author: Mr. Justice Brown

text:
    People ex rel., Appellant, v. Fred A. Busse, as, Mayor, et al., Appellees.
    Gen. No. 13,820.
    1. Mandamus—when peremptory writ not awarded against mayor. A peremptory writ of manfiamus will not be awarded, at the instance of a private citizen, to compel the mayor of a city to enforce Sunday closing saloon laws..

      2. Mandamus—what admitted by pleadings. Jn mandamus the rule is exactly the reverse of that which prevails in equity, and everything not explicitly denied is admitted.
    3. Mandamus—propriety of motion to strike immaterial matter. A motion to strike irrelevant matter from a petition for mandamus is the appropriate method of testing the materiality and pertinency of allegations, but such a motion is not a substitute for a demurrer and is not intended or adapted to test the substantial rights of the parties.
    4. Mandamus—when lies against executive municipal officer. Mandamus lies to compel an executive municipal officer to perform his ministerial duties, but a peremptory writ will not be awarded where it would interfere with the exercise by him of his discretionary powers, nor will it be awarded “to control and regulate the general course of official conduct.”
    Mandamus. Appeal from the Superior Court of Cook county; the Hon. Axel Chytkaus, Judge, presiding.
    Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed May 18, 1908.
    Church, McMurdy & Sherman and Walter J. Miller, for appellant. .
    Maybe, Meyer & Austrian, for appellees; Levy Mayer and Edward J. Brundage, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

We are asked in this appeal to reverse a judgment of the Superior Court of Cook county which dismissed a petition for mandamus. There were two defendants to the petition. One of them answered and the other demurred. The same order which dismissed the petition sustained the demurrer of one defendant to the petition and overruled a demurrer of the petitioners to the answer of the other. Thereupon the petitioners, in open court, elected to stand by the petition and by their demurrer to the said answer, and the petition was dismissed.

The petition was in the name of the People of the State of Illinois on the relation of William A. Bartlett, A. Lincoln Shute and Robert J. Bennett, and was filed December 21, 1906.

The mandamus which was prayed for was against Edward F. Dunne as mayor of the city of Chicago, and his successors in office, and was to ‘ ‘ command him and them without delay and by the use (so far as may be necessary for the purpose) of every means, power and authority in that behalf conferred upon the mayor of said city by the laws of this state, or the ordinances of the city of Chicago, to proceed and thenceforth to continue to enforce against Michael Kenna as the proprietor of saloons, at numbers 279 and 300 South Clark street in said city of Chicago the statute of this state prohibiting the keeping open the first day of the week, called Sunday, of tippling houses and other places where liquor is sold or given away (commonly called the Sunday closing law), by closing or compelling him to close and keep the same closed on each and every Sunday thereafter, and in case of his refusal to obey the law in that behalf, to procure his prosecution therefor, and to punish such violation of said law by the revocation of his licenses.”

The petition says: “Because of the interest of said Michael Kenna in the event of this proceeding, he is made a party defendant thereto.”

Summons issued and was served on Mayor Dunne and Kenna.

January 2, 1906, the respondents joined in a motion to strike from the petition certain portions of it, on the ground that they were, respectively, mere allegations of evidence or evidentiary facts, or of conclusions of law, and were all irrelevant, immaterial, surplusage and impertinent. This motion was sustained as to all the portions of the petition included and described in it, and those portions of the petition were stricken out. To this ruling the petitioners excepted, and it is assigned in this court as error.

By the same order by which matter was stricken from the petition for mandamus, the defendants were ruled to plead, answer or demur to said petition.

February 13, 1907, the defendant Kenna filed a general and special demurrer to the petition, the special cause of demurrer stated being that for various reasons “the said law of the State of Illinois called in the petition and known as the ‘Sunday closing law,’ and also known as section 259 of chapter 38 of the Devised Statutes of the State of Illinois of 1874, was not in force at the time of the beginning of this action, and is not now in force in said city of Chicago.” The said law, it is claimed by said assigned special causes, is repealed as to the city of Chicago, and is also repugnant to the constitution of Illinois and the constitution of the United States.

The general demurrer raises, however, the question of the right of the petitioners to a mandamus, upon the assumption of the existence and validity of the law described.

Edward F. Dunne, as mayor of the city of Chicago, answered the petition on February 13, 1907. In this answer he admits, “for the purpose of the answer only,” that Kenna “has kept open his saloons and sold and dispensed intoxicating liquors therein upon Sundays, and intends to continue in the future to keep open his said saloons, and to sell and dispense intoxicating liquors therein, upon every Sunday while his licenses are in force,” but “denies” that said keeping open of these saloons “has been with the knowledge and consent” of the said answering defendant, the mayor.

The answer avers that “while this defendant has been mayor of the city he has enforced and during his entire term of office intends to enforce every law that is in force in said city, to the best of his ability and power and to the extent that the forces at his command will enable him so to do.”

The answer of the mayor further avers “that if said Sunday closing law is in force in said city as alleged in said petition, it is and would be a physical impossibility for this defendant to have personal knowledge of or to personally investigate and ascertain the facts in each case and judge of the sufficiency thereof; that this defendant is not empowered to revoke the license of any saloon or dram-shop for an alleged violation of said Sunday closing law, unless the evidence of such violation, if there be any such violation, is clear and satisfactory to him.”

Also that: ‘1 There are now pending in the Circuit and Superior Courts of the county at least forty-five petitions for mandamus instituted on or since December 21, 1906, against this defendant, to compel him to close up and revoke the licenses of at least thirty-one saloons or dram-shops and fourteen theaters because of alleged violation of said Sunday closing law, and that very many more similar proceedings are threatened to be instituted against him.”

And that: “The revocation of a saloon or dram-shop license in said city, and the determination of whether or not the saloon or dram-shop keeper has violated the law, are matters which rest wholly within the official discretion of this defendant.”

Therefore, the answer concludes, “This defendant claims and insists that this honorable court should not take or exercise jurisdiction to adjudicate the matters set forth in said petition, and should not grant a writ of mandamus as prayed for in said petition.”

The portions of the answer not above quoted are practically an argument in support of an averment made therein: “That said Sunday closing law is not now and never has been in force or effect in said city of Chicago since its incorporation in 1875, under chapter 24 of the Revised Statutes of Illinois of 1874, known as An Act to provide for the incorporation of cities and villages.”

As under our view of the matter the question thus raised is immaterial, it is unnecessary to set out the allegations of the answer which form the premises for this conclusion.

To this answer of the mayor the petitioners demurred generally, and this demurrer was argued before the Superior Court with the demurrer of Kenna to the petition. The result has been before indicated. The trial judge, in his opinion, which has been brought to our attention by the counsel for the petitioners, expressed his belief that the “Sunday closing law” waij in full force and effect within the limits of the city of Chicago, but held that the executive of the city could not properly be controlled or directed by the mandamus of the court in the performance of executive functions in the general exercise of the police power entrusted to him.

We agree with the learned trial judge in this holding, as to the power and duty of courts in their relation to executive officers, and this renders it unnecessary for us to consider the question of the relations of the “Sunday Closing” or “Tippling House” Act to other legislation of the state, which the respondents present to us. We shall assume that the statute of Illinois relied on by the petitioners is in force in the city of Chicago, and that this application for a mandamus therefore was by persons interested only as any other members of the community are interested in the enforcement of the laws, for an order from the Superior Court of Cook county to the mayor of the city of Chicago to take cognizance of a particular violation in said city of a law of the state, and, in the language of the petition, “without delay * * * by the use * * * of every means, power and authority * * * conferred upon him by the law of the state or the ordinances of the city * * * to enforce against the violator that law # * * and in case of his refusal to obey the law * * * to secure his prosecution therefor, and to punish him by the revocation of his licenses.”

Our view as to the law of Illinois on the relations of the judicial to the executive and legislative branches of government, and on the functions and duties of courts in general in the exercise of their extraordinary powers, are so clearly defined and so coincident with those of the learned trial judge who dismissed this petition, as expressed in his opinion, that it is hardly worth the while to stop to consider his action, which is assigned for error, in entertaining and allowing a motion to strike out alleged immaterial and improper matter from the petition. We do not think the' reasoning of the court below—with which we concur—or our view of the questions would have been affected by the retention of all the matter excluded. If this is so, it is manifest that if the granting of the motion to strike were error, it was not prejudicial error.

But it seems due to the trial judge to say that, in our opinion, he was acting within the Emits of his discretion and power in so. ruling.

Mandamus is a common law proceeding, in which the ordinary course of common law pleading, beginning with pleas to the answer, follows the petition and answer. The petition and answer, too, while statutory substitutes for the alternative writ and return under the common law and the Statute of 9th Anne, are still so far common law pleadings that a rule exactly the reverse of that governing in equity prevails, and everything not explicitly denied is held admitted. People v. Crabb, 156 Ill. 155-165; Mayor v. Briggs, 194 Ill. 437. Under the operation of this rule the defendant to a petition, if he has decided to answer it, is naturally unwilling to pass by as immaterial some allegation of fact which he knows to be unfounded, at the risk, as the case develops, of having it considered by a court which disagrees with him as not only material but controlling. But if he answers and denies in detail improper and immaterial matter in the petition, instead of the result being, as the result of common law pleading’ should be, the narrowing of the dispute to single and controlling issues. (Hereford v. Crow, 3 Scam. 423), it will be the expansion of it to an interminable and intolerable number of issues, each one by itself inconclusive and uncontrolling. It is this that will always render a motion to expunge inartificial, irrelevant and evidentiary matter from a petition for mandamus—more appealing to tlie justice and discretion of a trial judge than a similar motion in chancery proceedings or in stricter common law pleadings. Such a motion is not intended nor adapted to test the substantial rights of the parties or to take the place of a demurrer—Whitney v. Cady, 71 Conn. 166—but it is a proper method of testing the mere irrelevancy or the merely evidentiary character of allegations in the petition.

In the present case we think the motion was not improperly made or allowed. It was desirable and necessary to hold the pleadings which might follow the petition within reasonable limits, and'no other way than the elimination of unnecessary and purely extraneous matter from the original petitions would have been effective to that end.

As the cause was disposed of on the demurrer of one defendant to the petition and the demurrer of the petitioners to the answer of the other defendant, and the ground on which it was so dismissed, in which we concur, would apply with equal force if the original petition had never been modified, the question whether the order of expurgation, which is complained of, was erroneous, is of no practical significance in this appeal, save possibly in one aspect.

The petition which was answered by Edward F. Dunne as mayor was the petition modified by the order of the Superior Court. As it was on his motion, over the objection of the petitioners, that the modifying excision was made, his position in this appeal might be treated, if the modification were erroneous, as though the answer which he filed were to the original petition, without excision, and thus admitted everything in the petition not denied by it. But pending this appeal, on the motion of petitioners and over the objection of the counsel for the original appellees, this court allowed the substitution of Fred A. Busse as “one of the appellees” in said cause, on the ground that he had succeeded Dunne as mayor of Chicago. Mr. Busse consented thereto, and the substitution was based on section 8 of the Mandamus Act. It was urged by counsel for the petitioners in oral argument before us that Mr. Busse’s position and liabilities were by this substitution and the fact that he had not repudiated or modified anything appearing in the record as the utterance or act of Mr. Dunne, identical with those of his predecessor. Whatever force there may he in this argument does not render it valid to hold Mr. Busse to the admission of any averments in the petition which were stricken out before the answer which he is supposed to have adopted was filed. However, as the order of excision was, in our opinion, not erroneous, but justifiable, this consideration is not of practical importance.

As we have indicated, our opinion on the question whether the Superior Court has the power and duty of coercing and controlling the mayor in the performance of executive police duties and in the enforcement of the criminal law, by judgments in mandamus proceedings at the instance and on the complaint of citizens and taxpayers, interested in no other way than as every law-abiding citizen is interested in such performance and enforcement, is decided. To hold that such power and duty existed would be, in effect, to turn over the supervision of executive functions to the courts and to confuse all the distinctions and balance of powers supposed to be an admirable characteristic of our system of government. The inconvenience of recognizing and enforcing such a right would be enormous.

The scope of the necessary discussion in the presen; case is for us much lessened by the action and opinion of the Supreme Court on a petition for mandamus sought to be filed in that court by the same relators against the mayor alone. In that case, The People v. Dunne, 219 Ill. 346, the prayer of the petition was that the court should issue the writ of mandamus to the defendant, commanding him without delay and by the use (so far as might be necessary for the purpose) of every means, power and authority in that behalf conferred upon the mayor of said city by the laws of this state or the ordinances of the city of Chicago, to proceed and thenceforth to continue to enforce, within said city, the statute of this state prohibiting the keeping open upon the first day of the week, called Sunday, of tippling houses and other places where liquor is sold or given away, and to compel the general observance of the provisions of said law in said city on each and every Sunday thereafter by every person violating the law in said city, and to punish all violations of said law by licensed dram-shop keepers in said city by the revocation of their licenses, and generally and at all times to take care that said law is faithfully executed in said city.”

As it is necessary under the practice in the Supreme Court to secure leave to file a petition in mandamus before actually filing it, this petition was presented with a motion for such leave. The leave was denied by the court and an opinion handed down in explanation. The court said: “The writ has never been made use of, and does not lie, in this state at least, for the purpose of enforcing the performance of duties generally. It will not lie where the court would have to control and regulate a general course of official conduct and enforce the performance of official duties generally. In such a case the court could not prescribe the particular act to be performed and enforce its performance. It is plain that in this case, where the court is asked to require the defendant to adopt a course of official action, although it is a course required by the statute and imposed upon him by the law, it would he necessary for the court to supervise generally his official conduct and to determine in very numerous instances whether he had persistently and to the extent of his power and the force in his hands carried out the mandate of the court and performed his official duty. It is manifest that where there are about seven thousand saloons in a city which are kept open on the Sabbath day in violation of law, as is alleged in this case, the court would not only have to enforce a general course of official conduct on the part of the mayor, but must also determine in numerous instances whether ground existed for the revocation of licenses, whether there had been violations of law, and to what extent he had endeavored to perform his duty with the force and facilities at his command for doing it. The writ will not lie for any such purpose. For the court to assume the management of municipal affairs in the city of Chicago would be to depart from its proper sphere and assume governmental functions which are outside of the jurisdiction of the courts and not within the remedy by writ of mandamus.”

The Supreme Court does not, by this reasoning or by anything else in its opinion, indicate that it refused its permission to file the petition, in the exercise of the discretion which frequently has led it to refuse to entertain mandamus petitions (in which the nisi prius courts have concurrent original jurisdiction) because they were not of public or state-wide interest. Its opinion is placed upon the grounds which, when declared by the Supreme Court, are binding rules for all lower courts in the state.

The decision makes no such distinction as is suggested by counsel for the petitioners, between the impropriety or wrongfulness of issuing the writ against a president or governor and the impropriety or wrongfulness of issuing it against any other executive officer of inferior grade charged with the enforcement of general laws in a particular locality Or jurisdiction.

The tests which are indicated are not the grade but the character of the office, to coerce the incumbent of which the suit is brought, and the quality and nature of the acts to which it is attempted to coerce him.

In view of this position taken by our own court of last resort, it is unnecessary to discuss cases from other states cited to us, which apparently make distinctions resting upon the grade rather than the character of the executive officer and lend color to the theory that in a municipality executive police authorities may be supervised and controlled by mandamus which in the state or nation would be exempt from such interference.

The present petition must be taken from the purview of the doctrine laid down by our Supreme Court in the People v. Dunne, or its action in that case is binding on us as a precedent for this.

The petitioners insist that the necessary distinction is found in the difference in the prayers of the two petitions. The one which the Supreme Court denied permission to file asked that the mayor should be coerced “to proceed and thenceforth to continue to enforce within said city” the Sunday closing law, “and to compel the general observance of the provisions of said law in said city by every person,” and “to punish all violations of said law by licensed dram-shop keepers in said city by the revocation of their licenses, and generally and at all times to take care that said law is faithfully executed in said city”; whereas the one at bar is much more limited in its scope. It asks only that the mayor shall be coerced “to proceed and thenceforth to continue to enforce against 'Michael Kenna, as proprietor of saloons at numbers 279 and 300 South Clark street in said city of Chicago” the said law, “by closing or compelling him to close and keep the same closed on each and every Sunday thereafter, and in case of his refusal to obey the law in that behalf, to secure his prosecution therefor and to punish such violation of said law by the revocation of his license.”

We have by italics in our statement of the case included in this opinion indicated the allegations and prayers of the two petitions which substantially differ.

The counsel for the petitioners is justified in insisting that the difference is marked and that the petition passed on by the Supreme Court had a far wider scope and called for a more general supervision and control by the court of the mayor in the enforcement of the law than the one at bar. The first was a prayer for a direction that he should exert all his executive police power against all the offenders in Chicago against a certain statute, and the latter against only one offending in two places.

The court below pointed out, however, and we do not think that, as' counsel insist, the statement was unwarranted, that it was clear that the real purpose of the present proceeding is “to compel the exercise of a general duty within the general exercise of the police power.”

Perhaps the language which, over the protest of the petitioners, was stricken out of the petition, which asserts that the interest of the relators is to secure the observance of and obedience to the Sunday closing law by all tippling houses, and the general statements regarding the bad effect of the neglect to enforce such obedience, show this more distinctly than that which remains, but even in the expurgated petition the purpose and intent of the proceeding is shown by its recital of the visits of citizens and delegations to the mayor requesting him to enforce the law generally, and his refusal to do so. And the answer of the defendant Dunne, which was demurred to, asserts that there are at least forty-five petitions for mandamus pending against him, based on his alleged neglect to enforce the Sunday closing law, and many more threatened. But this is really beside the question, we think, because, quite apart from the apparent and, if this present proceeding is well advised, proper intention to proceed by separate petitions for the enforcement of the law in individual cases until the general result aimed at in the petition presented to the Supreme Court is effected by aggregation, and quite apart from the fact that if this were not in effect the intention of the pet-itioners, but the proceeding was brought with the intention to compel the enforcement of the law against and the punishment of one offender only, leaving the other offenders to profit by the alleged expressed refusal of the mayor to enforce the Sunday closing law generally, it would not appeal to the judicial discretion which in any event governs the issuance or withholding of a mandamus, we cannot hold that in essential character there is a difference between the acts which the mandamus here prayed for would command, and those which the mandamus asked from the Supreme Court would direct.

While the scope and number of the acts are very different, they are in neither case i 1 specific, ’ ’ nor especially are they “such that the court can supervise the performance of the duty and the execution of the mandate.” People v. Dunne (supra). On the other hand, in either case, “the court would have to control and regulate a general course of official conduct.” “It would be necessary for the court to supervise generally his (the mayor’s) official conduct, and to determine whether he had persistently and to the extent of his power and the force in his hands carried out the mandate of the court and performed his official duty.” Thus, although, by the petition here involved a mandamus is asked on the mayor only to enforce the law against two dram-shops instead of seven thousand, it is asked to compel the enforcement continuously and consistently and by every means in the power of the •mayor. The mayor is to be directed “to close,” or compel Kenna to close, the two places “on each and every Sunday thereafter,” and whenever Kenna refuses to obey the law, to secure his prosecution, as well as to revoke his licenses. What is this but “to control and regulate a general course of official conduct”? It is none the less, in our opinion, a general course of conduct because directed against one man and two places, than if it were directed against many men and many places.

The opinion and decision, therefore, of the Supreme Court in The People v. Dunne we regard as controlling us in this cause. As we so hold, it becomes of little importance what we might' otherwise think of the questions of law involved, nevertheless it will not be out of place to express our independent concurrence with the views of the Supreme Court, which seem to us also those expressed in another form by the court below in the case at bar. They are, as we believe, in accordance with the best authority everywhere and in accordance with the political theories of the distribution of powers in our form of government.

The true test to be applied when a mandamus on an executive municipal officer is asked for the act to be commended seems required by the law, is: Is the act merely ministerial %

In a very late case—Ex Parte Young, 57 Lawyers Edition U. S. Supreme Ct. Reports, p. 441—the Supreme Court of the United States says: “There is no doubt that the court cannot control the exercise of a discretion of an officer. It can only direct affirmative action where the officer, having some duty to perform not involving discretion, but merely ministerial in its nature, refuses or neglects to take such action. In that case the court can direct the defendant to perform this merely ministerial duty.”

Undoubtedly courts have differed widely as to what constitutes “a mere ministerial duty,” but the best authority at least, and certainly that of the Supreme Court of the United States, is to the effect “that the writ should not be used to interfere with the executive officers of the government in the exercise of their ordinary official duties.” Merrill on Mandamus, sec. 31. Such is the duty of the mayor of a municipality to see to the enforcement of the criminal law. There is in such exercise of ordinary official duties at least a discretion in the methods in which and the occasions on which the officers should go about them. The duty may be clear, and yet the means of performing it discretionary and various and dependent on concurrent and conflicting factors. As Mr. Justice Clifford, speaking for the Supreme Court of the United States in The Secretary v. McGarrahan, 9 Wallace, 298-312, expressed it: “Though mandamus may sometimes lie against an executive officer to compel him to perform a mere ministerial act required of him by law, yet such an officer, to whom public duties are confided by law, is not subject to the control of the courts in the exercise of the judgment and discretion which the law reposes in him as part of his official functions.”

“In matters of public duty,” Judge Breese said in The People v. Bissell, 19 Ill. 229, “we remit” the executive “to the high tribunals of his own conscience and the public judgment.” There is, besides, statutory punishment in Illinois, as the court below points out, for official misfeasance or neglect of duty.

Nor is the reasoning of Judge Clifford and of Judge Catón and of Judge Breese in the two cases last named less convincing for us because in these cases it was a cabinet minister and a governor respectively who were to be coerced in their public executive duties, while in this case it is the mayor of a city. This difference is not fundamental or essential. They are all executive, as distinguished from judicial or legislative officers, and the rules laid down by Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137-171, “It is not by the office of the person to whom the writ is directed, but by the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is to be determined”; and “The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion,” have never been departed from by the court which we deem of highest authority.

The judgment of the Superior Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    William B. Schaefer, Defendant in Error, v. John Dickinson, Plaintiff in Error.
    Gen. No. 13,830.
    1. Brokers and factors—right of property in stock purchase. Upon the purchase of stock through a broker, the full purchase price not being advanced by the purchaser, the stock becomes the property of the purchaser subject to a pledge thereof to the broker for the balance of such purchase price.
    2. Sai.es—within what time repudiation of unauthorized, must he made. As a rule, a reasonable time for consideration is allowed before the obligation to repudiate an unauthorized sale arises; but, under some circumstances, such as those which existed in this case, an immediate repudiation is required.
    3. Measure of damages—in action for unauthorized sale. The measure of damages for the unauthorized sale of stock by a broker is the difference between the amount obtained and the amount which the owner could have gone into the market' and replaced his converted stock for, within a reasonable time after obtaining knowledge of the sale.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed May, 18, 1908.
    D. Moncrieffe Kirton, for plaintiff in error.
    Charles A. Butler, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error to reverse a judgment of the Municipal Court for $905, rendered in favor of the defendant in error, Schaefer, against plaintiff in error, Dickinson, on the verdict of a jury.

The facts are these: William B. Schaefer, an accountant, residing in Chicago, was dealing in stocks before and in July, 1906, and for a few weeks thereafter, through the stock broker’s office of John Dickinson, doing business as John Dickinson & Co., in that city. Dickinson has an office also in New York city. It is apparent from the whole record that the transactions were of the usual kind when stocks are bought or sold on margins through a broker. Mr. Schaefer seems to have been speculating on his own account and for a sort of sub-clientage, whom he speaks of as his “customers,” and on whose trades he received commissions. He had two accounts on the books of Dickinson & Co., one under the title of M. S., in which he says he carried trades both for himself and “customers,” and another under the title of M. S. Special, which comprised only his individual trades.

The account which appears in the record as a duplicate of that given to the plaintiff on August 25 or August 26, 1906, would by itself seem to indicate that although Schaefer was indebted on it to the brokers to the amount of $98.65, on July 16, 1906, they sold “short” for him twenty Union Pacific shares at 143% on that date, and “bought it in” for him (so as to make delivery possible) at 143 on July 19, making $9.60 profit for him on that transaction, and then on July 20 sold “short” again twenty shares Union Pacific at 144%, and that as these shares had not been “bought in” by August 2, 1906, the plaintiff was on that date still “short” that number of shares. On that date the “trade” seems to have been transferred to the other account (no note of the contents of which appears in the record), and the M. S. Special account closed by debiting it with the twenty shares at the nominal balance of the account, $2,807.57.

We may infer that the account to which the trade was transferred had a corresponding credit of $2,807.57, and a debit memorandum of “Short—20 Union Pacific.” A transaction of a short sale, and a quick repurchase in Pennsylvania stock has a place also in the M. S. Special account in July.

But we are called on, nevertheless, by the rulings of the court below on the trial and the evidence therein taken, as well as by the theory on which this cause has been argued by both sides in this court, not to consider the transaction of July 19 what it appears on the face of this account to be—a “buying in” to fill “a short sale”—but as an investment independent of any preceding transaction, and the sale of July 20 not to be another and a second “short sale,” which the plaintiff contends he never ordered made, but as a sale of the stock purchased as an investment on the nineteenth. Therefore, although they look to us very much like something else, we will so consider them and eliminate the short sale of July 16 from consideration altogether. It was excluded from the evidence by the rulings of the court.

Several things conceded by the parties litigant make the question here a very simple one.

It is conceded, for example, that the plaintiff ordered the stock in question bought on July 19, and that it was actually bought by the defendant broker. By the theory of the law which, although repudiated in Massachusetts, has been adopted in New York and by the United States Supreme Court (Richardson v. Shaw, vol. 28 Supreme Ct. Reporter, p. 512, and cases therein cited), and which may be assumed to have been also approved in this state (Brewster v. Van Liew, 119 Ill. 554), the twenty shares of Union Pacific Railroad stock then became the property of the plaintiff, subject, however, to a pledge of it to the defendant broker for the full amount for which it was bought, and perhaps for the balance of the account from former transactions as well.

It is conceded that on July 20, 1905, the next day, the defendant broker sold that stock, supposing he had an order to do so from the plaintiff, through an agent. It is conceded also that the plaintiff denied making the order in question, or giving any authority to anyone to make it, and that the defendant could offer no proof to the contrary.

It is conceded that the question of confirmation of the sale or of the supposed authority was left to the jury, and that by their verdict they have indicated that on this point they held with the plaintiff.

It is, however, urged, and we think with reason, that the instruction or charge given to the jury on the subject of this claim of ratification was somewhat misleading. The theory seems to have been adopted by the court that it was permissible to the plaintiff to accept or to disaffirm the sale, and that this had something to do with “the completion of the sale” (Abstract p. 44) and “the right in the plaintiff to control the stock” (Abstract p. 43).

Under the theory of the law to which we have alluded and to which we must refer this case, these matters were not involved. The broker to whom the stock was pledged had actually sold it. He passed a good title to it to the innocent purchaser on the stock exchange who bought it. He did it wrongfully, we must assume. He was not morally delinquent, because he thought he had an authorized order to sell; but legally he was delinquent. An action of trover accrued to the plaintiff. But the plaintiff might have waived that action and ratified the order and the sale by keeping silent when informed of them. We think, moreover, that while in a sense a reasonable time is always allowed for consideration before such a ratification is presumed from silence, it is practically true that to prevent the inference of ratification attaching, an immediate repudiation is necessary after the knowledge of the alleged order and resulting sale came to the plaintiff, and that the jury should, at least in this case, have been instructed that such repudiation must have been promptly made. But in any event it is conceded that on August 25 or August 26, 1906, the plaintiff did learn, whether he knew it before or not, that the stock had been sold and did then repudiate the sale and deny the order and authority under which it was made. This is the essential occurrence and conversation of those dates. We do not think that the evidence of the plaintiff, assuming it to be true, that the defendant replied to the repudiation and denial, “Well,,! will look into it this afternoon and let you know,” and then immediately left for New York, on his return from which on October 1 he answered the question of plaintiff, “What disposition are you going to make of this Union Pacific stock which was sold for my account?” “Nothing—absolutely nothing,” adds or takes away anything from the situation or changes it in any way. The failure of the defendant to say anything on the afternoon in question, and his going to New York, apprised the plaintiff that he had no promise of the defendant to replace the stock to rely on.

The right of action was then complete in the plaintiff, if it existed at all, and the question at once becomes controlling, what rule of damages is applicable ? Does that rule involve the recovery of the difference between the price procured for the stock and credited, to the plaintiff, and the highest price which it afterward reached before the suit was begun, or before the trial took place, or the price at some time selected by the plaintiff (which last, in effect, although not in terms, was what the plaintiff was held by the court below to be entitled to in this case), or the difference between the price procured and what the plaintiff could have gone into the market and replaced his converted stock for, within a reasonable time of his getting knowledge of the sale? Each of these alternatives has been adopted as the true rule by different courts, but the rule in Illinois seems clearly enough stated in Brewster v. Van Liew, 119 Ill. 554, in which, while holding to the doctrine of Markham v. Jaudon, 41 N. Y. 235, as to the relations of broker and customer, the Supreme Court of Illinois repudiates the doctrine of that case as to the measure of damages, and adopts that of Baker v. Drake, 53 N. Y. 211. In so doing it was but reaffirming the doctrine laid down for the court by Judge McAllister in Sturges et al. v. Keith, 57 Ill. 451.

It is clear to us that Brewster v. Van Liew, and not Cothran v. Ellis et al., 107 Ill. 413, states the rule applicable here. Cothran v. Ellis was the case of an order to sell not performed; Brewster v. Van Liew a case, like this, of an unauthorized sale. The doctrine stated by Brewster v. Van Liew is that the measure of damages is the difference between the amount obtained and that at which the plaintiff, within a reasonable time after learning of the sale, could have replaced the stock.

The jury in this case were therefore erroneously instructed on the measure and rule of damages applicable. The rule which Brewster v. Van Liew announces was repudiated by the trial judge, and another and erroneous one substituted. For this reason the judgment is reversed and the cause remanded to the Municipal Court.

Reversed and remanded.


text:
    International Filter Company, Plaintiff in Error, v. S. B. Hartman, doing business as Peruna Drug Mfg. Co., Defendant in Error.
    Gen. No. 13,835.
    1. Sales-—when implication of warranty arises. Where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose, of which he has knowledge, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied.
    2. Sales—when no implication of warranty arises. Where a known, defined and described article is ordered of a manufacturer, even though it is stated to be required for a particular purpose, still if the known, defined and described thing be actually supplied, there is no warranty that it shall answer the purposes for which it was intended by the buyer.
    3. Sales—remedy where purchaser improperly refuses to accept delivery. Where a purchaser of merchandise improperly rejects delivery, the seller may store such merchandise for the purchaser and give the purchaser notice of such act, and then sue for the contract price.

      Attachment. Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantry, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and judgment here.
    Opinion filed May 18, 1908.
    Hobart P. Young and Maurice W. Sietz, for plaintiff in error.
    Frank F. Eeed and Charles A. Williams, for defendant in error.
   Mr. Justice Brown

delivered the opinion of the court.

This is a writ of error sued out from this court by the International Filter Company to reverse a judgment in its favor by the Municipal Court for $30 and costs against S. B. Hartman, doing business as the Peruna Drug Manufacturing Company. The essential assignments of error are that the finding of the court below (which tried the case without a jury) was contrary to the law and the evidence, and that it was error not to-find for the plaintiff, the International Filter Company, in the sum of $780.65, and enter judgment on that finding.

The inquiry whether this contention is well made involves a statement of the facts as shown by the evidence.

The plaintiff is engaged in the manufacture of filters and filter discs in Chicago. The defendant is the manufacturer of a proprietary medicine, called Peruna, at Columbus, Ohio.

In August, 1905, the defendant wrote to the plaintiff asking for a catalogue of filters, saying that they expected to use several in their establishment. The rej suit was a sale of a filter by the plaintiff to the defendant in that year. It was a small No. 1 filter, and was sent to the defendant company in September, 1905. It does not appear that the International Filter Company knew for what particular compound or liquid it was used.

Mr. Schumacher, the vice-president of the Peruna Company, however, testified that there was a compound for which they could use the defendant’s filters successfully—“a preparation,” he says, “of which we use a very small volume”—and it seems probable that this was the liquid which the filter sold in 1905 was used for. But this is not in evidence or material.

October 26, 1906, the International Filter Company wrote the following letter to the Peruna Company:

‘ ‘ Our files show that we have received no disc order from you. within the last year. The quantity we supplied last time must he about exhausted by now. To do away with any possibility of your running out, you better order now either for immediate or future shipment.

It is very possible that your requirements have increased so that your present filter equipment is really not large enough for your use. If this is the case, let us hear from you and we will make you a proposition on exchange of your present filter for one of larger size. A filter more than large enough is a good thing, not only from point of rapidity and convenience, but also from point of economy.”

To this letter the Peruna Company replied, under date of November 10, 1906, as follows:

“Tours of October 26 received, and in reply will say we have plenty of disc for filters to last us for another year, so will not need any at the present time.

We wish to make inquiry, however, concerning filtration which we find necessary to do in our work, and for which we have been unsuccessful in getting a filter to accomplish for us.

Our mixture consists of different ingredients, which contain oleorosins and different oils in the crude drugs. Some of these are extracted and incorporation in our liquid at the proportion which we want to exist in the same, and with a weak alcoholic solution there is a cloudiness which takes place; we find by experimenting that this can only be removed by incorporating magnesia and filtering the same out, which gives us a clear product with all the ingredients in perfect solution.

The amount which we wish to filter in one day is 2,000 gallons or more.

As yet we have run across no filter which will perform this work successfully for us. If you have such a filter we will be glad to hear from you at the very earliest date possible.

Tours truly,

The Peruna Drug Meg. Co.,

Per J. G. Steele.”

November 10, 1906, was Saturday, and it may be assumed the letter of that date reached the International Filter Company on Monday, November 12. It was not answered at that or any other time. On Tuesday, November 13, 1906, however, the filter company received the following telegram.

“Columbus, Ohio. Nov. 13, 1906.

International Filter Co.,

17th Street and Wabash Avenue.

Express us at once three of your largest size filters, same construction as smaller one sent us.

The Peruna Drug Meg. Co.”

On the same day the drug company wrote to the filter company as follows:

“We wired you today as follows: ‘Express us at once three of your largest size filters, same construction as smaller one sent us’, and hope that you were able to make shipment at once, as it is absolutely necessary that we should have these filters in our possession by Wednesday or Thursday at the latest. We want the same style of filter that you sent us about a year ago, with the same arrangement of discs, only we desire the largest size that you manufacture.

We hope you have these filters in stock and that prompt shipment was made upon receipt of our telegram. If for some reason, however, shipment has been delayed a day later, see to it without fail that the filters are expressed to us Wednesday.”

In answer to the telegram the filter company wrote, calling attention to the very large capacity of their No. 10 filter—“twenty-two times as great as that of the No. 1 filter yon are now using”; also to the fact that they had No. 5 filter, “six or seven times the capacity of the No. 1,” and No. 3 filter, “three times the capacity of the No. 1 size.” The letter also gave prices of the different sizes of filters in differing materials, and concluded, “We have ready for immediate shipment two No. 3 Filters, Brass Block tinned; three or more No. 3 Iron Galv., three or more No. 5 Iron Galv., one No. 5, Brass-Block tinned, and two No. 10 Iron Galv. If you will telegraph us in the morning just which filter we shall ship you and whether by express or freight, also whether Iron Galvanized or Brass Block tinned, we will follow your instructions and get the filters off at once. If you prefer, you can call us up by long distance telephone, but in any case, if you wish the filters shipped tomorrow would advise thát you communicate with us as early as possible.”

The answer to this letter was a telegram, as follows:

“Columbus, 0., Nov. 14, 1906.

International Filter Co.,

17th and Wabash Ave.

When can you ship number ten brass block tinned filter? Answer wire.

The Peruha Drug Meg. Co.”

On the receipt of this telegram, Mr. Engel, the secretary of the filter company, called up the Peruna Company on the long-distance telephone and had a conversation with Mr. Baker, the general manager of the Peruna Company. Engel told Baker that they could not deliver a brass block tinned No. 10 filter for two months, but that they had a galvanized iron No. 10 filter that they could ship immediately. Baker said that the galvanized iron one would do, and ordered it shipped by freight. Engel told Baker that if later it was desired to exchange the galvanized iron one for a brass one, it could be arranged. The filter company then (November 14,1906) telegraphed the Peruna Company: “As per telephone instruction from you, we are shipping one number ten Filter Iron Galvanized by freight today,” confirming it by letter, in which they said: “In event of your desiring to supply yourself with a No. 10 International Filter, Brass Block tinned, we will allow you to return the No. 10 Iron Galv. Filter to us for credit in part payment at purchase price here, assuming that the No. 10 Filter Iron Galv. be kept in good condition and working order.”

On the same day the Peruna Company telegraphed the filter company, if it was not too late, to ship the filter by express instead of by freight. The filter company recalled the filter on its way to the freight depot and turned it over to the express company, which delivered it to the Peruna Co.

A letter of the date of November 28, 1906, from the Peruna Co. to the Filter Co. shows the complaint which the Peruna Co. had to make of the filter, and the position taken by it at that time in relation thereto. They wrote:

“The No. 10 filter which we ordered from you a few days ago will not do the work that we intended to do with it. While we have other work for which we could use it successfully, it is wholly too large for our purpose. We should be glad to exchange this for one of your No. 5 Filters—Brass Block tinned—which you informed us you had in stock. If you have this filter on hand and the idea of exchanging the No. 10 for a No. 5 is agreeable to you, ship us at once a No. 5 Filter and we will hold the No. 10 for shipment according to your instructions, at our own expense, providing the charges are not greater than from here to Chicago.”

In answer the Filter Co. offered to exchange according to their “understanding of the matter,” which was that if any exchange was to be made, it was to be for another No. 10 or enough of a less size to aggregate the capacity of a No. 10.

To this letter the Peruna Co. replied, under date of December 1st, saying that they could not possibly, at the present time, see any use for more than one filter, and added: “We find that the liquid that we had intended to filter through the number 10 cannot be accomplished with that filter or any other. * * * We have another liquid, however, which works more successfully in your filter than in any other that we have tried, and your No. 5 Filter will accomplish this work and more too,—consequently we could not use more than one No. 5.”

January 10,1907, without direction or permission of the Filter Co., the Peruna Co. shipped the No. 10 filter and the unused filter discs which appertained to it, to the Filter Co. at Chicago. This was done on the theory that because, as the Peruna Co. expressed it in a letter of January 21st, “the filter was absolutely unsuitable for their purpose and could not be used in their manufacture,” they had a right to return it and avoid the payment of the purchase price. This view, however, was not accepted by the Filter Co., and they signified in their further correspondence their intention of insisting on what they deemed a complete sale, and on the payment of the purchase price. They renewed their offer, however, to exchange the filter thus returned for a No. 10 brass block tinned filter, or three No. 5 brass block tinned filters.

Under date of February 8,1907, the Peruna Co. notified the Filter Co. that in order to save the latter company storage charges, they had had the reshipped filter delivered by the railroad to them, and held same in their house subject to the order of the Peruna Co., and awaited their instructions as to its disposal. February 15, 1907, the present suit was begun by the Filter Co. against the Peruna Co. in the Municipal Court. The following bill of particulars was filed in the case:

Nov. 14,1906,1 No. 10 National Filter G-alvanized iron................................................................$675.00.

Nov. 14,1906, 4 No. 10 Special Cloth Discs........ 10.00.

Nov. 14,1906, 75 No. 10C. C. Fiber Dies............ 9.40.

Nov. 15,1906, 2 No. 10'Special Cloth Discs...... 5.00.

Nov. 15,1906, 30 No. 10 C. C. Fiber Discs............ 3.75.

Nov. 17,1906,500 No. 10 C. C. Fiber Discs............ 62.50.

Nov. 22,1906, 6 No. 10 Special Cloth Discs........ 15.00.

$780.65.

A trial before the court resulted in a finding for the defendant, but thereafter that finding was vacated and the court found the issues for the plaintiff, but assessed its damages at $30 only, and gave judgment for that amount with costs. The $30 was the price of the special cloth discs sold on November 14th, 15th and 22d, which discs the Peruna Co. kept and acknowledged its liability for.

The contentions of the respective parties are very well illustrated in the following* excerpts from the testimony of Mr. Schumacher, the vice-president of the Peruna Co., on the one hand, and of Mr. Engel, secretary of the Filter Co., on the other. From Mr. Schumacher ’s testimony we quote as follows:

“I would not have ordered the filter had I known that it would not do the work. ” * * *

“Q. No representations were made to you by anybody outside of what information you got through Mr. Steele as to the catalogue and the telephone conversation and the telegrams and letters as to the character or capacity or make up of this filter ?

A. No, excepting that I inferred” (implied?) “what we wanted and they had our letter of November 10th stating what we needed. But we gave them to understand what we needed in that letter. If they could not fill our order anyway near the suggestion conveyed in the letters, they should have warned us against the filter.

********

I surely believed the International Filter Company would consider the order I telegraphed them in conjunction with my letter which explained the functions to which the filter was destined and intended for. ’ ’

From Mr. Engel’s testimony we take this:

“I presume we received such a letter”—referring to the Peruna Company’s letter of November 10th. “I never answered the letter. I did nothing with the letter. * * * We had a No. 1 Filter down there— that is, at the Peruna Co.’s works. The construction of No. 10 filter was the same as that of this No. 1 filter. * * * It does not differ, except in size and in filter area. * * * I. did not state that the filter would do the work that would be required of it. * * * I stated it would do the same work as No. 1. While I was at the Peruna Co.’s place” (this was after the filter had reached there), “Mr. Schumacher contended that the No. 10 filter would not do the same work as the No. 1, and I told him I contended that it would— it was simply a difference in the capacity. * * * I did not tell him the No. 10 would do the work. * * * I do not know whether the No.-10 filter will do the work. * * * It will do the work if No. 1 filter will do the work. I never told the Peruna people that our No. 10 filter would filter the compound described in the letter of November 10, 1906. * * * I offered to make a filter do the same proportion of work as the No. 1 size.”

The case has been argued here from the standpoints indicated by this testimony. The defendant relies on the undoubted rule of law that where a manufacturer contracts to supply an article which he manufactures to be applied to particular purpose, of which he has knowledge, there is an implied warranty that it shall be reasonably fit for the purpose to which it is to be applied.

The plaintiff relies on the equally undoubted exception to that rule, that where a known, defined and described article is ordered of a manufacturer, even though it is stated to be required for a particular purpose, still if the known, defined and described thing be actually supplied, there is no warranty that it shall answer the purpose for which it was intended by the buyer,—and on the collateral and concurrent proposition that to charge a manufacturer with knowledge of the particular use for which a particular thing is intended, so as to raise an implied warranty of fitness for that particular use, it must be shown that the seller had definite knowledge of this particular use.

These rules do not need the citation of authorities. They are undisputed and well recognized. It is on their application to the facts of this case that the contest arises.

We are unable to agree with the court below in that application. It seems to us that the positions of the plaintiff are well taken. The letter of November 10, 1906, from the Peruna Co. to the Filter Co. was not answered. It was not, therefore, on any express representations of the Filter Co. that the Peruna Co. ordered the No. 10 filter. Nor do we think that it was on representations implied because of that letter preceding the order. An answer to that letter was not even waited for by the Peruna Co. It could not, in the ordinary course, have been received by the Filter Co. until the twelfth of November, which was Monday. On the thirteenth the Peruna Co. gave an express and explicit order by letter and telegram for the immediate shipment of the largest size filters which the plaintiff had, to be of “the same construction,” “ the same style of filter,” that was sent them the year before, “only the largest size” manufactured.

The uncontradicted evidence is that the filter finally sent was “of the same construction,” “the same style,” as the one before sold, “only the largest size” manufactured.

Was not the plaintiff justified in supposing that the defendant had concluded to act on its own judgment, by ordering a specific thing and taking the risk of its doing what they wanted done, -rather than to wait for an answer on the suggestion of the letter qf November 10th, that “If you have such a filter” (i. e., one that would perform the work desired satisfactorily) “we will be glad to hear from you at the very earliest date possible”?

The defendant’s manager says in his testimony which we have quoted, “If they could not fill our order anyway near the suggestion conveyed in the letter, they should have warned us against the filter.”

It may be conceded, for the purpose of this decision at least, that the reception of the letter on the twelfth should have so placed the plaintiff’s officers in possession of the information it contained, that had it plainly appeared that the order of the thirteenth was in pursuance of the suggestion made in that letter, and was given under a mistaken belief as to the character and capacities of the filter, an obligation would have rested on the plaintiff “to warn the defendant against the filter.”

But how does it appear, even, that the telegram and letter of November 13th referred to the work to accomplish which the defendant- had been unsuccessful in getting a filter? It might well have been that while. looking for a filter to use on the liquid mentioned in the letter of November 10th, the defendant might have needed also additional filters for other liquids. There evidently was one other preparation to be filtered by the Peruna Co. The evidence does not show, nor could the plaintiff know, that there were not many.

But quite apart from this, even if the plaintiff company was bound to assume that the filters specifically and unconditionally ordered on November 13th were intended to filter the liquid mentioned in the letter of November 10th, how could it know, so as “to warn the defendant against the filters,” that they would not do that work?

That seems to us something which the defendant ought to have known, but not the plaintiff. The defendant had a filter of the same construction as those they ordered and the one finally substituted, and there is no evidence whatever that the larger filter would not filter anything that the smaller one would. The defendant had also the liquid compound itself for purposes of experiment, and knew exactly of what it was composed and in what proportions.

The plaintiff had the filter, but not the liquid, and all that it knew of the liquid was that it was “a mixture consisting of different ingredients which contain oleoresins and different oils in the crude drugs.” How could anybody, from that description merely, have determined the density or susceptibility to filtration, of the mixture? Later the defendant wrote to the plaintiff that the filtration liquid could not be accomplished by the filter they had received or any other. There was certainly no reason that this should be known to the plaintiff and not to the defendant. Possibly the defendant company may have had reason, in the customs of trade or the usual course of dealing, to hope or expect that the plaintiff would, as a matter of accommodation, take the filter back if it did not suit them. We do not know. That is the impression one would get from their letters to the plaintiff after the filter had proved incapable of the work they expected to do with it. But they had no legal right to demand it, and, as we think, no sufficient defense to this action for the full amount claimed by the plaintiff.

The plaintiff pursued a permissible course on the return of the filter in storing it for the defendant and giving it notice, and then suing for the contract price. Bagley v. Findlay, 82 Ill. 525.

The judgment of the Municipal Court is reversed and a finding and judgment entered here in favor of the plaintiff in error against the defendant in error for $780.65.

Reversed and judgment here.


author: Mr. Presiding Justice Baker

text:
    William F. Manson, Appellee, v. Culver Military Academy, Appellant.
    Gen. No. 13,899.

      Contkacts—when amount paid for tuition, etc., of dismissed student cannot be recovered. The amount paid for the tuition, etc., of a student in a military academy, cannot be recovered by the party paying the same in the event of a dismissal for alleged insubordination, unless it appear that the dismissal was the result of an action so unreasonable and oppressive as to warrant the conclusion that the same was malicious, unfair or prompted by some improper motive or by some motive other than a due enforcement of the regulations of the institution.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed May 19, 1908.
    Statement by the Court. In an action of assumpsit, plaintiff had judgment for $200, and the defendant appealed.
    The defendant, the Culver Military Academy, a corporation, carried on a military school for boys. Plaintiff Manson made a written application to said corporation for the admission of his son to said academy, which was in part as follows: “I desire to enter my son as a cadet in Culver Military Academy, for the year commencing September 16,1903, and ending June —, 1904, subject to the conditions of your printed catalogue and the regulations of the academy.”
    The printed catalogue referred to in said application contained the following- provision:
    “It is a condition upon which cadets are admitted that they shall remain at the academy until the end of the school year, unless they are dismissed, suspended or withdrawn, in which case no money will be refunded.
    Should sickness detain cadets from the academy longer than one month, $5 per week will be refunded as the estimated cost of board and laundry.”
    Defendant’s charge for board, room,laundry, tuition, etc., was $450 per year, whereof $250 was payable on entrance and $200 on the first of January following. Plaintiff’s son entered the academy September 18, and was dismissed November 17, 1903. Plaintiff paid defendant the $250 payable in advance for board, room, tuition, etc., a hospital fee of $5, an entrance fee, etc., of $10, and for certain articles supplied on requisition $17.50, making a total of $282.50 paid October 1, 1903. This suit was brought by plaintiff to recover the money so paid by him to the defendant.
    Church, McMurdy & Sherman, for appellant.
    Jule F. Brower and Samuel B. King, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The written application of plaintiff for the admission of his son to the academy, together with the printed catalogue and regulations of the academy, referred to in the application, constitute the contract between plaintiff and defendant. That contract provides that in case a cadet is dismissed, “no money will be refunded. ’ ’

The declaration consists of the common counts, and the action is in substance an action for money had and received. “If,” said Lord Mansfield, “one man takes another’s money to do a thing and refuses to do it, it is a fraud, and it is at the election of the party injured either to affirm the agreement, by bringing an action for the non-performance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use.” Moses v. McFarlane, 2 Burr 1011; 4 Robinson’s Prac. 560; Bannister v. Read, 1 Gil. 92; Weaver v. Bentley, 1 Caine 46. To recover the money paid on the contract, the plaintiff was bound to prove a breach of the contract by the defendant, and the question presented on this appeal is, was the dismissal of Cadet Manson, under the facts and circumstances shown by the evidence, a breach of the contract between the plaintiff, his father, and the defendant?

Under the regulations of the academy, any delinquency of a cadet was reported on the guard sheet, and the list of delinquencies was read daily. A cadet against whom a delinquency was so reported could apply to the commandant of cadets to have such.delinqueney removed. The commandant also fixed the number of demerits for each delinquency. After he had so fixed the demerits, the number of demerits of each cadet was entered in a book and read at the end of the week. A cadet might then apply to the commandant to have a demerit removed. If the demerits of a cadet in any week exceeded six, he was assigned one hour extra duty for each demerit over six. The extra duty consisted of marching around a circular track carrying a gun. Between September 18 and November 16, 1903, Cadet Manson accumulated, according to his admission, 192 unremoved demerits, and according to the contention of defendant, 207. His demerits each week had exceeded six and he had each week for such demerits been required to do extra duty. Because of the excess of his demerit marks above six in a week, he was ordered to perform two hours’ extra duty November 16. The regulations of the academy provide as follows-:

“229. In the event of absence of proper medical officer, any Cadet feeling himself incapacitated for any duty may, upon application to the .officer in charge, absent himself from such duty, but the Cadet shall be reported ‘absent, claiming to be unfit for duty,’ this report being subject to removal by the Commandant of Cadets, on recommendation of the medical officer, after examination of the Cadet.”

The extra duty squad was under the charge of the officer of the day, under whom was the corporal of the guard.

Cadet Manson, without making application to anyone, left the extra duty squad and went to the commandant of cadets, and asked to be excused from marching longer, and was told to go to the nurse. He went to the nurse, who gave him some medicine and sent him back to duty. He went back, marched an hour, and a half, and again, without making any application to be relieved from duty, left the extra duty squad and went to his room. Fifteen minutes later the corporal of the guard came for him and he went hack, completed his two hours’ extra duty, excepting the time he was in his room, and was then put in arrest. The next morning he was called before the commandant of cadets, who told him that he could not stand his conduct of the night before, and sent him to the superintendent. He testified that the superintendent told him that his conduct of the night before was something they could not stand, “that he was very sorry he had to let me go.” The superintendent testified that he gave Cadet Hanson his dismissal; that he told him the commandant had recommended his dismissal because of the accumulation of his demerits and his violation of the rules of the academy the day before and during the entire fall; that he told Cadet Hanson that his special violations of duty were the wilful destruction of property of the academy, and the leaving of the extra duty squad the night before without permission, and also his going beyond 200 demerit marks during the fall.

Among the regulations of the academy then in force-were the following:

“152. A Cadet receiving over two hundred demerits during one term shall be subject to dismissal.”

“238. The Superintendent and also the Commandant of Cadets have power to investigate violations of the regulations, disorders and breaches of discipline committed by Cadets.”

“271. . Any Cadet who shall manifest an insubordinate or refractory spirit, evincing a disposition to resist the authorities of the Academy, thereby disturb.ing its peace and order, shall be forthwith sent to his home by the Superintendent.”

The regulations also provide that one of the punishments to which a cadet shall be liable is dismissal; that “the Superintendent has the immediate government of the Academy * * * and all cases of severe discipline shall be referred to him for his judgment and approval. ’ ’ Cadet Hanson did not, when called before either the commandant of cadets or the superintendent, deny that he twice left the extra duty squad the day before without making an application to the officer in charge to be relieved. He testified on the trial that he so left the squad without application to be relieved, and gave as an excuse that he was ill. The regulations, as we have seen, gave a cadet the right to absent himself from any duty upon application to the officer in charge, upon his statement that he felt himself incapacitated for such duty, in which case he was reported “absent, claiming to be unfit for duty.” The right to absent himself from duty by making application to the officer in charge, on the ground that he was unfit for duty, Cadet Hanson did not attempt to exercise, but saw fit, without making such application, to twice leave the squad with which he had been assigned to extra duty because of his demerits. The regulations provide that the cadets of the defendant “shall constitute a military corps and be subject to military discipline.” The acts of Cadet Hanson in so leaving the extra duty squad were acts of insubordination, subversive of military discipline, or of any kind of discipline.

It was for the superintendent to determine what the punishment for such acts and conduct should be; whether it should be dismissal from the academy or some lighter punishment. The regulations conferred upon the superintendent the power to dismiss Cadet Hanson for such actions, irrespective of the question whether his demerits for the term, up to that time, amounted to a few less or a few more than 200. The only requirement necessary, so far as concerns a review by a court of justice of his action in dismissing Cadet Hanson, is that his action shall be so unreasonable and oppressive as to warrant a conclusion that he acted maliciously, unfairly, or from some improper motive, some motive other than the proper enforcement of the regulations of the academy and the maintenance of proper discipline. Koblitz v. Wes. Res. Univ., 21 Ohio Cir. Ct. 144; Curry v. LaSalle Sem., 168 Mass. 7; Fessman v. Seeley, 30 S. W. 268: Kabus v. Seftner, 34 Misc. (N. Y.) 538; Homer School v. Wescott, 124 N. C. 518.

We think that the evidence fails to show that the action of the superintendent in dismissing Cadet Manson was unreasonable or oppressive, or any facts to warrant or support a conclusion that in ordering such dismissal the superintendent acted maliciously, unfairly or from any improper motive. It follows from what has been said that, in our opinion, the evidence is not sufficient to warrant or support a finding by the jury that the dismissal of plaintiff’s son by the defendant was a breach of the contract between plaintiff and defendant, and therefore is not sufficient to warrant or support a recovery by the plaintiff from the defendant of the money paid by the former to the latter on the contract.

The judgment of the Circuit Court will be reversed, with a finding of facts.

Reversed, with finding of facts.


author: Me. Presiding Justice Baker

text:
    Elizabeth Bratfish, Appellee, v. John W. Gibbons, Appellant.
    Gen. No. 13,962.
    Master and servant—what risks are assumed. Dangers which are, obvious and apparent are assumed by the servant.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Joi-in Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Reversed with finding of facts.
    Opinion filed May 19, 1908.
    George E. Gorman, for appellant.
    Francis J. Woolley and Alexander Sullivan, for appellee.
   Me. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries plaintiff had judgment for $1,000, and defendant appealed.

Plaintiff was injured while in the service of defendant in feeding a sheet into a mangle. The mangle consisted of a cylinder which revolved towards and just above a heated steam chest. In front of the mangle, throughout its entire length, was a brass feed plate, above which was an iron bar called a guard. As originally constructed, this guard-bar also revolved just above the feed plate and about three inches in front of the revolving cylinder of the mangle. The object of the guard-bar was to lessen the danger of an operator feeding articles into the mangle getting her finger caught between the revolving cylinder and the steam chest. The maker of the mangle in question made mangles with revolving guard-bars and also mangles with stationary guard-bars. The stationary guard-bars were placed the same distance in front of the cylinder, but an inch or a little less above the feed-plate. Some time before plaintiff was injured, the employes of the defendant converted the revolving guard-bar into a stationary guard-bar, by throwing it out of gear and placing an object under each end of the bar, by which it was raised an inch or a little less above the feed plate. This was done, it appears, because there was trouble with the revolving guard-bar so near to the feed-plate, in that certain articles with fringes or tassels had been caught by the revolving bar and wound around it.

The cause went to the jury on the first and second counts of the declaration. The first avers that the defendant negligently, etc., furnished to plaintiff, to be used by her in his service, a mangle which was unsafe and out of repair, and that said mangle did not have proper safeguards, properly adjusted and safely attached thereto. The second count avers that the guard on the mangle was broken, out of repair and out of its proper position, and that defendant wrongfully, etc., ordered the guard to be kept up, out of its proper place and out of proper adjustment.

Plaintiff had been in the employ of defendant for some time, but had worked as a lister and in shaking-out towels, and had not before the day of her injury worked on a mangle. She was directed by the forewoman to assist another young woman in feeding the mangle. Each took hold of a corner of a sheet to feed it to the mangle, and in some way plaintiff’s fingers went under the guard-bar into the mangle between the cylinder and the steam chest, and thereby were crushed, bruised and injured.

Plaintiff was of full age. The declaration does not allege any failure on the part of the defendant to properly warn plaintiff of the danger attendant upon feeding the mangle in question, or failure to instruct her how to avoid such danger. Whether there was more or less danger to the person feeding the mangle with the guard-bar raised up and still, than there was with it nearer to the feed plate and revolving, is immaterial. The position of the guard-bar and the fact that it was not revolving were obvious and apparent. That injury would result.to one feeding the mangle if she permitted her fingers to go under the guard-bar and be caught between the cylinder and the steam chest was also obvious and apparent. That danger was incident to the employment in which plaintiff was engaged at the time she was injured, and was, we think, assumed by her as one of the ordinary risks of the service. Jones v. Roberts, 57 Ill. App. 56; Ward v. Daniels, 114 id. 374.

The judgment of the Circuit Court will be reversed, with a finding of facts.

Reversed, with finding of facts.


text:
    John H. McDonald, Appellee, v. Frank McDonald, Appellant.
    Gen. No. 13,968.
    1. Cebtioeabi—propriety of form of judgment where common law writ of, has Veen improvidently issued. If the court is of opinion that a common law writ of certiorari has been improvidently issued, the judgment, before the return of the writ, should be that the same be superseded.
    2. Certiorabi—character of motion to quash. A motion to quash or supersede a common law writ of certiorari is addressed to the discretion of the court.
    3. Certiorari—-rwhat justification for superseding common law writ of. A common law writ of certiorari should not be issued, or, if issued, should be quashed or superseded, where the application therefor was not made until after the time within which a writ of error might be prosecuted or where the application therefor was accompanied by an unexcused delay.
    4. Cebtioeabi—what does not justify issuance of common law writ of. A common law writ of certiorari should not be issued to correct errors of a purely technical character.
    Certiorari. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907:
    Affirmed.
    Opinion filed May 19, 1908.
    Statement by tlie Court. John H. McDonald recovered a judgment, October 8, 1901, against Frank McDonald, before John Richardson, a justice of the peace of the Town of South Chicago, for $153 and costs.
    The Municipal Court Act abolished the offices of justices of the peace in said town and other towns in the city of Chicago, and provided that the docket of each justice whose office was so abolished should be delivered to the clerk of the Municipal Court. January 19, 1907, the defendant in the judgment filed his petition in the Circuit Court for a common law writ of certiorari to be directed to the clerk of said Municipal Court, the plaintiff in the judgment, and the chief

      bailiff of said court, commanding them to send up to the Circuit Court a transcript of said judgment. One of the judges of the Circuit Court indorsed on the petition over his hand an order “that said petition be and the same hereby is granted.” No return was made to the writ. April 13, 1907, the Circuit Court entered an order that said writ of certiorari be quashed, at the costs of petitioner, and from that order this appeal is prosecuted by the petitioner.
    Louis Greenberg, for appellant.
    James 0. Browder and Aaron Cohn, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

The order quashing the writ was made upon the face of the petition, before return. Strictly, perhaps, the order should have been, if in the opinion of the court the writ had been improvidently allowed, that the writ be superseded, under the rule that the writ is quashed or dismissed only after the return has been made, while it is superseded before the return. 4 Ency. of Pl. & Pr. 234. But in Darmstaedter v. Armour, 17 Ill. App. 285, where a writ of certiorari had been improvidently allowed, an order that the writ be quashed, made before return, was affirmed.

We shall consider the question argued by counsel on both sides, viz.: whether the writ was properly quashed or superseded because of the delay of appellant in suing out the writ, as properly brought before us for review, and also the question whether the errors in the judgment alleged in the petition are of such a nature as made the allowance of the writ proper.

A writ of certiorari is not a writ of right, but its issuance is to a great extent discretionary. So a motion to quash or supersede the writ is addressed to the discretion of the court. The remedy by certiorari is in the nature of that afforded by a writ of error. “The writ will not be granted for the correction of merely harmless, technical or formal errors which are not shown to have resulted prejudicially or to have caused substantial injustice to the petitioner.” 4 Encyc. of Pl. & Pr. 34. So also, “Where the applicant for the writ has been guilty of unreasonable delay in suing out the writ, it will be quashed. ’ ’ Id. 236.

The general rule, in the absence of special facts or circumstances excusing the delay, is that a common law writ of certiorari will not be issued, or.if issued will be quashed or superseded, where the application for the writ is not made until after the time within which a writ of error must be prosecuted has elapsed. Hyslop v. Finch, 99 Ill. 171-179; People v. New York, 2 Hill 9. The errors in the judgment alleged in the petition are only that the justice’s transcript fails to show that the cause was called at the hour, or heard at the place, specified in the summons. These errors are very technical, and it does not appear from the petition that they caused any substantial injustice to the petitioner. Again, more than five years elapsed between the rendition of the judgment and the suing out of the writ, and under our statute a writ of error must be sued out within five years.

The writ was improvidently allowed, we think, both because the errors alleged were merely formal and technical, and because of the laches of the petitioner, and therefore the order quashing the writ was proper and will be affirmed.

Affirmed.


text:
    Emelia Bohlen, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,002.
    1. Contributory negligence—what does not establish. 3eld, that under the facts of this case, it was not contributory negligence for the driver of a vehicle to fail to turn out of street car tracks to the left or east.

      2. Negligence—when doctrine of imputed, does not apply. The negligence of a husband cannot be imputed to his wife who is riding with him in a vehicle over which she is exercising no management or control.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1907.
    Affirmed.
    Opinion filed May 19, 1908.
    William J. Hynes, John E. Kehoe and Watson J. Ferry, for appellant.
    Edward R. Litzinger, for appellee.
   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant from a judgment for $1,000, recovered in an action on the case for personal injuries.

Defendant had a double track electric street railway in Halsted street, a north and south street. About two hundred feet south from the bridge over the south branch of the Chicago river Halsted street runs in a subway, the full width of the street, under the elevated tracks of the Alton railroad. Plaintiff was going south in Halsted street in a wagon on which was an empty hay rack, from the rear of which a binding pole extended about two feet. Plaintiff sat on a ladder laid across the front part of the hay rack, with her feet near the front end of the pole. Plaintiff’s husband drove the team. As the wagon passed through the subway it was in the west, the south-bound track. A south-bound car of the defendant ran against the projecting end of the binding pole, and thereby the front end of the pole was made to strike against and injure the foot and leg of the plaintiff.

The evidence as to where in the street the hay wagon ran betwen the bridge and the subway is conflicting. That for the plaintiff tended to show that it ran in the west .track from the bridge to the subway; that when it reached the subway there was an ice wagon west of and about four feet from the car track, and another wagon in the car track in front of the hay wagon; that the wagon in the car track stopped and the hay wagon drove up to that wagon and stopped; that the wagon in front started forward and turned out of the car track to the west, and the driver of the hay wagon also started to turn out to the west, and when the fore wheels of the wagon only were out of the track the collision occurred. The evidence for the defendant tended to show that the hay wagon ran west of and at such distance from the car track that there was room for the car to pass the wagon until the car was within a few feet of the wagon, when it suddenly turned to the east into the car track, and that after the wagon started to turn to the east it was impossible to stop the car in time to avoid striking the end of the binding pole.

The contention of appellant that if the driver could not turn out to the right and west, he should have turned out to the left and east, and was guilty of negligence in failing so to do, cannot be sustained. There was a row of columns in the subway between the railroad tracks, which rendered it difficult, if not impossible, to turn out to the east. Again, to turn out to the east was to go upon the north-bound track, and if that track was safely crossed, to go upon the left side of the street in violation of the “rule of the road.”

But the question in this case is not between the plaintiff’s husband, the driver of the team, and the defendant, but between the plaintiff and the defendant. There is no evidence tending to show that the plaintiff had or exercised any control over her husband in the management of his team. His negligence, if he was negligent, cannot be imputed to her, nor be held to be her negligence. W. S. St. R. R. Co. v. Detloff, 92 Ill. App. 547; C. C. Ry. Co. v. Wall, 93 id. 411. The question whether plaintiff’s husband was guilty of negligence is therefore immaterial unless it can be held that his negligence was the sole cause of the injury, and therefore excludes the conclusion that the defendant was guilty of negligence which contributed to such injury. We do not think that the evidence shows that the negligence of the driver was the sole cause of the collision, but think that from the evidence the jury were warranted in finding that the defendant was guilty of negligence which directly contributed to plaintiff’s injury, and the contention of appellant that the verdict is not justified by the evidence cannot therefore be sustained.

We find no reversible error in the rulings of the court on questions of evidence.

We see no objection to defendant’s instruction No. 21, which was refused, but so much of said instruction as defines ordinary care was given in instruction No. 11, and so much of said instruction as tells the jury that if they “believe from the evidence that the defendant and its servants at the time and place in question exercised towards plaintiff ordinary care and caution to avoid injuring her, but that nevertheless the accident occurred, it is your duty to find the defendant not guilty,” was given in substance in given instruction No. 3, which concludes as follows: “If you believe from the evidence that the motorman in question was at and before the happening of the accident conducting his car with reasonable and ordinary skill, care and caution, and that the accident happened without negligence on his part, then it is your duty to find the defendant not guilty”; for the only negligence of the defendant which the evidence tended to prove was the negligence of the motorman in charge of defendant’s car. The substance of refused instruction 16 is contained in given instruction 3. We do not think it was reversible error to refuse to give to the jury said instructions 16 and 21.

We do not think that the damages awarded the plaintiff are so excessive as to justify a reversal of the judgment on that ground.

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

Affirmed.