author: Mr. Presiding Justice Chttraus

text:
    Harry H. Pence, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,947.
    1. Master and servant—when latter entitled to recover. Seld, that the servant in this case, who was an electrical lineman, and received his injury while at work upon a pole hy being precipitated therefrom, was entitled to recover and that neither the defense of" contributory negligence nor that of assumed risk was sustained hy the evidence.
    2. Pleading—when declaration sufficient to sustain judgment. A judgment will he sustained if any one of the counts of the declaration! is sufficient to support it.

      3. Pleading—when declaration in case sufficient. If in an action on the case for personal injuries the declaration goes into greater detail than is necessary and contains much superfluous matter, it' is sufficient if the gist thereof charges actionable negligence.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Theodohe Bbentano, Judge presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed May 3, 1910.
    On consideration of a motion of appellant, the court of its own motion vacated the order of affirmance of May 3, 1910, and ordered that the judgment of the Superior Court be affirmed with a findng of facts, May 13, 1910.
    Statement by the Court. This is an action on the case, brought by Pence against his employer, the Chicago City Bailway Company, to recover damages for personal injuries sustained by him while performing the duties of his employment. Two jury trials have been had and in both the plaintiff has recovered judgment. The verdict and judgment in the previous trial, however, cannot be regarded as of any weight in favor of plaintiff upon the merits, because that judgment was reversed on the ground that arguments and statements of plaintiff’s attorney and rulings and remarks of the presiding judge during that trial resulted in depriving defendant of a fair trial upon the merits. The second trial resulted in the judgment for plaintiff of $23,500 which it is sought to reverse hy the present appeal.
    Plaintiff was injured at about two o’clock in the afternoon of December 28,1904. He was then at work as an electrical lineman with others in a crew under a foreman by the name of McDonald. This crew or gang, as it is sometimes called, were stringing an 8-0 cable or feeder-wire upon poles which stood on the west side of Halsted street, a north and south street in Chicago. The accident whereby plaintiff was injured occurred at a pole which stood 211 feet south of the south line of 59th street and was the third pole south of that street. The pole was a tapering tubular iron or steel pole, five inches in diameter at the top, six inches at the middle and seven inches at the bottom. It was 24 feet in height above the ground and it stood eleven inches east of the curbstone of the sidewalk. On its west side, at about a foot below its top, it had a side-arm, of yellow pine, four feet six and one-half inches in length extending out over the cement sidewalk below. This wooden arm rested upon and was bolted to an iron bracket which was clamped around and bolted to the pole. Four pins were set upright into the upper side of this arm for cables or feeder wires to be attached thereto. The nearest pin was about seven inches from the pole and the pins were set eleven inches apart from center to center. The cable, in connection with the stringing of which plaintiff was injured, was to be attached to the third pin from the pole. There were three 6-o cables already attached to the three other pins. Plaintiff was sitting astraddle of some or all of the cables, with the one being strung between his legs, at a distance of about eight feet north of the side-arm, and another lineman, Sharp, was upon the cables about the same distance south of the sidearm when the latter broke, precipitating the two men • upon the sidewalk below. Sharp was killed instantly. ■ Pence struck upon his head, fractured his skull and received other injuries. As a consequence a portion of his skull—both the outer tablet and the inner tablet—about two inches long and an inch and a half wide, has since been removed.
    As already stated, the side-arm projected west from the pole four feet six and one-half inches. The bracket-shelf, upon which the side-arm rested, extended out fourteen inches. The side-arm broke at the outer end of the bracket. That the arm was in perfect condition, that yellow pine is one of the strongest woods we have, that it will stand a greater strain than any of the common woods, and that it is stronger than oak in almost every particular, are facts shown by the evidence and they are undisputed. The side-arm in question was in court at the first trial and it is shown in this record that there was a deep indentation in the top of the arm, between the second and the third pins, where the cable that was being strung had rested. Defendant’s superintendent of construction and maintenance, who is a civil and electrical engineer, in testifying figured out and testified to the supporting strength of that side-arm at the point where the cable had rested. He stated, as shown by the abstract, that: “At that distance on the arm it would require about 2,400 pounds to break the arm.” It appears from the evidence that the natural weight of the four cables, together with the weight of Pence, who then weighed about 215 pounds, and of Sharp, who weighed about 180 pounds, imposed upon the arm a strain of about 1,000 pounds, which the arm was well able to carry.
    In order that what we shall hereinafter say and that the cause of the further or other weight upon the sidearm may be clearly understood, it is necessary to go into additional facts and circumstances connected with the work that was being done. The particular work, in which the men under McDonald were engaged at the time, was the stringing of the 8-o cable or feeder wire on Halsted street, as a connecting or feeder-wire, between a pole at the corner of 58th street and the third pole south of 59th street where plaintiff was injured. At the corner of 58th street the cable they were stringing was to be connected with the dead end of a cable coming from the north, and at the third pole south of 59th street it was to be connected with the dead end of a cable coming from the south. The crew under McDonald, of which he had full control, consisted of three linemen, Pence, Sharp and Ward; a lineman’s helper or groundman, Schmitt; three drivers, Nugent, Olsen and Cody; and three laborers, Keeley, Piper and Martin. The crew was equipped with three wagons, namely, a supply wagon, which was an ordinary wagon that carried supplies; a tower wagon, which was a wagon of ordinary width containing in the center thereof a stationary tower about nine or ten feet in height and inside of that stationary tower an extension tower which conld he raised upward; and a jigger wagon, which was a large, heavy wagon twelve feet long, used to carry spools or reels of cable or feeder-wire and built to carry four spools or reels, which wagon with filled reels weighed about eight tons. Cody drove the supply wagon, Olsen drove the tower wagon and Nu-gent the jigger wagon. The linemen were all experienced men. When the tower was not extended the tower wagon could pass under the same overhead constructions that a street car could. There was a platform on the top of the tower, whereupon men stood when doing work, which was 18 feet and 4 inches above the ground when the tower was extended to its full extent and the top of a railing which surrounded the platform was then 20 feet and 10 inches above the ground, The space inside the railing was three feet and one and a half inches square. The railing consisted of pieces of wood two and one-half inches square and the corner posts were of pieces one and one-half inches square. The tower wagon carried an extension ladder in two pieces—each piece being about ten feet in length. The process of fastening temporarily the end of one cable to the end of another cable or to a pole, preliminary to splicing or permanently fastening the ends of the cable together so as to carry electricity, appears to be called ‘1 snubbing. ’ ’ This snubbing process, as described, is substantially as follows: A chain or a rope is used for the purpose. One end of that chain or rope is wound around the dead end of a cable coming, for instance, from the north sufficiently tight to hold it securely and then so hooked as to be securely fastened. The other end of the chain or rope is then fastened in a like manner to the end of the cable eoming from another direction, or it is fastened to a pole. The chain or rope must be fastened sufficiently far away from the ends of the cables that the two ends may he brought together and overlap sufficient for splicing the ends.

      McDonald started the work of stringing this 8-o cable by having the jigger wagon, with the cable reeled upon it, placed and faced south about 100 or 125 feet south of the third pole. A rope was fastened to the -end of the cable and passed over the arms of the poles and, with the aid of the supply wagon team, the cable was thus unreeled and hauled up to the 58th street pole. The end of the 8-o cable was then snubbed to the cable coming from the north. This snubbing was ■done from the tower-wagon. There is a conflict in the ■evidence as to who did the snubbing at 58th street, that is, whether it was Ward alone or Pence and Sharp together. The evidence clearly preponderates in favor ■of its having been done by Ward. Under the view we take of the case we regard it as of little or no consequence by whom it was done. What, if any, difficulties there were in snubbing from the tower wagon at 58th •street does not appear. The conditions and surrounding circumstances are not shown, nor does it appear that the conditions were the same as at the pole where the arm broke. Whether the cables were up as high •at 58th street as they were at that pole is not disclosed. A railroad, elevated above the street and under which "the street railway ran, intervened and crossed Halsted street between 58th and 59th streets. It may, for aught that appears in this record, have been possible to work from the tower wagon conveniently and with an economy of time at 58th street and no.t have been -so at the pole in question.
    . After the cable had been unreeled and snubbed at •58th street so that it hung upon the intervening poles, there was considerable slack therein. This slack McDonald regarded it necessary to take out before the ■cable was cut and snubbed or spliced to the cable coming from south. A chain was, therefore, snubbed •around the cable, north of the jigger wagon, where the cable ran upward, at an angle, to the side-arm which subsequently broke. The other end of the chain was fastened to the jigger wagon. McDonald then directed Cody, the supply wagon driver, to hitch his team to the jigger wagon in front of the team of that wagon, and that the jigger wagon be driven south with the two teams and the cable in question be thus tightened. McDonald then, being at the time north of 59th street walking south, by a signal directed the jigger wagon with the four horses attached to pull up and tighten the cable. McDonald walked along where he could watch the cable tightening. The drivers of the teams drove up—a distance, as testified, of probably ten or fifteen feet—until McDonald gave them a signal to stop. The jigger wagon was then firmly blocked by cross-arms being placed back of the wheels and McDonald came up, looked at it and told the drivers to “stay there” and not let the. wagon move. Whatever tension there was in the cable was thus retained. McDonald then turned and walked north as far as the pole in-question. A wooden pole, 16 ór 17 inches in diameter, stood 11 inches west of the sidewalk curb and 9 or 10 inches south of the iron pole in question. Immediately before the accident the tower wagon had arrived at the pole where McDonald was so that it stood there when he gave his order to Pence. While McDonald stood at the pole Pence, Sharp and Ward came there from 58th- street where they had completed their work. McDonald then spoke to Pence. Whether he spoke to Sharp and what he said to Pence are matters as to which there is a conflict in the evidence. Evidently he merely gave his directions briefly and then proceeded on his way north. Pence testified that Mer Donald while standing at the pole said: “Pence, you go up there about eight feet north of the pole and make fast your chain,” and “Sharp, you go up south of the iron pole and make fast,” and that he then walked north toward 59th street. Ward, being asked if he heard any conversation then between McDonald and any of the linemen, testified: “Nothing more than McDonald said: ‘Snub the wire the same as at 58th street.’ ” He also testified that McDonald did not tell either Pence, Sharp or himself to go np on the wires; that McDonald did not order any particular one to do the snubbing; that if McDonald had said anything to Pence he, Ward, would certainly have heard it; that not a word was said by any one except what McDonald said; and that before going up Pence suggested to the witness that he (Pence) and Sharp snub the wire, because the witness (Ward) had been sick the day before. McDonald testified, with reference to the time when he gave the direction in question, that Pence and Jake Smith were there but he did not recall any one else being there;, that Ward and Sharp were “around the wagon there, but I didn’t see them, I was talking to the one man;” that he told Pence “to snub it the same as we had at 58th street” and gave no other directions in connection with the matter at all.
    It appears that the feeder cable coming from south stopped about three feet north of the side-arm. It also appears that when linemen were snubbing together two dead ends of cable and no specific directions were given as to how the snubbing should he done, that is, as to how long the connecting piece of chain or rope should be, the linemen determined that for themselves. The linemen controlled the actions of the groundmen and movements of the tower wagon;
    Immediately upon receiving directions Pence went up into the tower wagon, over upon the wooden pole and then out upon the wires, about eight feet north of the side-arm. He had with him, as he states, a chain called a sling chain, one end of which is put around the cable and fastened and to the other end of which an eight inch double shive block is attached. He testified he had made his chain fast before the side-arm broke. As soon as he was out of the way Sharp followed him, with a similar chain, and went about the same distance-south of the side-arm. Ward testified that he stood “on the sidewalk almost directly under them watching them;” that “Pence had been there probably a minute and Mr. Sharp had just got there” at the time the arm broke and precipitated them to the sidewalk; and that Sharp was then on his hands and knees, crawling out on the cables. Pence testified he had been on the “wires” from three to five minutes when the arm broke. There is some testimony, although not of great weight, of other witnesses, having a-tendency to show that Pence and Sharp were upon the “wires” even a greater period of time than that stated by Pence. How far away McDonald had gone when the side-arm broke is not made clear. That depends upon the length of time that had elapsed and upon what he did in the meantime. There is some evidence that he was in the vicinity of 59th street. He testified that he did not see the men up in the wires, but that he did obtain a glimpse of them while falling.
    George W. Miller, for appellant; John R. Harrington, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Chttraus

delivered the opinion of the court.

That the downward strain placed upon the side-arm in question by McDonald, by means of the two teams, was a producing cause in the breaking of the side-arm in question is settled as a fact, beyond discussion,- by the evidence in this record: Had the teams been permitted to pull far enough, instead of being stopped, they unquestionably could have broken the side-arm at the time they were pulling, unless the cable itself, the chain or rope by which it was snubbed to the cable from the north or the cable from the north had broken. It may fairly be assumed that the horses used were not light buggy horses. It is undisputed that the sidearm, which appears, to have been in a perfect condition, only had a sustaining power of 2,400 pounds at the particular place where the cable was drawn over the side-arm. While this sustaining power was amply sufficient to sustain all necessary strain required to take slack out of the cable, together with the weight of two linemen working upon the cables, yet it was not so great as to make it impossible for the defendant’s representative in charge of the work, by permitting the two teams to place an excessive strain upon the sidearm, to render the place upon the cables where these two linemen were to do their work an unsafe place in which to work. Unsafety so caused was a risk or hazard entirely independent of and different from the numerous ordinary risks and hazards inherent or obvious in or incidental to the employment in which these linemen were engaged. Defendant’s expert electrical worker, Sanders; testified that when a cable is drawn over a side-arm it is customary to draw it over as close to the pole as possible, as the arm has a greater sustaining strength close to the pole than farther out; and' that it is not usual to “pull” the cable “as hard when it is away out on the arm as when close up to the pole.” This evidence was uncontradicted. In this instance McDonald had the cable drawn over the wire two feet and ten inches from the center of the pole. The excessive strain which broke the side-arm was a direct and proximate cause of the injury to the plaintiff. In occasioning the overstrain McDonald was the direct representative of the defendant company. It is argued that the manner in which McDonald was taking the slack out of the cable was the ordinary and usual manner in which that object was attained. Nevertheless, it appears to us that the jury were justified in arriving at the conclusion that it was negligence on the part of McDonald to subject this perfect side-arm, which would normally carry 2,400 pounds, to such great strain by means of the teams as to make unsafe the place where the linemen were to be sent or might go to do their work. The evidence discloses that sometimes as many as three men were out upon cables doing work at the same time. Life and limb were dependent upon McDonald’s exercising the proper degree of care in taking the slack out of the cable not to overtax the sidearm in question.

It is contended Pence was contributorily negligent in going upon the cables while the side-arm was so overtaxed. It is argued that his opportunities were equal to those of McDonald in observing and appreciating the overstrain. It is insisted he could see the strain upon the cable and could put out his hand and feel how taut it was. It is also pointed out that his experience in the occupation was equal to if not greater than that of McDonald. In view of the facts of this case it is immaterial which had the greater experience. McDonald was charged with the duty to see that the side-arm was not overtaxed while he was having the slack taken out of the cable. He was there directing the actions of the drivers of the teams. He was watching the cable as it gradually tightened and signaled the teamsters when it was sufficiently tight. He knew better than any one present what the tension of the cable was. On the other hand Pence, with the other linemen, was at 58th street, or on the way from there to the pole where he was injured, while the cable was being tightened. They came with the tower wagon. The tower must have been lowered in order that that wagon could pass under the railroad viaduct between 58th and 59th streets, which lowering must have taken some time. At all events Pence arrived at the pole in question and found McDonald there waiting. McDonald then gave his directions and Pence immediately proceeded to do his work. Pence clearly did not have the same opportunities as McDonald, up to that point of time, to observe and appreciate the strain upon the cable. It does not appear to us and it evidently did not appear to the jury that by putting out his hand and feeling its tautness Pence could tell the degree of tension so as to know that the side-arm was overtaxed. But it is said the linemen directed the movements of the tower wagon and Pence could have avoided this danger from the overtaxed side-arm by using the tower and extending the extension ladders therefrom; and, it is argued, “Two methods were open to Pence when McDonald directed that this feeder wire be snubbed or made fast, whichever he said, at the pole in question,” one of which methods was safe and the. other dangerous, and, as Pence saw fit to adopt the latter, his injury is therefore the result of his own conduct and defendant is not liable. Undoubtedly the injury is the result of his own conduct in going upon the cables to do his work, if we believe and adopt defendant’s version of the order given by McDonald and disbelieve and reject the plaintiff’s. Upon the evidence herein we do not feel justified, however, in interposing and substituting our own judgment for that of'the jury upon this question of fact. That question was pre-eminently one for the jury. McDonald’s language, adopting his version of what was said, ordering Pence to snub the cable “the same as we had at 58th street,” does not necessarily direct Pence to use the tower to snub this end of the cable as the end at 58th street had been snubbed. The direction given may have referred to the manner, method or kind of snubbing rather than to the place where Pence should stand or be in doing the work of snubbing. Indeed, a slight gesture by McDonald at the time of speaking may have aided his language and conveyed the idea exactly as Pence testified.

Furthermore, while the evidence leaves no doubt but that ladders had been used in connection with overhead construction work for years, it by no means tends to show that doing the work Pence and Sharp were doing in the manner in which they did it, by sitting astraddle of the cables, was not also a usual and customary way. It appears that linemen would work by such means or in such manner as they could most conveniently and expeditiously use in doing their work. It is suggested that Pence should have had the tower extended to its full height, placed the wagon as closely as possible to the place where the work was to be done, then had one end of the ladder inserted under one top rail of the tower and laid over the other, so that the ladder would have extended horizontally over the side ■of the wagon, over the sidewalk and under the place where the work was to be done. This, it is said, would have enabled him to have .gone out upon the rungs or ¡sides of the ladder and to have stood or sat in safety "while doing his work and that, when he had finished, Sharp could have done the same south of the pole. By -doing the work in that manner there would have been ¡safety so far as injury from the overtaxing of the side•arm was concerned. It appears to us, however, that not only would it have been more inconvenient and much less expeditious to have done the work in that manner, but other risks or hazards would have been taken, such, for instance, as the possible overbalancing of the wagon or the breaking of the top rail upon the tower. Pence was a man weighing about 215 pounds. Apparently the place upon the cables was a ¡safer place for him to work from. He would, so far as this record discloses, have been perfectly safe upon the cables had not McDonald’s negligence—which was the master’s negligence—intervened. Sanders, defendant’s expert, upon cross-examination testified that when work was so done by means of a ladder the foreman usually sent a man of light weight out upon the ladder to do the work. We find no reason for holding that negligence on the part of Pence contributed in any ■degree to the cause of his injury.

We find no merit in the contention that plaintiff assumed the risk of injury from the cause whereby he was injured.

Defendant’s contention that there was any pull or ■further strain put upon the cable after plaintiff was upon the cables is overcome by a clear preponderance ■of the evidence.

■ We find the third count sufficient to sustain the judgment and it is therefore unnecessary to consider any ■other. It is strenuously contended that the plaintiff failed to prove the charge in that count that ‘ ‘ The defendant’s said foreman * * * negligently and unnecessarily caused the south end of said cable to be attached and fastened to said wagon.” The contention is that plaintiff failed to prove both that the fastening of the cable to the wagon was an act of negligence and that it was unnecessary. The count goes into detail much more than necessary and contains a great -deal of superfluous matter. It is not drafted as scientifically as it might have been drafted after counsel had become thoroughly familiar with the facts of the cause. The gist of the count, however, is that by negligence the horses and wagon were permitted by McDonald to pull the south end of the cable too hard and too far southward so that too great strain was put upon the arm in question upon which the cable rested and that thereby the injury to the plaintiff was occasioned. This charge, as has been seen, was fully sustained by the evidence. "Whether the fastening of the cable to the wagon was negligence and whether such fastening was unnecessary are matters totally irrelevant and immaterial to the cause of action as presented by the count and the averment of negligence and necessity in that respect is not descriptive of the cause of action which the count presents. The count discloses a cause of action and specifically advises defendant thereof, irrespective of “negligence” or “necessity” in the act of fastening the cable to the wagon.

It appears to us that substantial justice has been done by the verdict and judgment and while other contentions of errors than those herein specifically disposed of have been argued, which contentions we have carefully considered, we see no reason for reversing the judgment of the Superior Court.

In view of the injuries sustained we do not find the judgment excessive.

The judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Chytraus

license: Public Domain

text:
    Patrick J. Flynn, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,958.

      Tbial—what argument of counsel will not reverse. An argument as follows, though improper as not .predicated upon the evidence, will not reverse where objection was sustained thereto and the damages awarded were fully warranted by the evidence:—
    “I say to you, gentlemen of the jury, that his time as superintendent and manager of that business—the value of his time to that business—and that business to him, must, as a matter of common knowledge,—it couldn’t have been less than four or five thousand dollars a year.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in the Branch Appellate Court at the 'October term, 1908.
    Affirmed.
    Opinion filed May 3, 1910.
    George W. Miller, for appellant; John B. Harrington, of counsel.
    James C. McShane, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

From a judgment for $3,000 rendered against it in the Superior Court, in an action on the case for personal injuries, the defendant Bailway Company is prosecuting this appeal.

The case has had three trials in the Superior Court. In the first trial plaintiff obtained a verdict for $3,000 which was set aside upon a motion for a new trial. A judgment for $5,000 was rendered in the second trial, which judgment was reversed upon appeal to this court, for error in the admission of evidence going, to the damages. Chicago City Ry. Co. v. Flynn, 131 Ill. App. 502.

Plaintiff was injured in alighting from an east-hound Forty-seventh street car at the southwest corner of Fortyvseventh street and Wentworth avenue in the city •of Chicago. The declaration contains two counts. One count charges negligence in that when the car had about reached Wentworth avenue it stopped at about the point where defendant’s cars customarily stopped to receive and discharge passengers and, while plaintiff was then and there alighting, the car was suddenly started forward by defendant’s servants in charge thereof and he was thereby thrown violently to the ground. The second count stood upon a general and special demurrer at the time of the trial.

There is a sharp conflict in the evidence. Several witnesses were called on behalf of the plaintiff and their testimony tends to show that the car had stopped and that, as plaintiff was stepping off the rear platform of the car, the car suddenly started and caused him to be thrown to the ground, whereby he suffered the injury complained of. On the other hand, several witnesses on behalf of defendant testified plaintiff jumped off or stepped off the car while it was still in motion and that he therefore fell and was injured.

There is a square conflict and. we are unable to say that the verdict and judgment are against the preponderance of the evidence.

Plaintiff’s attorney sought to introduce evidence to show that for five years preceding his injury plaintiff had been deriving an income of about $4,500 per year from a coal business he was conducting. This evidence was properly excluded. In his argument to the jury plaintiff’s attorney made use of the following language: “I say to you, gentlemen of the jury, that his time as superintendent and manager of that business—■ the value of his time to that business—and that business to him, must, as a matter of common knowledge,— It couldn’t have been less than four or five thousand dollars a year.” An objection made, to this statement was properly sustained by the trial judge. It is now argued that the evil intended by the making of this statement was accomplished as soon as it had been made and that that ovil was not eradicated by the sustaining of the objection and an instruction to the jury to disregard,the statement. The statement of plaintiff’s attorney to the jurors that it was common knowledge, in other words a matter of which they could take cognizance because it was generally known, that plaintiff’s time as superintendent and manager of his private business and the value of the business to him could not have been less than four or five thousand dollars a. year was not fair argument. How that argument could possibly impress the minds of intelligent jurors, is inconceivable; but it might impress the minds of unintelligent jurors. We certainly condemn it. However, it was only addressed to the amount of damages. The injuries, sustained are permanent in their nature- and fully warrant the amount awarded. The amount is less than the sum for which judgment was rendered in the second trial. The indications in this case are that the jury was not affected by the illegitimate argument, and we do not see our way clear to disturb the-judgment because of this statement by plaintiff’s attorney.

As the record discloses no reversible error, the judgment must be affirmed.

Affirmed.


text:
    Roland A. Crandall, Defendant in Error, v. Kraetzer, Fischer & Company, Plaintiff in Error.
    Gen. No. 14,941.
    1. Amendments and jeofails—when want of jurisdiction to reinstate cause waived. Where a case has been dismissed and is subsequently, .after the dismissal .term, reinstated over the objection of' one of the parties, if the objecting party thereafter appears and participates in the proceedings in court, otherwise than by objecting on the ground of lack of jurisdiction, to such action as may be proposed to be taken by his adversary or by the court, he thereby waives the lack of jurisdiction of his person and confers upon the court jurisdiction of his person .as by a voluntary appearance

      2. Contracts—when delivery of deed and payment of money to he concurrent. The writing upon which the action in this case was brought construed as a whole, held, in view of .the conditions, facts and circumstances surrounding it, to provide that the delivery of the deed therein mentioned and the payment of "the money therein provided for, were to be concurrent acts.
    3. Conveyances—when objection to form comes too late. If a party has had ample opportunity to object to the form of a deed and fails to make such objection, an objection interposed in the Appellate Court for the first time, which is technical in character, comes too late to absolve the party there making the same from the payment of money provided to be made upon the delivery of such deed.
    Assumpsit. Error to the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed May 3, 1910.
    Israel Cowen, for plaintiff in error.
    John H. Coulter and Samuel J. Howe, for defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Kraetzer, Fischer & Company, defendant below, prosecutes this writ of error to procure the reversal of a judgment against it for $739.75.

Before considering the merits of this cause we will dispose of defendant’s contention that the trial court was without jurisdiction of the case at the time of the trial and rendition of the judgment. The suit was dismissed at plaintiff’s costs on May 11, 1906. It is next shown upon the record that on April 23, 1908, that order of dismissal was vacated and set aside. There is a controversy with reference to the service of notice of the motion to vacate and set aside the order of dismissal, which controversy we disregard, because according to the view which will be hereinafter expressed, it is totally immaterial whether any notice of the motion .was served. Neither the defendant nor any one for it appeared in court on April 23,1908. On April 25, 1908, defendant moved the court to set aside the order of April 23, 1908, but-the court denied the motion. Then, on May 9, 1908, defendant moved the court for leave to file certain additional pleas instanter, which motion the court allowed and the pleas were filed, tipon these pleas the plaintiff subsequently took issue. Thereafter, on May 20,1908, the case came on for trial and at the trial defendant appeared, made defense, and participated in the trial from beginning to end.

In the contentions that after the dismissal and expiration of the dismissal term the court had lost jurisdiction of the parties, that after that term the court had no jurisdiction to vacate the order of dismissal and reinstate the cause and that, therefore, the trial court had no jurisdiction to proceed with the trial of the case, nothing is involved except the question as to the jurisdiction of the person of the defendant. That the subject-matter of the controversy is one within the jurisdiction of the court is not and cannot be disputed, for the action is one of assumpsit.

Parties cannot waive a lack of jurisdiction of the subject-matter but they may voluntarily submit their persons to the jurisdiction of the court and they may do so by conduct as well as by words.

Where a case has been dismissed and is subsequently, after the dismissal term, reinstated over the objection of one of the parties, if the objecting party thereafter appears and participates in the proceedings in court, otherwise than by objecting, on the ground of lack of jurisdiction, to such action as may be proposed to be taken by his adversary or by the court, he thereby waives the lack of jurisdiction of his person and confers upon the court jurisdiction of his person as by a voluntary appearance. Grand Pacific Hotel Co. v. Pinkerton, 217 Ill. 61, 83-4; Herrington v. McCollum, 73 Ill. 476, and Prall v. Hunt, 41 Ill. App. 140, therein cited. If the ohjecting party subsequently participates in the proceedings otherwise than by so objecting, he waives the lack of jurisdiction, although while participating he protests against the court proceeding, because he may not speculate upon the outcome and regard the proceeding as valid if the decision be in his favor and as invalid if it be against him. West Chicago Park Commissioners v. Riddle, 151 Ill. App. 487. Where the court erroneously proceeds after such dismissal and the lack of jurisdiction over the person has not been waived, the remedy of the objecting party is by appeal or writ of error when a final judgment is rendered. Walker v. Oliver, 63 Ill. 199; Steward v. Parsons, 112 Ill. App. 611, 614.

The error which the trial court committed in the reinstatement of the case was waived by the defendant subsequently pleading and proceeding with the case, and by so pleading and proceeding defendant conferred jurisdiction upon the court to proceed to judgment.

It appears this case is based upon the following writing:

‘ ‘ Chicago, 111., March 24,1903.
“Whereas, in settlement of the affairs of the American Sash and Door Company, the assessment to be paid by Kraetzer-Fiseher Company is six hundred dollars ($600); and
“Whereas, B. A. Crandall is willing to advance for said Kraetzer-Fiseher Company said sum of six hundred dollars for the purpose of said settlement,
“Now, therefore, in consideration of the premises and of the advance by said Crandall for us of said sum of six hundred ($600) dollars for the purpose aforesaid, we agree to repay to said Crandall, or his order, the sum of six hundred ($600) dollars six months from the present date, provided that within said period of six months we receive a reconveyance from said American Sash and Door Company of all the property which we conveyed to it, said re-conveyance to be free and clear of all liens and encumbrances created by said American Sash and Door Company, or resulting from our said conveyance to that corporation.
“Kraetzer, Fischer & Co. (Seal)
“A. Kraetzer, Secy.”

The writing originated out of an attempt made to consolidate or combine various sash and door manufacturing concerns in Chicago into one .company. The new or consolidated company was organized and incorporated as the American Sash and Door Company, apparently through the efforts of Henry L. Turner & Co. Among the constituent companies was the defendant Kraetzer, Fischer & Co. The constituent companies conveyed certain assets, including real estate, to the new company. Arrangements were made by Henry L. Turner & Co., through plaintiff, for a loan of $500,-000 upon bonds of the new company to be secured by trust deed. One hundred thousand dollars of this loan was to be used for working capital and the remainder to pay off all bonds and mortgages of the constituent companies. At a certain point in the consolidation some one representing Henry L. Turner & Go. informed Crandall, the plaintiff, that they had advanced so far that all that was necessary was that some one lay out $2,150 for the purchase of revenue stamps to be placed upon the bonds. Plaintiff then volunteered that if it would hasten matters any he would give a check for $2,150, which he did. Plaintiff testified this money was used for stamps which were put upon the bonds. However, for some cause not made clear in the evidence, the consolidation failed. The loan had then not been consummated. Some months after advancing the check plaintiff was asked by some one from Turner & Co.’s office what he would do “regarding calling the whole thing off”, and he replied that he would not ask any compensation for his services but that he would insist upon receiving back his money advanced. Thereafter a committee of the constituent companies met to dissolve and disentangle the consolidation. Plaintiff’s account was, as he puts it, “scaled down to thirty-some-hundred dollars.” After some talk with Mr. A. Kraetzer and Judge George A. Carpenter, the latter, who had then not been elected to the bench, representing all the constituent companies except one, Crandall agreed to accept the above mentioned writing instead of $600 which it fell upon defendant" Kraetzer, Fischer & Co. to pay, as their proportion of expenses incurred.

It is contended in defense that the stamps were not all purchased or used. Were that so, it would be no defense against Crandall for the evidence shows he' gave a check to T. F. Vaughan for $2,150, and that the committee for the dissolution of the consolidation fixed the proportion of the expenses to be paid by each of the •constituent companies. Judge Carpenter testified it to be his impression that the proportion of each was fixed on the basis of the value which the plant of each bore to the capital stock of the new company. Vaughan was one of the promoters of the consolidation and as ■such, in law, a representative of the constituent concerns, including the defendant. Moreover, plaintiff testified that the money was used for the stamps. The contradiction of this testimony by the witness Wheeler, who said that all he knew of the matter was what an attorney had told him, amounts to nothing. Wheeler’s testimony was mere hearsay. Plaintiff’s testimony, which was primary and direct, was not overcome thereby.

It is further contended, in defense, that defendant received no deed of reconveyance of the property it had conveyed to the American Sash and Door Company, within six months of March 24, 1903, and that, therefore, defendant is not liable. The facts in this connection appear to be that a deed of reconveyance dated April 21,1903, was executed and left with Judge Carpenter and, on April 25,1903, he sent a letter to the defendant, which was duly received, informing the defendant that he held the deed ready for delivery. The letter was as follows:

“25 April 1903.
‘“Messrs. Kraetzer, Fischer & Co.
“City.
“Dear Sirs:
“I have in my possession, deed from the American Sash & Door Co. to your concern of real estate, which you turned in to that Company through Mr. Vaughan. I have been directed to hold this in my possession until the $600.00 obligation which you gave to Crandall has been satisfied. I am also instructed to deliver it to you in case you see fit to execute a mortgage on the plant to secure the $600.00.
“The release from the Equitable Trust Co. of the trust deed of the American Sash & Door Co. was filed for record by me this morning, so that the premises-are clear from that lien.
“ Yours very truly,
“Geo. A. Carpenter.
“H.”

Not hearing from the defendant, he sent another letter in the' same connection, on September 21, 1903. as follows:

“21 Sept. 1903.
“ Messrs. Kraetzer, Fischer & Co.,
‘£ South Chicago, 111.
“Dear Sirs:
“We have in our possession deed of conveyance to you from the American Sash & Door Co. This we were to hold until a certain obligation of your concern to R. A. Crandall was discharged. Mr. Crandall informs us that that matter, matures day after tomorrow. Kindly advise us when it is paid and we will forward the deed to you at once, so that it may be recorded.
“ Yours very truly.
“Pence & Carpenter.”

It is true a condition was attached to the delivery, of the deed that defendant pay the $600. We think the true meaning and intent of the writing sued upon, considering the conditions, facts and circumstances surrounding the giving of the writing as well as the verbiage thereof, is that the delivery of the deed and the payment of the money were to be concurrent. The defendant was to repay its proportion of the money plaintiff had advanced on behalf of defendant and others, provided defendant received a reconveyance of •the property which it had conveyed to the new company, the American Sash and Door Company, but not otherwise.

It is complained in this court that the deed of reconveyance was in certain technical respects insufficient. This complaint, under all the circumstances, does not come with very good grace from Kraetzer, Fischer & Co. "When Kraetzer, Fischer & Co. was informed in April, 1903, that the deed was ready, no such objection was made. No such objection was made within the six months provided for the delivery of the deed. No-such objection appears to have been made even in the trial court. The relation of Kraetzer, Fischer & Co. to the American Sash & Door Company, of which Kraetzer, Fischer & Co. was a constituent part, was much closer than the relation of Crandall to that company. True, Crandall agreed to procure from that company a deed to Kraetzer, Fischer & Co., yet the-relationship of the parties is a circumstance proper to-be considered in connection with the objection of technical defects in the deed of reconveyance, when made at this late day by Kraetzer, Fischer & Co. Judge Carpenter, as attorney for the committee which was to undo and disentangle the conditions created in the attempted consolidation, was, to an extent, the representative of Kraetzer, Fischer & Co. In the dissolution of the consolidation he undoubtedly aided in the procuring of this deed and the question of the execution thereof by the- American Sash & Door Company unquestionably came before him. So that, in some degree, Kraetzer, Fischer & Co. was connected with the-execution thereof by the grantor. Notwithstanding these defects Kraetzer, Fischer & Co. would have obtained evidence of its equitable title to the property 'which, possibly, never passed to the new company. The technical objection could readily have been cured if Kraetzer, Fischer & Co. had made the objections in proper season. Under the circumstances herein we regard the objection as being made too late to avail defendant as a defense against reimbursing plaintiff for money laid out.

Other errors are argued, but we find no sufficient merit in the arguments to require the reversal of the judgment of the trial court. The judgment will he affirmed.

Affirmed.


text:
    Philip Naughton, Defendant in Error, v. Carl A. Anderson, Plaintiff in Error.
    Gen. No. 16,325.
    This case is controlled by the decision in Sherman v. Green, 152 Ill. App. 166.
    Forcible detainer. Error to»the Municipal Court of Chicago; the Eon. Michael F. Gibtkst, Judge, presiding. . Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed May 3, 1910.
    Egbert F. Kolb, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

A judgment was rendered against defendant, Anderson, by the Municipal Court in a forcible detainer suit. He had entered no appearance. The only service, as shown by the return upon the summons, was by leaving a copy of the summons at his usual place of abode with his mother, because, as the return states, of “the said defendant not being found”. Under the decision of this court in Sherman v. Green, 152 Ill. App. 166, this judgment must be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Presiding Justice Chytraus Mr. Presiding Justice Chytraus

text:
    Abbie Weston Swern, Executrix, Appellee, v. Durand Churchill et al., Keith Spalding, Appellant.
    Gen. No. 14,895.
    1. Contracts—effect of trade custom. When a trade, business or professional custom is involved, such custom is not considered to have entered into the contracts of others than those in the particu- ■ lar trade, business or profession, those shown to have had actual knowledge of the custom and those shown to have had previous transactions or a course of dealings of such nature that knowledge, -on their part, of the custom may be presumed.
    2. Contracts—effect of local custom, When a territorial or local custom is involved it is regarded to have entered into the contracts of those domiciled in the locality and perhaps of those who are permanently engaged in business in the locality where the custom exists.
    3. Contracts—how Knowledge of custom established. Facts and circumstances may be shown which raise a presumption of knowledge of the existence of a custom alleged to have been a part of the contract.
    4. Contracts—what customs affect. A usage or practice, in order .to have a standing in law as a custom, must be uniform within some sphere; it must also be long established and generally acquiesced in.
    5. Contracts—what rules do not amount to customs. The rules and enactments of voluntary organizations in a business, trade or eccupation, such, for instance, as the American Institute of Architects, are neither law nor custom and cannot be permitted to have the force and effect of such upon the community. They are valid and binding upon their members but cannot, as such rules and enactments, be made use of in courts to affect the rights of others than the members.
    6. Architects—appropriate method of proving value of services of. In order to show the value of architect’s services evidence should be adduced of the usual and customary charge for the particular services described and detailed.
    Assumpsit. Appeal from the (Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch ‘Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed March 18, 1910.
    Rehearing denied May 3, 1910; additional opinion filed.
    Charles T. Farson and Gardner, Stern & Anderson, for appellant, Keith Spalding.

      Hollett, Sauter & Henkel, for appellee.
   Mr. Presiding Justice Chytraus

delivered the opinion of the court.

Plaintiff below, appellee here, brought an action of assumpsit against Durand Churchill and Keith Spalding to recover for services rendered as architect by testator, William C. Swern, her deceased husband. Only the defendant Spalding was served and a judgment for $1,455 was recovered against him. He prosecutes this appeal to reverse that judgment. The cause was tried upon the theory that, without any agreement as to the amount to be paid for the services, there was an agreement or understanding between decedent and Churchill & Spalding that decedent should prepare preliminary sketches, plans, detail drawings and specifications and superintend the construction of a certain factory building and some appurtenant structures for ' defendants, in Chicago. Churchill & Spalding were engaged in business in Chicago as manufacturers of sheet steel lockers. Before the construction began, Churchill, who seems to have had sole charge of the matter of the building for the firm, became very seriously ill and continued ill for a long time and, during his illness, Swern died. Consequently the construction appears to have been abandoned either during the taking of bids or immediately after the bids had been received.

Plaintiff undertook to establish her case by proof that there was a settled usage and custom which fixed 5% on the total cost of a building, including fixtures, as the amount an architect would be entitled to receive for his services in preparing preliminary sketches, plans, detailed drawings and specifications and superintending the construction of the building; and, furthermore, that it was settled and established, as a usage and custom, that the architect was entitled to 3%% of such cost for his services, where the work was stopped or abandoned without going on with the construction of the building after the architect had prepared the preliminary sketches, plans, detailed drawings and specifications and had taken bids of contractors for the work. This line of proof was, of course, in disregard of what was the reasonable value of the particular services rendered by the architect in this particular instance. It is not perfectly clear, at least not from the testimony of Mahler, plaintiff’s first witness upon this phase of the case, whether it was plaintiff’s idea to establish a usage and custom in the profession of architects or a territorial or local usage and custom. When a trade, business or profession custom is involved, such custom is not considered to have entered into the contracts of others than those in the particular trade, business or profession, those shown to have had actual knowledge of the custom and those shown to have had previous transactions or a course of dealings of such nature that knowledge, on their part, of the custom may be presumed. When a territorial or local custom is involved it is regarded to have entered into the contracts of those domiciled in the locality and perhaps of those who are permanently engaged in business in the locality where the custom exists. The doctrine that usage and custom affect contracts “rests, except in particular instances, solely upon the theory that the parties in entering into the compact had such usage in mind, stipulated with reference to it, and, hence, made it a part of their contract”. Germ. Am. Ins. Co. v. Commercial F. Ins. Co., 95 Ala. 469, 474. If a usage is special and confined to a particular business or has reference to a particular port only, there is no presumption that both parties had knowledge of it and contracted with reference to it. Isaksson v. Williams, 26 Fed. 642, 645. To the same effect, Van Hoesen v. Cameron, 54 Mich. 609, 614. True, a person who deals in a particular market must be regarded as dealing according to the general and uniform usage and custom of that market, in respect to days of delivery and otherwise, and as having knowledge thereof; but this rule does not apply to one having but a single transaction with a member of a profession, of which he is not himself a member, wherein exists a usage or custom by which it is sought to charge him on the ground it entered into his contract.

When shown to exist, a particular usage and custom has the force of law within the sphere where established. An established usage and custom enters into the contracts of those within its sphere who are shown to know of its existence. Facts and circumstances may be shown which raise a presumption of knowledge of the existence of the usage and custom. A usage or practice, in order to have a standing in law as a custom, must be uniform within some sphere. It must also be long established and generally acquiesced in. Packer v. Pentecost, 50 Ill. App. 228, and cases there cited. “A custom is something which has the force and effect of law; is law by the usage and consent of the people. But it must be uniform and universal within the sphere of its action and so ancient ‘that the memory of man runneth not to the contrary. ’ ’ ’ Hursh v. North, 40 Pa. St. 241, 243. A practice and usage in order to have become an established custom must have been uniformly acquiesced in; for, as customs owe their origin to common consent, lack of uniform acquiescence shows the want of such consent.

The evidence in the case at bar fails to establish any •custom with reference to fees for architects’ services. Plaintiff’s first witness, Mahler, testified that there was a “well known” custom among architects fixing 5% of the total cost when the services included superintendence of the construction and the custom fixed 3y2% of the total cost when superintendence is not included. Upon cross-examination he testified that a certain Chicago association of architects had slightly different rates, and that quite a number of architects in this city were “guided” by these rates. He also testified upon cross-examination that the rates here were uniform for all classes of buildings, the minimum universal rate being 5%, and that the rate upon some buildings may be 10%; that, dependent upon inspection, engineering or something of that character, that is, dependent upon “the particular job,” the rate, exclusive of the superintendence, might be more than 3%% and that he knew it was a rule with the architects of the Chicago association to charge three-fifths of the original agreed price when excluding superintendence. Beaumont, plaintiff’s other witness, testified that there was a custom in Chicago in regard to fees for architects’ services of the kind here involved, and that exclusive of superintendence it was three-fifths of the commission agreed upon for the whole work. Upon cross-examination he said that there was no absolute customary or uniform rate of 5% on all buildings; that it was a custom to make a distinction between different kinds of buildings; that upon residence buildings architects would receive from 7% to 10% ; that while he himself had a fixed rate of 5% as a minimum charge for factory buildings he knew that the members of a certain Chicago association of architects had a fixed rate of 4% as a minimum and that a number of architects would take factory buildings at a minimum rate of 4%. He also testified that in this ease he “fixed the rate in a general way, not knowing the circumstances of this building”; that, “if this was a "building requiring a great deal of expert knowledge on the part of the architect, then, certainly, 5% would be a minimum charge” (meaning, of course, inclusive of superintendence); that “I estimated it would be worth 5% because of the fact that the architect found it necessary to send a draftsman to the office of the proposed owner of the building to get all these preliminaries, which showed to me that it must be a building of rather unusual conditions, or it would not be necessary to send a draftsman to get all that information.” At the close-of the plaintiff’s case the foregoing evidence was all the evidence in the case as to custom fixing charges for architects’ services.

For the purpose of destroying plaintiff’s theory of the 5% and custom defendant called as witnesses two architects. The first, Wheelock, testified that there was a tolerably uniform custom or usage with respect to architects’ charges or fees and that factory buildings were rated the lowest. Being asked whether, in respect to factory buildings, there was any fixed and uniform rate of charge “according to the practice of architects”, he answered: “I should not say there was a fixed charge—no. There was a customary charge. ’ ’ This customary and usual charge he fixed at 4% including the superintendence and at three-fifths of 4% of the cost of the building excluding the superintendence. Defendant’s other witness, Youngberg, testified that there was distinction in architects’ charges in the different kinds of buildings, that is, between residence buildings, factory buildings and office buildings and furniture and decorations. He fixes the usual and customary charge including superintendence at 4% and excluding superintendence at three-fifths of the entire fee. No other evidence as to custom was introduced.

This evidence falls far short of establishing a custom, i. e., a practice and usage uniformly acquiesced in and long established, of which defendant had actual knowledge or of which he could be fairly chargeable with having knowledge, so that it entered into and became a part of his contract.

The rules and enactments of voluntary organizations in a business, trade or occupation, such, for instance, as the American Institute of Architects, are neither law nor custom and cannot be permitted to have the force and effect of such upon the community. They are valid and binding upon their members but cannot, as such rules and enactments, be made use of in courts to affect the rights of others than the members. The use made of the rules and enactments of the American Institute of Architects before the jury would undoubtedly have been prejudicial error but for the acquiescence of the defendant in several instances.

It is contended on behalf of plaintiff that there was no objection made to the evidence introduced to prove a custom. The difficulty here is not that evidence relative to custom and usage was incompetent and therefore inadmissible. The difficulty is that the evidence is wholly insufficient to prove any custom in regard to the subject-matter relating to which it was sought to establish a custom. The question of the insufficiency of the evidence was properly raised by defendants motion for a peremptory instruction at the close of the plaintiff’s case. The learned trial judge erred in denying that motion. The defendant raised the question of the insufficiency of the whole evidence to sustain a verdict for the plaintiff by a motion for a peremptory instruction at the close of the defendant’s case. This motion should have been allowed. For the errors indicated the judgment will be reversed and the cause remanded.

Reversed and remanded.

Upon a petition for rehearing

Mr. Presiding Justice Chytraus

delivered the following opinion of the court:

Appellee’s counsel conceive that there is a conflict of decision in Packer v. Pentecost, 50 Ill. App. 228, and the line of cases holding as do L., N. A. & C. Ry. Co. v. Wallace, 136 Ill. 87; Stone v. Billings, 63 Ill. App. 371; Nathan Brand, 67 Ill. App. 541; S. C. 167 Ill. 608, and other cases. We see no such conflict. Packer v. Pentecost was an appeal from a judgment for $1,000 rendered in favor of an architect upon the basis that two per cent, on the cost of a residence building was the customary charge among architects for preparing the plans therefor. For some undisclosed reason the plans involved in that case were not used. There was no express agreement as to the amount of compensation to be paid for preparing the plans. Plaintiff’s theory was that in the profession of architects there was a uniform custom, long established, generally acquiesced in and so well known as to induce-the belief that parties in contracting for the preparation of plans had in mind the custom and contracted with reference thereto, so that, consequently, the custom became a. part of every such contract, and that the custom fixed two per cent, of the cost of the building as the regular and universal compensation, in all instances, for the preparation of plans for a residence building. That, is, that this would be the compensation whether the mailing of the plans required took a long time and required the greatest skill and long experience or took only the shortest time and little or no skill or experience. The case was tried upon that theory. That theory involves the idea that it is unnecessary to particularize the services rendered or to show, by evidence of the usual and customary charges, or other evidence, the reasonable worth or value of the particular services rendered in any particular case. The witnesses in the Pentecost case, as we understand itr were merely asked, generally, what the usual and customary charge was for preparing plans for a residence building, that is, plaintiff merely sought to establish a general custom, which would be a part of the contract and would determine the compensation at two per cent, of the cost of the building for which the plans were prepared. The witnesses were not asked, as experts who-by reason of practice and long experience would know, what was the usual and customary charge for particular services described, detailed and specified in their hearing in the evidence or in hypothetical' questions put to them. Evidence so adduced of the usual and customary charge for particular services described and detailed would tend to prove the reasonable worth and value of particular services rendered; but a party introducing evidence in that manner would not be proving a custom fixing a definite percentage of the cost of a building as the compensation in all such instances.

In L., N. A. & C. Ry. Co. v. Wallace, as in other cases of that class, the plaintiff introduced evidence showing what particular legal services he had rendered, and then he called witnesses, who had been present and heard the services described and detailed in the evidence given in their presence, to establish value, and they were asked to testify as to the value of those described and detailed services. This was not as if plaintiff had shown that he had conducted to conclusion a foreclosure of mortgage involving a certain amount and then called witnesses to prove that, in the legal profession, there was a universal custom fixing a certain per cent, upon the amount of the mortgage indebtedness as the fee of the solicitor in mortgage foreclosures, regardless of the reasonableness, the actual services rendered or the difficulties in the particular case. Had such proof of a custom been made in the L., N. A. & C. Ry. Co. v. Wallace case, then the legal proposition presented in that case would have been the same as in the Packer v. Pentecost case. As the facts are the cases may readily be differentiated. We find no inconsistency in the two lines of cases. We cannot agree with the argument of the plaintiff herein that the L., N. A. & C. Ry. Co. v. Wallace line of cases overrules Packer v. Pentecost.

In the Packer case it was held, as we have already held and do now hold in the case at bar, that the plaintiff failed to establish the fundamental fact involved, namely, that there was such custom as plaintiff by the theory of his case contended for.

That the theory of the plaintiff’s case in the case at bar was to establish a universal custom, and not to establish the reasonable worth or value of the services rendered, is most readily ascertained from plaintiff’s examination of his own witnesses on this subject of amount of compensation. Inspection of that examination and the testimony of his witnesses disclose most clearly that plaintiff did not seek to prove by his witnesses what the reasonable worth and value of the particular services rendered were, that is, what the usual and customary charge was for particular described, detailed and specified professional services. The plaintiff failed totally in establishing a universal custom as to a definite percentage.

When rendering the opinion herein we were misled, by defendant’s 12th point in his motion for a new trial, as it appears in the abstract of record, into believing that defendant had asked for a peremptory instruction in his favor at the close of all evidence. The petition and the testimony of his witnesses disclose most The defendant accomplished the same result, however, so far as raising the question of the insufficiency of the evidence to sustain the verdict and judgment is concerned, by filing a written motion in the trial court for a new trial, which motion included among other grounds one that the verdict was contrary to the evidence in the case.

The petition for a rehearing must be denied.

Petition denied.


author: Mr. Justice Smith

text:
    Emilie Wilhelmine Peacock et al. v. Lillie M. Phillips, et al., Edwin F. Masterson, Appellant, v. J. Arnold Scudder, Appellee.
    Gen. No. 14,994.

      Pledges—rights of purchaser. Where a borrower to secure the redemption of his debt pledges his own note and mortgage of a greater face value than the amount of the particular obligation and by the pledge agreement authorizes the pledgee to sell the note and mortgage upon default in payment of the principal note and the pledgee does so sell in good faith to a purchaser having full knowledge of all the facts, such purchaser takes the note and mortgage with the right to enforce the mortgage either at law or in equity only for the amount for which such note and mortgage were originally pledged with interest, costs and attorney’s fees.
    Foreclosure. - Appeal from the Circuit Court of Cook county; the Hon. Geobge A. Carpenter, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded with directions.
    Opinion filed May 3, 1910.
    Edward F. Dunne and Edwin F. Masterson, for appellant.

      Matz, Fisher & Boydeh, for appellee; W. H. L. Bell, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The following material facts shown by the record are uncontroverted:

Lillie M. Phillips was on November 27, 1906, the owner of certain residential property,' known as No. 151 Astor street, Chicago. On that date she borrowed $2,500 from the Chicago Savings Bank and Trust Company and executed and delivered to the bank her promissory note for that sum. At the same time she and her husband executed their note for $4,000, payable to their own order and by them endorsed in blank, and also a trust deed of the premises in question to secure the payment of the $4,000 note. This trust deed was a second mortgage upon the premises in question, subject to a first mortgage for $15,000. This $4,000 note and trust deed were delivered to the bank as collateral •security for the payment of the $2,500 note. The $2,500 note was in the usual form of collateral notes taken by banks, and provided that upon default in the payment of the said note the bank might sell the $4,000 note and trust deed. This $4,000 note and trust deed were, according to the Stipulation of Facts, pledged as security for the $2,500 note, and for no other purpose, and appellant in stating that it was pledged for the $2,500 note “and any other liabilities, either direct or contingent, of the undersigned to said bank,” etc., must have overlooked this part of the stipulated facts.

Upon the maturity of the $2,500 note, on January 26, 1907, a new note for a like sum, payable thirty days after date, with the same collateral provisions, was given in place of the original note, and the same $4,000 note and trust deed were continued as collateral security therefor. This second $2,500 note was not paid at maturity. Two months later, on April 29, 1907, the bank sold the $4,000 note and trust deed to appellee, J. Arnold Scudder, for an amount equal to the principal and interest of the $2,500 note. Appellee knew the circumstances of the pledge, but the sale was bona fide, and thereafter the bank cancelled the $2,500 note, returned it to Mrs. Phillips, and retained no further interest in the transaction.

Six weeks after the sale of the $2,500 note to appellee, the appellant, Edwin F. Masterson, took a quitclaim deed of the mortgaged premises from Mrs. Phillips and her husband. At that time he was informed that the $4,000 note and trust deed were pledged as collateral security for the $2,500 note, and that the bank had authority to sell said $4,000 note and trust deed upon default in the payment of the $2,500 note, but he did not know that such a sale had already been made.

Foreclosure proceedings were begun in this case July 3, 1907, by the holder of the first mortgage for $15,000. Appellee filed his cross-bill in those proceedings to foreclose his mortgage. While the proceedings were pending, appellant paid off the first mortgage and paid to appellee the amount for which appellee had purchased the $4,000 note, together with interest and solicitor’s fees; and at the same time deposited with the Clerk of the Circuit Court the sum of $1,800 to be held by the Clerk pending the result of this suit; and the lien of the trust deed was transferred from the real estate to the fund of $1,800.

The Circuit Court entered a decree in accordance with the prayer of the cross-bill for $1,618 and interest thereon from March 3, 1908, the date of the master’s report, and ordered the clerk of the court to pay out of the moneys deposited with him in the cause to the cross-complainant, J. Arnold Scudder, that sum with interest to the date of payment; and to pay to the cross-defendant Edwin F. Masterson, appellant, such sum as shall remain in his hands after such payment to Scudder. Mr. Masterson prosecutes this appeal to reverse the decree.

The record presents but one question which may be stated concretely as follows: Is cross-complainant Scudder, as the purchaser of the $4,000 note and mortgage deposited with the bank as collateral security for payment of the $2,500 note with full notice of all the facts, entitled to a decree in this foreclosure proceeding for the full $4,000 and interest, less the payment made thereon; or was iScudder’s equitable lien under the trust deed satisfied by the payment of $2,871.48, being $2,500, and interest and solicitor’s fees?

The question may be stated abstractly substantially ■as put by counsel for appellee, as follows: Where a borrower, to secure the repayment of his debt, pledges his own note and mortgage of a greater face value than the amount of the principal obligation, and by the pledge agreement authorizes the pledgee to sell the note and mortgage upon default in payment of the principal note, and the pledgee does so sell in good faith to a purchaser having full knowledge of all the facts, does the purchaser take the note and mortgage with "the right to enforce the mortgage in equity for the face value of the note?

The theory and contention of appellee, Scudder, is that the bank agreed to loan to Mrs. Phillips $2,500 and in consideration for that loan she agreed to give to the bank the principal note for $2,500 and she also agreed that she would deposit the $4,000 note and trust deed and sign the collateral agreement giving the bank authority to sell the same on default in the payment of the principal note; that the bank did everything which it was required to do and defaulted in nothing, and that it did only what it was expressly authorized to do, when it sold the note and trust deed. Its right to sell the collateral was a part of the consideration for making the loan. The bank, as the holder of this pledge, held it just as it would hold any pledge of personal property (goods or horses, for example) for what it was worth, as a trustee for the pledgor, and when a sale was made, it was its duty to sell it for the best price it would bring; that it was Mrs. Phillips, herself, selling the note and trust deed by her agent, or trustee, and if the sale was a bona fide sale to a third party (and such was the fact here), the purchaser took good title to the note and trust deed for its full value, with the right to a decree of foreclosure and sale of the property for the amount of the note and interest.

In support of this theory reliance is placed on Trust Estate of Woods, Weeks & Co., 52 Md. 520; Morris Canal & B. Co. v. Fisher, 9 N. J. Eq. 667; Potter v. Thompson, 10 R. I. 1; and Atlantic Trust Co. v. Woodbridge Canal & I. Co., 86 Fed. Rep. 975; and it is contended that the doctrine of Olds v. Cummings, 31 Ill. 188, has no application to any case where the mortgagor expressly authorizes the sale and assignment of the mortgage. ’

In Trust Estate of Woods, Weeks & Co., supra, no mortgage or trust deed was given to secure the notes in controversy. The notes had been deposited as collateral security for indebtedness due Garrett & Sons with an agreement that if certain drafts accepted by Garrett & Sons were not met that the collaterals might, be sold. The drafts were not met and the Garretts sold the collaterals to Harvey and to Drexel, Morgan & Co. for less than their face value. Woods, Weeks & Co. subsequently executed a deed of trust for their creditors, and a court of equity took charge of the administration of the trust created by the deed. Drexel, Morgan & Co. and Harvey proved up their claims for the full face value against the insolvent estate, and the court allowed the claims so proved. The Garretts also filed a claim for the balance due them; and the main question was, did the purchasers of the notes have a right to a dividend for the full amount of the notes? The court held they were entitled to such a dividend, although the real balance due the Garretts was only $50,537.77, while the exhibited claims of Drexel, Morgan & Co., Harvey and the Garretts against the estate, all growing out of the transactions between the Garretts and the insolvents, amounted to $126,250.40.

A very able dissenting opinion was filed in that case by Chief Justice Bartol, in which, it seems to us, the more reasonable and just conclusion is reached, that the execution of the power of sale conferred on the Garretts did not clothe the purchasers, who took the notes after maturity and with full knowledge of the facts, with different or better rights than the Garretts had. Moreover, the basic principle of that case is contrary to the law of this State. Hynes v. Illinois Trust & Sav. Bank, 226 Ill. 95.

The case of Morris Canal & Bank Co. v. Fisher, supra, involved a public sale of bonds of the Company, payable to bearer, pledged to secure a loan by Lewis to the company. The bonds had not matured and were secured by a mortgage on the property of the company. The note to Lewis was not paid at maturity and the complainant Fisher purchased the bonds at public auction. The company having refused to pay the interest on the bonds, Fisher filed a bill for foreclosure and sale of the canal property. It does not appear in the case that Fisher had any notice or knowledge of any defenses to the bonds. After passing upon several questions raised, it was held that Lewis had a right to sell the bonds, and that complainant Fisher was a bona fide purchaser of the bonds and took the legal title thereby; that the bonds were instruments of a peculiar character, expressly designed to pass from hand to hand by delivery so as to confer a complete legal title, and that they were such negotiable securities as were usually sold in the market, and that the company when it issued the bonds must have understood the settled usage in regard to such securities to transfer and circulate them without inquiry as to the title of the transferrer, and, therefore, they differed from common obligations. After declaring that such bonds were generally issued for the express purpose of raising money by their sale, the court holds that to permit parties to dispute the result of such usage would be to permit parties to take advantage of their own wrong; and to declare them subject to existing equities, as in the case of ordinary bonds, upon every transfer of them, would strike a blow at the great mass of securities in the market.

It clearly appears, we think, that the securities in question in that case were of a very different character from those here involved, and that the case called for the application of different principles in its decision. See P. S. R. R. Co. v. Thompson, 103 Ill. 187. It is not ■applicable to the facts of this case.

Potter v. Thompson, supra, was an action at law, and i the question here presented was not involved.

In Atlantic Trust Co. v. Woodbridge Canal & I. Co., supra, the decision is very brief, and without discussing the question involved, Wade v. Railroad Co., 149 U. S. 327, is cited as the basis of the court’s conclusion. That case, however, is not authority for the conclusion reached in the Atlantic Trust Co. case.

Upon a careful consideration of the facts, and the reasoning of the master as expressed in his report, and the argument of counsel for appellee, we are unable to reach the conclusion that the rule of Olds v. Cummings does not apply. In our opinion it works out the equities of the case surely and safely and must ■control in the solution of the question here involved. We think that if there had been a public sale of the collateral here involved by the bank and the bank had bid it in, and filed a bill to foreclose the mortgage, it would have been entitled to a decree for the amount loaned by it to Mrs. Phillips with interest, costs and attorneys ’ fees, and no more.

Courts of equity will not be confined to. legal forms and legal titles, but look beyond these, to the substantial, equitable rights of parties.” The equitable rights of the parties as between the bank and Mrs. Phillips, the mortgagor, would have justified a decree for the amount above indicated, and no more.

By transferring the $4,000 note to appellee, Scudder, an equitable assignment of the trust deed, which was . not assignable by common law or by statute, was carried with the note. Here the remedy is sought through the medium of the trust deed, or mortgage in equity, and the note is used merely as an incident to the mortgage. “He who buys that which is not assignable at law, relying upon a court of chancery to protect and enforce his rights, takes it subject to all infirmities to which it is liable in the hands of the assignor; and the reason is that equity will not lend itself to deprive a party of a right which the law has secured him, if such right is intrinsically just of itself.” Olds v. Cummings, supra. See also Walker v. Dement, 42 Ill. 272; Haskell v. Brown, 65 id. 29; McAuliffe v. Reuter, 166 id. 491; Buehler v. McCormick, 169 id. 269.

In McAuliffe v. Beuter, supra, it is said at page 496 of the opinion: “But this is a suit to foreclose the deed of trust as a mortgage, and the law is well settled in this State that in such a suit, as a mortgage is a mere chose in action not negotiable, the mortgagor without notice of its assigment may interpose any defense arising out of the transaction with the mortgagee which he could set up against the mortgagee in case the bill was filed by him. This rule was announced in this State by this court in Olds v. Cummings, 31 Ill. 188, and has been re-stated and applied in a score or more cases since then, down to Humble v. Curtis, 160 Ill. 193, where it was said (p. 202): “That he (the assignee) would take the mortgage subject to the equitable defenses existing in favor of the mortgagor is settled in Olds v. Cummings, 31 Ill. 188, and numerous other cases. The reason there given is, that it is the • duty of the purchaser of a mortgage, it' not being assignable so as to vest the legal interest, to inquire of the mortgagor if there be any reason why it should not be paid.”

Appellee, Scudder, had full knowledge of the facts | stipulated by him to be true, namely, “that said principal note for four thousand dollars ($4,000) and coupon notes evidencing the interest upon said principal note, and said trust deed, were delivered to said Chicago Savings Bank & Trust Company as said collateral security for the payment of said note of twenty-five-hundred dollars ($2,500), and for no other purpose, and it was accepted by said bank for that reason only ;’ and that beyond that there was no other consideration whatever given or received for the trust deed. It is, therefore, too clear for argument or the citation of authority, that the bank could not recover in an equitable action on the mortgage anything more than its debt with interest, costs and attorneys’ fees stipulated for in the deed. As held in Third Nat. Bank v. Eastern R. R. Co., 122 Mass. 240, a debtor’s liability to his creditor is not increased by increasing the number of promises to pay the same debt, in whatever form he may make them. People v. Remington, 121 N. Y. 675; International T. Co. v. Union Cattle Co., 3 Wyoming, 803.

Appellant, Masterson, as the grantee of Mrs. Phillips of the premises described in the cross-bill, stands in the shoes of Mrs. Phillips and may assert her defenses in this suit.

These considerations dispose of the case on the grounds stated. There is carried, however, in what we have said, the implication that appellee, Scudder, in an action at law on the note, might recover the full face value of the note upon the facts presented in the record. Indeed, this is broadly asserted by counsel for appellee and is conceded in appellant’s briefs and argument. We do not so hold. On the contrary, we are of the opinion that Scudder could recover at law on the note the amount which he paid for it and no more. ‘ Whenever the defendant is entitled to go into the question of consideration, he may set up the partial as well as the total want of consideration.” David on Negotiable Instruments, Vol. 1, pr. 201, and authorities there cited. Walker v. Carleton, 97 Ill. 582.

The basis of the argument for appellee is, that the bank had no relation whatever to the $4,000 note and trust deed except as pledgee. There was nothing in the collateral agreement giving the bank the right tc enforce the payment of the note either in law or equity. And the bank in selling the note acted purely as pledgee, and was nothing more than the agent and trustee of Mrs. Phillips under the authority given it in the collateral agreement to sell upon default. Assuming this proposition, it follows, we think, as a legal result that the note first went into circulation, as a note, by its sale and delivery to Scudder, who thereby became the payee. In other words Mrs. Phillips executed the note and through her agent, the bank, delivered it to Scudder, who paid Mrs. Phillips through the bank $2,530.62 for the note. What Mrs. Phillips did through the bank as her agent was her act in legal effect. We may then for the purpose of simplifying the question eliminate the bank and consider the question as if Mrs. Phillips herself had received the $2,530.62 from appellee Scudder and delivered to him the note in question. In our opinion Scudder could recover, in an action at law, only the amount paid for the note with interest.

The decree is therefore reversed and the cause is remanded to the Circuit Court with directions to order the payment of the amount deposited to appellant, Edwin F. Masterson, and to dismiss the cross-bill of appellee Scudder.

Reversed and remanded with directions.


text:
    The People of the State of Illinois, Plaintiff in Error, v. Rose D. Rittman, Defendant in Error.
    Gen. No. 15,386.
    Quo wakrahto—when lies. Quo warranto lies to test the right to hold the office of president of a fraternal insurance corporation upon allegations of non-observance of the by-laws of the society and the use of undue influence, etc., in effecting the alleged election of the incumbent of such office.

      Quo warranto. Error to the Superior Court of Cook county; the Hon. Willard M. McEwen, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1910.
    Reversed and remanded.
    Opinion filed May 3, 1910.
    Rehearing denied and modified ■opinion filed May 17, 1910.
    John B. W. Wayman, for plaintiff in error; Francis A. McDonnell and Frank L. Fowler, of counsel. ■
    Edward Osgood Brown and I. T. Greenacre, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the ■court.

By this writ of error a judgment of the Superior Court is brought before us dismissing a petition filed by the plaintiff in error for leave to file an information in the nature of a quo warranto to test the right of defendant in error, Rose D. Rittman, to the office of president (High Chief Ranger) of the Woman’s Catholic Order of Foresters, a fraternal insurance corporation of Illinois.

The membership of the order is confined to women of the Catholic faith, enrolled in membership in local lodges or courts controlled by a constitution and bylaws, and subject to the jurisdiction of a supreme body called a High Court.

The contestant, Elizabeth Rodgers, in' whose behalf the petition was filed, was the organizer of the order, and had been its High Chief Ranger or President for its entire existence. She was a candidate for re-election at the annual convention of delegates which met in Detroit, Michigan, in October, 1908. Mrs. Rose D. Rittman, defendant in error, had been Vice Chief Ranger four years, and was the only opposition candidate. At the election eight hundred valid ballots were cast, of which Mrs. Rittman received four hundred and one and Mrs. Rodgers three hundred and ninety-nine.

The petition alleges that the election of Mrs. Rittman was invalid because of fraud and intimidation therein as the result of a conspiracy between members and persons not members, and sets out in great detail acts done outside of the convention and in the convention which, if proven, were of a character tending to-establish a fraudulent conspiracy to libel, slander and defame the character of Mrs. Dodgers, and, what is of more serious legal importance, that in connection therewith an undue and illegal spiritual influence was exerted upon the members of the convention by persons possessing spiritual authority in the Catholic Church, not members of the order or of the convention, which was calculated to influence directly the result of the election and to destroy freedom in the election by threats to withhold the sacraments of the church and expose the delegates who should vote for Mrs. Dodgers to other religious penalties. The petition also alleges a violation of the constitution of the order which provides : “When marking the ballot each delegate shall be entitled to privacy, and her freedom of choice shall not be in any way restricted.” Attached to the petition as exhibits and made a part of it are a number of affidavits which tend to support the allegations of the petition. Counter affidavits of the defendant in error were also filed and read on the hearing of the petition.

We do not deem it necessary at this time to set out the averments of the voluminous petition, or to discuss in detail all the questions of law raised. A brief statement of our conclusions is sufficient. The question now presented by the record before us is whether the Superior Court erred in its legal discretion in refusing leave to file the information and in dismissing the petition. The People ex rel. v. People’s Gas Light Co., 205 Ill. 482. “Leave on the one hand, is not granted as a matter of right upon the part of the relator; and on the other hand, a court is not at liberty to arbitrarily refuse, but must exercise a sound discretion in accordance with principles of law.” People ex rel. v. Town of Thornton, 186 Ill. 168; Paul v. People, 82 Ill. 82.

The statute of Illinois under which the Woman’s Catholic Order of Foresters was organized provides: “Each society shall have a lodge system, with ritualistic form of work and representative form of government,” etc. Sec. 258, Chap. 73, Hurd’s Revised Statutes. And section 267 of the same chapter provides: “Any such society organized under the laws of this ' State may provide for the meeting of its,legislative or governing body in any other State, province or territory, wherein such societies shall have subordinate bodies, and all business that has heretofore or may hereafter be transacted at such meetings shall be valid in all respects, as if such meeting was held in this State,” etc.

Section 1 of Article 11 of. the Biennial Session & High Court By-laws provides: “Nominations and election of officers shall take place after reports, of the High Court officers and reports of the Committee on Constitution and Finance have been read and acted upon.” The section then provides the method of conducting elections and declares: “When marking the ballot, each delegate shall be entitled to privacy, and her freedom of choice shall not be, in any way, restricted.”

It is clear, we think, that the statute of this state under which the election in question was authorized and held and the by-laws contemplate a representative form of government for such societies, and elections thereunder wherein the freedom of choice of the delegate voting shall be secured, and"“shall not be, in any way, restricted. ” The rights thus secured to the members of the society by the statute and by the constitution and by-laws of the order under the statute are as high, at least, and as important as the rights of contract, and should be as strictly guarded and protected, as are the rights of contract (Doremus v. Hennessy, 62 Ill. App. 391; Van Horn v. Van Horn, 52 N. J. Law, 284; Mogul Steamship Co. v. McGregor et al., L. R. 21 Q. B. 544; Doremus v. Hennessy, 176 Ill. 608; London Guarantee & Accident Co. v. Horn, 206 Ill. 493; Moran v. Dumphy, 177 Mass. 485), and courts should see, in the exercise of a sound legal discretion, that such rights are fully protected and that fraudulent combinations and unlawful influences calculated to subvert such rights are not rewarded by ultimate success.

We are of the opinion that the allegations of the petition are sufficient to require the court to grant leave to the petitioner to file an information in the nature of a ■quo warranto against the defendant in error, and that the Superior Court erred in refusing the leave and dismissing the petition.

“The right to vote necessarily includes the right to vote as one chooses, free and untrammeled. And the genius of our free institutions demands that the mind as well as the body shall be free to exercise the elective franchise, free and untrammeled, without fear of bodily harm, social ostracism, or of religious wrath; and if any of the practices be exercised upon the body of the voters to any great extent, the purity of election is marred and election freedom destroyed; and if it be so general as to affect the result, or that from it the real result cannot be ascertained from the returns, the election is void.” Richardson v. Rainey, 1 Ellsw. El. Cases, 233; Duffy v. Mason, 1 Ellsw. El. Cases, 361. See also Payne on Elections, sec. 467, p. 391; Mc-Crary on Elections, sec. 550, p. 407; secs. 582, 582a and 569; State v. Burnham, 15 N. H. 396; Piatt v. People, 29 Ill. 54; Attorney General v. Stillson, 108 Mich. 419; Cunningham on Elections, pp. 202, 203, 204; Trench v. Rolan, 6 Irish Reports, C. L. 464.

The judgment is reversed and the cause remanded.

Reversed and remanded.