source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Charles Bostrom, Augusta Bostrom and Magnus Olson, Trading as Bostrom & Olson, Appellants, v. Louis S. Becker, Appellee.
    Gen. No. 16,926.
    1. Recoupment — mechanics’ lien. On a contractor’s bill to enforce a mechanic’s lien for labor and materials, in constructing a foundation, a claim by the defendant for damages for non-compliance with the contract in constructing said foundation, necessitating its removal, is a claim for recoupment, and an affirmative decree in excess of the complainant’s allowable claim is erroneous.
    2. Mechanics’ lien — defenses. Under Sec. 13 of the Mechanics’ Lien Act’ as to defenses against the contractor by way of set-off, recoupment, or counterclaim, equity follows the law.
    3. Recoupment — claim must arise out of transaction. In recoupment, the demand sued for and that recouped must arise out of the same transaction.
    4. Recoupment — limitation of judgment. In recoupment an affirmative judgment in excess of the plaintiff’s claims cannot be had.
    5. Set-oee and counterclaim — can he pleaded, when. A set-off or counterclaim can be pleaded only when there is an indebtedness from the plaintiff to the defendant which might be made the subject of an independent suit.
    6. Set-oee^ — may exceed claim of plaintiff. A set-off claim may exceed the allowable claim of the' plaintiff.
    ■Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed in part and reversed in part.
    Opinion filed October 3, 1912.
    Charles A. Williams, for appellants.
    Colson & Johnson, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was a bill in equity, filed in the Circuit Court of Cook county on June 16, 1906, by Charles Bostrom, Augusta Bostrom and Magnus Olson, doing business as Bostrom & Olson, appellants and hereinafter called complainants, against Lonis S. Becker, appellee and hereinafter called defendant, for a mechanic’s lien on certain real estate owned by defendant in said county. The defendant filed an answer, and complainants a replication thereto, and a hearing was had before the court. On January 29,1910, the court entered a decree dismissing the bill as amended, at complainants’ costs, for want of equity, and ordered that the decree stand as a judgment against the complainants for $100 for damages. This appeal is prosecuted to reverse that decree.

The facts, briefly stated, are that on July 5, 1905, the defendant entered into a written contract with complainants for the construction by the latter of a dwelling house upon defendant’s premises; that the contract provided that defendant should pay the sum of $5,850, the first payment to be made “when roof is on, balance of payments to be made as the work progresses, except 15 per cent., which will be held until the building is completed;” that there was no provision requiring defendant to accept the work as the same progressed; that on July 28, -1905, complainants had about completed the footings and the foundation walls resting thereon, when a controversy arose as to whether the footings and foundation walls were being constructed in accordance with the plans and specifications, defendant contending that the top of the foundation walls, instead of being six inches above “grade” as required, was about twenty-one inches above said grade, and that the footings, instead of being twelve inches thick and thirty inches wide as required, were only about ten inches thick and twenty-eight inches wide; that on said date defendant wrote complainants, “it will be necessary for you to remove the foundation placed on my lot, as according to your statement it is not in accordance with the specifications or contract. I will ask you to have this removed and the proper foundation placed without any unnecessary delay, as I have now spent more time than I should have spent had you fulfilled your agreement with me;” that thereafter conversations were had between defendant, or his representative, and one of complainants’ firm, and complainants refused to put in other footings or foundation walls in compliance with the plans and specifications as defendant construed them, and demanded that defendant accept the same as put in, which defendant refused to do, and that thereupon complainants refused to do any further work. Counsel for complainants claims that the reason complainants stopped work was that defendant would not allow them to proceed. While some of the testimony offered by complainants tends to this conclusion, we think the preponderance of the evidence is the other way. Counsel’s contention in this particular is negatived by complainants’ letter of August 10, 1905, to defendant, in which they wrote “your basement or foundation * * * is up to the specification and section of the plan, and every day that you delay will be added to the length of time that we have to complete the contract. The sooner you accept the foundation and cease objecting to work that is up to the agreement, the quicker we will be able to * * * finish the building. ” The masonry specifications provided that complainants should “build all the footings and walls up to six inches above grade with concrete.” Counsel contends that this clause in the specification means “that every part of the footings and walls shall be six inches above grade.” The testimony of several witnesses on behalf of the defendant, one of whom had been a deputy commissioner of buildings in Chicago in 1905, was to the effect that by the term “grade” was meant the same grade as the top of the sidewalk. Furthermore, the contention is negatived by the plans themselves, which, from a sectional view of the proposed building disclosed thereon, clearly show that the top of said foundation walls was to be only six inches above grade, and the evidence was that the top of said walls was twenty-o'ne inches above said grade.

The trial court found, substantially, that complainants did not comply with the contract but violated the provisions of the same relative to the foundations, that they refused to complete the building, that nothing was due complainants from defendant, and that defendant had suffered damages by reason of the failure of complainants to comply with the contract, and the court dismissed the bill for want of equity at complainants’ costs. In our opinion, it was proper to dismiss the bill at complainants’ costs.

But, the court further ordered that the decree should ‘ ‘ stand as a judgment against the complainants for the sum of $100 for damages sustained by the defendant, * * * and that the defendant have execution for said sum * * * and for his costs with interest thereon from this date against the complainants as at law.” We assume that the court had in mind that portion of section 13 of our Mechanic’s Lien Act which provides:

“The owner shall be entitled to make any defense against the contractor by way of set-off, recoupment or counter-claim that he could in any action at law, and shall be entitled to the same right of recovery on proof of such in excess of the claim of the contractor against the contractor only, but for matters not growing out of the contract such recovery shall be without prejudice to the rights of the sub-contractors thereunder for payment out of the contract price or fund; * * *”

In our opinion, so much of the decree as renders a judgment for $100 for damages against the complainants, and authorizes an execution thereon, is without authority of law. The section of the statute above mentioned provides that “the owner shall be entitled to make any defense against the contractor by way of set-off, recoupment or counterclaim that he could in any action at lato, and shall be entitled to the same right of recovery on proof of such in excess of the claim, of the contractor against the contractor only, but for matters not growing ont of the contract snch recovery shall be,” etc. The contract in question was, as we have seen, one in which complainants agreed to build a house for defendant for a certain price, the first payment to be made “when roof is on.” The trial court found in the decree, substantially, that, after complainants had constructed the basement and foundations in violation of the provisions of the contract and defendant had refused to accept the same at complainants’ request, complainants refused to further proceed with the construction of the house, that defendant owed complainants nothing, that said basement and foundations could not be utilized by defendant and would have to be removed, that such removal would cost defendant $100, and that thereby defendant had been damaged in that sum. The judgment in favor of defendant was on his claim for unliquidated damages, and on a matter growing out of the contract. And, as complainants ’ claim was for labor and materials (for the payment of which they ashed that a decree be entered, and in default of such payment that defendant’s premises be sold, etc.), and as the trial court disallowed complainants ’ claim, this recovery by the defendant was in excess of the claim of the contractor. In actions at law there is a distinction made between set-off and recoupment in the decisions in this state. Waterman v. Clark, 76 Ill. 428. A set-off or counterclaim can be pleaded only when there is an indebtedness from the plaintiff to the defendant which might be made the subject of an independent suit. Litch v. Clinch, 136 Ill. 410. A set-off usually arises out of a transaction extrinsic to the plaintiff’s cause of action, and which, if allowed, may exceed the allowable claim of the plaintiff. Lloyd v. Manufacturers, etc., Co., 102 Ill. App. 551; Kingman v. Draper, 14 Ill. App. 577. In recoupment, the demand sued for and that recouped must arise out of the same transaction. Keegan v. Kinnare, 123 Ill. 280, 286; Stow v. Yarwood, 14 Ill. 424; Streeter v. Streeter, 43 Ill. 155, 162. We think that in this case the allowance to defendant of any damag’es must have been in recoupment and not in set-off. Andrews Heating Co. v. Abbott, 143 Ill. App. 526, 528. And in an action at law, while a defendant may recoup unliquidated damages arising out of the same transaction to the extent of the plaintiff’s claim in order to reduce or defeat the plaintiff’s demand Kingman v. Draper, supra, he cannot have an affirmative judgment for any excess of damages. Stow v. Yarwood, supra; Streeter v. Streeter, supra; Andrews Heating Co. v. Abbott, supra. And as the portion of the statute in question only gave the defendant in this case the “same right of recovery” which he would have had “at law,” we think that the trial court erred in entering the judgment against the complainants fou $100.

For the error indicated that portion of the decree which rendered a judgment for $100 for damages against the complainants is reversed. In all other respects the decree is affirmed. Each party will pay his own costs in this court.

Affirmed, in part and reversed in part.


text:
    Annie Goldstein, Appellee, v. City of Chicago, Appellant.
    Gen. No. 16,939.
    1, Appeals and eeeoes — when validity of statute not involved. On an appeal to the Appellate Court from a judgment on overruling a demurrer to a declaration against a city for destroying a building by virtue of an ordinance authorizing the destruction of dangerous buildings, the validity of a statute is not involved.

      2. Appeals and errors — when certificate that validity of ordinance is involved must be made. The Appellate Court 'will not transfer a cause to the Supreme Court on filing of a certificate of the trial judge in accordance with the Practice Act, section 118, that the validity of a municipal ordinance is involved or that the public interest requires the transfer, if the certificate is not made seasonably.
    3. Municipal corporations — what allegations of fact are admitted by demurrer. A city demurring to a declaration that it wrongfully destroyed a building by virtue of an ordinance authorizing the destruction of dangerous buildings, admits such allegations of fact as are well pleaded.
    4. Municipal corporations — when declaration for destruction of building states good cause of action. A declaration in trespass by the owner of a building against a city setting out an ordinance authorizing the • building commissioner to tear down dangerous buildings after notice to the owner, and a notice to the owner that the building was dangerous and would be torn down if the owner did not do so, averring that the building was torn down by the city and that it was not dangerous and could have been repaired, and making other like averments negativing the provisions and. conditions ' of the ordinance and notice and making appropriate averments as to ownership, location of the property and damages, states a good cause of action.
    5. Municipal Corporations — power to demolish dangerous buildings. Under the police power a city may not enact an ordinance authorizing the building commissioners to tear down dangerous buildings after notice to the owner and tear down a building, without answering to the owner if the building is not dangerous.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Edward J. Brundage and William H. Sexton, for appellant; Oscar H. Olson and Charles G. Hutchinson, of counsel.
    Henry M. Pierce and W. S. Johnson, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action in trespass commenced in the Circuit Court of Cook county, September 30, 1901, by Annie Goldstein, appellee and hereinafter called plaintiff, against City of Chicago, appellant and hereinafter called defendant, Peter Kiolbassa, W. H. Musham, W. A. Wells, A. E. Wells and The Northern Trust Company, a corporation, to recover damages for the alleged wrongful action of the defendants in tearing down a certain frame building owned by plaintiff. Subsequently to the filing of the original declaration, which consisted of one count, and before plaintiff filed the additional count hereinafter mentioned, the suit was dismissed or abated as to all parties defendant except the City of Chicago. On November 16,1909, by leave of court, plaintiff filed an additional count to her declaration, and the general demurrer of the defendant theretofore filed to the original count was ordered to stand to said additional count. On June 22, 1910, the demurrer of the defendant to both counts was overruled and the defendant given time within which to plead. On July 12,1910, the defendant elected to stand by its demurrer, and the court, after hearing proofs, assessed plaintiff’s damages at $1,500, and entered judgment in her favor for said sum, together with costs. This appeal is prosecuted to reverse that judgment.

Subsequently to the filing of the record in this court, counsel for defendant here moved to transfer the cause to the Supreme Court, because (a) the validity of a statute was involved, and (b) the trial judge had certified in accordance with Section 118 of the Practice Act that the validity of a municipal ordinance was involved, and that in his opinion the public interest required the transfer, but the motion was denied. Goldstein v. City of Chicago, 157 Ill. App. 272.

Tbe original count charged, substantially, that on September 28, 1901, the defendants, in said county, with force and arms, broke and entered a certain dwelling house of the plaintiff, situate, on certain property (describing it), in the city of Chicago, and tore down, damaged and destroyed said dwelling house, and thereby deprived plaintiff of the same and the possession, use, occupation and enjoyment, and the rents, issues and profits thereof for all time to come, which said dwelling house, at the time of the committing of said grievances, was of the value of $8,000, and that the defendants then and there did other wrongs, against the peace of the people of the state and to the damage of plaintiff, etc.

The additional count charged, substantially, that on said date plaintiff was the owner and in possession of a certain two-story frame building with appurtenances thereto; that said building was used as a dwelling house and situate on certain property (describing it) in Chicago, otherwise known as No. 108 Pacific avenue; that on said date there were in force certain general ordinances of said city known as the Building Ordinances, and more particularly a certain section thereof, known as Section 229, which was as follows:

“He (the Building Commissioner of the City of Chicago) shall have authority, if he find any building or part thereof, in such condition as to endanger life, and finds that such danger may be averted by immediate application of precautionary measures, cause such precautionary measures to be taken, and do all work necessary to render said building, or any part thereof, safe, having first served written notice upon the owner, lessee, occupant or agent of said building, personally; he shall also have authority to direct the fire department after written notice has been served upon the owner, lessee, occupant or agent, personally, to tear down any defective or dangerous wall, or any building or part thereof, standing in violation of the terms of this chapter;”

That said defendant, City of Chicago, by virtue of said ordinance did, by and through its said commissioner of buildings, on September 13, 1901, serve upon plaintiff the following notice in writing:

“You are hereby notified as owner of two-story frame building at 108 Pacific avenue that said building is damaged over 50 per cent, of its original value and cannot be repaired and is hereby condemned, and you are further notified to have said building taken down within five (5) days from the receipt of this notice, or I shall have said buildings taken down by the city fire department and the expense charged to you.
(Signed) Peter Kiolbassa, Commissioner of Buildings.”

That on September 27,1901, said defendant, then and there acting under and by virtue of said ordinance and through its said commissioner of buildings, gave the following order and direction in writing to the chief of the fire department of said city:

“Please send hook and ladder company to tear down a frame building at 108 Pacific Avenue which has been condemned by City Building Department under direction of Inspector John R. Peters.
(Stamped) Peter Kiolbassa. ’ ’

That on September 28, 1901, said defendant, acting under and by virtue of said ordinance, and without any authoritative investigation beforehand, or the finding of any jury that said building was in such a condition as to endanger life, or that it was damaged over 50 per cent, of its original value and could not be repaired, and without any compensation paid to plaintiff, or any finding or awarding of damages to plaintiff, or by any offer by said city to reimburse her, proceeded to and did condemn said building and, acting by its said servants and officers and by virtue of the authority of said ordinance, entered upon said premises without leave or license and against the will of plaintiff, and with force and arms threw the furniture of plaintiff’s tenants from said building into the street, and utterly destroyed, demolished and razed said building and appurtenances thereto to the ground; that within a period of about a year prior thereto, new foundations had been put under said building; that the material of which said building was constituted at the time of its demolition consisted of sound timber, wood, and materials, and had not depreciated 50 per cent, of its original value, nor had it depreciated in value to any material or appreciable extent, and was in g'ood state of repair and preservation, and was not in such a condition as to endanger life; that said building was occupied on the day of its destruction and had been long-prior thereto by tenants of plaintiff, from whom plaintiff had received for a long time prior thereto and was receiving a monthly rental of $60, and an annual rental of $720; that thereby plaintiff will be deprived of said dwelling house, and its possession, use and occupation, and the rents, issues and profits thereof for all time to come; that said dwelling house was of the value of $8,000, and that defendant did other wrongs against the peace of the people of this state, to the damage of plaintiff, etc.

Counsel for defendant here contend that the judgment of the trial court should be reversed because neither count of the declaration states a good cause of action. By demurring to the declaration the defendant admitted such allegations of fact as were in each count severally well pleaded. Without passing upon the sufficiency of the original count, we are of the opinion that the additional count stated a good cause of action, and, admitting the well pleaded allegations of fact therein contained to be true, warranted the court in entering the judgment it did. Sings v. City of Joliet, 237 Ill. 300.

Counsel for defendant also contend that the city council had authority to enact the ordinance set forth in the declaration, that the acts complained of were done in the valid exercise of the police power, and that, therefore, under the facts-as alleged, the defendant cannot he held liable. Under the authority of the Sings case, supra, we cannot agree with counsel’s contention, and the judgment will be affirmed.

Affirmed.


text:
    Arthur G. Appel, minor, by Philip G. Appel, his next friend, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,971.
    1. Street railroads — evidence as to street crossing accident. A boy struck by a cable train testified that on crossing over a street at a cross walk, passing wagons obstructed his view, and that a train approached from- behind a wagon, going fast and without any bell or gong being rung, and struck him. Defendant’s evidence was that the accident happened some distance from the street crossing and that the boy got off a train, ran around the rear and suddenly into the course of another train not reasonably to be anticipated and with such suddenness as to render the occurrence unavoidable. The evidence on both sides was. corroborated. Held, on considering either the entire evidence, or the evidence for the plaintiff alone, a verdict for the plaintiff was not against the weight of the credible evidence.
    2. Appeals and errors — when improper argument of counsel will not reverse. Improper argument of counsel in a personal injury case in referring to evidence that has been ruled out, and to his efforts to find witnesses, a matter outside the record, and in appealing to the sympathy of the jury, will not reverse where the address of counsel for the defendant tended to provoke a reply, the trial judge promptly rebuked the attorney in the presence of the jury, instructing them to disregard the remarks, three trials have been had and it is not urged that a verdict for $10,000 is excessive.
    Appeal from the Circuit Court of Cook county; the Hon. Kick-ham Scanlan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied and opinion modified October 17, 1912, and refiled.
    Franklin B. Hussey and C. LeRoy Brown, for appellant; Leonard A. Busby, of counsel.
    Leo Koretz and Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of $10,000 recovered by appellee, hereinafter called plaintiff, in an action for damages for personal injuries. The judgment appealed from was rendered after a third trial before a jury. The first trial resulted in a disagreement and the second trial in a verdict for $6,500 in favor of plaintiff, which verdict was set aside and a new trial granted. The same judge who presided over the second trial officiated at the third trial. After verdict rendered in the third trial a motion for a new trial was overruled and this judgment entered.

The record is very voluminous and the printed arguments of counsel are lengthy and exhaustive. The declaration originally consisted of two counts, but on the first trial the second count was dismissed. The case was tried on the second and third trials solely on the first count, which alleged, substantially, that on August 5, 1904, plaintiff was attempting to cross State street in an easterly direction, at and near 25th street; that while so attempting to cross said street and while at all times in the exercise of due care and caution for his own safety “the said defendant so carelessly, wrongfully and negligently drove, managed and operated a certain cable train in a southerly direction, and without any warning or notice to the said plaintiff, toward, across and beyond the said 25th street, as to cause the same, by and through the negligence of the said defendant, as aforesaid, to strike the said plaintiff with great force and violence, then and there and thereby crushing his leg and otherwise greatly and permanently injuring him.” The facts are, substantially, that on August 5, 1904, plaintiff, then a boy of eleven years, was struck by a south-bound cable train of appellant, hereinafter called the Company, on State street, either at 25th street or between 25th and 26th streets in the city of Chicago. He sustained injuries about the head and face and his right leg was crushed so as to necessitate amputation six inches above the knee.

The testimony of the many witnesses on both sides is very conflicting. The plaintiff’s version of the accident is that about 5:30 o’clock in the afternoon, plaintiff, accompanied by two boys of about his own age, attempted to cross east over State street at the south cross-walh of 25th street, while on his way for a swim in Lake Michigan; that while the three boys were so crossing the street two coal wagons were being driven one after another in a westerly direction across State street and across the tracks of the Company; that the rear end of the second wagon had just cleared the west track, which had obstructed the boys’ view of the tracks to the north of them; that just as they were crossing the tracks, plaintiff being slightly in the rear, a cable train approached from the north and from behind said second coal wagon, “going fast” and without any bell or gong being rung or other warning being given, and plaintiff was struck by the southeast part of the front or “grip” car of said cable train and suffered the injuries complained of. The Company’s version of the accident is that plaintiff was not struck at 25th street but at least 200 feet further south in State street; that when struck he was not crossing the street from west to east but was running from east to west; that just before the contact a northbound cable train passed a south-bound train near the middle of the block between 25th and 26th streets; that just as it passed plaintiff ran southwest around the rear end of the north-bound train and against the southeast corner of the grip-car of the south-bound train, and that plaintiff had a bundle of newspapers under his arm at the time and. had been riding on the north-bound train. Counsel for the Company maintain that this is a case of a boy running suddenly into the course of a train not reasonably to be anticipated and with snch suddenness as to render the occurrence wholly unavoidable.

Counsel for the Company urge a reversal of the judgment on the following grounds: (1) The verdict is manifestly against the weight of the “credible evidence” in the case. (2) Even if the evidence introduced on behalf of the Company be entirely disregarded and plaintiff’s evidence be accepted as true it does not establish a case of liability. (3) Instructions numbered 18 and 21 offered by plaintiff and given to the jury were erroneous. (4) Plaintiff’s counsel was guilty of such misconduct in his argument to the jury as warrants a reversal of the case. Counsel do not contend that the verdict is excessive.

After a careful examination into the facts of this case, we cannot say that the verdict is manifestly against the weight of the credible evidence in the ease. Neither can we say, disregarding the evidence introduced on behalf of the Company entirely and accepting plaintiff’s evidence as true, that plaintiff’s evidence does not establish a case of liability as contended by counsel.

And we do not think, in view of the declaration and facts of the case, that the trial court committed error in giving to the jury the instructions complained of.

As to the point made that the plaintiff’s counsel in his argument to the jury was guilty of such misconduct as warrants a reversal of the case, one of the disputed questions in the case was whether or not plaintiff at the time of the accident had a bundle of newspapers with him. Plaintiff and some of his witnesses claimed that he had not, and some of the witnesses for the Company claimed that he had and that after the accident the same were scattered about the streets near him. If plaintiff carried newspapers the inference would be strong that at the time of the accident he was not going to the lake for a swim as he testified. In rebuttal, plaintiff’s counsel called the father of plaintiff as a witness and endeavored to show hy him a list of customers to whom the Appel newspaper agency delivered papers at the time of the accident, and the route usually taken by plaintiff in so delivering the papers. Upon objection made by counsel for the Company the court held that “evidence as to the route is not rebuttal in this case,” and the list was not admitted in evidence.

Counsel for the Company in his address to the jury, in referring to some of plaintiff’s witnesses, said:

“All these fellows are acquainted. Where do they come from? Joe LaMansky, Fritzie Schmidt, Fish-'man, Campbell. Every one you can trace right through. Who are the parties? Do they converge? Are they in different lines of business, distant from one another? No. Interested or acquainted with one another? Yes.”

In closing his address to the jury counsel said:

“If this is a framed-up defense, * * * if this is framed-up and concocted in my office or the City Railway office, why didn’t the other six see the papers? * * * Eight witnesses who saw them and saw him flipping those cars, running toward the car and saw the papers, every one of the eight. * * * It isn’t a question of sympathy, it is a question of even handed justice at your hands. * * * I am sorry for that boy’s losing his leg, I am sorry to see him tell such a story as this here, I am sorry to see boys come in here and try to bolster up a thing when they give no reason of abandoning their usual evening occupation of having newspapers with them * * * and going off swimming at dinner time or supper time, but I am sorry for the boy losing his leg, but that has got nothing to do with the evidence in this case as to how the accident happened.”

Immediately following the making of the above remarks by counsel for the Company, plaintiff’s counsel made his closing argument to the jury in which he said, among other things:

“The City Railroad Company has cut a boy’s leg off, and the boy is a young boy, and he wants Fifteen or Twenty Thousand Dollars for it, he claims they are negligent, he files a lawsuit against them and asks them for money; think of it, yon know the street car company are so in the habit of getting nickels right, along, that it is a hard proposition for them to give some back some time, and this boy is asking for it, and they find out that this boy had a newspaper route and that he had been in the habit, every evening, off and on, of delivering papers down on Wentworth Avenue, and on La Salle Avenue, and through there, and we had the list of the customers right here, and Hussey (counsel for the Company) was so fair he wouldn’t let you men see it.
Mr. Hussey: I object to that statement.
The Court: Mr. Belasco, the court ruled on that and the court ruled the evidence was incompetent, so you can’t make that sort of argument without reflecting on the court. * * * The jury will disregard the remark.”

Further on in his argument plaintiff’s counsel said:

‘‘G-entlemen, if this accident didn’t happen at 25th Street, then myself and Mr. Baker and the twelve witnesses that testified to this case ought to be on the North Side; I oughtn’t to practice law any more, I haven’t any right, because if this case was framed up, I framed it; I talked to these witnesses, I found some of them; Mr. Baker found some of them; we went around there and we canvassed the neighborhood up and down and around—
Mr. Hussey: I object to that.
The Court: No, don’t go into that as to what you did outside of the record. * * * The jury will disregard that.
Mr. Belasco: * * * Don’t you give me credit if I got these twelve witnesses and brought them in my office and trained them, that I couldn’t do a better job than I have, one witness saying one thing and one saying another; they would have all told the same story just as our friend Hussey’s did. * * * There is your fine bunch of witnesses, witnesses that you are asking this jury to turn this boy loose penniless. Men, the boy has had three trials, he has grown from a boy to a lad; this woman that saw this accident was a girl, and she is now a mother, and they still keep this boy ont of justice. As I say in this case, men, don’t let them do it any more; pay the boy for God’s sake, don’t turn him loose any more; two trials he has had, this is the third—
Mr. Hussey: I object to that line of argument. ‘Pay the boy for God’s sake.’ * * * It appeals to the sympathy of the jury.
The Court: Mr. Belasco, you must not make that sort of argument to the jury, and you must direct your argument to a logical examination of the facts in the case, and the jury must not be influenced by any appeals of that kind; they must stick right to the evidence and to the law and to arguments of either counsel as are logical and based upon the evidence.”

Counsel for the Company excepted to these remarks. We think that certain of these remarks were highly improper and such as in some cases would be grounds for a reversal. But inasmuch as it may be considered that portions of the address of counsel for the Company tended to provoke a reply by plaintiff’s counsel, and inasmuch as the trial judge promptly rebuked plaintiff’s counsel for the improper remarks in the presence and hearing of the jury, and instructed them to disregard the same, and inasmuch as three trials of the case have been had and counsel for the Company do not urge that the verdict in the last trial is excessive, we are of the opinion, in view of all the facts and circumstances of the case, that the judgment should not be reversed because of such misconduct. In North Chicago Street Ry. Co. v. Cotton, 140 Ill. 486, 502, it is said:

“It should be remarked that, from the very nature of the case, questions involving the conduct of counsel at the trial, and the character and scope of their arguments to the jury, must be left largely to the sound discretion of the trial judge. * * * In clear cases this court will reverse, and frequently has reversed, judgments in consequence of improper remarks to the jury. But this is always done with hesitation and reluctance.” (Cited in Henrietta Coal Co. v. Campbell, 211 Ill. 216, 228, and in Chicago City Ry. Co. v. Strong, 230 Ill. 58, 60; see also, Chicago City Ry. Co. v. Foster, 128 Ill. App. 571, 578, aff’d 226 Ill. 288, 295.)

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Frederick Leo Orsinger, Appellant, v. State Board of Health of Illinois, Appellee.
    Gen. No. 16,996.
    1. Appeals and errors — necessity of exceptions to vacation of order after term has passed. Where an order awarding a writ of mandamus is made under mistake of fact that the respondent has not pleaded, the petitioner cannot complain of an order vacating the original order after the term has passed where no exceptions to the vacating order are presented to the Appellate Court.
    2. Appeals and errors — when vacation of order after term has passed is waived. When an order awarding a writ of mandamus is made under a mistake of fact that the respondent has not pleaded, and is vacated hy an order after the term has passed, the entry of the vacating order is waived by the petitioner withdrawing his replication, demurring to the pleas, and appearing and arguing the demurrer.
    3. Mandamus — when order awarding writ may be vacated after term has passed. Where a demurrer to pleas to a petition for a writ of mandamus is overruled and an order awarding the writ recites that the respondent has failed to plead, it would seem that the order may be vacated after the term has passed by reason of its entry under a mistake of fact.
    4. Mandamus — necessity of demanding license to practice medicine. Where pleas in mandamus to compel the State Board of Health to issue a license to practice medicine deny that a demand for a license was made, additional pleas reciting that the petitioner has been guilty of unprofessional conduct, and that he has not passed the examination required do not show, on demurrer, that a demand would have been futile.
    E. Mandamus — license to practice medicine cannot be obtained without passing examination. On a petition for a writ of man

      damns to compel the State Board of Health to issue a license to practice medicine, pleas that the Board has passed a rule, under the act by which it was appointed, requiring applicants to take an examination and to answer a certain percentage of the questions correctly, that the board has passed a resolution abrogating its discretionary power to grant a license without an examination, and that the petitioner has not passed an examination, are good on demurrer.
    6. Mandamus — when unprofessional conduct will preclude granting of licenses to practice medicine. In a petition for a mandamus to compel the State Board of Health'to issue a license to practice medicine, a plea that the petitioner has twice been convicted of practicing medicine without a license, reciting the facts in connection with the second conviction, is good on demurrer.
    Appeal from the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Rehearing denied October 17, 1912.
    Harry L. Strohm, for appellant.
    Charles Alling, Jr., for appellee; Charles G. Hoffman, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County, rendered January 25,1910, dismissing the petition of appellant, plaintiff below, at his costs, in which petition he prayed for a writ of mandamus commanding appellee, defendant below, to issue to him a certificate licensing him to practice medicine and surgery in all its branches within the state of Illinois.

The facts of this case, as disclosed from the record, are as follows: On March 31, 1905, plaintiff filed his said petition in which he alleged, substantially, that he‘was a naturalized citizen of the United States and a resident of Cook county, Illinois, that after completing a course of ’study in Switzerland and after coming to this country he began the practice of medicine and surgery in La Salle county, Illinois, in January, 1872, that subsequently he completed the course of study required by the “College of Medicine and Surgery of Chicago,” that said college at the time of his graduation therefrom was duly incorporated under the laws of this state and adjudged by defendant to be an institution in good standing and in fact was an institution in good standing; that in May, 1904, he made application in writing to defendant, in conformity with the then existing act regulating the practice of medicine in this state, for a license; that at the time of making said application he was the lawful possessor of a diploma of said college and was of good moral character, that defendant unjustly, arbitrarily and without authority of law refused to issue to him said license unless he should pay an examination fee and appear for examination upon such subjects and topics, the knowledge of which was generally required of candidates for the degree of doctor of medicine by reputable medical colleges, that because of such unlawful refusal of defendant he was prevented from exercising the rights and privileges pertaining to the degree of doctor of medicine and by virtue of the powers vested in said college upon those who had completed the course of study required by it and had passed a satisfactory examination and had been recommended by it as qualified to practice medicine and surgery, and that because of such refusal he had been deprived of rights to which he was lawfully entitled. To this petition an answer, in the form of five separate pleas, was filed by defendant, April 15, 1905, in which it was alleged, substantially, (1) that petitioner ought not to have said writ because no demand has been made upon defendant to grant petitioner such a license at any time, except that petitioner has at one time requested of defendant the privilege of an examination for the purpose of obtaining a license, but that at no time was any application made to obtain a license without examination; (2) that no application has been made by petitioner to defendant to obtain a license therefrom to practice medicine in this state; (3) that defendant passed a rule prior to July 9, 1904, under the act by which it was appointed, requiring all persons who desired a license to pass an examination upon the presentation of a diploma from a medical college in good standing, and requiring that the applicant have a credit equal to 75 per cent, upon the questions propounded and answers thereto upon markings made by the examiners, that in July petitioner requested an examination which was granted, that upon such examination petitioner received less than the required 75 per cent., and that petitioner has not since passed an examination with a rating equal to said 75 per cent.; (4) that petitioner has been guilty of unprofessional conduct in that he has been practicing medicine in this state without a license since his last examination by defendant in October, 1904, upon which second examination petitioner failed to receive said required 75 per cent.; that petitioner thereafter practiced medicine in this state, whereupon defendant prosecuted him and obtained a judgment against him (being for a second offense) for the snm of $200, on March 24, 1905, before a justice of the peace in Chicago, from which judgment petitioner appealed to the Criminal Court of Cook county; that prior thereto, on November 17,1902, before the same justice of the peace, petitioner was convicted of practicing medicine without a license, whereupon petitioner obtained an injunction against defendant restraining it from collecting the said judgment which injunction was dissolved, and, a mittimus having been issued and petitioner having been placed in the county jail, petitioner obtained a writ of habeas corpus, but upon the hearing thereof petitioner was remanded to said jail; that petitioner, having agreed to stop practicing medicine without a license, was permitted to have an examination by defendant, said petitioner having received a diploma, as alleged, from the “School of Physicians and Surgeons,” but that he failed to pass, and thereafter he again began the practice of medicine, as above set forth, upon which he was convicted, as above mentioned, on March 24, 1905; (5) that on July 11, 1899, this defendant adopted the following resolution:

“Whereas section 2 of an act to regulate the practice of medicine in the State of Illinois and to repeal an act therein named, approved April 24,1899, in force July 1, 1899, gives the State Board of Health discretionary power as to granting certificate without examination to graduates of legally chartered medical colleges in Illinois in good standing as may be determined by the board, and
Whereas it is evident, notwithstanding the discretionary power granted to the board, that the true intents and purposes of this act is to require all persons to prove their qualifications to the State Board of Health by passing an examination, therefore be it
Resolved that all applicants for a state certificate to practice medicine and surgery in the State of Illinois, who are graduates of medical colleges in good standing as may be determined by this board, shall before receiving a certificate, be obliged to pass an examination such as contemplated in section 2, of an act to regulate the practice of medicine in the State of Illinois, in force July 1, 1899;”

that said resolution was adopted at a regularly called meeting of defendant; that petitioner has never complied with the requirements of said resolution, in that he has not passed an examination by defendant for the purpose of obtaining a certificate to practice medicine in this state.

To these pleas of defendant petitioner, on June 9, 1905, filed a demurrer, stating that the same were not sufficient in law, etc., and further stating that the same failed to set out any lawful reason why defendant should not issue the said license, and that the said pleas contained facts which showed that any demand for a license would have been futile, unnecessary and would not have been complied with.

After a lapse of more than three years, during which time no action appears to have been taken by either party to the cause, on July 6, 1908, the court entered the following order:

“This cause coming on to be heard upon the demurrer to the respondent’s answer, * * * after arguments by counsel and due deliberation by the court, said demurrer is overruled and leave is given petitioner to file replication herein instanter, and it appearing to the court that the respondent has failed to plead herein as required by an order of this court, on motion of petitioner’s attorney it is ordered that the default of said respondent be taken, and the same is hereby entered herein * * * for want of compliance with said rule. Thereupon, after evidence is heard in open court it is ordered that a peremptory writ of mandamus ought to issue herein; therefore, it is ordered * * * that a peremptory writ * * * do issue herein as prayed,” and that'petitioner recover costs, etc.

The record discloses that on the same day petitioner, by his attorney, filed a replication to the defendant’s “answer,” in which he denied “each and every allegation of new matter set out in the answer, such as is necessary to reply thereto.” Although the order for said writ was entered on July 6, 1908, the same was not issued out at the clerk’s office until August 25, 1909, — a period of more than one year. It was served on defendant’s agent in Chicago on August 26, 1909. On November 20, 1909, it was ordered by the court, on motion of defendant’s attorney, that said order of July 6, 1908, be set aside and vacated and the cause set for trial for' November 30, 1909. The cause again coming on to be heard on December 4,1909, upon motion.of the petitioner to withdraw his replication to said answer of the defendant and for leave to demur to said an-, swer, it was ordered that petitioner be permitted to withdraw his said replication and to file a demurrer thereto within three days. On December 7,1909, petitioner filed his demurrer substantially on the following grounds, (1) that said pleas are not sufficient in law, etc.; (2) that the same fail to set out any lawful reason why defendant should not' issue to petitioner the certificate or license prayed for, because, (a) the denial of defendant, in the first and second pleas, of a demand by plaintiff for such a certificate or license is abrogated by defendant’s subsequent admissions of conduct on its part, constituting an equivalent to a positive refusal to issue said certificate or license; (b) the fact that less than 75 per cent, was given plaintiff on certain examination papers in examinations exacted by defendant, but not required by law, constitutes no defense to plaintiff’s petition; (c) the fact of a judgment being rendered against petitioner, at the suit of defendant who refused to issue a certificate to plaintiff, finding plaintiff guilty of practicing medicine without a license, does not constitute unprofessional conduct as prescribed by law; (d) the fact that, while plaintiff was in prison and under duress, at the instigation of the defendant, he promised defendant to stop the practice of medicine and submit to another examination for a license, constitutes no defense to plaintiff’s petition; (e) the fact of the adoption by defendant of certain resolutions, set out in its fifth plea, which is in derogation of the statutes of this state, constitutes no defense to said petition. It is to be noticed that this demurrer of . plaintiff is practically the same, although set forth more in detail, as his demurrer filed June 9, 1905, and which the court, on July 6, 1908, overruled and allowed him to file a replication to said pleas instanter.

On January 20, 1910, arguments were had before the court on said demurrer and the court overruled the same and gave leave to plaintiff to file his replication within three days. On January 25,1910, the cause again coming on to be heard on motion of the plaintiff to vacate the order entered on January 20, said motion was allowed, whereupon the court, after hearing further arguments on said demurrer of plaintiff, overruled the same, and, plaintiff electing to stand by his demurrer, the court ordered “that plaintiff take nothing by the aforesaid action and that said petition be dismissed and that judgment for costs be entered against plaintiff, ’ ’ whereupon plaintiff prayed for and perfected this appeal.

It is first contended by counsel for appellant that the court erred in setting aside, on November 20, 1909, after the term had passed, the said order of July 6, 1908, which granted to plaintiff a peremptory wri+ of mandamus as prayed. We are of the opinion that this order of July 6,1908, was entered by the court by reason of a mistake of fact. The order on its face recited that “the respondent has failed to plead herein,” whereas, as a matter of fact appellee (respondent) had filed an answer or pleas to which appellant had demurred and the demurrer had been overruled. As the record then stood said answer or pleas were on file and undisposed of. But, in any event, appellant is in no position in this court to complain of the entry of the order of November 20, 1909, because no exceptions thereto have been presented to this court. St. Louis, etc., Ry. Co. v. Union Bank, 209 Ill. 457; Domitski v. American Linseed Co., 221 Ill. 161; People v. Chicago, etc., Ry. Co., 243 Ill. 221; People v. Mills, 247 Ill. 620. Furthermore, it appears from the record that on December 4, 1909, after the entry of the order of November 20, 1909, setting aside and vacating said order of July 6, 1908, plaintiff moved the court for leave to withdraw his replication, filed July 6, 1908, and to demur to the pleas or answer of the defendant, and he afterwards appeared and argued said demurrer. We consider this a waiver of the point here made. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 83; Hartford Fire Ins. Co. v. Northern Trust Co., 127 Ill. App. 355.

It is next contended by counsel for appellant that the court should have sustained appellant’s last demurrer to said answer or pleas. By the demurrer appellant admitted such facts contained in said answer or pleas as were well pleaded. Considering such facts, and in view of the provisions of the act “To regulate the practice of medicine in the State of Illinois, and to repeal an act therein named” (Approved April 24, 1899. In force July 1, 1899) which were in force when appellant, as appears from said answer or pleas, took his said examinations and failed to pass, we are of the opinion that the court properly overruled said demurrer and, upon appellant’s electing to stand by the same, properly dismissed said petition at appellant’s costs. People v. Illinois State Board of Dental Examiners, 110 Ill. 180; People v. Henry, 236 Ill. 124, 127.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Matthew P. Kossakowski and Albert Grabarski, Appellants, v. Celenia M. Shuman and Frank M. Elliot, Appellees.
    Gen. No. 17,008.
    1. Judgment — right to enjoin collection. A party seeking to enjoin the collection of a judgment must show that he has a good defense to the merits and equitable grounds for relief, he being himself without negligence.
    2. Judgment — when collection of judgment on appeal bond will not be enjoined. A tenant did not exercise his option to purchase the demised premises, claiming that the title was defective, but it appeared that he had been unable to raise the money. Rent being due, a judgment in forcible detainer was obtained, which was affirmed on appeal to the Circuit Court. An action on the appeal bond was tried on the issues that there was no rent due, that there was no lease, that the principal was in possession under a contract to purchase, and that the demands of the landlord had been satisfied by the payment of various sums of money. The landlord ob-tamed a judgment and the principal and surety filed a bill to enjoin its collection, claiming to have equitable defenses that they were unable to present, and a set-off that they were not obliged to set up in the action at law. Held, that practically the same questions had been litigated and there were no equitable grounds for relief.
    3. Judgments — when judgments in forcible detainer and on appeal bond are res adjudícala. Rent was due and the landlord obtained a judgment in forcible detainer, the tenant being present at the trials and the judgment was affirmed on appeal to the Circuit Court. An action on the appeal bond was tried under issues that there was no rent due, that there was no lease, that the principal was in possession under a contract to purchase, and that the demands of the landlord had been satisfied by the payment of money. The landlord obtained a judgment and the principal and surety filed a bill to enjoin its collection. Held, the judgments in forcible detainer and on the appeal bond were res adjudicata of the fact that there^ was rent due and of the amount so due.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Leon Hornstein, for appellants.
    Matz, Fisher & Boyden, for appellees.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a decree the Circuit Court of Cook county dismissing for want of equity the bill of Matthew P. Kossakowski and Albert Grabarsld, appellants, filed against Celenia M. Shuman and Frank M. Elliot, appellees. The bill was brought to enjoin the collection of a judgment for $600 debt and $470.50 damages, in favor of said Celenia M. Shuman and against appellants, obtained in a suit at law in said Circuit Court, upon an appeal bond given by the appellant Kossakowski, as principal, and the appellant Grabarski, as surety, in a forcible detainer case (brought before a justice of the peace and tried de novo in said Circuit Court) to recover possession of a certain house and lot, occupied by said Kossakowski under a written lease from said Celenia M. Shuman.

The facts are substantially as follows: On May 20, 1903, A. "W. Shuman, then the owner of said house and lot, demised and leased the same to Kossakowski by written lease, signed and sealed by said Shuman, by said Elliot as his agent, and by said Kossakowski. The term was from May 25, 1903, until April 30, 1904, and the lessee was to pay as rent the sum of $420 — $10 for the balance of the month of May, $50 monthly for the months of June, July, August and September, 1903, and $30 monthly for the balance of the term. Kossakowski, as lessee, agreed to accept the premises in their then condition and covenanted to keep the same in good repair and that all required repairs should be made by him at his own expense. On September 25, 1903, by written endorsement on the lease it was agreed that the rent for the months of October, November and December should be at the rate of $50 per month, instead of $30 per month, all other conditions and agreements. to remain in force. On the day following the execution of said lease, May 21, 1903, the said parties signed a written contract whereby Kossakowski agreed to purchase said premises for $5,000 and Shuman agreed to sell the same at that price and to convey to Kossakowski a good and merchantable title thereto, by general warranty deed, but subject to "(1) existing leases, expiring April 30, 1904, the purchaser to bé entitled to the rents from May 25, 1903,” (2) taxes after 1902 and unpaid special taxes or assessments, and (3) a trust deed to secure the payment of $3,000, due October 1, 1905. The contract further set forth that the purchaser had paid one dollar as earnest money, and agreed to pay, within 5 days after the title had been examined and found good or accepted by him, the further sum of $999, or more, if said warranty deed was then ready for delivery, and the balance on or before one year after the delivery of said deed, that said purchase should he completed on or before October 1, 1903, and that, in case said purchase was not made, “all payments made either in rents or on purchase price should be forfeited and this contract shall become null and void.” The contract further provided that a merchantable abstract of title should be furnished by the seller; that the purchaser, or his attorney, should within ten days deliver to the seller or his agent a memorandum specifying all objections to the title, if any; that if material defects be found and reported, then if such defects be not cured within sixty days the contract should, at the purchaser’s option, become null and void and said earnest money be returned; that notice of such election be given to the seller, but that the purchaser might nevertheless elect to take the title as it then was, provided he give written notice of such election within ten days after the expiration of said sixty days and tendering performance on his part; that “in default of such notice of election to perform, and accompanying tender, within the time so limited, the purchaser shall, without further action by either party, be deemed to have abandoned his claim upon said premises, and thereupon this contract shall cease to have any force or effect as against said premises, or the title thereto, or any right or interest therein, but not otherwise;” and that should the purchaser “fail to perform this contract promptly on his part, at the time and in the manner herein specified, the earnest money, paid as above shall, at the option of the vendor, be forfeited as liquidated damages, and this contract shall thereupon become and be null and void.” On October 23, 1903, an endorsement was put upon the back of the contract, signed and sealed by Celenia M. Shuman, by Elliot as her agent, and by Kossakowski, to the effect that A. W. Shuman had died leaving a will wherein he had devised the premises to Celenia M. Shuman, that the contract was thereby re-executed by the said parties signing said endorsement and was in full force as though originally signed by them, but that the time for the completion of the purchase be extended “so as to be on or before January 1, 1904.” The purchase was not completed within the time as extended, and on April 9, 1904, a second .endorsement was placed upon the contract, signed and sealed by Celenia M. Shuman and Kossakowsld, to the effect that the time for the completion of the purchase be extended to January 1, 1905.

Shortly before the expiration of the term of the lease above mentioned and under date of April 23, 1904, a new lease was made by Mrs. Shuman to Kossakowski, leasing said premises from May 1, 1904, to April 30, 1905, for $630, payable in monthly installments of $52.50. It is evident that Kossakowski had not fully paid the rent stipulated in the prior lease because this new lease contained the following provision, “That up to May 1,1904, there is due on account of accrued rent of the premises herein described the sum of $270, and that * * * the payment of the rental of $52.50 as herein stated shall be applied as follows: $30 for the rent of each month so paid and $22.50 each month so paid applied on account of the indebtedness for rent existing before May 1, 1904.” By the terms of this new lease, Kossakowski agreed to accept the premises in their then condition, and covenanted to make repairs at his own expense, as follows: reshingle certain portions of the roof of the house, paper certain rooms, calcimine other rooms, paint certain woodwork, and make all other required repairs. And it was agreed between the parties “that the cost for the repairs herein stated, not exceeding $250, should be deducted from the purchase price of the property, provided the party of the second part purchase the property on or before January 1, 1905, which is more fully set forth in the contract between the parties hereto, dated May 21, 1903, and which has been amended and endorsed to extend to January 1, 1905.”

Shortly prior to January 1, 3,905, which was the date of the expiration of the time limited within which Kossakowski might purchase said premises by virtue of the last extension of the agreement, Kossakowski submitted an abstract of title to his attorney for examination, which abstract he had obtained from Elliot. The, attorney reported that he had discovered what he coifsidered was a cloud upon the title and Elliot was notified of the fact. After various interviews were had, Elliot proposed giving a guaranty policy as a remedy for the alleged cloud, but Kossakowski, although his attorney advised him to accept it, refused to accept the policy, saying that he feared litigation and that he wanted the title cleared. It is claimed by counsel for Kossakowski that because of this defect in the title the purchase of the premises was not consummated by Kossakowski, and that he was able and willing at this time to perform his part of the contract, but the entire evidence in the case tends to the conclusion that he tried to raise the necessary money but was unable so to do.

On January 28, 1905, Elliot, as agent for Mrs. Shuman, caused a written notice to be served on Kossakowski to the effect that there was then due from him to her the sum of $195, as rent for said premises, that said sum was demanded, and that unless payment thereof was made on or before February 2, 1905, Kossakowski’s lease of said premises would be terminated. On February 14, 1905, Mrs. Shuman filed her complaint in a forcible detainer suit against Kossakowski before a justice of the peace, and at the hearing on February 27, 1905, Kossakowski being present, the justice gave judgment in favor of Mrs. Shuman for said premises. An appeal was taken to the Circuit Court, Kossakowski filing his appeal bond, with Albert Grabarski as surety, in the sum of $600. On May 29, 1905, a trial de novo was had in the Circuit Court, at which both Elliot and Kossakowski testified. It appeared that while Kossakowski had expended some money in repairs on the house, he had not reshingled the portion of the roof as he had agreed to do in the lease, that $180 in rent was then due and unpaid, and that Kossakowski was in possession of the premises. After the trial there were some conversations had between Elliot and Kossakowski and their attorneys relative to a settlement whereby Kossakowski was to pay Mrs. Shuman some money, but no settlement was consummated. On June 23, 1905, the court gave judgment for the premises in favor of Mrs. Shuman, together with costs, and directed that a writ of restitution issue. Kossakowski vacated the premises on July 31, 1905.

On November 10, 1905, Mrs. Shuman filed her declaration in said Circuit Court in an action of debt on said appeal bond against Kossakowski' and Grabarski, and on November 21st, they filed ten pleas thereto. Mrs. Shuman claimed rent due under the lease and for the use and occupation of the premises until July 31, 1905, when Kossakowski vacated the premises, and interest and costs in the forcible'detainer suit. In their pleas Kossakowski and Grabarski denied that there was any rent due; denied that Kossakowski had executed any lease, set forth the.claim that Kossakowski was in possession of the premises under a contract to purchase the same and not under a lease, and claimed that Kossakowski had paid Mrs. Shuman various sums of money which had satisfied and extinguished the demands of Mrs. Shuman. By replications to these pleas Mrs. Shuman put in issue all of the claims made therein. On October 28, 1909, a trial was had in said court, resulting in a judgment against appellants herein for.$600 debt and $470.50 damages, and costs, the debt to be discharged upon payment of said damages, upon which judgment execution was issued.

The bill filed in this case sought to enjoin the collection of the judgment. It proceeded upon the theory that appellants had certain equitable defenses in said suit on the bond which they were unable to present, and that one of said appellants had a claim of set off which, they were not obliged to set np in said action at law. The record discloses that practically the same questions which were put in issue by the pleas in said action on the bond and which were there decided adversely to appellants, were presented before the chancellor in this case, who after a full hearing upon the merits dismissed the bill for want of equity. We are of the opinion that the chancellor did not err in dismissing the bill. A party seeking to enjoin the collection of a judgment must show that he has a good defense to the merits and equitable grounds for relief, he being himself without negligence. Telford v. Brinkerhoff, 163 Ill. 439; Reed v. New York, etc. Bank, 230 Ill. 50, 53. Furthermore, we think that under the facts of this case the decision in the forcible detainer case and the judgment in said suit upon the appeal bond are res adjudicata of the fact that there was rent due from Kossakowski to Mrs. Shuman and also of the amount so due. Wright v. Griffey, 147 Ill. 496, 498; Hanna v. Read, 102 Ill. 596; In re Estate of Stahl, 227 Ill. 529. The decree of the Circuit Court is affirmed.

Affirmed.


text:
    Harry Chapman, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 17,024.

      Tbial — remarks of counsel in effect telling jury that prior decision of case was favorable. Where counsel on examining the jurors remarks that the case had been tried before and that he had no objection to telling what the result was, but that the opposing counsel would probably object, and is stopped by the court, an objection being made, from making further remarks along that line, such action is reversible error, as it was in effect plainly telling the jury that the prior decision was favorable.

      Appeal from the Circuit Court of Cook county; the Hon. Richakd S. Tuthii.l, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed October 3, 1912.
    John E. Kehoe and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    A. W. Fulton and Robert S. Cook, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook county in favor of Harry Chapman, appellee, against Chicago City Railway Company, appellant, for $5,000, for damages for personal injuries sustained by appellee while attempting to board a car of a cable train operated by appellant. The judgment was rendered after a second trial before a jury. At the first trial the jury assessed appellee’s damages in the sum of $4,000, but the court granted a new trial.

The facts are, briefly stated, as follows: Appellee was employed by the Woodstock Canning Company at $2.50 per day. On the morning of the accident, after drawing the amount of his wages for the previous week, he decided not to work that day, and, after making a call upon his mother, met a friend at a restaurant, corner of Halsted and Madison streets in Chicago, where they had dinner. After dinner they passed the afternoon playing cards and drinking beer. Appellee testified that during this time he had about four glasses of beer but “didn’t have any whiskey or anything of that sort.” He further testified that about 5:30 o’clock he left his friend and walked east on Madison street to State street, a distance of about a mile; that he did not stop anywhere; that after reaching State street he walked north to Randolph street, then back on State street to Monroe street, then east to Wabash avenue; that he was “taking in the sights,” but that he did not stop anywhere; that when he reached the corner of Monroe street and Wabash avenne he went about fifty feet south of the crossing and stood on the west side of the car tracks waiting for a car going south; that it was cold and that there was “sleet and ice and one thing and another on the street;” that it was then about seven o’clock in the evening; that after waiting a while a cable train, consisting of an open grip car with two cars attached, came along going south and he “motioned for the car;” that the grip-man “slacked up, just slowed down you might say to invite me to get on the car;” that he stepped on the step of the front platform of the car following the grip car, which platform was crowded with passengers; that just as he stepped on the car it gave a “sudden lurch, * * * the crowd pushed me back, * * * I lost my balance, * * * I fell kind of on my back, turned over on my side, * * * put my hand under the projection of the wheels — the fender I guess, * * * the wheels of the car did not run onto my hand. It was this board that simply crushed and tore my fingers.” The testimony of appellee is not clear as to just how the accident happened, and only one other witness, named Woodward, testified as to seeing the accident, and he says that as he “came around the corner I seen someone falling from the car, * * * he fell flat on the street, * * * he sprawled, with his arms extended in both ways. The car was moving at the time.’ ’ Appellee was taken first into a saloon, then to a drug store, then to a doctor’s office where his hand was dressed, and then to the Samaritan hospital in a police ambulance. On the following morning a surgeon amputated the third and fourth fingers and a portion of the index finger of appellee’s right hand. Appellee resumed work at the canning company in the month of July following and at the time of the trial testified he was receiving fifteen dollars a week, figuring five days and one-half to the week. Appellee further testified that at the time of the accident he was not intoxicated, but the witness "Woodward, who picked him np after the cable train had passed on, testified that he “could smell whiskey on his breath,” and several other witnesses, who saw appellee shortly after the accident, including the physician who first attended him and dressed his hand, all testified he was in an intoxicated condition.

Counsel for appellant contend that the evidence does not show that appellant was guilty of negligence, that the entire testimony of appellee as to the manner in which he says the accident occurred is inherently improbable and descriptive of an accident physically impossible of occurrence, that the testimony of other witnesses as to statements made to them by appellee shortly after the accident, together with other facts in evidence, indicate that appellee was himself guilty of negligence in that he attempted to board one of the cars of the cable train while it was moving, missed his hold and fell, that the verdict is excessive and that counsel for appellee was guilty of misconduct at the trial prejudicial to appellant.

After a careful examination of the abstract of record and of the briefs and arguments of the respective counsel, we have reached the conclusion that the judgment of $5,000 in this case should be reversed and the cause remanded.

After twelve jurors had been placed in the box and sworn to answer questions touching their qualifications to serve'as jurors, counsel for appellee proceeded to examine them, and while so engaged the following occurred :

“Q. Well, now, in this case another matter will develop, and that is this case was tried before, about last December or January, was submitted to a jury and tried. I have no objection to telling you what the result of that trial was. I presume Mr. Kehoe will object to telling you, but let me say this—
(Counsel for appellant here objected to the statement.)
The Court: Very improper remark to make.”

After some remarks by counsel for appellee counsel for appellant said:

“In view of the nature of the remark, I desire to take an exception to the statement of counsel on the ground that your Honor in sustaining the objection cannot correct the harm that is done by such a remark.”

This objection was sustained, and thereupon counsel for appellant moved the court to withdraw a juror and discharge the panel from further service for the reason that the statement of counsel was equivalent to saying to the veniremen that a previous jury had rendered a verdict favorable to the plaintiff below, with which the plaintiff was satisfied. Counsel for appellant also moved the court to direct its clerk to call another panel of veniremen who had not heard the remarks of counsel for the plaintiff, but this motion was overruled and an exception preserved. We think that under the facts in this ease the remarks of counsel for plaintiff .constituted error prejudicial to appellant. In Springfield, etc. Ry. Co. v. Bell, 134 Ill. App. 426, counsel for the plaintiff, in his closing address to the jury, used the following language:

“If this woman is lying to you she has hoodwinked all of her friends; she has hoodwinked the Clarks; she has hoodwinked the doctor and her attorneys; she has hoodwinked this jury and she has hoodwinked another jury before you.”

In reversing the judgment in favor of the plaintiff, the court said, page 427:

“This was in effect telling the jury plainly that the verdict upon the former trial was in appellee’s favor * * * It is seldom that judgments have to be reversed upon this ground alone and courts of review take such action with hesitation and reluctance, yet in clear cases they will and should reverse, because of improper remarks to the jury.” (Citing North Chicago, etc. Ry. Co. v. Cotton, 140 Ill. 486, 502; I. C. R. R. Co. v. Seitz, 111 Ill. App. 242.)

The judgment of the Circuit Court is reversed and the cause remanded.

Reversed and renumded.


text:
    Elicia D. Wahl, Appellee, v. John F. Brady, Appellant.
    Gen. No. 17,039.
    1. Guaranty — discharge of guarantor. Where machinery held under a chattel mortgage' as security for a note is sold for more than the amount of the note at a public auction to the husband of the person holding- the note, and where upon such sale being adjudged rescinded because of failure to comply with its terms, the machinery is again sold at public auction for a sum less than that due on the note, action may be brought against the guarantor of the note to recover the balance due thereon where it appears that such guarantor was not misled by the first sale, and knew that the purchaser would not he able to comply with the terms thereof.
    2. Chattel mortgages — rescission of sale. Whether or not a sale at public auction under a chattel mortgage has been rescinded for failure to comply with the terms of such sale is a question for the jury.
    Appeal from the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed October 3, 1912.
    Delavan B. Cole, for appellant.
    Alexander H. Weyman, for appellee.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action in assumpsit brought by appellee, as endorsee of a judgment note, against appellant as guarantor, which note was for $4,000, dated August 17,1904, signed by John P. Brady Turbine Company, a corporation, payable on or before eighteen months after date to the order of Jacob C. Wahl (the husband of appellee) and by him endorsed to appellee. Before the delivery of said note by the maker to the payee, appellant placed his name upon the back of said note. A trial was had in the Circuit Court of Cook county before a jury, resulting in a verdict in favor of appellee for $2,615.50, upon which verdict judgment was entered on March 19, 1910. Appellant seeks by this appeal to reverse that judgment.

The facts of the case are substantially as follows: On the day of the date of said note, the Turbine Company, being in need of funds, negotiated a loan to it of money through said Jacob C. Wahl, in consideration of said note and in the further consideration that appellant (who was president of said Company) would sign the same as guarantor. As further security for the payment of said note, the Turbine Company executed to said Jacob C. Wahl a chattel mortgage on certain machinery owned by it and in its possession at its place of business in Chicago. While the note and chattel mortgage were made to said Jacob C. Wahl, appellee, his wife, in fact made the loan, and Wahl endorsed the note and assigned the mortgage to her. Before the maturity of the note various payments for interest were made, and when the note became due appellant requested an extension of time, which request was apparently granted as nothing appears to have been done until June 19, 1908, when appellee placed her husband in charge of the mortgaged property as custodian. At this time said property was on the premises occupied by the Turbine Company and said husband was there working for appellant. Appellee notified the Company and appellant in writing that on June 30, 1908, at 2 o’clock in the afternoon, at said premises, she would sell the mortgaged property at public auction to the highest and best bidder for cash. At the time and place mentioned in the notice there were present A. H. Heyman, the agent and the attorney at law for appellee, said Jacob C. Wahl, appellant, W. P. Dunne, another officer of said Turbine Company and several other persons. Heyman acted as auctioneer and announced that the terms of sale were “five per cent, cash and balance in three days.” Before any bids were made, said Dunne, as such officer, read aloud to the persons present a notice to the effect that the chattel mortgage was nnll and void and that any purchaser of the mortgaged property at the sale would not get a valid title thereto hut would become involved in litigation. The only bidders were appellant and said Jacob C. Wahl. The first bid for the property was made by Wahl at $2,500, this was raised by appellant to $3,000, and, after various alternating higher bids by said parties, the auctioneer announced that the property had been sold to said Wahl for $4,254, which appears to have been more than the total amount then due on said note. It also appears from the evidence that the appellant wanted the property because he knew its value better than anyone else and because he had at that time made certain connections in Cleveland, and it does not appear that said Wahl was familiar with its value or had any use for the property. Neither of the two bidders was prepared to comply with the terms of sale either as stated in the notice of the sale or as announced by the auctioneer. Appellant testified, “I didn’t have the cash. * * * I was going to give my note for it if it was bid off to me. ’ ’ Appellant’s last bid for the property was $4,250, and he testified, “I wanted it at that money, $4,250.” Wahl testified that he had no money at the time and so informed appellant, and that appellant “wanted me to bid the machinery in for him, as he wanted to form a new company and wanted the machinery.” Appellant denied that he requested Wahl to bid in the property for him.

It further appears from the evidence that after June 30, 1908, the said machinery remained on the premises of the Turbine Company, in the same physical condition as it was when said mortgage was executed in August, 1904, until January 5,1909, except that shortly after said June 30, 1908, Jacob C. Wahl put certain tags on the numerous pieces of machinery at the request of appellant and also put a lock on the door of the room wherein said machinery was located, to which lock both be and appellant bad a key. It was not shown that appellee ever had notice of these acts. She never received from anyone any money or property on account of said transactions of June 30, 1908. Shortly thereafter the Turbine Company was adjudged a bankrupt and a receiver in bankruptcy took possession of all of its property including said mortgaged machinery —maintaining such possession through custodians until the latter part of December, 1908. Appellee appeared in the bankruptcy court and claimed the property described in the chattel mortgage and she was finally adjudged by said court entitled to the same. It does not appear that during the course of these proceedings either her husband or appellant claimed any title to the mortgaged property, or by any actions disputed her title thereto, and appellant testified he was a witness before the referee in bankruptcy and testified as to said mortgage and as to the possession of the property thereunder.

On January 5, 1909, appellee after advertisement sold at public auction, through one Winternitz, an auctioneer, all of said mortgaged property. This sale was held on the premises of the Turbine Company and the property was sold for cash under the power contained in the mortgage. After deducting the expenses of the sale (consisting of auctioneer’s fees, advertising, rent, custodian’s fees, etc., and $350 for attorney’s fees in reclaiming the chattels from the receiver of said bankruptcy court) appellee realized $2,138.15, leaving a balance then due on the note of $2,231.13. To this sum at the trial was added interest from said date to the day' of the trial, together with the sum of $200 for attorney’s fees, provided for in the note, which made up the amount of the verdict of the jury. Before this suit was started, appellee caused a judgment by confession to be entered on the note against the principal maker, the Turbine Company, and the fact of the entry of such judgment was admitted upon the trial.

A report of said sale of January 5, 1909, showing the various pieces of machinery sold, the amount received for each, the names of the purchasers, and containing an itemized statement of all expenses, was given by appellee to both the Turbine Company and appellant. Appellant was present at this sale and had an opportunity to make bids but did not do so. And it does not appear that he made any protest against the sale, or any objection to the application of the proceeds therefrom by appellee.

It is first contended by counsel for appellant that the transaction of June 30,1908, was a completed sale, and that appellant was entitled to have credited on said note the amount bid by Jacob C. Wahl, $4,254, less expenses, which, if done, would have fully satisfied the indebtedness evidenced by said note. Counsel argues that while it is true that, as between vendor and vendee, the vendor may reclaim property sold at auction if payment is not made according to the terms of the sale, (Canadian Bank v. McCrea, 106 Ill. 281; Gibson v. Chicago Packing & Provision Co., 108 Ill. App. 100) still as to a third person, such as appellant, the sale is complete when the purchaser is placed in possession whether payment has been made or not. In support of his argument counsel cites a number of cases holding in effect that where a vendor sells and delivers goods to another under circumstances which would authorize him to rescind the sale as against the vendee, if before its rescission the vendee sells or pledges such goods to an innocent third party, such party will be allowed to hold them as against the vendor, and by reason of the application of the familiar rule that where one of two innocent persons must suffer from the fraud of a third, the loss should fall on him who, by his imprudence, enabled such third person to commit the fraud. But in this case before us appellant is not such an innocent third party, nor do such or similar circumstances appear. Appellant was not misled by the transactions of June 30, 1908. He parted with no money, nor did he surrender any rights of which he was possessed. He was present at the time and was cognizant of all the facts. He knew that neither he nor Jacob C. "Wahl could comply with the terms of the sale, and, if Wahl’s testimony be true, he knew that Wahl never expected to comply with the terms of the sale unless he (appellant) furnished Wahl' with the money to do so. Furthermore, his subsequent actions are such as tend to the conclusion that he knew that, if any sale was in fact made on said date, the same had been rescinded and the title to the machinery still remained in appellee and that he acquiesced in that situation. We are of the opinion that the questions, whether or not it was the intention of the parties that the title to the machinery should pass to Jacob C. Wahl without payment being made in accordance with the terms announced, and whether or not the alleged sale of June 30, 1908, was rescinded and the property reclaimed by appellee, were questions of fact to be determined by the jury from all the evidence. Gibson v. Chicago Packing & Provision Co., 108 Ill. App. 100, 105; Windmuller v. Fleming, 129 Ill. App. 476, 489. And the jury by their verdict decided those questions in favor of appellee.

Counsel for appellant also contends that the verdict is not supported by the evidence, that the trial court erred in modifying certain instructions offered by appellant and giving them to the jury as modified, and that the court also erred in refusing to admit certain evidence offered by appellant as to the value of the mortgaged property on June 30, 1908. We deem it unnecessary here to discuss at length these several points. Suffice it to say that upon examination we find them to be without merit. The judgment of the Circuit Court of Cook county is affirmed.

Affirmed.