onions. Plaintiffs had no keys to said building and could obtain access to the premises leased to them only when the doors were unlocked by the lessor. There were other tenants in the building who—including the defendants —had keys to the front door. There was an elevator in the rear of the building which was accessible from each floor and was used in common by all tenants who so desired, each person so using the elevator operating it for himself. There were no locks upon the doors from the stairways leading to the floors, and no locks upon the doors leading to the defendants’ premises, either from the elevator or from the stairway. These doors were not fastened, and any one in the building could enter the defendants’ premises at will.
    Upon these premises leased and occupied by the defendants there was a faucet connected with a water pipe running horizontally along the wall about six feet above the floor. This faucet was on the east wall of the building and about 20 feet from its front wall. Under it stood a barrel, which was partly filled with water when the defendants took possession of the premises. There was no waste pipe or overflow pipe or other means for carrying off water from either the faucet or the barrel beneath it. This was the condition when the defendants took possession under their ' lease, and no change seems to have been made in the building in this or other respects while the parties to this suit were tenants. Defendants’ employes visited defendants’ premises on the fourth floor from time to time. It is stipulated that certain employes would testify that they never turned on the water from said faucet nor used water therefrom for any purpose. One of said employes testified that he was in the building Saturday morning, January 26,1907, to look at the onions and see if they were frozen, and was again there about 4:30 p. m. of the same day for the purpose of placing thermometers there; that he left the premises about 4:45 p. m., that he did not touch the faucet while there and had never done so, and that no water was running therefrom when he left.
    It appears that about 2:30 a. m. of the next day— 'January 27,1907—water was discovered by the fire insurance patrol running out from the first floor of the building. Upon investigation a detective who was notified discovered that the faucet referred to within the premises occupied by the defendants was open and that water was running therefrom. He turned off the water and stopped the flow. The water from the faucet in question ran through from the fourth floor downward and caused the damage complained of to the plaintiffs’ wall paper stored upon the plaintiffs ’ premises on the second floor of the building. It is agreed that the plaintiffs will testify that the fair market value of the paper so destroyed was $315.85. The court found in favor of the defendants and gave judgment accordingly. To reverse that judgment the plaintiffs prosecute this , writ of error.
    Israel S-hbimski, for plaintiffs in error.
    Wells & Kelly, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Objection is made in behalf of the plaintiffs to the admission in evidence of certain leases, and the admission of evidence tending to show that employes of the landlord and of other tenants visited the various floors of the building. "We deem it unnecessary to dwell upon these objections. The questions involved in this case have been fully considered in Chicago Telephone Co. v. Com. Union Assurance Co., 131 Ill. App. 248. In that case it was “insisted that a tenant is liable to third persons for damages resulting from the defective condition of the premises of which he has notice, or from his negligent use of them, regardless of the duty to repair as between tenant and landlord.” The contention in the case before us is of like character. In that case we said (p. 252): “If a tenant is in exclusive control and occupation of a wash room in which an overflow occurs in consequence of the tenant’s negligence or that of its employes having free access to" such wash room, then it is not the landlord but the occupant of the premises who must be deemed responsible. Warren v. Kauffman, 2 Phila. 259.” It is no doubt true in the case at bar that the absence of an overflow or waste pipe in connection with the faucet in question was a condition for which the landlord was responsible. But the damage in this case was caused primarily by negligently permitting water to run from the faucet and flood the plaintiffs’ premises. This and not the absence of a waste pipe was the proximate cause of the damage.

We held in the case above cited that where the evidence tended to show the damage was caused by an overflow of water from a wash room exclusively occupied and controlled by the defendant, the law raises a presumption that the damage was due to the negligence of the defendant, and that the burden was on the defendant to show by a preponderance of the evidence that the injury was not due to such negligence. In the case at bar there is evidence tending to show that the water was not turned on by any of the employes of the defendants. But the undisputed evidence also shows that other persons in the building had unrestricted access to the defendants’ premises and to the faucet from which the water flowed that caused the damage. The premises where the faucet was situated were exclusively occupied and controlled by the defendants. There is no evidence tending to show how the faucet • was opened, but under the circumstances the law raises a presumption that the defendants failed to exercise due care to prevent its use by its employes or others in such a way as to cause the damage complained of, and the burden of proof is upon the defendants to show by a preponderance of evidence that the damage was not due to such negligence. As in the case above cited, so here, the burden was we think upon defendants to disprove the inference of negligence arising from its control of the faucet and the opportunity of access to it afforded outsiders. It was the clear duty of the defendants so to control the use of their premises and appliances as to prevent injury to other tenants of the building from a negligent use of such premises and appliances.

It is argued in behalf of the defendants that the faucet without a drain pipe was a nuisance and that the premises having been leased with a nuisance upon them, by means of which the injury complained of was inflicted the owner or landlord, and not the defendants, is liable. We cannot agree with this contention. The faucet itself cannot be deemed to have been a nuisance. If properly used and guarded the faucet was not of itself objectionable. Whether a nuisance or not depended on the manner in which it was used.

Nor do we concur in the contention that the defend- . ants could not place locks on its premises under the provisions of its lease without making alterations, amendments or addition to the building,” prohibited by the lease. If such contention could be deemed valid, the defendants nevertheless were under no obligation to become tenants and occupy premises in which they could not protect themselves, their premises and property by such ordinary precautions. They assumed control of the premises under the lease and assumed therewith the obligations which such control and possession involved.

For the reasons indicated the judgment of the Municipal Court must be reversed and judgment will be entered here in favor of the plaintiffs for $313.85 agreed upon as the fair market value of the wall paper belonging to the plaintiffs stored on their premises and damaged.

Reversed and judgment here.

Mb. Justice Baker

dissenting. I am unable to concur in the finding and judgment in this case.

The floor of the building leased to and occupied by the defendants was used only for storage purposes. Into that room no person had a right to go without the permission of the defendants. There was no access to that floor from the street but only by means of an elevator and stairways leading from the lower floors of the building. The fact that the doors leading from the elevator and stairway to defendants’ premises were not locked was not an implied invitation to any one to enter defendants’ premises, and the person entering the same without the invitation or permission of defendants would be a trespasser.

Conceding that the burden of proof was on the defendants to rebut the inference of negligence arising from the fact that water ran from a faucet on their premises and found its way to the premises of the plaintiffs on a lower floor, and damaged their goods, I think such inference was rebutted in this case by the stipulation that, “the defendants and their employes who entered said premises will testify that they never turned on said faucet or used water therefrom for any purpose whatsoever at any time.” Under this stipulation it cannot be held that the defendants or any of their employes were guilty of negligence in respect to the faucet. The finding of negligence by the majority of the court must therefore be based on the theory that the failure of the defendants to keep the doors leading to their premises locked was a negligent use by them of their premises, which made them liable for the negligence of a stranger who may have entered said premises without their permission or invitation and turned on the water for purposes of his own. Conceding further that the defendants might have placed locks on the doors leading to their premises, and there: by have made entrance thereto by a trespasser more difficult, without violating the terms of their lease, I do not think that their failure to place locks on said doors and keep them locked, was a negligent use of their premises which made them liable to the plaintiffs for the wrongful act of a trespasser.


author: Mr. Presiding Justice Myers

text:
    Mary Sargent, Appellee, v. John B. Maxwell, Administrator, Appellant.

      ■Witnesses—who incompetent hy virtue of interest. A party having a pecuniary interest in the result of a controversy with an administrator, is incompetent in his own behalf.
    Objections to administrator’s report. Appeal from the Cricuit Court of Wabash county; the Hon. J. R. Creighton, Judge, presiding. Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed June 15, 1909.
    Rehearing denied October 28, 1909.
    E. B. Green, Theodore G. Bisley and P. J. Kolb, for appellant.
    George P. Bamsey, for appellee.
   Mr. Presiding Justice Myers

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court directing the appellant, administrator of the estate of Marshall Sargent, deceased, to pay to the widow of the deceased $126.40, the balance found to be due the estate upon final report and accounting by the appellant as administrator. From the inventory on file the only property of value owned by Marshall Sargent at the time of his death was a policy of insurance issued by the Continental Casualty Company, which policy the appellant claims to have been pledged to him as security for the payment of a debt which has not been paid. Suit was brought by appellant, as administrator, against the insurance company and in that action he recovered judgment and collected the sum of $215.05. In his report to the County Court, as administrator on final accounting, appellant charges himself with $215.05, collected from the insurance company, and claims credit by items of expenditure (not contested), amounting to $88.65, which would leave a balance of $126.40, the sum ordered by the court to be turned over to the widow on her award of $760’. In his report appellant claims the further credit of $112.30, being the amount of his bill for which he insists that the insurance policy was" pledged to him as security. It is to this claim that the widow-files objections which the court sustained.

Throughout the administration the policy of insurance was treated by the administrator as assets of the estate, subject to the payment of appellant’s claim against Sargent for services rendered. Action was brought against the insurance company and judgment was recovered by the appellant, as administrator, and the proceeds were received for and on behalf of the estate. The appointment of the administrator and proceedings thereafter by appellant were to foreclose and realize upon a pledge which he claims to have been made by Sargent in his lifetime. The controversy is, therefore, between appellant and. the estate as to appellant’s alleged lien and the amount of his claim. It was within the equitable jurisdiction of the Probate Court to which appellant voluntarily submitted for the adjudication of his rights. In such controversy he could not act in the double capacity of administrator and claimant, nor could he, as administrator, arbitrarily allow himself, as claimant, the amount of Ms own bill against the estate. It is, and was, conceded all the way through the administration, that the policy of insurance was property belonging to the estate. Administration proceedings were instituted, as we understand the record, on petition of appellant, and for the very purpose of securing to the estate of Marshall Sargent the proceeds of this policy; and so far as the actual possession of the policy is concerned, the legal effect of what was done, would be to charge appellant, as administrator, with the possession of the policy and with the proceeds realized on judgment recovered. In this condition of the record, it devolved upon appellant to establish his lien and his claim by competent evidence, which he did not do. As already indicated, it is not a controversy between appellant and the widow, but one between appellant in his individual capacity and the appellant in his administrative capacity, representing the estate, the order of the court being in effect that appellant, the administrator, has a balance in hand on final accounting to wMch appellee, the widow, is entitled on distribution. Clearly under the statute he was not a competent witness in his own behalf, and had a temporary administrator been appointed to represent the estate, as required by law in such case, he could not properly have been permitted to testify. He filed no claim and proved no claim against the estate and was not, therefore, entitled to the credit or deduction of $112.30, the claimed balance due him on account. In answer to appellant’s contention that possession of personal property is evidence of ownership, it is to be said that the presumption of ownership from possession would not avail in tMs case for the reason that on its face the' policy of insurance was the property of Marshall Sargent, being, by its terms, payable to him, and never having been assigned. In such case, and in this species of property, the mere possession does not give rise to the presumption of- ownersMp. Without the testimony of appellant there is no evidence that his possession was other than as administrator.

Upon the record presented we are of opinion that the Circuit Court did not err in its rulings and that under the evidence the judgment must be affirmed.

Affirmed.


author: Per Curiam.

text:
    Catherine Healy, Administratrix, Appellee, v. Mobile and Ohio Railroad Company, Appellant.

      Verdicts—when set aside as against the evidence. The appellate court will reverse a judgment manifestly against the preponderance of the evidence even though a number of juries may have found the same way.
    Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Movers, judge, presiding. Heard in this court at the August term, 1908.
    Reversed and remanded.
    Opinion filed March 4, 1909.
    Rehearing denied October 28, 1909.
    Lansden & Lansden and John E. Hamlin, for appellant.
    F. C. Smith and M. Millard, for appellee.
   Per Curiam.

Appellee brought this suit to recover damages for the death of her husband, the intestate, William Healy, which occurred April 21, 1898, while he was in the employ of appellant as a switchman in its yards, at East St. Louis, Illinois.

The case has been tried five times with a jury in the trial court and is now before this court for the fourth time. The former opinions of this court, to which we refer for the facts, are reported in 100 Ill. App. 586, 109 Id. 531 and 122 Id. 275.

When the case was before ns the second time we said, “After a careful examination of the record we are constrained to hold that the verdict is so manifestly against the weight and preponderance of the evidence, as to justify the conclusion that it must have been the result of prejudice, passion, sympathy or mistake.” On the next trial by stipulation between the parties, the testimony of witnesses examined at the preceding trial was read in the trial court from the bill of exceptions filed on the occasion of the second appeal to this court, and in addition there was heard the testimony of six new witnesses, two on behalf of appellee and four on behalf of appellant. The trial, as on previous occasions, resulted in a verdict for appellee and in disposing of the appeal in this court, we said, “It is unnecessary for us to discuss the additional testimony further than to say that its effect upon the whole was to strengthen the defense made by appellant. * * * In fact the verdict at the last trial was so manifestly against the overwhelming weight and preponderance of the evidence, as necessarily to lead us to the same conclusion in reference to it that we reached, when the case was last before us,” and the judgment was again reversed and the cause remanded. When the case again reached the trial court, another stipulation was entered into by the parties, whereby it was agreed, “that when said cause is tried it shall be tried upon the same evidence which was introduced on the last trial of said cause in said City Court and that either party to said cause, shall have the right to read on the trial of said cause from the bill of exceptions made up on the last trial of said cause, the testimony of any witness or witnesses contained in said bill of exceptions.” The case was again tried in the City Court of East St. Louis and appellee again recovered a judgment, which was set aside by the court on appellant’s motion and a new trial awarded. At the August term, 1907, of said court, the case was again tried and, under the stipulation aforesaid, the testimony of the witnesses was read from the bill of exceptions filed on the occasion of the last preceding appeal to this court. At the conclusion of the reading of the testimony for appellee, from said bill of exceptions, she called as a witness a person who had never been a witness in the case upon any of the previous trials. Upon objections made by counsel for appellant, the court refused to permit said witness to testify in the cause, for the reason that the parties were bound by said stipulation and could not introduce any evidence not included in the bill of exceptions therein mentioned. The trial again resulted in a verdict in favor of appellee and the record is again brought to this court by appeal for review. The case comes before us now on the same record, so far as the evidence is concerned, as was presented to us upon the last appeal. In fact no questions appear to be raised by counsel on this appeal, which have not been already passed upon by this court. No new argument is presented why our views in reference to the evidence in the case should differ from those we have hitherto entertained, nor do any reasons for such change appear to us from the record. We therefore have no inclination, if indeed it were proper, to change or modify the views we have hitherto expressed, concerning the merits of identically the same case.

The judgment of the court will accordingly be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Higbee

text:
    The People of the State of Illinois, Appellee, v. C. H. Trout et al., Appellants.
    1. Pleading—when non est factum inappropriate. A plea of non est factum is not a proper plea to interpose to an action upon a bond ■which was returned to and filed in a court of record so as to become a part of the records of such court.

      2. Bastardy-—effect of judgment in, upon right of action upon forfeited bond for appearance. There can be only one recovery under the Bastardy Act for the cause set out in the complaint and when the defendant appears in court and a recovery is had against him and he submits to the judgment of the court, either by paying the money or giving the bond provided for by the statute and the order of the court, or in default of the same is committed to jail, the object of the statute so far as the charge of bastardy is concerned has been accomplished and another judgment should not be rendered against the party accused and his bondsmen for an amount which includes in effect a judgment for the same cause for which the former recovery was had; but damages may have accrued by reason of the failure of the accused person to appear as provided for by his bond for appearance in court, for which, in case of forfeiture, judgment may properly be rendered against him.
    '3. Recognizances—what sufficient to sustain judgment. The introduction of the bond which has been filed in court and become a part of its records, together with a judgment of forfeiture entered thereon, is sufficient to sustaiñ a judgment.
    4. Recognizances—construction of condition. If the condition of the bond is that the defendant is to appear at the next county court to answer to the charge and not to depart the court without leave, the obligation of the principal is that he remain in attendance on court during the whole term unless excused from so doing by the court.
    Action in debt. Appeal from the Circuit Court of Marion county; the Hon. Samuel L. Dwight, Judge, presiding. Heard in this court at the August term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Rehearing denied October 28, 1909.
    W. Gr. Murphy and J. A. Watts, for appellants.
    Jure C. Smith, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

This was a suit in debt by appellee against appellants and grew out of a forfeiture of a bastardy bond, entered against appellants at the November term, 1907, of the County Court of Marion county.

The declaration charges that on June 27, 1907, appellant, C. H. Trout, was arrested on a charge of has-tardy made against Mm by Inez Crane and brought before Seymour Andrews, a justice of the peace of said county; that upon a hearing the justice found there was probable cause to hold him on the charge and ordered that he give bond for his appearance at the next County Court in the sum of $750, conditioned according to law; that he failed to give bond and was committed to jail, but afterwards on July 25, 1907, he appeared before two justices with his sureties, Anthony TenEyck and John Langenfeld, who are also appellants here, gave the bond required and was released from custody. The bond is set out in full in the declaration, is in accordance with the statute and states as the condition “that if the bounden C. H. Trout shall appear at the'ne^t County Court to be held in and for said county of Marion and answer to the said charge and not depart the court without leave, then this obligation shall be nnll and void,” etc.

The declaration further avers that at the following November term of said County Court, begun on the 11th day of November, 1907, said Trout did not appear, whereupon the trial of said cause was reset by the court for the 19th day of November, 1907, which was one of the regular judicial days of said term of court; that the cause was not reached on said last mentioned date but on the following day, November 20, 1907, said cause was called for trial, the people of the State of Illinois appearing by the State’s Attorney of the county, but that said Trout did not appear nor did any person appear for him; that he and the sureties on his bond were called in open court and failing to appear and answer, a judgment of forfeiture was taken upon the recognizance, whereby an action accrued to appellee, to recover from appellants the said sum of $750:

A demurrer to the declaration was overruled and three pleas filed, (1) non est factum, (2) nul tiel record and (3) a special plea setting up as a defense the appearance of Trout at a subsequent hour on the day on which default was entered on the bond, his trial and a judgment against him. A demurrer was sustained to the first and third pleas and trial was had before the court, a jury being waived, on the plea of nul tiel record.

The only evidence introduced was the original bond and the record of the County Court in the forfeiture proceedings and subsequent trial. The record recites “This cause is called. Comes the people by June C. Smith, State’s Attorney. Defendant nor either of his sureties on bond of recognizance appearing, but makes default which is entered of record. Whereupon the defendant C. H. Trout and his sureties Langenfeld and Anthony TenEyck being three times solemnly called, came not nor any one for them, but make default herein which is taken and entered of record and recognizance declared forfeited. And now on this day, to-wit, November 20, 1907, comes the said C. H. Trout defendant herein and files his motion to set aside default of bond, etc., which motion is argued before the court and denied and the parties being now present in court and by counsel and ready for trial it is ordered by the court that a jury be called.” The record then recites the trial, a finding of guilty against the defendant by the jury, with judgment against him for the amount and to be paid in the manner provided by statute, with an order that he give bond in the penal sum of $600 or in default thereof be committed to the county jail.

Appellants abided by their first and third pleas and here insist that the court erred in sustaining the demurrer to the same. The first plea, which was non est factum, was not a proper plea, for the reason that the bond was returned to and filed in the County Court and became a record of that court.

In Johnson v. The People, 31 Ill. 469, it is said: “This is a scire facias upon a recognizance taken before a justice of the peace and duly certified to the Circuit Court of Jo Daviess county. When so certified it became a record of that court; consequently the plea of non est factum was not a proper plea to the action.”

In Mooney v. The People, 81 Ill. 134, which was a scire facias upon a forfeited recognizance, a plea of mil tiel recognizance was interposed. In that case the bond had been taken and approved by the sheriff and returned to the Circuit Court, and it was said that the returning of the bond by the sheriff to the clerk’s office and the filing of it in said office thereby made it a record of the Circuit Court, and further: “We perceive no error in this judgment. It may be observed that the plea of nul tiel recognizance was not a proper plea in this action.” The demurrer to the first plea was therefore properly sustained.

The third plea admitted the arrest of Trout, the giving of the bond, his release from custody, the various settings of the cause for trial and the entry of forfeiture against him and his sureties, but alleges as defense that after the order of forfeiture was entered and on the same day, the trial of said cause was proceeded with, a jury impaneled and before the evidence was all introduced Trout appeared in court to answer the charge against him; that there was a verdict of guilty against him and judgment upon the verdict; that he was unable to give the bond provided for by the judgment of the court and for his failure so to do was committed to the county jail, where he was confined at the time the plea was filed.

We are inclined to the opinion that there can be only one recovery under the bastardy act for the cause set out in the complaint and that when the defendant appears in court and a recovery is had against him and he submits to the judgment of the court, either by paying the money or giving the bond provided for by the statute and the order of the court, or in default of the same is committed to jail, that the object of the statute so far as the charge of bastardy is concerned, has been accomplished; and another judgment should not be rendered against the party accused and his bondsmen for an amount which includes, in effect, a judgment for the same cause, for which the former recovery was had. But damages may have accrued by reason of the failure of an accused person to appear as provided for by his bond for appearance in court for which, in case of forfeiture, judgment could properly be rendered against him, and such facts might properly be pleaded notwithstanding the judgment entered upon the original cause of action. The pleadings here show a technical default and right of recovery of nominal damages at least, and as plea No. 3 was a plea in bar and not a, plea in mitigation of damages the demurrer was properly sustained.

It is claimed by appellant that the bond and judgment of forfeiture introduced in evidence, and which constituted the only evidence in the case, were insufficient to justify the finding of the court below in favor of appellee and did not warrant the judgment rendered against defendant.

In the case of People v. Witt, 19 Ill. 169, which was an action of debt on a recognizance taken in a criminal prosecution, where a plea of nul tiel record was interposed, the plaintiffs to maintain the issues on their part offered in evidence the recognizance and the record of forfeiture as was done in this case. It was there said by the court: ‘ ‘ The recognizance of record and judgment of forfeiture are competent and sufficient evidence under appropriate averments in scire facias, to authorize judgment of execution according to the form, force and effect of the recognizance; and in an action of debt to authorize judgment for the amount of the recognizance.” And in Kepley v. The People, 123 Ill. 367, the same language as that above quoted is used approvingly. The procedure followed in this case was therefore the one approved by our Supreme Court.

It is also insisted by appellant that the condition of the bond, which was to appear at the next County Court to answer to the charge and not depart the court without leave, did not require Trout to be continually in attendance on court during the term and was fully satisfied by his actual appearance at the trial, which took place on the same day, but after the default. The provision that he should appear at the County Court and not depart the court without leave, to have any effect would seem to require that defendant remain in attendance on court during the whole term, unless excused from so doing by the court, and that is the effect of the holdings in Chilton v. The People, 66 Ill. 501, and Spillman v. The People, 16 Ill. App. 224.

In the case of People v. Ogden, 10 Ill. App. 226, which was an action of debt on a bastardy bond, with conditions similar to the one before us, it was said: “but if the bond in question is to be regarded as a recognizance, then under recent decisions its condition in terms required Simpson to appear on the first day of the term and from day to day during the term, and from term to term and from day to day of each term, until the final sentence or order of the court and to answer the specified charge.”

We find no reason appearing from the record in this case why the finding and judgment of the court below were not in accordance with the facts and the law applicable to them, and they should therefore be sustained.

Affirmed.


text:
    H. R. Heimberger, Administrator, Appellee, v. Elliott Frog and Switch Company, Appellant.
    Statute of Limitations—when section 25 relating to the commeracement of action after non-suit, does not apply. Section 25 of the Statute of Limitations which gives to the plaintiff a year after non-suit in which to commence anew, does not apply to suits commenced under the Injuries Act,

      Action in case for death caused by alleged wrongful act. Appeal from the City Court of East St. Louis; the Hon. W. J. N. Moyers, Judge, presiding. Heard in this court at the October term, 1909.
    Reversed.
    Opinion filed November 13, 1909.
    Percy Werner and Wise, McNulty & Keefe, for appellant.
    Webb & Webb and D. J. Sullivan, for appellee.
   Mr. Justice Higbee

delivered the opinion of the court.

On May 10, 1905, Thomas Durkin, a young man 17 or 18 years of age, was employed in appellant’s shops and while he was engaged in moving a heavy iron frog, certain parts of a hoist used in that work fell on and killed him. On August 16, 1905, appellee, as administrator of the estate of said Thomas Durkin, deceased, brought suit under the Injuries Act for the benefit of the next of kin to recover damages laid at $10,000 for the death of Durkin, which was alleged to have been caused by the negligence of appellant. The case was ■ continued from the August to the December term, 1905, and on January 8, 1906, appellee took a non-suit. On February 19, 1906, appellee commenced a second suit and on that day a declaration was filed and summons served. Appellant filed a plea of not guilty and on March 28,1906, the suit was dismissed by the court for failure of appellee to file a bond for costs, in compliance with a rule previously entered against him. On April 4, 1906., a third suit was commenced and this suit was afterwards set for trial January 7, 1907, at which time appellee applied for a continuance. He was allowed thirty minutes to file an affidavit, which he failed to do and the suit being dismissed for want of prosecution, appellee on the same day commenced this, his fourth suit, for the same cause of action. Appellant filed a plea of the general issue and also a special plea of the Statute of Limitations, alleging that the cause of action had not accrued within one year next before the commencement of the suit. Appellee filed a similiter to the general issue and a special replication to the plea of limitations, alleging that the action ought not be barred because he had brought suit on April 4, 1906, within one year after the action accrued to him and that a judgment of non-suit was rendered against him in said suit on January 7, 1907, and that within one year thereafter, to-wit, on the 7th day of January, 1907, he began this suit for the same cause of action. A demurrer was filed by appellant to the replication to the second plea, which was overruled and thereupon appellant filed a rejoinder to the replication, setting out the judgment of non-suit entered January 8,1906, and alleging that the present suit was not commenced within one year after the death of Durkin. Appellee demurred to the rejoinder and his demurrer was sustained by the court. Appellant excepted to the ruling of the court and elected to abide by its rejoinder. The trial resulted in a verdict andl judgment for appellee.

The pleadings in this case show upon their face that this suit was not commenced within one year after the death of Durkin, but it is claimed by appellee that paragraph 25, chapter 83 of the Devised Statutes (Hurd 1905), authorized the commencing of this suit after the expiration of one year from the time the cause of action accrued, under the circumstances shown by the pleadings to have existed. That section of the statute provides: “In any of the actions specified in any of the sections of said act * * * if the plaintiff be non-suited, then if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after. ’ ’ This action was commenced under section 2 of the Injuries Act and was therefore not one of the actions ‘ ‘ specified in any of the sections of said act,” which was the act in regard to limitations. But notwithstanding this fact, it is claimed by appellee that said paragraph of the act in regard to limitations does apply to section 2 of the Injuries Act, which provides that actions brought under said act shall be commenced within one year after the death of the person on account of the loss of whom the suit was brought.

Appellee places special reliance upon three cases in our courts, which he claims support his views and to which we will refer. The first is Wall v. C. & O. R. R. Co., 200 Ill. 66. That was a case under the Personal Injuries Act, where it appeared from the declaration that more than two years had elapsed from the time of the injury to the bringing of the suit. A general demurrer was sustained and plaintiff elected to stand by the declaration. It was insisted by the defendant that, as it appeared that more than two years had elapsed from the time of the injury to the bringing of the suit, the defense of the Statute of Limitations could be made by demurrer. It is there said: “The defendant cannot demur to a declaration even where it appears on its face that the limitation prescribed by the statute has expired, because the plaintiff would thus be deprived of the opportunity of replying and pleading any matter which would prevent the bar from attaching. The defendant must plead the statute if he wishes to avail himself of it.”

The above holding does not affect the case before us, for the reason that the defendant did in fact plead the Statute of Limitations in this case, instead of demurring to the declaration, and such plea, together with the subsequent replication and rejoinder, fully set out the facts relied upon by both parties, on the one hand to assert the bar and on the other to prevent it from attaching.

It is further said in said case: “But it is insisted that the bringing of the action within two years after the date of the injury is. a condition precedent, and not a limitation. This contention is not well taken. The bringing of the action within two years may or may not be a condition precedent upon which the plaintiff can recover. Each case must depend upon its peculiar facts and the plaintiff, as before said, should be given an opportunity to set up those facts if they form an exception to the statute.”

The case of Stephan v. L. S. & M. S. Ry. Co., 106 Ill. App. 13, which is the second of the cases relied upon by appellee, simply reiterates the doctrine laid down in the case last above mentioned, that the bringing of the action within two years (as the law then was) might or might not be a condition precedent upon which the plaintiff could recover, depending upon the peculiar facts of the particular case. Neither the pleading in this case, nor indeed the evidence on the trial, shows any peculiar facts which it is claimed by appellee would prevent the bar from attaching, except those facts relating to the non-suits, which it is said entitled appellee to the extension of time provided for by paragraph 25 of the Limitations Act.

The case of Koch v. Sheppard, 223 Ill. 172, the third case relied upon by appellee, holds, that the non-suits referred to in said paragraph of the Limitations Act as extending the time within which suit may be brought, mean involuntary non-suits and not voluntary non-suits. It is apparent therefore that the above cases can be of no assistance in determining the questions presented here, unless the provision of the Limitations Act above referred to, applies to the section of the Injuries Act, under which this suit is brought. As we have above seen, paragraph 25 of the Limitations Act only applies the provision for the extension of time to “the actions specified in any of the sections of said act.” The Injuries Act is a special act giving a method of relief not provided for in any of the sections of the Limitations Act and containing a special provision of its own fixing the time within which suit may be brought.

In L. S. & M. S. Ry. Co. v. Dylinski, 67 Ill. App. 114, it is held, that the words “actions for damages-for an injury to the person” as contained in section 14 of the Limitations Act, do not include actions under the Injuries Act for death “caused by wrongful act,” etc.; that actions under the latter statute are not for the injury the person injured suffered, but for the pecuniary loss to the widow and next of kin resulting from the death; and it is said “it follows that the provisions of section 25 of chapter 83 (Limitations Act) as to ‘actions specified in any of the sections of’ that act, have no reference to actions given by Ch. 70 (Injuries Act). The death was September 26, 1892. This suit was commenced October 29, 1894. Chapter 70 limited the time in which the action might be commenced to two years after the death. That time was not extended by a non-suit in a previous action.” The doctrine advanced by the case last mentioned appears to us to be sound when taken in connection with the language of the two acts referred to, and we agree with it, that paragraph 25 of the Limitations Act cannot properly be held to apply to suits commenced under the Injuries Act.

We are therefore led to the conclusion that the court below erred in sustaining the demurrer to appellant’s rejoinder and that the judgment in this case must be reversed and the cause remanded.

* * * *

Since the above opinion was filed, appellee has asked for a rehearing as to that portion of the judgment of this court wherein the cause is remanded to the trial court for further proceedings. Appellee states that there are no facts which would warrant any further or other replication than the one now in the record and that, therefore, the holding of this court, that the demurrer to appellant’s rejoinder should have been overruled, in effect is a final disposition of the case; and he requests that the judgment of this court be modified by striking out that portion of the same which remands the case to the trial court. A rehearing has been granted and upon a further consideration of the cause, we are of opinion the petition of appellee to strike out the remanding order should be granted. The judgment of the court below will therefore be reversed, but the cause will not be remanded.

Reversed.


author: Mr. Presiding Justice Higbee

text:
    The Gentleman’s Driving Club, Appellee, v. Union Biscuit Company, Appellant.
    1. Statute of Frauds—wh at satisfies provisions requiring contract not to be performed within a year to be in writing. In order to meet the requirements of the Statute of Frauds, it is not necessary that the writing 'give all the details of the contract.
    2. Corporations—when question of existence cannot be raised, The question as to whether or not the defendant is a corporation cannot be first raised on appeal.
    Action commenced before justice of the peace. Appeal from the City Court of East St. Louis; the Hon. Mortimer Millard, Judge, presiding. Heard in this court at the February term, 1909.
    Affirmed.
    Opinion filed November 13, 1909.
    Dan McG-lynn, for appellant; Jamison & Thomas, of counsel.
    John L. Flannigen, for appellee.
   Mr. Presiding Justice Higbee

delivered the opinion of the court.

The Union Biscuit Company, a Missouri corporation, engaged in the manufacture of crackers and some other like products, being desirious of obtaining advertising space on the fence surrounding a park controlled by the Gentlemen’s Driving Club of East St. Louis, Illinois, executed the following memorandum in writing:

“East St. Louis, Illinois, April 30th, 1908.

I hereby enter into contract with the Gentlemen’s Driving Club of East St. Louis for 25 feet of advertising space on fence at Priester’s Park, Ill., at $2 per foot for a period of two years from date.

Union Biscuit Company,

Per A. E. Winkelmeyer, Pres.

Total $50.”

It is admitted that it was understood between the parties that appellee was to paint the sign upon the fence, according to a design to be furnished by appellant. The sign was in fact caused to be painted by appellee upon the space rented to appellant but, after it was finished, some dispute arose as to whether it was properly ^executed, according to the design, and some changes were made. Later, appellant having refused to pay for the space rented, appellee brought suit by attachment before a justice of the peace and recovered a judgment for the amount of the contract price. On appeal to the City Court of East' St. Louis, a like judgment was rendered against appellant.

Upon the facts as shown by the record, appellee was plainly entitled to a verdict in its favor. It is claimed by appellant, however, that the contract was partly in writing and partly parol and must therefore be treated as an oral contract; that as it was not to be performed within a year, it was within the Statute of Frauds and therefore void. To meet the requirements of the Statute of Frauds, it is not necessary that the writing give all the details of the contract. Frazer v. Howe, 106 Ill. 563. We are of opinion that the written instrument, introduced in evidence, was a sufficient memorandum of the agreement or undertaking to comply with the statute. .

It is further contended that the judgment should not be maintained in favor of appellee, for the reason that “The Gentlemen’s Driving Club” is not a corporation nor a partnership', and that it has no legal existence. It does not appear from the record that this question was raised in the court below, nor does the evidence disclose that appellee is not a corporation, except by merest inference. Under such circumstances and especially as appellee’s right to recover upon the merits of the case is so plainly shown, appellant’s contention cannot be sustained to defeat the judgment.

While there are some inaccuracies in the instructions given for appellee, to which appellant calls attention, yet they are not of sufficient importance to warrant a reversal of this case.

The judgment of the court below is affirmed.

Affirmed.