text:
    In the Matter of the Estate of Wolf Freilich, Deceased. On Appeal of Eva Freilich, Executrix, Appellant, v. Jacob Wener, trading as J. Wener & Company et al., Appellees.
    Gen. No. 19,308.
    1. Executors and administrators, § 236

      —when limitation begins to run against seventh-class claims. The limitation barring seventh-class claims, except as to subsequently discovered assets, when not presented within one year from the granting of letters, begins to run from the time letters testamentary or of administration are granted and not from the time letters are granted to an administrator to collect.
    2. Executors and administrators, § 231*—words in section 10 of Administration Act construed. The phrase “letters as aforesaid,” employed in the seventh clause of section 70 of the Administration Act, J. & A. If 119, construed as referring to letters testamentary or of administration as distinguished from letters granted to an administrator to collect, as provided in section 11 of the Act, J. & A. 1i 59.
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomeroy, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Elijah N. Zoline, for appellant.
    Hiner, Bunch & Latimer, for appellees.

      See Illinois Notes Digest, Vola; XI to XV, and Cumulative Quarterly, same topi* and section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

On appeal to the Circuit Court from judgments of the Probate Court allowing the claims of Schwabe, Loewenstein & Co. and J. Wener & Co. against the estate of Wolf Freilich, deceased, as of the seventh class, to be paid in due course of administration, said appeals were consolidated and heard in the Circuit Court upon an agreed statement of facts, as follows:

“On October 18, 1911, the claims of J. Wener & Co. and Schwabe, Loewenstein & Co. were filed in the Probate Court of Cook County against the estate of Wolf Freilich, deceased. It is admitted that said claims are true and correct, and if filed within the statutory period should be allowed in full.
“Letters of administration to collect were issued to Eva Freilich as administratrix to collect on the 21st day of September, 1910, by the Probate Court of Cook County; on October 17, 1910, said administratrix to collect, filed an inventory of the real and personal estate of said decedent; and on October 19, 1910, letters testamentary were issued to Eva Freilich as executrix of said estate; that on October 18, 1911, said claims of J. Wener & Co. and Schwabe, Loewenstein & Co. were filed as aforesaid.
“The sole question of law to be decided is whether said claims were filed with the Probate Court of Cook County ‘within one year from granting of letters.’ The defendant claims that the running of the year commences from the time of the issuance of letters of administration to collect, while plaintiffs (the creditors) claim it commences from the date of the issuance of letters testamentary. The Probate Court of Cook County and the Circuit Court of Cook County decided against the contention of the defendant and entered judgment in favor of the claimants.”

Upon the hearing in the Circuit Court a jury was waived, and two propositions of law submitted by the defendant were refused by the court, and judgments were thereupon entered against said estate in favor of J. Wener & Co. for $580.16 and in favor of Schwabe, Loewenstein & Go. for $371, as of the seventh class, to be paid in due course of administration. From said judgments the executrix prosecutes her further appeal to this court.

The two propositions of law above mentioned as having been submitted by appellant to be held as the law of the ease, and which were refused by the court, are as follows:

“I. The court holds as a proposition of law in this case that a claim must be filed within one year from granting letters of administration to collect, in order that the same may be paid out of inventoried clSSGtS
“II. The court holds that in the Estate of Wolf Freilich, deceased, letters to collect were issued to Eva Freilich, Administratrix to Collect, on September 21, 1910; that thereafter on the 17th day of October, 1910, said Administratrix to Collect filed her inventory herein as provided by law; and thereafter, to-wit, on October 18, 1911, the claims "of J. Wener & Co. and Schwabe, Lowenstein & Co., were filed in the Probate Court of Cook County, which was after one year from the granting of letters to collect; and the court, therefore, holds as a proposition of law that said claim may be allowed and paid pro rata as a claim of the seventh class, out of such subsequently discovered assets of said Estate as may be discovered to be not inventoried and not accounted for.”

The solution of the question presented involves a consideration of several sections of the statute relating to the administration of estates.

Section 1 (J. & A. K 49) provides that when a will has been duly proved and allowed, letters testamentary shall issue thereon, and section 10 (J. & A. 58) prescribes the form of such letters testamentary. Section 11 (J. & A. ft 59) is as follows:

“During any contest in relation to the probate of any will, testament or codicil, before the same is recorded, or until a will which may have once existed, but is destroyed or concealed, is established, and the substance thereof committed to record, with proof thereupon taken, or during any contest- in regard to the right of executorship, or to administer the estate of any person dying either testate or intestate, or whenever any other contingency happens which is productive of great delay before letters testamentary ór of administration can be issued upon the estate of such testator or intestate, to the person or persons having legal preference to the same, the county court may appoint any person or persons as administrators, to collect and preserve.the estate of any such decedent, until probate of his will, or until administration of his estate is granted, taking bond and security for the collection of the estate, making an inventory thereof, and safe keeping and delivering up the same when thereunto required by the court, to the proper executor or administrator, whenever they shall be admitted and qualified as such.”

Section 12 (J'. & A. ff 60) prescribes the form of letters to be granted to the person or persons appointed to collect and preserve the estate of the decedent.

Section 15 (J. & A. ft 63) is as follows:-

“Every collector so appointed shall have the power to collect the goods, chattels and debts of the said deceased, according to the tenor of the said letters, and to secure the same at such reasonable and necessary expense as shall be allowed by the court; and the said court may authorize him, immediately after the inventory and appraisement of such estate, to sell such as are perishable, or may depreciate by delay, and to account for the same; and for the whole trouble incurred by such collector the court may allow such commission on the amount of the said personal estate as shall be actually collected and delivered to the proper executor or administrator, as aforesaid, as said court may deem just and reasonable: Provided, the same shall not exceed six per cent, on the amount stated in such inventory or bill of appraisement.”

Section 17 (J. & A. 65) provides that on the granting of letters testamentary or of administration, the power of any such collector, so appointed, shall cease, and it shall be his duty to deliver, on demand, all property and money of the deceased to the person or persons obtaining such letters, and prescribes a penalty in case such collector fails so to do.

Section 18 (J. & A. ft 66) provides for the granting of letters of administration of the estate of all persons dying intestate, and section 21 (J. & A. ][ 70) prescribes the form of such letters.

Section 51 (J. & A. 100) provides that whenever letters testamentary of administration or of collection are granted, the executor or administrator shall make out a full and perfect inventory of the real and personal estate of the decedent, and return the same to the office of the clerk of the County Court within three months from the date of the letters testamentary or of administration.

Section 60 (J. & A. j[ 109) requires every administrator or executor to fix upon a term of the court within six months from the time of his qualification, for the adjustment of all claims against the decedent, and to give the prescribed notice to persons having such claims.

Section 70 (J. & A. ft 119) provides, in part, seventh clause, as follows:

“All [of] other debts and demands of whatever kind without regard to quality or dignity which shall be exhibited to the court within one year from granting of letters as aforesaid, and all demands not exhibited within one year as aforesaid shall be forever barred unless the creditors shall find other estate of the deceased not inventoried or accounted for by the executor or administrator, in which case their claims shall be paid pro rata out of such subsequently discovered estate, saving, however, to infants, persons of unsound mind, persons without the United States, in the employment of the United States or of this state, the term of one year after their respective disabilities are removed to exhibit their claims.”

If the words “letters as aforesaid,” as employed in the seventh clause of section 70, above quoted, are intended to include letters granted by the Probate Court to a collector or administrator to collect, as provided in section 11 of the Act, the claims here involved were not exhibited by appellee within the time necessary to entitle them to he paid out of the estate of the decedent inventoried or accounted for by the administrator to collect, and the judgments must be reversed, or so modified as to make said claims payable only out of any subsequently discovered estate of the decedent.

It may be conceded that observance of the strict letter of the language employed in the seventh clause of section 70 would compel an interpretation of the phrase “letters as aforesaid,” as being inclusive of letters granted to an administrator appointed to collect under the provisions of section 11, but the letter of a statute is subordinate to the intention. “A thing within the intention is regarded as within the statute though not within the letter, and a thing within the letter is not within the statute unless within the intention.” People ex rel. Krause v. Harrison, 191 Ill. 257, 266.

An administrator to collect, or collector, is merely a temporary officer appointed by the court to collect and preserve the estate of a decedent “until probate of his will, or until administration of his estate is granted.” He is without authority either to adjust the claims of creditors against his decedent, or to pay out the funds of the estate coming into his hands. People ex rel. Bulkley v. Salomon, 184 Ill. 490; In re Estate of Wincox, 186 Ill. 445. That the administration of the estate of a decedent, in accordance with the provisions of the act relating to the administration of estates, was not contemplated by the Legislature to be entered upon until letters testamentary or of administration, as distinguished from letters “of collection” were granted, is apparent from a consideration of the language employed in the several sections of the act.

Under section 11, the contingency which authorizes the appointment of an administrator to collect arises from great delay “before letters testamentary or of administration” can be issued, and such appointment extends only until probate of the will of the decedent, or “until administration of Ms estate is granted,” when such administrator to collect is required to deliver the estate in his hands to the “proper” executor or administrator.

Under section 12 the prescribed form of letters to be granted to the person appointed to collect the estate of the decedent, states, as the occasion for such appoinment, that “the administration whereof cannot be immediately granted to the persons by law entitled thereto.”

In section 15 such appointee is denominated a “collector,” and it is provided that he may be allowed a commission upon the amount of the estate actually collected and delivered to the “proper” executor or admimstrator, as aforesaid. In section 17 such appointee is styled a “collector.”

While the question involved is not altogether free from doubt, we are disposed to hold that the interpretation placed by the trial court upon the phrase “letters as aforesaid,” employed in the seventh clause of section 70, should prevail, as being more nearly in conformity with the expressed intention of the Legislature than is the interpretation contended for by appellant.

That is to say, the phrase “letters as aforesaid” should properly be interpreted as referring oMy to letters testamentary granted after probate of a will, or to letters of administration in due course granted on the estate of a decedent.

The judgments will be affirmed.

Judgments affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baume

license: Public Domain

text:
    S. D. Ryan, Appellee, v. Thomas E. McArdle, Appellant.
    Gen. No. 19,324.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. James C. Mastín, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by S. D. Ryan against Thomas E. McArdle to recover instalments of rent from October 1, 1906, to-'September 1, 1910, alleged to be due by the terms of a lease. A trial by the court resulted in a finding and judgment against defendant for $1,845. To reverse the judgment, defendant appeals.
    Plaintiff in a former suit brought in the County Court to recover $795.52 salary and instalments of rent alleged to be due under the same lease from September 1, 1905 to October 1, 1906, recovered a judgment against defendant for $472.50, which judgment was affirmed by the Appellate Court. See Ryan v. McArdle, 159 Ill. App. 579.
    In the present suit the proceedings in the former suit were incorporated in plaintiff’s statement of claim and the complete record in the former suit, including the opinion of this court on the former appeal and its mandate affirming the judgment, were introduced in evidence.
    The bill of particulars filed by the plaintiff in the former suit is as follows:
    “Salary and rent from September 1,1905, to
    January 6, 1906........................$ 630.00
    Rent from January 6, 1906, to October 1,
    1906 .................................. 660.00
    $1,290.00
    Credit.
    By cash on account........................$494.48
    Balance due on October 1,1906..............$795.52”

      The principal claim of plaintiff in the present suit is stated in his statement of claim filed herein as follows :
    “Par. 15. That after the beginning of this (the) suit in the preceding paragraphs mentioned (being the former suit on the County Court) there has accrued due to the plaintiff from the defendant as rent under the agreement herein and in said sum pleaded rent at the rate of $75 per month from the first of October, 1906, to the 30th of August, 1910, 47 months, making an aggregate of $3,525.00.
    “Par. 16. That the plaintiff has received as a credit on said $3,525.00, by re-renting the premises in said agreement leased for the account of said defendant sums aggregating $1,680.00, and no more, as follows, viz.:
    “From 1st of October, 1906, to 30th of September, 1907, at $50 per month..........$1,200.00
    ‘ ‘ From August 26,1909, to February 25,1910,
    at $30 per month..................... 180.00
    “From February 26,1910, to August 26,1910,
    at $50 per month......................... 300.00
    $1,680.00
    Leaving a balance of $1,845.00 due the plaintiff.”
    Defendant’s affidavit of merits averred, as a ground of defense to the whole of plaintiff’s claim, that on or prior to October 1, 1906, the plaintiff repossessed himself of the premises so as to constitute an eviction, and further averred that the defense of eviction in the former suit was successfully made, and that the judgment was res adjudicada as between plaintiff and defendant that the defendant had been evicted.
    Montgomery, Hart & Smith, for appellant.
    McArdle & McArdle, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same*topic and section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Statutes, § 272 —necessity of pleading foreign statutes. Laws of other States are required to be pleaded and proved in the courts of this State as facts.

2. Judgment, § 517*—when former judgment in suit for rent res adjudicata on question of eviction. A recovery of rent in a former action held res adjudicata on the question whether the tenant had been evicted from the premises by the landlord reletting the premises so that the defense of eviction could not be availed of by the tenant in a subsequent suit to recover further instalments of rent, where it appeared from the record of the proceedings in the former suit and also in the opinion of the Appellate Court on an appeal from such judgment that recovery was had for the period during which the tenant claimed the eviction took place.


text:
    Esther Berenzweig, Appellee, v. Abe Krecun, Appellant.
    Gen. No. 19,355.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Chables A. Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action by Esther Berenzweig against Abe Krecun instituted in the Municipal Court, March 13, 1912, to recover damages for alleged breach of a promise to marry. From a judgment entered on a verdict in favor of plaintiff, defendant appeals.
    Appellant urges as ground for reversal that the verdict is unsupported by the evidence; that the suit was prematurely brought; that under the pleading it was necessary for appellee to prove that she requested performance of the alleged marriage contract and that appellant refused to perform, and no such proof was made.
    Abstract of the Decision.
    1. Pleading, § 117

      —when undenied facts are admitted. It is a fundamental rule in pleading that a material fact asserted on one side and not denied on the other is admitted.
    2. Pleading, § 117*—when facts not put in issue are admitted. In a suit to recover damages for breach of a promise of marriage, where under the pleadings the only material fact in issue was whether defendant made such promise, held that upon proof hy plaintiff of such promise, plaintiff’s allegations of her request to defendant to marry her and of his refusal to do so were admitted.

      Appellee’s statement of claim was as follows:
    “For that whereas on or about the 15th day of 1912, in the City of Chicago, County of Cook and State of Illinois in consideration that the plaintiff, being then unmarried, had then and there promised defendant, at his request, to marry him, when she, the plaintiff, should be thereto requested, the defendant promised the plaintiff to marry her, and the plaintiff avers that she, confiding in the said promise of the defendant has always from thence hitherto remained and still is unmarried and has been for all the time aforesaid and still is ready and willing to marry him. That although plaintiff, after making of said promise of the defendant on the day aforesaid, has requested the defendant to marry her, the defendant did not nor would he then marry the plaintiff, but refuses so to do, whereby the plaintiff has sustained damages to the extent of the sum of $5,000.”
    The affidavit of merits filed by appellant stated his defense as follows: “That defendant never at any time promised to marry the plaintiff.”
    B. M. Shaffner, for appellant.
    Blum & Blum and Nathan S. Schoenbrod, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

       See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

3. Breach oe marriage promise, § 23 —when issue properly submitted to jury. In a suit for breach of a promise to marry, where plaintiff’s evidence tended to show that defendant promised in December to marry her the following May and that she expressed her willingness to then marry him, and defendant’s evidence tended to show that he did not so promise to marry plaintiff, held that the case was properly submitted to the jury on such issue and that a verdict for plaintiff was sustained by the evidence, it appearing that the facts and circumstances in evidence, other than direct testimony of the parties, tended to corroborate the plaintiff rather than the defendant.

4. Appeal and ebboe, § 370*—when objection that suit was prematurely brought will not be considered. An objection that the suit was prematurely brought cannot be raised for the first time in the Appellate Court.


text:
    John F. Devine, Administrator, Appellee, v. Ward Baking Company, successor to Ward-Corby Company, Appellant.
    Gen. No. 19,367.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed October 7, 1914.
    Rehearing denied October 19,1914.
    Statement of the Case.
    Action by John F. Devine, administrator of the estate of William Lesak, deceased, against Ward Baking Company, successor to Ward-Corby Company, to recover damages for the wrongful death of plaintiff’s intestate caused by being struck by an electric truck belonging to defendant. The plaintiff’s intestate, who was eight years and nine months old, was playing in the street at the time of the accident. Plaintiff had verdict and judgment for forty-five hundred dollars. To reverse the judgment, defendant appeals.
    The declaration contained two counts. The first count alleged that defendant owned, operated and controlled a certain motor car, and by its servant and agent was operating the same over, upon and along Parnell avenue; that it became and was the duty of defendant in operating said car along said street to use all proper care and caution in the running of said car, so as not to injure persons on said street; that defendant did not regard its duty in that behalf, but on, etc., while plaintiff’s intestate was lawfully on said street, and was in the exercise of proper care for his own safety, defendant, regardless of its duty, in that behalf, carelessly, negligently and wrongfully ran, operated and managed said car in so careless and negligent manner and at a high and dangerous rate of speed, so that by reason thereof plaintiff’s intestate was run into, against, knocked down and run over by said car in charge of defendant’s servant and thereby so badly injured that he died immediately as a direct result of said injuries.
    The second count was similar to the first count, and also further predicated a right of recovery on the alleged negligent failure of defendant’s servant to give proper warning to persons on the street.
    Duncombe & Behan, for appellant; Loots J. Behan, of counsel.
    George D. Wellington and Rockhold & Busch, for appellee; Francis X. Busch, of counsel.

      See Illinois Notes Digest, Yola. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Death, § 50b —when evidence sufficient to show death resulted from, injuries. In an action for the death of a boy alleged to have been caused by being run over by defendant’s motor truck in a public street, evidence held sufficient to show that death resulted from the injuries, where the identity of the boy was clearly established, and though the character and extent of the injuries were not shown, the evidence disclosed that he died within an hour after he was injured, and it also appeared that defendant’s counsel in the examination of witnesses assumed that the boy was killed.

2. Master and servant, § 845*—when act of driving motor truck is within scope of employment. Where a servant was engaged to drive an automobile truck for a bakery over a certain route, and contrary to the instructions of his employer made a trip off his route to take a party home, and after having done so was returning to the bakery when he ran over a boy in the street, held that at the time of the accident the servant was driving the truck in the regular line of his employment.

3. Automobiles and garages, § 3*—sufficiency of declaration to admit proof of driving on wrong side of street. In an action for the death of a boy by being run over in a public street by defendant’s automobile truck, held that the allegations of the declaration in respect to the negligent operation of the truck were sufficiently broad to admit proof in support of a substantive ground of recovery that at the time of the accident the defendant was driving on the wrong side of the street.

4. Automobiles and garages, § 3*—when proof of driving on wrong side of street admissible. In an action for the death of a boy by being run over by defendant’s automobile truck in a public street, evidence that the truck was being driven on the wrong side of the street at the time of the accident, held properly admitted as bearing on pie question of contributory negligence of the boy.


author: Mr. Justice Duncan

text:
    Idaho Sheep Company, Appellee, v. Oregon Short Line Railroad Company, Appellant.
    Gen. No. 18,308.
    1. Carriers, § 60

      —when delivery of hill of lading passes title. Delivery of a bill of lading with intent to transfer the property in the goods is a symbolical delivery of the goods and passes a valid title thereto.
    2. Carriers, § 43*—when liability for shipment becomes fixed under Carmack Amendment. Under the Carmack Amendment to section 20 of the Interstate Commerce Act, it is the receiving of the goods for transportation to a point in another State that fixes the carrier’s liability for damage or loss caused by itself or by any connecting carrier; the carrier cannot defeat its liability by neglecting or refusing to issue a receipt or bill of lading in compliance with the act.

      3. Carriers, § 139*—proof essential to show right of action for damage to shipment. In an action against a carrier to recover for loss or damage to a shipment, where the evidence shows a bill of lading was issued, it devolves upon the plaintiff to prove that he is the legal holder of the bill of lading; but where no such bill of lading was issued, ownership of the goods or the right to maintain the suit must of necessity be proved otherwise.
    4. Carriers, § 50*—nature of bill of lading. A bill of lading is both a receipt and a contract to carry.
    5. Carriers, § 107*—when oral evidence of a contract of shipment should be excluded. In an action against a carrier for damages resulting from a delayed shipment, where it was disclosed that plaintiff had signed a contract of shipment but the contract was not produced in court or its absence accounted for, and the plaintiff sought to rely wholly upon a verbal contract entered into prior to the signing of the written one, held that the court erred in overruling a motion at the close of the evidence to exclude all the oral evidence of the contract, on the ground that the contract itself was the best evidence and the only contract in the case.
    6. Carriers, § 159*—power of carrier to limit liability under Carmack Amendment. The Carmack Amendment to section 20 of the Interstate Commerce Act does not prohibit a carrier from making a fair, open and reasonable agreement specifying a time in which a shipment may be delivered and limiting the amount recoverable by the shipper.

      7. Cabbiebs, § 110

      —measure of damages for delayed shipment. Unless otherwise legally limited hy the contract to carry, the measure of damages by reason of a delayed shipment is the difference between the market value of the consignment at the time and in the condition it should have arrived and its fair, cash market value in the condition and at the time it actually did arrive at destination, plus the necessary expense to the shipper caused hy the unusual delay.
    8. Cabbiebs, § 235*—when not liable for damages resulting from stopping shipment of stoclc. Where a carrier is already liable for damages resulting from delay in a shipment of lambs, it cannot be required to take the risk of further damages by stopping the shipment before reaching destination for the purpose of feeding the lambs for a future market, hut where the shipment is thus stopped the carrier is entitled to the benefit of any reduction of the actual loss to the shipper that might thereby he occasioned.
    9. Cabbiebs, § 248*—sufficiency of proof for an estimate of damages resulting from delayed shipment of stoclc. In an action against a carrier for damages resulting from a delayed shipment of lambs where, owing to the delay, the shipment was stopped en route to he fed for a future market and later shipped to the original destination and sold, held that the proof in the record was too indefinite for an accurate estimate of the proper damage, and in view of a new trial the character of the proof and method of computation was suggested.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate'Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Davis & Rankin, for appellant; Edmund P. Kelly, of counsel.
    Charles A. Butler, for appellee.

      See Illinois Notes Digest, Vola. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

Idaho Sheep Company prosecuted this suit against appellant, Oregon Short Line Railroad Company, as the initial carrier in an interstate shipment of 2,994 lambs from Soda Springs, Idaho to Chicago, and recovered a judgment of $3,099.86.

Appellant in August, 1906, agreed to deliver by October 4, 1906, at Soda Springs cars for said shipment of lambs by appellee, but failed to deliver the same until November 7, 1906. By reason of said failure appellee caused the lambs to be removed from the range in Idaho and placed in pastures, cared for and fed, pending shipment, at an extra expense to it of about $300. The lambs were routed, loaded and shipped by appellee at Soda Springs by way of appellant’s road to Chicago, November 7, 1906, in good, fat condition and weighing on an average about 67 pounds per lamb. All the lambs arrived at Kirkland, Illinois, November 16, 1906, about ten o’clock, p. m., after a continuous run of almost forty hours from the last previous stop and rest, looking tired and gaunt, none of them killing lambs, and weighing not exceeding 58 pounds per lamb. Had they continued right along with the proper stop, rest and feed at Kirkland, they would have arrived in Chicago, November 19th or 20th, weighing on an average about 57 pounds, all of them feeders and none of them killing lambs, and 500 of them would have sold on the Chicago market at those times at $6.10, and the others at $6.60 per cwt. They were in good, fat condition for the market from October 4, 1906, to October 19, 1906, and at those times weighed 70 lbs. per head. Had they been shipped October 4th and properly cared for en route and promptly delivered ninety per cent, of them would have been delivered in Chicago as good Idaho, well-bred, killing lambs weighing 65 lbs. per lamb on an average, and ten per cent, thereof would have been delivered as good, well-bred, Idaho feeders weighing about 65 lbs. per head. Had they been so shipped October 19th, and so cared for, they would have been delivered in Chicago, seventy-five per cent, thereof as killing lambs and tweñty-five per cent, thereof as feeders, and weighing near 65 lbs. per lamb. The usual time in transit for such shipments from Soda Springs to Kirkland and from Soda Springs to Chicago is about seven and eight days respectively, and the usual shrinkage for the eight days in transit is about 5 lbs. per head when properly cared for and fed. The cash market value in Chicago of Idaho killers, such as the lambs in question, was on October 12, 1906, $7.65, and on October 16th, $7.55 per cwt. The cash market value in Chicago of such lambs as feeders on October 12th was $6.60, and at any time from October 12, 1906, to February 28, 1907, such feeders would not have sold for more than $6.75 per cwt. The lambs were badly treated en route by being stopped and fed at some stops with very poor feed in very muddy pens and were given bad water, and at times in troughs too high for the lambs to drink from, and thereby they lost heavily in flesh; and a number of other lambs died en route, but they were not included in the statement of claim. Appellee had the lambs all placed on good pastures at Kirkland, November 17, 1906, and as soon thereafter as it was safe to do so they were put on good feed there and fattened for the market, and as rapidly as they became killing lambs they were promptly shipped to Chicago and sold as killers from January 27th to February 27, 1907, except a few dead and cripples. They weighed on an average near 82 lbs. per lamb with their increase in growth and flesh. The 2,994 lambs were all sold at from $7.40 to $7.70 per cwt., except the crippled, dead and other objectionable ones that sold at from 50 cents to $4 per head. The lambs were brought to Chicago on the same billing on which they left Soda Springs; and the gross proceeds of the sales thereof amounted to $18,196.04. The total expense therefor for care, feed and pasture at Kirkland was about $5,842.75.

Appellee alleged and claimed damages for the failure of appellant to safely carry and deliver the lambs within a reasonable time after receipt thereof, and for its failure to furnish cars and to safely deliver the lambs in good order and condition as it agreed to do.

Appellant entered a general denial, and averred that appellee was a foreign corporation without a license, was transacting and had transacted its business in this State without a license and, therefore, could not maintain its suit, but in its argument has abandoned its affirmative defense.

In addition to the undisputed facts above recited, B. W. Phillips, agent of appellee in making the shipment at Soda Springs, testified, without contradiction, as follows:

“After loading the sheep I told Mr. Strahan, depot agent of appellant, to bill these sheep to the Knollin Sheep Co., Chicago, and gave him the routing. He gave me a contract to sign after that conversation. I signed it ‘Idaho Sheep Co.’ by myself. I got a copy of it and it was given to my men that accompanied the sheep (to Kirkland). He (Strahan) signed them and kept a copy and gave me one. I made no objections to signing it. I don’t know of ever reading one of them word for word. I know in a general way the contents of that document I signed November 7th, and had at that time.”

This suit is controlled by that portion of the Car-mack Amendment to section 20 of the Interstate Commerce Act, which provides as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one State to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.”

The said act declares the initial carrier’s liability for loss and damage to interstate shipments, and that legislation supersedes all regulations and policies of any particular State upon the same subject. The proviso above quoted related to remedies existing under Federal law and not to any State law. Adams Exp. Co. v. Croninger, 226 U. S. 491.

The right of action is in positive terms of said amendment given to the lawful holder of the receipt or bill of lading, and it requires the carrier to issue the same. These provisions are sound and simple and need little or no explanation. The owner of the bill of lading was regarded in law as an owner of the goods or the thing shipped before the Carmack Amendment was ever enacted. The lawful holder of the bill of lading, even by assignment or by mere delivery thereof with intent to transfer the goods, has at all times been regarded as having the right to the possession of the goods shipped, and property rights therein according to the intent of the parties to the assignment or delivery, and could maintain an action for the possession of the same. Delivery of a bill of lading with intent to transfer the property in the goods is a symbolical delivery of the goods and passes a valid title thereto. Lewis v. Springville Banking Co., 166 Ill. 311; Michigan Cent. R. Co. v. Phillips, 60 Ill. 190; Peters v. Elliott, 78 Ill. 321; Taylor v. Turner, 87 Ill. 296.

It is the receiving of the goods for transportation to a point in another State, however, that fixes the carrier’s liability under the Carmack Amendment for damage or loss caused by itself or by any connecting carrier. It cannot defeat its liability by neglecting or refusing to issue a receipt or bill of lading in compliance with that act. Gamble-Robinson Commission Co. v. Union Pac. R. Co., 262 Ill. 400; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U. S. 186; International Watch Co. v. Delaware L. & W. R. Co., 80 N. J. Law 553.

If a bill of lading, however, is issued by the carrier, as the said act requires, the lawful holder thereof is the one given the right of action for loss or damage as aforesaid; and if the existence of such a bill of lading is shown it will devolve upon the plaintiff to prove that he is the legal holder thereof. Where no such bill of lading is issued, ownership of the goods or right to maintain the suit must of necessity be proved otherwise, but the carrier in such case cannot defeat the suit by the showing that no such bill of lading or receipt was issued.

A bill of lading is both a receipt and a contract to carry. Merchants’ Despatch Transp. Co. v. Furthmann, 149 Ill. 66.

The evidence in this case tends to prove that a bill of lading was issued by appellant for the lambs shipped by appellee, but there is no evidence as to its contents and it does not appear in the record who was the legal holder of it at the time the suit was brought. It positively and clearly appears from the record that appellee and appellant signed a written contract, and presumably a contract to carry the lambs. That contract was not produced in court or its absence accounted for, but appellee sought to rely wholly upon the verbal contract or undertaking with appellant with reference to said shipment entered into by them prior to the signing of the written contract.

When the evidence disclosed that there was a bill of lading, or a written contract to carry, entered into by the parties, appellant moved to exclude all the oral evidence of a contract to carry the lambs on the express grounds that the said contract itself- was the best evidence thereof and the only contract in the case. The court overruled the motion, stating, in substance, that the evidence did not show that there was a written contract, and in that ruling the court erred. The motion was made at the close of all the evidence to exclude the evidence in the record and to instruct the jury to return a verdict of not guilty, and that motion was overruled and proper exceptions preserved by appellant to said rulings.

The burden was upon appellee to prove the contract upon which the shipment was made by proper and legitimate evidence, by the best evidence of which the case was susceptible. There can be no question that the best evidence of a written contract is the writing itself. The bill of lading when signed by the parties is the evidence of the contract. Gamble-Robinson Commission Co. v. Union Pac. R. Co., supra.

When the motion is made to exclude all the evidence and to direct a verdict at the close of the evidence, the question for the court then is, is there any legal evidence in the whole record which tends to prove the material allegations of the declaration, or the ultimate facts necessary to establish the plaintiff’s case. If so, the case should be submitted to the jury. If not so, then the court should direct a verdict for the defendant. Libby, McNeill & Libby v. Cook, 222 Ill. 206.

The right to have that question reviewed in this court cannot be said to be waived by appellant by failing thereafter to object to an instruction as to the measure of damages.

Moreover, appellee has placed itself in the attitude of suing on a verbal contract to carry that had no existence. The written contract superseded the oral contract, and is the only contract between the parties. It was bound to rely on the written contract for recovery when the evidence disclosed its existence, and was bound to produce it, or account for its loss or appellee’s inability to produce it, and prove its contents by oral evidence. Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609, and cases there cited; Rurtless v. Oregon Short Line R. Co., 180 Ill. App. 249.

It is argued by appellee that the Carmack Amendment prohibits the carrier from exempting itself against the liability thereby imposed by contract, receipt, rule or otherwise and that, therefore, it can make no difference as to what was contained in the contract. We cannot accede to this view. The carrier cannot exempt itself from liability for its own negligence or that of its employees, but it can by a fair, open and reasonable agreement specify a time in which the shipment may be delivered and limit the amount recoverable by the shipper without violating that act. Adams Express Co. v. Croninger, supra; Chicago, B. & Q. Ry. Co. v. Miller, 226 U. S. 513; Chicago, St. P., M. & Q. Ry. Co. v. Latta, 226 U. S. 519; Kansas City Southern Ry. Co. v. Carl, 227 U. S. 639.

Appellee is shown by the evidence to have known the substance of its contract, and under the decisions of the Federal Courts that govern this case it is presumed to know the provisions thereof, and the presumption •must be indulged that it was a binding contract. Kansas City Southern By. Co. v. Carl, supra; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508; Missouri Pac. Ry. Co. v. Harper Bros., 121 C. C. A. 570, 201 Fed. 671.

There is much argument concerning the proper measure of damages, and the court’s instructions thereon. No correct rule can be given until appellee has presented its case under its contract. Unless otherwise legally limited by the contract to carry, the measure of damages by reason of a delayed shipment is the difference between the market value of the consignment at the time and in" the condition it should have arrived and its fair, cash market value in condition and at the time it actually did arrive at its destination (or in this case when it would have arrived had it continued right on after proper rest at Kirkland), plus the necessary expenses to the shipper caused by the unusual delay. Appellant in this case could not be required to take the risk of further damages by stopping the shipment at Kirkland and feeding the lambs to make them killers for a future market, in case that caused a greater loss. But inasmuch as they were stopped and fed for a future market by appellee, appellant would be entitled to the benefit of any reduction of the actual loss to appellee that might thereby be occasioned, as appellee could not recover more than his actual loss and damage.

As the case must be retried, we further suggest that the proof in this record is too indefinite for an accurate estimate of the proper damages, even supposing that under the contract the measure of damages above suggested shall properly apply. The actual number of lambs and sheep shipped by appellee November 7th was about 5,200, 3,675 of which were lambs, 560 of which seem to have been sold en route, and about 121 lambs appear to have died en route. Appellee sued for loss and damage to only 2,994 lambs and cannot under his statement of claim recover for more than that number. The evidence should accurately show the necessary expenses incurred by appellee for the lambs sued for while waiting for the delivery of the cars for shipment after October 4th. It should also show what the 500 would have averaged in weight on the market that would have sold as feeders on the market at $6.10, and also what, the others would have averaged in weight that would have sold for $6.60 as feeders, on November 19th or 20th. In fact, when average weight of all the lambs is proved for any time, it should be of the 2,994 sued for and not of the 3,675. Then after obtaining the amount of damages on the supposition that they were sold on the market November 19th and 20th, as feeders, those damages should be mitigated further by any gain, if any, over the market of November 19th and 20th by feeding them and selling them as killers in January and February, 1907. In ascertaining that gain, if any, from the total proceeds of sales of the lambs, $18,196.04, less $5,842.75 expenses, should be deducted the proceeds of sales of the lambs that would have been realized had they been sold November 19th and 20th. This result might be still varied, and apparently should be varied, by considering the fact that had the lambs been properly rested, watered and fed at Kirkland, and then have continued right along to Chicago, it would have been at an additional expense to appellee for such watering and feeding, the probable amount of which was not proved. In other words, that amount should be deducted from the supposed sales of November 19th or 20th to ascertain the amount appellee would have realized on such sales.

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

Reversed and remanded.


text:
    Clark Aubrey, Appellee, v. Charles C. O’Byrne, Executor, Appellant.
    Gen. No. 18,862.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Clarence N. Goodwin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.
    Statement of the Case.
    Action in assumpsit by Clark Aubrey against Charles C. O’Byrne, executor of the estate of Jessie S. Donley, deceased, to recover money which the deceased had deposited in a bank and which plaintiff claims he is entitled to by virtue of a gift causa mortis. Plaintiff recovered a judgment for $1,924.04. To reverse the judgment, defendant appeals.
    The case was tried upon an agreed state of facts, in substance, that on November 13,1908, Jessie S. Donley had on deposit to her credit with the Citizens State Bank of Big Rapids, Michigan, the sum of $1,924.04; that on that day she had been informed that she was about to die and could not recover, and she believed she was about to die; that the plaintiff, Clark Aubrey, was her nephew and her only heir at law, except her husband, William E. Donley; that she did not then know the exact amount of money she had in the said bank and she thereupon, on said date, executed her check in these words:
    “No.-Big Rapids, Mich., Nov. 13, 1908.
    Citizens State Bank, Pay to Clark Aubrey or order $5,000 Dollars.
    Jessie S. Donley.”
    She forthwith delivered said check to said Clark Aubrey without any valuable consideration therefor, and by the execution and delivery thereof she intended to assign to Clark Aubrey as a gift all her right, title and interest in said sum of money then on deposit in said bank to her credit; that about the same time she drew said check she also made her will in which no mention was in any way made of said sum of money deposited in said bank, and said check was made and delivered in contemplation of her impending death; that within three hours after the execution and delivery of said check to Aubrey she died; that said check was never previous to her death presented to said bank for payment or accepted by it at any time, and after her death it refused at all times to pay said check to said Aubrey; that appellant was on March 29, 1909, appointed executor of the estate of said deceased by the Probate Court of Mecosta County, Michigan, which said court had jurisdiction of probate matters in said county and State, and had jurisdiction of the said estate; and that appellant, as such executor, obtained said money from said bank and refused to pay the same to appellee on his demand therefor.
    Morse Ives, for appellant.
    Rose, Symmes & Kirkland, for appellee.

      Sec Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number*

   Mr. Justice Duncan

delivered the opinion of the court.

Abstract of the Decision.

1. Evidence, § 33 —presumption in the absence of proof of the laws of another State. In the absence of any proof in support of a special plea averring the law of another State, it will be presumed that the common law prevails in that State and that the decisions of the courts of this State embody a correct exposition of the common law as it prevails in that State.

2. Banks and banking, § 126*—when drawing of check operates as assignment of funds on deposit. Under the common law in this State the drawing of a check upon a banker by a drawer having funds in his bank operates as an assignment to the drawee of the legal title to so much of the fund on deposit as is named in the check, as between the drawer and drawee; but in order to charge the bank with the amount of the check, it is necessary that the check be presented for payment, or some other act equivalent thereto, and that it be shown that the drawer had at the time of presentment sufficient funds to pay the check.

3. Gifts, § 32*—when delivery of check constitutes gift causa mortis of deposit. A delivery by a donor of a check for a greater sum than was on deposit in the bank with intent to transfer and deliver the deposit and no more, held to constitute a completed gift causa mortis of the amount of the deposit, and to entitle the donee to maintain an action against the executor to recover the same where the latter wrongfuly withdrew it from the bank.

4. Gifts, § 36*—authority to revoke gift causa mortis. After a delivery of a gift causa mortis to the donee by the donor, and after the death of the donor without revoking the gift, the legal representatives and heirs have no power or authority to revoke the gift.


text:
    William Junge, Appellee, v. South Halsted Street Iron Works, Appellant.
    Gen. No. 18,884.
    (Not to he reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Path. McWilliams, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.

      Statement of the Case.
    Action by William Junge against South Halsted Street Iron Works, a corporation, to recover for personal injuries sustained by plaintiff while unloading structural iron from a wagon. To reverse a judgment in favor of plaintiff for sixty-five hundred dollars, defendant appeals.
    The facts showed that plaintiff was a structural iron worker of twenty years experience and had been in defendant’s employment for about six weeks prior to his injury. Plaintiff was put to unloading structural iron from wagons at a place where a building was in course of construction. The iron which plaintiff was unloading was slippery because of wet paint thereon, and plaintiff, on Friday or Saturday before his injury on the following Monday, notified the foreman that he would quit his job if the iron continued to come wet and slippery. The foreman replied: “Well, we will see. I will telephone and see that we get it remedied, so that we do not get any more stuff like that. ’ ’ Plaintiff relying on the promise continued work and received his injury while unloading the next load. It appeared that plaintiff and one Stream were directed by the foreman to unload the wagon in question. They went to the wagon and first removed a loose chain from around it, and looked at the iron or steel and touched it with their hands to see if it was dry and safe, and remarked to each other that it was dry and looked good. They then removed from the top of the load the small T-iron, the paint on which was dry. The load of steel extended above the short stakes or standards on the bolsters of the wagon and above the wheels. Mr. Stream was looking for a bar to pinch off the heavy pieces while plaintiff got on top of some smaller irons piled on an elevated place by the side of the wagon to straighten them out so the heavy iron could be unloaded on top of them without bending any of the iron. While plaintiff was thus at work, about four feet from the wagon and about opposite the hind wheels, there was suddenly a slight jar or move of the wagon and at the same instant a large lintel, about eighteen inches wide on its base and from fourteen to sixteen feet long, “shot out from the load” and almost cut off one of his feet. Mr. Stream gave plaintiff warning just as the lintel started, but the warning was too late. The lintel in question was slightly tilted out of the horizontal position, and its broad face or bottom was faced up close against the face or bottom of a similar lintel. The paint on the outside of those two lintels looked to be dry but their two faces that were touching each other were wet and slippery, because the paint had not been dried before they were loaded. The witnesses described them as “slippery as soap,” and attributed the sliding of the lintel the distance it was thrown to that slippery condition, which overcame the friction that would otherwise have held them together. They were not able to say whether it was a move of the team or the movement of the lintel as it went out of the wagon that caused the sudden move or jar of the wagon.
    Abstract of the Decision.
    1. Master and servant, § 398

      —assumption of risk. A structural Iron worker injured while unloading iron on account of its slippery condition resulting from wet paint, held not to have assumed the risk, where shortly before receiving the injury he notified the foreman of his intention to quit his job unless the danger was removed, and he received a promise of the foreman that the danger would be removed and relying on such promise he continued to work, it also appearing that the load of iron which he was unloading at the time of the injury appeared to he dry and to indicate that the promise had been complied with.

      H. L. Howard, for appellant.
    Hayden N. Bell and Frank O. Campe, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number. -

   Mr. Justice Duncan

delivered the opinion of the court.

2. Master and servant, § 559 —when filing general issue only admits ownership of instrumentality complained, of. In an action by a servant against his master for personal injuries where the defendant filed only the general issue to plaintiff’s declaration, held that the ownership of this instrumentality complained of was admitted by the pleadings where the declaration charged defendant had ownership and control thereof.

3. Master and servant, § 701*—when finding as to proximate cause warranted 6y the evidence. In an action by a structural iron worker to recover for personal injuries alleged to have been caused by the slippery condition of the iron by reason of wet paint thereon, while he was unloading the same from a wagon, where defendant claimed that a movement or jar of the wagon caused one of the irons to shoot out from the load, held that the evidence warranted the jury in finding that the slippery condition of the iron was the proximate cause of the injuries where it appeared that the iron would not have shot out from the load but for its slippery condition.

4. Master and servant, § 786*—when instruction may ignore defense of assumption of rish. An instruction given for plaintiff which ignored the defense of assumed risk, held not reversible error where the evidence showed plaintiff did not assume the risk.

5. Master and servant, § 776*—when instruction as to proximate cause proper. In an action by an employee for personal injuries alleged to have resulted from the slippery condition of iron, an instruction given for plaintiff which, in effect, told the jury that although some other agency was a contributing cause of the injuries, yet if they believed that the slippery condition of the iron was also a proximate cause, plaintiff’s recovery could not be defeated because of the other concurring or contributing cause, held proper.


text:
    E. J. Holslag, trading as Holslag & Company, Appellee, v. Robert H. Morse, Appellant.
    Gen. No. 18,925.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Accord and satisfaction, § 3

      —when acceptance of less sum does not discharge deht. After parties reach a final agreement as to the amount due on a claim, the claim is no longer regarded as an unliquidated disputed one, and an acceptance of a less sum in satisfaction thereof by mistake or oversight, which was well known to the creditor, will not discharge the debt or claim in full.

      Appeal from the Municipal Court of Chicago; the Hon. Habry Olson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Reversed and remanded.
    Opinion filed October 7, 1914.
    Rehearing denied October 19, 1914.
    Statement of the Case.
    Action by E. J. Holslag, trading as Holslag & Company, against Robert H. Morse to recover a balance, claimed to be due under a contract for alterations and interior decorations of defendant’s home. The declaration was in the usual form with the common counts only, accompanied by an affidavit showing that the claim was for a balance due of $1,475.72 on a final settlement made by plaintiff and defendant for work, labor, and material furnished under a contract, a copy of which was attached to the declaration. Defendant filed a plea of the general issue with notice of special matters of defense, payment, accord and satisfaction, release and breach of contract. The trial was had by the court without a jury. To reverse a judgment in favor of plaintiff for the full amount sued for, defendant appeals.
    John S. Lord, for appellant.
    McArdle & McArdle, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

2. Accobd and satisfaction, § 3 —when acceptance of less sum not satisfaction. An acceptance by a creditor of a sum of money less than the amount due on a liquidated debt, even if done by agreement without consideration, is a discharge of only so much of the debt as is thereby paid; the rule is otherwise where property other than money, or money and property, are taken in full satisfaction, or where the payment is the amount agreed upon in an honest compromise of unliquidated or disputed demands.

3. Accobd and satisfaction, § 3*—right of creditor to recover balance of liquidated claim after his acceptance of less sum in satisfaction. Where a creditor accepts a less sum than the amount due in full satisfaction of a liquidated demand, it is not essential to his right of action to recover the balance due that he rescind the contract of settlement or that he return the money received; he is only required to give the debtor credit for the amount paid.

4. Building and constbuction contbacts, § 69*—when provision requiring architect’s certificate waived. Where the owner asks the architect not to make his final certificate, and makes payments and settles without such certificate, the provisions of the contract requiring such certificate are waived.

5. Building and constbuction contbacts, § 84*—right of contractor to recover under common counts. Where the owner and contractor had agreed on the amount due, the contractor may recover from the owner on the common counts, without producing the architect’s final certificate, where such certificate was waived by the owner.

6. Building and constbuction contbacts, § 54*—when acceptance of work not waiver of latent defects. Latent defects in work under a building contract, not open to inspection, are not waived by the owner’s acceptance thereof in ignorance of their existence.

7. Building and constbuction contbacts, § 57*—power of architect to waive compliance with contract. An architect has no authority to waive for the owner his right to insist on the character of the work and materials called for in the contract, unless such authority is given by the contract or by the consent of the owner.

8. Set-off and becoupment, § 17*—when claim may be recouped. A claim for unliquidated damages is not properly a matter of set-off, strictly speaking, but it may be recouped in an action growing out of the same contract or subject-matter, i. e., such claim may be allowed to lessen plaintiff’s claim, or entirely defeat it, but not allowed so as to enable defendant to recover a judgment for any excess in his favor.

9. Building and construction contracts, § 95*—when refusal to permit examination of work is circumstance discrediting owner’s claim of defective work. In an action for a balance due for work and materials furnished in decorating defendant’s house, where defendant claimed that the work and materials did not comply with the contract, and defendant upon the trial refused a request of plaintiff’s counsel to permit plaintiff or an expert to examine the work with a view of obtaining evidence to rebut defendant’s claim for damages, held that such refusal should be considered by the court or jury as a circumstance or act discrediting defendant’s claim of defects in the work.


author: Mb. Justice Duncan

text:
    Charles A. Jones, Appellee, v. Mary Roberts, Appellant.
    Gen. No. 18,944.
    1. Landlord and tenant, § 311

      —matter which may he recouped in suit for rent. In an action for rent the tenant is entitled to recoup damages for fraud and deceit in connection with the making of the lease.
    2. Municipal Court of Chicago, § 27*—when hill of exceptions may he stricken. A bill of exceptions may be stricken where it was not filed within sixty days after the judgment was entered, or within the extended time given by the court within said sixty days, as provided by section 38 of the Municipal Court Act, J. & A. jf 3350.
    3. Municipal Court of Chicago, § 27*—necessity of hill of exceptions. A judgment of the Municipal Court striking a statement of claim or an affidavit of defense from the files and entering judgment by default must be affirmed in the absence of a bill of exceptions.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.
    Oscar E. Leinen, for appellant.
    Herman W. Stillman, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mb. Justice Duncan

delivered the opinion of the court.

Mary Roberts, appellant, brought suit against appellee, Charles A. Jones, to recover the sum of $910 alleged to have been expended for necessary repairs on the building at 5538 and 5540 Cornell avenue, Chicago. Appellee later sued appellant for rent due on said premises. Both parties filed statements of claim and affidavits of defense in said suits according to the Municipal Court practice in fourth-class actions, and by agreement the two causes were consolidated for trial. Appellant’s defense to appellee’s suit as stated was recoupment for fraud and deceit in connection with the making of a lease to her of said premises by him, charging that the electric wiring system in said house was very defective and had been condemned and ordered removed from the premises by the city authorities prior to her lease; that the plastering therein had been greatly damaged by an explosion in the adjoining building and was simply held in place by the wall paper; that water could not be had therein above the second story, all of which was well known to appellee before making the lease; that he knowingly and falsely represented to her that said building was in good repair in all the foregoing particulars; that she relied thereon and expended about $6,000 in fitting up the building for a hotel, and was deceived, defrauded and damaged in said sum, and that all of said defects were latent and not discoverable by ordinary efforts, etc. On motion of appellee her statement of claim in her suit and her affidavit of defense to appellee’s suit were stricken from the files as insufficient in law, and judgment was rendered for appellee against appellant by default in the sum of $1,079.20.

A motion of appellee to strike the bill of exceptions herein from the record has been heretofore sustained by this court because it was not filed within sixty days after the judgment was entered, or within the extended time given by the court within said sixty days, as provided by section 38 of the Municipal Court Act (J. & A. ft3350). Haines v. Knowlton Danderine Co., 248 Ill. 259.

The motion of appellee to affirm the judgment made at the same time was overruled upon the supposition that the alleged errors might be shown upon the face of the record. The sole questions, however, upon this appeal are as to whether or not the court erred in striking appellant’s statement of claim and her affidavit of defense from the files and in entering judgment against her by default. It is now well established by the courts of this State that an independent suit for fraud and deceit can be maintained by a tenant affirming the contract of leasing, or that the tenant may recoup his damages so sustained in a suit by the lessor for the rent, and no reason appears in this record why appellant should not have been allowed to make her defense in recoupment in this case. Burroughs v. Clancey, 53 Ill. 30; Chicago Legal News Co. v. Browne, 5 Ill. App. 250; Stubblefield v. Soule, 21 Ill. App. 154; Burroughs v. Selleck, 185 Ill. App. 446.

The alleged errors of the court cannot be considered, however, for want of a valid bill of exceptions. A motion to strike a pleading from the files, the court’s decision thereon and an exception thereto, must in a common-law case appear by a bill of exceptions to give the reviewing court the power to review such decision of the trial court on errors assigned. Gaynor v. Hibernia Sav. Bank, 166 Ill. 577.

The same rule announced in the Gaynor case, supra, must necessarily apply where the reviewing court is asked to reverse a judgment of the Municipal Court in a first-class case striking either a statement of claim or an affidavit of defense from the files and entering judgment by default. It must be presumed in the absence of a bill of exceptions, as said in the Gaynor case, that a proper case was made for the order of the lower court, and the judgment will, therefore, be affirmed.

Affirmed.


text:
    John F. Devine, Administrator, Appellee, v. Grand Trunk Western Railway Company and Patrick J. Forbes, Appellants.
    Gen. No. 18,979.
    1. Master and servant, § 222

      —when railroad Halle for death of switchman resulting from negligent order. Where a foreman of a switching crew ordered- certain cars standing on a switch track to be switched on another switch track, and after the engine had removed them from the track on which they were first standing the foreman changed his order and signaled for one of the cars to be “kicked” back on the same track, and the car so “kicked” back ran over and killed a member of the switching crew who was waiting for the cars to be switched on the other track and had no knowledge of the change in the order, held that the switchman’s death was caused by the negligent order of the foreman as vice principal, and that the fellow-servant rule and the doctrine of assumed risk were inapplicable to the case.
    2. Master and servant, § 221*—when foreman and employer jointly Halle. Where a foreman of a switching crew gives a negligent order in violation of a common duty owed by the railroad company and himself to another switching employee, both the foreman and the railroad company are joint tort feasors, and are jointly liable.
    3. Death, § 50b*—when proof on subject of due care sufficient in absence of eyewitness. In an action against a railroad company to recover for the wrongful death of a switchman, where there was no eyewitness of the accident or what the switchman was doing at and just before he was killed, evidence on the question of ordinary care held sufficient to sustain a verdict, where witnesses testified that he was a competent, sober and careful switchman and that such was his reputation.
    4. Death, § 50b*—when proof of age of deceased sufficient to sustain verdict. Proof of the age of plaintiff’s intestate in an action for wrongful death, held sufficient to sustain a recovery, where the only reference thereto as shown by the record was a statement of plaintiff’s counsel to the effect that he offered in evidence certain life tables showing the expectation of a life of a man thirty-four years old, and it appeared the defendant allowed the tables to be read to the jury unchallenged or without in any way questioning the truth of the statement of plaintiff’s counsel.
    5. Death, § 67

      —when damages not excessive. A verdict awarding ten thousand dollars for wrongful death of a railroad switchman held not excessive under the evidence.
    Appeal from the Superior Court of Cook County; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.
    Affirmed.
    Opinion filed October 7, 1914.
    Rehearing denied October 19, 1914.
    Kretzinger & Kretzinger and L. L. Smith, for appellants.
    E. W. Austin and Charles C. Spencer, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Duncan

delivered the opinion of the court.

Appellee recovered a judgment of ten thousand dollars for the death of "William H. Varnholtz. The evidence disclosed that Varnholtz was employed as head switchman by the appellant Railroad Company in its switch yards north of 55th street in Chicago. The other members of the crew were Patrick J. Forbes, conductor and foreman and one of the appellants; Duns-worth, rear switchman; Rathbun, engineer; and Lang, fireman. The switch yards contained sixteen tracks, including one main southbound and one main northbound track. Varnholtz worked there altogether only four nights, the crew being a night crew. On the night of September 16, 1909, the crew began work about seven o’clock. Early that night they had taken twelve cars off of switch track No. 8 and placed them on switch track No. 9 by taking them south beyond switch track No. 8 and thence backing them north on track 9 east of track 8. Those cars were loaded and carded for different roads, but were to remain on the hold tracks for further instructions. After their night meal Forbes, as foreman, gave orders to Vamholtz and Dunsworth to place the cars on track 9 back on track 8. Dunsworth and Varnholtz proceeded to execute that order and rode on the footboard of the engine headed north down the lead to those cars. Varnholtz stepped off and coupled the engine to those cars, and then remained there on the east side of track 9. In obedience to a signal by Dunsworth the engineer moved south on track 9 towards the south end of track 8, pulling thirteen cars, including the twelve that had previously come from track 8. Dunsworth, while walking south towards Forbes, noticed the extra car to the rear of the twelve, and said to Forbes: “You will have to kick that car in there again. It is not wanted over on 8. ” The thirteen cars were then quite a distance south of Vamholtz and near the place where they were to have been stopped and backed onto track 8 by Forbes’ order. Forbes then, without notice or warning to Varnholtz, ordered Dunsworth to kick back on track 9 the extra car, called in the record a “Swift freezer,” and at the same time himself gave a signal to the engineer to “back up,” and uncoupled the Swift freezer from the twelve. The engineer at once backed or moved his engine to the north, and the Swift freezer was thus kicked back on track 9 at the rate of from four to six miles an hour against Varnholtz, and he was thus knocked down and killed on that track about 12:40 a. m.

All of the six counts of the declaration were taken from the consideration of the jury on motion of appellants, except the fourth count, which charged that Forbes was foreman of the crew with authority to distribute and place the cars in the yards, and that it was the duty of the crew, including the deceased, to obey Forbes’ orders and to distribute and place the cars at the points designated by his orders; averred the giving of the order by Forbes to remove the cars on track 9 to track 8 as aforesaid, and Ms change in that order without notice or warning to Yarnholtz as, to the Swift freezer; and that by reason of his negligence in so ordering the Swift freezer kicked back on track 9 without notice, etc., that Yarnholtz was struck and killed by said car while crossing over track 9, using due care, etc.

It is urged by appellants that the evidence in the record does not support the verdict and judgment, and that their motion to direct a verdict as to the fourth count should have been given. Four propositions are discussed in support of that contention: (1) That appellants were not guilty of the negligence charged; (2) that Yarnholtz and Forbes were fellow-servants; (3) that Yarnholtz assumed the risk; and (4) that he was guilty of contributory negligence.

First. Appellant Forbes testified that as foreman of the switching crew his duties were to instruct the men of his crew what to do and to see that all the cars went to their proper places. These were his duties as boss or as vice-principal of the railroad company. He also assisted when necessary or convenient in the execution of his orders by giving signals, throwing switches, coupling and uncoupling cars, etc., and in that work Ms acts were usually those of a fellow-servant. An examination of the evidence shows clearly that by his testimony, that it was his duty “to instruct the men of his crew what to do,” he meant that it was his duty to tell them on what tracks and at what points the various cars in the yards were to be placed, and to indicate or direct the various movements and disposition of cars in accomplishing his orders for distributing and placing the cars that were carded and directed for shipment on the various roads. Each of the other members of the crew knew how to execute those orders by moving the engine, coupling and uncoupling cars, giving signals, throwing switches, etc., and needed no orders or directions in those matters, and each member of the crew had his special part to do in the execution of the foreman’s orders. Forbes was furnished a list of the cars by the yardmaster, which he consulted in giving his orders as to the placing of the cars, and no car or cars could be placed except by his orders, unless in case of his absence, and then the rear switchman performed his duties as boss. The head switchman’s duties were to keep in sight of the engineer when necessary to take signals from the rear switchman or conductor and to repeat them to the engineer, to couple and uncouple cars at or near the engine and to line up switches for the engine. The rear switchman threw the switches down in the field and coupled and uncoupled the cars there and distributed or placed them in accordance with the conductor’s orders. The head switchman usually rode the engine or the cars to the next place where he was to couple or uncouple cars, if that was necessary, or could remain at his next place of work if there and the engine was moving to points at which he could have no work until its return. In giving signals to the engineer he could remain any distance away from the engineer if the engineer could see the signals. Either switchman did the work of the other when necessary or convenient. The foregoing facts clearly appear in the record, and it needs no argument to show that in order for the switchmen to protect themselves against the movements of cars night or day, they should be informed in switch yards at all times what is being done; that is, where the cars were to be moved and placed. The last order Forbes gave to those switchmen before Varnholtz was killed was to place all the cars on track 9 back on track 8. They were proceeding to do it in the usual way. Varnholtz had evidently remained on the east side of track 9 where he last coupled the engine to the cars, because he had no work to do until the engine returned on track 8 just about opposite and a few feet west of him. His next work, as testified by Dunsworth, was to uncouple those cars from the engine on track 8 just west of him when the engine returned there. No one testifies to the contrary, and Dunsworth testified that there was no occasion for his riding the engine down to and beyond switch 8 and back on 8, because he had nothing to do while that movement was being made. Forbes must have known that for he does not contradict Dunsworth in that testimony. He did testify that he last saw Varnholtz alive right where Varnholtz was left by Dunsworth on the east side of track 9. Vamholtz had to cross track 9, and no doubt was crossing it when killed, to reach track 8 opposite him to uncouple the engine from those cars on their return. Varnholtz was not, therefore, shown to be at a place other than his duties required him to be, but was where he might be expected to be in the discharge of his duty, and, therefore, Forbes was clearly shown to be negligent in failing to perform his duty as vice-principal or foreman in informing- Varnholtz that the Swift freezer was to be replaced or kicked back on track 9. That negligence was the proximate cause of his death, because his death would not have happened but for that order, and he no doubt would have saved himself if he had known of that order. Forbes knew there was nothing in any signal that he or Dunsworth were giving or could give that would give Varnholtz notice a car was being kicked back on track 9, because the evidence clearly shows that the “back up” signal and the “kick back” signal are one and the same, and that at night it cannot be told by any signal whether cars are being shoved back or kicked back, or on to what track they are being shoved or kicked back. The evidence also shows it was so dark that night that a car could only be seen about a car length when one was looking for it. It is negligence for the conductor and foreman of a switching crew to order a car or cars to be shoved or kicked back onto a track where another employee is performing Ms duties when that employee has no reason to expect such a move and has all reason to believe that they are being moved oiito another track by order of the foreman. Adams v. Cleveland, C., C. & St. L. Ry. Co., 149 Ill. App. 574, affirmed in 243 Ill. 191.

Second. For the reasons aforesaid Forbes and Varnholtz were not fellow-servants at the time of the giving of the negligent order by Forbes as foreman It was not the signal alone of Forbes that caused Varnholtz’ death, but his order as vice-principal and the signal without notice to the deceased. Had Forbes not said a word, but by signal had caused the car to be Mcked over track 9, it would have amounted to both an order as foreman and a signal as a fellow-servant, because no other member of that crew had any right or duty by which they could order that ear placed when the conductor was on the ground. Chicago, R. I. & P. Ry. Co. v. Strong, 228 Ill. 281.

Third. It is clear also that the doctrine of assumed risk has little or no application to this case. Varnholtz did not know and had no means of knowing the danger at the time he was killed, except to look for the car in the dark at a place where he had no reason to expect it to be. While there is some evidence in the record that it was customary to kick back cars in that switch yard of appellant without notice to any one, yet it was not proved that Varnholtz knew of the custom. It was not proved that it was customary for the foreman to violate his duty in informing the crew where the cars were to be placed. Had Varnholtz had that knowledge, kicking the car back would have caused Varnholtz no more danger than shoving or pushing it back with the engine. All the notice he needed was that it was coming back on track 9, and he could have protected himself no matter how it came. The danger to Varnholtz was not one of the ordinary risks of that business. Negligence of the master, or of his representative, is not one of the ordinary risks of the employment assumed by the employee or servant, until he has knowledge or notice thereof. For the reasons aforesaid and for others so very apparent as to not require argument or statement, the court very properly refused the following instruction:

“That when the deceased entered the employ of the defendant, he assumed all the natural and ordinary risks incident to such service; that he was bound to know that switch engines and cars were running backward and forward over the tracks and switches where he was working, and if you believe from the evidence that the deceased was such switchman and in the service of the defendant, and assumed the risk as above defined, then the plaintiff in this suit is not entitled to recover, and your verdict should find the defendant not guilty.”

Fourth. The evidence in the record for the reasons above given is entirely consistent with the contention that the deceased was in the discharge of his duties and in the exercise of reasonable care for his safety when he was killed. There was no eyewitness of his injury or of what he was doing at and just before he was killed. Witnesses testified that he was a competent, sober and a very careful switchman, and that that was his reputation. There is no evidence to the contrary. Ordinary care on the part of the deceased was established by his administrator by the highest proof of which the case is capable, and it was sufficient to support the verdict of the jury on that question. Collison v. Illinois Cent. R. Co., 239 Ill. 532.

The negligent order given by Forbes was an affirmative wrong done by him in violation of a common duty owed by the appellant Railroad Company and Forbes to Varnholtz, and constituted them joint tort feasors, and they were, therefore, jointly liable. Republic Iron & Steel Co. v. Lee, 227 Ill. 246.

Appellants also insist that the verdict and judgment are excessive, because the record evidence does not furnish any proof of the age of the deceased. Under ordinary circumstances we would regard such an oversight as sufficient grounds to reverse any judgment of ten thousand dollars for a death where the earning capacity of the deceased was no more than the proofs in this case disclose. No one testified to the age of Yarnholtz, so far as the record shows, hut it does show that Mr. Spencer, appellee’s attorney, offered in evidence Wigglesworth’s tables, using this language:

“I offer in evidence Wigglesworth’s tables showing the expectation of life of a man 34 years old. I am offering the part relating only to the age included in the case. It shows that a man of the age of 30 has an expectation of life of 30.24 years. And that a man of 35 years has an expectation of life 28.22, and that the computation is not carried out for the ages between 30 and 35.”

The offered evidence was objected to by appellants specifically and solely on the ground that the tables offered were the tables printed in Puterbaugh’s Pleading and Practice and were not in any way authenticated to be correct. The objection was overruled by the court and the tables showing precisely what Mr. Spencer said they disclosed were read to the jury. By their own action appellants allowed proof to go to the jury unchallenged in any way that the offered tables showed that Yarnholtz had an expectancy of life of more than twenty-eight years when killed, and in no way questioned the truth of Mr. Spencer’s statement, in substance, that the deceased was thirty-four years of age at his death. Not a single other reference to the question of Yarnholtz’s age appears anywhere in the record by the instructions, motion for new trial or otherwise. If this question had at any time been raised by argument to the jury or otherwise before verdict, the learned Court who tried the case would undoubtedly, as he had a right to do, have allowed the evidence, which was by .oversight omitted, supplied by appellee. We do not question that it is the law that where the motion for a new trial is general, as in this case, and does not set out the specific grounds therefor, that an appellant, where not otherwise estopped, may raise any question for review in this court, where no requirement was made that the grounds for the motion be specified, as held in Ottawa, O. & F. River Val. R. Co. v. McMath, 91 Ill. 104, and in Yarber v. Chicago & A. Ry. Co., 235 Ill. 589.

Appellants make no question here as to the correctness of the court’s ruling in admitting in evidence the life tables in question, and such tables are competent evidence. Winn v. Cleveland, C., C. & St. L. Ry. Co., 239 Ill. 132.

Moreover, it does positively appear from the evidence, that at the time of his death Yarnholtz had been married about five years, and left a widow and two young children; that he was a sober man, a competent switchman, had been a switchman for five years, had good hearing, good eyesight and good health; and that he worked steadily earning one hundred dollars to one hundred and twenty-five dollars per month, and gave his earnings to the support of Ms family. The evidence tended to prove that he was a young, vigorous and industrious man, and that the verdict is not excessive. Had the proof been actually made that the deceased was thirty-four years of age, the only ground for appellant’s claim that the verdict is excessive would be removed. The judgment is well supported by the record, and appellants should be estopped to insist that the deceased was not proved to be thirty-four years of age by their failure to make that objection at the time the life tables were offered, or at any time thereafter before verdict.

The judgment is, therefore, affirmed.

Affirmed.