author: Mr. Presiding Justice Holdom

text:
    Siegfried Rosenberg et al., Defendants in Error, v. Nicholas J. Pritzker, Plaintiff in Error.
    Gen. No. 14,610.
    1. Justice of the peace—what does not affect jurisdiction of circuit court upon appeal from. If an appeal has been duly perfected before a justice of the peace the fact that he does not file the papers in the circuit or superior court for upwards of nine years does not affect the jurisdiction of such court when such justice does so file them; and when "the appeal is dismissed by such court the judgment of such justice becomes effective for purposes of enforcement.
    2. Justice of the peace—when defective transcript confers jurisdiction of appeal. A transcript bearing a date antecedent to the filing of the appeal bond though defective is, in the absence of objection thereto, sufficient to confer jurisdiction upon the circuit or superior court to dispose of the appeal perfected.
    3. Statute of limitations—when seven-year statute applying to justices judgment tolled,. If an appeal bond has been duly filed with the justice rendering the judgment, the running of the statute is tolled until the final disposition of such appeal.
    Action commenced before justice of the peace. Error to the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    Louis Greenberg, for plaintiff in error.
    Wolesohn & Waixbrunn, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of .the court.

Defendant by the writ of error sued out in this cause seeks a reversal of a judgment of the Superior Court entered February 24, 1908,'dismissing his appeal from a judgment of a justice of the peace for Cook county for want of prosecution with procedendo and awarding statutory damages in the sum of $12.88 for delay, together with costs.

The facts in brief are: Plaintiffs recovered a judgment February 15, 1898, against defendant for $128.80 and costs before a justice of the peace for Cook county. He perfected an appeal from that judgment to the Superior Court by filing with the justice an appeal bond with surety, dated March 4, 1898, which the justice approved. The justice failed to file the appeal bond with a transcript in the clerk’s office of the Superior Court promptly, as required by statute, but delayed until October 22, 1907. The cause was in due course called for trial and defendant failing to appear the judgment under review was rendered by default.

Two errors are assigned for reversal: First, the court was without jurisdiction to entertain the appeal, because 9 years, 8 months and 7 days elapsed between the filing of the appeal bond with the justice and its filing in the clerk’s office of the trial court; second, the transcript was so defective as to be insufficient to support the judgment.

First. The appeal of defendant from the justice to the Superior Court was perfected when the bond was filed and approved by the justice who rendered the judgment appealed from. The law cast no duty on plaintiff in relation to that appeal. Where there is no duty there can be no laches. While primarily it was the duty of the justice to file the bond with a transcript seasonably and thereby perfect the appeal, yet it being defendant’s appeal it was for him to see that the proper steps were taken by the justice to bring the case into the jurisdiction of the court to which the appeal had been prayed and granted. While it is true plaintiffs could have coerced the justice into doing his duty by compelling him to file the bond and transcript, yet failure to avail of a power at their command did not deprive them of any legal right. It is a strange doctrine indeed that is here attempted to be invoked, and while it has the merit of novelty it has none other. The logical result of defendant’s contention is that the utter failure of defendant to prosecute his appeal in the manner prescribed by the statute results in the extinction of the judgment, and in that way defendant profits through his failure to do that which the law cast upon him and which he bound himself by the terms of his appeal bond to do. The justice in perfecting the appeal was but the agent of defendant, and if he was guilty of laches, such laches is imputable to defendant and not to plaintiffs. The failure of plaintiffs to exercise their power of coercion in compelling defendant to perfect his appeal can in no way be construed as an abandonment of the judgment or militate against any of their rights. The appeal being perfected by the filing of the appeal bond, it was defendant’s duty to prosecute the appeal as provided by the statute, and to not only cause the appeal to be docketed in the Superior Court, but to follow it in all of its subsequent stages. From the time of the filing of the appeal bond until the final disposition of the appeal by the Superior Court, the seven year statute of limitation was arrested. The docketing of the case in the Superior Court was not essential to arrest the running of the statute. The negligence of the justice in failing to file the bond in the Superior Court within the statutory time did not defeat the appeal. Beardsley v. Hill, 61 Ill. 354; Boyd v. Kocher, 31 ib. 295. While it is true that a cause cannot be said to be pending in a court until it is docketed so that the court has jurisdiction to enter an order in the case, still such rule in no way affects the fact that an appeal perfected by filing a bond with the justice stays all further proceedings before the justice until final disposition of such appeal.

Second. The transcript of the justice was defective in that it was certified as of a date one month prior to filing the appeal bond. The transcript in appeal cases takes the place of a declaration in an original case and vests the court with jurisdiction of the subject-matter of the cause. While the transcript was defective in the particular mentioned, it was sufficient, unobjected to, to give the court jurisdiction to enter the judgment it did. On motion the court would have ordered the defect to be remedied. Fink v. Disbrow, 69 Ill. 76; McNichols v. Hunt, 43 Ill. App. 451. But failure to move the court did not affect its jurisdiction, which the filing of the transcript, though defective, gave it. This principle clearly appears in Maple v. Havenhill, 37 Ill. App. 311. The court having jurisdiction, the judgment was not void. The transcript though defective was sufficient to serve as plaintiffs’ pleading for jurisdictional purposes, and the court having jurisdiction of the person of defendant and the subject-matter of the appeal, and defendant having failed to appear and defend when the case was called for trial, he cannot be heard to complain on review as to any formal defect in the proceedings. Defendant could avail of nothing but a lack of jurisdiction rendering the judgment void. The Superior Court having jurisdiction to enter the judgment under review, its judgment is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Defendant in Error, v. Emma Perry, Plaintiff in Error.
    Gen. No. 14,754.
    Municipal court—when without jurisdiction. The Municipal Court has no jurisdiction to proceed by information to the trial of a person accused of petit larceny.
    Proceeding by information. Error to the Municipal Court of Chicago,the Hon. Judson E. Going, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed.
    Opinion filed June 30, 1910.
    J. Gbay Lucas, for plaintiff in error.
    John- E. W. Wayman and Clieeobd G. Bob, for defendants in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Emma Perry, the plaintiff in error, was proceeded against by information in the Municipal Court of Chicago, charged with having committed the crime of petit larceny. She was arrested and arraigned before the bar of the Municipal Court, and pleading guilty to the charge was fined one dollar and ordered to be confined in the House of Correction for six months and also condemned to pay the costs of the prosecution.

We are not concerned with the assignments of error or the arguments of counsel discussing them, because since suing out the writ of error the Supreme Court held in People v. Jennie Russell, 245 Ill. 268, that under existing legislation the crime of petit larceny can only ho prosecuted under an indictment by a grand jury. Consequently the Municipal Court had no jurisdiction to proceed by information to the trial of plaintiff in error for petit larceny. Jurisdicton of the subject-matter is indispensable to sustain a conviction.

The judgment of the Municipal Court is reversed.

Reversed.


text:
    Equitable Mutual Fire Insurance Company, Defendant in Error, v. A. L. McCrae, Plaintiff in Error.
    Gen. No. 15,073.
    1. Evidence—effect of admissions against interest. Admissions against interest form the strongest character of proof.
    2. Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    3. Corporations—when foreign insurance company not doing business in this state contrary to statute. If a foreign insurance company unauthorized to do business in this state issues policies through a licensed broker acting pursuant to the statute authorizing the obtaining by such a broker of policies issued by foreign insurance com panies unauthorized to do business in this State, such foreign insqr anee company is not doing business in this State contrary to the statute.
    4. Agency—what does not absolve agent from obligation to account for moneys received for the account of his principal. The breach of a contract with an agent consisting in failing to place to his credit a deposit of money for certain purposes, does not absolve such agent from the obligation of accounting for and paying over to the principal guilty of such breach money collected for its account.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Max Ebebhabdt, Judge, presiding.
    Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed June 30, 1910.
    Ossian Cameron, for plaintiff in error.
    Frederick A. Brown and William R. T. Ewen, Jr., for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an appeal from a judgment of the Municipal Court of Chicago for $2688.45 rendered in a case of the “first class” upon the verdict of a jury, after the overruling of motions for a new trial and in arrest of judgment. The relation of the parties to each other was that of principal and agent, and the monies sought to he recovered were such as defendant had received as agent for the plaintiff, his principal.

Plaintiff is a corporation chartered by the Province of Quebec in the Dominion of Canada to do a fire insurance business and maintains its principal office in Montreal. It was not licensed to do business in Illinois under the statutes of this State relating to the licensing of foreign corporations to do business in this State. Defendant was, on his own request, made the agent of plaintiff to represent it in this State, with authority to issue insurance policies covering losses by fire. An Act of the State legislature in force July 1, 1903, and now forming a part of chapter 13, Revised Statutes, title “Insurance”, provides for the licensing of brokers to write fire insurance policies in fire insurance com-parties not authorized to do business under the laws of this State. Two per cent, of gross premiums are by the terms of the Act made payable by such unauthorized companies to the Insurance Superintendent of the State, and is in the nature of a tax to the State for the privilege of writing what is denominated “surplus line insurance”. Defendant was licensed under this Act as a broker or agent to procure fire insurance in such unauthorized companies and as such broker or agent represented plaintiff and wrote for it policies of fire insurance and received for it premiums on such policies from the insured. The amount of the judgment represents premiums received by defendant for such insurance premiums less his lawful commissions and charges. The declaration is embraced within the common counts. To this declaration defendant interposed, 1st, a plea of the general issue; 2nd, that plaintiff had failed to comply with the foreign incorporation statute and was therefore not entitled to maintain any action in the courts of this State; 3rd, that plaintiff had failed to comply with that part of its contract which provided for the deposit of $4,000 to the credit of defendant in a Chicago bank; 4th, that all premiums collected for plaintiff had been paid to it by defendant, and that it was indebted to him in the sum of $206; 5th, a claim for $5,000 damages for plaintiff’s alleged breach of its contract with defendant. Issues were duly joined on the pleas. No contention of any material moment is made on the pleadings, but defendant predicates his right to a reversal of the judgment on the refusal of the-trial court to hold that the plea of failure to comply with the statute regulating the doing of business in this State by foreign corporations was a sufficient defense, and in holding that the Act of July 1, 1903, exonerated such unauthorized companies from further compliance with the insurance laws of the State; that the court should have directed a verdict at the close of plaintiff’s proofs and awarded a new trial; that the trial judge erred in his rulings upon the evidence and in instructing the jury upon the law of the case.

Plaintiff had made out a prima- facie case when it rested and the motion to direct a verdict was therefore properly denied. Lacking countervailing proof, the evidence justified a verdict for the amount recovered. In this condition of the record, the trial judge had no lawful right to interpose his judgment as to what the evidence tended to prove, but rightfully left the determination of the facts to be extracted from such evidence to the jury whose province it was to weigh the testimony and therefrom say what, in their judgment, it proved. The amount of premiums collected by defendant, together with disbursements made on account of plaintiff, including defendant’s commissions, being founded upon the reports and statements furnished by defendant to plaintiff, being in the nature of admissions against interest, formed the strongest character of proof, and after their receipt in evidence defendant had cast upon him the burden of rebutting the same by evidence sufficient to overcome its probative force, in order to entitle him to,a verdict in his favor. This he clearly failed to do. If any premiums appearing in defendant’s reports or statements had been returned or policies accounted for canceled, and any other item of credit claimed by defendant, it was incumbent upon him to bring forward evidence of such facts of a satisfactory and convincing character. These matters, including the counter claim of defendant and damages for an alleged breach of contract, were all for the determination of the jury, and as we can readily reconcile the verdict as being sustained by the proofs, and are unable to say that such verdict is manifestly against the weight of the evidence, we are not permitted to disturb it.

We think it clear that chapter 73, Revised Statutes, in so far as it may seem to be in conflict with the Act of July 1, 1903, supra, in relation to non-resident fire insurance corporations, is inapplicable to this case, as likewise are sections 67g and 67h of chapter 32, Revised Statute, title “Corporations.” Were it otherwise the contentions of defendant must control our decision. The plain language of the Act of 1905 supra inhibits our holding otherwise than that so far as companies whose policies the Act authorizes may be issued by the agent or broker licensed by the State, they are exempt from the provisions of the other statutory regulations affecting non-resident insurance companies. The title' of the Act makes that clear. It relates to “unauthorized companies”, which by a fair interpretation of this unambiguous language means companies which but for the Act would be unable to issue their policies within the limits of this State. It was evidently made to meet a condition of embarrassment to some citizens who might otherwise be unable to procure from other companies a needed amount of insurance ; so that snch insurance has been colloquially referred to as “surplus line insurance”; that is, insurance in excess of the line obtainable from companies authorized to do business in this State. Such companies become additional underwriters of fire insurance and supplemental to those companies regularly doing business in this State under the general statutes governing and controlling fire insurance companies. The language of the Act is in part “that the Superintendent of Insurance in consideration of the yearly payments of two hundred dollars * * may issue to citizens of this State a license, revokable at any time, permitting the party named' in such license to act as agents to procure policies of fire insurance from corporations * * which are" not authorized to do business in this State”. Before issuing any policy of “unauthorized companies” the licensed agent must make an affidavit and file it with the Superintendent of Insurance setting forth that “the licensed agent is, after -diligent effort, unable to procure the amount of insurance -required to protect the property described in said affidavit from the insurance companies duly authorized and licensed to do business in this State”. We therefore hold, as matter of law, that plaintiff, a non-resident insurance company, in issuing its policies through defendant, licensed by the State as agent to transact that kind of business, was not doing business in this State contrary to the statutes.

The defendant challenges certain matters, which he caused to be brought about, as illegal. While not conceding any illegality in fact was indulged, still, as the agent perpetrating the wrong, if any there was, he cannot, under elementary principles, advantage one iota of his own wrong. But there is nothing in this record indicating any irregularity on the part of plantiff or chargeable to it. It was a company “unauthorized” to do business in this state save in virtue of the 1903 Act supra. It did its business and wrote all its policies through defendant, who was licensed by the State for just such a purpose. Mo one was misled as to the inability of plaintiff to write insurance in the regular way. This was made apparent on the face of every policy issued, the following clause being endorsed on each: “This policy has been procured in accord with the provision of an Act of the General Assembly of the State of Illinois regulating the manner of obtaining insurance in companies not reporting to the insurance department”, and they were each signed by defendant in the following manner: “By A. L. McCrae acting under special license, 153 LaSalle Street, Chicago”.

Defendant contends that plaintiff agreed to deposit $4,000 in a Chicago bank to the credit of defendant as agent, to be used by him in paying claims under its policies issued by defendant, although this is denied by plaintiff. But be this contention well taken or not, that does not relieve defendants from accounting with and paying to plaintiff moneys received for premiums, less his lawful charges and commissions. It is not claimed that plaintiff is not financially responsible for all liabilities under its policies written by defendant, or that defendant is personally liable on any policies written by him for plaintiff’s account. Consequently the failure of plaintiff to perform that part of its contract, if it in fact so bound itself, would be no defense to this action nor operate to put into defendant’s pocket money collected by him on plaintiff’s policies, and therefore both morally and legally due to plaintiff. Mor do we see any merit in the contention that premiums paid plaintiff were a trust fund for the benefit of policy holders. The liability of plaintiff is to be measured by the terms of each policy, and to that extent only is its liability fixed. The premiums paid were the considerations supporting the liability so assumed. Such liability might be more or less than the premiums paid. In the event of a fire loss it stands to reason that such liability would far exceed the sums paid as premiums. The trial judge’s ruling on the question relating to where plaintiff was licensed to do business, was without error, as not pertinent to or affecting defendant’s liability to plaintiff for premiums collected for it. The evidence also failed to establish any right of defendant to a set-off or for the assessment of damages for an alleged breach by plaintiff of its contract with defendant. In denying defendant’s motion, at the close of plaintiff’s case, to instruct a verdict in his favor, the trial judge made the following observations: “This is an action between principal and agent. This is not an action by a company on a policy against the assured. This is an action between principal and agent and the agent makes the case for the principal by admitting that he issued these policies under the statute and there is a presumption that the agent complied with the statute when he admits that the policies were issued under the statute. All the presumption is in favor of the validity of his own acts.” We think this was a practically correct statement supporting the ruling of the court and was without error.

Defendant objects to the following portion of the trial judge’s instruction to the jury: “Before touching on the main question, as far as the law of the case is concerned, the court would say that the statute of the State of Illinois requiring insurance companies to be authorized to do business in this State, the general statute does not apply to the plaintiff in this case, as the business was done under the so-called surplus line law, which does not require a license of the company, and that the plaintiff is, on that score, not prohibited from maintaining this action.” We accord our concurrence to the foregoing as embodying a substantially correct statement of the law on this point.'

The record is free from reversible error, and the judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Sturges & Burn Manufacturing Company, Defendant in Error, v. Great Western Smelting & Refining Company, Plaintiff in Error.
    Gen. No. 15,176.
    1. Sales—when breach of warranty does not justify rescission. Where there is a warranty of the goods sold, and there is no fraud in the sale and no agreement that the goods may be returned, the purchaser cannot annul the contract of sale on a claim of breach of warranty without the consent of the seller; in such a case, in an action for the price of the goods, the warranty and breach may be shown by evidence in mitigation of damages.
    2. Sales—what essential to rescission. The actual tender of the merchandise sold is indispensable to the exercise of the right to rescission, where that right exists.
    3. Tender—what does not constitute. An offer by letter to return merchandise is not a tender thereof.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    Rehearing denied July 7, 1910.
    Eastman, Eastman & White, for plaintiff in error.
    Bulkley, Gray & More, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The record presents for our review the proceedings which terminated in a judgment for $850.35 and costs in favor of plaintiff and against defendant. Defendant purchased of plaintiff 5436 pounds of tin dross at 12 cents and 2529 pounds of terne dross at 7 cents, the total price being the amount of the judgment. The purchasing agent of defendant bought the dross on inspection at the plant of plaintiff and defendant subsequently took the dross away from the plant of plaintiff in its own conveyance and gave its receipt therefor. The terms of the sale were cash on delivery. Defendant refused payment on the claim that the terne dross was not as represented nor according to the sample tested by defendant’s purchasing agent. An offer by letter was made to return the dross, but defendant did not return any part of the dross so purchased, but, as it claims, stored all of the dross, less a little of it retained as samples, in the Sibley warehouse. Eo warehouse receipt was ever tendered plaintiff, and we gather from the evidence that the dross was stored in the name of the defendant. It is clear from this record that defendant from the time it took the dross from plaintiff has retained possession of it and that the title has ever since been and still is in defendant.

Defendant’s defense of breach of warranty finds no support in the record. The law on this branch of the case is that where there is a warranty of the goods sold, and there is no fraud in the sale and no agreement that the goods may be returned, the purchaser cannot annul the" contract of sale on a claim of breach of warranty without the consent of the seller; that in such a case, in an action for the price of the goods, the warranty and breach may be shown by evidence in mitigation of damages. Underwood v. Wolf, 131 Ill. 425, lays down the principle thus: “Where, therefore, the vendor of a warranted article, whether it be a specific chattel dr not, sues for the price or value, it is competent to the purchaser, in all cases, to prove the. breach of the warranty in reduction of damages and the sum to be recovered for the price of the article will be reduced so much as the article was diminished in value by non-compliance with the warranty. The well settled rule is stated that where there is a sale and delivery of personal property in presentí with express warranty and the property turns out to be defective, the vendee may receive and use the property and sue for damages on a breach of the warranty, or when sued for the purchase price may recoup such damages under the general issue or set them up in a special plea of set-off.” Skinner v. Mulligan, 56 Ill. App. 47; Mayer v. Automobile Exchange, 125 ib. 648.

Defendant’s evidence is all based on the contention that it had the right to rescind the contract because the dross was not of the quality warranted. No attempt was made to prove damages by way of recoupment or set-off, because of the dross not being of standard or represented quality. The defense made by the proofs was therefore unavailing.

In the circumstances of this case defendant having taken away the dross was in duty bound to return it before the contract could be rescinded. The actual tender of the dross was indispensable to the right to rescind, .if such right existed. The offer by letter to return was not a tender. The rule is aptly stated in Milliken v. Skillings, 89 Me. 180, as follows: “The word offer is frequently used by courts and text-writers as synonymous with 'tender,’ and it may be properly so used with reference to articles capable of manual delivery and actually produced. But with respect to heavy articles of merchandise, situated at a distance from the place to which they must be transported if restored to the vendor, the phrase 'offer to return’ is more commonly or aptly applied to express a willingness, or to make a.proposal, to rescind the contract and return the goods. It is not sufficient, however, for a buyer, who has taken delivery of the goods at the vendor’s place of business, merely to express a willingness or make a proposal to return the goods, or simply to give notice to the seller that he holds the goods subject to his order, or to request him to come and take them back. But if he would rescind the contract he must return or tender back the goods to the seller at the place of delivery, unless upon making the offer so to do he is relieved of the obligation, as stated, by a refusal to receive them if tendered.” Mundt v. Simpkins, 81 Neb. 1.

The judgment of the Municipal Court being free from reversible error is affirmed.

Affirmed.


author: Mr. Presidihg Justice Holdom

text:
    John F. Devine, Administrator, Plaintiff in Error, v. The Prudential Insurance Company, Defendant in Error.
    Gen. No. 15,195.
    Appears and errors—when statement of facts stricken. A statement of facts or substitute for a bill of exceptions filed in the Municipal Court will be stricken from the record on appeal if it was not certified or filed within thirty days of the time the judgment order was entered, nor within any extension of time granted within such thirty days.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Oscar M. Torbison, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    George D. Wellihgtoh and Dillard B. Baker, for plaintiff in error.
    Hoyhe, O’Cohhor, Hoyhe & Irwih, for defendant in error.
   Mr. Presidihg Justice Holdom

delivered the opinion of the court.

Plaintiff in error, in a trial before the court without the intervention of a jury, suffered a judgment of nil capiat and for costs. From that judgment a writ of error was sued out of this court and the record is now before us for review.

The errors assigned do not involve the statutory record but are confined to matters of procedure, such as are preserved by a statement of facts or stenographic report, etc., as provided by the Municipal Court Act.

The judgment was entered October 1, 1908. On October 31, 1908, a writ of error from this court was filed in the Municipal Court, and plaintiff in error on that day was given thirty days additional time in which to file “his bill of exceptions and statement of facts.”- On November 28, 1908, on motion of plaintiff .in error “the time for certifying certificate of evidence” was extended thirty days “from this date.” On December 29, 1908, a statement of facts certified by the trial judge as “a correct statement of the facts appearing upon the trial of said cause and of all questions of law involved in said cause” was signed and filed.

This cause comes within the category of eases designated under the Municipal Court Act as of the “fourth class.” Paragraph 6 of section 23 of the Act supra makes it the duty of a judge entering a final order or judgment within thirty days thereafter, or within such further time as may upon 'application therefor within such thirty days be allowed by the court, to sign and place on file either a correct statement of the facts appearing upon the trial and of all questions of law and the decisions of the court thereon, or a correct stenographic report .of the proceedings at the trial, etc. Such a statement or report with a certified copy of the judgment and such other papers as may be specified, if any, constitute the record to be considered upon review by this court. The document, certified as above set forth, was not certified or filed within thirty days of the time the judgment order was entered nor within any extension of time within such thirty days. The extension allowed within the thirty days expired November 30, 1908, and the document in the record was neither signed by the judge nor filed with the clerk until December 29, 1908.

Lassers v. The North German Lloyd Steamship Co., 244 Ill. 570, is to the legal effect and purport that after the lapse of thirty days, or any extension granted within such thirty days, from the entry of final order or judgment, the Municipal Court in cases of the fourth and fifth classes loses jurisdiction to sign a statement of facts, stenographic report, or any other document filling the office of a bill of exceptions at common law. We are not, therefore, at liberty to consider any errors assigned except such as involve the statutory record, and finding none there, the judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Baker

text:
    James M. Ide et al., trading as George P. Ide & Company, Plaintiff in Error, v. J. Brody, Defendant in Error.
    Gen. No. 15,170.
    1. Agency—what not within implied authority of sales agent. An, agent making a sale of merchandise has no implied authority to give' the purchaser an option to return any goods which he might subsequently buy of the principal.
    2. Sales—when option to return must he exercised. An option given to a buyer to return goods if not satisfactory must be exercised within a reasonable time and the retention of the goods after the lapse of that reasonable time must be regarded as an acceptance of the goods which renders the buyer liable for their price.
    3. Sales—what does not amount to rejection or offer to return. A complaint with respect to merchandise is not the equivalent of a rejection thereof or an offer to return the same.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Oscab M. Tobrison, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed with judgment here.
    Opinion filed June 30, 1910.
    William Walter Johnstor, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff brought an action of the fourth class in the Municipal Court to recover $192.76 as a balance due for goods sold and delivered by plaintiff to defendant from March, 1906, to July, 1908. The cause was submitted to the court August 27, 1908, and there was a finding and judgment for the defendant. The statement of facts signed by the trial judge is, in part, as follows:

“The amount of plaintiff’s demand was stated by defendant to be correct. The defendant testified that about three years ago the plaintiff’s agent called on him and offered to install the plaintiff’s goods in place of goods of other makes which the defendant had in stock; that the defendant accepted the offer; that at the same time the agent said that if the plaintiff’s goods were not satisfactory they could be returned at any time; that the defendant from time to time returned goods which were credited to his account; that shirts to the full amount of plaintiff’s claim namely, $192.76, were defective; that he offered to return them in the last part of July or the early part of Augnst, 1908, and that the offer was refused; that the shirts tore, were rotten and defective ; that the shirts shrank when washed, and put in evidence one shirt torn when it was-worn once by the customer ; that there were several that had torn similarly.”

On cross-examination the defendant testified that he last bought shirts of plaintiff in October, 1907; that he then bought a bill of goods amounting to $120, but could not say that the purchase did not include articles other than shirts; that the only complaint he ever made about the quality of the goods was made to a salesman of plaintiff in January, 1908, and that the agent said he would see his firm and let him know; that he made no offer to return the goods until about August 1, 1908.

If it be conceded that the general language of plaintiff’s agent, as testified to by defendant, gave to the defendant the option to return any goods which were not satisfactory to defendant which he might at any time thereafter purchase of the plaintiff, the question is presented whether plaintiff’s agent had authority to make such a contract.

The principal who authorizes his agent to sell goods is presumed to authorize him “to sell in the usual manner, and only in the usual manner in which goods or things of that sort are sold.” Story Agency, sec. 60. There is here no evidence tending to show that the subsequent sales were made by the agent who made the first sale, nor evidence of actual authority in the agent who made the first sale to make a contract in respect to subsequent sales. In Wait v. Borne et al., 123 N. Y. 592, it was held that the agent’s implied authority to warrant the articles he sells extends only to goods he sells at the time of the warranty and, in the absecce of express authority, his warranty will not extend to subsequent sales made by his principal. In the opinion in that case, Beckham, J., said: “But nowhere is there any rule laid down that I have been able to find, enlarging the scope of the agent’s power to warrant heyond the necessities of the case, or so as to include subsequent sales not made by himself, but by his principal. It would, in my opinion, be granting to an agent altogether too broad a power, and it would be placing the principal too much at the mercy of the agent who, for the purpose of accomplishing a sale of a small amount, might lead his principals into liabilities of which they knew nothing and might know nothing until a claim for their settlement was presented to them. It is not necessary to grant to agents any such extensive powers in order that they may accomplish the purpose for which they are engaged, viz: the present sale by them of an article which belongs to the principal. Public policy, I think, forbids any such inferential powers, and if vendees seek to place liabilities of that nature upon principals, it is not too much to require that they should show actual authority of the agent to make such contracts.” The reasons given for the conclusion reached apply with equal force to a contract of an agent giving the purchaser the right to return goods subsequently purchased of the principal. We think that the evidence fails to show any authority in the agent to make a contract giving the defendant the option to return the shirts in question.

But if the authority of the agent be also admitted, still the plaintiff was, on the evidence, entitled to judgment. An option given to a buyer to return goods if not satisfactory must be exercised within a reasonable time and the retention of the goods after the lapse of that reasonable time must be regarded as an acceptance of the goods which renders the buyer liable for their price. Childs v. O’Donnell, 84 Mich. 533; Benjamin on Sales, Bennett’s ed., p. 569. The words “at any time” in the connection in which they were used by plaintiff’s agent, only entitled the defendant to return the goods within a reasonable time after they were received. Park v. Whitney, 148 Mass. 278.

The complaint made by defendant of the goods in January, 1908, did not amount to a rejection of or offer tó return the goods, and may be disregarded. August 1, 1908, when defendant first offered to return the shirts, he had had all of them in his possession for nine months and a portion of them for a still longer time. The offer to return was not made within a reasonable time after the shirts were received, and thereby the defendant’s right to return the same, if he had such right, was lost and he became liable to the plaintiff for their price.

The judgment of the Municipal Court will be reversed with judgment here for the plaintiff for $192.76 and costs of this court and of the Municipal Court against the defendant.

Reversed with judgment here for the plaintiff..


text:
    Albert Fuchs, Plaintiff in Error, v. I. E. Block, Defendant in Error.
    Gen. No. 15,179.
    Landlord and tenant—when party signing lease not liable for rent. One who joins in the execution of a lease, which lease is a complete contract between the lessor and lessee mentioned therein is not obligated thereby for the rent aceuring under such lease if such person is in nowise referred to in the body thereof.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. Frederick L. Fake, Jr., Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    B. M. Shaffner, for plaintiff in error.
    Blum & Blum, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff brought an action in the Municipal Court against John Terrell and I. E. Block to recover $225 rent on a lease. The lease begins as follows: “This agreement made, etc., between Albert Fuchs, party of the first part, and John Terrell, party of the second part,” etc., and is signed:

“Albert Fuchs [Seal]

John Terrell [Seal]

I. E. Block . [Seal]”

Terrell was not served with summons. Block entered an appearance. Plaintiff put in evidence the lease, which contains a covenant by the party of the second part to pay certain rent. It was admitted that the signature of Block to the instrument was genuine. The court held that because Block’s name did not appear in the body of the instrument he was not bound by the covenants of the lease, and gave judgment for the defendant.

The instrument is a complete contract between Fuchs and Terrell, and Block’s name is not mentioned in the body of the instrument.

In Lancaster v. Roberts, 144 Ill. 213, it was held that “when a third person merely annexes his name to a contract which in the body of it does not mention him, and which is in itself a complete contract between other parties who sign it and are mentioned in it, such third person does not thereby become a party to the efficient and operative parts of the contract.” We regard the decision in that case as controlling the decision in this case. ' See, also, Doyle v. Dunne et al., 144 Ill. App. 14.

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    James G. Kirk, Appellant, v. Henry M. Rich & Company, Appellee.
    Gen. No. 15,194.
    1. Ordinances—validity of, requiring real estate brokers to be licensed. An ordinance is valid which provides that a broker who conducts a business in violation of its provisions requiring the obtaining of a license, cannot recover commissions.

      2. Brokers and factors—when lack of license precludes recovery of commissions. A license to a real estate broker becomes effective from the day of its issuance and he cannot recover commissions for services earned prior to the issuance thereof to him, notwithstanding the transaction out of which his claim for commissions arises was not altogtlier concluded until after such broker has received his license.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    William A. Morrow, for appellant.
    Kihgeb, Wilhartz and Louer, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff, a real estate broker in Chicago, brought an action for commissions for procuring for defendant a tenant for certain space in a building in Chicago. The trial was by the court and resulted in a finding and judgment for the defendant and plaintiff appealed. The services of the plaintiff, in procuring a tenant for the defendant were rendered between some day in September and October 26, 1907. October 30 plaintiff obtained from the City of Chicago a license to conduct the business of broker, “in said city until the first day of May next,” and paid therefor $25, the fee fixed for a license for one year. October 31 the lease from the defendant to the tenant was executed.

The ordinance of the city of Chicago makes it unlawful “for any person to engage in the business, or act in the capacity of a broker within the city, without first obtaining a license therefor;” provides that any person violating the ordinance shall be fined not less than $25, etc.; provides that no license shall be granted for a less or longer period than one year, except, etc., and that, “every license shall expire on the last day of April following its issue,” etc.

That the ordinance is valid and that a broker who conducts business in violation of its provisions cannot recover commissions, must be regarded as settled by the decisions of the Supreme Court. Braun v. Chicago, 110 Ill. 186; Banta v. Chicago, 172 id. 204; Douthart v. Congdon, 197 id. 349.

The services of plaintiff were rendered before he obtained a license. It is immaterial that after the services were rendered and before the lease was executed, he took out a license. Plaintiff performed his part of his contract with defendant when he procured a person willing and able to accept a lease on the terms offered by the defendant, but his acts in the performance of the contract being unlawful, they cannot be the basis of a recovery.

The license took effect from the date it was issued and cannot he given a retroactive effect so as to make valid acts of the plaintiff done between May 1 and October 30, 1907. Eckert v. Collott, 46 Ill. App. 361; Elsberry v. State, 52 Ala. 8; State v. Pate, 67 Mo. 488; Haworth v. Montgomery, 91 Tenn. 16.

We find no error in the record, and the judgment is affirmed.

Affirmed.


text:
    Frankfort Marine Accident and Plate Glass Insurance Company, Plaintiff in Error, v. Daniel Lynch, Defendant in Error.
    Gen. No. 15,208.

      Insurance—when, payment of premium to agent puts policy in force. Ií a policy is delivered by the company to an agent for the purpose of its delivery and the collection of the premium thereon if such policy is delivered to the insured who pays the premium therefor to such agent, the fact that such agent fails to turn over the premium so collected to the company, as well as the fact that the policy was issued without prior application by the insured, will not prevent its going into effect as against the company.
    Error to Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.

      Statement by the Court. Plaintiff issued to defendant a policy insuring him against loss from legal liability for personal injuries caused by his horses and vehicles for one year from October 29, 1906. Before that policy was issued one Laughlin called on defendant and asked to write him such a policy. Laughlin said that he would get the best rate he could, and afterwards returned and gave defendant a rate which he accepted. Laughlin afterwards brought defendant the policy and defendant paid him the premium, which he paid to plaintiff. October 1, 1907, Laughlin brought to defendant a similar policy of the plaintiff dated August 26, 1907, insuring defendant for one year from October 29, 1907,' and said to defendant that if he would pay the premium, $100, he would give defendant $5 out of his commission. Defendant then gave Laughlin a check for $95, payable to his order, and Laughlin delivered the policy. The check was paid October 8, 1907: It does not appear that defendant saw Laughlin after the delivery of the first policy until the second was delivered. The application for the second policy was not signed by the defendant, but below the blank for the signature of the applicant are the words:
    “Broker, M. F. Laughlin.
    “M. J. Grogan, Bes. Sec’y.”
    Grogan, the resident secretary of the plaintiff, testified that the premium had not been paid to plaintiff; that he did not authorize Laughlin to deliver the policy to Lynch; “I signed one and gave it to him and knew that he was delivering the insurance that the policy was delivered to Laughlin and with it a bill for the premium; that plaintiff often allowed Laughlin a credit of forty-five days, and when the premium was not paid at the end of that time a further statement was sent to. Laughlin. In March, 1908, Grogan asked Lynch if he had paid the premium to Laughlin, and Lynch answered that he had. Grogan said that Laughlin had not turned in the premium and that he would see him and fix it up. March 19, 1908, plaintiff wrote Lynch cancel-ling the policy and enclosing a bill for $50 for the earned premium and for such earned premium this suit was brought. A trial by the court resulted in a judgment for the defendant, to reverse which this writ of error is prosecuted.
    C. E. Heckler and Paul Farmer, for plaintiff in error.
    Mater, Meter & Austrian, for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

There is no evidence tending to show that defendant authorized or requested Laughlin to make an application for the second policy, or that he knew when he paid the premium that the application was signed by Laughlin. If from the evidence it could be held that Laughlin was the agent of the defendant to procure the first' policy, such authority ceased when that policy was procured. Two months before the first policy expired plaintiff issued and delivered to Laughlin the second policy, charged the premium to him, gave him a bill therefor, and when he did not pay the premium over to the company within the period of credit allowed him, the company sent him another bill for the premium. Grogan, the resident secretary of the plaintiff, testified that he knew when he delivered the policy to Laughlin that Laughlin, “was delivering this insurance.” He further testified on cross-examination in part as follows: “I made some effort to collect this insurance premium from Mr. Laughlin. A bill was sent enclosed with the policy. I made some effort after the policy was issued; a bill was sent several times, and I had some conversation with him about it. He said he was endeavoring to collect, doing his best to get the money for the company from Mr. Lynch and could not get it. ‘

Q. But he was acting for you in that capacity, was he, in placing this insurance? A. The premium usually comes through the broker.

Q. He was acting for you I say. Answer the question yes or no. A. Yes.”

Four months after the policy took effect Grogan asked defendant' if he had paid the premium to Laughlin, and when told that he had, said he would see Laughlin and fix it up.

We think that on the evidence the trial judge might properly find that as between the company and Lynch, Laughlin was authorized to collect the premium from Lynch, or on the authority of the case of The Lycoming Ins. Co. v. Ward, 90 Ill. 545, might properly find that the company was estopped from claiming that the payment of the premium by Lynch to Laughlin made on the delivery of the policy was not binding on the company. The judgment of the Municipal Court is therefore affirmed.

Affirmed.


text:
    People of the State of Illinois, for use of Dr. I. J. Straus, Defendant in Error, v. The Title Guaranty & Surety Company, Plaintiff in Error.
    Gen. No. 15, 230.
    1. Municipal Coubt—what not “statement of facts” or “stenographic report” as provided, for by Act. Held, that a document contained in this cause was neither a “statement of facts” nor a “stenographic report” such as is provided for by the Municipal Court Act as a substitute for the common law bill of exceptions.
    2. Bonds—when demand not condition precedent to maintenance of action upon. In an action upon a constable’s bond brought long after the return day of an execution for his failure to make return thereon, etc., a demand prior to suit for money collected, is not an essential prerequisite to the maintenance of the action.
    3. Bonds—what evidence competent against surety. In an action upon a constable’s bond the admission of the constable that he received certain money under the execution is admissible against the sureties upon such bond.
    4. Bes judicata—when judgment upon constable’s bond not. If an action be brought upon a constable’s bond and the judgment rendered thereon is only for the damages of the plaintiff in that suit, it is not a bar to a subsequent action by another plaintiff; had judgment in such case been rendered for the penalty of the bond then a party having a right of action under such bond would have a remedy in the former action by scire facias.

      Error to Municipal Court cf Chicago; the Hon. Isidore H. Himes, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    Sheriff, Deet, Dobyes & Freemah, for plaintiff in error.
    Camero e & Matsoh for defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Defendant in error brought an action of the fourth class in the Municipal Court against plaintiff in error and one Schmidling. The summons ivas returned not found as to Schmidling and the other defendant entered its appearance. The trial, by the court, resulted in a judgment for the plaintiff against the defendant corporation for $3,000 debt and $10 damages and costs, in the usual form, to reverse which this writ of error is prosecuted.

We do not regard the “Statement of Facts” found in the record as either, “a correct statement of the facts appearing on the trial and of all questions of law involved in the case, with the decision of the court on such questions of law,” within the meaning of the Municipal Court Act, or as the equivalent of the stenographic report therein provided for.

It begins with a statement that the plaintiff introduced a certified copy of bond of Constable Schmidling, dated April 27, 1905, signed by him and the other defendant under its then name, but the bond is not set out nor is there any statement of its conditions or provisions. It then states that plaintiff called a witness who testified “in substance” as therein set forth; that each party introduced certain documents which are set forth and that defendant called a witness who testified “in substance” as therein set forth. It does not appear from the instrument that it contains all of the evidence, and there is in it no finding of a fact either ultimate or evidentiary. It sets forth no ruling of the court adverse to the defendant other than the denial of its motion for a non-suit and to dismiss for want of jurisdiction. The grounds of reversal here urged are all based on the “Statement of Facts” in the record. That statement is not a “Statement of Facts” because it does not purport to contain any finding of facts. It cannot be regarded as the equivalent of the stenographic report provided for in the Act, because it does itot purport to contain all of the evidence. The judgment might properly be affirmed on the ground that the questions argued are not saved for review by the “Statement of Facts” in the record.

Both parties however treat that statement as saving for review the questions argued in the briefs and we will so treat it.

We do not think that any demand was necessary before bringing suit on the constable’s bond, because the suit was not brought until long after the return day of the execution. The evidence for the plaintiff shows that Straus recovered before a justice of the peace a judgment against Brown for $15 and costs January 24, 1904, and that an alias execution was issued thereon May 29, 1905. Mr. Cameron testified for the plaintiff, without objection on. the part of the defendant, that he was an attorney of the plaintiff in the judgment; that about May 29, 1905, he handed the execution issued on said judgment to Schmidling, “who subsequently stated to witness that he collected $15 under said execution; that witness told Schmidling he would allow him $5 from the proceeds of the execution for his remuneration; that Schmidling then agreed to pay over the balance to witness; that Schmidling has never turned over to him the money collected, or any part thereof, and that said execution has never been returned.”

Evidence of the admission of the constable that he had collected $15 under the execution was good evidence against the defendant, the surety on his bond. Magner v. Knowles, 67 Ill. 325; Rhode v. McLean, 101 id. 467; Swift v. Trustees, 189 id. 584.

The evidence on the part of the plaintiff made a prima facie case against the defendant. The only evidence introduced by defendant was evidence that in an action before another justice of the peace by the People, etc., for the use of Duncan Moore against the defendants to this action, plaintiff had judgment December 16, 1905, for $29.70 and costs, which was paid and satisfied, and the testimony of a witness that said judgment was recovered on the bond on- which this action is based.

The contention of plaintiff in error that the judgment so recovered is a bar to the present suit is without merit. If the judgment was on the bond sued on in this case, the judgment should have been for the penalty of the bond as debt and the actual damages of the party suing on the bond as damages. If such a judgment had been rendered the beneficial plaintiff in this case would have had his remedy by scire facias in that case. The justice’s docket in that case shows that the surety was served with process, that the constable entered his appearance, that after several continuances “the defendants defaulted,” etc.

To hold that such a judgment as was rendered in that case is a bar to this action, would be to put it in the power of the obligors in a constable’s bond, and an accommodating plaintiff, who had a right of action on the bond, to put it out of the power of any other person to maintain an action on the bond.

We think the trial court properly held that the judgment in the other action was not a bar to this action, and the judgment is affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    George and Emma Firminich, Defendants in Error, v. Thomas Burdine et al., Plaintiffs in Error.
    Gen. No. 15,249.
    1. Forcible entry and detainer—what omission does not affect sufficiency of complaint. The omission of the word “is” before the words “entitled to possession” in the complaint in forcible detainer is not material and does not affect the validity of the judgment rendered in such an action.
    2. Forcible entry and detainer—when misprision of clerk in

      entering judgment will not reverse. If as written by the cleric a judgment in forcible detainer appears to have been entered one year later than it actually was, the error is immaterial and does not affect the validity of the judgment.
    Assumpsit. Error to Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed June 30, 1910.
    J. Gray Lucas, for plaintiffs in error.
    Allen G. Mills, for defendants in error.
   Mr. Justice Freeman

delivered the opinion of the court.

Plaintiffs, defendants in error here, filed in the Municipal Court a complaint as follows: “George and Emma Firminich complain to the Municipal Court of Chicago that —he—, the said George and Emma Firminich, entitled to the possession of the following described premises in said County, to-wit, Eoom 505, Firminich Building, northeast corner Washington street and Fifth avenue, Chicago, Illinois, and that Thomas Burdine and J. Gray Lucas, unlawfully withholds the possession thereof from the said George and Emma Firminich.”

The statement of claim is as follows: “Plaintiffs’ claim is for rent covering the following period; for a portion of the month of ¡November and for the month of December, 1908, and for possession of the following premises:” describing them, as mentioned in the complaint. A summons was issued in due form, summoning defendants to answer to plaintiffs in a claim for rent in the sum of $42.50, and wherefore they unlawfully withhold from plaintiffs the possession of the said premises, which are again described. The defendants did not appear and judgment by default was entered for possession of the premises described in the complaint, a writ of restitution was ordered to issue, and judgment given for the amount of rent sued for.

It is claimed that the judgment based upon the complaint is void because of the omission in the complaint of the word “is” before the words “entitled to possession:” The complaint sets forth that the plaintiffs are persons “entitled to the possession” of the premises described, and it cannot be construed otherwise. The omission of the word “is,” or grammatically in this case “are,” does not obscure or otherwise affect the clear meaning of the complaint, which sufficiently complies with the statute. The case of People v. Manns, 146 Ill. App. 571, cited by defendants, is not in point. The omission of the word “represented” in that case left the amended information fatally defective and meaningless. The omission here objected to has no such effect. The complaint is in accord with the requirements of the forcible entry and detainer Act. R. S. chap. 57, sec. 5.

It is objected that the judgment purports to have been entered a year later than it apparently was, that is in 1909 instead of 1908. This is a mere clerical error, due apparently to the carelessness of the clerk of the Municipal Court who wrote up the record, and not to any fault of the plaintiffs. It would be absurd to set aside this judgment on any such ground where, as here, from the whole record the correct date of entry of judgment can readily be ascertained.

The court found the defendants guilty of 'unlawfully withholding possession from the plaintiffs, who were lawfully entitled thereto. There is no defense on the merits, no bill of exceptions, and there are none but technical objections urged to the judgment. It will be affirmed.

Affirmed.


text:
    F. M. Weyl et al., Plaintiffs in Error, v. Southern Pacific Company, Defendant in Error.
    Gen. No. 15,189.
    Common cabbiebs—when liability terminates. A complete delivery of merchandise by the carrier to the consignee terminates the former’s liability. A complete delivery takes place if the car containing the merchandise is placed by the carrier upon the usual and customary place where the consignee received consignments of freight in cars. Notice of delivery by the carrier to the consignee is not essential to the termination of its liability. Nor does the closing of the place of business of the consignee operate to continue the liability of the carrier for delivery made in accordance with instructions given.
    Error to Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Charles A. Butler, for plaintiffs in error.
    John Maynard Harlan and Oliver B. Wyman, for defendant in error; Lewis W. McCandless, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiffs prosecute this writ of error in an effort to reverse a judgment of nil capiat and for costs against them, rendered upon a verdict directed by the trial judge.

Defendant is a common carrier in the State of California, and plaintiffs are engaged in business at Los Angeles in that state. Ho part of the controversy here involved took place within the domain of this Commonwealth. Plaintiffs, however, have submitted their disputes to the arbitrament of the forum in this jurisdiction. The right so to do has been conceded by the decision in Simpson Fruit Co. v. The Atchison, Topeka & Santa Fe Railway Co., 245 Ill. 596.

Defendant undertook to convey for plaintiffs a carload of potatoes from Irwindale in California to Los Angeles to be delivered at Los Angeles to plaintiffs. In the rear of plaintiffs’ place of business at Los Angeles there was a spur or switch track connecting with other railroad- tracks, upon which plaintiffs received freight consigned to them by rail. The building in which plaintiffs carried on their business was called the “Guasti building” and the spur track in the rear of the building was called the “Guasti switch Plain tiffs had caused a sign to be placed in the rear of the building adjacent to this switch, reading “Place cars here,” The carload of potatoes in question arrived in Los Angeles on the morning of Saturday, December 22, 1906, and defendant telephoned that fact to plaintiffs’ receiving clerk, who requested that the car be placed on the switch track in the rear of plaintiffs’ place of business. Defendant complied with this request and so placed the car on the same day at an hour after plaintiffs had ceased doing business for that day. On the following day, Sunday, December 28, 1906, the place of business of plaintiffs was destroyed by fire, and the same fire destroyed the carload of potatoes. Plaintiffs sue defendant for the value of the potatoes so destroyed and rest their right of recovery upon the common law liability of a carrier to safely carry and deliver the consigned goods to the consignee. The judgment was rendered upon a verdict directed by the trial judge upon the completion of plaintiffs’ proofs, on the motion of defendant, without its offering any evidence in refutation of the case made by plaintiffs. The evidence of plaintiffs establishes the fact that the switch upon which defendant placed the carload of potatoes in question was the usual and customary place where plaintiffs received their consignments of freight in cars. It is, however, contended by plaintiffs that it was defendant’s duty to give plaintiffs reasonable notice of delivery, so that they might take the potatoes into their possession, and that such notice not having been given, defendant’s liability as such carrier was not discharged at the time of the destruction of the potatoes by fire.

We do not think that these contentions of plaintiffs are well taken, but on the contrary that the conclusion of the trial judge was in accord with legal precedent applicable to the rights and obligations of the parties. Under the evidence in this record there ivas, under the well settled doctrine of this state, a complete delivery of the potatoes by the carrier when it placed the car containing them upon the “Guasti switch.” When that had been done defendant’s duty as carrier ceased.

While it is true that notice to the consignee of the arrival of the goods by the carrier in this jurisdiction is not essential to discharge the carrier from its common law liability as such, still it is patent from the evidence that defendant not only gave notice of the arrival of the potatoes, but delivered them in compliance with the instructions and request of plaintiffs’ receiving clerk, given at the time such .notice "was received. Upon such delivery it became the duty of plaintiffs to receive and care for the potatoes. Closing their place of business did not operate to continue the liability of defendant after delivery in accord with instructions given. Plaintiffs’ counsel quote from Gregg v. I. C. R. R. Co., 147 Ill. 551, as follows: “In all such cases the question to be determined is whether anything remains to be done by the carrier in completion of the contract to carry safely and deliver the goods at the place of destination. If there is, the liability as carrier continues.” By parity of reasoning, if nothing remains for the carrier to do, as in this case, delivery having been accomplished, then the liability of the carrier ends. When properly analyzed there is nothing in the many other eases cited by counsel for plaintiffs out of harmony with this holding. There is no contention, as we understand the evidence or gather from the argument of counsel, that it was incumbent upon defendant in any circumstances to do more than it did when it put the car upon the “Guasti switch,” as directed by plaintiffs’ shipping clerk. It was no part of defendant’s duty to unload the car or remove the potatoes from it or put them in any other place. But for the fire occurring, which destroyed them, it is obvious plaintiffs would have made no further requests of defendant in relation to the potatoes, and as no further duty rested upon defendant after delivery, the misfortune which resulted in their destruction by fire could not have the effect of imposing a liability where none before existed. In the case of Porter v. Chicago, R. I. & P. R. R. Co., 20 Ill. 408, the earliest pronunciamento on this subject by that court, it said: “It has been held, and we think with reason, That the cases have settled the question that carriers by railway are neither bound to deliver to the consignee personally or to give notice of the arrival of goods to discharge the liabilities of common carrier.’ Bedfield on Bailways, 251.” The doctrine thus announced was approved and again applied in C. & A. v. Scott, 42 ib. 132. In a case where household goods arrived on the evening preceding the great Chi-sago Fire of 1871, too late for delivery, and were stored by the carrier in a warehouse and destroyed in that disaster, the court said in M. D. T. Co. v. Hallock, 64 ib. 284: “Whatever other courts may have decided on this question, it is the settled doctrine of this court that the liability of a common carrier terminates with the delivery of the goods in a safe warehouse, and notice is not required to be given to the consignee.” Other cases sustaining this doctrine are: I. C. R. R. Co. v. Friend, 64 ib. 303; Anchor Line v. Knowles, 66 ib. 150; Rothschild v. Mich. C. R. R. Co., 69 ib. 164. In the case of Cahn v. M. C. R. R. Co., 71 ib. 96, the court, recognizing that other courts had held to a contrary doctrine, said: “We are perfectly well aware that the rule heretofore laid down and thus far adhered to by this court upon this subject is not in harmony with the views of the courts in many of the other states, and as contended for by some respectable law writers. As was shown in Hallock’s case, it was however adopted many years since. After an examination of many authorities and mature consideration by the Court, we do not conceive that it would be wise or prudent to now change it.” With a consistency born of a conviction of right, the doctrine is still adhered to by our Supreme Court and given effect in the subsequent cases of I. C. R. R. Co. v. Carter, 165 ib. 570; Gratiot Street Warehouse Co. v. St. Louis, A. & T. H. R. R. Co., 221 ib. 418; and this court applied the same principle in C. R. I. & P. Ry. Co. v. Kendall, 72 Ill. App. 105.

The other questions argued become unimportant in the light of the views above expressed, and being of the opinion that the judgment of the trial court does justice between the contending parties in accord with legal precedents obtaining in this jurisdiction, the judgment of the Municipal Court is affirmed.

'Affirmed,


text:
    Frank R. Marten, Defendant in Error, v. Hermann Redlich, Plaintiff in Error.
    Gen. No. 15,224.
    Municipal Court—when verdict not disturbed. If the verdict of the jury finds sufficient support in the evidence and the judgment of the Muncipal Court does substantial justice between the parties, a reversal will not be awarded. -
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Steele & Thompson, for plaintiff in error.
    Henry Frankfurter, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

It would seem from the evidence in this record that the defendant represented to plaintiff that he had a soap business at 191 Fourth street, Milwaukee, Wisconsin, and that the soap was disposed of by peddling the same through agents, and that such sales were made under a “retailer’s license”; that he would sell the soap, the license and the business to plaintiff for $257.09; that the stock of soap in Milwaukee was worth about $200. Upon plaintiff agreeing to buy, defendant further agreed that if plaintiff, after paying, was not satisfied, he would pay back to him all the money received. Meissner, a witness for plaintiff, substantially corroborated the latter statement when he testified that defendant said to plaintiff in his hearing, “Well, Mr. Marten, if the business is not as I represent it, or you do not like the business or you cannot make any money out of it, I am willing to return the money any time you ask for it.” Plaintiff went to Milwaukee and visited 191 Fourth street, but did not find any soap there; neither did he get any “retailer’s license.” The agent of defendant at Milwaukee paid him in a check to defendant’s order $55, supposedly for soap sold from the stock which plaintiff was supposed to have purchased. Defendant endorsed this check and plaintiff obtained payment of it. The agent told plaintiff when he inquired for the stock of soap which defendant had represented was on hand at Milwaukee, that there was not any soap on hand, and a search by plaintiff and his witness Meissner for the soap said to be in Milwaukee proved fruitless. The cause was submitted to a jury which rendered its verdict in favor of plaintiff for the amount paid, less a credit of $55. Judgment was entered upon this verdict.

The evidence clearly demonstrates that plaintiff did not receive what he had bargained for with defendant, and that he was, to put it mildly, at least misled by defendant, who failed either to deliver the property which he pretended to sell or put plaintiff in a position where he could by reasonable effort obtain possession. We are also of the opinion that defendant was liable on his promise to return the money paid him by plaintiff if for any reason he became dissatisfied with his bargain. The $55 check payable to the order of defendant may be regarded as a payment on account when he endorsed the check and delivered it to plaintiff. The contentions here involved are treated by both parties as question of fact and not of law. As such they were fairly submitted to the jury. It was therefore the province of the jury to solve by their verdict the conflict in the evidence. This they have done, and we cannot say that such conclusion is contrary to the manifest weight of the evidence, and consequently we are not privileged to disturb it.

On the case as a whole we think the judgment does justice between the parties. Plaintiff trusted defendant in the whole matter. He bargained for something about which he had no knowledge, and paid his money, in faith of the verity of the representations of defendant, for goods which he had not seen. That for which plaintiff bargained he was unable to obtain. He was naturally dissatisfied and demanded a return of his money in accordance with one of the terms of the bargain and in faith of which he parted with his money. In law and conscience defendant should have returned the money voluntarily upon demand. Hot having done so, and the verdict of the jury finding sufficient warrant in the evidence to support it, the judgment of the Municipal Court is affirmed.

Affirmed.


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    Sykes Steel Roofing Company, Defendant in Error, v. Abraham Bernstein et al. Abraham Bernstein et al., Plaintiffs in Error.
    Gen. No. 15,236.
    1. Mechanic's liens—what essential to recovery of judgment by subcontractor in assumpsit against owner and contractor. A subcontractor cannot recover a judgment in an assumpsit suit against the owner and the contractor unless he has proved a contract between the owner and the contractor for the work or labor the subject-matter of the suit.
    2. Mechanic’s liens—what service of notice by subcontractor upon owner insufficient. Such a notice served through the United States mail by registered letter is insufficient; the statute requires the service to be personal, and in this regard, the statute being in derogation of the common law, substantial performance of its conditions cannot be dispensed with nor a recovery sustained when it apjiears a material requirement of the statute has not been observed.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Henry C. Beitler, Judge, presiding.
    Heard in this court at the March term, 1909.
    Reversed and remanded.
    Opinion filed July 14, 1910.
    Blum & Blum, for plaintiffs in error.
    James Todd, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This cause in the trial court was by agreement of the parties submitted to the presiding judge for trial without a jury, which trial resulted in a finding and judgment against all the defendants, including plaintiffs in error, for $500 and costs. From the judgment Bernstein & Wolf prosecute this writ of error.

While numerous errors are assigned and argued, we shall confine our opinion within two points, viz: The insufficiency of the proof to sustain the judgment, and the failure to serve the mechanic’s lien notice in compliance with the statute.'

The suit is in assumpsit, brought by plaintiff against defendants Bernstein & Wolf as owners, and Hanok & Stone, alleged original contractors, to recover the contract price for certain fire-proof windows installed in the building of the owners by plaintiff under an agreement with the contractors Hanok & Stone. The right to recover jointly against the owner and original contractor by plaintiff, a subcontractor, is given by section 28, chapter 82, Rev. Statutes, title, “Liens”, and is most often designated as the “Mechanics Lien Act.”

A subcontractor cannot recover a judgment in an assumpsit suit against the owner and the contractor unless he first prove a contract between the owner and the contractor for the work or labor the subject-matter of the suit. This plaintiff utterly failed to do. Hot only did plaintiff fail to prove such a contract, but when counsel for Bernstein & Wolf attempted to prove the existence of such a contract in defense of the claim, on objection of plaintiff such attempt was frustrated. There being no evidence of a contract in the record between the owner and the original contractor, it can neither be determined whether plaintiff was employed by the contractor with authority, nor what amount, if any, the owners are liable to pay to the plaintiff in force of the Lien Act. Schmelzer v. Chicago, etc., 85 Ill. App. 596. As said in Marski v. Simmerling, 46 ib. 531: “The provision of the statute that the owner and contractor may be sued jointly does not make them jointly liable to the extent of the subcontractor’s claim. The owner cannot, as a rule, be made liable beyond the amount he has contracted to pay, or to pay at a different time, or in a different manner. * * * The contractor is liable for what and as he has promised to pay, whether it be more or less, sooner or later, than what the owner is to pay him.” This record furnishes no’ evidence from which the liability of the owners may be determined. Hruby v. Vokoun, 57 Ill. App. 194.

The notice of the subcontractor’s claim* required by the statute to be served upon the owner was sent to Bernstein & Wolf, such owners, through the United States mail by registered letter. Such method of service of such notice is not a compliance with the statute and was abortive as a foundation on which to rest the right given by the statute to a recovery against the owners. The statute requires the service of such notice to be personal, and in this regard the statute being in derogation of the common law, a substantial fulfilment of its conditions cannot be dispensed with nor a recovery sustained when it appears a material requirement of the statute has not been pursued. In Carney v. Tully, 74 Ill. 375, in construing a similar mechanic’s lien statute the court held that notice required by the statute to be given by a subcontractor to the owner of the property, to hold him liable must not only be in writing, but must be served personally, and that the service by United States mail is insufficient to charge such owner. In the Oarney case supra the notice by mail, as in this case, reached the owner. The court also laid down the rule that the Mechanic’s Lien statute was in derogation of the common law, and that those claiming its benefits must bring themselves clearly within its provisions. Peck v. Hinds, 68 Ill. App. 319, is to the same effect as the Oarney case supra and directly holds that service of notice on the owner must be personal, and that service by' mail is not a sufficient compliance with the Act, and observes that “no person can have a lien under the mechanic’s lien law without showing a strict compliance with its provisions. Belanger et al. v. Hersey et al., 90 Ill. page 70.”

For the foregoing reasons the judgment of the Municipal Court is reversed and the cause is remanded.

Reversed and remanded.


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    Albert Guminski, Plaintiff in Error, v. Armour & Company, Defendant in Error.
    Gen. No. 15,245.
    1. Verdicts—when not disturbed. To the jury belongs the task of harmonizing by their verdict conflicts in the evidence, and when they have done so and the result reached by them finds warrant in the proofs and is not manifestly contrary to its weight, the Appellate Court is not permitted to disturb it.
    2. Instructions—when inaccuracies will not reverse. Inaccurate instructions will not reverse if upon a consideration of all the instructions given to the jury the court is convinced that they were sufficiently well and correctly instructed upon all the important and essential principles of law pertinent to be applied in giving force and effect to the evidence and therefrom to arrive at a just verdict.
    Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Johhsoh, Belasco & McCabe, for plaintiff in error.
    A. B. TJrioh and A. F. Beiohmauh, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

This is an action on the case by the servant against the master for personal injuries resulting from the alleged failure of the master to furnish a safe place for the servant to do his work.

The specific negligence charged in the declaration is that certain bags containing bone dust were carelessly, improperly and defectively piled by defendant, so that while plaintiff was engaged in taking sacks from the pile and “trucking them” the pile fell upon him and injured him. Meeting this charge defendant insists that the bags were properly piled and that they were caused to fall through the negligence of plaintiff and his co-worker in pulling out bags from underneath the pile, which caused the pile to overbalance and fall.

The trial resulted in a verdict for defendant, upon which, after overruling a motion for a new trial, judgment was entered.

This judgment is sought to be reversed because, it is insisted, the verdict is contrary to the preponderating force of the evidence, and the court erroneously gave certain instructions to the jury at the instance of defendant.

Counsel contend that plaintiff at the time of the accident was not working at his usual and customary employment, and that he knew little, if anything, about the dangers to be encountered in “trucking” the bags from the pile and was not warned of any danger from the falling of the pile. The evidence demonstrates, without contradiction, that plaintiff was employed by defendant as a laborer and as such worked for it for more than a year prior to the accident; that plaintiff was doing laborer’s work at the time of the accident and had been similarly engaged several times previously; that while it is true he more often worked in the “tankage room” than in the the “Oklahoma room,” where the bags were piled and which he was engaged in removing at the time he was injured, yet it is clear that working as well in one place as the other was within the scope of his employment, and that in “trucking bags” he was engaged in doing the work falling to a laborer just as much as when laboring in the “tankage room.” Taking down the bags from the pile did not call for the exercise of any particular skill, and if there were any dangers of the character urged in argument, they were equally as open and obvious to the servant as the master. The work on such piles of bags was no new employment to plaintiff. A careful reading of all the evidence convinces us that the jury were undoubtedly impressed, from a careful analysis of the evidence, that the cause of plaintiff’s injuries was not the defective piling of the bags, but the unskillful, not to say reckless, method adopted by plaintiff and his co-laborer in taking the bags out from underneath the pile, which necessitated pulling and tugging which would necessarily have the effect of jarring the whole pile, and in that way, by taking away some of the lateral support to the remaining bags, caused them to fall and injure plaintiff. Such is the impression the evidence makes upon our minds, and it leads us to conclude that the accident was caused, not by the negligence charged against defendant, but through the lack of due care on the part of plaintiff and his working mate in pulling bags out from underneath and causing the pile to fall over. To the jury belongs the task of harmonizing by their verdict conflicts in the evidence, and when they have done so and the result reached by them finds warrant in the proofs and is not manifestly contrary to. its weight, we are not permitted to disturb it.

There are confessedly some inaccuracies in the instructions complained about by plaintiff, but a careful' perusal and weighing of all the instructions given both at the instance of plaintiff and defendant, and considering them as a series and not each instruction separately, we are convinced that the jury were sufficiently well and correctly instructed upon all the important and essential principles of law pertinent to be applied in giving force and effect to the evidence, and therefrom to arrive at a just verdict. Taking the case as a whole there is nothing in the instructions complained of which tended to injuriously affect or prejudice any right of plaintiff under the law.

The reasoning of the court in Beard v. Maxwell, 113 Ill. 440, appears to be peculiarly pertinent to the condition of the instructions criticized. The court say: “In considering an instruction, this court may look at the evidence for two purposes; first, to determine whether it announces a correct proposition of law as applicable to the facts in the case ; and, second, assuming it does not, the court will then look at the evidence to determine whether the jury may have been misled, or the party against whom it was given may have been otherwise prejudiced by it. If, after having thus considered it, this court is of opinion that substantial justice has been done, and that the instruction, though erroneons, could not, under the circumstances, have affected the result, it -will not reverse for that reason. The same rule will apply to a refused instruction which should have heen given. In such case, if this court, upon looking at the evidence, is able to say the giving of the instruction could not have changed the result, it will not reverse for that reason; especially if the conclusion reached is clearly warranted by the evidence, and another trial would probably result the same way.”

The verdict and judgment does justice between the parties under the law and the facts. The inaccuracies complained of had no prejudicial effect on the case of plaintiff, for the evidence in the record does not justify a recovery.

The judgment of the Circuit Court is affirmed.

Affirmed.


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    Steany Sroke, Defendant in Error, v. R. W. McCready Cork Company, Plaintiff in Error.
    Gen. No. 15,251.
    Municipal Court—section of act respecting non-suits construed. A motion for a non-suit by the plaintiff is properly allowed if the jury is still in the box and has not left the bar of the court, notwithstanding the trial judge has announced his intention of peremptorily instructing in favor of the defendant.
    Error to the Municipal Court of Chicago; the Hon. Thomas B. Lantrt, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.
    Rehearing denied July 21, 1910.
    John Clark Baker, for plaintiff in error.
    No appearance by defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The cause "before us for review of the record of the Municipal Court was tried before a judge of that court with a jury. When plaintiff rested his case defendant moved to instruct a verdict in its favor. This motion the trial judge determined to allow and was about to instruct the jury to render its verdict in defendant’s favor when plaintiff, the jury still being in the jury box and not having left the bar of the court, moved for a non-suit. This motion the court allowed and judgment for costs against plaintiff was accordingly entered. There is but one question calling for our determination, which is, whether under section 30 of the 1907 Amendment to the Municipal Court Act, plaintiff’s motion for a non-suit should have been denied and the motion of defendant to instruct a verdict allowed. That portion of section 30 under discussion reads: “Every person desirous of suffering a non-suit on trial shall be barred therefrom unless he do so before the jury retire from the bar, or before the court, in case the trial is by the court without a jury, states its finding.” This case was tried with a jury, so that the latter part of the section which regulates the right to a non-suit in cases tried before the court without a jury has no application. The portion of the section before us for interpretation is to the same purport and effect as section 70 of chapter 110, title “Practice,” before it was amended by the Legislature in 1907. It therefore follows that the construction of section 70, supra, by the Supreme Court, before its amendment, is equally controlling as authority in construing section 30 supra.

As early as Berry v. Savage, 2 Scam. 261, the court in construing this statute gave it a broad interpretation by holding that plaintiff’s right to a non-suit was not barred until the whole case, evidence and instructions, were with the jury, and that in the event of the jury returning to the bar of the court for further instructions, then before the jury again retired from the bar of the court the plaintiff might, if he saw fit, take a non-suit. Prior to this statute, and by force of the common law, there could be no non-suit except on the motion of the defendant. Holmes v. C. & A. R. R., 94 Ill. 439. In Stanton v. Kinsey, 44 Ill. App. 229, it was held that in a case where there was no plea of set-off and the jury had not retired from the bar of the court to consider of their verdict, the plaintiff had the right to dismiss his suit or-take a voluntary non-suit. We are not concerned with any question of expediency in allowing a non-suit at a time when a plaintiff knows from the expressed opinion of the trial judge that his case will be determined against him and that another trial will in all probability result in like defeat.

We are circumscribed by the statute and the construction placed upon it by the highest judicial tribunal of the State, and are not permitted, even if we had other views of the construction which we might think should be indulged, to depart from such interpretation, which is the law of the case. In trials by jury the right of plaintiff to take a non-suit at any time before the jury retires from the bar of the court, which has existed since 1845, still obtains unchanged by subsequent statutory enactment. The amendments relate solely to trials before the court without a jury.

The allowance of the motion to dismiss being in accord with statutory right, the judgment of the Municipal Court is affirmed.

Affirmed.


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    Smith & Rumery, Plaintiff in Error, v. H. A. Otis Company, Defendant in Error.
    Gen. No. 15,238.
    Measure of damages—iro action for breach of contract for sale of chattels. The true measure of damages for a breach of a contract for sale of chattels by the seller, is the difference between the contract price and the market value of the articles at the time when and the place where they should have been delivered.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Oscar M. Torbisoh, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed July 14, 1910.

      Statement by the Court. Plaintiff, a corporation doing business at Portland, Me., made by correspondence a contract with defendant, a corporation doing business at Chicago, whereby the defendant agreed to sell to plaintiff thirty circular church pews of a specified pattern. The order for the pews was given by plaintiff in its letter of August 20, 1906, in which is the following: “Price of the above to be $427.35 F. O. B. Chicago, plus $56.70 for circular pews, plus 14 cents each for the book racks.” In the letter was an inquiry as to the additional price if ends Ho. 49 were used in place of Ho. 5. Defendant wrote plaintiff August "22, accepting the order and quoting $45 as the increased cost of the Ho. 49 ends over the Ho. 5. August 24 plaintiff wrote defendant accepting the proposition of $45 additional for the Ho. 49 ends. By this letter the contract was completed. The pews were to be shipped within four months after the receipt of the order. The defendant refused to perform the contract and plaintiff brought this action to recover damages for its breach. The cause was submitted to the court and the issues found for the plaintiff, but the court awarded plaintiff only one cent damages, gave judgment for that sum and costs, and the plaintiff prosecutes this writ of error.
    The breach of the contract occurred in December. Smith, the president and general manager of the plaintiff, testified that plaintiff then went to work and made the pews. Asked, “if he made any effort to have any regular manufacturer of pews supply them” he answered, “We did not; we had waited so long that we dared not trust to any one else making them, as it would take, we knew, from three to four months.” He further testified that it cost plaintiff $1,195.73 to make the pews. Asked if he knew any reason why it should cost plaintiff $1,195.73 to make the pews which defendant had agreed to furnish for so much less, he answered, “We were not specially fitted to do such work. Our machines are not specially fitted up for that kind of work. It naturally made expense to get them ready.” Asked, “Could you have obtained within a reasonable time the furniture from any concern having the special machinery adapted to making pews ?” he answered, “We did not dare to risk it from the experience we had had.”
    The testimony for the plaintiff tended to show that the pews were to go into a church at Cumberland Center, Me. ; that Orren S. Thornes, with whom plaintiff had, “an arrangement to supply the pews”, claimed $200 damages of plaintiff for delay in furnishing the pews, and that plaintiff did not dispute the claim. Thornes was asked what connection he had with the building of the church, and answered, “I had full control of the carpenter work and all the business of the finishing. I was a mechanic put in charge of the finishing and rebuilding of the church; in fact of all the work I had general oversight and control, and the contracting for the pews and windows and all that work.” He further testified that the pews were not delivered until April, 1907. Asked if he had made any claim for damages against plaintiff for delay in furnishing the pews, he answered that after waiting a long time and communicating with plaintiff in respect to the delay, “in my contract, or my charge over the work,” he wrote asking for $200 from plaintiff for the delay, and that plaintiff had never disputed his claim for damages.
    Sheriff, Dent, Dobyns & Freeman, for plaintiff in error.
    Ho appearance by defendant in error.
   Mr. Justice Baker

delivered the opinion of the court.

Plaintiff in error contends that there is evidence in the record suificient to entitle the plaintiff to substantial damages for the breach of the contract by defendant, first, for the 'difference between the contract price and the sum it cost plaintiff to make the pews, and, second, for special damages “arising from the delay on the building contract which Smith and Rumery were acting under.” The usual measure of damages for the breach of a contract for the sale of chattels by the seller is the difference between the contract price and the market value of the article at the time when and the place where it should have been delivered. The place of delivery under the terms of the contract was Chicago. Plaintiff offered no evidence as to the market value of the pews in Chicago at or about the time of the breach of the contract, nor any evidence that the pews could not then have been purchased in Chicago, or that the pews then had no market value in Chicago. We think that the' refusal of the trial court to award plaintiff more than a nominal sum for direct damages by reason of the breach of the contract may be sustained on the ground that plaintiff failed to prove either the market value of the pews in Chicago at the time of the breach of contract, or that the pews then had no market value in Chicago.

Defendant was informed before the contract was made that the pews were purchased for resale at Portland. In Louis Cook Mfg. Co. v. Randall, 62 Iowa, 244, it was held that in such a case the market price at the place of resale controlled in fixing the measure of damages. If the doctrine of that case be followed in this ease, the result will be the same. Plaintiff offered no evidence tending to show that the pews could not be purchased in Portland or that they had there no market value. It is only when the article sold cannot be purchased in any market at any price that the buyer may prove his actual loss in some other way. Even in cases where the article could not be purchased in any market at any price, it has never, to our knowledge, been held that on a breach of contract by the seller, the buyer could manufacture the article and recover of the seller the difference between the contract price and the cost of manufacture.

We find no evidence in the record to warrant or support an award of damages to plaintiff on account of the claim made against it by Thornes. His testimony was in substance as follows: “I had full control of the carpenter work and the finishing. * * * I had general oversight and control and the contracting for pews, windows, and all that work.” His testimony tends to show that whatever contract he made with plaintiff was made for the church, or the society which was building the church; that he was hut an employe of the church or society,, and therefore that he could have no valid claim to recover damag’es for any delay on the part of plaintiff in the performance of its contract with the church or society.

We think the trial court properly refused, on the evidence, to give to plaintiff' more than nominal damages, and the judgment is therefore affirmed.

Affirmed.