author: Mr. Justice MóSurely

text:
    Charles D. Stone & Company, Defendant in Error, v. New York Central Railroad Company, Plaintiff in Error.
    Gen. No. 24,433.
    1. Cabbiebs, § 93

      —when action for breach of contract to deliver merchandise is not one under Qarmack amendment. An action against a railroad company for breach of a contract to deliver merchandise on board a steamship was not one under the Carmack amendment, where the original contract had been completed by delivery in a certain State, and where plaintiff, as the legal holder of the bill of lading, made the contract in question with defendant for specific services to be performed in such State, the defendant strictly having been neither an initial nor connecting carrier.
    2. Cabbiebs, § 60*—when holder of bill of lading is legal holder. The holder of a bill of lading indorsed in blank is the legal holder.
    3. Cabbiebs, § 93*—who may sue for carrier’s breach of contract to deliver merchandise. The delivery of a bill of lading by the consignee, indorsed in blank, to a broker with directions to attend to the shipping of the merchandise was in law the delivery of the merchandise to such broker as bailee, and authorized the latter to sue for the default of the carrier.
    4. Evidence, § 185*—what must appear in order for admissions of third person to be admissible. The principle that admissions of a third person are receivable against a party who has expressly referred another to him for information in regard to an uncertain or disputed matter, should not be extended beyond the ordinary rule of an agent given authority to bind a principal, and therefore it must clearly appear that such person had authority to speak for the principal who intended to he bound by the result.
    5. Evidence, § 185*—when admissions of third person not admissible. The rule that admissions of a third person are receivable against a party who has expressly referred another to him for information in regard to an uncertain or disputed matter, had no application in a suit against a carrier for failure to deliver merchandise to a steamship company, where it was attempted to bind defendant by statements of a witness who merely undertook to say that upon an occasion when he inquired of some one “in the railroad office,” as to the location of a certain receipt, he was told to “see” the steamship company.

      6. Evidence, § 129

      —when “dock sheets” not admissible as copies of receipts. In an action against a carrier for breach of contract to deliver merchandise on board a steamship, it was error to admit so-called “dock sheets,” supposed to contain receipts delivered by the steamship company, there having been nothing to show that the original receipts were not obtainable.
    7. Evidence, § 253*—“dock sheets” not admissible to prove negative. It has been held that so-called “dock sheets” are not admissible for the purpose of proving a negative.
    8. Cashiers, § 93*—when exclusion of evidence in suit against carrier for failure to deliver merchandise toill be error. In a suit against a carrier for failure to deliver merchandise to a,steamship company, it was error to refuse to permit a witness to testify concerning a receipt which he received from the steamship company and which was not turned over to the shipper.
    Error to the Municipal Court of Chicago; the Hon. Habrt P. Dolan, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and remanded.
    Opinion filed June 16, 1919.
    Glennon, Cary & Walker, for plaintiff in error; C. A. Reinwald, of counsel.
    Baker & Holder, for defendant in error; G. Raymond Collins, of counsel.

      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, samo topic and soption number,

   Mr. Justice MóSurely

delivered the opinion of the court.

Plaintiff brought suit to recover damages for the alleged breach by the defendant of its contract to deliver a number of bags of flour on board, a steamship sailing from New York for Greece. On trial plaintiff had a verdict and judgment for $1,700.54, which defendant asks to have reversed.

• The Updike Milling Company of Omaha, Nebraska, consigned to the order of itself at New York City 400 bags of flour, with directions to notify the Greek Products Importing Company. The bill of lading was indorsed by the shipper, and pursuant to instructions therein contained was delivered to the Greek Products Company. Plaintiff is a corporation engaged in the business of customhouse brokers and forwarding agents. It received the bill of lading from the Greek Products Company, with instructions to have the merchandise delivered to the steamship “Frixos” for shipment to Greece. Plaintiff delivered the bill of lading to defendant, together with a letter of instructions from plaintiff to defendant, which defendant accepted and undertook to perform. Plaintiff’s claim is based upon the alleged failure of the defendant to carry out this contract.

Defendant says that under these circumstances plaintiff is not the proper party to bring the action. We think the defendant is in error in the assertion that this is a suit under the Carmack amendment. The initial carrier in the transaction was the Missouri Pacific Railway Company, and its contract of carriage was completed when the merchandise was delivered in New York City and came into the possession of the Greek Products Company. This suit is for the breach of the contract between the parties wherein the defendant undertook to perform certain specific services within the State of New York and it is neither an initial carrier nor connecting carrier. This suit is in a class with those based upon the negligence of the contracting party, and such suits have been held to be not under the Carmack amendment. Looney v. Oregon Short Line R. Co., 271 Ill. 538; Pennington v. Grand Trunk Western Ry. Co., 277 Ill. 39.

We are of the opinion that plaintiff properly could bring the suit. The failure of the Greek Products Company to indorse the bill of lading to plaintiff is of no vital importance. It may be said, however, that there is considerable force in the suggestion that such indorsement was wholly unnecessary in that the indorsement by the Updike Milling Company was in blank; hence whoever had the bill of lading in his possession would be the legal holder, fiowever this may be, the delivery by the Greek Products Company of the bill of lading to plaintiff, with directions to attend to the shipping, was in law the delivery of the merchandise to plaintiff as bailee. It has been held that an interest of this kind authorizes such a party to sue for the default of a carrier in the performance of a contract between them. Edgerton v. Chicago, R. I. & P. Ry. Co., 240 Ill. 311; Great Western Ry. Co. v. McComas, 33 Ill. 185. In the latter case the court said that the railroad company, having received the property from the plaintiff, was not at liberty to dispute his title in an action brought by him, and that it was very questionable if a carrier could be permitted of its own mere motion to set up as a defense against its bailor the right of the real owner. These statements are approved in the later (Edgerton) case.

We are of the opinion, however, that the cause must be remanded for a new trial because of error of the court in the admission of testimony. We refer to certain testimony contained in the deposition of Frederick L. Stahl, which in brief was an attempt to bind the defendant by certain alleged statements of some one whose authority is not shown, purporting to speak for the steamship company. The principle invoked by plaintiff is that admissions of a third person are receivable against a party who has expressly referred another to him for information in. regard to an uncertain or disputed matter. The books contain a number of discussions of this rule, stated in Greenleaf on Evidence, vol. 1, sec. 182. Clearly, however, this rule is based upon the agency of the third party for the particular purpose of binding the person who has referred the inquirer to such party. The rule should not be extended beyond the ordinary rule of an agent given authority to bind a principal. This makes it necessary that the agency of the person referred to must be clearly shown, and that the person referred to had authority to speak for the principal, who intended to he bound by the result. We are wholly in accord with the very luminous and convincing discussion of this point by Mr. Justice Christiancy, in Rosenbury v. Angell, 6 Mich. 508. ■ Under this construction of the rule the incompetency of the statements of the witness Stahl is manifest. All he undertook to say was that upon an occasion when he inquired of some one “in the railroad office” as to the location of a certain receipt, he was told to “see the Greek Lines Steamship Company.” These circumstances do not warrant the application of the rule above referred to, and the testimony of the witness in this regard was clearly incompetent.

The admission of the so-called “dock sheet,” plaintiff’s exhibit 4, was improper. This was supposed to contain copies of receipts delivered by the steamship company. For aught that appears the original receipts were obtainable. These copies were made by witnesses who were not produced, and whose nonappearance was unexplained. It has alsq been held that books of this sort are not admissible for the purpose of proving a negative. Vandyke v. Memphis, N. O. & C. Packet Co., 24 Ky. L. Rep. 1283, 71 S. W. 441; Riley v. Boehm, 167 Mass. 183; Scott v. Bailey, 73 Vt. 49; Conover v. Neher-Ross Co., 38 Wash. 172; Louisville Ry. Co. v. Kritzky, 162 Ky. 652; Schwarze v. Roessler, 40 Ill. App. 474.

Defendant attempted to have the witness Hills testify concerning a receipt which he received from the steamship company and which was not turned over to the shipper. It was said that this tended to show that a mistake had been made by the steamship company with reference to the receipts. We think such evidence material and that it should have been admitted.

For the errors above indicated the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice McSukely

license: Public Domain

text:
    Edward Block, Defendant in Error, v. R. T. Brackett and Anton J. Cermak, Bailiff of Municipal Court of Chicago, Plaintiffs in Error. Chicago Association of Credit Men, Amicus Curiae.
    Gen. No. 24,919.
    1. Pasties, § 8

      —right of assignee of creditors to sue in own name on judgment note. The assignee of the claims of a number of creditors had the right to sue in his name upon a judgment note representing the total of such claims.
    2. Fraudulent conveyances, § 15*—when Mil of sale invalid under Bulk Bales Imw. The Bulk Sales Law [Call. 1916 Stat. 10021(1) et seq.1 will not admit of a construction which would permit a party owning a stock worth many thousand dollars, which had not' been paid for, to make a bill of sale reciting merely a nominal consideration, to be held by a third party in escrow, to which alone creditors would have recourse.
    3. Fraudulent conveyances, § 15*—when sale in suspense under Bulk Bales Law. The provision of the Bulk Sales Law [Call. 1916 Stat. If 10621(1) et seq.J declaring in substance sales of a stock of merchandise, etc., fraudulent and void as against creditors, unless the vendee shall in good faith, at least 5 days before the consummation of the sale, receive from the vendor a correct list of his creditors, and at least 5 days before taking possession, and the payment or delivery of the purchase price, deliver notice to such creditors of the proposed purchase, manifestly intended to afford creditors the opportunity of taking such steps with reference to the goods as they might desire, to protect themselves; and during the 5 days the sale is in suspense pending the action of the creditors, and nothing that the vendor or vendee can do will deprive the creditors of their right against the property.
    4. Fraudulent conveyances, § 15*—when holder in escrow of Mil of sale not entitled to property as of date of MU. Where a hill of sale of the stock and fixtures of a paint store was given by the owner for a stated consideration of $350, together with a list of creditors and an affidavit verifying the list and stating that the value did not exceed $400 and was exempt, and where a 5-day notice was sent to the creditors, reciting that the stock;, etc., had been purchased by the holder of the bill for $350, and that such sum was held in escrow by a named person and that the notice was given in accordanee with the Bulk Sales Law [Call. 1916 Stat. IT 10021(1) et seg.], the holder of such bill of sale was not entitled to the property as of the date of the bill of sale, and a creditor who obtained judgment within 5 days was not relegated to the amount held in escrow, where the testimony in the trial of the right of property in question tended to show that the property was actually worth about $1,200.
    Error to the Municipal Court of Chicago; the Hon. Edmund K. Jabecki, Judge, presiding. Heard in this court at the March term, 1919.
    Reversed and judgment here.
    Opinion filed June 16, 1919.
    Herbert Green, for plaintiffs in error.
    Morris Kompel, for defendant in error.
    Gilbert F. Wagner, for amicus curim.

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

   Mr. Justice McSukely

delivered the opinion of the court.

Upon a trial of right of property, by the court without a jury, it was awarded to the plaintiff. The property had been levied upon by Anton J. Cermak, as bailiff of the Municipal Court of Chicago, by an execution on a judgment obtained by B. T. Brackett. These defendants say that the award was erroneous, and ask that it be reversed with a judgment in their favor.

On January 4,1918, one John J. Mehringer owned a paint store on Fnllerton avenue in Chicago. On that date he executed a bill of sale of the stock and fixtures to Edward Block, plaintiff here, the consideration named being $350. At the same time Mehringer furnished a list of his creditors and an affidavit as to the list and that the stock and fixtures were worth not to exceed $400 and were claimed by him as exempt. On the same day he delivered possession to Block. Mehringer casts some donbt as to the recitals in these instruments by testifying on the trial that the papers were presented to him and signed by him in blank and filled in afterwards. On January 5th' a notice was sent to each of the creditors appearing upon the list, purporting to he in compliance with section 79 of the “Bulk Sales Law,” chapter 121a, Hurd’s Bev. St. [Call. 1916 Stat. j[ 10021(1) et seq.]. This notice stated that Edward Block had purchased the stock of merchandise, etc., for the sum of $350, which purchase price was “held in escrow hy Aaron Bothstein”; also that this notice was given in accordance with the Bulk Sales Law of Illinois, and that unless claims were made within 5 days from the receipt of the notice, ‘ ‘ a sale will be consummated and the money delivered to the vendor.” Mehringer, suspecting that this was a plan in fraud of his creditors, notified the Pittsburg Plate Class Company, his largest creditor. At its request Mehringer called upon the defendant Brackett, who held this claim and the claims of other creditors, for collection, and at Brackett’s suggestion Mehringer, on January 9th, issued a judgment note to Brackett for the total amount of all of Mehringer’s indebtedness to his merchandise creditors, Brackett having procured assignments to himself of all these claims. On the same day judgment was entered by confession in the Municipal Court, execution issued, and levy upon the property in question was made. This was within the 5 days mentioned in the notice of sale to the creditors. Block, the vendee, filed a proceeding for trial of right of property against Brackett and Cermak, as bailiff,, claiming title by reason of the bill of sale from Mehringer to him. It appeared upon the trial that Mehringer had received no part of the purchase money, which was held by Bothstein, a money lender, under whose advice the transaction was carried on.

We know of no good reason why Brackett, the assignee of the claims, could not proceed to collect them 'in the method which he adopted. Especially is this true where the original holders of the claims assent to this. City of Carlyle v. Carlyle Water, Light & Power Co., 140 Ill. 445. An assignee of a number of claims assigned to Mm for collection may join them in one suit in his own name. Among the cases so holding are Briscoe v. Eckley, 35 Mich. 112; Henderson v. Detroit & M. Ry. Co., 131 Mich. 438; The Rupert City, 213 Fed. Rep. 263; Huddleson v. Polk, 70 Neb. 483; see also citations in 5 Corpus Juris 994, sec. 199. We hold that Brackett was a proper party to have judgment entered upon the note.

The position of plaintiff is that he is entitled to the property as of the date of the bill of sale, and that the creditors of the vendor are relegated for their claims to the amount of the purchase money, $350, held in escrow by Bothstein. There was evidence tending to show that the property was actually worth about $1,200. It does not need • extended consideration to demonstrate that such a construction of the Bulk Sales Law would render it wholly nugatory and a convenient instrument of fraud. This would permit a party owning a stock worth many thousands of dollars, wMch had not been paid for, to make a bill of sale reciting merely a nominal consideration, to be held by a third party in escrow, to which alone creditors would have recourse. The absurdity of the proposition is self-evident. The Bulk Sales Law, in substance, declares sales of a stock of merchandise, etc., fraudulent and void as against creditors unless the vendee shall in good faith, at least 5 days before the consummation of the sale, receive from the vendor a correct list of •his creditors and, at least 5 days before taHng possession of the property and the payment or delivery of the purchase price, deliver- or cause to be delivered notice to such creditors of the proposed purchase. The manifest intention of this is to afford creditors the opportumty of taking such steps with reference to the stock of goods as they may desire in order to protect themselves. During the 5 days the sale is in suspense pending the action of creditors, and nothing that the vendor or vendee can do will deprive the creditors of their rights against the property-.

In Johnson Co. v. Beloosky, 263 Ill. 363, the court suggested, in sustaining the constitutionality of the Bulk Sales Act, that it was passed for the suppression of fraud. This intention will not be defeated by a strained construction of the statute which is also contrary to its unambiguous language.'

The judgment of the trial court in awarding the property to plaintiff was clearly erroneous and it will be reversed, and judgment will be entered in this court finding the right of property in the defendants.

Reversed and judgment here.


author: Mr. Justice McSurely

text:
    Great Northern Refining Company, Plaintiff in Error, v. George C. Peterson Company, Defendant in Error.
    Gen. No. 24,950.
    1. Appeal and error, § 299

      —When order Quashing attachment in aid not reviewalle. An order quashing an attachment writ in aid ■was not a final order which could be brought up for review before the entry of a judgment in the principal suit.
    2. Appeal and error, § 267*—piecemeal review. Reviewing courts will not pass upon a case piecemeal, especially where the holding upon review may he nullified by the result of the principal suit.
    Error to the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding. Heard in this court at the March term, 1919.
    Writ of error dismissed.
    Opinion filed June 16, 1919.
    Miller, Starr, Brown, Packard & Peckham, for plaintiff in error; Thomas McCall, of counsel.

      Joel Baker, for defendant in error.

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

   Mr. Justice McSurely

delivered the opinion of the court.

Plaintiff’s suit, brought July 31, 1918, was on account stated and for goods sold and delivered to defendant, a Delaware corporation, in the amount of $2,383.43. Service was had on George C. Peterson as agent of the defendant. Appearance, with a demand for a jury trial, was entered, and subsequently, on October 14th, defendant filed its affidavit of merits setting up the defense of payment. Prior to the hearing, plaintiff filed its affidavit for attachment in aid, asserting that defendant was a nonresident of Illinois, and naming the South Side State Bank as garnishee; the defendant filed its special appearance for the purpose of traversing the affidavit for attachment, and in support of a motion to quash the same filed an affidavit setting up that on August 15, 1917, it was granted a license to do business in the State of Illinois; that its principal place of business was in Chicago, where it had an agent for the purpose of accepting service, and that all of its officers and directors were residents of the 'State of Illinois.

The trial court evidently considered the defendant not a nonresident within the meaning of the Attachment Act, and quashed the writ of attachment in aid, and denied plaintiff its prayer, of appeal for the reason that the .order so entered was not final. It is here sought by writ of error to have reversed the order quashing the attachment.

Is this a final order which may be brought for review before there is a judgment in the principal suit? We hold that it is not. The attachment rests upon the principal suit; should the plaintiff there fail, the attachment falls regardless of its merit. Beviewing courts will not pass upon a case piecemeal, especially where the holding upon review may be nullified by the result of the principal suit. The order quashing the attachment is merely a ruling on a feature of the case incidental to the main claim. As stated in Rosenthal v. Board of Education, 239 Ill. 29 : “A judgment or a decree is only final and appealable when it terminates the litigation between the parties on the merits of the case, so' that when affirmed the court below has only to proceed with the execution of the judgment or decree. ’ ’

The writ of error will therefore be dismissed.

Writ of error dismissed,


author: Mr. Justice Me Surely

text:
    Helena Siedleczski and Czeslawa Siedleczski, by Helena Siedleczski, Appellees, v. Brotherly Aid Society of Prince Joseph Poniatowski, by Charley Karwawski, President, Appellant.
    Gen. No. 25,020.
    1. Insurance, §§ 746, 748

      —where contract of member of benefit society found. The contract between a benefit society and its members is contained in the certificate, if there be one, the constitution and by-laws, and the statute of the State under which' the society is formed.
    2. Insurance, § 749*—when by-law within scope of objects of benefit society. Under the charter of a benefit society, stating the object of the society to be “mutual aid and assistance to its members and their families,” etc., a by-law providing for the payment of funeral expenses and a payment to the family at the time of the member’s death was clearly contemplated by and within the scope of the objects of the society.
    3. Insurance, § 749*—when contract of benefit society for death claim will be valid. The contract for a death claim, of a benefit society organized under the act of 1872 (J. & A. If 2418 et seq.), which gave no power to do business of a fraternal beneficiary society, was recognized as legal and enforceable, after the passage of the Fraternal Beneficiary Act of 1893 (J. & A. If 6646 et seq.), which gave such power.
    Appeal from the Municipal Court of Chicago; the Hon. Irwin R. Hazen, Judge, presiding. Heard in this court at the March term, 1919.
    Affirmed.
    Opinion filed June 16, 1919.
    Rehearing denied June 30, 1919..
    Frank Greskowiak, Andrew Kucharski and Ewart Harris, for appellant.
    Olene Lapham, for appellees.

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

   Mr. Justice Me Surely

delivered the opinion of the court.

Plaintiffs brought suit for $300, the amount of a death benefit which they claimed as members of the family of Thomas Siedleczski, a deceased member of defendant’s society, payable under one of its by-laws. On trial by the court upon a stipulation of facts, judgment was entered for the amount claimed in favor of the plaintiffs. Defendant asks that this be reversed.

The by-law referred to provides that upon the death of a member the Society of Prince Joseph Poniatowski shall immediately pay $50 for funeral expenses and $250 to his family.' It is stipulated that plaintiffs-are members of the family, that deceased was in good standing and the by-law in force at the time of his death, and that no part of this money has been paid.

The only point of defense presented is that under the defendant’s charter this by-law providing for the payment of death benefits is ultra vires. The contract between a benefit society and its members is contained in the certificate, if there be one, its constitution and by-laws, and the statutes of the State under which it is formed. Alexander v. Parker, 144 Ill. 355; Nowak v. Murray, 127 Ill. App. 125. Defendant’s charter or certificate of organization states that “the object for which it is formed is mutual aid and assistance to its members and their families, and progress in the spirit of its country, purely charitable and not for pecuniary profit,” We are of the opinion that the by-law providing for funeral expenses and a payment to the family at the time of the member’s death is clearly contemplated by and within the scope of the objects of the defendant society, namely, “mutual aid" and assistance to its members and their families,” as stated in the certificate of organization. Similar language in the charters of similar societies has been so construed in Young Men’s Protestant Temperance & Benevolent Society v. City of Fall River, 160 Mass. 409; Norwegian Old People’s Some Society v. Wilson, 176 Ill. 94; Boyd v. State, 53 Ala. 601. These words in the charter distinguish the facts here from those under consideration in Society of St. Stephen v. Sikorski, 141 Ill. App. 1, where the sole object of the society stated in the certificate of incorporation was “for religious and social purposes.”

Defendant further says that it was incorporated in 1907, under the act of 1872, which gives it no power to do the business of a fraternal beneficiary society, and that the legislature having acted upon the matter of fraternal beneficiary societies by the act of 1893 and its amendments, this latter act controls exclusively the payment of death benefits such as are provided for in the by-laws in question. It is sufficient to reply that in a number of cases in our courts where the societies were organized under the act of 1872, the contract for a death claim was recognized as legal and enforceable, after the passage of the Fraternal Beneficiary Societies Act of 1893. Such cases are Norwegian Old People’s Home Society v. Wilson, 176 Ill. 94; Dunbar v. Royal League, 184 Ill. App. 1; Nowak v. Murray, 127 Ill. App. 125.

In the act of 1872, sec, 31 (J. & A. 2449), it is provided:

“That corporations, associations and societies, not for pecuniary profit, formed under this act * * * may make by-laws not inconsistent with the Constitution and laws of this State or of the United States * * *. Associations and societies which are intended to benefit the widows, orphans, heirs and devisees of deceased members thereof, and members who have received a permanent disability, and where no annual dues or premiums are required, and where the members shall receive no money as profit or otherwise, except for permanent disability, shall not be deemed insurance companies.’-’

This would seem to include and contemplate the payment of death benefits to members of the deceased’s family, as was specifically provided for by the defendant’s by-law. As was said in Dunbar v. Royal League, 184 Ill. App. 1, where the defendant was organized under the act of 1872, the only effect of the act of 1893 in regard to beneficiaries was to restrict the scope of fraternal societies, in respect to the persons who might be beneficiaries.

There is force in the suggestion that the defendant corporation could not have organized under the act of 1893, which provides for an initial membership of not less than 500 persons, and that small associations like the defendant society, with a small membership, would not be able to organize at all if -it were not for the act of 1872, and that it was the intention of the legislature by not repealing the act of 1872 to protect such small societies.

We are of the opinion that the by-law in question was permitted under the act of 1872 and within the objects of the defendant society as stated in its certificate of incorporation. It was therefore wholly within the powers of the defendant to enact such a by-law, and hence the contention that it is void as ultra vires cannot avail. The judgment is right and is affirmed.

Affirmed.


author: Mr. Presiding Justice Thomson

text:
    Harry Bruno, Appellee, v. City of Chicago, Appellant.
    Gen. No. 24,213.
    1. Municipal cobpobations, § 440

      —what is measure of damages for injury to property caused by blasting by city. In an action against a city to recover damages for injury caused to plaintiff’s building by dynamite blasts incident to the construction of a tunnel, the measure of damages was the difference between the value of plaintiff’s property before and after the building of the tunnel, resulting from the particular things complained of in plaintiff’s bill of particulars.
    2. Eminent domain, § 260*—right of owner to sue for damaging of property for public use. Under our constitution an owner, whose property has been damaged for a public use under legislative authority, may bring just such an action for damages as he could have brought at common law where the work was done without legislative authority.
    3. Municipal cobpobations, § 449*—when declaration in action against city for injury to property from blasting sets up good cause of action. A declaration which states that plaintiff’s property has been damaged by defendant city in the building of a water tunnel in connection with the water system, sets up a good cause of action without more.
    4. Municipal cobpobations, § 449a*—what damages recoverable under bill of particulars in action against city for injury to property from blasting. Under a bill of particulars filed by plaintiff in an action against a city to recover damages for injuries to plaintiff’s building caused by dynamite blasts incident to the construction of a tunnel, recovery could be had for only such depreciation in the value of the property as was the result of the particular items set forth in such bill of particulars.
    5. Municipal cobpobations, § 449a*—what evidence inadmissible under bill of particulars in action against city for injury to property from blasting. In an action by an owner against a city to recover damages to plaintiff’s building caused by dynamite blasts incident to the construction of a tunnel, plaintiff could recover only for such depreciation in value as was the result of the items set forth in his bill of particulars, and as alleged structural or hidden defects were not therein set forth, it was error to admit any evidence as to any structural or hidden defects.

      6. Municipal corporations, § 450

      —what evidence competent in action against city for injury to property from blasting. In an action by an .owner against a city to recover damages to plaintiff’s building caused by dynamite blasts incident to the construction of a tunnel, where plaintiff in his declaration made out a common-law right of action for damages suffered by his property for a public use, but itemized the cost of repairing defects in his bill of particulars, it was error to exclude testimony of the cost of repairing such defects, as, although the measure of damages was the depreciation in the market value of the property, the testimony was competent to show that the damages complained of were capable of full repair, and the cost of such repairs.
    7. Municipal corporations, § 449*—what is effect of bill of particulars in action against city for injury to property from blasting. Although the depreciation of the market value of the property in question, by the construction of a tunnel by a city, was the measure of damages in an action by the owner, plaintiff was limited in his recovery to the cost of making the repairs itemized in his bill of particulars, because if the property could be restored to its condition and market value prior to the damages, that represented the depreciation, and if there was no depreciation there could be no recovery, regardless of the question of the cost of repairs.
    Appeal from the County Court of Cook county; the Hon. J. J. Cooke, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    Samuel A. Ettelson, for appellant; Ralph Q-. Orandall, of counsel.
    Daniel S. Wentworth and David B. Maloney, 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 Thomson

delivered the opinion of the court.

By this action the plaintiff, Bruno, sought to recover damages from the defendant, City of Chicago-, on account of injury to his two-flat building which he alleged had been caused by dynamite blasts incident to the construction of a water tunnel near by. The declaration alleged, that the defendant “did proceed with said work in such a careless, negligent and reckless manner and with an ntter disregard to the rights of the plaintiff * * * and did so construct said tunnel that the walls of said tunnel or sewer did crack, crumble and fall in, carrying with them a large amount of earth, and did so blast the ground or earthwork around said sewer or tunnel that the same caused the earth in the adjacent vicinity to vibrate and crack which said caving in, crumbling and vibration of the earth or soil in the immediate vicinity of said sewer or tunnel did cause the foundations of the plaintiff’s house to sink and crack and did cause the walls of the plaintiff’s house to crack and become out of plumb and did cause the floors of the plaintiff’s house to settle out of shape, and did otherwise greatly injure and damage the house of the plaintiff. ’ ’

On the defendant’s motion the plaintiff was later required to file a bill of particulars, which was as follows: “Damage done by reason of tunnel blast, as follows, to wit: Building: the roof cracking, causing leaks. Cracks in foundation on west side wall. First flat: * * * (Here were specified a number of cracks in the ceilings and walls of the various rooms, —a brick mantel pulled away from the wall and doors, .sills, frames, etc., jarred out of shape.) Second flat: * * * (Here followed a list of alleged damages similar to those specified with regard to the first flat.) To the damage of the plaintiff in the sum of $1,000.”

As to the damages which the plaintiff claimed his property had suffered, the testimony was as follows: The plaintiff, his tenants, a Mrs. Peck who had had occasion to visit the tenants occasionally, one Enright, a building contractor, and one Johnson, a general contractor who had done some plastering and decorating for plaintiff in repairing the alleged damages, testified as to the cracks and other damages specified in the bill of particulars. Enright also testified that there were elements of damage to the building that were not apparent to the eye “which may be brought to the surface at some future time. * * * The walls * # *. No telling to what extent they may have been damaged. From the evidences that I have seen on the inside, which don’t permit me to make examination of the walls behind the plaster, I would not now—I couldn’t say unless the lath and plaster was removed.” He said these defects he was referring to were defects that could not be seen but which he thought might be there; that he did not know of his own knowledge that there were any hidden defects; that the only way to determine that would be to take down the walls. He testified further that the visible defects (those specified in the bill of particulars) could be repaired and restored just as completely as though they had been caused by natural causes.

Johnson testified that after he had repaired the cracks you could “see them very faintly,—you can find where the cracks were. * * * In order to make the building in the shape it ought to be * * * I would have the plaster off and replaster it.” Enright testified the entire second flat could be replastered at a cost of $200. One Hanna also testified that the visible damages could be repaired hut “there still remains damage to the building that no one can see, that causes the property to lose its reputation, and which affects its market value.” On cross-examination he said he did not know that there were any latent defects in the building. Enright also testified, “there has been no land damage that I know of,” and the plaintiff himself testified, “there has been no depreciation in the value of the land on account of the construction of the tunnel.” This was all the testimony submitted in behalf of the plaintiff as to what his damages were. The plaintiff submitted no testimony as to the cost of repairing the alleged damages to his building. The only statement on that subject by any of his witnesses was the one by Enright that the second flat could be replastered for $200. This was on cross-examination. Over defendant’s objection, the plaintiff, Enright and Hanna testified that there had been a depreciation in the fair market value of the plaintiff’s premises as a result of the damages and gave their estimates of that depreciation, based, in part, on so-called hidden defects.

The witnesses for the defendant were one 'Samuels, assistant city engineer, and one Knight, deputy building commissioner of the City of Chicago, and a man named Eeasor, a contractor. Their testimony was to the effect that the visible defects or damages to the building may have been due in part to the explosions, but that they were very largely due to the shrinking of the materials used in the construction of the building ; that there were no latent, invisible structural damages to the building; that the structural parts of the building were in perfect condition; that it was possible to repair and restore the walls and ceilings so as to put them back in their original condition (this fact was expressly admitted on the trial by the plaintiff’s counsel); and that they in fact had been repaired and restored and that “the present condition of the walls in the two apartments is as perfect as the interior of this court room.”

The defendant endeavored to prove, by the testimony of witnesses who had examined plaintiff’s building, the cost of repairing it. The trial court sustained objections interposed by the plaintiff to this testimony on the ground that the cost of repairing was not the proper measure of damages and that it had no value as evidence.

In urging that the judgment of the trial court should be reversed, the defendant contends that it was error to hold that the measure of damages, applicable to the case, was the depreciation in the value of the plaintiff’s property, and that the court should have held that the true measure of damages was the cost of repairing the plaintiff’s building. The defendant further contends that this must be so because that is the case made out by the plaintiff’s pleadings.

Under the authority of Pech v. Chicago Rys. Co., 270 Ill. 34, we are of the opinion that the measure of damages in this case was such difference in the market value of the plaintiff’s property, before and after the building of the tunnel, as resulted from the particular things complained of by the plaintiff in his bill of particulars.

Under the common.law and prior to the adoption of any constitutional provision on the subject, the owner of private property could sue for damages suffered by his property for a public use, but if a public improvement or other work for a public use were authorized by legislative enactment and the work was done in the manner specified by that authority, and damage resulted to private property, the owner was without remedy. To relieve this situation the constitutional provisions, to the effect that private property cannot be taken or damaged for a public use without just compensation, were adopted. These provisions are a limitation on the legislative authority and make the rights of the property owner, in this respect, just what they were under the common law prior to the adoption of any constitutional provision on the subject and in the absence of any legislative enactment. So that to-day, under our constitution, where .one’s property is damaged for a public use under legislative authority, he may bring just such an action for damages as he could have brought at common law where the work was done without legislative authority. Rigney v. City of Chicago, 102 Ill. 64; Otis Elevator Co. v. City of Chicago, 263 Ill. 419; Barnard v. City of Chicago, 270 Ill. 27, 33. Therefore, under our present law, a declaration which states that the plaintiff’s property has been damaged by the defendant, a municipal corporation, in the building of a water tunnel in connection with its water system, sets up a good cause of action without more. No alleg*ations about the work having been done with legislative authority or in accord with that authority are necessary.

While the plaintiff’s pleadings do make charges of negligence, they also contain such allegations as make out a right of action for damages suffered by the plaintiff’s property for a public use. But under his bill of particulars the plaintiff could recover for only such depreciation in the value of his property as was the result of the particular items set forth in his bill of particulars, and therefore it was error to admit any evidence as to any alleged structural or hidden defects. Morton v. McClure, 22 Ill. 257; McDonald v. People, 126 Ill. 150; George H. Hess Co. v. Dawson, 149 Ill. 138; Star Brewery v. Farnsworth, 172 Ill. 247; Casey v. Vandeventer, 76 Ill. App. 628; O’Leary v. People, 88 Ill. App. 60; City of Chicago v. Rustin, 99 Ill. App. 47; Colwell v. Brown, 103 Ill. App. 22; American Rolling Mill Corporation v. Ohio Iron & Metal Co., 120 Ill. App. 614; Quandt v. Ernst, 143 Ill. App. 299.

It was also error to exclude the testimony which was offered on the cost of repairing the defects set forth in the plaintiff’s bill of particulars. In a case of this kind the plaintiff should be allowed to recover whatever amount the evidence shows will be sufficient to make him whole, and while, in such a case, as in this, the measure of damages is the depreciation in the market value of the plaintiff’s property, it is always proper to show by the evidence that the damages complained of are capable of full repair, and also what it will cost to make such repairs, and if the evidence establishes the fact that the damages are capable of full repair so that the plaintiff’s property can be restored completely to the condition in which it was before the damages were suffered and to the same market value, then the plaintiff should be limited in his recovery to the cost of making those repairs, for in such a case that represents the depreciation, brought about in the value of his property, by the damages complained of. Of course, if there has been no depreciation in the value of the property there can be no recovery, regardless of the question of the cost of repairs. Peck v. Chicago Rys. Co., supra.

For the reasons stated the judgment of the County Court is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.


text:
    John Levin, Appellant, v. Thomas H. Costello, Appellee.
    Gen. No. 24,406.
    1. Malicious prosecution, § 82

      —when error to direct verdict for defendant. Directing a verdict for the defendant in malicious prosecution against a police officer for alleged illegal arrest and false imprisonment was error, where the testimony was conflicting on the issues as to whether plaintiff had committed the crime of receiving stolen property, and as to whether he had been illegally restrained of his liberty by reason of unwarranted delay in the matter of opportunity of furnishing bail.
    2. False imprisonment, § 8*—when police officer liable. Under the Criminal Code (J. & A. f 4037), providing that an arrest may be made by an officer or by a private person, without warrant, for a criminal offense committed or attempted in his presence, and by an officer when a criminal offense has in fact been committed and he has reasonable ground for believing that the person to be arrested has committed it, an arrest made by an officer without a warrant for alleged crime not committed in his presence is illegal if the crime has not been actually committed, and if an arrest is followed by imprisonment, the officer is liable in an action for false imprisonment, notwithstanding he may have had reasonable and probable cause for believing that a crime has been committed by the person so arrested.
    3. Malicious prosecution, § 58

      —when burden of proof on defendant. The burden of establishing the affirmative of the issue as to whether plaintiff in malicious prosecution against an officer had in fact committed the crime of receiving, stolen property, was upon the defendant.
    4. False imprisonment, § 26*—when burden of proof on defendant. Under the Criminal Code (J. & A. If 4037), relating to arrests without a warrant, the establishing of the affirmative of the issue as to whether plaintiff in a suit for false imprisonment against an officer had in fact committed the crime of receiving stolen property was on the defendant, and therefore it was necessary for him to satisfy the' jury beyond a reasonable doubt that plaintiff had committed the crime.
    5. Arrest, § 22*—when illegal to fail to place charge against prisoner. While under the Criminal Code (J. & A. If 4037) a prisoner can he detained over night without being “booked,” if it is necessary, a police officer has no right to arbitrarily refuse to place a formal charge against a prisoner so as to prevent him from obtaining bail.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    E. C. Mapledoram, for appellant.
    Samuel A. Ettelson, for appellee; George Kandlik, of counsel.

      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 Thomson

delivered the opinion of the court.

The plaintiff, John Levin, brought this action against the defendant, Thomas H. Costello, to recover damages for an alleged illegal arrest and false imprisonment of the said plaintiff by the said defendant, the latter being a captain of the police of the City of Chicago. At the close of all the evidence, on motion of the defendant, the court instructed the jury to return a verdict of not guilty. A judgment was entered against the plaintiff for costs, to reverse which he has brought the case to this court on appeal.

The plaintiff had been an owner and operator of a restaurant in the City of Chicago for some years. He purchased a diamond ring from one Cleary for $65. Cleary had been an occasional customer of the restaurant and lived across the street from the restaurant with his mother, brother and sisters. . The plaintiff testified that he never had any suspicion of his being a thief. At the time he came in to sell the ring, Cleary said he bad won it in a dice game. Within a few days the plaintiff sold the ring to another, through one Gordon, for $150. About a week later two policemen called at the plaintiff’s restaurant and in answer to an inquiry from them he stated the facts about his purchase of the ring as given above. They told him the ring had been stolen, whereupon, he testified, he called up Gordon asking him to get in touch with the purchaser of the ring and tell him to hold it as the police had informed him that it was a stolen ring. The plaintiff went over to the police station, several blocks from the restaurant, and talked to the defendant, who told him to go and get the ring and give it to Norton, a detective sergeant at the station. Plaintiff testified that he conferred with his lawyer and saw Norton the following day, telling him that his lawyer had advised him to tell him where the ring could be found, which he did, suggesting that if the police went and saw the ring and had it identified as the one which had been stolen, he would return the money to the man who had purchased it and the police could take the ring, but that Norton told him to gd and get the ring as the captain had told him to or “I will slap you into the can.” Plaintiff replied that he had told them where the ring was and then he returned to his restaurant. A week later the police came to bis restaurant again, saying that the captain wanted to see him and the plaintiff went over to the station and saw him, whereupon, the plaintiff testified, the defendant, in language far more forceful than elegant, commented on the fact that he had conferred with his lawyer instead of following his directions to go and get the ring and turn it over to Norton and that, he replied, “All you have to do is swear a warrant out for me, ,and book me, and I will * * * furnish the bond.” Plaintiff says that the defendant advised him there would be “no booking or bail in this case. I will slap you downstairs, and hold you there, and then send you over on the north side * * * and hold you in the county jail until you rot there, and then I will book you.” The plaintiff then asked if he might telephone his wife, which request was refused; that the defendant acted as though he was drunk; that Norton, at the defendant’s request, took him to the desk sergeant to whom he was required to deliver his valuables, after which he was locked up in a cell without any warrant or process being served upon him. This was about 8 o’clock in the evening. The following morning a writ of habeas corpus was issued by one of the judges of the Circuit Court, in response to which the plaintiff was taken from his cell about noon and started for the county building in a patrol wagon, stopping at another police station on the way, where one of the officers got out and procured a warrant. When they arrived at the court room of the judge who had issued the habeas corpus writ, it appearing that a warrant had been issued, the plaintiff was remanded to the custody of the police and was immediately taken before one of the judges of the Municipal Court and the amount of his bail being fixed, he was soon released on proper bonds. The warrant charged the plaintiff with receiving stolen property. Shortly thereafter, upon a hearing in the Municipal Court on this charge, Levin was discharged, the prosecuting witness from whom the ring was alleged to have been stolen having taken the witness stand and testified that the ring in question was not her ring. After his discharge Levin returned to the police station for his valuables and signed a receipt for them in a book in which a list of them was recorded and he testified that he noticed the words “no charge” written across the page containing a list of his belongings. About 10 o’clock on the evening of the plaintiff’s arrest and imprisonment, one Olson visited the station and saw the sergeant and lieutenant, asking permission to see Levin, stating that he wanted to furnish a bond for his release. He was not permitted to see him. About midnight, one McDowell, a lieutenant of police attached to a different station, who had known the plaintiff for about 8 years, talked with the defendant Captain Costello asking him what he had the plaintiff locked up for and if there was any chance to have bim booked that night, and the defendant replied that he had bim locked up for receiving stolen property and that he would not book him that night.

The defendant testified that he learned that Cleary and one Findlay had committed a robbery involving some jewelry. Cleary was never apprehended but Findlay was and he told the defendant that they had sold one of the rings they had stolen to the plaintiff. He testified further that when the plaintiff first came to the station he asked for 24 hours to bring the ring in, which he granted, and that a week having gone by without anything being done, he sent for the plaintiff again and that this timé the plaintiff told bim he had seen his lawyer and that you “haven’t got a damn thing to do with it”; that he told the plaintiff he would lock him up for receiving stolen property if he did not bring the ring in and the plaintiff replied, “G-o ahead and lock me up.” The defendant took the position that he was justified in believing that the plaintiff was guilty of the crime of receiving stolen property because he admitted buying a ring from Cleary for $50 or $65 and selling it for $150, and refusing to bring it in to the station. He testified: “When he would not give the ring to me or Norton I made up my mind to put him down in a cell. * * * I told the desk sergeant to lock him up for committing a felony. I would not permit Levin to give a bond because we had to investigate.” The defendant alleged that he was sober on the night of the arrest and that the plaintiff did not ask to telephone to his wife before he put him in a cell. There was other testimony by the officers who visited the plaintiff on the occasions referred to at the restaurant which is not important.

On this conflicting testimony the issues involved should have been submitted to the jury, and it was error to instruct them to return a verdict of not guilty. Paragraph 4037 (J. & A. Hlinois Statutes) of our Criminal Code provides as follows: “An arrest may be made by an officer or by a private person without warrant, for a criminal offense committed or attempted in his presence, and by an officer, when a criminal offense has in fact been committed, and he has reasonable ground for believing that the person to be arrested has committed it. ’ ’ Where an officer makes an arrest without a warrant for an alleged crime which has not been committed in his presence, such arrest is illegal if the crime has not actually been committed, and if an arrest is followed by imprisonment, the officer will be liable in an action for false imprisonment notwithstanding he may have had reasonable and probable cause for believing that a crime had been committed by the person so arrested. Wood v. Olson, 117 Ill. App. 128; Markey v. Griffin, 109 Ill. App. 212. In such a case the absence of malice or the presence of probable cause constitutes no defense, and the allegations in the declaration alleging malice or the want of reasonable or probable cause on the part of the defendant are surplusage. Johnson v. Von Kettler, 84 Ill. 315; Wood v. Olson, sufra; Markey v. Griffin, su pra. These cases are in point although they did not involve the charge of a felony; the same rules have been applied in a situation where the plaintiff had been charged with the commission of a felony. Hight v. Naylor, 86 Ill. App. 508.

Under the law and. the evidence in the record in this case there were two questions for the jury to determine. The first one was as to whether the plaintiff had in fact committed the crime of receiving stolen property. The burden of establishing the affirmative of that issue was upon the defendant. Conkling v. Whitmore, 132 Ill. App. 574; Wood v. Olson, supra. In view of the provisions of our statute as quoted above, this is a necessary element of a successful defense in an action for false imprisonment, and therefore it would be necessary for the defendant to satisfy the jury, beyond a reasonable doubt, that the plaintiff had committed the crime of receiving stolen property. McGonnel v. Delaware Mut. Safety Ins. Co., 18 Ill. 228; Harbison v. Shook, 41 Ill. 141; Sprague v. Dodge, 48 Ill. 142; Germania Fire Ins. Co. v. Klewer, 129 Ill. 599; McInturff v. Insurance Co. of North America, 248 Ill. 92.

The second issue for the jury to determine in this ease was whether the plaintiff had been illegally deprived of his liberty, by reason of an unreasonable and unwarranted delay by the defendant in giving him an opportunity to furnish bail. While, under our statutes, a prisoner can be detained over night without being “booked,” if it is necessary, a police officer has no right to arbitrarily refuse to place a formal charge against a prisoner so as to prevent him from obtaining bail. It is true, as the defendant contends, that he did not have the power to fix Levin’s bail or accept his bond, but it is further true, that the law does not give him the power to determine that a prisoner should be deprived of the opportunity of furnishing bail, and it is his duty to “book” the prisoner upon a definite charge as soon as that can reasonably be done, so that an application may be made in his behalf, before the proper authority, for the fixing of bail and the providing of a proper bond. Markey v. Griffin, supra. A prisoner might be guilty, yet, if he was illegally restrained of his liberty, the person so illegally restraining him would be guilty of false imprisonment and liable for at least nominal damages. Conkling v. Whitmore, supra.

We, of course, do not presume to pass upon the merits of the issues we have referred to. It was error not to submit these issues to the jury for their determination. It might be that they would have concluded, from the evidence beyond a reasonable doubt, that the plaintiff had committed the crime of receiving stolen property and that he had not been illegally restrained of his liberty, by reason of any unwarranted delay in the matter of opportunity of furnishing bail, in which case their verdict would have been not guilty, or they might have determined either of the issues the other way, in which case they would be at liberty to assess proper damages.

For the reasons stated and in order that the issues may be submitted to a jury, the judgment of the Circuit Court is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.


text:
    Logan Square Trust & Savings Bank, Appellee, v. John E. Traeger, Sheriff, Appellant.
    Gen. No. 24,506.
    1. Chattel mortgages, § 203

      —when retention of possession by mortgagor is fraudulent as to creditors. Under a chattel mortgage which showed upon its face that it was given to secure an indebtedness not merely pre-existing, but which had matured some 2 months previous to the time the mortgage was given, the retention of the possession of the mortgaged chattels by the mortgagor was inconsistent with the terms of the mortgage, and such possession was therefore fraudulent per se and void as to creditors.
    2. Fraudulent conveyances, § 18*—when chattel mortgage is invalid as to creditors. The rule that it is proper to give a chattel mortgage to secure future advances did not, as against creditors, avail a bank which relied upon a chattel mortgage securing a debt which had matured before the giving of the mortgage, and also relied upon the prior mortgage given to secure such debt, as security for the running indebtedness of the corporation in question, where the last mortgage stated on its face that it was given to secure the specific indebtedness, viz., that represented by the note described in the prior mortgage.
    3. Fraudulent conveyances, § 18*—when chattel mortgage is invalid as to creditors. Even had the effect of the mortgage in question, given 2 months after the maturity of the debt which had been secured by a prior mortgage, been to postpone the maturity of the indebtedness and to convert it into a demand loan, the note was, as to creditors, to be considered as having matured the day after the mortgage was given.
    4. Chattel mortgages, § 203*—when delay of mortgagee in taking possession is unreasonable. Under the statute making a chattel mortgage null and void as to third parties, unless the mortgagee takes possession within a reasonable time after the maturity of the secured debt (J. & A. 7576), a delay of 2 months after the maturity in taking possession was unreasonable.
    Appeal from the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed July 2, 1919.
    Rehearing denied July 16, 1919.

      Max Luster, for appellant.
    John J. Sonsteby, for appellee; Earl C. Hales, of counsel.

      See Mil” is Note- Merest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

This was a suit in replevin, brought by the plaintiff bank, to secure possession of certain property in the hands of the defendant sheriff, which had been taken by him under an execution. The issues were presented to the trial court without a jury under a stipulation of facts and the court made a finding- of property in the plaintiff with damages of one cent and entered judgment accordingly, from which the defendant has appealed.

A certain partnership, engaged in conducting a billiard parlor, being indebted to the plaintiff bank in sums aggregating $2,500, gave the bank a note for that amount dated April 22, 1915, due 2 years after date, and on the same day they executed and delivered to the bank a chattel mortgage to secure their note, which mortgage covered the goods and chattels used by them in conducting the billiard parlor. During that summer they incorporated their business and conveyed the chattels in question to the corporation, subject to the indebtedness to the bank. It appears from the agreed statements of facts that the corporation made payments on that indebtedness to the bank from time to time and on October 6, 1916, the corporation gave the bank a new note under that date, for the amount of its then indebtedness, which was $1,250, this note being payable 90 days after date. At the time of filing this suit the indebtedness of the corporation to the bank was $1,250, with interest from October 6,1916. The stipulated statement of facts was further to the effect that in making advances to the ‘corporation, from time to time, the bank was relying on the chattel mortgage above referred to, and also a further mortgage executed by the corporation on June 8, 1917, which was duly acknowledged before the clerk of the Municipal Court of Chicago and recorded in the recorder’s office of Cook county, Illinois. This mortgage covered the same property included in the previous one, and after the usual clauses of conveyance, the mortgage of June 8, 1917, proceeded as follows:

“Provided, nevertheless, that if the said mortgagor, its successors, shall well and truly pay unto the said mortgagee, its successors or assigns, the sum of Twenty-five Hundred Dollars ($2,500.00) evidenced by principal note for said amount, dated April 22, 1915, due on or before 2 years after date, signed by Emil L. — Henry, A., — and Otto E. Sawalish, and made payable to Logan Square Trust and Savings Bank, with interest at the rate of seven per cent (7%) per annum after due date until paid, then the said mortgage is to be void, otherwise to remain in full force and effect.”

Subsequently a judgment was obtained against the corporation, by its landlord, for $1,684.84, being the amount of the rent of the premises occupied by it for the months of July, August, September and October of 1917. It was further stipulated that the note referred to in the chattel mortgage of June 8, 1917, was the note referred to in the previous mortgage executed by the partnership.

The sole question involved in this case is whether the chattel mortgage executed by the corporation on June 8, 1917, was good as against the judgment creditor. It is clear that it was not. Assuming that the chattel mortgage in question was properly executed, acknowledged and' recorded, the mortgage was of no legal effect whatever, for it appeared from its face that it was given to secure an indebtedness, not merely pre-existing but which had matured some 2 months previous to the time the mortgage was given. Retention of the possession of the mortgaged chattels by the mortgagor under such circumstances was inconsistent with the terms of the mortgage and such possession was therefore fraudulent per se and void as to creditors. Jones v. Noel, 139 Ill. 377.

It is argued that it is proper to give a chattel mortgage to secure future advances and that the bank was relying upon this chattel mortgage and also the prior one as security for the running indebtedness of the corporation. This can avail the plaintiff nothing, for the mortgage in question, as stated on its face, was given to secure a specific indebtedness, namely, that represented by the note dated April 22, 1915, and due 2 years after that date. Where a chattel mortgage is given to secure a particular indebtedness, therein set forth, the mortgagee cannot claim ihe mortgaged property as security for a debt entirety separate from that described in the mortgage as against subsequent creditors. Bank of Utica v. Finch, 3 Barb. Ch. (N. Y.) 293.

From the argument made to the trial court by counsel for the plaintiff as it appears in the record, it would seem that one of the plaintiff’s contentions is that the chattel mortgage of June 8, 1917, although not operating to extend payment on the note therein referred to, did have the effect of postponing the maturity of the indebtedness and converting it into a demand loan and that, as such, it had not matured at the time the judgment creditor secured her judgment against the corporation. We are of the opinion, however, that this is not the case and that the indebtedness attempted to be secured by this chattel mortgage had fully matured, according to the facts appearing on the face of the mortgage itself, some time prior to this date, and furthermore, even if the indebtedness had been so changed as to he given the form contended for by counsel in the argument referred to, it would have to be considered as having matured the day after the mortgage was given. Albert Pick & Co. v. Spoor, 212 Ill. App. 612.

Under our statute a chattel mortgage becomes null and void, as to third parties, unless the mortgagee takes possession of the mortgaged chattels within á reasonable time after the debt thus secured has matured. This mortgage was not given until 2 months after the debt to secure which the mortgage stated it was given, had matured. It was, therefore, void and of no effect whatever as to third parties.

For the reasons stated it was error to find the property and chattels in question in the plaintiff, and therefore the judgment of the Superior Court is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion.

Reversed and remanded.


author: Mr. Justice O’Connob

text:
    Delia Long, Plaintiff in Error, v. Joseph Schlitz Brewing Company, Defendant in Error.
    Gen. No. 24,317.
    1. Landlord and tenant, § 206

      —when landlord not required to make repairs. In this State the rule of caveat emptor applies in the letting of property, and the landlord is not bound to make repairs unless he has agreed to.
    2. Landlord and tenant, § 226*—when landlord required to notify tenant of defects. Where there are concealed defects in demised premises at the time of the letting, which are dangerous to the tenant but which are unknown or which a careful examination would not disclose to the tenant, hut the condition is known to the landlord, it is his duty to notify the tenant, and for a failure to so notify, the landlord is liable for whatever damages the tenant suffers therefrom; but no such duty is imposed upon the landlord to notify the tenant of defects which the landlord discovers after the beginning of the tenancy.
    3. Landlord and tenant, § 257

      —when declaration in action for injuries from defect in premises does not state cause of action. A declaration in an action by a tenant for injuries sustained by the giving way of a railing in connection with premises occupied by him under a sublease containing no covenant to make repairs, against the landlord’s assignee, stated no cause of action, in the absence of an averment that the railing was known to have been defective at the time of the making of the original lease, or at the time of the-making of the sublease, the only allegation having been that defendant knew, or in the use of due care should have known, of the defective condition on or before the date of the accident.
    Error to the Superior Court of Cook county; the Hon. Joseph B. David, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Trainor & Tbainob, for. plaintiff in error; Charles J. Tbainob, of counsel.
    Milleb, Gobham & Wales, for defendant in error.

      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 O’Connob

delivered the opinion of the court.

Delia Long brought this action against the Joseph Schlitz Brewing Company and August Bladorn to recover for personal injuries sustained by her. At the close of plaintiff’s case the court directed a verdict for the defendant on the sole ground that the plaintiff had not proved that the defendant brewing company owned the premises in question at the time plaintiff was injured;

There are a number of points argued in the case, but, in the view we take of it, it will be unnecessary to dispose of but one of them, viz., did the declaration on which the cause was tried state a cause of action? If it did not, of course, the judgment must be affirmed.

The allegations, so far as it is necessary to state them, are: That on November 6, 1903, Annie M. Knapp owned certain premises improved by a two-story structure, and let them for a period of 10 years to the defendant Bladorn; that Bladorn entered into possession of the premises and conducted a saloon on the first floor; that in November, 1910, Annie M. Knapp sold the property and assigned the Bladorn lease to the defendant brewing company; that afterwards, in January, 1911, the defendant Bladorn sublet the flat on the second floor of the premises to the plaintiff and her husband, and that they immediately entered into possession and occupied it as a place of residence; that there was a rear porch to the flat around which was a wooden railing about three and a half feet high, which was rotten, dangerous and defective, but that this defect was concealed and unknown to plaintiff and that a careful examination by her or her husband would not have disclosed it; that the defendant brewing company “knew and in the exercise of ordinary care would have known,” on and before the 26th day of April, 1911, of the concealed defect; that it was attended with danger to the plaintiff; that it negligently failed to inform the plaintiff or her husband of this defective and rotten condition; that while plaintiff was in the performance of her household duties, and in the exercise of ordinary care and caution for her own safety, she leaned against the rotten railing which gave way, and she fell to the ground and was injured.

Bladorn was not served with process and did not appear as a party to the suit, but testified for plaintiff.

The defendant contends that the case of Johnson v. Perkins, 167 Ill. App. 611, is directly in point and controlling.' There the plaintiff, who was the tenant, slipped and fell through an opening into a vault or catch basin which was on the premises, and the opinion of the court, holding that there was no cause of action stated in the declaration, was based on the theory that the defendant landlord was, under the law, not required to make repairs. In the instant case plaintiff claims that the defendant is liable, not for a failure to make repairs, but for a failure to notify her that the premises were defective and dangerous, so as to enable her to avoid being injured. It is clear that the case is not in point.

It is well settled in this State that in the letting of property the rule of caveat emptor applies, and that the landlord is not bound to make repairs unless he has agreed to do so. The tenant takes the property at his own risk as he finds it, and there is no implied covenant that it is fit for the purposes for which it is rented, or that it is in any particular condition. The landlord is, therefore, not. liable for damages in case the tenant is injured by reason of the premises being out of repair. But where there are concealed defects in the demised premises at the time of the letting, which are dangerous to the tenant but which are unknown or which a careful examination would not disclose to the tenant, but the condition is known to the landlord, or by the exercise of reasonable diligence should have been known to the landlord, it is his duty to notify the tenant, in order that he may guard against them, and for a failure to so notify the tenant, the landlord is liable for whatever damages the tenant suffers therefrom. Sunasack v. Morey, 196 Ill. 571. But no such, duty is imposed upon the landlord to notify the tenant of defects which the landlord discovers after the beginning of the tenancy. Shute v. Bills, 191 Mass. 433; Lyon v. Buerman, 70 N. J. L. 620; Holzhauer v. Sheeny, 127 Ky. 28, 104 S. W. 1034. And even if we assume (although we do not so decide) that the defendant brewing company might be liable to the plaintiff, its subtenant, under proper allegations, there is no averment in the declaration, that the raring was known to he defective to the brewing company at the time of the making of the original lease in 1903, nor at the time of the making of the lease to plaintiff in 1911, but the only allegation is that the defendant brewing company knew, or in the exercise of ordinary care should have known, of the defective condition “on or before the 26th day of April, 1911.” Manifestly the declaration did not state a cause of action against the brewing company.

The judgment of the Superior Court of Cook county is affirmed.

Affirmed.


author: Me. Pbesiding Justice O’Connor

text:
    Costantino Caliendo, Plaintiff in Error, v. Baltimore & Ohio Chicago Terminal Railway Company, Defendant in Error.
    Gen. No. 24,363.
    Judgment, § 347

      —when evidence insufficient to warrant setting aside judgment. A bill to set aside a judgment for $500 in a personal injury case entered in favor of a minor, 14 years old, who had lost one of his legs in the accident in question, was properly dismissed for want of equity, where from the testimony of complainant, who was the only witness, it appeared that complainant knew practically nothing of the facts and that although he was present at the proceedings which resulted in the judgment, he did not know what was going on, and the testimony was therefore too meager to overcome all the presumptions in favor of the judgment which followed a hearing before a jury.
    Error to the Circuit Court of Cook county; the Hon. Os cab E. Heard, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.

      A. Gr. Dicus, for plaintiff in error.
    Winston, Steawn & Shaw, for defendant in error; J. Sidney Condit, of counsel.

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

   Me. Pbesiding Justice O’Connor

delivered the opinion of the court.

The writ of error in this case is prosecuted to reverse a decree of the Circuit Court of Cook county, dismissing complainant’s bill for want of equity. Complainant filed his bill against the defendant praying that a judgment of $500 entered in his favor and against the defendant, in a suit brought in the Circuit Court of Cook county to recover for personal injuries, be vacated and set aside, and that the personal injury suit be set down for a trial before a judge and a jury. The defendant filed its answer to the bill and the cause was heard before the chancellor, the complainant alone testifying. At the close of complainant’s case, the court dismissed the bill for want of equity.

The record discloses "that on May 25, 1910, complainant was in the employ of the defendant and was then about 14 years of age; that it was his duty to carry water to a gang of men working for the defendant, and in his work he was required to go upon certain trains of the defendant; that he was severely injured while thus employed, necessitating the amputation of one of his legs; that he, by bis next friend, filed suit to recover for the injuries sustained in the Circuit Court of Cook county, and on May 5, 1911, filed a declaration to which the defendant filed a plea of not guilty; that shortly thereafter an agreement was entered into between counsel for the respective parties whereby a judgment for $500 was to be entered in favor of plaintiff and satisfied; that the parties appeared in court before a judge and a jury and a verdict and judgment were entered for $500, which was satisfied, and that he received $375 and his counsel $125. /

In the instant case, among other things, complainant testified that shortly after he was injured an acquaintance took him to a lawyer and suit was brought in his name by a person who appeared as his next friend, but that he did not know the person so appearing; that on the day judgment for $500 was entered, he went to court with his attorney; that he could not understand the English language, but could only understand and speak the Italian language; that on that trial he was not sworn and did not tell the jury how the accident happened; that he did not see any witnesses sworn to testify; that he “didn’t understand what they were talking about,” and in reply to a question as to whether any of the witnesses who saw the accident, answered, “I didn’t see anybody. I was only 13 years old and was small.” He further testified that his attorney took him into a small room and he was there about 5 minutes and his lawyer asked him, “are you satisfied with this money?” and he an.swered, “I don’t know—I don’t know what you are doing”; that they were in court about 5 or 10 minutes; that he received $375 in instalments; that his mother was dead and his father was living in Italy. He then testified: “Q. You couldn’t understand at all when two people were talking to one another in English, you couldn’t understand a word they said? A. No, nothing. Q. And you don’t know what the people said when they were in the court room, do you? A. No. Q. Mr. Barasa (his counsel) would talk to you in Italian, wouldn’t he? A. Yes. * * * Q. Did you see anybody when you were on the train? A. No, I didn’t see anybody. Q. Did you see the conductor? A. I saw two people but I don’t know who they were. The Court: Q. What kind of car was this, box car, stock car, or what? A. I don’t remember very well. It was a box car that has ice in it. I was thirteen years old—I don’t remember. * * * Mr. Condit: Q. Didn’t Mr. Barasa tell you that when you took this money you could never have any more? A. He told me this was money from the Company, but I didn’t know how much it was. * * * Q. You never saw any of those men, the switchman or the engineer or the brakeman or conductor on that train, on which you were riding, did you, the day you got hurt? A. Ño, I didn’t recognize them. Q. And you don’t know who the people were in the court room, do you, the day you came up before the judge? A. The judge was there. Q. Well, there was some man there ? A. My lawyer was the only one I knew. The Court: Some men that you did not know? Mr. Dicus: Well, he says he didn’t recognize them. I don’t know whether there was or not; I didn’t recognize them.” It further appeared that he did not know the name of his next friend mentioned in the suit.

Counsel for complainant contends that the personal injury matters were settled by the lawyers and that there was not sufficient presentation to the judge and jury to constitute a legal determination of the matter, but on the contrary the evidence shows that the proceedings before the judge and jury were merely formal, and it is said that the case should be reversed on the authority of Pittsburg, C., C. & St. L. Ry. Co. v. Haley, 69 Ill. App. 64; same case, 170 Ill. 610. In that case, which was the suit of a minor by his next friend, it appeared that suit was brought seeking to recover $125 for personal injuries, and judgment was entered for that amount. There was no jury and no evidence heard, and the suit was not authorized by the minor nor by the" party whose name was used as his next friend in the proceeding. It further appeared that by a prior agreement an attorney assuming to represent the minor agreed to compromise the claim for $125, and that this should be done by filing a declaration and having judgment entered, and the proceedings before the court were perfunctory. The summons, declaration and plea were filed on the same day. The declaration was filed at the request of the defendant and defendant also paid plaintiff’s attorney’s fees. The evidence showed that neither the minor nor the mother, whose name was used as next friend, authorized the attorney to make the settlement. In the case at bar, however, there is no claim that the suit was not authorized. Suit was brought for $20,000. We think the attorney representing the minor was» not only authorized, but that it was his duty, to endeavor to settle the matter in the interests of the minor. This settlement must, of course, meet the approval of the judge and jury. Every presumption must be indulged in favor of the judgment entered in the personal injury suit. It appears that there was a judge and a jury, and we must presume in the absence of sufficient evidence that the judge and jury were satisfied that it was for the best interests of the minor that judgment for $500 should be entered in his favor. We think it would be going too far in the instant case to ask the chancellor to overcome all the presumptions in favor of the judgment on the meager testimony in the record. The complainant failed to overcome the presumptions in favor of the judgment and the chancellor rightly dismissed the bill for want of equity.

The decree of the Circuit Court of Cook county is affirmed.

Affirmed.


author: Mr. Justice O’Connor Mr. Justice Taylor

text:
    Alexander H. Revell & Company, Plaintiff in Error, v. C. H. Morgan Grocery Company, Defendant in Error.
    Gen. No. 24,394.
    1. Contracts, § 206a

      —rights of third person for whose benefit contract was made. Where a contract is entered into by two parties for the benefit of a third, the third party’s rights are subject to the ..equities between the original parties.
    2. Contracts, § 349*—when third person for whose benefit contract was made cannot recover. Where a grocery company had entered into a contract with a contractor to furnish, do work and install fixtures in one of the company’s stores, and the contractor purchased the fixtures from a third party, and where, after the work had been found unsatisfactory, the grocery company and the contractor made a written agreement regarding, the completion of all work in consideration of the grocery company paying a stated balance, which included the amount due to such third party from the contractor, such third party could not recover from the grocery company the amount due it from such contractor, where the contract was not carried out by the contractor.
    Taylor, J., dissenting.
    Error to the Municipal Court of Chicago; the Hon. Harry P. Dolan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Affirmed.
    Opinion filed July 2, 1919.
    Edwy Logan Beeves and Ernest Kasisohke, for plaintiff in error; Ernest Kasisohke, of counsel.
    Allen, Whipple & Ward and James A. 0 ’Callaghan, for defendant in error; S. M. Myers and Leslie A. Gilmore, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.

Plaintiff brought suit in the Municipal Court of Chicago against the defendant, and in its final statement of claim sought to recover $671.80. There was a finding and judgment in favor of the defendant, to reverse which this appeal is prosecuted.

So far as it is necessary to state them, the facts are these: The defendant, C. H. Morgan Grocery Company, entered into a contract with one William Lidke, whereby he was to perform certain work and furnish and install certain fixtures in one of defendant’s stores. Lidke proceeded with the work and purchased the fixtures from plaintiff and installed them in the store. The work was not done by Lidke satisfactorily to the defendant, and on May 22nd they entered into a written agreement which plaintiff makes the basis of its claim in this suit. The contract provided:' “As per our recent agreement regarding the completion of all work as per contract with you, I will do as follows: (Item specified.) In return you are to pay the balance of Eleven Hundred ($1,100) Dollars due me in full, as follows: To Alexander H. Eevell & Co., the sum of $671.80,” etc. Lidke did not do any part of the work which he agreed to do. Afterwards plaintiff brought this suit to recover the $671.80.

Plaintiff’s position, as we understand it, is that Lidke’s promise to do the work was the consideration for the defendant’s promise to Lidke to pay the $671.80 to plaintiff, and that plaintiff may maintain an action on the defendant’s promise, although Lidke did not fulfil his part of the contract by doing the work specified. In support of this contention the cases of Gage v. Lewis, 68 Ill. 604; Newton v. Clarke, 138 Ill. App. 196; Western Pine Lumber Co. v. Nelson, 189 Ill. App. 41, and Cohn v. Cohen, 204 Ill. App. 405, are cited.

Whatever may be said as to what those cases hold, we think they are inapplicable here. In the instant case, the promise to the defendant to pay the money to plaintiff was upon condition that Lidke would perform certain work. This condition, it is conceded, was not carried out by Lidke. It would be a strange rule of law that would permit the plaintiff to recover in this case. Plaintiff admits,, as of course it must since the contract on which liability is claimed is in writing, that Lidke was to do certain work for the defendant, and in consideration defendant was to pay plaintiff the amount specified, and it is admitted that Lidke did not do any part of the work, and yet in the face of this admission plaintiff maintains that it is entitled to the $671.80. It is obvious that this contention is ag’ainst all sense of justice and fair dealing—contrary to common sense. Of course Lidke could not recover without performing the work. Davis v. Wiley, 4 Ill. 234; Hungate v. Rankin, 20 Ill. 639; McCormick Harvesting Machine Co. v. Haug, 88 Ill. App. 674; International TextBook Co. v. Mackhorn, 158 Ill. App. 543. And all the authorities hold that where a contract is entered into by two parties for the benefit of a third, the third party’s rights, are subject to the equities between the original parties. Dunning v. Leavitt, 85 N. Y. 30; Malanaphy v. Fuller & Johnson Mfg. Co., 125 Iowa 719; Ellis v. Harrison, 104 Mo. 270; Hargadine-Mc-Kittrick Dry Goods Co. v. Swofford Bros. Dry Goods Co., 65 Kan. 572; Fish v. First Nat. Bank of Seattle, 150 Fed. 524; Trimble v. Strother, 25 Ohio St. 378; Commercial Nat. Bank v. Kirkwood, 172 Ill. 563.

In speaking of such a contract in the Dunning case, supra, the court said (35): “There is no justice in holding that an action on such a promise is not subject to the equities between the original parties springing out of the transaction or contract between them. * * * It would be contrary to justice and good sense to hold that one who comes in by what Judge Allen, in Vrooman v. Turner [69 N. Y. 280], calls ‘the privity of substitution,’ should acquire a better .right against the promisor than the promisee himself had.”

To the same effect is. the Malanaphy case, supra, where the court said: “Among other limitations, the party to be benefited becomes subject to all inherent equities arising out of the contract affecting the principal parties one with the other. This follows from the relation of privity which the law implies.”

In the Ellis case, supra, it was said: “It is clear that on principle such right cannot be broader than the party to the contract (through whom the right of action is derived) would have in the event of its breach. * * * Such beneficiary cannot acquire a better standing to enforce the agreement than that occupied by the contracting parties themselves.” The judgment of the Municipal Court of Chicago is affirmed.

Affirmed.

Mr. Justice Taylor

dissenting.

Lidke having done certain work for and furnished certain materials to the defendant, they got into a controversy, the defendant claiming that some portions of the work were not properly done, Lidke claiming otherwise. There was due the latter at that time, according to his claim, about $1,100. To settle that controversy, amicably between them, they met, and on May 22, 1916, entered into the written contract which is in question in the instant case. By that contract Lidke makes a promise to do certain work and to waive payment for certain extra labor and material and the defendant promises to pay the plaintiff $671.80 and to each of four other parties a certain sum. Nothing was to' be paid Lidke, himself. It was a bilateral contract made up of their mutual promises, those promises being, according to the law of contract, sufficient consideration for each other. The contract, as soon as signed, created mutual obligations, one of which was to pay the plaintiff $671.80. That promise, according to the writing, was unconditional; it was not provided that it should be paid at some future time or dependent in any way upon Lidke’s future conduct. The consideration of the promise of the defendant to Bevell was not the doing of the work by Lidke, but Lidke’s promise to do that work. In the eyes of the law, a very different thing. The moment the binding written contract was made and the obligations of the defendant and Lidke fixed and specified, the defendant became bound, unconditionally, to pay Bevell, the plaintiff. He had so promised; that was unalterable either by him or Lidke. Though the consideration for it moved from Lidke, being Lidke’s promise to do certain things, it, nevertheless, was-as binding upon the defendant as though the plaintiff, himself, had furnished certain materials as a consideration for the defendant’s promise. Being a binding promise upon the defendant, the plaintiff had a right to sue to have it carried out. If it be admitted, as the opinion of the majority imports, that the contract was binding at the time it was executed and made and gave rise to the obligations it recites, it follows, as the writing mentions no condition, that the plaintiff was entitled at once to the sum promised him. If the promise to pay the plaintiff had been qualified, as, for example, to pay on a certain date, or when Lidke gets so far along in the fulfillment of his obligations, or when Lidke had done all he promised to do, then the plaintiff might not sue until the specified condition was fulfilled. But, the written promise is unqualified and the writing alone contains the contract.

The expression, “In return you are to pay the balance of Eleven Hundred ($1,100) Dollars due me in full,” etc., which words were ratified by the defendant’s written acceptance, constitutes an unqualified admission by the defendant that he then owed, and also a promise at once to pay, the five amounts therein specified. The phrase “due me” is in the present tense. Lidke had claimed that his original undertaking had been completed and that the balance due him was $1,100. That was the situation when Lidke and the defendant started in to make the settlement-contract of May 22,1916. Then, in order to end their disagreement Lidke promised to do certain work and waive a claim for extras, and the defendant, in return for and in consideration of that promise, promised to pay ‘ ‘ To Alexander H. Bevell & Co., the sum of $671.80,” and also, four other smaller amounts, and admitted, by the same writing, that the total of those amounts, $1,100, was then due. His admission and his promise to pay are both unqualified. Of course, he ^stultifies himself when, in the face of the admission and promise, he claims that he ought not to pay the plaintiff. Having both admitted the amount and promised for a good consideration and without mention of time or condition, it is binding. When a written promise, to pay an express amount to a definite person, for a good consideration and without condition, is made, it ripens into an immediate legal obligation. The matter here, however, is purely one of fact. The defendant stated over his own signature, as Lidke has promised to do certain work and waive a certain claim, I promise to pay to the plaintiff, and four others, certain express amounts, which I admit are now in the aggregate due you. Such being the written contract, what ground is there for claiming that liability to Bevell, the plaintiff, must wait on what Lidke may or may not do in the future. To hold that the defendant’s promise to the plaintiff was dependent upon the future acts of Lidke is to make a brand new contract. The contract is in writing, but, whence the condition? It is admitted in the majority opinion that the promise of the defendant was binding, but, how, if he may attach an arbitrary unwritten condition? If he may do that, then it is not the law in this State that a promise made to a third person upon a good consideration is binding and may be sued upon. As not a single apt case has been cited—the facts here being different—I am of the opinion that the plain meaning of the written contract should control and that there should not be interjected some condition, which the parties cannot be said to have had in mind, and of which there is not a single syllable of evidence.