author: Mr. Presiding Justice Pam

text:
    Royal Colliery Company, Appellee, v. Alwart Brothers Coal Company, Appellant.
    Gen. No. 20,344.
    (Not to be reported in full.)
    Appeal from the Muncipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Rehearing denied March 15, 1916.
    Statement of the Case.
    Action by Royal Colliery Company, a corporation, plaintiff, against Alwart Brothers Coal Company, a corporation, defendant, to recover the value of certain coal sold by plaintiff to defendant. From a judgment for plaintiff for $1,155, defendant appeals.
    The evidence showed that plaintiff was in the business of mining and shipping coal, having its mines at Virden, Illinois. Defendant was a coal dealer in the City of Chicago, and had a contract with the board of education to supply part of the coal used in the Chicago public schools. On the 25th day of July, 1911, plaintiff and defendant entered into a written contract whereby plaintiff agreed to sell, and defendant agreed to buy, approximate!} 20,000 tons of lump and egg coal at a price of $1.07% per ton at the mines; said coal to be shipped in approximately equal quantities (about 2,500 tons per month) between the date of the contract and March 31,1912, as ordered, and payments to be made at Virden on the 20th of each calendar month for fifty per cent, of all' coal shipped during the previous month; the balance to be paid for on the 10th of the second month following shipment.
    In January, 1912, there arose between the parties some difficulty with reference to this contract. During the period that the school coal contract had to run, defendant needed certain coal known as “washed coal,” however, the transaction for washed coal was to be considered separate and apart from the transactions involving the school coal contract. It was also understood that payment for the washed coal was to be made on the 10th of the month following shipment.
    The evidence is undisputed that there was furnished by plaintiff to defendant washed coal as set forth in its statement of claim, amounting to $1,485.37, and that the coal represented by the first item was delivered on February 20,1912.
    During January, 1912, there was delivered to defendant on the school coal contract, coal valued at $1,817.08. Under the terms of the school coal contract there was due on February 20th the sum of $908.54. There was also due at this time $268.11 for washed coal delivered in January.
    On February 20th defendant sent plaintiff a voucher check for $1,100, which voucher check stated that it was a payment ‘ ‘ on account. ’ ’ This check was received by plaintiff and was paid in due course.
    On June 15, 1912, defendant sent a voucher check to the plaintiff for the sum of $376.40. This voucher check had on its back the following memoranda:
    “3/26 Bill rend. $1209.72 3/7 Bill rend. 121.66 2/20 Bill rend. 133.99
    1485.37

      1911 Cr.
    10/5 Cr. memo. 139 4.49
    26 Cr. memo. 144 13.92 18.41
    1503.78
    1911
    27.38 11/3 Cash 1912
    1100.00 1127.38 2/21 Cash
    376.40”
    This check was received and deposited by plaintiff and paid. It will be seen that the defendant in the voucher check applied the $1,100 payment of February 20th on the washed coal account.
    It further appeared from the evidence that after the beginning of this suit, plaintiff, on October 15,1912, began an action against the defendant in the United States District Court, in which suit plaintiff filed the ordinary common counts, alleging damages in the sum of $5,000. Defendant pleaded the general issue. That suit arose out of a controversy with reference to the school coal contract. After suit was begun in the United States District Court by plaintiff, defendant began an action in the Municipal Court of Chicago to recover damages which it claimed to have sustained because of plaintiff’s failure to fulfil the school coal contract. This cause was removed to the United States District Court and the two cases were tried together.
    Defendant claimed that in the trial of these two cases in the United States District Court, plaintiff admitted that the $1,100 paid on February 20th was applied on the washed coal account and not on the school coal contract; that according to plaintiff’s accounts, there submitted in evidence, the $1,100 payment was not applied by plaintiff on the school coal contract; that all the coal ordered and delivered previously to Jan-nary had been paid for; that no coal was ordered under the school coal contract February 20th, and therefore plaintiff in that case was suing for only the coal ordered and sold during the months of January and February; that there was due for said coal not to exceed $3,523; that there was proven in that case damages not to exceed $1,200; that the interest due on any theory of the case could not have been more thari $175, making a total of $4,898; that therefore the verdict for $5,081.95 rendered in the United States District Court proceeding could have been arrived at only on the theory that the $1,100 payment in question had not been applied on the school coal contract; that the judgment entered on said verdict was res adjudieata of that fact; that with the elimination of that question here, there was no further issue to be determined, consequently plaintiff had no cause of action, as the payment of $1,100 and the check for $376.40 constituted full payment of the amount due for washed coal, the subject-matter of the present suit.
    Plaintiff contended that its suit in the United States District Court was not for the value of said coal at the contract price, but for the market value thereof, together with damages for defendant’s failure to order coal in quantities provided for in the school coal contract, during the months prior to January; that it based its right to a recovery for damages upon an alleged breach of the contract by defendant; that the $1,100 payment was applied by it on the school coal contract, and that the jury in the United States District Court proceeding so found.
    In support of their respective contentions, both parties introduced testimony as to the proceedings in the United States District Court, not only as to the evidence there offered, but also the rulings of the court thereon, the pleadings and the instructions to the jury. This testimony was given by the respective attorneys who represented the parties in the litigation both in the United States District Court and in the proceeding at bar.
    It appeared from the evidence that the testimony in the proceeding in the United States District Court showed that up to February 20th about 7,500 tons of coal had been delivered to defendant under the school coal contract, 3262.02 tons of which were furnished between January 12th and February 20th; that on February 20th defendant demanded that the balance of the coal due under the school coal contract (12,500 tons) be delivered during the remainder of the contract period, viz., by April 1; that upon plaintiff’s refusal to comply therewith, defendant declined to order any more coal from plaintiff; that plaintiff claimed that the failure to order coal as provided for under the contract, at the rate of 2,500 tons per month, constituted a breach of the contract, by reason of which breach plaintiff had the right to recover any damages suffered as a result thereof, also for the coal delivered during January and February, on the basis of the market value, and not upon the contract price.
    The evidence further showed that in the course of the trial in the United States District Court it appeared that after this contract had been entered into, the price of coal declined to a figure below the price therein provided for, during the months of August, September and October; that during said period, defendant’s orders fell considerably below the monthly quota; that during November, when the price of coal rose above the contract price, defendant ordered 2,000 tons—nearly the full quota; that during December, when the price again declined, defendant ordered only 1,000 tons; that during January and February, 1912, when the weather became cold, the price of coal advanced sharply; that because of defendant’s failure to order coal as contracted for, plaintiff had made certain contracts with other people, so that when defendant ordered in larger quantities in January, the plaintiff, by reason of these emergency contracts, was unable to commence deliveries to defendant until J anuary 12th; that the amount of coal delivered from January 12th to February 20th was practically on a basis of 2,500 tons per month.
    It appeared further from the evidence in the case at bar that in the suit in the United States District Court, defendant’s statement of claim in the Municipal Court of Chicago was introduced, showing the market price of coal during January and February was $2 and $1.75 per ton, respectively; that plaintiff introduced evidence showing the market price day by day; that defendant claimed the market price of coal during January and February ranged as follows:
    “January 10 to 16..................$2.25 per ton
    do 16 to 25.................. 1.75
    do 25 to 31 ................. 1.78
    Feby. 2 & 3 ................. 1.90
    do 4 to 9 ................. 1.65
    do 10 to 19 ................. 1.95
    do 19 & 20 ................. 1.60”
    It further appeared that in the United States District Court, Paul J. Alwart, secretary of the defendant company, testified that the payment of $1,100 was originally intended as payment of the $908.54 due February 20th for J anuary coal deliveries under the school coal contract, and an item of $268.11 due for washed coal, but that later, viz., in June, he applied the entire amount in payment of the sum due for washed coal, and that plaintiff acquiesced in such action. It further appears that defendant based its claim for the application of the $1,100 on the washed coal account, upon the fact that the voucher check for $376.40 showed that the $1,100 was applied by defendant to the payment of all washed coal. This was also testified to by Mr. Alwart in the case at bar.
    It further appeared that in the United States District Court proceeding there was evidence that the washed coal account was separate from the school coal contract, and that plaintiff and defendant had agreed that the washed coal account he taken care of independently of any difficulties arising with reference to the school coal contract; that A. J. Maloney, vice president of the plaintiff company, testified that the $1,100 was applied on the amount due for coal delivered in January on the school coal contract, and on the washed coal delivered in January; that afterwards (in May) the defendant, by separate check, paid for the washed coal delivered during January, whereupon the entire sum of $1,100 was applied on the amount due on the school coal contract. It further appeared that in the United States District Court proceeding, the question whether or not the contract had been breached was one of fact, and that the jury were instructed that if they believed from the evidence that the contract had been breached, plaintiff might recover the market value of the coal sued for.
    On this state of the record, defendant contended: First, that its voucher check for $376.40 was tendered to plaintiff as a payment in full for the washed coal in question, this contention being based npon the fact that the voucher check contained on the back the memoranda set forth above; that plaintiff, by accepting this check acquiesced in the application of the $1,100 to the payment of the amount due on the washed coal account; that, in fact, the giving of this voucher check and the acceptance thereof constituted an agreement on the part of plaintiff to accept this check in full for the washed coal. And counsel for defendant argued that under the facts, the court should have held as a matter of law that this constituted a contract.
    Defendant also maintained that the jury in the United States court proceeding had determined as a matter of fact that defendant had not been credited with the sum of $1,100 on the amount due under the school coal contract, hut on the contrary, that the jury by their verdict had found that plaintiff had applied said $1,100 in payment of the amount due on the washed coal account; that therefore such i 1 essential fact having been determined by a court of competent jurisdiction may not be again passed on by another court in litigation between the same parties.”
    Abstract of the Decision.
    1. Payment, § 36

      —when transfer of payment to different account not implied as matter of law. The acceptance of a check which bears on it an indorsement stating that a previous payment had been made on a specified one of two accounts between the parties does not, as a matter of law¡ constitute an agreement that such application shall be made of the prior payment which had been previously credited to the other account, but the question as to whether such agreement arose is one of fact for the jury.
    2. Payment, § 29*—when evidence sufficient to support finding as to application. Evidence examined and held sufficient to support finding as to agreement as to application of payment.
    3. Estoppel, § 16*-—when question of estoppel by verdict for jury. The question as to whether or not there is an estoppel by verdict is for the jury.
    Defendant contended that, under the facts in evidence in the case at bar, it appears conclusively that the verdict of the jury (in the United States District Court proceeding) can only be reconciled with the theory that the plaintiff had not applied the $1,100 to the school coal contract.
    John A. McKeown, for appellant.
    Frank Crozier, for appellee.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


source: Caselaw Access Project

license: Public Domain

text:
    Henry Finkelstein, Plaintiff in Error, v. Illinois Central Railroad Company, Defendant in Error.
    Gen. No. 20,439.
    1. Cabbiebs, § 248

      —when evidence sufficient to show written contract for carriage of live stock. In an action by a shipper of live stock against the carrier to recover for injuries alleged to have been caused to the stock by defendant’s negligence, plaintiff’s evidence examined and held to show that a written contract for the carriage of the stock had been entered into.
    2. Cabbiebs, § 248*—when introduction in evidence of written contract for carriage of live stock essential. In an action by a shipper of live stock against the carrier to recover for injuries alleged' to have been caused to the stock by defendant’s negligence, where it appears from plaintiff’s evidence that a written contract had been entered into for the carriage of the stock, it is incumbent upon plaintiff to introduce the contract in evidence.
    3. Cabbiebs, § 248*—when duty to introduce whole of written contract not relieved. In an action by a shipper against a carrier of live stock to recover for injuries to stock, where it appears from plaintiff’s evidence that he entered into a written contract with defendant, and plaintiff offers to introduce only a part thereof not showing a contract, plaintiff’s contention that he is relieved from the duty of introducing other parts of the contract because he had not read and did not know of nor assent to the conditions contained in such parts, cannot be sustained, but the whole contract must be introduced, and if defendant introduces evidence showing that any of its provisions preclude recovery, plaintiff must introduce evidence showing the inapplicability of such provisions.
    Error to the Municipal Court of Chicago; the Hon. John R. Caverly, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Rehearing denied March 3, 1916.
    Statement by the Court. This is a suit to recover damages sustained by plaintiff in error (plaintiff below), by reason of the alleged negligence of the defendant in error (defendant below), in the shipment of horses and mules over the defendant’s line or road.
    Plaintiff’s statement of claim alleges that one mule and two horses,, the property of the plaintiff, were shipped from Assumption, Illinois, on or about May 11, 1912, to Chicago, Illinois, arriving at their destination May 13th; that the damages were incurred because of unreasonable delay in the transit of the said property; and that the amount of said damage was in the sum of one hundred and fifty dollars.
    In the affidavit of merits, defendant denied that it was guilty of negligence or any unreasonable delay in the handling of the shipment in question; that the damage, if any, was due to the viciousness of the animals and the manner in which they were loaded into the car by plaintiff, who was charged with the loading thereof,' and not to any negligence on its part; and further alleged that a written contract had been entered into with reference to said shipment; that undeiy said contract the liability of defendant, if any, was limited; and that the valuation set upon the stock alleged to have been injured was in excess of the amount set forth in said contract; furthermore, that said contract provided that no claim for loss or damage should be valid against defendant unless such claim be put in writing, verified, and delivered to the general freight agent of the defendant company, or to the agent of defendant at the station from which the shipment was made, or to the agent at the point of destination, within ten days from the time said shipment was removed from said car; and that plaintiff failed to give such notice,' wherefore he could not maintain his action.
    Upon the trial below a jury was waived and the cause submitted to the court for trial. The court found the issues for the defendant, at the close of the plaintiff’s case, and entered judgment for costs against the plaintiff; to reverse which plaintiff has prosecuted this writ of error.
    Eugene L. Garey and Archie J. Deutschman, for plaintiff in error; Frank D. Fulton and John M. Rankin, of counsel.

      Vernon W. Foster and Calhoun, Lyford & Sheean, for defendant in error; J. G. Drennan, of counsel.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

In urging a reversal, plaintiff contends that the evidence on behalf of plaintiff shows a prima facie case of common-law liability. In support of said contention he insists that he has proven: “First, delivery of the horses to the defendant in good condition at Assumption, Illinois; second, filling instructions to the carrier of the consignee and destination; third, the reasonable and customary time required for such transit by the carrier; fourth, a longer period of time for the transportation of the horses than such usual and customary time; fifth, arrival of horses at destination in damaged condition; and. sixth, amount of damage, if any, suffered by plaintiff as a result thereof. ’ ’

It is true plaintiff did show these facts, and if those were the only facts shown, plaintiff’s contention would be tenable. Defendant, however, in its affidavit of merits, asserted that there was a written contract between plaintiff and defendant, containing certain provisions, among which was the one with reference to filing claim within ten days, of loss or damage suffered, which, not having been complied with by plaintiff, prevented a recovery. Plaintiff contends, however, that there was no written contract entered into by him; that because the provisions contained therein were not read by him, were not called to his attention by defendant, and were not assented to by him, therefore he was not bound by them.

' Plaintiff stated in his testimony that at the time he made the shipment in question, the defendant’s agent at Assumption, the initial point of shipment, said, “sign your bill;” that he signed it, and “he gave me a contract, and I went away.” Repeatedly in the course of his testimony plaintiff used the word “contract,” and counsel for plaintiff offered the contract at the time of the trial, for the purpose of showing the initial point of shipment and the destination. Defendant objected, insisting that the entire contract be placed in evidence. At this time it was practically admitted by defendant that the initial point of shipment was Assumption and the destination was Chicago, Illinois; whereupon counsel for plaintiff said, “All right then, we will not offer it.” Later on, after cross-examination of plaintiff had been completed, his counsel made the following offer:

“I offer that portion of the contract, showing the initial point, Assumption, showing the destination Chicago, Illinois, the consignee and the consignor, showing the number of horses and the number of the car. ’ ’

On objection being made, the court sustained the objection, on the ground that the entire written contract should he introduced in evidence.

It furthermore appeared from the evidence that plaintiff had been in the habit of making two or three shipments per week for a period of about four years, and that he had entered into more than four hundred transactions identical with the one in question. Plaintiff also testified that he never read any of the contracts, although they were signed by him, and that his attention was never called to the contents thereof.

While plaintiff contends that the number of times hé made shipments, and the circumstances in attendance cannot he considered as rebutting the positive testimony that he had not read these contracts, and had no knowledge of their contents, so as to be bound thereby, and while defendant contends to the contrary, it is not necessary for us to determine that issue, because that contention does not go to the question whether or not there was a contract but to the question whether or not plaintiff was bound by it.

The real question in this case is, whether or not from the evidence offered by plaintiff, it appeared that a written contract had been entered into. If so, under the ruling in Kitza v. Oregon Short Line R. Co., 169 Ill. App. 609, and in Burtless v. Oregon Short Line R. Co., 180 Ill. App. 249, it was incumbent upon plaintiff to offer the written contract in evidence, and if necessary because of evidence offered by the defendant as to the application of any provisions therein precluding a recovery, then to introduce evidence, if any there was, to show why the provisions in said contract relied upon by defendant to defeat a recovery did not control. Wabash R. Co. v. Thomas, 222 Ill. 337.

As already stated, plaintiff said he signed a paper, which he repeatedly designated as a contract; plaintiff’s counsel repeatedly referred to this paper as a contract. Counsel also used the language heretofore quoted:

“I offer that portion of the contract, showing the initial point, Assumption, showing the destination Chicago, Illinois, the consignee and the consignor, showing the number of horses and the number of the car.”

■ The reason counsel gave for offering only so much of the contract was that the other conditions therein were not binding, because under the testimony of the plaintiff, he had never read them, they were unknown to him, his attention had never been called to them, that therefore he could not be said to have assented thereto. But that was a conclusion to be arrived at not by counsel or by the plaintiff, but by the court, and the court could not arrive at any conclusion unless the contract was in evidence.

The contract itself appears in the record in this case and is marked “Plaintiff’s Exhibit 1,” for identification. This record was prepared by counsel for plaintiff, and the contract can have been placed in the record only to show that it contained that part which was offered in evidence the refusal of which is assigned as error. From the record in this case it is clear that there was a written contract. Whether or not all the conditions in said contract were binding whether or not the limitations contained therein were contrary to the law of our State, were questions to be determined by the court, sitting both as court and jury. But in the absence of the contract he could not pass thereon.

Plaintiff contended during the oral argument before this court, and, inferentially at least, in his brief, that he could offer any portion of the contract he desired, and if defendant wished to have the benefit of any other part of the contract, he had the privilege of introducing it in evidence, and that it was not plaintiff’s duty to do so. Counsel refers us to cases wherein portions of letters or records of title were offered in evidence and objection was made that the entire letter or record should have been offered in evidence, but the court held that the party might offer such part of letter or record as he desires, and the other party, if he desires the benefit of the whole letter or record, might then offer it in evidence. However, in those cases it was not a question of a written memorandum indicating a contract either in part or entirely, but such memorandum or the part thereof which was offered was simply evidence in corroboration or contradiction of the various contentions of the parties.

Counsel, on this phase of the case, place considerable reliance in the case of Gemberling v. Grand Trunk Western Ry. Co., 192 Ill. App. 53. In that case the plaintiff produced a bill of lading that had been issued by the defendant to the plaintiff, and offered in evidence only the face of it. Objection was made that the plaintiff should introduce the entire bill of lading, including certain printed conditions on the back thereof. The court, however, permitted the plaintiff to introduce only the face of it. The defendant excepted to the ruling, but did not offer at any time to introduce the back of it. We upheld the ruling of the court below, and stated that defendant had the right to intro-duce said portion if it saw fit.

However, the facts in that case were quite different from those in the case at bar. There the court admittedly had before it a written instrument. The face of the bill of lading was a complete written contract in itself, or a written receipt of the shipment for transportation, and under our authorities it could be either or both. The written conditions on the back, as far as the evidence in that case showed, were not necessary to the interpretation of the face of the bill, and if they in any way limited the right of recovery as established by the face of the bill of lading containing the same, either as a contract or a receipt, or both, then it remained for the defendant to offer the same and show that under the law he was entitled to the benefit of such limitation. But such was not the situation in the case at bar. The written contract itself was not offered in evidence, but only “that portion of the contract, showing the initial point, Assumption, showing the destination, Chicago, Illinois, the consignee and the consignor, showing the number of horses and the number of the car.' ’ These facts in themselves did not establish a written contract or a written form of receipt. Moreover, these facts had already been proven in the case, and in fact were not denied in the affidavit of merits. Therefore, the offered portion of the contract was not necessary for that purpose. The facts in the case at bar make the case of Gemberling v. Grand Trunk Western Ry. Co., supra, inapplicable, and plaintiff’s counsel refer us to no case wherein the facts and the law support his contention.

As stated above, the evidence shows very clearly that the contract between these parties was in writing, and that it was not offered in evidence. Plaintiff could not recover on an oral contract when the evidence showed a written contract existed. Therefore, the court did not err in finding the issues for the defendant.

For the foregoing reasons, the judgment will be affirmed.

Affirmed.


text:
    Anna Cox, Defendant in Error, v. Rhodes Avenue Hospital, Plaintiff in Error.
    Gen. No. 20,708.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Action of trespass on the case by Anna Cox, plaintiff, against Rhodes Avenue Hospital and Dr. Frank Deacon, defendants, for the recovery of damages for the alleged wrongful detention amounting to false imprisonment in the hospital conducted by defendant company. During the trial Dr. Deacon was dismissed from the case and the trial proceeded against the hospital company alone.
    In the amended declaration it was alleged that defendants were operating the Rhodes Avenue Hospital for profit; that plaintiff was a patient therein for reward; that she was recovering from the effects of a serious major operation which had been performed at the hospital; that on April 9, 1912, she was discharged from further hospital treatment by her surgeon, with permission to leave the hospital and return home; that she was in a weak and highly nervous condition, due to said operation, but that she was physically able to leave said hospital, and attempted to do so; that defendants, disregarding their duty on said date, demanded that before plaintiff be permitted to leave the hospital she sign a promissory note for the sum claimed due defendants from plaintiff, for accommodation as a patient in said hospital; that said note contained a warrant of attorney authorizing confession •of judgment; that defendants informed plaintiff that unless said judgment note were signed she could not leave the hospital; that, thereupon defendants wrongfully and oppressively detained her in said hospital, without probable or reasonable cause, for the space of three hours, contrary to the laws of the State and against the will of the plaintiff; that during said unlawful restraint, defendants applied threats and vile epithets to the plaintiff, by reason of which premises plaintiff was frightened and rendered hysterical and her weak condition aggravated, and her recovery from the effects of said operation greatly retarded; furthermore, that plaintiff was exposed to disgrace and injured in credit and circumstances, whereby she suffered damages to the extent of $5,000. There was a second count in the amended declaration, which the court instructed the jury to disregard. To this declaration a plea of general issue was filed.
    On the trial of the case before the court and jury, a verdict for $775 was returned, upon which judgment was rendered, to reverse which defendant has prosecuted this writ of error.
    Plaintiff testified that she entered defendant’s hospital on March 22, 1912, to submit to a comparatively minor operation; that at that time she gave to Dr. Her-tel, her surgeon, .$30, for which she was given a receipt by defendant; this $30 was to pay for one week’s accommodation at the hospital; that she was taken to the operating room on the 23rd, but was not then operated on because it was discovered she had other ailments ; that on the 25th she was informed that she was suffering with a tumor; that on the 27th she was operated on for fibroid tumor, appendicitis, hemorrhoids, and cyst of the ovary; that because of these operations she was compelled to stay at the hospital longer than the time she had paid for; that on April 9th she was informed by Dr. Hertel that she was physically fit to leave the hospital; that about five o’clock p. m. on the same day she was presented, by one of the nurses, with a bill for $82, hospital charges; that her physician also told her that if the bill was not paid she would have trouble with the hospital; that he then handed her a judgment note for $82 which he requested her to sign and which she refused to execute; that at the time the bill was presented, she had but two or three dollars in her possession and that she informed the nurse that she could not pay her bill then because she was unable to get any money until she could go to the bank; that she had arranged for a taxicab to call for her that evening at six o’clock; that she was later informed that the taxicab was there for her and she was asked whether she had signed the note and was told that unless it was signed she would not be permitted to leave the hospital; that she requested that the chauffeur be sent to her room, but was informed that he would not be allowed to come into the building ; that she then went to the window of the building and threw a dime to the chauffeur who was standing outside, to telephone her sister that she was being detained and could not come home; that at eight o ’clock that same evening a lawyer by the name of Terwilliger, at the request of plaintiff’s sister, came to the hospital; that when he came, he picked up her suitcase and walked out of the room towards the stairs; that they were met there by the night nurse, and were told that she had orders from the office not to let her go; that she was, however, permitted to go downstairs so the matter might be discussed at the office; that there again a talk was had with the cashier who demanded that plaintiff either pay the bill or sign a note for the amount; that finally Mr. Terwilliger stated that she could not be held at the hospital for the payment of that debt, and that she would pay same as soon as she was able to do so; that while such conversation took place, someone, whom she believed to be Dr. Deacon, remarked that plaintiff did not want to pay her bill because she was a crook; that after a little more colloquy the door was unlocked and plaintiff and Mr. Terwilliger went home. Plaintiff further testified that she was in a weak, hysterical condition thereafter; that she required assistance down the stairs and to her taxicah; that thereafter she continued to be in a weak and hysterical condition as a result of the acts of the defendant and that she was not able to do any work for six months after she returned home from the hospital.
    Mr. Terwilliger was also called as a witness, and corroborated the statements of the plaintiff as to what occurred while present, and what he did. Also, that when he came to plaintiff’s room in the hospital he found plaintiff in a hysterical condition and that he had to assist her out of the hospital to the taxicab.
    The chauffeur corroborated the testimony of the plaintiff as to notifying her sister that she was being held at the hospital, and that he was not permitted access to the plaintiff and that he was ordered to take his machine from in front of the hospital; that at the time plaintiff entered his car she appeared to be in a weak condition and looked as though she had been crying.
    Another witness, Dr. Harpole, stated that he saw plaintiff on the day after she returned home; that he found her in a weak and highly nervous condition; that the occurrence at the hospital as related by the plaintiff would have a tendency to retard her recovery from the effects of the operation which had been performed on her.
    On behalf of the defendant, Dr. Deacon testified that he knew nothing about the occurrence aforementioned, because he was not present. Dr. Hertel, testifying on behalf of the defendant, also stated that he knew nothing of the alleged altercation relative to the promissory note, and that there were no threats made against plaintiff in his presence. He did state, however, that he told plaintiff that she would better settle the bill and save trouble. He also testified that plaintiff was in a highly nervous condition before entering the hospital, and that upon leaving’ it she was in better condition than at the time she entered it, and that at the time of the trial she looked better and weighed more than at the time prior to the operation.
    Abstract of the Decision
    1. False imprisonment, § 2-when physical and forcible detention not essential. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant company, it is not essential to a recovery that plaintiff should have been physically and forcibly detained by defendant, but conduct of defendant of such character as to make plaintiff, in her then condition, believe that if she attempted to leave the hospital she would be forcibly detained, constituted a wrongful detention against her will.

      Another witness for the defendant, the supervising nurse at the hospital, testified that plaintiff was not detained against her will; that there were no locks on the doors of the patients ’ rooms; that Dr. Deacon was not there at the time in question; that no one called plaintiff names; that when plaintiff was asked to pay her bill she became hysterical; that plaintiff said she would not pay it; that she also complained about Dr. Hertel and threatened to sue him; that plaintiff used the telephone that evening at 6:30; that she had never heard of plaintiff’s alleged detention or the altercation relative to the judgment note before the suit was started.
    Another witness for the defendant, one of the nurses at the hospital, testified that she never made any threats concerning plaintiff; that nobody present made any threats; that plaintiff was not asked to pay her bill or sign a note; that she saw plaintiff walking about the building along the corridors, between 5:30 and 7 o’clock in the evening; that the doors were never locked, and that plaintiff was not detained.
    Eugene Stewart, for plaintiff in error.
    W. Tudor Ap Madoc, for defendant in error.

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

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

2. False imprisonment, § 29 —when question of wrongful detention one of fact. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant, evidence examined and held, to present a question of fact for the jury as to whether plaintiff had been wrongfully detained against her will.

3. False imprisonment, § 28*—when evidence sufficient to support verdict. In an action of trespass on the case to recover damages for the alleged wrongful detention of plaintiff, amounting to false imprisonment, in a hospital conducted by defendant company, evidence examined and held sufficient to support a verdict for plaintiff.

4. False imprisonment, § 30*—when instructions properly given. In an action of trespass on the case to recover damages for wrongful detention, amounting to false imprisonment, instructions examined and held properly given.

5. Appeal and error, § 1561*—when refusal to give instruction harmless. Refusal to give an instruction requested by defendant is harmless error where as much of the instruction as was applicable to the facts had been covered by other instructions given at defendant’s request.

6. Evidence, § 74*—when conversations with third persons admissible. Evidence of conversations of plaintiff with others held outside of the presence of representatives of the corporation defendant are admissible when part of the res gestrn.

7. Appeal and error, § 1691*—when error in examining witness waived. In an action against a corporation defendant, any error of counsel for plaintiff in asking a question of a witness, who was the superintendent of defendant and in actual control of its affairs, is waived where the witness insisted upon answering after objection thereto was sustained and such action of the witness was concurred in by counsel for defendant.

8. False imprisonment, § 34*—what damages recoverable. In an action of trespass on the case to recover damages for wrongful detention, amounting tq false imprisonment, punitive as well as actual damages are recoverable.

9. False imprisonment, § 29 —when amount of xecovery a question for jury. In an action of trespass on the case to recover for wrongful detention, amounting to false imprisonment, the question of damages is for the jury.

10. False imprisonment, § 37*—when damages not excessive. In an action of trespass on the case to recover for wrongful detention, amounting to false imprisonment, verdict for $775 held not excessive.


text:
    The People of the State of Illinois, Defendant in Error, v. Henry Jacoby, Plaintiff in Error.
    Gen. No. 20,817.
    (Not to be reported in full.)
    ' Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Information by the People of the State of Illinois charging Henry Jacoby with petit larceny. A jury having’ been waived, the trial proceeded to hearing before the court alone, who found defendant guilty as charged, and sentenced him to the House of Correction for three months and to pay a fine of one dollar and costs.
    Defendant seeks a reversal because, as he alleges, there is no proof that he committed the crime of petit larceny as charged.
    Defendant makes the further point, that the amended information was defective in that it was not filed until all the evidence had been heard.
    J. 0. Kuntz, the complaining witness, testified that while riding on a street car at 35th street in the City of Chicago, on September 11, 1914, he suddenly found that his pocketbook was missing; that he saw defendant jump off the car; that he caused the car to stop as soon as possible, and ran back in the direction the defendant had taken; that when he neared the defendant, he saw him “with the pocketbook in his hand; that he grabbed him and said, “Give her here,” and that defendant handed him his pocketbook; that he took hold of defendant and inquired for an officer, when one Burgess stepped up and said, “Let me have him,” whereupon Kuntz turned defendant over to Burgess, who, the evidence shows, represented himself to be an officer; that a police officer then arrived on the scene, to whom Kuntz related the incident; that he took defendant into custody, and when he found that Burgess had represented himself to be an officer and in fact was not, arrested him also; that Burgess resisted strenuously; that finally, with the assistance of another officer, the two were arrested.
    Defendant testified that he resided in the vicinity of 35th street, and at the time in question was crossing the street; that just as he reached the middle of the street, he stooped down and picked up a pocketbook, and just as he did so, Kuntz grabbed him; that the “other fellow came running over—the big fellow that was standing on the corner” (Burgess) and that a struggle followed, and that was all he knew; that he was not riding on any car that day. On cross-examination he admitted knowing Burgess.
    Burgess, who also testified, stated that on the night in question he was standing on the corner; that there was a man crossing the street on a run; that “he ran right up to this young fellow here” (defendant); that “it seemed like as if he was stooping down, and he (Kuntz) jumped right on his back and he knocked him down, and then four or five colored fellows came along there, and I went over there and recognized this young fellow (defendant) as being a boy that I knew ever since he was a kid;” that he said, “What is the matter?” and defendant replied, “I don’t know, this fellow jumped on me;” that he then said, “Let me have him;” that he was merely trying to find out what had happened; that finally defendant said, “Well, it is all right,” and that defendant then handed Kiintz something, hut what it was he did not know. Bnrgess also denied having represented that he was a police officer.
    Abstract of the Decision.
    1. Appeal and error, § 1301

      —when judgment presumed to have been based on competent evidence. On a trial without a jury it is presumed on a writ of error that the trial court, in entering judgment, considered only the competent evidence.
    2. Indictment and information, § 13*—when delay in filing amended information. On a prosecution for petit larceny where the crime is sufficiently charged in the original information, it is not a ground for reversal that an amended information was not filed until all the evidence had been heard.
    3. Criminal law, § 409*—when point not raised on trial not considered on appeal. An objection to an amended information that it w'as not filed until after the evidence had been heard will not be considered on a writ of error when the point was not raised below.
    4. Larceny, § 35*—when evidence sufficient to support verdict. On a prosecution for petit larceny, evidence examined and held to support a finding of guilty.
    Lee, Buckley & Murphy, for plaintiff in error.
    Maclay Hoyne, for defendant in error; Edward E. Wilson, of counsel.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


text:
    John Ramming, Defendant in Error, v. Charles E. Roland and Thomas Hennessy, Plaintiffs in Error.
    Gen. No. 21,030.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Action by John Ramming, plaintiff, against Charles E. Roland, Thomas Hennessy and Frederick Erb, defendants.
    Plaintiff’s statement of claim was as follows:
    “Plaintiff’s claim is for labor and materials furnished for carpenter repairs and alterations to the building No. 451 E. 41st street, Chicago, Illinois, done between March 20th and April 20th, 1914, under orders from defendant, Frederick Erb, the contractor, agent and superintendent of the repairs to said building for the owners thereof, viz.: the defendants Charles E. Roland and Thomas Hennessy; that the sum due this plaintiff for said work and material is $292.29; that the plaintiff caused to be served the notices prescribed by the statute in relation to Mechanic’s liens upon the said defendants Roland and Hennessy on April 29, 1914, and April 30, 1914, respectively.”
    To this statement of claim defendants filed separate appearances and affidavits of merits. Thomas Hennessy denied ownership of the premises, and further, that the statutory notice had been served upon him as set forth in the statement of claim. Charles E. Roland admitted ownership of the premises in question, and further alleged that with reference to the labor and materials sued for, the same was the subject-matter of a contract which he had entered into with one Frederick Erb, and that he did not know of plaintiff’s ever having furnished the labor and materials on the premises in question; he further - denied ever having received a notice of lien claim as set forth in plaintiff’s statement of claim. Frederick Erb, as a contractor, denied that he ever for himself, as a contractor, entered into an agreement with plaintiff to furnish labor and materials for the carpenter repairs and alterations to the building in question, and further denied that he had a contract for said repairs to said building with the owners thereof.
    The record shows that plaintiff dismissed his suit as to defendant Erb, and that the court, trying the case without a jury, found the issues against defendants Roland and Hennessy, and assessed plaintiff’s damages in the sum of $292.29, for which amount judgment was entered, to reverse which defendants Roland and Hennessy prosecute this writ of error.
    Defendants, in urging a reversal of the judgment, proceeded upon the theory that' plaintiff’s action was brought under section 28 of the Mechanic’s Lien Act, ch. 82, Hurd’s Rev. St. of Illinois for 1911 (J. & A. jf 7166). They contended that a recovery by a subcontractor must be against both the owner and the original contractor and the judgment must be a joint one, and furthermore, there must be a proper ten-day notice served upon the owners; that there were no findings by the court, nor recitals in the judgment, of the facts required by our statute, viz., that the owner was indebted to the contractor, and the date from which said lien attached; that in the absence of such findings or recitals, (1) the court erred in entering said judgment, and (2) said judgment is void.
    Plaintiff contended that under its statement of claim he might have recovered against all the defendants under the Mechanic’s Lien Act, supra, if the evidence showed that Frederick Erb, as a contractor, ordered the labor and materials sued for, or against the owners alone, if the evidence showed that the labor and materials in question were ordered by the said Erb as the agent or representative of the owners, Roland and Hennessy.

      Abstract of the Decision.
    1. Mechanics’ liens, § 97

      —when statement of claim sufficient to warrant recovery against owners and contractor or owners alone. In a proceeding under the Mechanics’ Liens Act (J. & A. f 7139 et seq.) against the owners and contractor, a statement of claim that plaintiff’s claim “is for labor and material furnished for carpenter repairs * * * under orders from defendant, * * * the contractor, agent and superintendent of ’ the repairs to said building for the owners thereof, viz.: the defendants * * *; that the plaintiff caused to be served the notices prescribed by the statute in relation to mechanics’ liens upon said defendants * * *,” is sufficient to support a recovery against all the defendants, if the evidence showed that the contractor defendant ordered, as a contractor, the labor and materials sued for, or against the owners alone, if the evidence showed that the labor and materials were ordered by the contractor defendant as agent or representative of the owners.
    2. Mechanics’ liens,—when issue of fact raised by pleadings. In a proceeding under the Mechanics’ Liens Act (J. & A. 1f 7139 et seq.) against a defendant alleged to have been the contractor and defendants alleged to be owners, the former, by denying that he entered into a contract with plaintiff and that he had a contract with the owners to furnish such labor and materials, raises an issue of fact, the determination of which hears upon the question whether plaintiff has the right to recover against all of the defendants or against the owner defendants alone.
    3. Appeal and error, § 1300*—when submission of evidence on issue presumed. In a proceeding under the Mechanics’ Liens Act (J. & A. H 7139 et seq.) against a defendant alleged to have been the contractor and against defendants alleged to have been the owners, where the former raises an issue of fact by denying that he entered into a contract with plaintiff for the labor and materials and that he had a contract with the owners of the premises to furnish said labor and materials, it will be presumed that evidence was submitted to determine such issue.
    Benjamin E. Cohan, for plaintiffs in error.
    Hollett, Sauter & Henkel, for defendant in error.

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

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.

4. Appeal and error, § 1303 —when evidence not preserved presumed sufficient. On a writ of error to the Municipal Court of Chicago, where the evidence upon which the trial court based its judgment is not preserved by bill of exceptions, statement of facts or stenographic report, it will be presumed that evidence offered was sufficient to sustain the court’s findings on the issues and its judgment thereon.

5. Appeal and error, § 1301*—when correct application of law to facts presumed. On a writ of error it is presumed, in the absence of anything in the record appearing affirmatively to the contrary, that the court correctly applied the law to the facts offered in evidence.


text:
    Clara Stiefel, Individually and as Administratrix, Appellee, v. Amalgamated Sheet Metal Workers’ Local Union No. 73 et al., Appellants.
    Gen. No. 21,872.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Charles M. Foell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Appeal dismissed.
    Opinion filed February 16, 1916.
    Rehearing denied March 1, 1916.
    Statement of the Case.
    Bill for specific performance of insurance contract filed by Clara Stiefel, appellee and complainant below, as administratrix of the estate of Abraham Stiefel, deceased, against the Amalgamated Sheet Metal Workers’ Local Union No. 73, International Alliance, a corporation, and Thomas Redding, Edgar Ray, B. A. Schooley and Paul Christman. Prom a- decree for complainant, defendants appeal.
    After a hearing upon the bill and answers, the chancellor found the issues for complainant and entered a decree which incorporated the defendants’ joint prayer for appeal, and wherein the appeal was allowed upon the filing by defendants of a bond for $1,600. The record showed that only three out of the five defendants had signed the bond, although the decree required the bond to be "filed by all the defendants, and was entered upon their joint prayer.
    Abstract of the Decision.
    1. Appeal and error, § 16

      —when right of appeal exists. The right of appeal is purely a statutory one and can he availed of only when allowed by court, and must then be in conformity with the prayer for the appeal and the order of allowance.
    2. Appeal and error, § 646*—when appeal not in compliance with prayer or order. Where the record shows that an appeal was granted upon prayer of all the defendants and the order of appeal required bond to be filed by all the defendants, and it was nevertheless perfected by only three of such defendants, such appeal is not in compliance with the prayer or order, and motion to dismiss must be allowed.
    3. Appeal and error, § 646*—when joint defendants must perfect appeal jointly. Where there were no separate prayers for appeals by individual defendants, and where all of the joint defendants joined in the prayer for an appeal, they must perfect same jointly, regardless of the fact that no substantial rights of several of the defendants were affected by the decree appealed from. -
    Motion was made by complainant to dismiss the appeal for failure on the part of defendants to comply with the prayer for appeal and order thereon.
    Cruice & Langille, for appellants; Daniel L. Cruice, of counsel.
    Bulkley, More & Tallmadge, for appellee.

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

   Mr. Presiding Justice Pam

delivered the opinion of the court.


author: Mr. Justice Goodwin

text:
    A. L. St. George, Defendant in Error, v. Hamburg-American Line, Plaintiff in Error.
    Gen. No. 20,416.
    1. Innkeepers, § 5

      —lohat is duty and, obligation of as to property of guests. An innkeeper owes the duty and assumes the obligation of safely keeping the property of his guests.
    2. Innkeepers, § 5*—what constitutes prima facie case in action for value of articles lost. A prima facie case is made in an action for the value of jewelry lost from a drawer of plaintiff’s room, where such plaintiff proves the relation of innkeeper and guest and the loss.
    3. Innkeepers, § 2*—when passenger steamer an inn. A steamer carrying passengers upon the water and furnishing them with rooms and entertainment is for all practical purposes a floating inn, and the owner of'such steamer owes the same duties to passengers as does an innkeeper to his guests.
    Error to the Municipal Court of Chicago; the Hon. Edward T. Wade, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Rehearing denied March 2, 1916.
    Pam, J., dissenting.
    William Schwemm, for plaintiff in error.
    Maximilian J. St. George, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.

The defendant in error, hereinafter referred to as plaintiff, recovered a judgment against the plaintiff in error, hereinafter referred to as defendant, for the value of an amethyst brooch, lost while sailing as a first-class passenger on one of the boats of the defendant. The evidence consisted entirely of the testimony of the plaintiff, and was to the effect that the brooch was in daily use during her passage; that she placed it in a drawer in hey stateroom one evening, and the next morning it was gone. No evidence of any kind was offered on behalf of the defendant.

The law of this State, as laid down in Rockhill v. Congress Hotel Co., 237 Ill. at p. 102, is that: “An innkeeper owes the duty and assumes the obligation of safely keeping the property of his guests, and if the property is lost, all that is necessary to make a prima facie case is to show the relation of innkeeper and guest and the loss.”

In Adams v. New Jersey Steamboat Co., 151 N. Y., at p. 167, the New York Court of Appeals held that; “A steamer carrying passengers upon the water, and furnishing them with rooms and entertainment, is, for all practical purposes, a floating inn, and hence the duties which the proprietors owe to the passengers in their charge ought to be the same. No good reason is apparent for relaxing the rigid rule of the common law which applies as between innkeeper and guest, since the same considerations of public policy apply to both relations.”

The court further points out that cases of steamships are clearly distinguishable from cases involving sleeping car companies and common carriers generally. The reasoning of the Court of Appeals in the foregoing case appears to be sound, and it has been generally accepted as the law. The plaintiff, then, made out a prima facie case, and defendant did not see fit to offer any countervailing proof. In our opinion there is nothing in defendant’s other contention that no competent evidence of value was given. The judgment must, therefore, be affirmed.

Affirmed.

Pam, P. J., dissenting.


text:
    Snitzler Advertising Company, Defendant in Error, v. Louis T. Orr, Plaintiff in Error.
    Gen. No. 20,483.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Rufus F. Robinson, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Action by Snitzler Advertising Company, plaintiff, against Louis T. Orr, defendant, for money due on account of an advertising contract. From a judgment for plaintiff, defendant appeals.
    Defendant was an attorney and organized the Hot Springs Medical Institute and the Orpheum Dental Parlors. He owned one share of stock in each corporation. Plaintiff offered in evidence a note of J. L. Donahue for $848.25, dated September 10, 1912, payable three months after date to the order of the plaintiff, with interest at. six per cent, per annum, and also the following document:
    “Chicago, May 29, 1912.
    “Snitzler Advertising Company,
    Chicago, Ill.

      ‘ ‘ Gentlemen :—
    You are hereby authorized to insert advertising for the Hot Springs Medical Institute and Orpheum Dental Parlors for the month of June, which shall not in any event exceed the sum of Seven Hundred and Fifty Dollars ($750.00) for which we agree to be responsible.
    “Yours respectfully,
    (Signed) J. L. Donahue.
    (Signed) Louis T. Orr.”
    Underneath this -appeared the following notation:
    “This applies to note of J. L. Donahue for sum of Bight Hundred Forty-eight and 25/100 Dollars (Due Dec. 10th, 1912), taken in payment of balance due on account to date Aug. 26th, 1912.
    Abstract of the Decision.
    1. Guaranty, § 3

      —when signed notation on order for advertising constitutes guaranty of note. Where a- stockholder in two institutions, together with another person, signs a written order for advertising for such institutions for a specified amount and such stockholder subsequently and individually signs a notation thereon that “this applies to note” of the, other signer of the order taken in payment of balance due on account up to a specified date after the giving of the order, such notation constitutes an express agreement to he responsible as guarantor for the payment of the note.
    2. Interest, § 5*—when allowed on account stated. Interest is allowed where an action is brought on an account stated.
    3. Payment, § 6*—when giving of note does not constitute. Payment of an obligation is not made by the giving of a note of one jointly liable for such obligation unless the note itself is paid.
    4. Guaranty, § 9*—how contract of guaranty should he construed. Agreements to become responsible for the amount of an advertising contract and the promissory note of another, should he construed as favorably to the creditor thereon as any other written contracts, even though such agreements be regarded as a guaranty.
    (Signed) Louis T. Orr.”
    The defendant testified that this notation was in his own handwriting, and made by him at the time the note referred to was signed and delivered.
    Cavender, Kaiser & Wermuth and W. S. Hodges, for plaintiff in error.
    Page & Page, for defendant in error; Cecil Page, of counsel.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Owen B. Vaughn, Defendant in Error, v. City of Chicago, Plaintiff in Error.
    Gen. No. 20,601.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henrey C. Beitler, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Owen B. Vaughn, plaintiff, against the City of Chicago, defendant, for twenty-seven days’ wages as eárpenter in the employ of the police department of the defendant city. From a judgment in favor of the plaintiff, the defendant appeals.
    Upon the trial it appeared that of the twenty-seven days’ wages for which plaintiff recovered, ten days were in May, 1913, while he was absent, as he claimed, on a “double header” vacation of twenty-one days, and the remaining seventeen were embraced in a period in November, 1913, during which he was suspended from duty pending investigation of charges. It subsequently appeared from his own testimony that the charges were sustained and he was dismissed from the city’s employ.
    From a city ordinance in force January 15, 1912, it appeared that skilled laborers who had been in the service at least a year were entitled to a vacation of eleven working days, and specifically provided that “All persons eligible for leave of absence with full pay, as hereinbefore provided, shall be entitled to such leave of absence during any fiscal year, and in no case shall these periods be cumulative.” Plaintiff claimed that he was entitled to and had been allowed a “double vacation” in May on account of his failure to take a vacation during the previous year. Plaintiff was allowed and received full compensation for eleven days’ vacation in May, but at the trial no authority was shown in any officer to grant him the “double header” vacation claimed.
    Abstract of the Decision.
    1. Municipal Court op Chicago, § 26

      —when stenographic report sufficient. It is not necessary, under section 81 of the Practice Act (J. & A. K 8618), to recite or preserve the judgment entered in the stenographic report of the trial, and the absence of such recital will not be ground for the dismissal of the appéal.
    2. ° Municipal corporations, § 145*—when employee not entitled to cumulative vacation. Under a city ordinance providing that skilled laborers in the service of the city at least a year are entitled to a vacation of eleven working days during any fiscal year and that these periods shall not be cumulative, an employee who does not take his vacation during the previous year is not entitled to a “double” vacation, as such a vacation is expressly forbidden by the ordinance.
    3. Municipal corporations, § 149*—when employee not entitled to compensation. Where a city civil service employee was suspended from duty pending investigation of charge and was dismissed from the city’s employ, he cannot recover wages for the period during which he was under suspension.
    No statement or recitation of the judgment entered was incorporated in the stenographic report of the trial.
    William H. Sexton and John W. Beckwith, for plaintiff in error; Joseph F. Grossman and John E. Foster, of counsel.
    A. D. Gash, for defendant in error.

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

   Mr. Justice Goodwin

delivered the opinion of the court.


text:
    Robert Thielman, Defendant in Error, v. Benjamin F. Straus, trading as B. F. Straus & Company, Plaintiff in Error.
    Gen. No. 20,651.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Henry C. Beituer, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Action in the Municipal Court of Chicago by Robert Thielman, plaintiff, against Benjamin F. Straus, trading as B. F. Straus & Company, defendant, on his check for $500, which was indorsed to plaintiff by the payee. Upon a judgment in favor of plaintiff, defendant sued out a writ of error.
    Defendant drew a check for $500 in favor of the Hanna-Breckenridge Company, which indorsed it to plaintiff. Defendant in his affidavit of merits alleged that the payee of the check fraudulently represented to defendant that it was the owner of promissory notes of solvent makers to the value of $2,000 which would be paid at maturity; but that such makers were, to the payee’s knowledge, insolvent; that payee knew this statement was false and made it for the purpose of obtaining the check; that plaintiff never paid any value for the check and was not an innocent holder; that the check was delivered to him for the purpose of making it appear that he was the owner and holder thereof for value.
    Upon the trial the deposition of the plaintiff stated that he received the check from the payee to apply on an account of about $4,000, which the payee owed liim ; that no part of that amount ever had been paid; that he deposited such check in the bank, was credited with it and afterwards it was protested and returned,

      Abstract of the Decision.
    1. Bills and notes, § 61

      —when offered proof insufficient to establish fraud by payee. Where defendant had drawn a check to payee which payee indorsed to plaintiff -and defendant, in an action in the Municipal Court of Chicago, upon such check filed an affidavit of merits to the effect that payee obtained the check by fraudulently representing that he was the owner of certain promissory notes of a certain value, with solvent makers, and which would be paid at maturity, and that plaintiff was not an innocent holder of the check for value, held that no defense could have been made by offered proof that on the day the check was dated payee stated to defendant that he would not put it in the bank for collection; that payee company offered to sell valueless notes to defendant; that payee owed defendant a certain sum; that payee had the check in his possession for thirteen days, there having been no other evidence in regard to the matter nor any offer of other evidence.

      Defendant testifying" on his own behalf was not permitted to relate conversation which he had held with the president of the payee company at the time he delivered the check to him, although his counsel offered to prove that on the day the check was dated the president of the payee company stated to defendant that he would not use the check under any circumstances; that plaintiff was not indebted to the payee at that time, and “that upon said representations that he would not use the check, meaning they would not put it in the bank for collection,” defendant gave him the check; that the payee company had offered for sale to defendant on said dates, notes to the amount of $2,500; that said notes were of no value; that the payee owed Straus over $5,000, and that the president of the payee had the note in his possession as late as the 20th of November. Aside from the proof made in regard to the distances of different towns from Chicago, this was all the evidence offered or received.
    William A. Bowles and James E. Bowles, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error; Edward L. England, of counsel.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Appeal and error, § 1772*—when judgment not reversed for exclusion of evidence. Where the evidence establishes a cause of action and defendant makes an offer of proof which is excluded, the judgment will not be reversed unless the specific' facts offered to be proved are sufficient to establish a defense.

3. Evidence, § 461*—when evidence sufficient to establish a defense. To make out a defense it is sufficient if the proof offered, when viewed in its most favorable light and considered in connection with other evidence received or expressly offered by defendant, could constitute a defense.


text:
    Peter Muller and Jacob Muller, Appellants, v. Abraham Bernstein and Henry Wolff, Appellees.
    Gen. No. 20,936.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Jacob H. Hopkins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Reversed and judgment here.
    Opinion filed February 16, 1916.
    Rehearing granted and additional opinion filed April 12, 1916.
    Statement of the Case.
    Action in Municipal Court of Chicago by Peter Muller and Jacob Muller, plaintiffs, against Abraham Bernstein and Henry Wolff, defendants, to recover damages for defendant’s failure to terminate certain leases. From a judgment for defendants, the plaintiffs bring writ of error.

      In the lease sued on, dated April 25, 1910, the defendants demised to plaintiffs two stores from May 7, 1910, to April 30, 1920. The tenth clause of the lease provided that “It is further covenanted and agreed by the parties of the first part that the parties of the second part shall have said demised premises free of any rent to July 1,1910, but said parties of the second part agree to assume all responsibility of eviction, if necessary, the present lessees of said demised premises, but parties of the first part agree to serve as witnesses should their testimony be required.”
    Upon the first trial of this cause, the Municipal Court struck the plaintiffs’ statement of claim from the files on the ground that it did not state a cause of action, and on appeal to the Appellate Court (Muller v. Bernstein, 183 Ill. App. 154) it was held that the tenth section of the lease placed the duty of terminating the prior leases by May 7th upon the defendants and lessors. Mr. Justice Brown, speaking for the court in that case, said, at page 157: ‘' The clause in question as we construe it did nothing more than make an express statement of the situation which the law made without it.” Upon the second trial, from which this appeal was made, the Municipal Court admitted testimony offered for the purpose of showing that the intention of the parties was to place the burden of terminating the lease on the plaintiffs and lessees, and on the evidence so offered the court held that the plaintiffs were charged with that duty, and so entered judgment for the defendants.
    Edward A. Mechling, for appellants; Wyman, Jurgens & Carpenter, of counsel.
    Blum & Blum, for appellees.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

Abstract of the Decision.

1. Landlord and tenant, § 84 —when evidence inadmissible to vary terms of lease. Where a lease gives the lessees right to possession on a certain day and provides that lessees assume responsibility for eviction, if necessary, of prior tenants in possession at date of lease, as such lease is not ambiguous in its terms, it cannot be varied by extrinsic evidence.

2. Landlord and tenant, § 191*—what damages recoverable for breach of covenant of quiet enjoyment. Where plaintiffs were excluded from premises demised to them by reason of defendants’ failure, as lessors, to perform their implied covenant of quiet enjoyment, they only recover value of the use of the premises equal to the amount of monthly rental up to the time when they could have obtained possession of the premises by the service of notices.

3. Appeal and error, § 1414*—when finding of court conclusive on appeal. Where evidence is undisputed that the value of the use of the premises is equal to the monthly rental in the lease and no exception is preserved to a finding of the court on that valuation, it must be held that such evidence is conclusive.

On Rehearing.

1. Landlord and tenant, § 176*—when covenant for quiet enjoyment implied. A lease of premises on which there was another outstanding lease that could be terminated by suitable action on the part of lessors, and which contains a clause whereby the lessees “assume all responsibility of eviction if necessary,” of the tenants under the prior outstanding lease, in itself, and notwithstanding such clause, implies a covenant of quiet enjoyment.

2. Landlord and tenant, § 261*—what constitutes responsibility of eviction. The words “responsibility of eviction” in a lease mean the burden of expelling by legal process those in possession, if they wrongfully withhold it.

3. Landlord and tenant, § 79*—when lease construed as imposing obligation on lessor to terminate outstanding lease. Words in a lease to the effect that lessors “agree to serve as witnesses should their testimony be required,” which follow a phrase whereby lessees agree “to assume all responsibility of eviction, if necessary,” of tenants in possession, show intention that lessors are to take steps to terminate the lease by giving necessary notices.

4. Landlord and tenant, § 73 —when lease construed as authorizing free rent for time lessee deprived of premises because of remodeling. Where a lease for a long term contains a clause giving the premises without rent to lessees for fifty-four days and lessees agree therein to remodel and subdivide the building leased, such clause must not be construed as evidencing the intention that the free rental was given in consideration of lessees assuming the burden of serving notices on tenants in possession and to cover the time it would take to evict them, but rather as showing that the concession in rent was for the time lessees would be deprived of any productive use of the premises on account of the remodeling and subdivision thereof.

5. Landlord and tenant, § 261*—when lessees obliged to evict tenant in possession. A lease which provides that the lessees “agree to assume all responsibility of eviction, if necessary,” of tenants in possession, and alsd provides that the lessees “shall have the demised premises free of any rent” to a specified date, must be construed as placing the burden of evicting the prior tenants upon the lessees, but not that of terminating the lease.

6. Evidence, § 319*—when written instrument may not be varied by parol evidence. The rule which prevents the varying of a written instrument by parol evidence denies such an effect to parol evidence even when such evidence is properly in the record.

7. Evidence, § 91*—what does not constitute waiver of objection to parol evidence. Evidence in regard to discussions with lessors on the matter of service of notice to tenants, where the service of notice is in issue, do not constitute a waiver of objection to parol evidence, offered by lessors to explain terms of a lease which are not ambiguous.


text:
    The People of the State of Illinois, Defendant in Error, v. Emil Schmutz, Plaintiff in Error.
    Gen. No. 21, 617.
    (Not to he reported in full.)
    Abstract of the Decision.
    1. Divorce, § 172

      —when divorced person may not remarry. Under the Act of May 13, 1905 (J. & A. H 4216), concerning the marriage of divorced persons, a man who marries another woman in another State within less than one year after his divorce from his first wife does not contract a valid marriage in such State.
    Error to the Municipal Court of Chicago; the Hon. Harry M: Fisheb, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1915.
    Reversed.
    Opinion filed February 16, 1916.
    Rehearing denied March 1, 1916.
    Statement of the Case.
    Action by the People of the State of Illinois against Emil Schmutz, defendant, based on an information charging that he wrongfully and unlawfully abandoned his wife, Matilda Schmutz. To reverse judgment for the People, defendant prosecutes this writ of error.
    At the hearing it appeared that defendant had previously been married to one Iva May Meyers, who "was granted a divorce from him June 5, 1905, in the Superior Court of Cook county, and that he married the complaining witness in this case April 21, 1906, at Crown Point, Indiana.
    Pringle & Fearing, for plaintiff in error.
    Maclay Hoyne, for defendant in error.

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

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

   Mr. Justice Goodwin

delivered the opinion of the court.

2. Husband and wife, § 273 —when husband not guilty of wife desertion. Where a man remarries in another State within less than one year of the date of the divorce from his former wife, and deserts his second wife, he cannot he convicted of wife desertion, as such second marriage is illegal,


author: Mr. Justice O’Connor

text:
    Peter Larsen, Appellee, v. Ward Corby Company, Appellant.
    Gen. No. 20,985.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1914.
    Affirmed.
    Opinion filed February 16, 1916.
    Rehearing denied March 1, 1916.
    Statement of the Case.
    Action on the case by Peter Larsen, plaintiff, against Ward Corby Company, defendant, for personal injuries. From a judgment for plaintiff in the sum of $2,000, defendant appeals.
    April 19, 1910, at about 11 o’clock in the forenoon, plaintiff was riding east in Washington boulevard, Chicago, on his bicycle. Washington boulevard runs east and west and is intersected at right angles by California avenue. As' plaintiff reached the intersection of California avenue, a funeral procession, consisting of about thirty carriages was moving north in the center of said avenue. Plaintiff dismounted from his wheel, waiting for the procession to pass, and stood near the southwest corner of the intersection of said boulevard and avenue. At the time the funeral procession was passing, a two-horse team belonging to the defendant, with driver and empty wagon was going west in Lake street, which runs parallel with and is two blocks north of Washington boulevard. When the team reached California avenue, the funeral procession was passing north across Lake street in said avenue. The driver, to avoid delay and not being able to pass through the funeral procession, turned south in California avenue and drove along the east side of said avenue, the funeral procession proceeding north about the center of the same. The evidence tends to show that as the team approached the north side of Washington boulevard, the last carriage in the funeral procession was nearing the south side of said boulevard. As the last carriage approached Washington boulevard, plaintiff mounted his wheel intending to cross the avenue and proceed east on Washington boulevard. He turned towards the south to go around the rear of the last carriage, and then turned east or northeast. As he came around the rear of the last- carriage, defendant’s team, which was “going south on a fast trot” as one witness put it, turned to the southwest so as to get on the west side of the street, and collided with the plaintiff.' Neither the driver of the team nor the plaintiff knew of the approach of the other until 'they were but a few feet apart. Both the driver and the plaintiff tried to avoid the collision, but were unable to do so. The pole of the wagon struck the plaintiff in the jaw and he was thrown to the pavement; sustaining an oblique fracture of the left lower jaw bone, a fracture of the right clavicle, and he was otherwise bruised and injured. The driver stopped the team and assisted the plaintiff to a doctor’s office in the vicinity. Plaintiff was in the hospital for about two weeks. After the injury he was unable to work for about thirteen weeks. When he returned to work he was unable to properly do his work on account of the injuries. Prior to the accident plaintiff was employed as a night watchman, doing janitor work and sweeping up the floors around a factory. He earned $12 per week. The case was tried before the court and jury, and a judgment for $2,000 was entered in favor of the plaintiff. An appeal was taken to this court where the judgment was reversed and the cause remanded for errors of law. (See 184 Ill. App. 38.) On a second trial a verdict was returned and. a judgment entered for the same amount in favor of the plaintiff, to reverse which this appeal is prosecuted.
    The court gave the following instruction for the plaintiff:
    “The court instructs the jury that the words “ordinary care,” wherever used in "these instructions, mean, according to the law of the State of Illinois, that degree of care which a reasonably prudent or cautious person before and at the time in question would take to avoid injury under like circumstances.
    “And the court further instructs .the jury that the word “negligence,” wherever used in these instructions, means, according to the law of the State of Illinois, either an omission to do something which a reasonable person guided by those ordinary considerations which ordinarily regulate human affairs would do, or “negligence” is the doing- of something which a prudent and reasonable person would not do under similar or like circumstances.
    “And the court further instructs the jury that if they believe from the evidence that the plaintiff was injured and sustained damage as alleged in plaintiff’s declaration or in some count thereof, while he was in the exercise of ordinary care, and if they further believe that his injury, if any, was caused by the negligence of defendant, as charged in the declaration or in some count thereof, then, under the law, it becomes the duty of the jury to find a verdict in favor of the plaintiff. ’ ’
    The court refused the following requested instruction for the defendant:
    ‘ ‘ The jury are instructed that the issues in this case should be determined by them as in any ordinary suit where an ordinary plaintiff sues an ordinary defendant to recover money giving the verdict to the plaintiff only if the evidence preponderates in favor of the plaintiff’s contention, and.unless it do so preponderate you should as readily give the verdict for the defendant, and in determining where the preponderance lies while it does not consist solely in the greater number of witnesses yet the jury are instructed that the greater number of credible witnesses on the one side or the other of any disputed point is proper matter to be considered in determining the question of preponderance ; and you may also consider the position of the witnesses at the time of the accident,- that point of view from which they witnessed it and everything which appeals to your judgment as affecting the value and reliability of their testimony.”
    Abstract of the Decision.
    1. Negligence, § 198

      —when contributory negligence question for jury. The rule is that when, the inference of contributory negligence necessarily results from the evidence it becomes a question of law for the court, but where the evidence is conflicting it is a question of fact to be determined by the jury.
    2. Negligence, § 191*—when negligence of driver of team question for'jury. Where there was evidence that defendant’s team was driven on the wrong side of the street at a fast trot and was not under proper control, at and prior to the time of the injury caused by such team, such evidence tended to prove negligence and the case was properly submitted to the jury.
    3. Evidence, § 444*—when opinion evidence of physician as to nature of injuries admissible. Where a doctor, testifying in a personal injury suit for the plaintiff made a digital examination of the plaintiff on the day of the trial, first saw plaintiff on such day, and found Injuries on plaintiff’s jaw bone and clavicle, such examination was objective and not subjective and the doctor’s opinion thereon was admissible.

      Louis J. Behan, for appellant.
    Frank D. Burgess and Edward Maher, for appellee.

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

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

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

   Mr. Justice O’Connor

delivered the opinion of the court.

4. Witnesses, § 224 —when defendant may not be cross-examined as to number of dependent children. Trial court may properly refuse to permit defendant in action on account of personal injuries to cross-examine plaintiff with regard to the ages of children for the purpose of showing that there were no children dependent on plaintiff for support.

5. Negligence, § 228*—when instruction not objectionable as limiting exercise of ordinary care to exact time of collision. An instruction in an action for personal injuries is not objectionable as limiting the exercise of ordinary care on the part of the plaintiff to the exact time that the collision occurred, because it tells the jury that if they believe from the evidence that the plaintiff was injured afiti sustained damages as alleged in the declaration or some count thereof, “while in the exercise of ordinary care,” where in a prior paragraph of the same instruction “ordinary care” is defined as that degree of care which a reasonably prudent or cautious person before and at the time in question would take to avoid the injury under like circumstances.

6. Negligence, § 228*—when instruction not objectionable as limiting exercise of ordinary care to time of accident. An objection to an instruction which reads “while in the use of ordinary care,” on -the ground that it limits the use of ordinary care to the exact time of the injury, is untenable.

7. Instructions, § 250*—when giving of instruction not reversible error. Although it is improper to give an instruction which is not applicable to the facts of the case, yet the giving of such instruction will not constitute reversible error, where the reviewing court can see from an examination of the entire record that it did not mislead the jury.

8. Instructions, § 88*—when instruction on preponderance of evidence misleading. An instruction enumerating certain things proper to be considered by the jury in determining the matter of the preponderance of the evidence, hut which does not leave the jury free to consider all the evidence introduced and all the facts and circumstances in evidence, in determining where the preponderance or greater weight of the evidence lies, is misleading and is properly refused.

9. Damages, § 110*—when verdict for personal injuries not excessive. A verdict for $2,000 for personal injuries is not excessive where plaintiff sustained a fracture of the left lower jaw, a fracture of the collar bone, several bruises on different parts of the body, was about ten days in the hospital and under treatment for two or three months and neither clavicle nor collar bone had united four years after the accident, his face was disfigured, and there was evidence that the condition of jawbone and clavicle was permanent.

10. Appeal and errob, § 1413 —when verdict not disturbed. A verdict for damages will be sustained on .appeal where two juries have rendered verdicts for the same sum, and the verdicts have been approved by the trial judges.


text:
    Owen B. Vaughn, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 21,089.
    (Not to he reported in full.)
    Error to the Circuit Court of Cook county; the Hon. John P. McGoorty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1915.
    Affirmed.
    Opinion filed February 16, 1916.
    Statement of the Case.
    Mandamus by Owen B. Vaughn, petitioner, against the City of Chicago, respondent, to reinstate him in position as carpenter, from which position the Civil Service Commission of respondent city had removed him. From a judgment in favor of respondent entered upon a demurrer to the petition, petitioner brings error.
    The petition averred that the office or position to which he sought reinstatement was created by ordinance; that such position was that of carpenter for which he had taken a civil service examination and which he duly passed; that he qualified for the position; that charges against him were not heard by the Civil Service Commission but by a police trial board "composed of three persons, two of whom were members of the Civil Service Commission.
    The petition also averred that a judgment of the Municipal Court of Chicago for wages due him in such position "was res ad judicata of facts which were set up in the action in. the Municipal Court and also in this position, and that respondent was estopped from denying them.
    Abstract of the Decision.
    1. Mandamus, § 139

      —what person seehing reinstatement in office or position must allege in petition. A person seeking reinstatement in office or position by a writ of mandamus must show in his petition the legal existence of the office or position, his clear right to the office or position and the duty on the part of respondents to perform the act sought to be enforced.
    2. Mandamus, § 150*—whai allegations in petition are admitted on demurrer. While in a petition for mandamus all allegations in the petition that are well pleaded are admitted by the demurrer, mere conclusions of the pleader are not so admitted.
    3. Mandamus, § 139*—when petition for reinstatement in position demurrable. Where petitioner in mandamus for reinstatement to position of carpenter in the police department of Chicago relied on city ordinances and the petitioner did not set up the provisions of the ordinances nor the substance thereof, but simply his conclusions that the office or position was established by the ordinances, whether such ordinances created the office or position was a question of law, and the petition was clearly demurrable.
    4. Civil service, § 23*—when findings of police trial board are conclusive. Where a police trial board hearing charges against an employee of the police department is composed of two members of the Civil Service Commission, such board need not report its decision to the Civil Service Commission, as the findings of the trial board are, under such circumstances, conclusive.
    5. Judgment, § 508*—when not res adjudicada as to legal existence of office and right thereto. Where a petitioner for mandamus to reinstate himself in the position of carpenter in the Chicago police department averred that, in an action in the Chicago Municipal Court for salary due him, he set up facts showing the legal existence of the office he was seeking and that a judgment in such court was res adjudicate, of the legal existence of the office and his right thereto, held that such judgment was not res adjudicate, as it may have been rendered upon the ground that the petitioner had performed the services for which he was seeking pay, and especially as such judgment had been reversed by the Appellate Court.

      A. D. Gash and A. G. Dicus, for plaintiff in error.
    Richard S. Folsom, for defendant in error; John E. Foster, of counsel.

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

   Mr. Justice O’Connor

delivered the opinion of the court.