author: Mr. Presiding Justice Holdom

text:
    Mears Slayton Lumber Company, v. District Council of Chicago of the United Brotherhood of Carpenters and Joiners of America et al. The People of the State of Illinois, Appellee, v. John J. Brittain et al., Appellants.
    Gen. No. 15,068.
    1. Injunctions—when should be obeyed. If the court had jurisdiction to grant the injunction in question it should be obeyed while it remains in force.

      • 2. Injunctions—who bound to obey. A person having knowledge of the existence of an injunction though not a party to the proceeding in which it was granted is bound to obey the same.
    3. Injunctions—propriety of in connection with strihes. The right to strike is recognized by the courts but a conspiracy to ruin the business of an employer of labor by means of picketing, boycotting, etc., is unlawful and the injunctive process of the court may be employed to defeat such conspiracy.
    4. Contempt—'^what not essential to proceeding for. A petition is not essential to initiate contempt proceedings. If a rule to show cause is supported by affidavits the requirements of the law are observed.
    5. Contempt—when technical objections come too late. Technical objections first made on appeal come too late and are deemed to have been waived.
    6. Habeas corpus—when order of discharge void. An order of discharge entered in a habeas corpus proceeding by and through the misprision of the clerk is void and may be set aside after the lapse of the term of entry.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. George A. Carpenter, Judge, presiding.
    Heard in this court at the October term 1908.
    Affirmed.
    Opinion filed June 16, 1910.
    ' J ohn D. Farrell and Daniel L. Cruice, for appellants.
    Mayer, Meyer & Austrian and James Gr. Elsdon, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Appellants prosecute this appeal in an effort to reverse an order of the Circuit Court entered July 8, 1908, finding them guilty of violating an injunction in the chancery suit above entitled, restraining the calling of strikes against complainants, picketing their plants or the buildings in process of erection, for which they were furnishing materials in the shape of lumber and mill work, and from maintaining a boycott against them or their product, and punishing each of appellants by a jail sentence of thirty days. The order finds that appellants wilfully and knowingly violated and aided and abetted in violating the injunction, in that they did “interfere with, hinder and obstruct the business of said complainant, and that said respondents did on said last mentioned date drive together in an automobile to each of a large number of buildings then being constructed by the persons and firms, or a large number of them, last above named, and did then and there order a strike on said buildings, because there was then and there being used upon said buildings lumber and material furnished by said complainant; that on each and every of said buildings there were then and there employed by the persons above named, who were constructing said buildings as aforesaid, carpenters, among whom were then and there members of said defendant’s District Council of Chicago of the United Brotherhood of Carpenters & Joiners of America, and that upon such strike being ordered by the said respondents, Charles G. Grassell, George H. Lakey and John J. Brittain and all of the carpenters so employed on each of said buildings did then and there leave work upon said buildings aforesaid, and that thereupon all carpenter work on each of said buildings was stopped; and that the carpenters so called out on strike as aforesaid were ready and willing and desired to work, but obeyed said orders to strike by the wrongful acts of said respondents, as aforesaid. And that said contractors, as aforesaid, were then and there informed by said respondents that they, said contractors, could not use lumber or materials theretofore furnished or thereafter to be furnished and delivered by said complainant.”

Without reviewing the evidence, which is somewhat lengthy, consisting of numerous affidavits, which we have read with much care, we are satisfied that they furnish abundant facts sustaining the findings of the chancellor as above set forth, and that such acts of appellants constituted and were a violation of the in junctional order.

The bill sets forth that complainant is engaged at Chicago in the business of manufacturing and selling lumber and general mill work, and has invested upwards of $200,000 in its plant and equipment, and that its annual volume of business exceeds one million dollars; that it has many contracts in hand for future delivery that it is able to fill if unmolested by the defendant Unions and their members; that many of such contracts are for lumber and mill work to be delivered to and used in the construction of a number of buildings in process of erection at Chicago; that but for the interference of the Union defendants and their members, complainant is able to procure workmen in all its branches to do its full complement of work, so that all its contracts can be filled at a wage and work hour satisfactory to complainant and its workmen; that these Unions in April, 1908, endeavored to force upon complainant an increase in the wages of its workmen and a shortening of their hours of labor; that on complainant’s refusing to submit to these demands, a strike was called by the Unions and about seventy-five of complainant’s workmen, members of the defendant Unions, quit its employment. The quitting of these men on the strike called by the defendant Unions resulted in a temporary suspension of complainant’s business. Thereafter complainant succeeded in engaging a few non-union men, but owing to the defendant Unions and their members and accomplices having established a system of picketing, boycotting and unlawful interference with the workmen at its plant and the buildings where it was supplying material, it was not able to obtain men in sufficient numbers to operate its plant and carry out its contracts; that large numbers of men have refused to work for complainant because they fear the defendants and the picket line with sluggers which the defendant Unions and their members were maintaining at its plant and other places where it was engaged in fulfilling its contracts, and that many men employed since the strike was declared, have' quit their work owing to like fears; that the defendant Unions and their members have conspired together to unlawfully stop the business of complainant unless it complies with the unlawful demand to operate what is known as a closed shop, composed solely of members of defendant Unions, and to accede to the demand made for an increased scale of wages and decreased hours of labor; that the boycott established seeks to induce and compel builders and contractors “to refuse to use lumber, mill work or other material furnished by any employer or manufacturer against whom said organizations, or either of them have a grievance, and by threatening any one who does use such material, lumber or mill work with a strike on such job or building where such mill work, lumber or material is used, and by preventing members of said defendant organizations from working on any other building or job.”

The bill sets forth in detail acts which constitute a boycott and charges specifically that the defendants are maintaining a large force of pickets about complainant’s milling plant, and that professional sluggers have been hired to intimidate its workmen and have succeeded in doing so; that the pickets follow the lumber of complainant to its destination and have called and will continue to call, unless restrained from so doing, strikes on the buildings where such lumber or material is used, if it is not rejected; that such boycotting and picketing, if continued, will result in the ruin of complainant’s business. It is further charged that the defendant Unions are voluntary organizations of carpenters and joiners ; that their members are constantly changing, and that all of them are financially irresponsible, and that complainant is without remedy unless protected in its rights by the restraining power of a court of equity. The Unions and their members, as far as known, and their officers, both officially and as individuals, are made parties defendant. An injunction in the terms of the prayer of the bill was granted, and all the appellants except Brittain were parties to the bill. The form of the bill is not, as we can see, open to serious objection. It is in all its material averments and prayer for relief substantially, both in principle and fact, in accord with the bills in Franklin Union No. 4 v. The People, 220 Ill. 355; Barnes v. Typographical Union No. 16, 232 ib, 424; and in its boycott aspect not unlike Piano & Organ Workers International Union of America v. The Piano, Organ & Supply Co., 124 Ill. App 353.

The court had jurisdiction to grant the injunction and it was therefore bound to be obeyed while it remained in force. If it was too broad in its operation the court should have been moved to modify it. ¡No one had the right to disobey it. Brittain, it is insisted, is immune from the operation of the injunction because he was not a party to the bill. This argument has been urged before and held to be without force where such party had actual knowledge of the injunction. On this point the court say, in O’Brien v. The People, 216 Ill. 354: “The fact that some of the plaintiffs in error were not parties to the injunction suit and were not served with process and had no notice of the application for the injunction, or were not served by the officer of the court with such injunction, is immaterial, so long as it is made to appear that they had actual notice of the contents of the injunction ordered and issued by the court.” While Brittain was not a party to the bill, yet the proof in the record abundantly demonstrates that he had knowledge that the injunction had been ordered and the writ issued, as well as knowledge of its terms, and with such knowledge he deliberately and in conjunction with his co-appellants violated it in the manner and by the means set forth in the order adjudging appellants guilty of contempt. It was therefore in accord with precedent to proceed against Brittain and to discipline him for such violation.

We are satisfied that the evidence in the record sustains the finding of the court that all of the appellants wilfully disobeyed the injunction, and that they did the several acts set forth in the order adjudging them guilty of contempt.

The other questions remaining for our determination are embraced in the contention that the appellants had all been discharged from a former sentence of imprisonment for the same offense under writs of habeas corpus.

The record shows that on May 26, 1908, Judge Carpenter, then of the Circuit Court, sitting as a chancellor, on the motion of complainant entered a rule on appellants and others to show cause, on May 29, 1908, why they should not be attached for contempt of court for violating the injunction. On the return day of the rule, appellants failing to appear, after a hearing they were found guilty of the contempt set forth in the rule and a sentence of thirty days in the Cook county jail-was imposed upon each of them. It was 'subséquently made to appear that a copy of the rule to show cause was not served upon appellants, or any other notice of contempt proceedings given to them. On June 1, 1908, all the appellants appeared in person and by counsel before Judge Carpenter, and entered a motion to vacate the order of May 29, 1908. These proceedings were continued until the next day, when writs of habeas corpus were granted and appellants were enlarged on bail, and the hearing on the writs and motions to vacate the order of commitment was continued until June 11, 1908, to he heard by Chancellor Mack of the Circuit Court. All these matters were heard as directed before Judge Mack, and he found that the order of commitment was without jurisdiction because appellants had not received any notice of the rule or of the hearing. The proceedings before Judge Mack were embodied in an appropriate certificate of evidence. From this it appears that the court found that' the contentions of appellants that there was a failure to serve either of them with notice sufficient to bring them within the jurisdiction of the court to be dealt with for the contempt recited in the rule to show cause, was well taken, and he thereupon vacated and set aside both the rule of May 26, 1908, and the order of commitment of May 29, 1908. The record further shows that Judge Mack entered a new rule on the appellants to show cause before Judge Carpenter, on June 16, 1908, why they should not be committed for a contempt of court in violating the injunction in the original chancery case, in the same terms as that originally entered by Judge Carpenter. At this time all of appellants were in court before Judge Mack, who called them all to the bar of the court, when he entered the rule, and verbally informed each of them of its contents and of the time of the return of the rule, and that it was returnable before Judge Carpenter. By misprision of the clerk, and without any authority of the court, an Order was entered June 11, 1908, in the habeas corpus proceedings, discharging the appellants. On June 18, 1908, that order was expunged from the record by Judge Mack, the court finding that the orders had been entered by mistake and misprision of the clerk and without any authority or direction of the court. The court at the same time dismissed the several petitions for habeas corpus.

On June 19, 1908, the appellants appeared before Judge Carpenter in response to the rule entered by Judge Mack and objected to the jurisdiction of the court to proceed averring the insufficiency of the bill and discharge in habeas corpus, but the court held that these objections were of no valid force and proceeded to and did hear the proofs, arid on July 8, 1908, adjudged appellants guilty of the contempt charged and punished them, and these are the same proceedings and hearing from which appellants prosecute this appeal.

The method of procedure against appellants for contempt was by affidavits. Ho petition was filed. Hone was necessary. The rule being supported by affidavits met the requirements adjudged sufficient in Franklin Union No. 4 v. The People, supra, and Flannery v. The People, 225 Ill. 62. As said in the Flannery case: “It is admitted that a contempt proceeding for the violation of a writ of injunction may be commenced either by petition or affidavits. It is sufficient if, either by petition or sworn statements, the matter complained of is brought to the attention of the court.” The rule to show cause in terms directed that the hearing should be had on affidavits theretofore filed, and it was so heard. This also was effective and no violation of appellants’ legal rights. The contention that appellants were in court under the writs of habeas corpus and therefore exempt from process of any other kind, is conclusively negatived by the fact, disclosed by the record, that they were in court in the original chancery cause moving to vacate the rule to show cause and the commitment entered against them, and that they prevailed, and that no order was at that time entered in either of the habeas corpus cases. Furthermore, that objection is raised on review for the first time. It comes too late. The objection, if available in the trial court, is waived if not there made.

The record conclusively shows that the orders discharging appellants in the habeas corpus proceedings were void as they were entered by the misprision of the clerk and without any direction from the presiding judge. These orders were no orders at all. They were nullities. Tío thing can validate them hut an order of the court. The court had power and authority and it was its solemn duty, when it discovered the wrong that had been done, to at once scour the record of the evidence of such wrong. Being void, the orders entered by the misprision of the clerk could not be validated by any lapse of time or term or by the action or non-action of any of the parties. Helpless indeed would be the court if it could be controlled by the interference of ministerial officers. Imperiled would be the rights of litigants if an unauthorized action of strangers could be held to be of binding force. The rights of litigants rest on no such uncertain conditions. We think the rule announced in Peterson v. Metropolitan National Bank, 88 Ill. App. 190, is correct and controlling of the point now under discussion. The court say, in an opinion voiced by the then Mr. Justice Sears: “The only question remaining is as to whether the court should have granted the motion of appellants to expunge from the record all the void orders entered after the end of October, 1898, term, to quash the writs issued upon the order of January 12, 1896. This motion should have been granted. The rule that the court may not, after the lapse of the term, modify or set aside its final judgment, except motion to that end be entered at the judgment term, has no application to the vacating of void orders.” Estate of Gould v. Watson, 80 ib. 242; Keeler v. The People, 160 Ill. 179; Parker v. Macoy, 91 Ill. App. 313.

Appellants prayed several appeals and each gave a separate appeal bond. The appeal is prosecuted here jointly, but as no one is objecting, the court will not pass upon this irregularity in procedure.

The right to strike either singly or in combination is not involved. If it were, the right would be conceded. The situation presented is of entirely a different character. Defendants in the bill conspired to ruin complainant in its business unless it acceded to a demand that it should employ none but members of defendant Hnions. To enforce such demand the conspiring defendants resorted not only to the declaration of strikes, but to picketing the works and other places where complainant was transacting business, intimidating the workmen and patrons of complainant and boycotting iti products and those dealing in them. To restrain the further infliction of such acts, destructive of complainant’s business and property rights,i and to enable working men to engage with and work for complainant upon terms agreeable and satisfactory to each, the injunction was issued. For openly and flagrantly violating that injunction, with knowledge of its existence, appellants were punished. Such punishment was, under the circumstances of this case, a necessity. It is the weapon with which the chancellor is armed to maintain inviolate the integrity of his injunctional order. Such power has been held to have been properly exercised in like cases, and similar orders have been uniformly maintained by courts of review whenever they have been called upon to pass their judgment upon such questions.

We find no error justifying a reversal of the order of the Circuit Court appealed from, and it is therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Frederick M. Harris, Appellant, v. Rachel Harris, Appellee.
    Gen. No. 15,160.
    1. Contempt—when order of commitment sufficiently definite. Held, that the order of commitment in this case, by construction, was sufficiently definite and that such informality as appeared would not justify a reversal.
    2. Contempt—when Appellate Court will modify order of commitment. If an order of commitment provides for the imprisonment to commence from the date thereof so that by virtue of an appeal its operation might be-defeated, the Appellate Court will modifiy such order so that notwithstanding the appeal, it will upon affirmance become ef-. fective.
    3. Appeals and errors'—when costs of additional abstract taxed against appellant. If an additional abstract is required by reason of &. mistake in the appellant’s abstract, the cost thereof will be taxed against such appellant.
    Divorce. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honobe, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed as modified.
    Opinion filed June 16, 1910.
    Edward H. Morris, for appellant.
    Michael Lyons, for appellee.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court adjudging appellant guilty of a contempt of court in not paying appellee, his divorced wife, the sum of $156 alimony, due her under the terms of a decree of divorce previously entered.

The record before us discloses that appellant was discharged on his answer to a former rule upon him to show cause why he should not be adjudged in contempt of court for the nonpayment of $1,955.50 due under the same decree. The amount of $156, for the nonpayment of which appellant was found guilty of contempt of court, accrued under the decree subsequent to the larger amount involved in the proceedings in which he was discharged.

Appellant contends that the chancellor erred in finding him guilty and in committing him for contempt, and that the order itself is erroneous.

The facts set forth in appellee’s petition for a rule upon appellant to show cause were sufficient to justify the entry of the rule, and uncontradicted, as they were, ample to warrant the court in dealing with him for the contempt charged. Appellant submitted himself to the jurisdiction of the court and was present in court personally and by counsel at the hearing and when the committal order was entered; therefore the only question remaining for us to decide is the validity of the order.

The learned counsel for appellant says in his brief: “To have made this order certain, it seems to counsel submitting this brief, it should have so provided for the discharge of plaintiff in error upon the payment of $156 at any time during the six months.” We are not inclined to disagree in the main with this statement. Our divergence from the path which counsel treads lies in our interpretation of the order itself. We think what counsel contends should be in the order, is there, while not in actual words, yet by fair interpretation. The language of the order is that appellant “be committed to the common jail of Cook county, there to remain, charged with said contempt for the term of six months or until he pay the sum of one hundred and fifty-six dollars or until released by due process of law.” If he paid the money at once, he need not go to jail. If he does go to jail, by the letter of the order and the reasonable construction of the word used, his imprisonment ends by payment, and the sheriff could not justify a continued detention for any time after payment. While the order might have been drawn with a little more formality, with the imprisonment part of the order following a recitation of failure to pay the amount found due, instead of preceding it, still we do not find it susceptible of any different or other construction than it would have been had it been couched in more formal terms. There is no escaping the plain and apparent fact that the amount found due is a certain sum, and the imprisonment to be endured is for a certain term in case of non-payment, and just as plainly to end upon payment at any time after imprisonment commences. We think the order in question fully meets the standard announced in Kanter v. Clerk of the Circuit Court, 108 Ill. App. 287, in these words: “An order of commitment to jail should be so definite and certain as to continuance of the imprisonment that thereby the sheriff is with certainty informed as to when he is to set at liberty the subject of the order.”

The order appealed from is so worded as to make the delay consequent upon this appeal destructive of the punishment by imprisonment. It now reads, “for the term of six months from the date hereof.” To allow this to pass without modification would be lending our aid in defeating instead of promoting justice. This we cannot consent to do. The order appealed from will be modified by striking therefrom the words “from the date hereof” in the last paragraph thereof, preceding the prayer for and allowance of an appeal to this court.

Appellee by leave filed an additional abstract, which was necessary to cure a mistake appearing in appellant’s abstract.

The order of commitment of the Circuit Court, before us for review, as modified is affirmed, and appellant is ordered to pay all the costs of this appeal, including that of the additional abstract.

''Affirmed as modified.


text:
    International Forwarding Company, Defendant in Error, v. F. Rosati & Company, Plaintiff in Error.
    Gen. No. 16,235.
    1. Bes judicata—what essential to defense of. Identity of parties in the pending and former actions is essential to the defense of res judicata.

    2. Municipal Court—when common law record only subject to review. If no stenographic report or statement of facts is filed as provided by the statute, and a bill of exceptions which does not purport to contain all the evidence is filed in lieu thereof, there is nothing subject to review by the Appellate Court other than the common law record.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 16, 1910.
    Cairoli Gtgliotti, for plaintiff in error.
    Albert H. Fry, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The writ of error sued out in this case seeks a reversal of a judgment of the Municipal Court for $91 and costs.

Defendant’s application to have the writ of error operate as a supersedeas has been denied.

Plaintiff’s claim is for storage and lighterage of 80 barrels of wine shipped from Italy on the S. S. “Moltke” to the port of Hew York, and for certain U. S. custom duties paid by plaintiff on this wine while acting in the matter as custom house brokers for defendant. There was a contract between the parties fixing the carrying charges, but the items in suit do not embrace any such charge. The IT. S. custom officials on the arrival of the barrels of wine put them in a government bonded warehouse to await the arrival of the invoice, so that duties might be fixed and paid and the wine cleared of the customs in the usual way. Heither storage, lighterage nor duties were embraced in the carrying contract. Defendant interposed the defense of res adjudicate and grounded it on the judgment in a suit in the Municipal Court, in which defendant in error was defendant and F. Eosati and D. Matone, doing business as Eosati & Matone, were plaintiffs, and in which case plaintiff in this suit, defendant in that, was awarded a judgment of nil capiat and for costs. It is a complete answer to the contention that the doctrine of res adjudicate is invokable to say that the record fails to show, even by implication, if such was permissible, that Eosati & Matone are the same persons as F. Eosati & Co., the defendant in this suit, or that the litigation was between the same parties who prosecute and defend this cause. Still, from the evidence in the record we are inclined to the opinion that the conclusion of the Municipal Court does justice between the parties upon the merits.

There however exists an insuperable obstacle to our reversing the judgment under review. The document found in the record and certified by the trial judge as a bill of exceptions, is not such a bill of exceptions as authorizes this court to reverse the cause upon the merits, because it does not certify that it contains all the evidence adduced upon the trial. 1ST or is it pretended that the document certified as a hill of exceptions contains a correct stenographic report or a complete statement of facts as contemplated by the Municipal Court Act in cases of the fourth class, to which class this case belongs. In the Municipal Court Act there is no provision for a bill of exceptions in fourth and fifth class cases, but where all the evidence appears in a document so certified we have at times treated such a bill of exceptions as practically fulfilling the essentials of a stenographic report. The so-called bill of exceptions is not a bill of exceptions, nor is it a stenographic report or a statement of fact, and consequently the record does not bring anything before us for review but the common law record.

Failing to find any error in-the common law record calling for our interference with the judgment of the Municipal Court, that judgment is affirmed.

'Affirmed.


author: Mr. Justice Baker

text:
    J. W. Flora et al., etc., Defendant in Error, v. V. Fields, Plaintiff in Error.
    Gen. No. 14,689.
    1. Municipal coubt—when improper to enter default. If an appearance is on file it is improper to enter a judgment as for a default.
    2. Municipal coubt—when judgment by default not set aside. Held, that the affidavit filed in support of the motion to set aside a judgment by default did not sufficiently show the failure to publish notice that the cause was upon the trial calendar of the particular judge, and that, therefore, the motion to set aside was properly denied.
    3. Municipal Coubt-—when action of court in refusing to set aside default will not be disturbed. A motion to set aside a judgment is addressed to the sound legal discretion of the court in which the judgment is entered, and the exercise of that discretion will not be disturbed on review except in cases where it affirmatively appears that such discretion has been abused and injustice done.
    4. Municipal Coubt—when without jurisdiction to entertain motion to vacate judgment. If a motion to vacate a judgment has been made and denied within thirty days after the entry thereof, a subsequent like motion setting up grounds which might justify action in chancery cannot be entertained under the statute.
    5. Verdicts—when upon merits must be disregarded. If the jury was only sworn to assess damages, so much of the verdict as finds the issues for the plaintiff must be disregarded.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 16, 1910.
    Rehearing denied June 30, 1910.
    Henry M. Shabad, for plaintiff in error.
    Ho appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff brought an action of the fourth class in the Municipal Court on a contract claiming a balance due thereon of $102.25. The defendant by her attorney entered her appearance in writing, filed a claim of set off, demanded a jury, and the cause was placed on the jury calendar for trial. The record proper shows that April 9, 1908, before Judge Foster of the Municipal Court, the plaintiff came; that the defendant was called and failing to appear, on motion of plaintiff it was ordered, “that a judgment be entered against said defendant by default;” that thereupon came a jury, who were sworn to assess plaintiff’s damages, and returned a verdict finding “the issues for the plaintiff and assessing their damages at $61.50,” for which sum and costs the court gave judgment. This was erroneous; the appearance of the defendant was in legal effect a plea, and when a plea is interposed it is erroneous to take judgment by default. Covill v. Marks, 1 Scam. 391. The jury was only sworn to assess damages, and so much of the verdict as finds the issues for the plaintiff must be disregarded. But it is not assigned for error that the court gave judgment by default, and we therefore cannot, for that error, reverse the judgment. Kelley et al. v. Heath & Milligan Mfg. Co., 66 Ill. App. 528.

April 24, 1908, the defendant moved to vacate and set aside the judgment, and filed affidavits in support of her motion, and on that day the court denied said motion and also a motion for a new trial.

A rule of the Municipal Court provides that, “Assignments, if any, will be made by 3 o’clock P. M. each day and will be published in the Municipal Court Record and the legal edition of the Inter Ocean.” The affidavits in support of the motion do not state that the case was not in the calendar of Judge Foster for April 9, as published in the legal edition of the Inter Ocean of that date, but only state that it was not in the calendar of Judge Foster published in the Municipal Court Record of April 9. We find in the record a copy of the Municipal Court Record of April 8, in which, under the heading “Calendar for tomorrow Judge Foster * *" * Jury trials” is the case of “Coburn & F. v. Fields,” with its proper number, 50227. It is to be inferred that the Municipal Court Record is published in the afternoon, as it contains the calendars for the following day, and the fact that the case was in the calendar of Judge Foster for April 9 was therefore properly given in the issue of April 8. We cannot presume, in the absence of any showing by tne defendant, that the case was not in the calendar of Judge Foster for April 9, as published in the Inter Ocean. The contention of plaintiff in error that notice that the case was in the calendar of Judge Foster for April 9 was not published in the manner required by the rule of the Municipal Court cannot, therefore, be sustained.

A motion to set aside a judgment is addressed to the sound legal discretion of the court in which the judgment is entered, and the exercise of that discretion will not be disturbed in an appellate court except m cases where it affirmatively appears that such discretion has been abused and injustice done. Andrews v. Campbell, 94 Ill. 577.

On a careful examination of the affidavits filed in support of the motion to set aside, we cannot say that there was such an abuse of the discretion of the court in denying said motion as to warrant a reversal of the order denying such motion.

Section 21 of the Municipal Court Act as amended in 1907, gives to that court the same power to vacate a judgment within thirty days after its entry that a circuit court has during the judgment term, and further provides that'if no motion to vacate shall he entered within thirty days after the entry of a judgment, the same shall not be vacated, “except, etc., * * * or by a petition to said Municipal Court setting forth grounds for vacating, setting aside or modifying the same, which would be sufficient to cause the same to be vacated, set aside or modified by a bill in equity.” In this case defendant’s motion to vacate was entered and denied, within thirty days after the entry of the judgment. April 30, after the denial of said motion, the defendant presented a petition setting forth grounds for vacating said judgment to Chief Justice Olson and also to Judge Foster, and both refused to examine or consider said petition. We think that such refusal was proper, because the statute gives to the Municipal Court power to vacate a judgment, on a petition filed for that purpose, only in cases where no motion to vacate is made within thirty days after the entry of the judgment, and in this case such motion was made ^and denied within thirty days from the entry of the judgment.

• Finding no error in the record, the judgment and the order denying defendant’s motion to vacate the judgment will be affirmed.

Judgment and order affirmed.


text:
    S. Goldberg, Defendant in Error, v. Joseph Cohen, Plaintiff Error.
    Gen. No. 14,774.
    1. Appeals and errors—when presumption of propriety of dismissal indulged. If an appeal is dismissed by the court it will be presumed that such dismissal was proper in the absence of a showing to the contrary.

      2. Appeals and-errors—propriety of dismissal upon general call. Both parties to a cause initiated before a justice of the peace must follow the appeal thereof, and a dismissal of such appeal upon general call for want of prosecution is proper.
    3. Practice—appearance need not be written. The statute does not require that an appearance be written and a dismissal made upon motion of the plaintiff’s attorney will not be set aside on review merely because he does not appear to have filed a written appearance.
    Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. Axel Chytraus, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 16, 1910.
    Louis Greenberg, for plaintiff in error.
    William E. Brand, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

In a suit before a justice of the peace plaintiff had judgment and the defendant appealed to the Superior court by filing a bond before the justice. April 19, 1906, the transcript and appeal bond were filed in the office of the clerk of the Superior court. June 17, 1907, the following order was entered in the cause in the Superior court: “This cause being this day called on a general call under the general order of the court entered herein of record on the 13th day of May, 1907, and in accordance therewith, after due notice, and the defendant failing to prosecute this appeal in accordance with said call, on motion of the plaintiff’s attorney it is ordered that said appeal be and the same is hereby dismissed at defendant’s cost for want of prosecution and for want of compliance with said general order. Therefore, it is considered by the court that the plaintiff do .have and recover of and from the defendant costs and charges in this behalf as well as in the court below expended and have execution therefor, and that a procedendo do issue herein.”

In the transcript of the record filed in this court is an order of the Superior court entered May 13, 1907, for a general call of all law cases on the docket of that court commenced before September 1, 1906. This order is not an order made in the cause and is not, therefore, a part of the record of the cause. Disregarding that order, it will be presumed that the order dismissing the appeal was proper.

Both parties treat the order of May 13, 1907, as a part of the record of this cause, and if it be so considered the order dismissing the appeal was proper. That order contains the following provisions: “It is also ordered that upon such call cases will be heard, set for trial, dismissed for want of prosecution, or otherwise disposed of, as the record may warrant and as the court may order either of its own motion or upon motion of any one appearing at such call for-any party. In any case where, upon either side, there may be a failure or neglect to appear, the side appearing may in the discretion of the court have final disposition of the case. When both sides fail or neglect to appear at such call, suits may, in the discretion of the court, be dismissed for want of prosecution, or appeals or writs of certiorari may be dismissed with or without costs.” Th® appeal was taken before the justice, both parties must follow the appeal and were in court in contemplation of law. The judgment recites that the appeal was dismissed on motion of plaintiff’s attorney. The statute does not require that the plaintiff shall file an appearance in writing.

The order of May 13 provides for the dismissal of an appeal where neither party appears, and that where only one party appears, such party may “in the discretion of the court have final disposition of the case.” The order dismissing the appeal was a final disposition uf the case and was authorized by the terms or the order of May 13, when one party only appeared on the call of the calendar therein provided for.

The judgment is affirmed.

\Affirmed.


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    Aaron King, Appellee, v. Chicago Junction Railway Company, Appellant, and Chicago Great Western Railway Company.
    Gen. No. 15,156.

      Verdicts—when set aside. A verdict will be set aside on review as against the evidence where clearly and manifestly against the weight thereof.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding.
    Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed June 16, 1910.
    Winston, Payne, Strawn & Shaw, for appellant; John D. Black and John 0. Slade, of counsel.
    Oassoday & Butler, for appellee; Eldon J. Oassoday and Bush 0. Butler, of counsel.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries, brought against two railway companies, the jury found the defendant, the Chicago Junction Railway Company, guilty, and assessed plaintiff’s damages at $2,500, and found the other defendant not guilty. The court entered judgment on the verdict, and the Chicago Junction Railway Company appealed.

Seven tracks of the appellant cross Exchange avenue, an east and west street in the Union Stock Yards, at grade. Plaintiff was in the service of a company at said yards and was injured by a train of the other defendant going north across Exchange avenue on either the east track, or the track next to the east track of appellant. The accident occurred a few minutes before 6 P. M., October 27, 1904, half an hour or longer after sunset. A large number of men who had just quit work for the day were going east in Exchange avenue over the tracks on their way home, and other men were going west over said tracks on their way to work. The roadway of the avenue was planked and was used as well as the sidewalks by persons passing over the tracks on foot.

The allegations of negligence necessary to consider are the allegations that no headlight was burning on the engine; that no bell was ringing; that there was no flagman on the crossing, and that there was no light over the crossing.

Plaintiff testified in chief that he came on the crossing from the west, walking in the middle of the street; that south of the avenue cars were standing on the first, second and third tracks from the west; that after he crossed the tracks on which the cars were, he looked to the south to see if the tracks were clear; that it was dark and he could not see far and, “did not see anything only people all around me;” that he was able to go to the north, “to kind of pick my way around north, and there was a great bluster, or something, hollering;” that he caught a glimpse of a horse and buggy, tried to get out of the way, was knocked down and knew nothing more until he found himself on the track with an injured leg.

On cross-examination he testified that he had worked in the stock yards ten years, passed over said tracks every day and knew that a great deal of switching was done at said crossing. Asked if he saw the engine, he answered, “I saw, I think it must have been, a train from the way everybody was pushing around and hollering.” He further testified that he never saw an electric light over the crossing, never saw a flagman on the crossing before he was hurt; that on the night in question he was not watching for a flagman because he never saw one there, and that he saw no headlight on the engine. He further testified that he would not say that he looked south after crossing the third track; that a great lot of people there seemed to be jammed up—knotted. “Q. What were they saying ? A. It seems to me an engine was approaching there and it got right in amidst the people some way or other. Q. What were they saying then? A. Calling look out or something of the kind, the people running around.”

The engine which struck plaintiff was running with the tender in front at the north end of a long train, and it was intended to go only far enough to clear a switch at the south end of the train. Steam had been cut off and the engine was “drifting,” going not faster than three miles per hour, and the engineer was keeping a lookout in front and also to the rear for a signal to stop, and had his hand on the “air.” Men were passing over the track in front of the engine, some going east and some west. Just then one Yehon, who was driving a single horse and buggy west, in order to cross in front of the engine, struck his horse with a whip and the horse dashed across the track. As he crossed the track he shied to the north, struck plaintiff and knocked him down, with his body on the west rail of the track on which the engine was approaching. A policeman who stood east of the east track ran to plaintiff and attempted to pull him off from the track, but was unable to do so before the engine ran over one of his legs and so crushed it that amputation was necessary.

The plaintiff called four witnesses, Doherty, Rainey, Martin and Walker, each of whom testified that he was one of the men going east over the crossing and that he saw no headlight on the tender, no light over the crossing, no flagman, and heard no bell.

Opposed to this testimony was the testimony of Trainor, the engineer, who testified that the bell was ringing, the headlight on the tender and the arc light over the crossing burning, and that he saw Kelly, the flagman, immediately after the accident; of Harty, the fireman, who testified that he lit the headlight on the tender and could see that it was burning by the reflection, that it’ was burning immediately after the accident, that he rang the bell from the time the train started and was ringing it at the time of the accident, that the arc light was burning; of Yehon, the driver of the horse and buggy, that as he came up the crossing he saw the engine, that the headlight was burning, the bell ringing, the arc light burning, that the flagman was on the crossing and motioned to the witness with his lantern to stop; of Hanley, who was in the buggy .with Vehon, that he heard the bell ringing before he saw the train, that the arc light and headlight were burning; of Kelly, who testified that he had been a flagman on the crossing for three years, on duty from seven in the morning until six in the evening, that he was on the west main track as the train approached, that the light on the tender and the arc light were burning and the bell ringing, that as the train came on the crossing the men began to run to get across ahead of the train, that he swung his lantern and called to them to look out for themselves; of Walters, a city police officer, who testified that he was on the north side of the avenue just east of the tracks, saw the flagman standing in the center of the crossing, saw the arc light burning and saw the train approaching with the headlight burning, and when plaintiff was knocked down he ran to him to pull him off from the track; of ¡Riley, a watchman, who testified that he was in Exchange avenue east of the tracks, that he saw the train as it came on the crossing, saw that the headlight and arc light were burning, and that Kelly, the flagman, was on the crossing; of Farrell, who testified that he ivas a watchman, was with ¡Riley, saw a man driving west and called to him to look out, that he heard the bell ring as the man passed by, that the headlight and arc light were burning, and that he assisted in talcing plaintiff out from under the wheel of the tender; of Mangan, who testified that he was going over the crossing, that he saw the flagman on the crossing with a lantern in his hand, that he saw the train when it was the length of an eight room house south of the crossing, that he saw the headlight and heard the bell, and that the arc light was burning; of McCormick who testified that he was a telegraph operator going to work, and was on the footboard of the engine, that the bell was ringing, the headlight and are light burning, and the flagman on the crossing with a lantern; of Deegan, a switchman, who testified that he was on the top of the fourth car from the engine; that the arc light was burning, that the train suddenly stopped, and' he immediately went to the front end of the engine, and that the headlight was then burning.

To entitle the plaintiff to a verdict, the burden was on him to show by a preponderance of the evidence that the defendant was guilty of the negligence alleged in some count of the declaration, and that the plaintiff was in the exercise of reasonable care for his own safety. The testimony of defendant and his witnesses is negative; that they did not see the arc light, the headlight, the watchman, or hear the bell. Opposed to this is the positive testimony of a large number of witnesses that the arc light and headlight were burning, the arc light, the headlight, the watchman, or hear the bell, evidence is clear that there was an arc light over the crossing, a headlight, a bell on the engine and a watchman, whose duty it was to be on the crossing. It is improbable that at the same time, neither the arc light nor the headlight should be burning, the flagman not in his proper place and the bell not ringing. It is improbable that the" engineer and fireman would endanger their own safety by running an engine on a dark night without a headlight burning.

On the question whether appellant was negligent, the question is whether from all of the evidence the jury might properly find that the appellant was guilty of any one of the negligent acts alleged in the declaration. But it is difficult to see how the jury could properly find that the plaintiff was in the exercise of reasonable care for his own safety unless they found that the bell on the tender ivas not ringing, that neither the arc light nor headlight was burning, and that the watchman was not on the crossing giving warning of the approach of the engine.

A careful examination of the evidence has led us to the conclusion that the verdict is so manifestly against the evidence that the court erred in denying the motion of the appellant for a new trial, and for that error the judgment will be reversed and the cause remanded.

Reversed and remanded.


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    Louisa Novak, Appellant, v. Rochester German Insurance Company, Appellee.
    Gen. No. 15,164.
    1. Insurance—effect of delay in objecting to proofs of loss. Delay in objecting to proofs of loss waives defects in such proofs but does not waive any defense other than the insufficiency of such proofs.
    2. Arbitration and award—what testimony competent to impeach. The testimony of an appraiser who has not signed the award is competent to impeach the same.
    3. Arbitration and award—what invalidates award. An award which is signed by two arbitrators without notice to the third and without giving him an opportunity to be present at the execution thereof, is void.
    4. Res judicata—effect of former decision. A decision rendered by the Appellate Court in one appeal of a cause is the law of the case in a subsequent appeal to the same court of the same cause.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at. the October term, 1908.
    Affirmed.
    Opinion filed June 16, 1910.
    Charles A. Butler, for appellant.
    Edwin White Moore and Steers, Williams & Steers, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

The trial of an action of assumpsit, on a fire insurance policy, before the Municipal Court, without a jury, resulted in a finding and judgment for the defendant, and the plaintiff appealed. The policy sued on was for $1,500, $1,250 on a stock of groceries and $250 on fixtures, and insured against all direct loss or damage by fire. There was another policy for the same amount on the same property, issued by the Buffalo German Insurance Company. A fire occurred January 17, 1904, and the parties were unable to agree on the loss. In each policy is the following provision:

“In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall estimate and appraise the loss, stating separately the sound value and damage, and, failing to agree, shall submit their differences to the umpire, and the award in writing of any two shall determine the amount of such loss.”

February 11, 1904, the amount of the loss was by agreement of the parties, pursuant to the provision above set forth, submitted to Herman Hiller, chosen by the insured, and David Isaacs, chosen by the insurers. The submission agreement provided that the appraisers should select an umpire; that the award of the appraisers, or any two of them, made in writing pursuant to the submission, should be binding; that in determining the loss the appraisers should make an estimate of the actual cash value of the property before the fire, and in case of depreciation of the property from use, age, condition, location or otherwise, a proper deduction should be made therefor. The appraisers selected T. E. Filbert as umpire, and February 23, 1904, the three examined the property in the premises where the fire occurred. February 27, 1904, Miller and Filbert made and signed an award that the loss to the stock was $1,556.63 and to the fixtures $94.65. March 11 proofs of loss were delivered to the insurers. May 5 the adjuster of defendant wrote plaintiff as follows:

“You will please take notice that the Eochester German Insurance Company excepts to the sufficiency of the proofs of loss and the award had under policy numbered 116,567 on stock of groceries, store furniture and fixtures, situated at 1528 West Twenty-second street, Chicago, Illinois. Said exceptions are (1) the appraisers refused to hear evidence tending to show the condition of the property insured and the amount of damage thereto immediately after the fire; (2) the award was not based on the damage done to the property insured by the fire; (3) the appraisers awarded damage suffered by the propmiy by reason of the extreme cold, the elements and neglect of the owner of the property subsequent to the fire; (4) the award fails to show the estimate of the actual cash cost of replacing or repairing the injured property, or the actual cash value thereof at and immediately preceding the time of the fire.

“You will also further take notice that the company desires an appraisal under the terms of this policy, and hereby requests such an appraisal as is provided for in the policy and assures you of its readiness and willingness to enter into such an appraisal at any time you may designate.”

To entitle the plaintiff to recover she was bound to prove an appraisement and valid award. Niagara Fire Ins. Co. v. Bishop, 154 Ill. 9.

Appellant contends that: “The receipt of the proofs of loss and the- award by the appellee without objection for a period of fifty-six days of the sixty days allowed under the policy, is a waiver of any defects therein, and also makes the award and proofs of loss binding on appellee,” and cites in support of such contention: P. F. I. Co. v. Pulver, 127 Ill. 246; G. W. & I. Co. v. Staaden, 26 id 360; G. M. L. I. A. v. March, 118 Ill. App. 261. The eases cited only held that by delay in objecting to proofs of loss the insurer may waive defects in such proofs. We know of no case which holds that by such delay the insurer waives any defense other than the insufficiency of such proofs. Preliminary proofs of loss are only evidence of the fact, that the required proofs have been furnished, and are not evidence of the facts contained in them. Ins. Co. v. Schallman, 188 Ill. 213-225.

Isaacs, one of the appraisers, did not sign the award, and his testimony tending to impeach the award was competent. Levine v. Lancashire Ins. Co., 66 Minn. 138. This action was originally brought in the Circuit Court, where the plaintiff had judgment for $830.59, which, on appeal, was reversed by this court at the October term 1905, and the cause remanded. The cause was then transferred to the Municipal Court, and it was stipulated that on the trial in that court the bill of exceptions taken on the former trial might be read as depositions, reserving to each party all objections and exceptions thereto. On the trial in the Municipal Court only the evidence given on the former trial was introduced. In the Circuit Court a jury was waived and the court refused to hold the following propositions of law submitted by the defendant :

“IV. The court holds as proposition of law that the appraisers chosen by the parties in this case were obliged to ascertain the loss and damage to the property injured by reason of the fire, and the condition said property was in immediately after the fire and consequent upon the fire alone, and if, between the time of the fire and the time of the appraisal, the property insured suffered damage by reason of frost, or other cause than the fire, the appraisers had no right to take such damage into consideration in making their award, and if said appraisers, in estimating the loss or damage to said property, included injury by frost, said award is invalid.

“V. The court holds as proposition of law that if the appraisement in this case was made a month or more after the time of the fire, and if at the time of said appraisement, and subsequently to the time of the fire, the property which was the subject of the appraisal was injured by frost, and if the appraisers in their award of the loss or damage included such damage by frost, the award is void.

“X. The court holds as proposition of law that if the appraisers in this case estimated the loss or damage to the property solely by its condition at the time of the appraisement, and if between the time of the fire and the time of the appraisement the property had been injured by frost, or by any other cause not connected with the fire, the award is void.

“XV. The court holds as a proposition of law that if the two appraisers who signed the award made and executed the same without notice to the third appraiser, or giving the third appraiser an opportunity to be present at the time of the execution of the award, said award is void.”

This court held on the former appeal that the trial court erred in refusing to hold each of said propositions, and for that error the judgment was reversed. The decision of this court on the former appeal is the law of the case on this appeal.

We think that from the evidence the court might properly find that portions of the property insured were damaged by frost between the time of the fire and the time of the appraisal, and that the award includes damage by freezing occurring after the fire, and also, that the two appraisers who signed the award made and executed the same without notice to appraiser Isaacs, or giving him an opportunity to be present at the execution of the award. Such findings under the rules of law announced on the former appeal were fatal to plaintiff’s right of recovery. The conclusion thus reached makes it unnecessary to consider the other grounds on which appellee contends the judgment should be affirmed.

Finding no error in the record, the judgment is affirmed.

'Affirmed.


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    LaSalle Theatre, Appellant, v. Anna Sinton Taft et al., Appellees.
    Gen. No. 16,355.
    1. Landlord and tenant—what does not confer right of renewal. A person’s right to renew a lease is not conferred by a provision as follows: “If the lessee is desirous of renewing the lease, six months prior notice shall be given to the lessor for his consideration.”
    2. Landlord and tenant—what essential to liability for .double rent under section 2 of Act. In order to render a tenant liable for double rent by virtue of a hold-over it must appear that such holding-over was unlawful.
    3. Contracts—what eqtiivalent to rejection of proposition. If upon receipt of a proposition which by acceptance would form the basis of a contract, the same is not accepted but a counter and different proposition made, no contract is created.'
    4. Evidence—what competent to explain letter. Previous correspondence of the parties may be considered for the purpose of determining the meaning and intention of such parties in the use of words employed in a particular letter, but not for the purpose of varying or contradicting the plain terms of that letter.

      Bill in chancery. Appeal from the Superior Court of Cook county; the Hon. Geobqe A. Dupdy, Judge, presiding.
    Heard in this court at the March term, 1910.
    Affirmed.
    Opinion filed June 23, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This is an appeal by the complainant from a decree of the Superior Court dismissing its bill for want of equity and granting to the cross-complainant, Anna Sinton Taft, relief under her cross-bill. The bill, filed April 30, 1909, prayed that Anna Sinton Taft, one of the defendants, be decreed to execute and deliver to complainant a renewal of complainant’s lease of certain premises in Chicago then occupied by complainant as a theatre, for a term of five years from May 1, 1909, at an annual rental of $8,500, and that the defendants be enjoined from interfering with complainant’s possession of said premises during said term, etc. A preliminary injunction was prayed for and granted. The defendant, Anna Sinton Taft, answered the bill and filed a cross-bill claiming the right to the possession of said premises, praying that complainant be decreed to surrender the possession thereof to her, and that the court ascertain the rental value thereof and decree that complainant pay to her double such rental value from May 1, 1909, until possession should be surrendered to her. Complainant answered the cross-bill, replications were filed and the cause referred to a master to take and report the proofs with his conclusions both of law and fact. The report of the master recommended that the bill be dismissed for want of equity, that complainant be decreed to pay cross-complainant the rental value of said premises from May 1, 1909, at the rate of $18,500 per year. Complainant filed numerous objections to the report, which were overruled and afterwards ordered to stand as exceptions. The decree overrules all exceptions to the report; dismisses the bill for want of equity; decrees that cross-complainant have and recover from complainant possession of the premises in controversy; that a writ of restitution issue, etc., and that she recover of complainant $7,231.88, the amount of rent due from May 1, 1909, to the date of the decree, at the rate of $18,500 per year, after deducting payments made by complainant after the filing of the bill under an order of the court. Appellant assigned for error the dismissal of its bill, and Mrs. Taft assigned cross-errors on the refusal of the chancellor to allow her double rent.
    Rosenthal & Hamill, for appellant; Lessing Rosenthal and Leo F. Wormser, of counsel.
    Wilson, More & McIlvaine and McArdle & McArdle, for appellees.
   Mr. Justice Baker

delivered the opinion of the court.

It is not disputed that Mrs. Taft, August 5, 1902, gave to persons acting for and representing complainant an option-to May 1, 1903, to lease the premises in Chicago, then known, as the Blue Ribbon Restaurant, for five years from May 1, 1904. The principal controversy in the case arises on the contention that complainant, by exercising the option, acquired a right to a renewal of the lease for five years from May 1, 1909.

The negotiations which resulted in the giving of such option were carried on wholly by- correspondence. In June, 1902, the Pabst Brewing Company was in possession- of the premises under a lease which expired April 30, 1904. Complainant through Franks, its president, and Lowenthal, its secretary, then began negotiations with the Brewing Company for acquiring its unexpired term with a view of converting the premises into a theatre. The altei’ation of the premises into a theatre involved the expenditure of a large sum of money, and before acquiring the Brewing Company’s unexpired term complainant desired to obtain from Mrs. Taft an option for a lease for a further term after the expiration of that term. July 3, 1902, the Brewing Company obtained from Mrs. Taft a thirty days option to extend its lease five years. Lowenthal and Franks then employed Baird & Warner to secure for complainant from Mrs. Taft an option for a lease for a term of years after the expiration of the Brewing Company’s lease. C. Schmalstig was then a bookkeeper in the employ of Mrs. Taft and assisted in the management of her property. The material parts of the letters that passed between Baird & Warner at Chicago and Schmalstig at Cincinnati are as follows: July 12, 1902, Baird & Warner wrote Schmalstig:

“We have been figuring with the Pabst Brewing Co. for clients to lease the Blue Ribbon restaurant, and convert it into a first-class Music Hall theatre. As their lease runs only until May, 1904, we asked them to get an option for an extension of five years of their lease, which we are advised you gave. We write, with the consent of the Pabst Brewing Company, to ask you, provided our clients took their lease terminating May 1st, 1904, and paid for remodeling the premises into a theatre at a cost of about $25,000, will you give them an option of a five or ten years’ lease from May 1, 1904, the option to run until about May 1, 1903.”

In answer, under date of July 18, Schmalstig wrote that the matter had been referred to Mr. Taft, who was away on his vacation. In reply Baird & Warner, under date of July 28 wrote:

“Your favor of the 18th inst. at hand, and we note that you say that the option we asked for, for our clients, Lowenthal & Franks, of the ‘Blue Ribbon’ restaurant, 137 Madison street, will be referred to Mr. Taft. We' have obtained an option from the Pabst Brewing Company for their lease, and the negotiations now depend upon the granting of an option by you for an additional five years, as they cannot afford to make the expensive alterations for such a short time. The Pabst Brewing Company not only consent to our dealing directly with you, but they insist they will not take a further lease of the premises, and that we must deal with you. Ho doubt they have lost money there—the place is now closed. Our clients are responsible and experienced men and we think they can make a success of the enterprise. We enclose a proposition to us, which we think covers the matter and protects you.”

The following is the enclosure mentioned in said letter:

“Messrs. Baird & Warner, 90 LaSalle Street, Chicago.

Gentlemen:

We will lease the premises located at 137 Madison street, comprising the space now occupied by the ‘Blue Ribbon’ restaurant to your clients, Lowenthal & Franks, from May 1st, 1904, for five years at an annual rental of $8,000 a year, provided they satisfy us of their financial responsibility or have a guarantor on the lease who is acceptable to us; this proposition to remain open and in force until May 1, 1903. Provided a lease is made to them for five years at $8,000 a year we will pay you $640 as commissions, figured according to the Real Estate Board rates.”

August 5, 1902, Mrs. Taft, by Schmalstig, wrote Baird and Warner as follows:

“Gentlemen:

With reference to the proposition made by you for your clients, Messrs. Lowenthal & Franks, for the premises now occupied by the Pabst Brewing Company, 137 E. Madison St., your city, will say, that after due consideration of the matter we are prepared to make the following proposition to you: The present premises as understood by your proposition are to be converted into a first-class theatre and therefore shall be used only for first-class theatricals, dramatic, operatic, musical or other first-class entertainments, all of which are to be strictly moral, and that nothing of an immoral or immodest nature shall be permitted or allowed therein, and such performance must be conducted in such a peaceable manner as not to annoy other tenants in said premises or thereto adjoining, and that the store room shall be used only as an approach to said theatre' or an exit therefrom, but shall not be used for the sale of any spirituous or fermented liquors; neither shall they be served or consumed therein, and there shall be no loitering in said store room or on the sidewalk or any gathering of crowds on the sidewalk at any time. In complying with the foregoing, we will give you an option until May 1st, 1903, to lease said premises for a term of five years from the first day of May, 1904, such option, however, (being second to any privilege of renewal which may be asked for by the Pabst Brewing Company) for the sum of $8,500 per annum, payable in monthly installments in advance on the first day of each month. Also to pay all taxes on the improvements to be made, and to carry at their expense in the name of the lessor, insurance on the real estate of said theatre of not less than $25,000 in companies to be approved by the lessor and policies to be in possession of lessor. Said lease to have a guarantor who is acceptable to us. If the lessee is desirous of renewing the lease, six months prior notice shall be given to the lessor for his consideration, and at the expiration of the term or any renewal thereof, such improvements as shall be termed a part of the Real Estate shall remain or be restored to their present conditions at the option of the lessor without charge. The lease, if made, to include the general conditions of leases as provided by the Chicago Real Estate Board, and such provisions as more particularly applying to conducting theatres.

Tours respectfully,

A. S. Taft By C. Schmalstig, Agt.”

August 8 Baird & Warner wrote Schmalstig:

“Tour favor of the 5th inst. at hand embodying option for a five year lease on the ‘Blue Ribbon’ restaurant, 137 Madison street, from May 1, 1904.” * * *

Lowenthal and Franks accepted the proposition contained in Mrs. Taft’s letter of August 5, and obtained from the Brewing Company a lease of the premises from August 1, 1902, to April 30, 1904. December 13, 1902, they assigned their interest in said premises acquired under the lease from the Brewing Company and under the agreement made by the proposition of Mrs. Taft of August 5, and the acceptance thereof by them, to the complainant. Complainant took possession of the premises in August, 1902, under the lease from the Brewing Company to Lowenthal and Franks, and expended about $30,000 in converting the premises into a theatre. Complainant repeatedly demanded that Mrs. Taft execute a formal lease in accordance with the provisions of her letter of August 5, 1902, and she promised to execute such a lease, but none was ever executed. Both parties treated that letter and its acceptance as a contract of letting, as a lease, and under it complainant remained in possession of the premises from May 1, 1904, to April 30, 1909, and paid the rent and performed the conditions mentioned in the letter of August 5.

The letter of Mrs. Taft of August 5 contains the following provision: “If the lessee is desirous of renewing the lease, six months prior notice shall be given to the lessor for his consideration, and at the expiration of the term or any renewal thereof such improvements as shall be termed a part of the real estate shall remain or be restored to their present conditions, at the option of the lessor, without charge.” It is not disputed here that this letter of Mrs. Taft is to be treated as a lease of the premises to appellant for the term of five years from May 1, 1904, at the rent and on the terms stated in that letter. "When a right to renew is given in a lease, the right is to a renewal on the terms of the original lease save only the renewal clause. But the question here is not as to the terms of a renewal but is, whether the provision quoted gives to the lessee any right of renewal.

We do not think that the provision should be construed to give to the lessee a right of renewal. It provides that, “If the lessee is desirous of renewing the lease, six months prior notice shall be given to the lessor for his consideration.” The provision contains no words of promise or undertaking to renew on receipt of notice that the lessee is desirous of renewing, and the provision that such notice shall be given to the lessee “for his consideration” is inconsistent with the idea of the grant of a present right to renew.

The letter of August 5 was a rejection of the proposition theretofore made to Mrs. Taft, and the statement of a new offer complete in all its terms and conditions.

The previous correspondence of the parties may be considered for the purpose of determining the meaning and intention of the parties in the use of the words employed in the letter of August 5, but not for the purpose of varying or contradicting the plain terms of that letter. Auditorium Ass’n v. Fine Arts Bldg., 244 Ill. 532.

In the letter of July 12 Baird & Warner asked for an option for a “five or ten years lease from May 1, 1904.” In their letter of July 28 they asked for an option for a five years lease from the same date. The first mention of a renewal is found in the Taft letter of August 5.

In the Auditorium case supra it was also said that the acts of the parties contemporaneous or subsequent, indicative of their construction placed on an instrument, may be resorted to for the purpose of determining the true meaning of the instrument. In the letter of Baird & Warner to Schmalstig of August 8, and in their letter to Lowenthal and Franks of August 9, they speak of the option as an option for a five years lease. In Lowenthal’s letter to the Brewing Company of September 2, 1902, he says: “When we rented the Blue Ribbon Restaurant from you, or rather when we had Baird & Warner investigate the renting of the restaurant from you, we stated as a condition precedent that they should secure an option for us for the following five years from the owners at Cincinnati. * * * Having secured that option which insured the tenancy of the premises for us for the next six, seven years,” etc. In their assignment to complainant of December 13, 1902, and in their declaration of trust dated January 14, 1903, Lowenthal & Frank mention an option from the owners to lease the premises in question to them for five years from May 1, 1904. In May, 1905, complainant wrote Mrs. Taft that it desired to lease a room adjoining the entrance to the theatre from the expiration of the then tenant’s lease, “up to the time of the expiration of the lease we have on the other property,” and May 31 took a lease for said room from October 1, 1905, to May 1, 1909. In no writing-offered in evidence other than the letter of August 5 is there any mention of a renewal of the lease or any suggestion that complainant had or claimd any right in the premises extending beyond May 1, 1909.

We find in the previous correspondence or subsequent acts of the parties no support of the contention here made that the letter of August 5 gave complainant the right, on notice, to a renewal of its lease.

The contention of appellant that Mrs. Taft by her acts or conduct, or by the acts or conduct of any one acting for her, is estopped from denying that appellant has a right to a renewal of the lease, cannot, in onr opinion, on the evidence in the record, be sustained.

The master found, and the chancellor approved the finding, that the fair rental value of the premises from May 1, 1909, was $18,500 per year, and that complainant had not wilfully held over the premises after the expiration of its term, within the meaning of section 2 of the Landlord and Tenant Act, and therefore was not liable under said section for double rent. We think that both conclusions are proper on the evidence in the record. We are unable to see any ground on which complainant is entitled to the relief prayed, and think the decree gives to Mrs. Taft the relief to which she is entitled.

The order of this court of February 4, 1910, continuing in force the injunction will be vacated, and the decree of the Superior Court will be affirmed.

'Affirmed.


author: Mr. Justice Freeman

text:
    Mrs. Ellen G. Vaughan, Administratrix, Appellee, v. Chicago Junction Railway Company, Appellant.
    Gen. No. 15,089.
    1. Master and servant—when duty of inspection urgent. If old, rusty or worn appliances are placed in machinery, the duty of inspection becomes more obvious and urgent.
    2. Master and servant—what knowledge not essential to liability because of defective appliances. “Actual knowledge of the extent and character of the defect is not necessary to create liability. It is sufficient if appellant might have known by the use of such diligence as the law requires. No defect is latent which an inspection will disclose, hence appellant’s officers will be charged with knowing what an inspection would inform them of.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 16, 1910.

      Winston, Payne, Strawn & Siiaw, for appellant; John D. Black and John C. Slahe, of counsel.
    Darrow, Masters & Wilson, for appellee; Edgar L. Masters, of counsel.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court rendered in favor of Thomas Tobin as administrator of the estate of Dennis Vaughan, deceased, alleged to have lost his life by reason of the wrongful act of the defendant company.

The declaration is in three counts and charges in substance that on April 30, 1904, the deceased was in the employ of defendant as a switchman; that he was standing upon the footboard in front of a switch engine operated by defendant; that it became the duty of defendant to provide him a reasonably safe place to stand; that appellant negligently permitted said place to be unsafe and dangerous; that it was defendant’s duty to provide said switch engine with proper and suitable appliances so that persons rightfully on said engine could hold themselves in a safe manner; that defendant negligently failed to provide a safe and suitable handrail and permitted the appliances on the engine to become unsafe and dangerous, as defendant knew or in the exercise of ordinary care could have known, but which the deceased Vaughan did not know, and that while standing on the footboard of the engine holding on to said hand rail, he fell because of such defective condition and was killed.

There is evidence tending to show that the deceased, a man 43 years of age, had been in defendant’s employ between eight and ten years, working two years of that time as a switchman. The forenoon of April 30, 1904, at about ten o’clock, the switch engine in question was running without cars attached toward certain cars which were to be switched. Another switchman named Gray was riding with Vaughan upon the footboard of the engine. Gray was standing on the righthand side or end of the footboard and Vaughan upon the lefthand side, both facing to the front in the direction in which the engine was proceeding. Gray, it is said, spolce to Vaughan with reference to what they were to do and then jumped off and ran ahead in the discharge of his duties. It then became necessary, because of a curve of the track at that point, for the deceased to put himself on the righthand end of the footboard, taking Gray’s place, to enable him to see signals which Gray in front might give. Vaughan accordingly made an effort to swing himself around the draw bar projecting a few inches over the footboard in front of the center of the pilot beam of the engine. As he tried to do so, having his hand on the hand rail extending across the front of the engine just behind the men as they stood on the footboard, the standard which supported said hand rail on the lefthand side of the engine and was nearest to Vaughan parted from the bolt by which it was attached to the pilot beam and that left end of the hand rail swung forward and outward on the righthand standard as a pivot, causing Vaughan to fall forward on the track in front of the engine. He was rolled under the footboard and received injuries causing his death.

It is contended in behalf of defendant that the accident was due to a condition which could not be discovered by a reasonably careful inspection, that defendant made use of the only proper inspection and was guilty of no negligence. There is evidence tending to show that the standard or column which parted from the bolt by which it was attached to the oak pilot beam, and so caused Vaughan to be thrown forward under the engine, was put in place there on February 11, 1904, seven weeks before the accident. It is claimed in behalf of plaintiff and not denied, that the bolt was an old one when so put in, and the condition of the bolt seven weeks later, after the accident, when the threading was found to have been defective, tends to substantiate such contention. If old or rusted or worn when put in, the duty of careful inspection was all the more obvious and urgent. “The law will imply and infer notice of any defect which by the exercise of ordinary care might have been known to the master.” Missouri Mal. I. Co. v. Dillon, 206 Ill. 145-152. The “duty of inspection rests upon the employer and not upon the employe, and depends upon the character of the machinery or appliance, since ordinary care may require inspection oftener in one place than another.” Wrisley v. Burke, 203 Ill. 250-257. “This duty was a positive one owing by the defendant to the plaintiff.” C. & A. R. R. Co. v. Walters, 217 Ill. 87-92. The appliance was simple. Bo complaint is made as to its form, but that it was alloived to become so defective that when the deceased trusted his weight to it, it gave way without notice. There is evidence tending to show the hand rail appeared to casual observation to be safe. It had apparently been in use as usual that morning before the accident. As we said in Libby v. Cook, 123 Ill. App. 574-578, “Actual knowledge of the extent and character of the defect is not necessary to create liability. It is sufficient if appellant might have known by the use of such diligence as the law requires. Bo defect is latent which an inspection will disclose, hence appellant’s officers will be charged with knowing what an inspection would inform them of.”

In Rogers v. C., C., C. & St. L. Ry Co., 211 Ill. 126-131, is a quotation from 152 Ill. 458-461: “It is the duty of the Company to exercise reasonable and ordinary care and diligence in providing and keeping in repair reasonably safe machinery and appliances for the use of its servants; and .this is a continuing duty requiring the Company to exercise reasonable diligence and care in supervision and inspection.” The deceased had a right to rely on the proper performance of that duty by the defendant. It is said that an engineer went over the engine morning and evening, and had discovered nothing wrong about it. That kind of inspection failed to disclose the rusting of the screw and threads within the bolt, and could not reasonably be expected to. The engineer testifies that “about all a man can do in inspecting an engine is to walk around it and see that she is all there, that there aren’t any broken partsthat he “would take hold of the rods or take hold of any other parts I could reach handily and shake them.” He testifies that “all of our bolts when they have been in an oak beam a short time get in that condition,” that is rusted “by the acid in the wood.” Such conditions then could be reasonably anticipated in this case.

Defendant’s counsel urge that “the appliances came apart because of the stripping of the thread inside of the single piece of iron or standard, and the condition inside the standard was not discoverable from the inspection made nor from any test known to appellant.” There is testimony however tending to show that, assuming the bolt to have been in the same condition it was when produced in evidence, “the hammer test would detect any weakness whatever. There is a stripped condition inside the column. Stripping usually occurs suddenly if it is a perfect fit.” There is other testimony tending to show in effect that, “assuming that the bolt was put through a beam and projected-above the beam and was inserted in a standard, and assuming that it was solid in the beam, the condition apparent there now in regard to the bolt and standard could have been ascertained by the hammer test;” and further that the condition of those parts was not “caused by the weight of one man using it off and on for six weeks or two months;” that “the fact the handhold had held a man’s weight continuously several times a day for a period of two months without showing any sign of weakness” would not be considered a good test. There is conflict in the evidence as to whether the defective condition was or was not discoverable by proper tests. The fact remains however that the bolt and upright which gave way had become rusted and some of the threads were worn out at the time of the accident. This condition apparently was not discoverable by such tests as defendant had applied to the hand rail before the accident, but there is evidence tending to show it might have been discovered by other and more thorough going methods of inspection. The defect was not on the surface, but it does not follow, as defendant’s counsel claim, it was not discoverable by reasonable inspection such as the conditions required. It may be, as is claimed, that the defective condition “could not have been discovered except by unscrewing the standard and looking at the inside.” Even so, it was a question for the jury whether in a case of this kind the duty to use reasonable care to keep the appliance in a fit condition did not, as said in C. & E. I. R. R. v. Snedaker, 223 Ill. 395-405, “require inspection at reasonable intervals and the employment of such tests as will reveal the condition of the machinery or appliances.” The tests made were clearly not such as to “reveal the condition of the machinery or appliances.” We think the jury were warranted by the evidence in concluding that the accident resulted from negligence in this respect; that an appliance of this character, upon which switchmen in the daily performance of their accustomed duties were obliged to rely for the safety of their lives, may fairly be deemed to require of the defendant in the exercise of reasonable care a much more thorough inspection than the evidence shows was used in the case at bar.

Finding no material error in the record, the judgment of the Circuit Court will be affirmed.

Affirmed.