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    Waldo P. Johnson, Appellant, v. Charles E. Milmine et al., Appellees.
    Gen. No. 14,533.
    1. Contracts—what gambling within meaning of statute. A contract of sale and purchase of grain will he held void if it appears that at the time the sale was made it was the intention of both parties that no delivery of the commodity should take place but that the transaction should be settled by adjusting the difference between the contract and market prices.
    2. Contracts—what not gambling, within meaning of statute.
      The statute does not prohibit a bona fide contract of sale and purchase of grain for delivery within a future month where the date of the delivery is made at the option of the vendor by the terms of the contract.
    3. Contracts—what not gambling, within meaning of statute. If either party to a contract of sale and purchase of grain acts in good faith intending at the time of the making of the contract that there would be delivered thereunder a commodity specified, should be received and paid for, the contract will be valid and binding under the law.
    4. Contracts—burden to establish gambling nature. The burden of proof to show contracts of sale and purchase of grain were in fact gambling transactions is upon the party who asserts the fact, and proof thereof should be required by a clear preponderance of evidence.
    5. Pledges—what evidence of ownership. A party to whom corporate stock has been endorsed and delivered is thereby vested with the indicia of ownership and a party relying on such apparent ownership and receiving the stock in good faith and for value by way of pledge, will be protected in a court of equity.
    6. Pledges—what not conversion by pledgee. Held, under the evidence in this case, that there was no unlawful conversion by the pledgee of the corporate stock in question.
    7. Interest—when properly allowed. Held, that an allowance of interest upon a stock broker’s account was proper, it appearing that prior to the litigation interest had been regularly charged by such broker to the customer and acceded to by him without objection.
    Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. George A. Dupuy, Judge, presiding.
    Heard in the Branch Appellate court at the March term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.
    Statement by the Court. On March 27, 1906, Waldo P. Johnson filed a bill of complaint in this case, setting forth that he is the owner of 222 shares of the capital stock of Borden’s Condensed Milk Company, evidenced by four certificates, giving the numbers of the certificates and the number of shares specified in each.
    The bill shows that the stock certificates were then in the possession of Borden’s Condensed Milk Company, and that for many years past they had stood in the complainant’s name on the books of that company and he had regularly received the dividends thereon; that on February 23, 1906, the defendants, Milmine, Bodman So Company, presented said certificates to Borden’s Condensed Milk Company and demanded transfer of them; that the stock was worth $180 per share; that the defendants, Milmine, Bodman So Company, obtained the stock from a party who had obtained possession from the Corn Exchange National Bank for the purpose of delivering them to somebody else than Milmine, Bodman So Company, and that they were wrongfully and fraudulently turned over to Mil-mine, Bodman So Company; that Milmine, Bodman So Company and the party from whom they obtained the certificates conspired and confederated together to cheat the complainant out of the possession and ownership of the stock and without his knowledge or authority, and entered into certain gambling transactions among themselves and with others, wherein the certificates of stock were used as margins or as collaterals to secure margins.
    The bill avers that complainant never authorized the defendants to use said stock for any purpose, and never engaged in any transactions with them; that any right which they claim to have to said stock is without consideration and void; that said defendants have never disposed of said stock as collateral, and that complainant is not able to obtain possession of said certificates, but that he has demanded the same; that Borden’s Condensed Milk Company threatens to transfer the stock to defendants. Complainant prays that said stock may be declared to be his sole and separate property and that an order may be entered on the defendants to deliver up the same to him, and on default thereof that a money decree may be entered against the defendants; that the defendants may be restrained and enjoined from making any transfer of said stock.
    On April 4, 1906, Borden’s Condensed Milk Company filed its answer to the bill, admitting that the defendants presented said stock for transfer, that it now has possession of the same and that the complainant has demanded the said stock and demanded that it be not transferred; that it has no knowledge of the transaction by which defendants became possessed of said stock; that it holds the stock subject to the order of the court and has no interest therein.
    On the same day Borden’s Condensed Milk Company filed its cross-bill, setting up how the stock came into its possession from Milmine, Bodman & Company, the latter’s demand for transfer, and the demand by Johnson for the stock; that legal proceedings have been begun by Milmine, Bodman & Company in the state of New York to compel the transfer of said stock to them. The cross-bill prays that the parties may be compelled to interplead and settle their right and title to said stock.
    On April 4, 1906, an order was entered requiring Borden’s Condensed Milk Company to forthwith bring into court the certificates of stock and deposit them in court. This was done and the certificates of stock, as well as $2,228.81 in dividends which accrued to the stock since the suit was instituted, have been deposited with the clerk of the court and by him placed in a safety box in the National Safety Deposit vaults.
    May 23, 1906, Milmine, Bodman & Company filed their answer to the cross-bill of interpleader of Borden’s Condensed Milk Company and all of the defendants except Mitchell filed their cross-bill against all the other parties to the case and one Jerome Probst. In this answer Milmine, Bodman & Company set forth that one Mitchell is employed as manager of their stock and bond department. They deny that Johnson is the owner of the stock mentioned in the bill. They set forth that Johnson executed a blank assignment on the stock certificates and suffered the same to get into possession of one Jerome Probst, and that Probst had delivered the shares of stock to Milmine, Bodman & Company for a valuable consideration. They admit that the certificates are in the possession of Borden’s Condensed Milk Company and have been placed there by Milmine, Bodman & Company for transfer to them, and say they have no knowledge as to whether the stock stood in the name of Johnson on the books of the company, or that he had been receiving dividends thereon. They aver that Borden’s Company had refused to make such transfer. They admit that the stock is of the value of $180 per share and state that the stock certificates came into their possession through Probst, who was a customer of theirs, but whether he obtained them from the Corn Exchange Bank for delivery to someone else they do not admit or deny. They set forth that Probst was clothed with the indicia of ownership. They deny that the certificates were wrongfully and fraudulently turned over to them by Probst, and deny any confederation with Probst. They further deny that' they have entered into any gambling contracts among themselves or with Probst or with anyone else, wherein the certificates were to be used as margins in the purchase of grain, coffee, stocks, bonds and other commodities. They admit that complainant never personally authorized them to use said stock. They set forth that the transactions between Probst and the defendants and Probst and the complainant do not affect their stock. They admit that the complainant never personally engaged in transactions with Milmine, Bodman & Co. They set forth that they have never disposed of the said stock as collateral and that they were asking to have the same transferred to them to sell the same and apply the proceeds to the account of said Probst. They aver that Probst, in the usual course of business, authorized and directed the defendants to purchase and sell for his account certain commodities such as wheat, cotton, coffee, railway stocks and other securities traded in by these defendants on the Board of Trade and other exchanges, and gave to the defendants as collateral security for margins the said certificates, together with other securities, and that defendants accepted in good faith the said certificates and other securities as security for money advanced to Probst; that the market went against said Probst in said trades and said trades were closed out and the losses charged to the account of said Probst, which amounted to $25,853.09, and are still due and unpaid; that the defendants hold the said stock as collateral security to secure the amount of the indebtedness and claim a lien on said stock for the amount of said indebtedness with interest; that they sent the said certificates of stock to New York and demanded transfer to enable them readily to dispose of them.
    Milmine, Bodman & Company also answer the cross-bill of interpleader of Borden’s Company and set forth that the transfer of stock should be made to them and admit that they began suit against the company in the state of New York to compel transfer.
    In a cross-bill filed by Milmine, Bodman & Company they set forth substantially the same facts set forth in their answer and that they have a lien upon the stock for $25,853.09; that the stock is of the value of $40,000 and that they are entitled to have the same sold and deduct the amount of said Probst’s indebtedness and credit the amount remaining to the account of said Probst; and pray that the said 222 shares of stock be sold to satisfy said amount. They make Jerome Probst a party to their cross-bill.
    On July 14, 1906, the complainant Johnson filed his answer to the cross-bill of Milmine, Bodman & Company in which, after setting up his interest in said stock, he admits that prior to February 23, 1906, one Jerome Probst was a customer of the complainants in the cross-bill and traded in stocks, bonds, grain, cotton and other commodities. Johnson says that Probst placed the stock with them as margins, that all the transactions by said Probst were carried on without any intention of delivering the property pretended to be sold and without any intention of receiving or paying for the property pretended to be bought, and that his intentions were known to and participated in by Milmine, Bodman & Company, and that the transactions were simply gamblings on the' fluctuations of the market and void and contrary to law; that said securities were received by Milmine, Bodman & Company as margins on said trades. Johnson denies that said defendants received the stock from Probst in good faith and for a valuable consideration, and avers that Probst, at the time he placed said stock with defendants, informed Milmine, Bodman & Company that the stock belonged to him, Johnson, and that the latter was the owner of the same; that said Probst informed them that he had no right to pledge or transfer said stock. The answer denies that the securities placed by said Probst with cross-complainants were inadequate to protect them in any losses sustained by said Probst. It also denies that the cross-complainants demanded of said Probst to put up margins to protect the trades, and avers that the trades of Probst were-closed out while the securities were amply adequate to protect the losses; and denies that .they lawfully closed out the trades and charged the losses to the account of Probst and that there was any sum due to Milmine, Bodman & Company. The answer admits that they demanded the transfer of the stock to their name, but denies that they had any right to do so. The answer admits that the stock was of the valué of $40,000 and avers that Probst wrongfully and fraudulently allowed the same to get out of his possession, and that Milmine, Bodman & Company were cognizant and knew of such facts as would put a person of ordinary prudence and capacity upon inquiry with regard to the ownership of the stock, and that such inquiry would have disclosed that Johnson was the owner.
    On October 29, 1906, Jerome Probst filed his answer to the cross-bill of Milmine, Bodman & Company in which he set forth that the transactions which he had carried on and conducted for years with Milmine, Bod-man & Company were gambling transactions; that Mil-mine, Bodman & Company wrongfully closed him out; that they never had any lawful title to the stock, and that the closing out of his trades was without notice to him and while Milmine, Bodman & Company had ample security, and that Mihnine, Bodman & Company had knowledge of the fact that Johnson was the owner of said stock.
    The case was heard in open court on the testimony of Johnson, the complainant, the deposition of Probst taken in New York on behalf of complainant, and the testimony in open court of L. W. Bodman, Sidney Mitchell and other witnesses for the defendants, and the depositions of employes of various cotton, coffee and stock brokers in New York taken on behalf of the defendants.
    A decree was entered March 25, 1907, in favor of Borden’s Condensed Milk Company on their cross-bill of interpleader. It recites the deposit of the stock and the dividends accruing thereon by the Borden Company and requires of other parties to litigate their rights to said stock and enjoins them from proceeding against Borden’s Condensed Milk Company and dismiss Borden’s Condensed Milk Company from the case.
    On November 20, 1907, a final decree was entered in the case, dismissing the original bill of Johnson and the cross-bill of Jerome Probst. It found that the contracts, trades and transactions between Milmine, Bod-man & Company and Jerome Probst were legal, valid and binding contracts; that Milmine, Bodman & Company received the 222 shares of stock as security for the indebtedness of Probst to them and that there was due from Probst to Milmine, Bodman & Company $28,244.36, and that Milmine, Bodman & Company had a lien on the stock for that amount.
    The decree found that the stock belonged to Waldo P. Johnson, free and clear of any claim of Jerome Probst.' It ordered the stock sold or so much thereof as should be necessary to pay the amount found due Milmine, Bodman & Company from Probst, and if there was more stock than' sufficient to pay Milmine, Bodman & Company, then the same and the dividends in the hands of the clerk should be turned over to complainant Johnson.
    From this decree Johnson appeals to this court.
    It appears from the record that Jerome Probst was a lawyer in Chicago, where he had practiced for several years, and that complainant Johnson was- his client; that their relations, besides being those of attorney and client, were intimate and that Johnson trusted Probst; that Probst had repeatedly told Johnson of the opportunities that he had in the course of his business as a lawyer to make money by loaning money on mortgages, discounting mortgages and notes, short time loans, etc., and that Johnson was the owner at that time of the certificates described in the bill of complaint.
    In 1901 Probst obtained from Johnson a portion of the certificates of stock here in controversy for the purpose of raising money to be used for the joint benefit of himself and Johnson in the purchase of mortgages, discounting notes, etc. At this time and subsequently Probst obtained from Johnson 222 shares of corporate stock of Borden’s Condensed Milk Company.
    In 1903 and thereafter during the part of the transactions involved in this litigation Milmine, Bodman & Company were brokers doing business on the Chicago Board of Trade and the Stock Exchange of Chicago. Some time in the summer of 1903 Probst opened an account with Milmine, Bodman & Company and at the beginning of his transactions deposited with them a check for $7,500, at the same time informing them that it was his purpose to make purchases and sales on the Board of Trade and the Stock Exchange through them as brokers.
    In the course of Probst’s transactions with Milmine, Bodman & Company he bought and sold large quantities of corporate stocks, grain, cotton and coffee. These transactions were very numerous and covered a period of several years and amounted to a large sum in the aggregate. Only a small portion of the stocks and grain, as appears from the record, were ever delivered, nearly all of the transactions being resold before the stipulated time of delivery arrived. From time to time during these transactions different certificates of the shares of stock in question were deposited with Milmine, Bodman & Company as collateral security for margins, as claimed by Milmine, Bodman & Company, or as margins, as claimed by Johnson and Probst, for the stocks and grain purchased and sold by Milmine, Bodman & Company on Probst’s account. These certificates of stock belonged to the complainant Johnson, who had been the owner of them for a long time, and when they were deposited with Milmine, Bodman & Company they were all endorsed in blank over the genuine signature of complainant, Waldo P. Johnson. Each certificate of shares had on its back the usual certificate of assignment with blanks for the insertion of the name of the assignee, the date of the transfer, etc., and when deposited with Milmine, Bod-man & Company these assignments were wholly blank except as to the signature of Waldo P. Johnson.
    It is claimed by Johnson, and the evidence shows, that Probst had no authority to make use of these certificates for his own purposes in connection with these transactions upon the Board of Trade and the Stock Exchange.
    Fred H. Atwood, Frank B. Pease and Charles O. Loucks, for appellant.
    James Todd, for appellees.
   Mr. Justice Smith

delivered the opinion of the

court.

Many errors are relied upon in appellant’s brief and argument for a reversal of the decree of the Superior Court. It will not be necessary, in our opinion, to discuss all of them specifically in disposing of the case. The main object and purpose of the bill is to free the 222 shares of the capital stock of Borden’s Condensed Milk Company, of which appellant Johnson is the owner as between him and Probst, from the claim of lien of Milmine, Bodman & Company and prevent the transfer of said stock to them, or the sale of the stocks to satisfy the claims of Milmine, Bodman & Company against Probst. The bill and the case made under the bill present the following grounds of relief: First, the transactions between Probst and Milmine, Bodman & Company were gambling transactions and were therefore void under the statute; second, that Milmine, Bodman & Company had actual or constructive notice of the rights of complainant Johnson as owner of the stock; and third, that Milmine, Bodman & Company wrongfully closed out the deals of Probst, and they have no standing to assert and foreclose the lien on the stock under their cross-bill.

The other questions presented and discussed by the able and exhaustive briefs and arguments of counsel on both sides of the case are subsidiary to the questions above stated, and so far as it may be deemed necessary or possible to discuss them within the reasonable limits of this opinion it will be done while considering the questions above stated.

It may be conceded at the outset that if the evidence sustains any one of the grounds above enumerated, the decree is erroneous and must be reversed.

Some leading principles have been established, we think, by the decisions of our Supreme Court and the courts of last resort in other jurisdictions in cases involving similar transactions which have been presented for determination, under similar statutes. Without stopping to quote the statutes which are familiar to the profession we shall state such of those principles as we deem applicable to the transactions now before us.

In the first place, we think it is clear that the statute does not prohibit a bona fide contract of sale and purchase of grain for delivery within a future month, where the day of delivery is made at the option of the vendor by the terms of the contract.

Second. A contract of this character will be held void if it appears that at the time the same was made it was the intention of both parties that no delivery of the commodity should take place, but that the transaction should be settled by adjusting the differences between the contract and market prices.

Third. If either party acted in good faith in making such contract, intending at the time of the making of the contract that there should be delivery thereunder and the commodity specified should be received and paid for, the contract will be valid and binding-under the law. This is perhaps a corollary of the last proposition.

In Wolcott v. Heath, 78 Ill. 433, the court said:

‘ ‘ Time contracts made in good faith for the future delivery of grain or any other commodity are not prohibited by the common law, nor any statute of this state, nor by any policy beneficial to the public welfare. Such a restraint would limit commercial transactions to such a degree as could not but be prejudicial to the best interests of trade.”

In Barnett v. Baxter, 64 Ill. App. 544, it was said:

“Transactions of purchase and sale of grain for future delivery are valid, and the fact that the seller has the option to deliver any time during the month for which the sale is made does not render them illegal.”

In Pixley v. Boynton, 79 Ill. 351, the court held:

‘ ‘ The intent of the parties gives character to the transaction and if either party contracted in good faith he is entitled to the benefit of his contract, no matter what may have been the secret purpose or intent of the other party.”

In order to invalidate a contract for the delivery and sale of stocks, grain or other property in the future, it must appear that neither party had the intention to deliver the property, and that both had the intention of settling on differences only. Pratt v. Ashmore, 224 Ill. 587. Both parties must be shown, (1) not to have had the intention to deliver, and (2) to have had the intention of settling the differences only. Proof of such mutual intention is necessary. Pope v. Hanks, 155 Ill. 617; Ward v. Vosburgh, 31 Fed. Rep. 12.

And in Logan v. Musick, 81 Ill. 415, the court held:

“The statute does not prohibit a party from selling or buying grain for future delivery; such was not the purpose of the statute; nor can it make any difference as to the legality of the contract whether the party who sells for future delivery at the time the sale is made has on hand the grain.
“A party may sell today a certain quantity of grain for delivery in a week or a month hence and then go upon the market and buy grain to fill the contract. It is true the defendant had the option under the contract to select a day within a limited time on which he would receive the grain, but such an option does not fall within the statute for the reason that it does not render the sale optional. ’ ’

Examining the evidence in the record with these principles in mind we find that the main reliance of the complainant for establishing the illegal character of the transactions between Probst and Milmine, Bod-man & Company is that Probst was a practicing lawyer in Chicago, and not a man engaged primarily in dealing in grain; that this fact was known to Mil-mine, Bodman & Company, and that the transactions conducted by them on Probst’s orders were greater in extent and volume than could reasonably be undertaken by a man of his financial ability. It also appears from the record that although there were upwards of two hundred and forty-eight accounts of purchases and sales rendered by Milmine, Bodman & Company to Probst from the time he commenced dealing through them as brokers in September, 1901, to February 26, 1906, covering millions of bushels of grain and large quantities of cotton and coffee, there were few actual deliveries made, and most of the contracts were closed out or changed to other deliveries before the times of delivery arrived. Probst testified directly and positively that the intention on the part of himself and Milmine, Bodman & Company was that there should be no' deliveries of the commodities purchased and sold. These and other similar facts are pressed upon our attention as presenting a strong preponderance of proof in favor of the complainant on the gambling character of the transactions between the parties.

Upon a careful consideration, however, of all the evidence on this issue, we are of the opinion that the weight of the evidence is against the complainant, and that the transactions shown in the record were the ordinary transactions on the Chicago Board of Trade and the stock exchanges. "We find it difficult to believe the testimony of Probst when he testifies that Milmine, Bodman & Company had the intention, in common with himself, that there should be no deliveries under the contracts made by them on Probst’s orders and for his account. They deny such intention squarely and specifically. As stated above, their transactions were made on the Board of Trade and the Stock Exchanges of Chicago and New York, and subject to the rules, regulations and contracts of those bodies. These contracts contemplated delivery and receipt of the commodities bought and sold as between Milmine, Bodman & Company and the parties with whom they executed Probst’s orders. It is unbelievable, on the evidence in the record, that Milmine, Bodman & Company would have consented to enter into contracts with other members of the exchanges which required deliveries and receipts of the commodities dealt in, and at the same time agreed with Probst that as between him and them he should not be required to receive the commodities which they purchased for him on his orders, or to deliver what they sold for him—in other words, that Mil-mine, Bodman & Company agreed for the regular commissions which they were to receive, to stand in the breach between Probst and the parties with whom they made transactions, taking their commissions if the market was in favor of Probst and standing the loss if the market was against him, with no claims which they could legally enforce against him. We cannot understand how a concern like Milmine, Bodman & Company, whom Probst characterized as “strictly business from the time they open until they close at night,” could consent to stand in the breach between Probst and the parties with whom they made contracts, from a purely financial point of view, to say nothing of the deliberate purpose involved to violate the criminal code of the state. This theory of the transactions is inherently improbable.

In this connection the evidence of Probst must be considered. All through his evidence he speaks of conversations with Mr. Mitchell and Mr. Stolz, who were connected with Milmine, Bodman & Company, in regard to deliveries which would be made when certain options matured. And in order to avoid the deliveries contemplated by the transactions which were maturing, new transactions were made in order to change over from one option to another. Probst says: 1 ‘ The object of this was to prevent my being called upon to deliver the wheat if I was short.” He further says: “I would have these talks with Mr. Mitchell and Mr. Stolz four times a year or of tener. ’ ’ He refers in this testimony specifically to the regular May, July, September and December deliveries under contracts for those deliveries. Probst thus shows by his own testimony that it was clearly understood and recognized between him and Milmine, Bodman & Company not only that the purchases and sales which they were making in pursuance of his orders contemplated deliveries of the commodities between his brokers Mil-mine, Bodman & Company, and the parties with whom they dealt, but also as between Milmine, Bodman & Company and himself.

The burden of proof in this case to show that the contracts in question were in fact gambling transactions is upon the complainant who asserts the fact, and in a case like this the complainant should be required to make this proof by a clear preponderance of the evidence. Pixley v. Boynton, supra; Ward v. Vosburgh, supra. As said in Curtis v. Wright, 40 Ill. App. 491: “Unless we are prepared to hold that all such transactions on the Board are in violation of law and gambling transactions, we cannot hold that the fact that there are no deliveries of grain sold, is conclusive evidence that when the parties made the sale they did not intend to deliver.”

The record in this case explains how it came about that there were comparatively few deliveries. The evidence shows that the deals were changed over from one option to another, and thus the actual deliveries were postponed. This was done with Probst’s consent and on his orders, and for the purpose of preventing deliveries on the maturing options. The fact therefore that few deliveries were made becomes of little significance on the question as to whether the transactions in question were gambling transactions and void. Clews v. Jamieson, 182 U. S. 461, 492, 494. In this connection the remarks of Mr. Justice Holmes considering a similar question in Chicago Board of Trade v. Christie, etc., 198 U. S. 236, are pertinent.

In Cleage v. Laidley, 79 C. C. A. 284, the court considered a case where a party dealt in 14,000,000 bushels of grain and the contracts for more than ninety-eight per cent, of this property were settled by set-off, and by the payment of differences, and held that this fact did not show an illegal intention or purpose.

The rules and laws of the Chicago Board of Trade, the Chicago Stock Exchange and the New York Stock Exchange, in which markets all the transactions here involved were made, provided for, contemplated and intended the delivery of the property dealt in. That Probst knew this, and gave his orders with this understanding, is fully shown by his testimony and by what he did during the four years or more covered by the transactions. In the first notice of confirmation of sales received by him from Milmine, Bodman & Company on September 3, 1901, he was notified in writing that all purchases and sales made for him were made in accordance with and subject to the rules and regulations of the different markets where the transactions were made for him. Every confirmation of sales received by him subsequently contained the same notice. The record fully justifies us in the conviction that Probst fully understood that all the transactions made for him were of the character contemplated by the rules and laws of these exchanges, and required deliveries to be made. Our conclusion from the evidence is that they were so made; and that there was no understanding between Probst and his brokers or intention on the part of Milmine, Bodman & Company not to deliver but to settle by the payment of differences between the contract price and the market price.

The next question for consideration is whether Mil-mine, Bodman & Company had actual or constructive notice of the rights of complainant Johnson as owner of the shares of stock in question.

The position taken by complainant in his original bill is that Probst and Milmine, Bodman & Company entered into a combination and conspiracy to cheat and defraud complainant Johnson out of the 222 shares of the Borden’s Company stock. No evidence was introduced to sustain these allegations of the bill, and solicitors for complainant in their argument do not claim or contend that there was such a combination or conspiracy by which Milmine, Bodman & Company came into possession of the certificates. This contention in the bill may therefore be dismissed from further consideration.

In his answer to the Milmine cross-bill Johnson bases his claim to the stock upon the ground that Probst, at the time he delivered the stock to Milmine, Bodman & Company, informed them that the stock belonged to Johnson, and that he, Probst, had no right to pledge or transfer and convey the stock.

The only evidence offered in support of this averment of notice of Johnson’s interest in the stock was that of Probst, who testified that along in the summer of 1905, he had a conversation with Mr. Mitchell of Milmine, Bodman & Company, who told him they were not satisfied with the certificates being in the name of Dr. Johnson, while he was drawing the dividends as the ostensible owner; that Mitchell further said they would feel much safer if the stock was transferred to themselves, or if not to themselves to him, Probst; and thereupon he—Probst—told Mitchell that Dr. Johnson had an interest in the stock, and that he was certain Dr. Johnson would not consent to the transfer of the stock to anyone, and that he would not care to ask him to make the transfer. Probst further says the matter was then dropped, but was taken up again on three or four occasions, the last time along in the early part of November, when Mitchell said: “We can’t carry your account on stock margins with this Borden’s stock unless it is transferred from Johnson’s name to us or to you.” Probst says that he replied that he would not transfer it, or ask to have it transferred, as Dr. Johnson had an interest in the stock; that they—meaning Milmine, Bodman & Company— would either take his business with the stock in its then condition or he would transfer his account elsewhere, and the result was that Mitchell dropped the matter and decided to continue carrying his account on the Borden’s stock margins. After this talle he says he redeposited the little certificate in the middle of November. Then in the latter part of November, 1905, he deposited the larger certificate for 100 shares, and in the early part of the following December another certificate, and in January, 1906, another share certificate which gave them control and possession of all four certificates. Mitchell expressly and specifically denies that Probst ever told him at any of the times when the stock was put up by him that Johnson had an interest in it; he testified that the first conversation he had with Probst as to Johnson’s interest in the stock was on February 26, 1906, when Mitchell informed Mr. Bodman that Johnson had served the notice on the Borden Company that the 222 shares had been stolen from him, Johnson; that hé did not request Probst to have the certificates of the Borden’s Company stock transferred to himself or to Milmine, Bodman & Company; that he did not tell Probst that Milmine, Bod-man & Company were dissatisfied with the certificates being in the name of Dr. Johnson and that Dr. Johnson was drawing the dividends; that he did not say to Probst that they were carrying the stock as margins or mention it to him; that nothing was ever said about taking it as margins. Mitchell had a conversation with Probst in Milmine, Bodman & Company’s office, when he deposited the stock, October 31, 1904. He said he would leave the stock as collateral, that it was perfectly good, and Milmine, Bodman & Company could get a quotation from New York on it, and they obtained such quotation.

Mitchell testified that in the conversation on February 26,1906, in regard to the notice served by Johnson, Probst said that it was nonsense about the stock being stolen from Johnson; and several days later after Probst deals had been closed out Probst told him, Mitchell, that he had papers which showed that he had a perfect right to use the stock, and that Johnson had a half interest in his transactions with Milmine, Bod-man & Company and had received half of all the checks which that firm had paid Probst. Here again, on this question of notice to Milmine, Bodman & Company of Johnson’s interest in the stock in question, we find it difficult to believe Probst’s testimony. It is inherently improbable. Probst is personally interested in the issue of this litigation. A decree in favor of complainant Johnson would be greatly to the advantage and benefit of Probst. The great discrepancy between his pleadings and his testimony, and between his direct and his cross-examination, and between his testimony and his own letters and telegrams and the documentary evidence in the case, all lead us to accept the testimony of Mitchell rather than that of Probst. We cannot believe that when he offered this stock as collateral security for margins, or as margins as he puts it, that he would give notice that he was not the sole owner of it, for he knew as a lawyer that Milmine, Bodman & Company could obtain no lien upon or rights in the stock as against Johnson, if they had notice of Johnson’s ownership of, or interest in, the stock, and that such notice would in all probability defeat his purpose in attempting to pledge the stock. Johnson had endorsed the stock and delivered it to Probst, thus giving him evidence that it was his, Probst’s, stock (McCarthy v. Crawford, 238 Ill. 38). Why should he, by giving notice of Johnson’s interest, start an inquiry which in all probability would defeat his immediate object, and make the stock useless in his hands 1 Such a notice would have been evidence to Milmine, Bod-man & Company that Probst was dishonest toward Johnson, or dishonest with them, for, according to his own version of the facts, he had deceived them by suppressing the truth in regard to the ownership of the stock when he first pledged it to them as security for margins, or as security for a loan of money. If he intended to put up as security for his own transactions another man’s property, naturally and ordinarily he would have said nothing about it.

Considering the situation, the relations of the parties, the probability or improbability of the truth of the conflicting testimony of Probst and Mitchell and the interest of Probst in the outcome of the case, we think the weight of the evidence is decidedly against the claim of the complainant Johnson that Milmine, Bodman & Company had notice of Johnson’s rights in the stock at the time it was delivered to them as security.

We are further of the opinion that on the principles announced in McCarthy v. Crawford, supra, and the authorities there cited, the blank transfers on the backs of the certificates of stock signed by complainant Johnson, as shown by the evidence, were good assignments to Probst when delivered to him, and that complainant Johnson can set up no equities in the stock as against Milmine, Bodman & Company, who took them for value in the ordinary course of business, in good faith and without notice of the rights or equities of complainant Johnson, even though it appears that Probst had diverted the stock from the purposes for which it was delivered to him.

Where the owner of title to property confers upon another an apparent title to, or power of disposition over it, he is estopped from asserting his title as against an innocent third party who has dealt with the apparent owner in reference thereto, without knowledge of the claims of the true owner. The rights of the third party do not depend upon the actual title or authority of the one with whom he dealt, but upon the act of the owner, which precludes him from disputing the title or authority he has apparently conferred. Pomeroy Eq. Jurs. (3d Ed.), pp. 1242 to 1248. Williams v. Fletcher, 129 Ill. 356; Otis v. Gardner, 105 Ill. 436, 442; Coffey v. Coffey, 179 Ill. 283.

We think the evidence in the record brings the case fully within the authorities and principles above stated and that complainant Johnson, having by his endorsement and delivery to Probst of the certificates of shares placed them in such condition that they could be readily sold or hypothecated by him, can get no relief in equity against that which he authorized to be done, where, as in this case, such, relief would affect injuriously an innocent purchaser or pledgee for value.

It is contended on behalf of complainant that Mil-mine, Bodman & Company held the certificates of stock as margins, not as collateral security for the payment of margins. The evidence, in our opinion, does not sustain this contention. Milmine, Bodman & Company from time to time made loans of money to Probst as well as being his brokers. On April 27, 1905, he borrowed of them $1,000, and as security for the payment of it he deposited with them three railroad bonds. In the following August he borrowed $3,000 and deposited the same bonds with them as collateral security, the former loan having been paid and the bonds returned to him. On October 27, 1905, he borrowed of appellees $3,500 and deposited with them fifty shares of the Borden stock as collateral security for the loan. On November 20, 1905, he borrowed $7,500 of appellees, and as collateral security he deposited with them 120 shares of the Borden stock. He received checks for all these loans. The amounts of these loans were charged to him in his account and memoranda were made on the ledger of Milmine, Bodman & Company of the collateral deposits and were copied into the monthly statements mailed to him. Some of these loans remained unpaid at the time Probst trades were closed out. As to these deposits of bonds and stocks there is no reasonable question on the evidence that they were made as collateral to secure the loans.

As to the deposits of the Borden stock as margins, or as security for margins as contended by Milmine, Bodman & Company, the evidence is substantially confined to the testimony of Probst, Mitchell and Bodman, and certain receipts, letters and telegrams which passed between Probst and appellees. Upon a careful consideration of the evidence we have reached the conclusion that the stocks in question were deposited with Milmine, Bodman & Company as collateral security for the payment of the margins, and not as margins.

The contention is also made on behalf of complainant that, by sending the stock to New York for transfer on the books of the Borden Company and by refusing to deliver the stock to Probst on his demand made on February 26, 1906, Milmine, Bodman & Company converted the stock, and that the conversion at that time resulted in Milmine, Bodman & Company having-in their hands $40,000 in money which was amply sufficient to margin Probst’s deals.

This contention is based upon the testimony of Probst that Milmine, Bodman & Company agreed to carry Ms trades on the stock as margins without having it transferred to their name, and that he notified them at the time he deposited the stock that it belonged to Johnson. These matters we have discussed above and will not be further considered here. The evidence shows that Milmine, Bodman & Company had made repeated demands upon Probst not only for additional security for margins, but that he should take up the stock and deposit money for his margins before the stock was sent to New York, and these demands had resulted in nothing but promises. The letter which accompanied the stock to New York does not evidence any desire or intention on the part of' appellees to wrongfully convert the stock to their own use. The letter says: “We are holding this as collateral for a customer who has considerable loss in open trades in grain and as it may be necessary for us to sell this security, we would like to have it transferred into the name of Milmine, Bodman & Company. * * * We would prefer to hold the stock if possible. We accepted it temporarily only until he could raise funds from another source which he promised to do and has not yet done.”

Mr. Mitchell testified that the stock was sent to New York for registration and to facilitate delivery.

We do not think Milmine, Bodman & Company wrongfully converted the stock to their own use, in violation of the terms and conditions under wMch they held it.

The next question is, were the trades of Probst illegally closed out by Milmine, Bodman & Company? The evidence shows that from January 30, 1906, to February 26, 1906, Milmine, Bodman & Company, by letters and telegrams and finally by personal interviews, were in constant communication with Probst on the subject of the market and his account which on February 26, 1906, showed a loss of substantially $25,000; and further that appellees were entitled to receive from Probst an additional sum of substantially $15,000 to protect and carry Ms open trades. The subject of the claims being made in New York that Probst did not have good title to the stock in question was discussed between appellees and Probst, the latter claiming that “it was all nonsense about the stock being stolen and that he would fix the matter up.” About eleven o ’clock on February 26, 1906, Probst was notified by appellees that the market in his trades was declining, and that his trades would be closed out unless he took care of them at once. Probst took no steps to take care of his transactions, did not deposit any sum whatever with appellees, although he had promised to deposit $40,000, and after one o’clock on that day his trades were regularly closed out after notice and in conformity with the rules of the Board of Trade of Chicago and the exchanges in New York under which it was distinctly and clearly understood by the parties the transactions were made. In our opinion the trades were legally and properly closed out after due notice.

It is urged that the decree in favor of Milmine, Bod-man & Company on their cross-bill is excessive. The amount of the decree appears to have been arrived at by taking the balance due on February 26, 1906, $28,-320.89, and adding interest on that amount at six per centum, the rate regularly charged in all the monthly statements to Probst without objection, to the date of the decree, making the total amount $31,266.52. Probst was credited on April 26, 1906, with $2,762.50, and interest on that amount at the same rate from date of payment, making a total credit of $3,022.16. This taken from $31,266.52 leaves the amount of the decree. We know of no reason why interest should not be allowed, and at the rate agreed upon by the parties.

The decree is in conformity with the legal and equitable rights of the parties and must be affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. Justice Smith

license: Public Domain

text:
    Anna B. McCutcheon, Administratrix, Appellant, v. City of Chicago, Appellee.
    Gen. No. 14,597.
    1. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Contributory negligence—lohen &>iver of vehicle guilty of. An experienced driver of a vehicle who was injured by being thrown from his seat as the result of driving into a hole in a public street, held, under the evidence, guilty of contributory negligence.
    3. Instructions—tohen erroneous upon measure of damages will not reverse. An erroneous instruction will not reverse if the merits of the controversy have been properly adjudged against the plaintiff who is complaining of such instruction.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed July 9, 1909.
    Statement hy the Court. This case comes before us on appeal from a judgment of the Circuit Court in favor of appellee, city of Chicago, and against appellant, Anna B. McCutcheon, administratrix, etc. The action was brought by appellant, as administratrix of the estate of Allen Orr McCutcheon, against the city of Chicago to recover damages for negligently causing the death of her intestate.
    Plaintiff’s intestate, Allen Orr McCutcheon, was in his lifetime engaged in driving a team in the city of Chicago. Prior to his death he was for many years employed by the Standard Oil Company as a teamster, and selling oil. On the day of the accident, June 19, 1903, the deceased was driving an empty tank wagon drawn by a team of horses belonging to the Standard Oil Company. He was sitting on the seat of the wagon about six or seven feet high, and was driving south on Bobey street in the city of Chicago. At the time of the accident there were two street car tracks on Bobey street which terminated at Fourteenth street. The street car tracks were located near the center of Robey street, and at a point about fifty or seventy-five feet north of Fourteenth street, a switch track connected the west or southbound track with the east or northbound track. That part of Robey street lying between the rails of the tracks and between the tracks was paved. The balance of the street had never been paved, but was an ordinary dirt or “country road.” When the deceased with his team approached Fourteenth street from the north he was driving in the west or southbound street car track. A car was then standing on that track, and in order to drive around the car he pulled his horses to the left of the car and drove across to the east or northbound track, and in doing so the left front wheel of his wagon dropped into a hole in the street on the outside of the east rail of the east track where the street was not paved, causing the wagon to lurch, whereby deceased was thrown from his seat to the ground between the horses and injured so that he died. There is a conflict in the testimony as to the dimensions of the hole. From the testimony the jury might find that the hole was twelve inches deep, about two feet wide and from two to four feet long, or that it was a slight depression in the street of six or eight inches deep and less than a foot wide. The hole had been in the street some time before the accident.
    Miles J. Devine, for appellant; John J. Devine, of counsel.
    Edward J. Brundage and John R. Caverly, for appellee; Edward C. Fitch and D. H. Wamsley, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The negligence alleged in the declaration, which consists of one count, is that the defendant “wrongfully, negligently and without reasonable diligence suffered the said street, at the point aforesaid (about fifty feet north of the corner of Bobey and Fourteenth streets) to be and remain in bad and unsafe repair and condition, and unfit for travel, and divers of the blocks wherewith the said highway was paved, to be and remain uneven, loose, defective and removed from said public highway, leaving a hole or depression therein.”

The main questions of fact for the jury in this case were, first, whether the city of Chicago used reasonable care to keep Bobey street at the place of the accident in a reasonably safe condition for travel, and, second, whether deceased at the time of the accident was in the exercise of ordinary care for his own safety. The decision of either of these questions of fact by the jury against the plaintiff is fatal to the right of recovery, unless their verdict is against the manifest weight of the evidence. It is manifest from the record that the jury decided either one or both of these questions against the plaintiff.

From the testimony in the record, and especially from the testimony of appellant’s witnesses, it appears that the hole in the street was along the side of the street car rail and that it was from eight to twelve inches deep, two feet wide and from two to four feet long. The accident occurred about two o’clock in the afternoon of a clear bright day. The street was not muddy. There was nothing to prevent the deceased from seeing the hole, and avoiding it. The hole was plainly visible to Hattie Heff, looking out of a window seventy-five feet away, and to Edna Heff who was about the same distance away from it. These witnesses testify that they saw the hole and saw the wheel drop into it. If these witnesses saw the hole while looking casually out of windows in the neighborhood, and from the other evidence in the case and the situation as presented by it, the jury were warranted in believing that the decedent could have seen it if he had been using ordinary care for his own safety. The situation presented to the jury by the undisputed testimony in the case shows that the hole in the street could have been avoided without the least difficulty and by the most ordinary care and attention. If the hole was what appellant claims it was, deceased could have avoided it by waiting until the car pulled out of the west track, or, he could have driven in the east track where the street was paved. And so no reason appears in the evidence for driving into the hole.

If, however,- it was necessary for the deceased to drive into this hole for any reason, the evidence fails to show that the deceased took any precaution against being jolted from his seat. He was a driver of experience, and the jury were warranted by the evidence in believing that he knew what effect would be produced by driving into the hole and that he might be thrown from his seat, and yet, as above suggested, it does not appear that he adopted any measures to guard against the obvious danger of so driving.

There is abundant evidence, we think, to warrant the jury in finding that the deceased was not in the exercise of ordinary care for his own safety, just prior to and at the time he drove into the hole and was thrown from the wagon; and we do not think the verdict of the jury on this question should be disturbed. Hursen v. City of Chicago, 85 Ill. App. 298, and authorities there cited.

The evidence on the question of the negligence of the city is conflicting. There is evidence in the record tending to show that the hole in the street was not more than six or eight inches deep; that it was simply a rut or depression along the side of the east rail of the east track where the dirt had worn away, as McDermott testified, who was called as a witness by the plaintiff. The witness Derry, called by the plaintiff, said the hole was eight or ten inches deep, and ten inches or a foot wide. The jury may have concluded that the rut in a dirt road which had never been paved was not such as showed a want of reasonable care on the part of the city to keep a dirt road in a reasonably safe condition for travel. If the jury so found on this issue, we would not be warranted in saying that the verdict is against the weight of the evidence.

It is urged that the court erred in giving to the jury the third and fourth instructions to the effect that the city is under no obligation or duty under the law to pave its streets and all that is required of the city is to exercise ordinary care to keep its streets in a reasonably safe condition for ordinary travel thereon; and while the city has the power to pave a street or streets within its limits, it is a matter of discretion with the city as to whether or not it shall avail itself of such power and pave any particular street or streets, and it cannot be regarded as negligence if it exercises such discretion.

The argument made against these instructions is based on the theory of the declaration that when the city has once paved a street, it is legally bound to repave those portions of the street which have become so worn as to create dangerous holes. This theory is not supported by the evidence which shows that the portion of the street outside of the car tracks where the hole was located had never been paved, and “divers blocks wherewith the said highway was paved” were not suffered “to be and remain uneven, loose, defective and removed from said public highway, leaving a hole or depression therein, ’ ’ as averred in the declaration. As applied to the facts shown by the evidence we do not think the instructions are erroneous.

As to the contention that the first instruction upon the measure of damages given at the request of the defendant is erroneous, it may be conceded for • the purposes of this ease that the instruction does not state the law correctly. But the instruction relates solely to the question of damages, should the jury find the defendant guilty. The jury returned a verdict for the defendant, and hence did not have occasion to consider the question of damages. The instruction, therefore, could not have prejudiced appellant, and any error therein is not ground for reversal. Cox v. City of Chicago, 83 Ill. App. 540, 543; Woffard & Rathbone v. Buchel Power & I. Co., 80 S. W. 1078; Catton v. Dexter, 70 Ill. App. 587.

We find no sufficient reason for reversing the judgment. The judgment is affirmed.

Affirmed.

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


author: Mr. Presiding Justice Holdom

text:
    Frank Mellish, Appellee, v. George E. Thorne, Appellant.
    Gen. No. 14,571.
    Ordinary care—when vigilance not required. If a person has no reason to suspect danger he is not required to look for it.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben H. Smith, Judge, presiding.
    Heard in this court at the October term, 1909.
    Affirmed.
    Opinion filed October 7, 1909.
    E. E. Gray, F. J. Canty and J. C. M. Clow, for appellant.
    Frank L. Childs and Ode L. Rankin, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The judgment here appealed from is for $1500, and was entered upon the verdict of the jury assessing that amount as damages sustained by plaintiff in stepping into a pit of hot water on the premises of defendant. Plaintiff, for some time before the accident, had been engaged in making some changes in the boiler and the flues of the furnace of defendant, which would bring abyuf the consumption of smoke and thereby avoid violations of the municipal smoke ordinance, and on the day of the accident he was called to defendant’s premises to fix a chain on the furnace which was in some way out of order and would not work as it was intended it should. Back of the boilers on defendant’s premises was a pit in the floor about three feet deep and as long as the boilers are wide, and about three feet in width. In this pit so formed, water which comes from the boilers is caught and drained into the sewer. The water so caught in the pit is, or was, at the time of the accident, hot to the point of scalding. Plaintiff in going to look at the chain was accompanied by the engineer of defendant. The place was dark and had to be lighted by artificial light. At the time of the accident there were gas burners and at least one incandescent lamp burning. Whether plaintiff had any knowledge of the existence of this hot water pit prior to the accident, the record does not disclose. The engineer did not say anything to plaintiff about its presence or caution him to be on the lookout to avoid stepping into it at the time they were making their way to the out of repair chain. Plaintiff testified that he was ignorant of the hot water pit and did not notice or observe it until he unwittingly stepped into it as he passed the engineer to reach the place from which the chain hung.

Defendant thus summarizes the contentions of the disputants before the court: “The plaintiff’s claim is that he did not notice the pit, and under the circumstances was in the exercise of ordinary care in failing to notice it, and that the defendant under the circumstances was negligent in not warning him of the presence of it. The defendant’s claim is that this pit was a permanent part of the premises; that the light was ample; that any man using ordinary observation about the things about him would have been aware of the pit; that the light was good; that the pit was in plain sight, and that he was not negligent in not anticipating that the plaintiff would fail to observe it, and that he needed to be warned of its presence in order to avoid injury to the plaintiff. The defendant maintained that its position in this regard is established by a clear and overwhelming preponderance of the evidence. ’ ’

But one question involved is of any material importance to the right of plaintiff to recover. If this shall appear to favor plaintiff, the other questions raised and argued become óf no importance. That the place was sufficiently lighted, we think the evidence strong enough to demonstrate. However, we have no misgivings concerning the fact that the hot water pit was a dangerous place. The testimony of all the witnesses giving evidence in relation thereto cannot possibly lead to any other conclusion. We cannot hold that plaintiff was guilty of a lack of due care in not noticing this dangerous pit in time to avoid the consequences which followed upon his unintentionally stepping into it. It appears that there was a dark scum upon the surface of the water, which gave it the appearance of being a part of the cement floor. It was not a danger to be anticipated, calling for vigilance to avoid. In the nature of things, plaintiff’s mind was centered upon the chain, the defect in which he intended to remedy, that being the task he was called upon to perform.

Neither does the fact that it was necessary for him to bend his body and turn his eyes downward toward the water in the pit, in approaching the place from which he could reach the chain, and that he did so, and yet did not become aware of the dangers besetting his path from the hot water pit, militate against his right to recover. Neither does such conceded condition absolve defendant from his duty to inform plaintiff of the danger, nor relieve him from negligence attributable to him in not so doing. The line of decisions applicable to the condition which confronted plaintiff at the time he met with the accident, is summed up in the observation of the court in Brosnan v. Sweetser, 127 Ind. 1, “that if there was no reason to suspect danger, she was not called upon to be looking for danger”. Hendrickson v. Meadows, 154 Mass. 599; Engel v. Smith, 82 Mich. 1; Pelton v. Schmidt, 104 ibid. 345; O’Callaghan v. Bode, 84 Cal. 489; Rosenbaum v. Shoffner, 98 Tenn. 624; T. W. & W. Ry. v. Grush, 67 Ill. 262.

Plaintiff, at the time of the accident, was on the premises of defendant by his invitation. Defendant therefore owed him the duty to warn him of dangers of which the law charges defendant with knowledge, and about which plaintiff not only was not informed, but which were not so open and obvions as to impute to plaintiff want of care in not observing the danger thus created in time to avoid it. While it may be said that the hot water pit was in plain sight, yet it must be remembered that the danger from its presence was not such as might reasonably be anticipated to lie in plaintiff’s path, and that his presence was for the attainment of a certain object, to which his mind was directed and which did not naturally call for close examination of the floor to find if hot water pits were in the way. The hot water pit was a dangerous place, of which defendant should have warned plaintiff, so that he might have avoided it. Defendant’s failure so to do was negligence.

We cannot say the amount of the verdict is excessive, for the injury suffered was painful and plaintiff was put to considerable expense in an effort to heal his wounds. He was also taken from his business for a long time and lost some profit by reason of his enforced neglect of his business, resulting from the accident.

Finding no error in the record of a reversible nature, the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    William H. Crawford et al., Appellees, v. Royal A. Eastman, Appellant.
    Gen. No. 14,578.
    1. Judgments—how joint, revived. If one joint defendant dies, the writ to revive the judgment should run against the survivors and the heirs or personal representatives of the deceased defendant.
    2. Judgments—who cannot complain of revival. If heirs of the deceased party because of whose death it became necessary to revive a judgment, do not complain of the procedure followed, the surviving party to such judgment cannot complain.

      Scire facias. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1908. Re-
    hearing denied October 7, 1909.
    Affirmed.
    Opinion filed July 12, 1909.
    Charles B. Obermeyer, for appellant.
    Ela, Grover & Graves, for appellees.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action to revive a judgment obtained by appellees against appellant and one William M. Brophy, since deceased. . The cause was before the Branch Appellate Court on the appeal of appellant, as to whom only the judgment was revived. That judgment was reversed and the cause remanded to the Superior Court upon ■ the theory that the judgment being joint, it could not be revived against all. The rule of the common law, which obtains in this jurisdiction, is that if one joint defendant dies, the writ to revive the judgment should run against the survivors and the heirs or personal representatives of the deceased defendant. Eastman v. Crawford, 126 Ill. App. 320. Upon the remanding of the cause, the Superior Court, on the motion of appellees, issued an amended writ of scire facias, including in it all the heirs of William M. Brophy, deceased, who were duly served with this process, but failing to appear were defaulted; To this amended scire facias writ appellant demurred, which demurrer the court overruled, and he failing to further plead, the judgment was revived against him and the heirs of William M. Brophy, deceased.

Appellant assigns errors which in their essence challenge the sufficiency of the amendment in making the heirs of his deceased co-defendant parties to the suit and in reviving the judgment against them and appellant. This method of procedure was in accord with the decision of the Branch Appellate Court supra on the former appeal. That decision is the law of this case. The heirs of Brophy are not here complaining, and appellant cannot be heard to complain for them. Gage v. Dupuy, 134 Ill. 132; Schwartz v. Ritter, 186 Ill. 209.

Whether the heirs of Brophy received any property from his estate, which was subject to the payment of his debts, is none of appellant’s concern, because his rights are'in no way affected or prejudiced, whatever the fact may be. That was a matter for them to interpose as a defense if they saw fit. They having failed to-do so, that question is not before us for review.

The judgment of the Superior Court is therefore affirmed.

Affirmed.


text:
    George P. Wallner, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 14,581.
    1. Accord and satisfaction—burden of proof. The burden to prove an accord and satisfaction or a release is upon the party-alleging it.
    2. Torts—when joint tort-feasor not discharged. While a release of one tort-feasor operates to the benefit of all, yet, held, under the evidence in this case, that no release of one joint tortfeasor was established.

      Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richabd W. Clifford, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed October 7, 1909.
    John A. Rose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    James G. Condon and Thomas J. Condon, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff brought his suit against appellant, the Chicago, Milwakee & St. Paul Railroad Company, and the Chicago Electric Company, and declared against them jointly. The action arose out of personal injuries suffered by plaintiff while he was a passenger on a street car owned and operated by appellant. The injuries received by plaintiff were the result of a collision between a train of the defendant, the Chicago, Milwaukee & St. Paul Railroad Company, and the car of appellant, upon which plaintiff was a passenger, at the intersection of the tracks of the railroad company and those of appellant at Irving Park Boulevard. The declaration was filed August 21,1905, and charged that the accident to plaintiff occurred through the joint and concurring negligence of all three defendants. On September 19, 1905, appellant and the Electric Company filed separate pleas of the general issue. The Chicago, Milwaukee & St. Paul Railroad Company did not plead, but on October 13, 1905, on the motion of attorney for plaintiff, the papers and proceedings were all amended by discontinuing the suit as to the railroad company. The cause thereafter proceeded to trial, with a jury, against appellant and its remaining co-defendant, until discontinued as to its co-defendant. The jury returned a verdict against appellant, assessing plaintiff’s damages in the sum of $6750, upon which the trial judge entered judgment after overruling motions for a new trial and in arrest of judgment. Subsequently, by agreement of counsel for all the remaining parties, the cause was discontinued as to the defendant Chicago Electric Transit Company rune pro tunc as of December 18, 1907, the day following the impaneling of the jury which sat in the trial of the cause. This order was entered to remedy the misprison of the clerk in failing to enter of record such order of dismissal on December 18,1907, when the motion to dismiss was made by counsel and granted by the court. From the judgment so rendered against it, defendant appeals.

There is but one question argued, and one contention made, by appellant. It is, that the court erred in not allowing appellant’s motion to instruct a verdict in its favor, because it appears, it is contended, from the testimony of plaintiff, that a settlement of the cause of action was had with the former defendant, the Chicago, Milwaukee & St. Paul Railroad Company, subsequent to the commencement of the suit, by its payment of $1,000 to plaintiff; that the cause of action being released against it operated in law to release appellant as a joint tort-feasor with the railroad company, in the same tort alleged against both in the declaration as originally filed. It is further contended that plaintiff released the cause of action as to the railroad company, and that the evidence shows an accord and satisfaction with it.

We concede that the law stated in the quotation from Chicago v. Babcock, 143 111. 358, viz: “A release to one of several joint tort-feasors is a release to all, and an accord and satisfaction with one of them is a bar to an action against the others”, is a correct exposition of the legal principle on that subject. The other authorities cited in appellant’s brief are in harmony with this statement of the law. If the testimony of plaintiff on this point is susceptible of the construction claimed for it by appellant’s counsel, then the cause of action is released and plaintiff has no further claim upon appellant. The testimony on this subject is brief. We here quote it in full, as set forth in appellant’s argument, so that there may be no misunderstanding about what it is. It was brought out on the cross-examination of plaintiff, and .is as follows:

“Q. You have received from the railroad company a thousand dollars on account of this accident, haven’t you?
A. I believe so.
Q. On account of your injury?
A. Yes sir.
Q. So you don’t have any claims against it now?
A. No sir. * * * I made this arrangement—got the money from the St. Paul Eoad about October of last year.
Q. They were sued, jointly with the street car company in this case? When you started the suit you started it against both of them?
Mr. Condon: When I started it?
A. Yes, sir.
Mr. Baily: When your lawyer started it. Yes, that is the better way to put it?
A. Yes, sir”.

We think this evidence falls far short of proving either an actual release of the claim or an accord and satisfaction in relation to it. The burden of proving such release or accord and satisfaction is upon appellant in the first instance. It is an affirmative defense. The only words in the testimony characterizing the purpose for which the money was received by plaintiff from the railroad company, is that he received it “on account” of his injury. These words cannot be distorted by the court into meaning, by way of interpretation, that the claim was released, that the money received on account of the injury was in settlement for that injury, and that so receiving was an accord and satisfaction of the whole matter, which in law released the claim for the wrong done plaintiff. To so hold would do violence to the plain meaning of ordinary language which in itself is susceptible of no such interpretation. How can it be said that a payment on account of a claim is in settlement of it?

Counsel for appellant refrained from putting to plaintiff the direct question of whether he had settled for the injury or released his claim. If appellant has, by failing to procure direct proof on this point, left the matter in doubt, then it has not fulfilled that requirement of the law which casts the burden upon it to make affirmative proof that the claim has been released. McDavitt v. McNay, 78 Ill. App. 396; American v. Bimpert, 75 Ill. 228.

The fallacy of the contention of appellant rests in the assumption that the payment by the railroad company was a full settlement, and that the claim was consequently released against all the joint tortfeasors,. and that the evidence of plaintiff so proves. The Babcock case supra does not support appellant’s contention, for in that case one of the parties against whom suit was brought was dismissed out of the case on payment of a sum of money. Notwithstanding this, a judgment against the remaining defendant, the city, was sustained. It is the law that the discontinuance of an action against one of several joint tort-feasors is no bar to the action against the others. In Goss v. Ellison, 136 Mass. 503, Ennis v. Pullman Palace Car Co., 165 Ill. 161, and Chapin v. C. & E. I. R. R. Co., 18 Ill. App. 47, there were written receipts which recited a satisfaction of the several claims for which the money was in each case received. This case is much the same in fact and principle as West Chicago Street By. Co. v. Piper, 165 111. 325, in which the suit was com-' menced against the street car company and a “carette” company, the latter of which was dismissed out of the case on payment of $100, and in affirming a judgment obtained against the remaining defendant the court say: “Here no release was established, nor was there any evidence of accord and satisfaction. It was not enough for the defendant to prove merely a dismissal of the suit against the other tort-feasors, but in order to make the defense availing it was required to go further and show a release of the other tort-feasors. As this was not done, the evidence admitted against defendant’s objection could do it no harm.”

In C. & E. I. Ry. Co. v. Hines, 82 Ill. App. 488, Hines sued for a personal injury sustained while a passenger of a street car company, in whose employ he was as a mot orman. He received money from the car company for the loss of time, expenses, etc., and $500 beside. The railroad company insisted that such payment operated in law as a settlement in full, and that no recovery at all could be had against it; but the court in sustaining a recovery said: “It does not appear nor is it claimed that appellee executed any release. The evidence relied on is insufficient to establish the defense of accord and satisfaction”. Wagner v. Union Stock Yards & Transit Co., 41 ibid. 408; Brennan v. Electric Installation Co., 120 ibid. 461.

So in the case at bar; no release appears in the record, and the evidence falls far short of sustaining such an inference of accord and satisfaction which, under the settled principles of law, would constitute a release of the claim and justify an instructed verdict in favor of appellant. Furthermore, whether plaintiff had settled Ms claim with the railroad company, was a question of fact for the jury. They have found contrary to appellant’s contention, and we see no reason justifying us in disagreeing with the conclusion to which the jury arrived.

No complaint is made involving the rulings of the trial judge in the admission or rejection of evidence, or in the instructions given to the jury. Neither is the amount of the damages awarded challenged as excessive.

Finding no reversible error in this record, the judgment of the Circuit Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom Baker, J.

text:
    Elmer W. Jarnecke, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Glen. No. 14,583.
    1. Master and servant—effect of doctrine of assumed rislc. A servant who engages himself in any particular line of work assumes the risks of his employment in such work, so far as such risks are open and obvious to a person of ordinary intelligence and usually incident to such employment; and as to such risks or hazards the master is not required to inform the servant.
    2. Instructions—what amounts to oral. An address by the trial judge referring to the institution of trial by jury and to the duty of the jury with respect to the case on trial, is an oral instruction and therefore erroneous.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honors, Judge, presiding.
    Heard in this court at the March term, 1908. Rehearing denied October 28, 1909.
    Reversed and remanded.
    Opinion filed October 7, 1909.
    Statement by the Court. Plaintiff recovered a judgment for $6,000 on a remittitur of $4,000 from the verdict of a jury in the Circuit Court against defendant, for damages suffered as the result of a personal injury while the relation of master and servant subsisted between the parties. The declaration comprised four counts, but the burden of the negligence charged rested in the averment that defendant permitted and allowed the electric light wire on its car to be out of repair and in an unsafe condition, while the fourth count grounds the right to recover on an alleged failure of defendant to inform plaintiff of the nature and character of the hazards and dangers of his employment.
    It appears that plaintiff had been a conductor on a cable car of another company, and that on the day of the accident, August 16,1903, being Sunday, defendant employed plaintiff as an extra man to be conductor of a car operated by electricity and colloquially designated as a “trolley car”, as distinguished from a “cable car”. Plaintiff’s run was from the Devon avenue harn of defendant north to Evanston and return to what is known as defendant’s “limits harn”. Defendant’s cars were lighted by electricity, the energy for so lighting being supplied to the trailers from the motor car. The cars were wired for electric light and the connection was made through a lighting wire by a coupling, consisting of a block and plug of the kind introduced in evidence before the jury and appearing as exhibits to the record in this court. Plaintiff was on the rear car of the train, and the electric lighting wire extending over that car to the rear was, in accord with the usual custom, made fast to the roof of the car over the platform. When in good order the end of the wire is so insulated as to be harmless. The proof shows that the cars were subjected to the customary test before being sent out the morning of the day of the accident, and that the car on which plaintiff was injured was one of the cars so tested. The test applied consisted in the coupling of the electric wires through the block and plug and applying the electricity. On the return trip from Evanston the motor is uncoupled from the trailer, the electric wires detached, the train made up for the return trip by changing the motor to the south of the trailer and coupling up the electric wires for lighting whenever artificial light was necessary. Plaintiff started to work at 1:15 p. m., and there is some proof that at 5:06 he got the car on which he was injured between 9:15 and 9:30 thereafter. Plaintiff left Evanston on the return trip about 7:46, and while he did not couple up the electric light because he was afraid to, such coupling being a part of his duty, yet he saw it done by another. The end of the lighting wire was fastened to the roof at the rear of plaintiff’s car at the time of leaving Evanston on the return journey, and so remained until the southern limit of the journey had been reached and some distance on another trip to the North had been traveled, when, at about 9:30 o’clock, through some cause unexplained by the proofs, the wire became unfastened and dropped down, striking plaintiff upon the hand, which rested on the metal on the dashboard, and the end of the wire not being insulated, the'contact resulted in burning his hand and in impairing its mobility.
    It is assigned for error and argued as "grounds for reversal, that the verdict is contrary to the weight of the evidence, that there are erroneous rulings of the court on evidence, and error in its written and oral instructions to the jury; and that the damages awarded are excessive.
    John A. Rose and Frank L. Kriete for appellant; W. W. Gurley, of counsel.
    Emery S. Walker, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This judgment must be reversed because the evidence fails to sustain the charge of negligence and for the error of the trial judge in orally instructing the jury.

We start out with the implication of law that the servant who engages himself in any particular line of work assumes the risks of his employment in such work, so far as such risks are open and obvious to a person of ordinary intelligence and usually incident to such employment; and as to such risks or hazards the master is not required to inform the servant. C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492; Montgomery Coal Co. v. Barringer, 218 Ill. 327; U. S. Rolling Stock Co. v. Wilder, 116 Ill. 100.

That the apparatus used in the lighting of the cars was plainly in view and simple in operation is not disputed. That it was all open and obvious to plaintiff is clear. That it was part of his duty to make the connection for light and couple the light wire to the car, is not denied. While plaintiff did not make the coupling personally, it was made by another at his request and in his presence. The end of the wire was fastened to the roof of the car over his head, and in clear view, so that he could observe it at all times. The rules of the defendant made it the duty of plaintiff to see to it that these electric appliances were in good order, and to report any defects. How the wire came to fall, what caused it so to do, is not developed by the proofs. In what way the end of the wire became stripped of its insulation and therefore dangerous in certain conditions to come in contact with, the proof is equally lacking in information. No inference of negligence can be indulged in the face of the proofs that the morning test demonstrated that the lighting appliance was in good working condition. If at the time the end of the wire was fastened to the roof it was stripped of the insulation, and the further plainly apparent fact that the slightest examination by plaintiff would have made evident its dangerous condition, then plaintiff is chargeable with notice of the condition which such an examination would have disclosed. Moreover, it was one of the duties of plaintiff to see that the same remained securely fastened, not only for his own protection, but for the protection of passengers passing over the platform immediately under it; for its lack of safety was as much a menace to such passengers as to plaintiff. How the end of the wire became unravelled from the insulation tape or fell from its fastening is left entirely to theory, based on surmise and conjecture. If the defects did not result from any omission of duty on the part of plaintiff, then, so far as we can gather from the record, they were brought about by the negligence of a fellow servant, which, upon well settled legal principles, in this jurisdiction, inhibits a recovery by plaintiff. It consequently follows that the evidence fails to saddle defendant with the negligence charged against it as grounds sufficient to permit of a recovery.

Immediately upon the jury being sworn to try the case, and before any proof was proffered or argument made, the learned trial judge addressed the following-remarks to the jury orally:

“Gentlemen of the jury: I think I might to some advantage say a few words to you before you enter upon the trial of this case. First, about the seriousness of the duty of a jury, and the seriousness with which they ought to regard their duty, especially in view of the oath which you have just taken.
“Early in the history of the Anglo-Saxon race cases used to be tried by judges appointed by the king. At a certain period in the history of that race the people demanded of the king that he surrender the prerogative of having his judges exclusively try cases, because they thought the cases were arbitrarily tried, by the judges, and they insisted that the issues of fact raised between parties to a lawsuit should be submitted to twelve men drawn from the surrounding country in which the' litigants lived. It was their theory that twelve men selected from the neighorhood would be more fair between the litigants than perhaps the judges selected by the king. And this principle was thought to be so valuable that it was embodied, when this country was established, that is, the government of this country was established —it was embodied in the constitution of the United States, and in the constitution of every state of the United States, that trial by jury should remain inviolate. That means that no judge can interfere between these litigants to decide the questions of fact. And you twelve men are the only body of men, since you have been sworn in this case, that can decide the issues of fact between these parties. You are the only tribunal in the world to whom these parties can appeal for justice.
“The plaintiff in this case claims that he has been injured through the fault of the defendant, and he is appealing to you for redress after having proved his case, if he does. The defendant, on the other hand, claims that, although this plaintiff may have suffered a very serious injury, for which the defendant, probably, is as regretful as anybody else, nevertheless the plaintiff must bear his own burdens; and that, if he
has suffered an accident, he must bear that accident with patience, the best way he can, and not seek to throw that burden on the defendant, unless he can prove that it was occasioned by the fault of the defendant. And briefly, without attempting to fully explain to you what the law is, I want to say that a company in the position such as this company is in does not insure that every person who works for it will not suffer any injury. But the plaintiff who comes into court undertakes to show you, gentlemen of the jury, that he was injured not as a result of a simple accident, but as the result of an accident which was the fault of the defendant and not his fault at all. He undertakes to show you that not only did the defendant omit some duty which it owed to him, but that he himself was not guilty of any negligence of any kind in taking care of his own person which contributed to the injury.
“And these matters you ought to bear in mind when you hear the testimony, and throughout the progress of the case.
“I might say to you further that the oath which you have just taken imposes on you the duty of trying this case between these parties in exactly the same manner as though the defendant in this case was an individual. It is perfectly conceivable that the plaintiff in a case who is in very poor pecuniary circumstances might suffer an injury, perhaps through an accident, which, perhaps, would render him an object of charity all the rest of his life. On the other hand, it is equally conceivable that a defendant when sued by a plaintiff might be a person of such—in such pecuniary' circumstances that if a verdict was rendered against the defendant for a considerable amount of money it would render the defendant penniless and make him an object of charity all the rest of his life. Those considerations ought not to affect the verdict in the case. In other words, you ought not to find a verdict in this case based upon the pecuniary situation of either one of these parties. The defendant, on the other hand, has just as much right to a verdict at your hands if you think he should have a verdict, as if the defendant were an individual person who is going to be rendered altogether insolvent by the verdict you may render. The plaintiff, on the other hand, has the same right on his part; that you cannot take into consideration any pecuniary results which a verdict is going to have by reason of any sympathy for him or against him, for this defendant or against this defendant. And as you are, as I said, the only tribunal now standing between these parties, it'is a solemn position you are in, and you cannot allow your oath to be violated by any deviation from your duty by sympathy, but simply to determine this case from the evidence and the law as you get it later on”.

To this address of the court to the jury counsel for defendant preserved an exception, on the ground that such remarks were in the nature of an oral instruction to the jury and contrary to law. The trial judge attempted to palliate this error and to furnish a corrective by sending to the jurors, after they had retired from the bar of the court to consider of their verdict, a.transcript of the stenographic notes of this address; but we are of the opinion that such attempt was futile and did not cure the grievous error which such address injected into the record of the trial. Notwithstanding we might be willing to concede that such address was guileless of misinformation historically and in its statement of law, yet it was clearly violative of the statute which forbids the court instructing the jury otherwise than in writing, and then with the added restriction 'that such instructions be confined to the law pertinent to the facts in proof. Sections 72 and 73, R. S., contain the law on this subject, which is as follows:

Sec. 72. The court in charging the jury shall only instruct them as to the law of the case.”
“Sec. 73. Hereafter no judge shall instruct the jury in any case, civil or criminal, unless such instructions are reduced to writing”.

Our Supreme Court gave a literal construction of these provisions of our statute when it said, in Hefling v. Van Zandt, 162 Ill. 162: “Under our statute the Circuit Court has no authority to instruct the jury orally on any material issue in the case.” A violation of the statute in this regard was adjudged reversible error.

Plaintiff insists that a sufficient exception to the court’s action in its oral address to the jury was not preserved which entitles defendant to advantage of such error on review. To this contention we cannot yield our assent. The exception preserved immediately after the address was made and before any further proceedings were had, fulfils all legal requirement entitling defendant to urge before this court such error as proper ground for reversal of this judgment of the trial court.

For the errors above indicated the judgment of the Circuit Court is reversed and a new trial awarded conformable to the views herein expressed.

Reversed and remanded.

Baker, J.

I concur in the judgment, but not in all the reasoning of the opinion.