text:
    Emma Dietze, Administratrix, Appellee, v. Riverview Park Company, Appellant.
    Gen. No. 18,447.
    1. Negligence—amusement paries. Evidence in an action against en amusement park company for injuries received by a spectator at ft public exhibition held sufficient to charge defendant company with a duty toward the public and plaintiff with reference to the management nf the exhibition in question.
    2. Negligence—when amusement park company cannot escape liability for injury at an exhibition on its grounds. Where a spectator at ft public exhibition, for which an admission is charged, on the grounds of an amusement park company, is injured by the discharge of a firearm by a participant in a sham battle in the exhibition, the company cannot escape liability though the exhibition is given by a concessioner and no financial interest therein by the company is shown, since the duty to use reasonable care to see that all the exhibitions on its grounds are reasonably safe remains with the company especially when the exhibition is a sham battle.
    Appeal from the Superior Court of Cook county; the Hon. Harry C. Moban, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Schuyler, Ettelson & Weineeld, for appellant.
    Le Boy Richards, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This appeal is from a judgment of the Superior court of Cook county, entered upon a verdict in favor of the plaintiff, Emma Dietze, administratrix of the estate of Adolph Dietze, deceased, against the River-view Park Company, defendant, appellant here.

The declaration avers that the defendant, on June 28, 1908, was possessed of a certain inclosure called “Riverview Park,” located at or near the intersection of Belmont and Western avenues in the city of Chicago, and that it gave and conducted in the inclosure a public exhibition or show called the “Little Big Horn, ’ ’ and invited the public at large thereto, charging and receiving an admission fee, and in the exhibition or show firearms were used; that plaintiff’s intestate, Adolph Dietze, paid an admission fee to defendant on that day and attended said exhibition or show, and was seated upon a certain seat provided by the defendant for spectators; that the defendant negligently failed to exercise any care to protect the deceased from injury in the use of said firearms, and negligently permitted a certain firearm to be discharged in a negligent manner at and toward him whereby pieces of metal and wadding were discharged against and into his left leg, inflicting severe injuries and causing Mm to be.afflicted with tetanus from which he died on July 5, 1908.

The second count of the declaration is substantially the same as the first.

The appellant filed a plea of not guilty and a special plea denying that it was possessed of the inclosure mentioned in the declaration, and that it gave, conducted and provided seats for the show called the ‘ ‘ Little Big Horn. ’ ’

The evidence on behalf of the plaintiff tended to show that on June 28, 1908, between the hours of six and seven o’clock in the evening, Adolph Dietze went to Riverview Park, and at the entrance to the park purchased an admission ticket which he gave to the gateman when he entered. In the central part, of the park was an inclosure built of poles extending up and down like a stockade ten or twelve feet high. Inside tMs inclosure there was a show being given called the “Little Big Horn.” The show consisted of a sham battle representing Custer’s last fight.

Shortly after the deceased entered the park grounds a number of men, some of whom were dressed as cowboys and the others as Indians, came out of the inclosure above mentioned and paraded through the grounds of Riverview Park on horseback, and then went into the entrance to the inclosure. A band on the outside of the inclosure played and then went in. A ticket booth stood out in the grounds about twenty feet distant from the inclosure, and a “spieler” stood near this booth inducing the people in the park to purchase tickets to the show. The deceased purchased a ticket and entered the inclosure to see the exMbition.

The arrangement inside of the inclosure where the show was given was as follows: The seats for the audience faced north and were composed of circus seats running back and up to a height of from twelve to fifteen feet. In front of these circus seats was a row of boxes or small spaces with railing around and chains in them. In front of the boxes was a narrow strip of ground a few feet wide. Beyond this was a small creek or river, and to the north of this a level space about 200 feet square, and north of this space something was built to represent mountains.

In the positions and maneuvers of those taking part in the performance, the cowboys faced to the north and the Indians to the south; the cowboys were not directly between the audience and the Indians. The battle between the cowboys and Indians had been going on for something like fifteen minutes or more when there was a lull. As the shooting died down, one of the Indians up in the mountain fired, as the Indians had all been doing throughout the performance, in the direction df the audience, and plaintiff’s intestate was shot in his left leg, and a short time thereafter a piece of shell was taken from his leg.

Appellant offered evidence tending to show that the persons engaged in giving the sham battle cautioned the men taking part in them to keep their guns at a high elevation of forty-five degrees by reason of the fact that it is possible to do considerable damage with a wad alone at a distance of over 200 feet; to see that the right cartridges and nothing but new shells were used; that the men taking part in the battle should see to it that any shell or part of a shell, which might explode or break when being fired, was removed from the barrel of the gun before taking part again in the performance; and that the customary precautions as above indicated were taken, and instructions given accordingly to those who were participating in the sham battle.

On behalf of appellant, the evidence of its president tended further to show that he had instructed the management of the battle of the “Little Big Horn” show that firearms must not be discharged toward the audience, and that he had repeatedly visited the show and had never observed any violation of these instructions. He further testified that he 'had never paid or discharged any of the performers connected with the show. The superintendent and property manager of the “Little Big Horn” show testified that'the instructions above mentioned had been given and had never to his knowledge been violated. He further testified that as such manager he was employed and paid by the Coney Island Spectacular Amusement Company.

On the trial, appellant, at the close of the evidence, presented a motion to direct a verdict of not guilty. This motion was overruled by the court. It raises the main question in the case as to the liability of appellant upon the evidence.

Appellant contends that the evidence fails to make a sufficient showing as to the relationship of the proprietor of the show with appellant to bring the case within the purview of Stickel v. Riverview Sharpshooters’ Park Co., 250 Ill. 452, and Babicz v. Riverview Sharpshooters’ Park Co., 256 Ill. 24, for the reason it does not appear that there was any division of gate receipts between the persons giving the show and appellant, or that appellant had any financial interest in the show in question. There is some evidence offered by appellant from which it might be inferred that there was a corporation or association other than appellant known as the Coney Island Spectacular Amusement Co., which was engaged in giving the show in question. This is not shown by direct evidence. It appears only, if at all, by inference. The jury might as well, and with an equal right and without acting unreasonably, infer that such association was acting as the agent of appellant. The proof of the relation between appellant and the persons giving the show was in appellant’s own hands, but it failed to produce it.

The evidence offered by appellee tends.to show that the Riverview Park Company, appellant, at the time in question, was in possession, control and conducting the amusement grounds known as “Riverview Park.” The tickets sold at the booth within the appellant’s grounds were tickets, according to the evidence, printed on the order of appellant and delivered by appellant to the “Little Big Horn” show, and charged to it on appellant’s account books, and it appeared from the evidence that the tickets used by all the concessioners in the park were printed at the order of appellant and distributed to the concessioners. This evidence, considered with the other evidence in the case, was sufficient to carry the case to the jury upon the question of liability. While the evidence does not develop the relations between appellant and those persons having in charge the show in question as fully and clearly as appeared in the evidence in the above cited cases, it was sufficient to carry the case to the jury on the questions of fact involved under the pleadings. In other words, the evidence was sufficient to charge the appellant with a duty toward the public and the deceased with reference to the management of the show in question.

It is further contended that there was no evidence of negligence on the part of appellant for it could not be charged with liability for an act and an injury therefrom which it could not have any reason to anticipate; that, at most, appellant can be charged with a duty to use reasonable care in inspecting and supervising the performance given, and it could not be expected to presume that the persons giving the show would violate express and specific instructions as to the direction of firing.

In the Stickel case, supra, it was, in substance held that in amusement places, where space is granted for conducting attractions for the amusement of the public and for which an admission fee is charged by the concessioner and divided with the owner, there is unanimity of authority that the owner assumes an obligation that the devices and attractions operated by the concessioners are reasonably safe for the purpose for which the public is invited to use them; and it is also held that while there are some decisions to the contrary, the great weight of authority is that the owner will not be relieved from responsibility because the exhibition is provided and conducted by a concessioner, if it is of a character that would probably cause injury unless due precautions are taken to guard against it; and the court cites numerous authorities in support of the position.

It would serve no useful purpose to here review the authorities cited in the Stickel case, sufra. Appellant cannot escape liability in this case under the authorities referred to above even though the evidence shows, or should be held to prove, that the show in question was given by a concessioner and not by appellant, and fails to show that appellant had a financial interest in the concession. It was one of the attractions which brought the public to appellant’s grounds. Appellant assumed an obligation to see that the premises were in a reasonably safe condition so that persons there by its invitation would not be injured. In short, it was the duty of appellant to use reasonable care that there should be no firing of dangerous firearms upon its grounds by which the life or limb of any persons whom it had invited to its grounds would be jeopardized. As between the appellant and those producing the attraction, this duty of using reasonable care to see that all of the exhibitions on its grounds were safe remained with appellant although the show in question was under the management of a concessioner, and the character of this duty in a show of the kind conducted in the “Little Big Horn” inclosure was particularly strong and urgent because of the attendant danger in the use of firearms. It appears that appellant, to some extent at least, realized and acted upon the duty thus cast upon it, for its president had given instructions to the management of the battle show that firearms must not be discharged toward the audience, and the superintendent and property manager of the show testified that the above instructions were given and were never violated to his knowledge.

The court did not err in refusing to direct a verdict for the defendant. We cannot say that the verdict is against the weight of the evidence; on the contrary, we think the evidence supports the verdict.

We have examined the alleged errors of the court in refusing to give instructions requested by appellant, and in giving the instructions requested by plaintiff stating the rule for assessing damages. We find no reversible error in the'rulings of the court with reference to the instructions.

The verdict is not excessive.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice F. A. Smith

license: Public Domain

text:
    Frank M. McKey, Receiver, Appellee, v. Jacob Provus and The Empire State Surety Company, Appellants.
    Gen. No. 18,478.
    1. Practice Act—section 55 as amended construed. Section 55 of the Practice Act as amended, relating to cases in which the affidavit of defense is to only a portion of plaintiff’s demand, is a highly remedial statute intended to do away with the common-law rule which permitted only one judgment to be entered in an action and to allow a judgment to be entered for what is admitted to be due and allow the cause to proceed in the regular way to trial and judgment as to the disputed, part of the demand.
    2. Practice Act—when section 55 as amended applies. In an action for a breach of the condition of a bond providing for the return of certain property on certain conditions, where the only question is as to the value of the property and defendant in his affidavit states that its value .does not exceed a certain amount, section 55 of the Practice Act as amended, relating to cases in which the affidavit of defense is to only a portion of plaintiff's demand, is applicable and authorizes the court to enter judgment for the amount admitted to be due, to order the case to proceed as to the disputed amount and to enter judgment therefor.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 3, 1913.
    Harry M. Fisher, for appellants.
    Silber, Isaacs, Silber & Woley, for appellee; Frederick D. Silber, of counsel.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

The plaintiff, as receiver, appellee, brought suit against the defendants, appellants, on a bond executed by them in the sum of $3,000, the condition of which bond was that if the obligor, Provus, would return to the obligee, McKey, receiver, certain personal property therein described, in the event the circuit court of Cook county should, by its decree, find that said property belonged to one Sam Mastrofsky at the time of the filing of a certain hill in the bond mentioned and would pay all expenses, etc., the bond to be void; otherwise to remain in full force and effect.

The declaration alleges, and the proof shows, a breach of the condition, and the only matter in controversy was the value of the property in question.

The plaintiff attached to his declaration an affidavit which averred that, the demand of the plaintiff was upon a certain bond, a copy of which was attached and made a part of the affidavit, and that there is due and owing from the defendants to the plaintiff, after allowing to defendants all just credits, deductions and set-offs, the sum of $3,000.

A copy of the instrument sued on was attached to the declaration. The defendants filed a plea of ml debet and attached to the plea was an affidavit by Provus that the defense of the defendants to the demand of the plaintiff is that the property in the declaration mentioned was not worth to exceed the sum of $1,500.

Upon the filing of the plea, the court entered judgment for the $1,500 admitted to be due by the affidavit of the defendants, and ordered that the suit should thereafter proceed as to the portion of the plaintiff’s demand which was in dispute, being the sum of $1,500, as if the suit had been brought therefor, and that the costs of the suit abide the further order of the court.

Execution was issued on the judgment, and the defendants paid the judgment. The cause then proceeded to trial before the court without a jury, and the court found in favor of the plaintiff, finding the value of the property at $3,000, and that the defendants should have credit for the sum of $1,500 on the total damages which were assessed at $3,000, and entered judgment for $1,500 in favor of the plaintiff. It was agreed by counsel for both sides on the trial that the only question at issue was the value of the property involved.

The question presented by the record is the power of the court to enter two judgments in this case under section 55, chap. 110, Hurd’s B. S., as amended in 1909.

It is urged that the affidavit did not state a defense to any portion- of the demand; that the demand was not divisible, and the affidavit must be taken as admitting the entire claim and to entitle the plaintiff to a judgment leaving only the question of the amount to be ascertained and assessed; that the affidavit states the defense is to the whole of the plaintiff’s demand and places the value of the property at $1,500 only, and the rendition of the judgment for $1,500 upon the affidavit was the final determination of the only matter in dispute, namely, the value of the property and that the first judgment was therefore an absolute and final disposition of the case. We do not agree with the contention of appellants as to the effect of the affidavit, or the first judgment of the court under section 55 of the Practice Act as amended. Section 55, as amended, must be regarded as a highly remedial statute intended to do away with the technical rule of the common law which permitted only one judgment to be entered in a suit, and allow a judgment to be entered in an action for what was admitted to be due and allow the cause to proceed in the regular way to trial and judgment as to the disputed part of the demand sued on. So far as we are advised, there is no decision in this state by our Supreme Court upon this statute as amended. In other jurisdictions the provisions of similar statutes have been passed upon. In Calkins v. Kelly, 3 Pa. Dist. Ct. Rep. 339, the Pennsylvania Act of 1893 was construed. The action was brought for goods sold and delivered in the sum of $2,890. Credits were allowed amounting to $2,274.32, leaving a balance of $615.77, which the plaintiff claimed a right to recover. The affidavit of defense set up that there were overcharges in some of the items, and that the defendants were entitled to certain credits, and that, therefore, defendants only owed $336.31, which the affidavit stated the defendants were ready and willing to pay and tendered. In deciding the case, the court said:

“It is contended on the part of defendants that the proper construction of the act is, that it does not apply to the case of an admission of an amount due upon items all of which are more or less in dispute, and that it is intended only to meet the cases where there is an admission that certain of the items are due. Looking at the language of the act, and the objects to be accomplished by it, we see nothing which should lead the court to draw such a distinction. ‘Part of the claim’ may be one of two items, or it may just as well be the half of each of two items. If it had been intended to limit the effect of the act in this manner, it would have been easy to have used language which would have expressed that thought. The object plainly is to permit the plaintiff to have a judgment for ‘that part of the claim’ about which there is no contention, and the manner in which the portions are divided would seem to be immaterial.”

The court made the rule absolute for the amount admitted to be due, with leave to the plaintiff to proceed for the recovery of the balance.

In Roberts v. Sharp, 161 Pa. St. 185, the plaintiff claimed for structural work done upon a hotel, amounting to $16,640.02, against which defendant, in his affidavit of defense, claimed a set-off of certain disputed items for extra work and certain claims for money paid to finish the plaintiff’s work, amounting to $6,882.72, and admitted that he owed $9,757.30. A judgment for the amount admitted to be due was entered, and it was argued in that case that if judgment were entered the plaintiff must accept it in full of his claim and could not proceed to trial for the residue. The court said that two important questions of practice were involved; the first as to the method of taking an interlocutory judgment of this kind, whether it should be assessed by the prothonotary, or entered by the court; the other was as to whether the plaintiff could take an interlocutory judgment, and proceed upon the contested balance. On the latter question the court said:

“The very object of the Act of 1893 was to enable judgment to be entered for the amount admitted to be due without prejudice to the plaintiff’s right to proceed to trial for the recovery of the balance'of the demand. No distinction between, or separation of, items of the demand was within the language or proper meaning of the act, and as it provides1 that judgment may be taken for the amount admitted to be due, and authorizes a trial for the balance of the demand, we consider that it is of no consequence to determine how the amount is ascertained or how the balance is composed. The judgment is affirmed.”

A similar provision of the New Hampshire statutes was construed in Richey v. Cooper, 45 N. H. 414, and the same construction was given to the statute as in the above cited Pennsylvania cases.

Buffalo Bart Wire Co. v. Phillips, 64 Wis. 338, construes a similar provision of a Wisconsin statute, and upholds the order of the court requiring the defendants to pay a balance admitted to be due.

In Stuckert v. Wedge, 46 Pa. Sup. Ct. Rep. 140, assumpsit was brought to recover $300 for services of an architect. The defendant filed an affidavit denying that the services were worth $300, and averred that they were not reasonably worth more than $100, which the defendant said he was ready and willing to pay, and tendered in full settlement of the claim. The court made absolute a rule for judgment for $100. On appeal the judgment was upheld as being within the authority of the statute authorizing a plaintiff to take judgment for a part or parts of the claim as to which the court should adjudge the affidavit of defense to be insufficient in law.

The above cases indicate clearly the opinions of courts of other jurisdictions on the construction of similar statutes. They indicate that remedial statutes of the character of section 55 of the Practice Act as amended must be given a broad and liberal construction for the purpose of carrying out the object which the statute seeks to accomplish.

The value of the property taken under the bond sued on in this case was made up of the sum total of a number of individual items. In fixing the penalty of the bond, the court determined that $3,000 was the probable value of the property. In making the affidavit of defense, the defendants fixed the value of all the different items of property at $1,500. The amount in dispute, therefore, between the plaintiff and defendants was only $1,500. When the statute authorizes that the suit shall proceed as to the part of the demand not in dispute, it provides for such a situation as is presented in this case. We think the statute is applicable to the situation presented by the pleadings and affidavits in this case, and authorized the judgment.

The judgment of the circuit court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    Susan Keith et al., Executors, Defendants in Error, v. Grace D. Thayer and Cora Thayer Ray, Plaintiffs in Error.
    Gen. No. 16,326.
    1. Privity—definition. The term privity denotes mutual or successive relationship to the same rights of property.
    2. Appeals and errors—when error may not be prosecuted. . Where an owner of realty conveys it by warranty deed to a third person before a writ of attachment is issued and levied thereon, the heirs at law of such owner cannot prosecute a writ of error to reverse a judgment sustaining the attachment, on the ground that the amount of their inheritance from the owner may be depleted because of a breach of the covenants of such deed.
    3. Appeals and ERRORS'—who may bring error. The prejudice to a party by reason of a judgment which will authorize him to sue out a writ of error to reverse it must be direct and certain.
    4. Appeals and errors—who may not bring error. The heirs at law of an owner of realty cannot prosecute a writ of error to reverse a judgment sustaining an attachment levied on such realty where the owner conveyed it by warranty deed to a third person before the attachment was issued and levied and it is clear that such heirs have no interest in said realty.
    Error to tie Superior Court of Cook county; the Hon. Jesse Holdout, Judge, presiding.
    Heard in this court at the March term, 1913.
    Writ of error dismissed.
    Opinion filed June 9, 1913.
    Statement by the Court. October 3,1898, defendants in error brought an action of debt in the Superior Court against Moses A. Thayer, the ancestor of the plaintiffs in error. December 19, plaintiffs filed an affidavit for an attachment in aid, on which a writ was issued and levied the same day on certain real estate in Cook county as the property of the defendant. Thayer conveyed the real estate so attached to Susan C. Bay by warranty deed dated and acknowledged October 5, 1898, but not recorded until December 31, 1898. December 30, 1898, she filed an interplea in the attachment proceeding, averring that the real estate so attached was when attached her property. Thayer filed a replication confessing the interplea. The plaintiffs in the suit in an additional replication averred that at the time when, etc., the title to said real estate stood of record in fee simple in the name of defendant Thayer, and that prior to the time of the levy they had no notice of the alleged ownership of said property by the interpleader. To this replication the interpleader demurred, her demurrer was overruled and she electing to stand by her demurrer, final judgment was entered at the time when, etc., the realty attached was not as against the plaintiffs the property of the interpleader. This judgment was affirmed by the Supreme Court in Ray v. Keith, 218 Ill. 182. On the first trial of the cause the jury found the issues on the merits for the plaintiff, but failed to agree on the issues in attachment. Judgment was entered February 24, 1900, against Thayer for $25,000 debt and $6,940.84 damages. -Before the second trial on the attachment issues Thayer died and his administrator was substituted as defendant and filed a plea traversing the affidavit for attachment and also a plea traversing the amended affidavit for attachment which the court allowed plaintiffs to file. The interpleader and Bolan and Stewart, to whom she conveyed an undivided interest in the property attached, November 31,1903, moved for leave to file an interplea instanter, but the court denied the motion. The moving parties then sued out a writ of error from, the Appellate Court where the judgment was affirmed, and on a writ of error from the Supreme Court to the Appellate Court was again affirmed. Keith v. Ray, 231 Ill. 213, affirming 134 Ill. App. 119. January 7, 1905, the court found the issues in attachment for the plaintiffs and entered judgment sustaining the attachment. To reverse this judgment the plaintiffs in error, as the heirs at law of the defendant Moses A. Thayer, prosecute this writ of error. The defendants in error interpose a motion to quash the writ of error and dismiss the proceeding.
    Eugene Stewart, for plaintiffs in error; Park Phipps, of counsel.
    Bayley & Webster, for defendants in error.
   Mr. Justice Baker

delivered the opinion of the court.

It is clear that the plaintiffs in error have no interest in the real estate attached. Their ancestor conveyed it to Susan C. Ray.

It is said in a note to the case of William v. Gwyn, 2 Williams' Saunders, 46c, that: “No person can bring a writ of error unless he is a party, or privy to the record or prejudiced by the judgment; the rule on the subject being that a writ of error can only be brought by him who would have had the thing if the erroneous judgment had not been given.” The term privity denotes mutual or successive relationship to the same rights of property. 1 Greenleaf on Evidence, sec 189. The fact that Thayer conveyed to Susan C. Bay by warranty deed does not give plaintiffs in error the right to prosecute a writ of error to reverse the judgment sustaining the attachment, on the ground that the amount of their inheritance from Thayer may be “depleted” because of a breach of the covenants of such deed. The prejudice to a party by reason of a judgment which will authorize him to sue out a writ of error to reverse it must be direct and certain. We are unable to perceive any ground on which plaintiffs in error can prosecute the writ of error.

The motion will be treated as a motion to dismiss the writ of error and will be allowed.

Writ of error dismissed.


author: Mr. Presiding Justice Gridley

text:
    George Goding, Defendant in Error, v. The MacArthur Company, Plaintiff in Error.
    Gen. No. 18,156.
    1. Municipal court—default. Where an affidavit of merits which does not state a legal defense is stricken from the files and defendant does not ask leave to file an amended affidavit, under Rule 17 of the Municipal Court, the court may enter judgment as in case of default.
    2. Evidence—presumption as to validity of note. In an action on a note, the execution of which is not denied, a presumption exists that it was regularly issued for a valuable consideration, and that the payee is a bona fide holder and entitled to recover the full amount thereof.
    3. Pleading—failure of consideration. In an action on a note, to constitute a good plea of failure of consideration under the statute, the pleader must set out what the consideration was and specify wherein it has failed.
    4. Pleading—want of consideration. In an action on a note, a plea of want of consideration is sufficient if it avers in the language of the statute, ór any equivalent language, that the defendant made the note without any good or valuable consideration therefor.
    5. Negotiable instruments—where affidavit of merits does not set up a good defense. In an action on a note, an affidavit of merits which sets up that defendant was loaning a text-book company $300.00 a week to pay running expenses of the business, including salaries, that plaintiff was one of the employes, that at the time of the execution of the note the defendant did not have $300.00 in cash to loan the text-book company, but loaned $200.00 in cash and gave the note sued on for $100'.00 payable to plaintiff, but which contains no allegation that the text-hook company did not owe plaintiff $100.00 for salary, does not show failure of consideration and is properly stricken from the files.
    Error to the Municipal Court of Chicago; the Hon. Jambs C. Martin, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 12, 1913.
    Louis Shissler, for plaintiff in error.
    Percival Steele, for defendant in error; Harvey L. Cavender, of counsel.
   Mr. Presiding Justice Gridley

delivered theopinion of the court.

On November 8, 1911, George Goding commenced an action of the fourth class in the Municipal Court of Chicago against The MaeArthur Co., a corporation, defendant, to recover money claimed to be due him on a note executed by the defendant. A copy of the note was attached to his statement of claim, from which it appeared that the note' was dated Chicago, February 4, 1911, and that the defendant promised to pay to the order of plaintiff, at Chicago, the sum of $100, thirty days after said date, for value received. Plain-tiff also caused to be filed an affidavit of claim, sworn to by an agent, showing that there was due plaintiff from defendant the sum of $103.75. The defendant entered its appearance and filed an affidavit of merits', claiming that it had a good defense to the whole of plaintiff’s demand and setting forth the nature of that defense. On December 7, 1911, the court ordered that said affidavit of merits be stricken'from the files. The record does not disclose that defendant asked leave to file an amended affidavit of merits. The court, for want of sufficient affidavit of merits, thereupon entered a finding and judgment against the defendant for the amount stated in plaintiff’s affidavit of claim, viz: $103.75. It is here.assigned as error that'the-court erred in striking defendant’s affidavit of merits from the files, and in entering the judgment.

If the affidavit of merits did not on its face state a legal defense to plaintiff’s demand on said note, the court was. justified in striking said affidavit from the files. And as defendant, by not asking leave to file an amended affidavit, in effect elected to stand by the affidavit, it was proper for the court to enter the judgment by virtue of certain provisions contained in Buie 17 of the Municipal Court, as follows: “Where the defendant’s affidavit of merits is stricken from the files for insufficiency, the court may then and there enter judgment as in case of default for plaintiff upon the plaintiff’s affidavit of claim in said cause, or such further evidence as the court may require. ’ ’ The sole question, therefore, is whether or not defendant’s affidavit of merits stated a good defense to the note.

By section 55 of the Practice Act a defendant is required, in his affidavit of merits, to specify the “nature” of his defense, and Buie 17 of the Municipal Court requires a defendant in a fourth class case to specify “the nature of such defense * * * in such a manner as to reasonably inform the plaintiff of the defense which will be interposed at the trial.” In an action on a note, the execution of which is not denied, a presumption exists that the same “was regularly issued for a valuable consideration, and that the payee is a bona fide holder, and entitled to recover the full amount thereof.” Perry State Bank v. Elledge, 109 Ill. App. 179. And in such an action the defendant may plead “want of consideration, or that the consideration has wholly or in part failed.” Section 9, chap. 98, Hurd’s Ill. Stat. “To constitute a good plea of failure of consideration under the statute, the pleader must set out what the consideration was, and specify wherein it has failed; that in setting up the defense of want of consideration, although when there is a supposed consideration, and an alleged insufficiency of it to support the instrument, the pleader may set it out for the purpose of referring its want of sufficiency directly to the judgment of the court. Still, the rules of pleading do not require that to be done; and the plea is sufficient if it aver, in the language of the statute, or any equivalent language, that the defendant made the note in the count without any good or valuable consideration therefor.” Honeyman v. Jarvis, 64 Ill. 366, 371. While by section 3 of the Municipal Court Act it is provided “that in all cases of the fourth class * * * the issues shall be determined without other forms of written pleadings ’ ’ than those in that Act expressly prescribed, we apprehend that a judge of that court, in passing upon the sufficiency of an affidavit of merits, wherein is stated the “nature” of the defendant’s defense in an action upon a note, should apply the same tests as would be applied to a plea.

While the affidavit of merits in this case states in general terms that “said note was accommodation paper and was without a good and valuable consideration,” it also specifies other facts by which it was attempted to show wherein the said note was accommodation paper and without a good and valuable consideration. As we construe these specific allegations, which the defendant was not required to make but which he might make and did make, they do not show a good defense to the note. It appears from these allegations that the defendant was loaning to the National Textbook Company $300 per week to pay the running expenses of the business of the text-book company, including salaries; that plaintiff was one of the employes of the text-book company; that at the time of the execution of the note the defendant did not have $300 in cash to loan to the text-book company,but loaned to it $200 in cash and gave the note sued on for $100 payable to the plaintiff; and that at said time the defendant did not owe anything to the text-book company or to the plaintiff. The affidavit should be construed most strongly against the defendant. There is no allegation that at said time the text-book company did not owe the plamtiff $100 for salary. If this was so, and the inference from the facts as stated is very strong that it was so, there was a good consideration for the note. The transaction was in effect the same as if at said time the defendant had loaned the text-book company $200 in cash and given its accommodation note to the text-book company for $100, and the textbook company had endorsed that note over to the plaintiff for value, in which case, even though the plaintiff knew at the time that the defendant was only an accomodation party, the defendant would be liable on the note. Section 47, chap. 98, Hurd’s Stat. 1912.

The affidavit of merits sets forth at length certain other happenings occurring in April and June, 1911. In effect, it states an attempted novation, but there is no allegation that the plaintiff ever knew of or consented to the same.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Edward A. Hemsteger, Defendant in Error, v. Olof Nelson, Plaintiff in Error.
    Gen. No. 18,221.
    1. Damages—exemplary. Where defendant enters into a contract to purchase a building and directs a man to lay a cement floor in the basement, who breaks the lock of a room where a tenant’s property is stored and exposes the property for eight days to inclement weather, an award of exemplary damages to the tenant is sustained.
    2. Damages—exemplary. To authorize the giving of exemplary or vindictive damages, either malice, violence, oppression or wanton recklessness must mingle in the controversy.

      3. Damages—when malice will he inferred. In an action for exemplary damages, where it appears that the defendant has acted with a wanton, wilful or reckless disregard of the rights of the plaintiff, malice will be inferred.
    4. Damages—question of fact. Where plaintiff claims exemplary damages, it is for the jury to determine from all the facts and circumstances whether malice is shown and whether the ease requires more than compensatory damages.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 12, 1913.
    P. H. Bishop, for plaintiff in error.
    Joel F. Longeneckeb, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Edward A. Hemsteger, plaintiff below, recovered a judgment in a tort action in the Municipal Court of Chicago for $300, against Olof Nelson, defendant below. The judgment was rendered upon the verdict of a jury, assessing plaintiff’s damages in that sum.

Plaintiff was the lessee and occupant of an apartment in the building at No. 6023. Champlain avenue, Chicago. In the basement of the building there were three storerooms. Plaintiff had stored various articles of personal property of considerable value in one of these rooms, of which he had the exclusive use. The door was locked with a padlock and hasp. The defendant had entered into a contract to purchase the building, but at the time of the following occurrences he had not yet become the owner. He directed a man named Carlson to lay a cement floor in said basement. On the morning of March 28, 1911, several men started on the work. Without notice to the plaintiff they proceeded to break up the old basement floor and to break the lock on the door of the storeroom used by plaintiff, and carried plaintiff’s property out of the room and placed it under the hack porch of the building. The defendant was present during the morning and while the men were removing plaintiff’s property, and saw that the lock on the door of the room had been broken. Plaintiff was not in the building at the time. On the previous evening defendant informed another tenant in the building, who had goods stored in another room in the basement, of his intention to lay the cement floor, and told her he would take care of her property. Although he saw plaintiff on that evening he did not so inform plaintiff. The goods of plaintiff remained on the ground under the back porch for eight days and were exposed to inclement weather. There was evidence tending to show that they had been damaged to the extent of over $150. There was also other evidence tending to show that defendant had acted wilfully and with reckless disregard of the rights of plaintiff. It is evident from the amount of the verdict that the jury thought that the plaintiff was entitled to exemplary damages, and we think that the verdict was fully justified by the evidence. “The rule is, ‘that to authorize the giving of exemplary or vindictive damages, either malice, violence, oppression or wanton recklessness must mingle in the controversy. ’ * * * Malice being a question of fact and for the consideration of the jury, it is not necessary that express malice should be proved. If it appears that the party has acted with a wanton, wilful or reckless disregard of the rights of the plaintiff, malice will be inferred." Chicago Consol. Traction Co. v. Mahoney, 230 Ill. 562, 567. It was for the jury to say whether, from all the facts and circumstances of this case, malice on the part of the plaintiff was shown, and that the case required more than compensatory damages to be assessed. Farwell v. Warren, 51 Ill. 467 472. The judgment will accordingly be affirmed.

Affirmed.


text:
    Henry M. Seligman, Defendant in Error, v. Louis Greenberg, Plaintiff in Error.
    Gen. No. 18,243.
    Negotiable instruments—where verdict is sustained. Where plaintiff, an attorney, obtains judgment on a cheek, indorsed and delivered to him by the payee for collection, the defense being gaming, and it does not appear that the verdict is manifestly against the weight of the evidence, the judgment is affirmed.
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 12, 1913.
    Herman Frank and Harry J. Lurie, for plaintiff in error.
    Henry M. Seligman, pro se.

   Mr. Presiding Justice Gridley

delivered the opinion of the court.

The plaintiff, Henry M. Seligman, brought suit in the Municipal Court of Chicago against Louis Green-berg, defendant, to recover money due on a certain check for $200, dated February 4, 1908, signed by the defendant, drawn on the First National Bank of Chicago, payable to the order of Max Gage and by him indorsed to the plaintiff. It appeared that the check-had been indorsed and delivered to the plaintiff for the purpose of collection, that plaintiff had no interest in the check except as attorney for said Gage, and that plaintiff admitted that any defense that might be good as against said Gage would be good as against plaintiff. The defendant claimed that the check was executed and delivered to said Gage in settlement of losses sustained by defendant while playing a game of cards, commonly called poker, with said Gage and others on the day of the date of the check, and that the check was void under the provisions of section 131 of chapter 38 of the Illinois statutes. The plaintiff claimed that the check was executed and delivered by the defendant to Max Cage in consideration of the sum of $200 in currency actually loaned by said Cage to the defendant at the latter’s request. The case was tried by a jury. They returned a verdict for $200 in favor of plaintiff and judgment was entered thereon, which judgment the defendant by this writ of error seeks to reverse.

No good purpose would be served by a discussion of the conflicting testimony of the witnesses offered by the respective parties. Suffice it to say, that after reviewing the same we cannot say that the verdict is manifestly against the weight of the evidence. Nor do we think, in view of the evidence, that the verdict and judgment are contrary to the law, as urged by defendant’s counsel. The judgment is accordingly affirmed.

Affirmed.


text:
    Charles M. Gale, Defendant in Error, v. United States Brewing Company of Chicago, Plaintiff in Error.
    Gen. No. 18,259.
    •1. Landlord and tenant—evidence of intention of parties to lease. In an action for rent claimed to be due under a written lease, which provides that if the license to conduct a saloon business in said premises, at any time during the said term, is not issued or if issued shall be revoked, the lessee shall have the right to terminate the lease on thirty days’ notice, evidence to show the intention of the parties in the use of the particular words employed in the lease is admissible.

      2. Landlord and tenant—construction of leases. The same rules of law are applicable to the construction of leases that are applicable to the construction of other contracts, and where the language of a lease is the subject of construction, the object to be attained is to ascertain, if it can be done, the intention of the parties to the instrument and give effect to that intention.
    3. Landlord and tenant—where language in lease is plain. Where the language in a lease is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning or make it inconsistent with the language used in the instrument.
    4. Landlord and tenant—what may he considered in construction of lease. In construing a lease, preliminary negotiations between the parties may be considered for the purpose of determining the meaning and intention.

      5. Landlord and tenant—where tenant is not entitled to terminate lease. In an action for rent claimed to be due under a written lease which provides, that if the license to conduct a saloon business in said premises at any time during the term is not issued, or if issued shall be revoked, the lessee shall have the right to terminate the lease on thirty days’ notice, defendant having made no application to renew the license on its expiration, is not entitled to terminate the lease.
    Error to the Municipal Court of Chicago; the Hon. John R. Newcomer, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 12, 1913.
    Rehearing denied June 26, 1913.
    Statement by the Court. On October 6,1911, Charles M. Gale, plaintiff below, commenced a suit in the Municipal Court of Chicago against the United States Brewing Company, a corporation, defendant below, to recover the sum of $176.56, as rent, claimed, to be due on a written lease of certain premises, situate in the city of Oregon, Illinois. The lease in question was dated April 11, 1910, and by it Albert J. Carlson and Frank B. Gale, as lessors, leased said premises to the defendant from May 5, 1910, to May 5, 1912 (with the privilege of subletting the same or any part thereof without the lessors’ consent) for a monthly rental of $50, payable in advance. During the month of June, 1911, the premises were conveyed by the owners and lessors to the plaintiff, and the lease assigned to him on June 29th, and plaintiff claimed that a balance of $26.56 was due him for rent for said month of June, 1911, and also $150 for the months of July, August and September, 1911. The defendant admitted the sum of $26.56 to be due and unpaid, but claimed that the lease had been terminated on June 30, 1911. The case was tried before the court without a jury, and on January 12, 1912, the court found the issues against the defendant, assessed plaintiff’s damages at $176.56, and entered judgment on the finding, which judgment the defendant by this writ seeks to reverse.
    The lease was partly printed and partly written and was of the form commonly used by the defendant. The 6th paragraph was as follows:
    ‘ ‘ 6th. It is mutually covenanted and agreed, by and between the parties hereto, that this lease is made upon the express condition and consideration that if the City of Oregon license to conduct a saloon business in said premises, at any time during the said term, is not issued, or if issued shall, at any time during said term, be revoked, then and in such case said lessee shall have the right to terminate this lease by giving thirty days’ notice in writing of its intention so to do, and upon the exercise of said option said lease shall become null and void.”
    Prior to May 31, 1911, and prior to the assignment of said lease to the plaintiff, the following written notice, dated May 19, 1911, was served by the defendant upon the lessors, Albert J. Carlson and Frank B. Bale:
    “No license to conduct a saloon in the following described premises (describing them) has been issued for the period beginning May 1st, 193.1, by the City of Oregon. Because of this fact the undersigned United States Brewing Company of Chicago hereby notifies you that it will on the 30th day of June, A. D. 1911, terminate the lease given by you to it April 11th, 1910, covering the above-mentioned premises, and the sheds and outbuildings on the same, for the period beginning May 5th, 1910, and ending May 5th, 1912, said cancellation to be made in accordance with the 6th clause of said lease giving the undersigned the right so to do.”
    It also appeared from the evidence that before the April, 1910, election, the city of Oregon was “dry territory,” that as a result of that election it became “wet territory,” and that it “has been wet ever since.” After said election and early in the month of April, 1910, C. L. Thompson, of Chicago, an agent of the defendant, met said Frank B. Gale and one F. W. Burchell, an attorney at law, and the three persons had a conversation relative to the defendant’s leasing the premises in question. This conversation was to the effect that the defendant desired to lease said premises for a period of one year; that said Gale, on behalf of himself and Albert J. Carlson, was willing to rent the same to the defendant for a period of two years hut for no shorter time; that said Thompson then stated that defendant would lease the premises for two years, “providing the City of Oregon stayed licensed territory. Subsequently to this conversation the lease was executed, and on May 2, 1910, the city council of the city of Oregon passed an ordinance, which was in force and effect from that date until the time of trial of this case, and which provided, inter alia, that “the city council, in its discretion is hereby authorized to grant licenses for the sale of intoxicating liquors within the corporate limits of said city. * * * The person desiring to obtain such license shall he a legal voter and resident of said city of Oregon and shall make application in writing therefor, * * * and pay * * * the full amount of the license fee for the period for which such license is issued at the rate of $1,000 per annum. * * * bio license shall he issued for a less period than six (6) months, nor shall any such license extend beyond the municipal year in which the same is granted.” Immediately following the passage of this ordinance, a license to conduct a saloon on said premises, expiring April 30,1911, was issued to H. L. Emmerson, who was a legal voter and resident of the city of Oregon, and who paid a license fee of $1,000 to the city, he having borrowed the amount of the fee from the defendant. With the consent of the defendant the said Emmerson operated a saloon on said premises from May 14, 1910, until April 30, 1911, when he vacated the premises, owing at that time a considerable sum of money to the defendant. No application in writing for a license to conduct a saloon in said premises was made to the city by any person subsequently to April 30, 1911, nor does it appear that the defendant itself made any application, or made any attempt to have a legal voter and resident of Oregon apply for such a license, subsequently to said date, or at any time prior to the service of said notice of May 19, 1911. Thompson, the agent of defendant, however, testified that he called on the Mayor of the city of Oregon and informed him that he had a party, a nonresident of Oregon, who desired to take out a license to operate a saloon on said premises, but that the Mayor replied that a license could not be granted to a person who was not a resident of the city, and that the person would have to acquire citizenship in Oregon before the application ••ould be granted.
    Winston, Payne, Strawn & Shaw, for plaintiff in error; John C. Slade, of counsel.
    Fred B. Silsbee, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Counsel for defendant contend that, inasmuch as after April 30, 1911, no license by the city of Oregon to conduct a saloon business in said premises was issued, the defendant had the right to terminate the lease in the manner provided in paragraph 6th thereof, notwithstanding the fact, as appears from the evidence, that subsequently to said date no application in writing for a license, as provided by the ordinance, was made by any person, and that, therefore, the defendant, having complied with the provisions of paragraph 6th as to notice, cannot be held liable for any rent accruing after June 30,1911, and the judgment is erroneous. Counsel further contend that the language used in said paragraph 6th, viz.: “If the City of Oregon license to conduct a saloon business in said premises, at any time during the said term, is not issued, or if issued shall * * * be revoked,” is plain and unambiguous, and that the trial court erred in admitting evidence as to the preliminary negotiations between the parties leading up to the signing of the lease, and other evidence, tending to show the intention of the parties. It appears from the evidence that a license was issued during the first year of the term of the lease and for the period ending April 30, 1911, and that that license was not revoked. As we construe the words of the paragraph, above quoted, they suggest that if the city, at any time during the term of the lease, issues a license to conduct a saloon business in said premises and that license is not revoked, the defendant has no right to terminate the-lease. But we think that the language is not plain. Furthermore, the evidence shows that no application in writing, as provided by the ordinance, was made by any person to the city for a license after April 30,1911, the date when the period of the license issued had expired, and it does not appear that the defendant made any attempt to have a license .issued to a legal voter or resident of the city of Oregon subsequently to that date. We think that the words “licensed” and “issued,” as used in said paragraph', should be construed together. The word “license” is defined in Webster’s Dictionary as “a formal permission from the proper authorities to perform certain acts.” This suggests that a license is something to be applied for, that it is granted upon a request or application.

Under the facts of this case, we are of the opinion that the court did not err in admitting evidence tending to show the intention of the parties in the use of the particular words employed in said lease, and that the intention was that the lessee might terminate the same in the manner provided, if upon proper application being made to the city of Oregon for a license to conduct a saloon in said premises the license was refused by the city, or if having been issued was revoked by the city without fault of the defendant. “The same rules of law are applicable to the construction of leases that are applicable to the construction of other contracts, and where the language of a lease is the subject of construction, the object to be attained is to ascertain, if it can be done, the intention of the parties to the instrument and give effect to that intention. If the language is plain and unambiguous, proof aliunde cannot be heard to contradict or vary its meaning or give it a meaning inconsistent with the language used in the instrument.” Chicago Auditorium Ass’n v. Fine Arts Bldg., 244 Ill. 532, 538. But “greater regard is to be had to the clear intent, when ascertained, than to any particular words which may have been used in the expression of that intent.” Field v. Leiter, 118 Ill. 17, 26. “The court will, if necessary, put itself in the place of the parties, and read the contract in the light of the circumstances surrounding them at the time it was made, and of the objects which they then evidently had in view. So, also, the acts of the parties themselves, indicative of their construction placed upon it, may be resorted to for the purpose of determining the true meaning of the written agreement. And in this regard it makes no difference whether such acts are contemporaneous or subsequent.” Street v. Chicago Wharfing Co., 157 Ill. 605, 613, 614. And the preliminary negotiations between the parties may, in some cases, be considered for the purpose of determining the meaning and intention of the parties in the use of the words employed in the instrument. Chicago Auditorium Ass’n v. Fine Arts Bldg., supra.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Fitch

text:
    Ludlow Valve Manufacturing Company, Appellee, v. City of Chicago, Appellant.
    Gen. No. 18,244.
    1. Damages—liquidated damages. That parties fix a sum to be paid in ease of a breach of the contract and call it “liquidated damages,” is not conclusive, but is one of the circumstances tending to prove actual intent of the parties.
    2. Damages—when stipulation for liquidated damages sustained. In an action for balance alleged to be due on a contract for furnishing gate valves for use by a city, where the contract recites that time is one of the “essential conditions of this contract,” that a failure to deliver the valves within the time fixed “will work an injury to the city,” and that the damages thus arising “cannot be calculated with any degree of certainty” a provision for a deduction of $10.00 liquidated damages for every day of delay in delivery after the fixed time, is sustained.
    3. Damages—provision for liquidated dmnages. Where from the nature of an agreement it is clear that any attempt to ascertain the actual damage would be difficult if not vain, the courts will incline to give the relief the parties have agreed on; but if the contract is such that the strict construction of the phraseology would work absurdity or oppression, the use of the term “liquidated damages” will not prevent the courts from inquiring into the actual injury sustained, and doing justice between the parties.
    4. Municipal corporations—powers of city council. In' the discharge of their duties, the city council must act within the bounds prescribed by their charter, and if they exceed the powers conferred by the charter such acts are nugatory.
    5. Municipal corporations—power of city council to discharge debt. The city council has no power to sell, or in any manner dispose of, the property of the corporation without consideration and no right to discharge without payment a debt which may be held against parties who are solvent and responsible, where no controversy exists in regard to the validity and binding effect of the indebtedness.
    6. Contracts—effect of order extending time to complete contract. Where plaintiff enters into a contract with defendant city to supply several hundred gate valves by a specified time, and after the time has passed the city council enters an order extending the time of performance, such an order does not amount to a waiver of the right to liquidated damages provided by the contract.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed June 12, 1913.
    Rehearing denied June 26, 1913.
    William H. Sexton, for appellant, S. A. T. Watkins, of counsel.
    Elbert C. Ferguson, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellee recovered a judgment against the city of Chicago for $1,000, alleged to be the balance due upon á contract for furnishing several hundred gate valves for use in connection with the city’s water supply system. The contract is dated August 21, 1906, and provides that gate valves of the number and sizes described in the specifications attached to the contract are to be furnished by appellee and delivered at the places named in the specifications, that such delivery shall “be commenced as provided in paragraph 21 of attached specifications, to progress * * * as provided in the specifications * * * and to be finished and fully completed as provided in paragraph 21 of attached specifications, the time of commencement, rate of progress and time of completion being essential conditions of this contract.” Paragraph 21 thus referred to provides that “the work shall be commenced immediately upon the acceptance of the bond filed with the contract, and the delivery of valves shall commence not later than thirty days from the date of said acceptance. * * * One-third of the whole number of valves shall be delivered within sixty days from the date of above acceptance, one-third in ninety days from said date, and the remaining one-third within four months from said date.” Paragraph 22 of the specifications is as follows: “It is distinctly understood and agreed by the parties hereto that the valves hereinabove mentioned shall be delivered within the times severally fixed for their delivery. Inasmuch as the failure to deliver said valves within the time herein fixed will work an injury to the city, and as the damages arising from such failure cannot be calculated with any degree of certainty, it is hereby agreed that if said valves are not fully delivered within the times fixed hereby, then there shall be deducted from the contract price and retained by said city as its ascertained and liquidated damages, the sum of $10 for each and every day passing after the date so fixed for such delivery until said valves are delivered. ’ ’ It was admitted upon the trial that all the valves specified in the contract were delivered to and received by the city in accordance with the contract, except as to the time of delivery. It appears also, from the evidence, that the bond required by the contract to be filed was approved by the Commissioner of Public Works on August 28, 1906. While there is some evidence tending to show that the contract was not signed by the city comptroller until September 18, 1906, we think the evidence to that effect is insufficient to overcome the express provision of the contract fixing the date of “the acceptance of the bond” as the date from which to compute the time of delivery. Under that provision the first one-third of the whole number of valves was required to be delivered before October 28, 1906; the second one-third before November 28, 1906, and the remainder to be delivered before December 28,1906. The evidence apparently shows that the first one-third of the valves were not fully delivered until November 25, 1906; the second one-third, until January 12, 1907, and the remainder, until January 24, 1907. Upon this basis, the total delay amounted to one hundred days time. On February 19, 1907, a final voucher and warrant were issued to appellee, showing that the total amount of the contract was $23,636.65, from which $10 a day was deducted as liquidated damages for the hundred days delay above mentioned, and the remainder was paid to appellee. On March 25, 1907, the Commissioner of Public Works wrote a letter to the finance committee of the city council, referring to appellee’s contract and stating: “I beg to submit the attached report of Engineer Shaw, in which he states that the City of Chicago received the valves as fast as needed and occasioned no damages. Under the circumstances, I respectfully recommend that the contract be extended to January 15, 1907, and that no deductions be made for forfeiture by reason of making such extensions. ’ ’ Acting upon this letter, the finance committee made a report, and on its recommendation, the city council passed an order, on May 6, 1907, and to correct a clerical error in that order, passed a second order on May 13, 1907, authorizing the Commissioner of Public Works to “extend the time” for completing the contract to January 15,1907, which that officer, by letter dated May 25, 1907, attempted to do. A further order was passed on November 24, 1907, purporting to “extend the time” for the final completion of the contract to January 28, 1907. It will be noticed that all of these orders were passed after the valves had all been delivered, after the deduction of $1,000 had been made, as above stated, and after a warrant had been issued and paid to appellee for the balance due by the terms of the contract. Appellee wrote into its receipt for the amount of the final voucher the words: “Without prejudice to our claim for the amount of penalty deducted.” No further payment was made, however, in pursuance of the council orders, and in December, 1910, appellee brought suit to recover the $1,000 deducted from the contract price of the valves.

Two questions are presented for our consideration: First, whether the provision authorizing the city to deduct $10 a day for delays in furnishing the material is to be construed as a provision for liquidated damages or merely as a penalty; second, whether the city council had the power, after all the materials had been delivered to the city, to waive the benefit of that provision, or (what amounts to the same thing) to “extend the time for performance” after the materials had all been delivered and nothing remained to he done but the payment of the price agreed upon.

It is often a difficult matter to determine whether a contract provision like the one here involved shall be construed as a provision for liquidated damages or only as a penalty. The primary and most essential principle of construction is to ascertain the meaning and intent of the parties, by reference to the contract itself, the subject-matter thereof, the terms used to express the intent, and the circumstances under which the contract was made. The fact that parties fix a sum to be paid in case of a breach of the contract and call that sum “liquidated damages” is not conclusive, but is one of the circumstances tending to prove the actual intent of the parties. Hennessy v. Metzger, 152 Ill. 505; Gobble v. Linder, 76 Ill. 157. In the latter ease it is said: “It will be inferred the partiés intended the sum named as liquidated damages where the damages arising from the breach are uncertain, and are not capable of being ascertained by any satisfactory and known rule, or where, from the nature of the case and the tenor of the agreement, it is apparent the damages have already been the subject of actual and fair calculation and adjustment.” In 1 Sedgwick on Damages (8th Ed.) sec. 396, it is said: “The subject-matter of the contract, and the intention of the parties are the controlling guides. If, from the nature of the agreement, it is clear that any attempt to get at the actual damage would be difficult, if not vain, then the courts will incline to give the relief which the parties have agreed on. But if, on the other hand the contract is such that the strict construction of the phraseology would work absurdity or oppression, the use of the term ‘liquidated damages’ will not prevent the courts from inquiring into the actual injury sustained, and doing justice between the parties. ’ ’

In this case the contract expressly recites that time is one of the “essential conditions of this contract,” that a failure to deliver the valves within the time fixed “will work an injury to the city,” and that the damages thus arising “cannot be calculated with any degree of certainty.” These recitals appear over the signature of appellee, as well as of appellant. In the nature of things, the amount of damage from the nondelivery of gate valves at the time specified in the contract would be extremely difficult, if not impossible, to ascertain with any degree of accuracy. In some cases, the damage resulting from the nondelivery of such valves at the time they are needed might be very great, and, in principle, it can make no difference whether any such damage does, or does not, result in a particular case. The damages are fixed in advance, by agreement, in view of the possibility of damage resulting from a failure to deliver within the time stipulated. "Where, as in this case, it appears that the parties themselves have agreed upon an amount which shall be the measure of damages, that amount, if not unreasonable or unconscionable, will be adopted by the courts as the ascertained amount of damage. Poppers v. Meagher, 148 Ill. 192. There is no proof that the amount fixed by the contract is in any sense unreasonable or oppressive and no good reason is perceived, under such circumstances, why the contract which the parties themselves have made should not be enforced as written.

As to the second question involved, “it is a plain proposition of law, and one well understood, that in the discharge of their duties a city council must act within the bounds prescribed by their charter, and if they exceed the powers conferred by the charter, such acts are nugatory. They have no power to squander or give away the funds or property of the incorporation, but all property within their control, belonging to the incorporation, must be honestly applied to the uses and purposes specified in the act of incorporation. The city council have no power to sell, or in any manner dispose of, the property of the corporation without consideration, and, in our opinion, they have no right to discharge a debt without payment, which may be held against parties who are solvent and responsible, where no controversy exists in regard to the validity and binding effect of the indebtedness.” Agnew v. Brall, 124 Ill. 312. See also to the same effect, Town of Petersburg v. Mappin, 14 Ill. 193, and City of Chicago v. Pittsburg, C., C. & St. L. Ry. Co., 244 Ill. 220.

The record shows that the form of.proposal and the specifications furnished to bidders who bid for the contract in question contain the clause regarding liquidated damages for delay in delivering the materials. It must be assumed that the price bid for furnishing and delivering the valves was bid by appellee with this provision in mind. It cannot be said that this provision did not form a material part of the consideration for the contract. Presumptively, at least, the price bid would have been less but for this clause in the contract. The price having been thus fixed upon the basis of a delivery within the time specified in the contract, it follows that when appellee failed to comply with that condition the city did not receive, and appellee did not furnish, that part of the consideration for the contract. Hence, appellee was not thereafter entitled to receive that part of the agreed price which it had itself agreed should be deducted therefrom in case of its failure to comply with that part of its contract. The right- to make the stipulated deduction had accrued to the city at the time the council orders were passed. This was a property right, which then had a value of $1,000 to the city. The city council had no power to give away this property, or otherwise dispose of it without consideration. To hold that the “orders” passed by the city council after the right of the city to make the specified deduction from the contract price had become fixed amounted to a waiver or relinquishment of that right, would be to give judicial sanction to the making of a pure gift of the sum of $1,000 to appellee out of the public treasury.

The principle that the city council has the right to compromise or settle a doubtful claim against the city can have no application to the facts shown by the record before us. In a legal sense, there was no doubtful claim to be settled or compromised. While it is true that appellee wrote into its receipt for the amount of the final voucher the words “without prejudice to our claim for the amount of the penalty deducted,” we have already held that the provision in question is not a penalty, and no evidence was introduced tending to show that appellee had any just. claim, legal or equitable, to the amount deducted. Moreover, the council “orders” do not purport to settle or authorize a settlement of any disputed claim. They purport upon their face to “extend the time of performance” to a date long prior to the passage of such “orders.” The very language of these orders implies an admission on appellee’s part that the contract provisions as to time of performance had not been complied with by it, and the evident purpose of the orders was to give appellee some ground to claim that an undisputed and vested right of the city had been waived, released or relinquished. There was no consideration whatever for such attempted release, and the orders were, in our opinion, wholly nugatory.

For the reasons indicated, the judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


text:
    William J. Hughey and Wellington Hughey, copartners as Wm. J. Hughey & Son, Appellees, v. Antonio Sbarbaro, Appellant.
    Gen. No. 18,301.
    Principal and agent—when authority of agent shown. In an action for the value of work and labor performed and materials furnished- upon automobiles ordered by defendant’s agent employed as a “salesman and manager, ’ ’ evidence held sufficient to show that the agent had authority to act for defendant.
    Appeal from the County Court of Cook county; the Hon. W. P. Slater, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 19-12.
    Affirmed.
    Opinion filed June 12, 1913.
    Richabd I. Gavin, for appellant.
    Louis A. Heilb, for appellees.
   Mr. Justice Fitch

delivered the opinion of the court.

Appellees recovered a judgment against Antonio Sbarbaro for the value of work and labor performed and materials furnished by appellees upon sundry automobiles. The proofs tended to show that Sbarbaro was engaged in selling automobiles and he admits that one Shadburne was his “salesman and manager.” It appears that practically all the work performed and materials furnished by appellees were so performed and furnished under the direction of Shadburne, and the sole question raised upon this appeal is whether the evidence shows that Shadburne had authority to act for Sbarbaro.

Appellant’s counsel claims that the evidence is as consistent with the theory that Shadburne ordered the work done and materials furnished for himself, individually, as for Sbarbaro. We have examined the record carefully and we are unable to find any evidence sustaining this theory of appellant’s counsel. The evidence shows that Shadburne was associated with Sbarbaro, either as sales manager or as a partner in the business, and the contracts made by him with appellees for work and materials were within the apparent scope of his authority, in either case. There is some evidence to the effect that Shadburne was discharged or had severed his connection with Sbarbaro before all of the work for which suit was brought had been done, but this evidence is contradicted. There is also some evidence to the effect that one of the appellees was told by Sbarbaro that if any repairs were to be furnished he, Sbarbaro, “would do the ordering.” But there is nothing in the evidence to indicate that this statement had reference to any want of authority on the part of Shadburne, or that appellees knew or were told that Shadburne had (if he had) ceased to be Sbarbaro’s managing agent. Under these circumstances, the question was purely one of fact for the jury, and we cannot say that the verdict is manifestly contrary to the weight of the evidence.

The judgment of the county court will therefore be affirmed.

Affirmed.


author: Mr. Justice McSurely

text:
    E. C. Tremayne, Defendant in Error, v. The McCaskey Register Company Plaintiff in Error.
    Gen. No. 18,302.
    Statute of Frauds—when oral promise to save lessee harmless for rent not within. Where defendant company asks plaintiff to work for it and orally promises to save him harmless for any liability for rent under a lease after he vacates the premises and commences his employment, such oral promise is not within the statute of frauds since it is based upon a new consideration passing between the parties.
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed June 12, 1913.
    Sumner C. Palmer, for plaintiff in error.
    Harvey E. Wynekoop and Theo. C. Robinson, for defendant in error.
   Mr. Justice McSurely

delivered the opinion of the court.

We are asked to reverse a judgment against The McCaskey Register Company, hereinafter called defendant, obtained by E. C. Tremayne, hereinafter called plaintiff, upon a trial without a jury in the Municipal Court.

By his amended statement of claim the plaintiff alleges that in October, 1910, he was approached by the defendant, who endeavored to obtain the services of the plaintiff; that at the time the plaintiff was the lessee of offices at 17 Wabash avenue, and was obligated to pay therefor the sum of $110 per month; that as a part of the consideration for which the plaintiff agreed to enter into the employment of the defendant Company, it was thereupon agreed orally by the defendant Company that it would save and keep harmless the said paintiff from any and all liability on his said lease; that by reason of said agreement between the plaintiff and defendant, the plaintiff vacated the said offices on November 1, 1910, and they remained vacant until about May 1,1911, at which time the landlord succeeded in re-renting the said premises at an advanced rental of $15 per month, which was allowed as a credit to the plaintiff, so that the rental for which plaintiff was liable, after the agreement with defendant, was $480.

By the affidavit of merits the defendant admitted the employment of plaintiff, but denied that any promise was made to save him harmless from any liability on said lease, and further alleged that no such promise was made in writing, and therefore any oral promise of the kind claimed was void because contrary to the statute of frauds.

It would serve no useful purpose to narrate or discuss the testimony introduced by the parties, but from a careful consideration of the same we have reached the conclusion that the trial court properly held, in effect, that the testimony showed that plaintiff was approached by the defendant Company, through its authorized agent, with a proposition that plaintiff should work for the defendant for a consideration which included the promise by it to compensate the plaintiff for any rent which he might be liable for under his lease after he had vacated the premises then occupied by him and commenced his employment under the defendant Company, and furthermore that plaintiff accepted this proposition and entered into the employ of the defendant under such an agreement.

It is argued that such a promise made orally is within the statute of frauds, which requires the promise to pay the debt of another to be in writing. We do not think that this agreement comes within the statute. A verbal promise by a third party to a debtor to pay such debtor’s indebtedness, which promise is based upon a new consideration passing between such debtor and such promisor, is not within the statute of frauds. Eddy v. Roberts, 17 Ill. 505; Waterman v. Resseter, 45 Ill. App. 155; Hite v. Wells, 17 Ill. 88; McCasland v. Doorley, 47 Ill. App. 513; Rabbermann v. Wiskamp, 54 Ill. 179.

The promise to save plaintiff harmless for any liability for rent under his lease was, in effect, a promise to pay him as part of the compensation for his services whatever amount plaintiff might have to pay under his lease. It was an original promise from the defendant to the plaintiff, made for a good consideration, and was valid although a verbal contract..

We do not deem it necessary to discuss other points suggested. We are of the opinion that the judgment of the trial court was right, and it will be affirmed.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    William Meinel and Louis Henry, Trustee, Defendants in Error, v. Charles W. Randolph and Emma Z. Randolph, Plaintiffs in Error.
    Gen. No. 17,325.
    1. Appeals and errors—preservation of evidence. To sustain a decree granting affirmative relief, the party in whose favor it was entered must preserve the evidence by a certificate or the decree must contain a sufficient finding of the facts proved, and a general finding that all material allegations of the bill are proved and that the equities are with the complainant is not sufficient.
    2. Mortgages—what does not release errors in foreclosure proceedings. A redemption of property sold under foreclosure by payment by the grantee of a warranty deed given by defendant does not operate as a release of errors in the fore.elosure proceedings by defendant.
    Error to the Circuit Court of Cook county; the Hon. Thomas G-. Windes, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    Robert J. Nordhold, for plaintiffs in error; Rose, Symmes & Kirkland, of counsel.
    Henry & Robinson, for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

A bill of complaint was brought to foreclose a trust deed executed by Josephine A. Bongard and her husband to Louis Henry, as trustee, to secure the payment of a note given by Mrs. Bongard. Among the defendants named in the bill as having or claiming some interest in the mortgaged premises were the plaintiffs in error, Charles W. Randolph and Emma Z. Randolph. The plaintiffs in error filed an answer, claiming that prior to the execution of the deed sought to be foreclosed in the present suit, a trust- deed had been given by Mrs. Bongard and her husband to Adolph Loeb, as trustee, securing the payment of a note in the sum of $5,500, on the property involved; that prior to the filing of the bill in the present cause, which was on April 5, 1907, plaintiff in error Emma Z. Randolph had brought suit for the foreclosure of the said trust deed, and such proceedings had been had that a sale of the property was made to said plaintiff in error Emma Z. Randolph. The answer further set forth that any rights or interests which the complainants, William Meinel and Louis Henry, as trustee, may have acquired in and to the property were subordinate and subject to the rights of the plaintiff in error Emma Z. Randolph, and that such fact appeared from the provisions, of the trust deed sought to be foreclosed in the present cause.

In the present case there seems to have been no reference of the cause to a master in chancery. The decree was entered March 11, 1910, reciting that the cause having been brought on to be heard upon the bill of complaint taken as confessed by certain of the defendants, and on the answer of the defendants Charles W. Randolph and Emma Z. Randolph (plaintiffs in error) and upon the complainants’ replication to said answer. The decree then proceeds: “And this cause coming on to be heard on oral testimony and documentary evidence introduced on behalf of complainants, and it appearing that all parties are properly before the court, and the court has jurisdiction of the subject-matter and of the parties thereto, and the court being advised in the premises, doth find that all the material allegations in the bill of complaint are proved, and that there is due the complainant, William Meinel, the sum of $1,033.95, also the sum of $70 as reasonable solicitor’s fee under the provisions of the instrument sued on.” The decree then orders, in the usual manner, that if some of the defendants do not pay the amount found due, etc., that the property he sold to pay the costs of suit, solicitor’s fee, etc.

A party in whose favor a decree granting affirmative relief is entered must, in order to sustain it on appeal, preserve the evidence by a certificate of the evidence, or the decree must contain a sufficient finding of facts proved. A general finding that all material allegations of the hill are proved and that the equities are with the complainant, is not sufficient to sustain a decree on appeal in the absence of a certificate of the evidence or a specific finding of facts. Gray’s Lake M. E. Church v. Metcalf, 245 Ill. 54; Ohman v. Ohman, 233 Ill. 632; Patterson v. Northern Trust Co., 230 Ill. 334. The record disclosing the absence of a certificate of the evidence or a specific finding of facts, it follows that the decree must be reversed.

Motion was made by the defendants in error to dismiss the writ of error because of the alleged fact that the property had been sold and one Rosa A. Randolph had caused redemption to be had. The decision of the motion was reserved to the hearing. The motion must be denied. Rosa A. Randolph is not a party to this litigation, but is said to be the grantee in a warranty deed given by plaintiff in error Emma Z. Randolph. If, as asserted, she effected a redemption of the property by payment, such payment would not operate as a release by Emma Z. Randolph of errors in the proceedings. The payment was compulsory. Schaeffer v. Ardery, 238 Ill. 557.

1 For the reasons stated the decree will be reversed and the cause remanded.

Reversed and remanded.


text:
    Sol Rubin, Moses H. Rubin and Abraham M. Rubin, copartners as Rubin Bros. Mfg. Co., Defendants in Error, v. LeRoy Raynor, Plaintiff in Error.
    Gen. No. 17,541.
    1. Nonsuit—when defendant entitled to. Under section 32 of the Practice Act, when, no declaration is filed ten days before the second term of court, defendant is entitled to judgment as in the case of non-suit.

      2. Judgments—default. Under section 32 of the Practice Act no default can properly be taken against a defendant when no declaration is filed before the second term of court, since the court has no right to enter any order other than one of nonsuit against plaintiff.
    Error to the Superior Court of Cook county; the Hon, Theodobe Brentano, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed and remanded.
    Opinion filed June 24, 1913.
    Percival Steele, for plaintiff in error; Harvey L. Cavender, of counsel.
    No appearance for defendants in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the defendants in error against the plaintiff in error and one Tice, as codefendant, summons being returnable to the February term of court, the first day of the term being Monday, February 2, 1903. Service was had on Eaynor on January 30th, but no declaration was filed until March 24, 1903, the first day of the March term being March 3, 1903. The original declaration seems to have been lost. A copy was filed April 10,1907, and judgment rendered thereon against Eaynor and the codefendant Tice, jointly, on or about that date. No declaration having been filed ten days before the second term of court, namely the March term, 1903, the plaintiff in error was, under the provisions of section 18 (now 32), chapter 110, B. S., entitled to judgment as in the case of nonsuit. Tice pleaded to the declaration, but no default was taken as against Eaynor, and properly could not have been, the court having no right to enter any order other than one of nonsuit if that had been asked.

The judgment will be reversed and the cause remanded.

Reversed and remanded.


text:
    Fred Rose, Defendant in Error, v. H. H. Stoddard, Plaintiff in Error.
    Gen. No. 17,616.
    1. Payment—effect of receipt. Held, that a receipt in full given to a lessee was not understood by the parties to be in full of all that was due under the lease.
    2. Landlord and tenant—liability for repairs. A clause in a lease permitting the landlord to enter to examine or exhibit the premises or “to make any needful repairs, which said first party may see fit to make,” places no obligation upon the lessee or on a guarantor to pay for repairs which the lessor might choose to make.
    3. Costs—when may be equally divided. When the appellate court reverses a judgment against a guarantor on a lease on appeal by him and enters judgment against him for a less sum, costs may be equally divided.
    Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1911.
    Reversed.
    Opinion filed June 24, 1913.
    Rehearing denied July 8, 1913.
    Charles M. Foell, for plaintiff in error.
    Albert A. Kraft, for defendant in error.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

In this case judgment was entered in favor of the defendant in error, as plaintiff, against the plaintiff in error, as defendant, as guarantor on a lease, the amount of recovery being $10, alleged to have been paid on account of water taxes, and $76.49 for repairs made to an elevator in the property covered by the lease. The judgment was based on a finding, the case having been tried without the intervention of a jury.

The date of the lease was May 9, 1910, and the term fixed by it ended April 30,1911. The suit was brought March 6, 1911. The lessee named in the lease was Horace A. Stoddard, a son of the defendant.

The provision in the lease with reference to water rents is in the fifth paragraph, and by it the lessee agrees “to pay (in addition to the rents above specified), all water rents and gas bills taxed, levied or charged on said demised premises, for and during the time for which this lease is granted, and in case no water rents are levied specifically upon said premises to pay the whole part of all water rents levied or charged upon the building in which said demised premises are situate.”

The second paragraph of the lease, so far as applicable in the case, if it is applicable, imposes upon the lessee the duty, upon the termination of the lease, to yield up the premises to the lessor in good condition.

A bill from the city for water was produced, but it included all the water used in the entire building, only a portion of which was included in the lease in question, that being the front store and entryway, etc., comprising two floors to be occupied for an automobile and carriage garage. Counsel stipulated that if under the lease the defendant was liable for any portion of the water bill, $10 would be approximately the correct amount.

The evidence shows that the lessee ceased to use the premises in October, 1910, and that thereafter there was an assignment of the lease to one Edward Herrmann.

On December 1, 1910, the defendant gave his check for $354 to plaintiff, which was shown to have been paid. The plaintiff executed a receipt on December 1, 1910, reading:

“Received of H. H. Stoddard, $354.00 for rent of building known as 2238 Madison street rented May 9, 1910, to H. H. and H. A. Stoddard, also front office room rented to Hong Sam and transferred to H. A. Stoddard. This to be in full settlement for both up to May 1st, 1911, from Mr. Bose to have privilege of putting up stoves to keep water from freezing, etc. $354.00.”

There was also introduced in evidence the following receipt:

“December 3, 1910.
“ Deceived of Edward Herrmann, Thirty-one and 25/100 Dollars being in full of all claims against Horace A. Stoddard and Horace H. Stoddard for rent of entire first and second floors of the rear building of the premises known as 2238 Madison street, Chicago, Illinois, from Oct. 1.8, 1910, to April 30, 1911.
Paid Fred Bose (seal).”

The defendant testified that at the time he gave the check to plaintiff he asked the plaintiff whether the amount so paid was everything that was due under the lease up to the end of the term, and that plaintiff answered, “Yes, that settles up everything, you don’t owe me a dollar.” The defendant further testified that at this time he did not know that Mr. Bose claimed anything for the repairs of the elevator or on account of the water bill, and that at no time during the conversation did he say anything about either of said bills or claim anything on account thereof. He further testified that the premises were sublet for the unexpired portion of the term of one Edward Herrmann, and that on the day he handed plaintiff the check he also handed him a card on which he had written that he would pay plaintiff one-fourth of everything he received for the unexpired portion of the lease, and that thereafter the card was presented by plaintiff to Herrmann and the latter paid him $31.25, which was the occasion for giving the receipt last referred to.

In rebuttal the plaintiff denied that the amount paid on December 1st by the defendant was in full of all claims under the lease; alleged that nothing was discussed excepting the amount of rent, and that the reason he did not say anything to the defendant about the water bill and the bill for repairs to the elevator was that they had not been paid at that time.

We are unable to say that the receipt given was understood by the parties to be in full of all that was due under the terms of the lease.

The repairs to the elevator were made under the direction of the plaintiff by the Otis Elevator Company and a bill was rendered to him, but we find nothing in the record which would lead to the conclusion that the lessee or the defendant had agreed to pay for the same.

It is argued by the plaintiff, as we understand it, that the defendant is liable because of the language in paragraph 2 of the lease, which imposed upon the lessee the duty, upon the termination of the lease, to yield up the premises to the lessor in good condition. It does not appear that the elevator was for the exclusive use of the lessee. At the time of the beginning of the suit the lease had not terminated. There is in the record nothing upon which can be predicated the claim that the premises were not yielded up in good condition.

Plaintiff calls attention to another clause in the lease permitting the landlord to enter the premises for the purpose of examining or exhibiting the same, or “to make any needful repairs * * * which said first party may see fit to make. ’ ’ By this clause, however, no obligation rested upon the lessee or the defendant, as guarantor, to pay for repairs which the lessor might choose to make. The judgment, in so far as it includes repairs to the elevator, is erroneous.

The parties agreed that $10 was the proportionate part of the water bill that should have been paid by the lessee. The judgment of the Municipal Court will be reversed and a judgment entered in this court in the sum of $10 in favor of the plaintiff, Fred Bose, and against the defendant H. H. Stoddard. The costs of this court will be divided equally between the parties. Reversed and judgment here.