text:
    Strawn Farmers’ Elevator Company, Appellee, v. Albert S. West, trading as John West and Company, Appellant.
    Gen. No. 19,807.
    1. Principal and agent, § 100

      —authority of manager of grain elevator company to engage in speculative deals in grain. A contract of employment of a manager of a grain elevator company, construed as not giving the manager authority to bind the company by engaging in speculative deals in grain on any grain exchange.
    2. Principal and agent, § 185

      —when evidence insufficient to show ratification of speculative transactions of agent. Evidence held insufficient to show that a grain elevator company ratified the acts of its manager or was estopped to deny he exceeded his authority in making speculative deals in grain in the name of the company on the Board of Trade, it appearing that the officers of the company had no knowledge of the speculative transactions and no reason to suspect them, that the company received no benefit therefrom, and that the manager was discharged as soon as they were discovered.
    Appeal from the Municipal Court of Chicago; the Hon. Oscar M. Torrison, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Charles A. Butler, for appellant; Franklin Raber, of counsel.
    Norton & Ortman and Thomas J. Lawless, for appellee ; Kraus, Alschuler & Holden, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The Strawn Farmers’ Elevator Company, a corporation of this State, doing business at Strawn in this State, as plaintiff, obtained in a case of the first class on July 16, 1913, a judgment in the Municipal Court of Chicago against Albert S. West, doing business under the name of John West and Company, in Chicago, for $1,563.19. The judgment was in a cause tried by the Municipal Court without a jury. From this judgment Albert S. West has appealed to this court.

The Strawn Elevator Company was- a corporation which a written agreement (in evidence) between it and one John W. Jordan, its employee as “manager” from April 11, 1907, to February 20, 1909, recites to-have been incorporated “for the purpose of buying, storing and selling grain in the Village of Strawn, Illinois.”

Albert West (as John West and Company), was a dealer in grain on commission and otherwise in Chicago and a member of the Chicago Board of Trade.

It is not disputed (it is indeed stipulated) that from May, 1907, to February 3, 1909, the Strawn Farmers’ Elevator Company, through Jordan as manager, consigned to John West and Company grain to be sold on commission by that concern; that it was so sold and that the proceeds of those shipments over all the proper charges of John West and Company and amounts already paid the Strawn Company by John West and Company were $1,563.19.

This grain so shipped by and sold for the account of the Strawn Farmers’ Elevator Company was purchased by that Company from the farmers in the country tributary to Strawn, which is a small town of three or four hundred people. The transactions in these shipments of grain between May 13, 1907, and February 4, 1909, on which this amount of $1,563.19 remained unpaid, amounted to almost $70,000.

The defense against this evident prima facie liability of the appellant is that these shipments and sales were not all the transactions between the Strawn Farmers’ Elevator Company and John West and Company which should be taken into account in this suit. The defendant West maintains that in another series of transactions through orders for purchases and sales for future delivery, on the Chicago Board of Trade, which, so far as the parties on the board were concerned, were afterwards settled and accounted for without delivery—“speculative deals,” that is—the Strawn Farmers’ Elevator Company acting through its manager, Jordan, became indebted to John West and Company (the defendant) between the two dates above mentioned in the sum of $1,597.25, thus wiping out what would otherwise have been the indebtedness of John West and Company to the Strawn Company.

The answer to this on the part of the Strawn Company is a denial on its part that any such alleged purchases or sales were made by, for, or on its account or with the knowledge or consent of it or its officers. It admits and stipulates that during this period J. W. Jordan, then manager of the Strawn Farmers’ Elevator Company, gave the orders in question to John West and Company, and that said orders were transmitted by said Jordan in the name of said Strawn Farmers’ Elevator Company by telegraph to the office of John West and Company, and that said John West and Company properly executed them with the pecuniary results alleged; but ‘it asserts that said transactions were not authorized by the Strawn Company expressly or impliedly; that they were not ratified or accepted or even known by the Strawn Company, and that it cannot be held liable for them, they being the individual speculations of Jordan, for the results of which he alone was liable; and that immediately upon the Strawn Company learning that Jordan had been giving such orders in its name» he was discharged from their employment.

To this the defendant West rejoins that Jordan had authority to make said speculative purchases and sales for future delivery, or at least was held out by the Strawn Company as its manager in such a way that it cannot deny said authority; and, moreover, that its officers and directors received constructive notice by the course of dealings and communications hereinafter referred to, of the carrying on by Jordan in its name of such speculative transactions, and not then objecting to them must be now held to have ratified them or at least to be estopped from repudiating them. The Strawn Company replies that Jordan had no such authority; that it never ratified any of said transactions, and never had any notice, actual or constructive, of them until after the last one mentioned, when it promptly discharged Jordan; and that there is no estoppel or presumed authority to be deduced from the evidence.

Although it is stipulated that the defendant West had no actual notice of the terms of the contract of employment between the Strawn Company and Jordan, it is evident that the starting point of an inquiry like the one in this cause is the actual authority given by the contract of employment of the agent whose actions are in question.

The present contract was in writing and has been construed as to the authority it gives by the Appellate Court of the Second District in a suit in which the Supreme Court refused a certiorari, making the decision of the Appellate Court final. Strawn Farmers’ Elevator Co. v. James E. Bennett & Co., 168 Ill. App. 428.

The statement of this case may be therefore more satisfactory if we give the document in full:

" This agreement made this 11th day of April, A. D. 1907, between John W. Jordan of the Village of Wapella, Illinois, party of the first part, and the Strawn Farmers’ Elevator Company, a corporation, duly incorporated under the laws of the State of Illinois, for the purpose of buying, storing and selling grain in the Village of Strawn, Illinois.
“Witnesseth: That the party of the first part covenants and agrees upon the performance of the covenants hereinafter mentioned as made by the party of the second part, to take charge of the elevator belonging to said party of the second part, in the capacity of manager for said second party, to conduct all business connected therewith in the way of buying grain and storing and disposing of the same, to fix prices paid for grain, to hire and pay out of his own money all employees necessary to the handling of said grain, to superintend the loading of the same on cars, to draw bills of lading, to receive and pay out all moneys and make all contracts necessary in the regular transactions in said business of buying, selling and storing grain, to draw drafts and issue checks in the name of said corporation, to keep such itemized books of account showing all business transacted as is customary with grain dealers, to keep, and to attend to the insuring of all grain belonging to said corporation also buildings and machinery.
“Said party of the first part further covenants and agrees to give a penal bond in the sum of Five Thousand Dollars with good and sufficient sureties -to be approved by the party of the second part, conditioned for his faithful performance of his duties as such manager.
“The party of the second part hereby covenants and agrees with the party of the first part to furnish an elevator in good working condition, to furnish an engine and suitable machinery for operating the same, to provide all necessary repairs on said building and machinery and install the same, to furnish all gasoline necessary for running said engine, to pay all insurance provided on buildings, machinery and grain, to furnish office furniture, books and supplies for carrying on said grain business, to furnish all moneys to carry on said grain business and to pay the said first party a salary of One Hundred Dollars for each and every month in which he shall be so employed as manager for said corporation.
‘ Said second party further covenants and agrees to assume all losses resulting from fire, from the act of God, from any deterioration of grain handled, from any decrease in price, from losses occurring during transmission of grain between shipping point and destination, from robbery and from all other losses in connection with the business of the corporation, not directly resulting from violation of this agreement by said first party, and hereby exempts said first party from all liability for such losses.
‘ ‘ This agreement to continue in full force and effect until terminated by either party, which may be done by giving thirty days notice in writing to the other, which notice shall be given on or before the seventeenth day of the month.
John W. Jordan,
Party of the first part.
Strawn Farmers' Elevator Company,
By Edward Lynch, Pres.
T. J. O’Connor, Sec.,
Party of the second part. ’ ’

This agreement might almost suggest that although the corporation was not in form a co-operative arrangement, it was actually intended to be much that kind of an undertaking; that is, to furnish marketing facilities for the grain actually raised by its incorporators. But however that may be, there is, in our opinion, nothing in it which gives or implies power in the manager to engage his corporate employer in any speculative deals in grain upon any grain exchange whatever; and that it did not is, in effect, specifically decided in Strawn Farmers’ Elevator Co. v. James E. Bennett & Co., supra, in which case similar speculative dealings with and through another party by Jordan in the name of the Strawn Company were held not to bind the Company.

It being thus established that the mere fact that the manager, Jordan, sent these speculative orders to be executed on the Chicago Board of Trade in the name of the Strawn Company did not bind that Company, and that such dealing did not come within the general scope of Jordan’s employment or authority, and consequently that in the absence of some matter affecting the situation other than that Jordan was the manager of the Strawn Company, West dealt with him in these speculative transactions at his peril, and must look to him alone for reimbursement,—the question in this case is reduced to whether there is any such matter which implied ratification by, or estoppel on, the plaintiff in regard to these transactions.

The trial judge below decided there was not, as a matter of fact or of law, and we think he was right.

The appellant’s contention, however, is that there are at least four such matters:

First. He maintains that the prompt communication by mail addressed to the Strawn Company of the execution of these orders by accounts of sales, and the monthly statements also sent by West & Company to that address, raises a presumption that the proper officers of the Company had notice of the transactions, and by silence acquiesced in them, which presumption is not overcome by any positive evidence that the officers did not see these documents. As to this it is sufficient to say that it does appear that Jordan alone received all these communications, and there is certainly no evidence that any officer ever saw one of them, while Jordan’s statement is that they did not “so far as he knew.”

Second. The appellant says that the evidence shows that West & Company had similar dealings with the Strawn Company—ten or fifteen in number—before Jordan became the manager, which shows that such transactions were a part of its usual business, and that the manager must be supposed to have had authority to conduct them.

Biff we cannot see how the conclusion arises from the premises. As the Appellate Court of the Second District said in the Bennett case; supra: “The question presented by this record is not the scope of appellee’s authority to deal in grain, but the scope of" Jordan’s authority to bind it in such transactions.”

Nor do we think that the testimony of West relied on very definitely proves even the premises. The testimony of Poole of a conversation with Lynch, an officer of the Strawn Company, tending to show a statement of Lynch that the Company had made speculative trades on the Chicago exchange, was directly contradicted by Lynch.

Third. The appellant insists that profits on the speculative transactions on the Board of Trade were to the amount of several hundred dollars sent by West & Company to the Strawn Company and were credited in the books of the Strawn Company, which books were audited by a committee of the officers and directors of the Company; that the Strawn Company should therefore be held to have had notice of the transactions, and that having received and acquiesced in the benefit of the fortunate ones, it cannot repudiate and escape liability for those in which there were losses.

If the evidence showed that the auditing committee or the officers of the Company had actual notice of the fact that profits arising from transactions like these in controversy were being credited to the Company in its books and received the benefit of them, and said nothing, the argument would be a good one. But the evidence taken together does not tend to show this; it only shows, taking it to the utmost extent that it makes for the appellant, a certain carelessness in auditing which failed to detect that there were two or three credit entries not exactly corresponding to those which the shipments of grain would call for. But according to the evidence for the plaintiff the records of the Board of Trade transactions were kept in a private book of Jordan’s, not among the plaintiff’s books. There was no actual knowledge among the officers of Jordan’s speculations in the name of the Company or otherwise, and no reason to suspect them. . He was discharged as soon as those speculations were discovered. The Strawn Company, in this condition of things, was under no obligation to West & Company requiring a careful audit of the hooks to discover if their agent was exceeding his authority. The dealings of West & Company were at their own peril. If there was an audit, but one not so thorough or searching as it might have been, which did not result in the discovery of Jordan’s transactions, it is an immaterial matter in this controversy, and we think that is what the evidence in this case taken together shows.

The Strawn Company received no benefit from these speculative transactions which can estop it in this suit. Even on the theory of the appellant, amounts which came from the profits of these transactions were credited on the actual shipments of grain made, and reduced the amount for which this suit was brought and this judgment obtained.

Fourth. The delay in bringing this suit, after the speculative transactions of Jordan in the name of the Strawn Company had been discovered and Jordan discharged, amounted, it is argued, to a failure to repudiate, and therefore to an affirmance of the obligation on the Company for them.

The transactions ended in 1909, and the suit was not brought until 1913.

But we do not see how the mere lapse of time after the transactions were over, less than the time necessary to bar the action, could estop the plaintiff or affect its rights. It does not appear what, if any, communications passed between the parties during these four years.

The judgment of the Municipal Court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Brown

license: Public Domain

text:
    Levi G. Hetzel v. George M. Fadner; In the Matter of the Appeal of Edwin C. Day et al., Petitioners, Appellants, v. George M. Fadner (Respondent), Appellee.
    Gen. No. 19,828.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Suggestion of damages filed by George M. Fadner, after the dissolution of an injunction issued on the petition of Edwin C. Day, John C. McPherson, Lewis W. Parker and Henry M. Hagan, restraining said' Fadner from the prosecution of a certain suit against the petitioners, impleaded with Levi G. Hetzel. From a decree ordering that Fadner recover five hundred dollars from the petitioners and that he have execution therefor, petitioners appeal.
    The appeal w§.s taken on a præcipe transcript of the record containing only a suggestion of damages filed in the cause of Levi H. G. Hetzel v. George M. Fadner, a decretal order entered in said cause on April 19, 1913, an appeal bond filed in said cause on May 19, 1913, register entries in said cause on and after April 19, 1913, and the præcipe for the transcript.
    The decretal order, reciting that the cause came on to be heard on the suggestion of damages filed by Fadner against said ■ petitioners and the answers of said petitioners to said suggestion, and reciting also that the court has heard and considered the evidence adduced by respective parties and the arguments of counsel for the respective parties, and is fully advised, found:

      Abstract of the Decision.
    Injunction, § 381

      -—when decree awarding damages on dissolution of cannot he sustained. A decretal order awarding damages on dissolution of an injunction cannot be sustained, where the record shows there are no recitals of findings of fact in the decree sufficient to sustain the ordering part and there is no evidence to support the decree preserved in the record.
    “That the defendant respondent, George M. Fadner, has sustained damages in the sum of Five Hundred Dollars in and about the procuring of the dissolution of the injunction issued herein on or about the 17th day of January, 1911, upon the petition of the said Edwin C. Day, John C. McPherson, Lewis W. Parker and Henry M. Hagan, restraining the said defendant respondent George M. Fadner from the prosecution of a certain suit in the Superior Court of Cook County, Illinois, against the said petitioners * * * said injunction having been dissolved by the Appellate Court,” etc. And then ordered and decreed that Fadner recover $500 from the petitioners and have execution therefor.
    The only other matter shown by the transcript (except the appeal bond and praecipe) was a certificate of the clerk of the Circuit Court that the following is “a true, perfect and complete copy of the Clerk’s Chancery Register on and after the 19th day of April, A. D. 1913.”
    “Hetzel v. Fadner
    249475
    Copy of Clerk’s Chancery Register
    Notice. Geo W. Wilbrio April 19, 1913.
    Suggestion of Damnum Copy Do. July 19, 1913.”
    George G. King, for appellants.
    George W. Wilbur and Harris F. Williams, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.


text:
    John Heick, Appellant, v. M. R. Kelly et al., Appellees.
    Gen. No. 19,844.
    1. Master and servant, § 564

      —when declaration need not he amended to prevent variance. In an action by a watchman for personal injuries, where the declaration alleged that plaintiff was in the employ of defendants and that defendants negligently permitted a gate inclosing their premises to be in a dangerous condition so that it fell on him when he was about to close it in the discharge of his duty as watchman for defendants, held that the fact that the proof showed that plaintiff was employed by a private agency for the defendants did not render an amendment of the declaration necessary to prevent a material variance between the proof and the declaration.
    2. Master and servant, § 532

      —when amendment or additional count to declaration does not state new cause of action. In an action by a watchman to recover for personal injuries alleged to have been caused by a defective gate falling on him while he was in defendants’ employ and engaged in his duties as watchman for defendants, held that a proposed amendment to the declaration, or an additional count thereto, eliminating the allegation of employment by the defendants did not state a new cause of action. ■
    3. Master and servant, § 770

      —when defendants not entitled to peremptory instruction. Defendants held not entitled to a peremptory instruction on the ground that the evidence offered for plaintiff proved. defenses arising from the rules concerning assumption of risks, contributory negligence and fellow-servants, there being evidence tending to show that plaintiff was acting under express orders when injured.
    Appeal from the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Munson T. Case, for appellant.
    Winston, Payne, Strawn & Shaw, for appellees; John D. Black, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The appeal in this case is by John Heick, the plaintiff below. It is a personal injury case brought in the Circuit Court by him against two partners, M. R. Kelly and C. T. Roberts, whose firm name is E. L. Hedstrom & Company. For convenience we shall so denominate the defendants in this opinion if it be

The accident which is the basis of the litigation occurred January 6, 1911. The cause came to trial May 26, 1913. At the close of the plaintiff’s case, by a peremptory instruction, the jury was directed to find the defendants not guilty, and on the return of that verdict in accordance with the instruction the court, after denying a motion for a new trial and one for arrest of judgment, entered a judgment of nil capiat and for costs against the plaintiff.

As questions on the pleadings and proposed amendments have been argued in this appeal, we shall first briefly abstract these pleadings, actual and proposed.

The original declaration filed December 26, 1911, was in one count. Its allegations were that E. L. Hedstrom & Company owned, controlled and operated a certain coal yard in Chicago and a certain gate of great weight, to wit, five hundred pounds, therein; that the gáte was to shut the coal yard off from the public highway; that they negligently permitted the said gate to be insufficiently protected and dangerously obstructed by snow and ice, of which they had notice, and that “by means of the premises and for want of a proper and sufficient fastening and hanging of said gate, and for want of a sufficient and proper protection of said gate, and on account of the said obstruction of said passageway through said gate, of none of which said defects and obstructions the plaintiff then and there had notice, while the plaintiff who was then and there a watchman in the employ of said defondants and whose duty it then and there was as such watchman to close said gate, then and there, to-wit, on the day and year aforesaid, in the performance of his duties as such watchman for the defendants, with due care and caution was closing said gate of the defendants, the said gate * * * became loose from its fastenings and hangings and then and there fell upon the plaintiff,” to his great injury as detailed.

To this declaration the defendants February 13, 1913, filed the general issue, and on February 17, 1913, filed a special plea, in which they asserted that they did not employ the plaintiff as in the declaration alleged.

When the case was called for trial on May 26, 1913, and before the jury were impaneled, the plaintiff asked leave to file an additional count to the declaration varying from the original declaration materially only in omitting the allegations of the employment of plaintiff by defendants, and that he had no notice of the defects and obstructions of the passageway through the gate, and describing the plaintiff as “a night watchman, whose duty it was to patrol the yards of said defendants and the buildings and offices therein, * * * to protect and care for the property of said defendants * * * and whose duty as such watchman required him to go into the offices and buildings, as well as to see to it that the premises were locked, fastened and secure, so that the same could not be entered during the period of time that the plaintiff was so, as aforesaid, watching and patroling said premises, and that during the performance of his said duties said plaintiff complied with the orders and directions given to him by said defendants, or the foreman and manager of said defendants.”

Leave to file this proposed additional count was denied and the plaintiff excepted. During the trial, after the testimony of the plaintiff himself had been heard, the defendants moved that all his (the plaintiff’s) testimony concerning the accident be stricken out “on account of variance between the testimony and the charges in the declaration.” Thereupon the plaintiff moved for leave and was given leave to amend his declaration by substituting for the allegation in it, that when the accident happened he was “closing the said gate of the defendants,” the assertion that he was “about to close the said gate, etc.”

The defendants then took an order that the pleas theretofore filed to the original declaration should stand to the declaration as amended and that they should have leave to file an additional plea of the statute of limitations. They then filed such a plea, with averments that “the cause of action in the said amended declaration filed May 28, 1913, alleged, is not the same cause of action as in the original declaration herein alleged, but is another and different cause of action, which accrued to the plaintiff more than two years prior to the filing of said amended declaration. ’ ’

To this plea the plaintiff demurred and the demurrer was sustained.

After further testimony for the plaintiff referring only to his physical condition before and after the injury, the defendants moved “that the evidence offered by and on behalf of the plaintiff be excluded from the jury on the ground that it is at variance from the charges of the declaration,” specifying the variances to be that while the declaration alleged the plaintiff to have been in the employ of the defendants, the proof offered showed that the plaintiff was not in the employ of the defendants, but was in the employ of other persons, and that while the declaration alleged that at the time of the injury the plaintiff was closing the gate it became loose from its fastenings and hangings, etc., and fell upon the plaintiff, the proof offered showed that the plaintiff was not closing the gate at the time of the injury, but that the gate was blown or fell over by reason of the wind.

At the same time defendants presented another motion in writing, asking for a peremptory instruction to the jury to find the defendants not guilty.

After argument the court intimated what his ruling would be, whereupon the plaintiff moved for leave to amend his declaration by striking out of the same the words “in the employ of said defendants.” The defendants objected and the court denied the leave, to which the plaintiff excepted.

The plaintiff then renewed his motion for leave to file as a count in his declaration the count which he had been refused leave to file on May 26th before the impaneling of the jury, the material parts of which have been hereinbefore described or recited. His motion as renewed was for leave to file the said count either as an additional count to his declaration or as his amended declaration, and his counsel “stated that he was willing that defendants should have the benefit of the same defenses of assumption of 'risk and the negligence of a fellow-servant to the case stated in the additional count as they would to the case stated in the original declaration.”

The defendants by their counsel objected to the filing of said count or amendment and “stated that they did not believe said defenses could be so made available.” The court thereupon refused permission to file said count and the plaintiff excepted. The plaintiff then moved for leave to amend his declaration by striking out the words, “of none of which said defects and obstructions the plaintiff then and there had notice.” On the defendants’ objection, leave to make this amendment was also denied, to which the plaintiff excepted.

The court, without expressly passing on the motion to exclude the evidence from the jury on the ground of a variance, allowed the motion for a peremptory instruction and gave said instruction, to which also the plaintiff excepted. After the rendition of the verdiet the plaintiff moved for a new trial and in arrest of judgment and excepted to their denials. Judgment for the defendants was then entered.

In this court the plaintiff, among more formal assignments of error, asserts that the court below erred in refusing to permit the jury to pass upon questions of fact involved, including that of the negligence of the defendants and that of the contributory negligence of the plaintiff, and erred in refusing to permit the plaintiff to amend his declaration to conform to the proof in the case.

We think these assignments of error are well made.

There may well be said to be close' and doubtful questions in this cause on the merits, and as our view of the matter is likely to bring about its submission to a jury again, we do not purpose herein to discuss the evidence further than is necessary to explain our conclusion that the plaintiff did not have the trial of them to which he is entitled.

The gist of the plaintiff’s declaration after the one amendment, which was (properly, as we think) allowed, was that the defendants negligently permitted the gate to their coal yard to be in a dangerous condition, and that in consequence, while the -plaintiff was with due care about to close it in the discharge of a duty as watchman for the defendants, the gate fell on him and injured him.

The allegation that it was his duty as a watchman for the defendants to close the gate was necessary only to show that he was not a trespasser in being “about to close it,” but was where he had the right to be. It was entirely immaterial whether his wages were paid by a private agency, which furnished a watchman for the defendants, or by the defendants themselves. In our opinion the evidence presented tended to show that the further allegation of the declaration that the plaintiff was “in the employ” of the defendant was true in the legal sense, but as in any case we think it was surplusage and immaterial so far as stating a cause of action was concerned, it is not necessary to discuss it nor to cite and insist on cases which justify the statement of the Supreme Court of the United States in Standard Oil Co. v. Anderson, 212 U. S. 215, that when 'one person furnishes another with men to do work “and places them under his exclusive control in the performance of it, those men become pro foac vice the servants of him to whom they are furnished.”

If our view is correct, then it follows that no amendment was necessary to prevent any material variance between the proof and the declaration, and it also follows that if the plaintiff preferred to do so, after the proof was in, he should have been-allowed to amend his declaration by eliminating the allegation of “employment” by the defendants or to file the additional count he desired. No new or different cause of action would have been presented by this.

It is argued also, however, that even if the view we have above indicated is correct, the peremptory instruction should nevertheless have been given, as the evidence offered for the plaintiff itself proved defenses arising from the rules concerning assumption of risk, contributory negligence and fellow-servants, which forbade recovery.

We think the questions springing from these doctrines were all, under the evidence produced, questions for the jury. The evidence tended to show that the plaintiff was acting under express orders when he was injured. But we forbear, for reasons before suggested, to elaborate upon matters which we think should properly be thoroughly investigated in the trial court. It is sufficient to say we do not think the plaintiff was afforded a fair opportunity for the enforcement of such rights as he may have in this matter, if he has any, and the judgment is consequently reversed and the cause remanded.

Reversed and remanded,


text:
    Leo S. Maremont, Appellee, v. Old Colony Life Insurance Company et al., Appellants.
    Gen. No. 19,857.
    1. Corporations, § 178

      —right to inspect books of corporation. The right of a stockholder under section 13 of the Corporation Act, J. & A. ¶ 2430, to examine the records and books of account of the corporation, cannot be denied by the corporation on the ground that he has an unlawful or improper purpose for inspecting them.
    2. Corporations, § 178

      —books which stockholder has right to inspect. Stock registers and stock transfer books of a corporation held to be a part of “the records of the corporation,” within the meaning of section 13 of the Corporation Act, J. & A. ¶ 2430, which gives stockholders the right to examine the records and books of account of the corporation.
    Appeal from the Superior Court of Cook county; the Hon. Denis E. Sullivan, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Botsford & McCarthy and L. R. Atkins, for appellants ; George A. Chritton, of counsel.
    Blum, Wolfsohn & Blum, for appellee.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

The petitioner below and appellee in this court applied by properly drawn and filed petition to the Superior Court of Cook county for a writ of mandamus to compel the Old Colony Life Insurance Company, an Illinois corporation, and H. G. Austin, its president, and Joseph McGauley, its secretary (who were made defendants to the petition and are appellants here), to allow him, the petitioner, as a stockholder of the Company, by himself or his attorney, to examine the records and books of account of the Old Colony Life Insurance Company at all reasonable times. The defendants answered admitting that Leo S. Maremont was a stockholder, and among other denials and allegations made the following paragraph a part of their answer. For the purpose of this opinion it may be considered to contain expressly or by implication the entire defense of the appellants.

“8. The defendants aver that the said W. M. LeClear” (the petitioner’s representative and agent) “demanded that he be permitted to examine the list of stockholders together with their addresses and stock holdings for the purpose of making a copy of and taking same away with him from the office of the defendant corporation, and that'these defendants refused to permit him to examine said list. That said W. M. LeClear did not demand permission to examine. said list for any lawful or proper purpose, but for the purpose of furnishing to the petitioner herein such list to be used in the furtherance of proposed litigation, and so that the said petitioner might solicit said stockholders to purchase his shares of stock in the defendant corporation, and for other unlawful and improper purposes. ’ ’

The petitioner filed a general demurrer to the answer., which was sustained by the court, and as the defendants elected to stand by their answer, the court on July 18, 1913, ordered a peremptory writ of mandamus to issue commanding the Old Colony Life Insurance Company, H. G. Austin and Joseph McGauley and each of them to permit the said petitioner or his duly authorized agent to examine the corporate records and books of account of the defendant, the Old Colony' Life Insurance Company, .during business, hours on any busines day upon request made by the petitioner, Leo S. Maremont, or by his duly authorized agent. From that order the defendants have appealed to this court.

We do not see how the court could have done otherwise under the doctrine distinctly laid down by our Supreme Court in Venner v. Chicago City Ry. Co., 246 Ill. 170, in construing section 13 of “The Corporation Act,” approved April 18, 1872, that every stockholder in a stock corporation “shall have the right at all reasonable times, by himself or by his attorney, to examine the records and books of account of the corporation. ’ ’

In Venner v. Chicago City Ry. Co., supra, where the exact question was whether a corporation organized under a special charter was subject to the prolusions of the statute or only to the common-law rights of stockholders with reference to access to the books and records of the corporation, the Court said:

“There is a well recognized distinction between the right of a stockholder to inspect the books and papers of a corporation under the common law and an unlimited right given by statute. Under the former the examination can only be compelled where the stockholder asks it in good faith and for reasons connected with his rights as a stockholder. (Citing cases.) Where the right is conferred by statute in absolute terms, the purpose or motive of a stockholder in making the demand for an inspection is not material and he cannot be required to state his reasons therefor. (Thompson on Corporations, 2nd ed., sec. 4516.) The weight of American authority is to the effect that where the right is statutory the stockholder need not aver or show the object of his inspection, and it is no defense under a statute granting the absolute right to inspection to allege improper purposes or that the petitioner desires the information for the purpose of injuring the business of the corporation. A clear legal right given by a statute cannot be defeated by showing an improper motive. If this were so, the stockholder would be driven from a certain definite right given him by the statute, to the realm of uncertainty and speculation.”

The appellants maintain that this language is not binding on us because it is obiter dictum. If it is a dictum it is a “judicial dictum,” as the same is defined in Law v. Grommes, 158 Ill. 492-494, and we must leave it to the tribunal which declared the doctrine to modify or limit it, if it chooses, in the direction to which appellants maintain the earlier case of Stone v. Kellogg, 165 Ill. 192, points. But we doubt if it will do so. The policy of the State, as expressed in the statute and in the opinion, is in favor of the widest publicity among stockholders concerning corporation affairs.

It is contended on the part of the appellants that the stock registers and stock transfer books of a corporation are not within the statute. They are certainly not “books of account” of the corporation, but they are, in our opinion, a part of “the records of the corporation.”

We think the petition was legally sufficient for its purpose, and that demurrer to the answer carried back to it would not be sustainable.

The order of the Superior Court is therefore affirmed.

Affirmed.


text:
    Sarah Mary Wall, Administratrix, Appellee, v. The Chesapeake and Ohio Railway Company, Appellant.
    Gen. No. 19,884.
    1. Pleading, § 285

      —when refusal to allow filing of additional plea is error. In. an action against a railroad company to recover damages for the death of plaintiff’s intestate alleged to have been caused by striking a bridge while riding on the top of a car, refusal of court to allow the defendant to file an additional plea denying ownership and control of the tracks and train upon which the accident occurred, on the ground that the plea was offered too long after the beginning of the suit and the filing of the declaration, held an abuse of the trial court’s discretion.

      2. Death, § 30

      -—provision as to time of bringing suit construed. A provision in an Ohio statute requiring a suit for wrongful death to he brought within two years, held not to be a condition precedent but a limitation, and subject to the provisions of a general limitation law of said State, providing that if an action is commenced with due time and plaintiff fails in the suit other than on the merits, he may commence a new suit within one year thereafter.
    3. Dismissal, nonsuit and discontinuance, § 28

      —what does not constitute an involuntary nonsuit. Where a cause was removed to the Federal Court and that court quashed the process served upon defendant, the fact that the plaintiff consented to a dismissal of the suit for want of prosecution, for the reason she did not desire to pursue her litigation in that court, held not to constitute an involuntary nonsuit or amount to an abandonment of the cause of action.
    4. Death, § 15

      -—retroactive effect of statute. Act of 1903, amending section 2 of the “Campbell Act” of Illinois, J. & A. ¶ 6185, rendering unsustainable the further prosecution of suits for death occurring outside this State, held not retroactive in its operation.
    Appeal from the Circuit Court of Cook county; the Hon. Charles H. Bowles, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    Worth E. Caylor, for appellant; Henry C. Starr, of counsel.
    Bulkley, Gray & More, for appellee.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This appeal is from a judgment of the Circuit Court of Cook county for six thousand dollars entered August 27, 1913, against the defendant in that court and appellant in this, the Chesapeake and Ohio Railway Company, in favor of the plaintiff in that court and appellee in this, Sarah Mary Wall, who sued as administratrix of the estate of Edward Wall, for the death of said Wall, caused, as she maintained, by the fault and negligence of the defendant Railway Company.

As the cause must be disposed of here on a question which does not involve the details of the occurrence by which the plaintiff’s intestate lost his life, nor his alleged contributory negligence in connection therewith, it is only necessary -to say concerning the accident that he was fatally injured by striking a bridge in Cincinnati, Ohio, under which a cattle car on the top of which he was riding was passing. The accident occurred May 24, 1896, and the victim of it, Edward Wall, died May 25, 1896. We think that the question of the alleged negligence of whoever was responsible for the operation of the train in question and the question of the contributory negligence of the plaintiff’s intestate were for the jury, and will be so if the cause is again tried.

A preliminary question, however, that must be decided, is whether the defendant in this suit was responsible for the operation of the train.

The cause was tried before a jury in the court below, who returned a verdict for the plaintiff, on which the judgment appealed from was rendered. The trial began July 9, 1913. On June 2, 1913, the defendant Company moved the court for leave to file an additional plea. Its pleas then on file were the general issue of not .guilty, and certain pleas intended to set up a limitation as to the time of commencing a suit under the “Campbell Act” of Ohio, which would defeat the present action. The additional plea which it asked leave to file' alleged that:'

“The said defendant, before and at the time of the committing of the * * * supposed grievances * * * laid to its charge, * * * in the * * * declaration * * * did not own, operate or control any railway in the City of Cincinnati and State of Ohio, and did not own, operate or control the engine, car or train of cars on which Edward Wall was riding at the time of the alleged injuries complained of, but that the alleged injuries, if any, resulting to the said Edward Wall, as complained of in the plaintiff’s declaration, resulted to the said Edward Wall while said Edward Wall was riding in the City of Cincinnati, State of Ohio, on the 24th day of May, 1896, on the top of a freight car under the control and operation of a railroad company, a common carrier, called ‘The Covington & Cincinnati Elevated Railroad & Transfer & Bridge Company;’ and that according to the laws of the State of Ohio in force and effect at the time of the said supposed grievances, the plaintiff cannot recover damages from or against it, the defendant, for any injury, or injuries, whatsoever when such injury or injuries were not caused by it, the defendant.”

Leave to file this plea was denied, on the plaintiff’s contention that under the law of the State of Illinois it was offered too long after the beginning of the suit and the filing of the declaration. To this ruling of the court the defendant excepted, maintaining its right to file said additional plea under the law of Illinois as it had been declared, and contending also that, in any event (however the law had been declared in Illinois), as the cause was based on the statutes of the State of Ohio and under the laws of Ohio the defendant would have a right to file the said plea, the court’s denial of leave to file it was a denial to the defendant of its rights under the fourteenth amendment to the Constitution of the United States and under section 1 of article 4 of that Constitution.

On the trial evidence was offered with the expressed intention of proving the matters alleged in this tendered additional plea. It was excluded on the ground that it was incompetent under the pleadings as they stood, to which again the defendant excepted, maintaining its right to have the benefit of this tendered evidence on the same constitutional grounds which it had asserted gave it a right to file its proposed additional plea. The court, after excluding this evidence, instructed the jury that:

“It must be considered and taken as an admitted. and established fact that the defendant railway company .owned, possessed, operated and controlled the railroad and railway train at the time and place in question that this accident occurred.”

It is not necessary for us to express an opinion on the constitutional question raised nor on the question whether, considering the doctrine laid down by the Supreme Court of Illinois in Chicago Union Traction Co. v. Jerka, 227 Ill. 95, and similar cases, the evidence offered was admissible under the pleadings as they stood, because we are clearly of the opinion that the denial of leave to file the additional plea before mentioned was an abuse of discretion and erroneous. We see no material difference between this case and that of Clark v. Wisconsin Central Ry. Co., 261 Ill. 407, in which case denial of leave to file such an additional plea more than two years after the plea of the general issue had been filed, and in the midst of the trial was held to have been an abuse of discretion.

To make the contentions of the respective parties on this question clearer and also because there are other questions of law on which we think it desirable to express our opinion, inasmuch as another trial of the cause is probable, it may be well to give chronologically a history of the proceedings in the litigation resulting from this accident.

As we have stated, the accident happened in Cincinnati, Ohio, May 24, 1896. Mr. Wall died May 25, 1896. March 29, 1898, the plaintiff herein began an action in the Superior Court of Cook county, Illinois, against the defendant herein for damages for the death of her intestate. April 22, 1898, she filed her declaration, alleging among other things that Edward Wall on May 23, 1896, took charge of certain cars of live stock to be transported from Chicago, Illinois, to Newport News in Virginia; that the cars were to be hauled by the Cleveland, Cincinnati, Chicago and St. Louis Railway from Chicago to Cincinnati, and by the defendant, the Chesapeake and Ohio Railway Company, from Cincinnati to Newport News; that the defendant did undertake to and did transport over its road from Cincinnati to Newport News the said carloads of live stock; that when the said cars of live stock and said train had arrived at Cincinnati, the said cars of live stock were turned over to the servants of the defendant and taken in charge by them, and were attached to a locomotive engine of the defendant to be transported from Cincinnati to Newport News, and that it became the duty of the defendant to attach to said train a safe place for Wall to ride; that after the said cars had been taken in charge by the defendant, the tracks used by the defendant over which said train was being hauled passed under certain street bridges or viaducts; that said bridges and said railroad over which said train was being hauled by the said defendant Company were so constructed that not sufficient space remained between the top of said cars and said bridges for persons on top of said cars to safely pass thereunder; that “while said train, of cars was being so hauled by the defendant,” Wall was so injured that he died, and that the defendant was negligent in not furnishing him a safe place to ride and in failing to warn him of the danger he incurred in riding as he did. The declaration also contained this averment:

“Plaintiff further avers that the said injuries causing the death of the said Edward Wall occurred in, to-wit, the City of Cincinnati and State of Ohio, to-wit, in the County aforesaid, and that under and by virtue of the Revised Statutes of the State of Ohio, Section 6134, it is provided among other things that whenever the death of a person shall be caused by the wrongful act, neglect or default of another and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which or person who would have been liable if death had not ensued, shall be liable for damages notwithstanding the death of the person injured, etc.; and Section 6135 of the Revised Statutes of the State of Ohio among other things provides that in every such action the jury may give such damages, not to exceed in any case $10,000, as they may think proportioned to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.”

The defendant presented to the Superior Court of Cook county practically immediately and without pleading to the declaration (the order, although the date is not otherwise shown, was made during the May term of the Superior Court in 1896), a motion, petition and bond for the removal of the cause to the United States Circuit Court for the Northern District of Illinois, and the case was transferred to that court, where the defendant “appearing solely for the purpose of the motion” moved to quash the return of the sheriff of Cook county upon the summons issued from the Superior Court.of Cook county. The motion was allowed and the return of the sheriff “quashed and set aside.” The order of the United States Circuit Court then proceeds:

“It is further ordered and adjudged that this court is as yet without jurisdiction of the person of said defendant and said plaintiff by her attorneys having announced in open court that it is not her intention to seek further process against said defendant in said cause in this court and consenting that said cause be dismissed out of this court for want of prosecution, it is accordingly ordered and adjudged that said cause be and the same is hereby dismissed for want of service ; all errors arising upon that portion of this order subsequent to quashing the service being in open court waived.”

This order was entered by the United States Circuit Court on November 28, 1898, nunc pro tunc as of October 3, 1898.

It is stated in the briefs of both parties and appears . by the report of the cause, Wall v. Chesapeake & O. Ry.Co., 37 C. C. A. 129, 95 Fed. 398, that from this order plaintiff appealed to the United States Court of Appeals for the Seventh Circuit, where the court (by a divided court) held that the service (which was on the Northwestern passenger agent of the corporation, found in Cook county) was not sufficient and affirmed the order of the Circuit Court, dismissing the suit. This decision was rendered on June 6, 1899.

June 8, 1899, the plaintiff began the present suit in the Circuit Court of Cook county, filing its declaration on the same day. The service of summons was made on an agent of the corporation and apparently was not this time challenged. An amended declaration in twelve counts was filed January 5, 1900. It contained, among other allegations, those we have already mentioned as in the declaration filed April 22, 1898, in the Superior Court, and also, in some of the counts, allegations that under the law of Ohio actions such as this under the ‘‘Campbell Act” of that State shall be commenced within two years after the death of the person whose death is the cause of the action, provided that:

“If in an action commenced or attempted to be commenced in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has at the date of such reversal or failure expired, the plaintiff, or, if he die and the cause of action survive, his representatives, may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant;” and averments concerning the proceedings in the former suit and their final result.

To this declaration the defendant demurred generally January 9, 1900. This demurrer was sustained by the Circuit Court January 12, 1900. The plaintiff elected to stand by her declaration and appealed to this court, which affirmed the judgment on April 4, 1902. The plaintiff sued out a writ of error from the Supreme Court, which December 16,1902, reversed the judgments of both the Appellate and Circuit Courts and remanded the cause to the latter court.

The questions raised and decided in this appeal and the writ of error, as reference to the opinions in the Appellate and Supreme Courts will show, was whether the declaration did not show on its face that the suit was brought after the time when the statute of Ohio (or of Illinois) allowed it, and was not therefore obnoxious to demurrer. Wall v. Chesapeake & O. Ry. Co., 101 Ill. App. 431; Wall v. Chesapeake & O. Ry. Co., 200 Ill. 66.

The Supreme Court in its opinion said:

“From the face of the declaration it appears that more than two years elapsed from the time of the injury to the bringing of the suit, and it is insisted by defendant in error that therefore the action could not be sustained, and hence the defense of the Statute of Limitations could be made by demurrer. * * *
“Counsel concede that under our practice the bar of the Statute of Limitations cannot be availed of by demurrer, but, on the contrary, admit that the statute must be pleaded, for the reason that when pleaded the plaintiff is thereby afforded an opportunity of replying that the case is within some exception to the statute; but it is insisted that the bringing of the action within two years after the date of the injury is a condition precedent, and not a limitation. This contention is not well taken. The bringing of the action within two years may or may not be a condition precedent upon which the plaintiff can recover. Bach case must depend upon its peculiar facts, and the plaintiff, as before said, should be given an opportunity to set up those facts if they form an exception to the statute. * * *
“We think the trial court, for the reasons stated, erred in sustaining the general demurrer to the plaintiff ’s declaration. ’ ’

The Supreme Court in its opinion, however, stated that the counts of the declaration which alleged matter in avoidance of the limitation statute were not in accordance with the proper rules of pleading and would have been obnoxious to special demurrer. January 29, 1903, the cause was redocketed in the Circuit Court, and February 7, 1903, the defendant filed to the amended declaration of the plaintiff filed January 5, 1900, a plea of the general issue—not guilty—and certain other pleas, asserting that the action could not be sustained because Wall’s death occurred more than two years prior to the commencement of the suit.

The plaintiff filed a similiter to the plea of the general issue, but, upon the pleas setting up the limitation to the action, further pleading ensued which did not end until June 16, 1906, when it came to a conclusion by defendant’s electing to stand by a rejoinder, to which a special demurrer had been filed and sustained.

The question mooted in these pleadings was, when analyzed, whether the provision of the Ohio statute (the Campbell Act), limiting to two years from the death the time within which the action can be brought, is “a condition precedent” to the right to recover for such a death or a statute of limitation. If it be “a condition precedent” it is urged that the provision of the General Limitation Law of Ohio that: in this court, we think it proper here to declare our opinion on it for the guidance of the court in another trial if it should take place. In our opinion the rulings of the court below on the pleadings involved were correct. If there were no other reason for so holding we should feel compelled to follow the opinion of the Supreme Court in this very case, Wall v. Chesapeake & O. R. Co., 200 Ill. 66, where, as we read the opinion, the court, by deciding that “the bringing of the action may or may not be a condition precedent upon which the plaintiff can recover,” it negatived the contention in this regard on which the defendant relies. This decision must outweigh with us the opinions of the Appellate Court in Lake Shore & M. S. Ry. Co. v. Dylinski, 67 Ill. App. 114, and Peacock v. Churchill, 38 Ill. App. 634, if they are to be considered as holding to the contrary. They are in no event authoritative. But we think there are other reasons for our holding. The case of Meisse v. McCoy’s Adm’r, 17 Ohio St. 225, if there is to be considered a contrariety in the decisions in Ohio upon the question, is on analysis more directly in point than the other Ohio cases cited by the defendant, and we do not consider it overruled by them. To the same effect are some of the conflicting decisions in other States.

“If in an action commenced or attempted to be commenced in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has at the date of such reversal or failure expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date,” does not apply to and indeed has nothing to do with the “Campbell Act” of Ohio, under which this suit is brought. As the defendant has preserved this point for decision in this court by standing by its demurrer to the plaintiff’s replication to the defendant’s second plea, and by standing by its rejoinder to the plaintiff’s replication to the defendant’s amended third plea, and the question has been argued at length by both parties

Nor do we assent to the defendant’s position that the laws of Ohio and Illinois allowing an action in which the plaintiff is involuntarily nonsuited or fails without an adjudication upon the merits, to be recommenced within a year from such failure without reference to the statutes of limitation, are without applicability in this case because of the consent of the plaintiff to a dismissal of the cause in the U. S. Circuit Court.

If the plaintiff had voluntarily withdrawn her case when it reached the United States Circuit Court by removal, the point would have been well taken. Koch v. Sheppard, 223 Ill. 172. She did not. The service of the writ was quashed and the court declared itself without jurisdiction of the cause. That decision was energetically contested by the plaintiff so long as there was hope of reversing it. We think the essential purport of her announcement was recited in the order of the United States Circuit Court. It appears in the record to be only that she did not purpose to pursue her litigation in that court (which was not of her choosing) in ease she was obliged to bring the defendant again into court by the quashing against her protest and contention of a service which she believed to be good. The waiver of errors subsequent to the quashing of the service and the consent to an immediate dismissal for want of prosecution were evidently only to make possible at once a final adverse judgment, not acquiesced in, in order to expedite a review thereof. We do not think it was an involuntary non-suit nor an equivalent thereof, nor that it justifies the assertion of defendant’s reply briefs that: “The plaintiff relied on the service obtained in the first suit and plainly intended that if that service was not good that she-consented to and did abandon the cause of action.”

We think that Boyce v.. Snow, 187 Ill. 181, sustains the plaintiff’s position in this matter.

The defendant also, by asking a peremptory instruction for the defendant, has saved the point and has argued in this court that the Act of the General Assembly of Illinois approved May 13, 1903, amending the “Campbell Act” of Illinois, rendered unsustainable after July 1, 1903, the further prosecution of this action brought for a death occurring outside of this State. On this point it is only necessary to say that until advised to the contrary by the Supreme Court of Dlinois, we- shall adhere to the view of the law set forth in Brennan v. Electrical Installation Co., 120 Ill. App. 461 (criticised by defendant’s counsel), and hold that the amending statute in question was not retrospective in its operation. The Circuit Court committed no error in ruling adversely to the contention of the defendant in this regard. But for refusing to allow the filing of the additional plea denying the ownership and control of the tracks and train on which the death of Wall occurred, we feel compelled, as we have said, to reverse the judgment and remand the cause.

If the allegations of the plea are true they are a defense to the suit which the defendant ought, prima facie, certainly, to be allowed to make. For reasons of public policy and in furtherance of justice, as it is said, the logical rule of common-law pleading, by which the general issue denies every material allegation of the declaration in a case-like this, has in this State- been departed from to a considerable extent, and reasonable notice by pleading must be given a plaintiff if denial is to be made of ownership and control of “the property or instrumentalities which have caused the injury.” The Chicago Union Traction Co. v. Jerka, 227 Ill. 95, and similar cases.

The plaintiff’s contention in the present case would seem to be that this rule requires notification by any defendant to the plaintiff of his denial of ownership and control of the instrumentalities involved at such an early period in the progress of the cause as not only to give the plaintiff time to investigate the question before the trial against such defendant, but at such time that he can find the actual owner before the time of limitation has expired.

We doubt very much if there has been any doctrine of this sort authoritatively announced. It would seem to place upon any defendant selected by the plaintiff in the first instance the duty of aiding the plaintiff in his cause somewhat beyond what mere good faith requires, and at least the obligation to such action on the part of the defendant would depend on circumstances.

But in this case this rule, if it existed, could not apply. It is true that a declaration was filed in a cause prior to this one, founded on the same cause of action, before the two years allowed by the statute had expired. But it was only a month before that time; and certainly the defendant was not obliged to plead at all until it had exercised its right of removal and had tested, as it did, successfully the validity of the purported service upon it.

■ When the present suit was commenced more than two years had passed since the death, and, as against a new and different defendant, a suit for the damages resulting from it could not be sustained.

It seems to us that this is a stronger case for the defendant’s contention than was that of Clark v. Wisconsin Cent. Ry. Co., supra, and we think we may say, as the Supreme Court said in that case: “To have granted the leave” (to file the additional plea) “would not have involved any question of the Statute of Limitations, and so far as we can see would not have prejudiced plaintiff;” and: “If it” (the defendant) “in good faith sought to make such defenses, the ends of justice required that it be permitted to file the plea to enable it to do so. Assuming, as the court held, that the proof offered was inadmissible under the plea of not guilty, we think the error in denying application for leave to file the special plea requires a reversal of the judgment.” Accordingly the judgment is reversed and the cause remanded to the Circuit Court.

Reversed and remanded.


text:
    James F. Carson, Appellee, v. City of Chicago, Appellant.
    Gen. No. 19,913.
    1. Mandamus, § 126

      —character of pleadings. When the artificial course of pleading in mandamus suits is followed the petitioner files pleas to defendant’s answer, the defendant may reply to the pleas, and a rejoinder to the replication is a pleading of the petitioner or plaintiff.
    2. Mandamus, § 6

      —necessity of showing clear right. A writ of mandamus will not he awarded in a doubtful case, but only where the right of the relator or petitioner is clear and undeniable.
    3. Civil service, § 27

      —when mandamus will not he awarded. A writ of mandamus will not be awarded to compel a city to appoint petitioner to a civil service position where it would disarrange the public service.
    4. Civil service, § 27

      —when awarding mandamus to compel appointment to position erroneous. The awarding of a writ of mandamus to compel a city to appoint petitioner to a civil service position of superintendent of horses, held erroneous for the reason that the right of the petitioner was not clear and undeniable and the granting of the writ would disarrange the public service, the facts showing that petitioner had been appointed as assistant superintendent of horses and was laid off and that he claimed the right to appointment as superintendent as being the next on the eligible list to fill a vacancy in the office of superintendent under a rule of the civil service commission, providing that officers laid off shall be reinstated according to seniority in the positions formerly held by them or to positions of the same character in the same grade, and it appearing that under such rule the office of superintendent was not a position formerly held by him or of the same grade, and it also -appearing that under another rule he had exhausted his rights by having accepted the position of assistant superintendent.
    Appeal from the Circuit Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in this court at the October term, 1913.
    Reversed and remanded.
    Opinion filed October 13, 1914.
    William H. Sexton, for appellant; Joseph F. Grossman and John E. Foster, of counsel.
    A. D. Gash, for appellee.

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

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court of Cook county entered July 19, 1913, awarding a mandamus to the appellee, Carson, directing the appellant, the City of Chicago, “forthwith to appoint said Carson to the position or employment of superintendent of horses of the City of Chicago made vacant by the death of Adam. S. Barber on or about December 11, 1911, to the end that he may at once enter upon the performance of his duties as superintendent of horses and continue in the performance thereof and receive salary therefor subject to the laws, rules and ordinances pertaining to said position or employment. of superintendent of horses of the department of police of the City of Chicago.”

The pleadings in the case are somewhat elaborate and confused and they repeat the irregularities found in much of the pleading in mandamus suits in Illinois, where the proper special pleading to this common-law action of mandamus seems to be widely ignored.

We shall not therefore further describe them, but merely state the facts which the final demurrer in the case admitted. It was a demurrer to a pleading called the defendant’s rejoinder, although when the artificial course of pleading in mandamus suits is followed the. petitioner files pleas to the defendant’s answer, the defendant may reply to those pleas, and a rejoinder to such replication is a pleading of the petitioner or plaintiff.-

The demurrer in question was sustained by the court, and the defendant standing by its “rejoinder,” the mandamus was ordered.

The facts admitted, as we understand them, are that Carson, with one Barber and one Hickey and one Strauss and others, was examined December 24, 1898, by the Civil Service Commission of the City of Chicago, pursuant to an order of said Commission directing the secretary to call examinations for the positions of superintendent of horses and assistants.

There was then in force a classification of the offices and places in the Civil Service of the City of Chicago in classes, divisions and grades. The division in which the position of superintendent of horses fell was division L, the class was class A, and the grade (based entirely on compensation) was the fourth grade. The division in which the position of assistant superintendent of horses fell was L and the class A, but the grade was the fifth grade. There was also in force the following rule promulgated by the Civil Service Commission:

“5. Grouping of Grades. Any two or more of the grades herein established in any division may be grouped together and treated as one grade for the purpose of facilitating examinations for original entrance to the service or for promotion therein.”
The Civil Service Commissioners November 15, 1898, by order entered in the minutes of the Commission, directed their secretary to “call examinations for the following positions and to advertise the same according to law; * * * superintendent of horses and assistants.”

Proper notice by advertisement was made, in which it was stated:

“The Civil Service Commission of Chicago will hold original entrance examinations of applicants * * * for the following positions: * * * Superintendent and assistant superintendent of horses (Police Department) , Class A, Division L, on Saturday, December 24, 1898. * * * Applications filed for either superintendent or assistant superintendent will entitle the applicants to enter both examinations. The one attaining the highest average shall be eligible for certification as superintendent; those next in rank to be eligible for assistant superintendents.”

On the examination Barber passed at the head of the list and was appointed to the position of superintendent of horses. Strauss passed second but either did not accept any position, or having been appointed assistant superintendent of horses afterwards resigned. Hickey stood third and the petitioner in this case, James P. Carson, fourth.

Hp to January 30, 1901, the petitioner had not been certified for any position, no requisition on the eligible list for assistant superintendents having apparently been made. On that day the Civil Service Commissioners adopted a rule confirming, as they stated, a previous ruling, that a man who had taken an examination covering more than one grade had exhausted his rights when he accepted any position, no matter in what grade. April 11, 1901, a requisition having been made by the superintendent of police for one or more assistant superintendents of horses, either Hickey and the petitioner were both certified and appointed, or Hickey having been theretofore certified and appointed, the petitioner Carson was alone on that date certified and appointed. In either event Barber was serving as superintendent of horses and Hickey and the petitioner were serving as assistant superintendents of horses from April 11, 1901, until March 23, 1908. In the City appropriation bill for 1908 the city council did not appropriate for any compensation for assistant superintendents of horses, and on March 23, 1908, Hickey and the petitioner were laid off the service of the City. Hickey obtained employment as patrolman on the police force and still occupies that position. Barber continued to be superintendent of horses—compensation for that position being annually to the present time appropriated for—-until December 11, 1911, when he died. January 12, 1912, the petitioner made a demand upon the Civil Service Commission of the City of Chicago to certify him to the superintendent of police for the position of superintendent of horses by virtue, as- his pleadings indicate, of his having passed fourth on the -list in the examination before described of December 24, 1898, and Strauss and Hickey having waived or forfeited their rights to precedence, and because there were in. force and had been since May 1, 1909, the following sections of rule 10 of the Civil Service Commission:

“Section 2. Lay-Off. Whenever it becomes necessary in any bureau through lack of work or funds, ofor other cause, to reduce the force in any employment, the person working in such bureau who was last certified for such employment shall be the first laid off. * * *
“Section 3. Reinstatement. Upon requisition to fill vacancies officers or employes laid off as provided in section 2 of this rule shall be reinstated, according to seniority, in the positions formerly held by them, or to positions of the same character in the same grade.”

The demand for certification and appointment having been refused, Carson brought this suit for a mandamus oh January 19, 1912, with the result previously mentioned. The pleadings of the defendant allege that pending the suit on May 8, 1912, the Civil Service Commission ordered an examination for the position of superintendent of horses in the police department to fill the vacancy caused by the death of Barber; that proper notice was given and the examination held; that of eighteen applicants eight persons passed and one of them was appointed to the position by the superintendent of police.

The question before us is whether, assuming the matters heretofore recited to be true, they furnish by themselves justification for the drastic and peremptory order of the Circuit Court on, the City of Chicago forthwith to appoint Carson superintendent of horses and allow him to enter on his duties. We do not think they do.

In the first place, the writ of mandamus will not be awarded in a doubtful case, but only where the right the relator or petitioner “is clear and undeniable.” People ex rel. Brownrigg v. Brentano, 259 Ill. 359; People ex rel. Molchan v. City Council City of Streator, 258 Ill. 273.

In Kenneally v. City of Chicago, 220 Ill. 485, in which case a mandamus involving the Civil Service of the City was demanded, the Supreme Court quoting approvingly from prior cases, said: “The court exorcises a discretion in granting or refusing the writ, and, if the right be doubtful, it will be refused. It has been held that the writ will be refused where the granting of it will disarrange the public service.”

We think both that the final granting of this writ, assuming the statements of the pleadings to be true, would disarrange the public service and that the right of the petitioner is more than doubtful.

• Counsel for petitioner in his. argument asserts that the court below held that the refusal of appellant to install appellee in the office of superintendent of horses "amounted to a direct and positive violation of the Civil Service Act” and “a subterfuge to avoid the beneficial provisions of that Act.”

We do not take that view, and we hold that exercise of our discretion is demanded in this appeal, as was that of the trial court below. It is not thought necessary by us to enter into a detailed analysis of all the factors determining bur conclusion. Some of them are these: In respect to the original examination it is plain that whether or not the rules and procedure of the Civil Service Commission were reasonable or regular in providing for a grouping of the examinations for the different positions of superintendent of horses and assistant superintendent of horses, the commission did so group them, and advertised and conducted them on the theory that the examination was a double one, to be viewed in a double aspect, and to result in separate appointments to separate positions, which appointments were subsequently made and accepted. The petitioner accepted the position of assistant superintendent and did so while a rule of the Civil Service Commission was in force providing that by such acceptance he had exhausted his rights under the examination.

Again there was a rule of the Civil Service Commission in force at the time the vacancy occurred, appointment to which the petitioner demands, providing that all eligible lists resulting from any examination should be cancelled in two years and a day from the date of the posting thereof. It was a reasonable rule in our opinion and in any event was made under an express power granted to the Commission by the Legislature. Its existence is alleged in the pleadings of the defendant. It was more than twelve years after the posting of the eligible list on which Carson’s name appeared before the vacancy in question occurred.

When the order for the mandamus was made the place had been filled by another than the petitioner, certified to the superintendent of police by the Civil Service Commission as the result of an examination regularly called for the position of superintendent of horses. Again, all appointments under the Civil Service Act are probationary for a period in. the discretion of the Commission.

To hold that under these circumstances the granting of the writ of mandamus, if it depended on the existence and nature of the eligible list which was the outcome of the examination of December 24, 1898, was the enforcement of a clear and undoubted right and would not “disarrange the public service,” would seem to us manifest error.

The main reliance of the petitioner, however, is not upon the results of the examination of December 24, 1898, or on the eligible list which was the outcome thereof, but upon the rules of the Civil Service Commission adopted May 1, 1909, as sections 2 and 3 of rule 10, and hereinbefore set forth. They are on lay-off and reinstatement, and the provision upon which the petitioner lays emphasis is that employees laid off through lack of funds shall be reinstated (upon requisition to fill vacancies) according to seniority, in the positions formerly held by them or to positions of the same character in the same grade.

The contention of petitioner is that he was laid off from the position of assistant superintendent of horses through lack of funds; that a requisition was made to fill a vacancy not in the position formerly held by him, hut in “a position of the same character in the same grade.”

The contention of the City in this regard is that the position of superintendent of horses is not “a position of the same character in the same grade” as that of assistant superintendent of horses, and that the rule does not apply.

Under the common use of words the positions of a superintendent and of an assistant superintendent, of horses or of anything else, are of the same character but certainly not of the same grade. The rules of the Civil Service Commission have, however, laid down a technical meaning for the word “grade,” and this therefore must be looked upon as of chief importance in determining the question whether the positions are in the “same grade.”

As the rules of the Civil Service Commission stood at the time of the examination of the petitioner, at the time of his certification and appointment and at the time he was laid off for lack of funds, there could be no doubt that it had declared the positions of the superintendent of horses and assistant' superintendent of horses to be of different grades.

The rule then was, that all positions compensated by more than $1,400 and less than $1,600, as was that of the superintendent of horses, were of the “fifth grade,” and all those compensated by more than $1,200 and less than $1,400, as was that of assistant superintendent of horses, were of the “fourth grade.”

In October, 1907, the Supreme Court of Illinois, in a case in which the question was whether for the purposes of a competitive promotional examination the “rank or grade” of ward superintendent was next below that of assistant superintendent of streets in charge of street and alley cleaning, although there were several “grades” between them, based, as those grades were by the rule solely on salary—positions, that is—entirely out of the line of employment or service relating to the care or cleaning of streets,— naturally held that in determining what grade was next lower to another for the purposes of a promotional examination, the next lower grade in the same line of service should be selected; saying that “common sense and the spirit of the Civil Service Law would naturally suggest” this. In speaking of “grades” and the rule of the Commission then in force the Court said:

“In view of the complexity of the service it would probably be next to impossible to devise a reasonable and practicable classification without taking into account the salary carried by the various offices or places. The promotion scheme that enters into the civil service system is based on the idea of a salary .classification. * * * “While a salary basis seems to be an essential element in any system of classification, yet a little reflection will show that any hard and fast rule based exclusively on salary, leaving out of view every other consideration, would be impracticable, and defeat, in many cases, the purposes of the system. * * *
“But, as above pointed out, it is admitted that the ward • superintendents are the next grade below the assistant superintendent of streets in charge of street and alley cleaning, unless the salary test alone is to determine the grade. This, we have sought to show, is not the sole test, but that the salary only determines the grade among those in the same line of employment. * * *
“Our conclusion is, that the ward superintendents, under the law and under the facts of this case, are next in order or grade to assistant superintendent of streets in charge of street and alley cleaning.”

The Civil Service Commission, apparently in order to meet the suggestions of this opinion and to prevent the arising of difficulties like that discussed in the case of People v. Errant, 229 Ill. 56, changed or amended their rules by adding or substituting this clause concerning “grades”:

“Section 5. Grades Based on Duties. The terms of ‘rank’ and ‘grade’ in the civil service act and in these rules shall be considered^ synonymous. Duties shall determine the class of service and division of any particular position.' Except in Division A A (executive service), positions within divisions shall be graded uniformly, according to the authority, responsibility and character of regular duties attaching thereto. The grade of an officer or employe shall not be raised except by examination under these rules.”

April 9, 1910, the rules were still further amended by adding:

“Division I—Miscellaneous Service. Positions in Division I are graded or ranked respectively according to duties, authority and responsibility in the various departments of the public service to which they are attached and shall be ranked or graded as the commission may determine at the time the positions are classified.”

There is nothing, we think, Q in the opinion in the Errant case, or in the additional, amended or substituted rules, which necessarily makes the grade of assistant superintendent of horses the same as the grade of- superintendent of horses; while according to the natural signification of the words and to the rules in force before May 1, 1909, the two positions are plainly not of the same grade.

The “amended replication” of the petitioner (filed January 31, 1913) to the answer of the defendant, with the intention of bringing the. question at issue under the later rules of the defendant, alleges that: “The petitioner’s duties, authority and responsibility as assistant superintendent of horses were „ the same as were the duties, authority and responsibility of the superintendent of horses”; and then proceeds with a description of those duties.

But the “Rejoinder to the Amended Replication,” which is the particular pleading of which the demurrer of the petitioner that the Circuit Court sustained admits the truth, categorically “denies that the duties, authority and responsibility of the petitioner as assistant superintendent of horses were the same as the duties, authority and responsibility of the superintendent of horses”; and after denying that the petitioner’s specific duties were those attributed to him by the amended replication, sets forth the duties of the superintendent of horses as prescribed by the rules and regulations of the department of police, and asserts that the assistant superintendent of horses has no duties prescribed for him by rule other than performance of such work as the superintendent of horses shall from time to time assign to him. It then proceeds to allege that there were two assistant superintendents of horses; that neither one of them had more authority than the other; that both of them were subordinate in all matters to the superintendent of horses and acted under his direction and performed such duties as he assigned them, and that in no part of the classified service of the City of Chicago, do the rules of the Civil Service Commission make an assistant of the same grade as the employee to whom he is an assistant.

We see no proper ground for sustaining the demurrer to this rejoinder and ordering the mandamus to issue. The judgment of the Circuit Court is reversed and the cause remanded to that court for further proceedings not inconsistent with this opinion, and with instructions to overrule the demurrer to the defendant’s rejoinder.

Reversed and remanded.


text:
    Chicago City Bank and Trust Company and Louis Rathje, Trustee, Appellees, v. Jacob Bremer, Appellant.
    Gen. No. 19,928.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Michael L. McKinley, Judge, presiding. Heard in this court at the October term, 1913.
    Affirmed.
    Opinion filed October 13, 1914.
    Statement of the Case.
    Bill filed by Chicago City Bank and Trust Company and Louis Rathje, trustee, against Jacob Bremer. Helen Bremer (the present wife of Jacob Bremer), Fred Oien and David Pingree, to foreclose a trust deed executed by Jacob Bremer and Anna B. E. Bremer, his former wife, to secure certain promissory notes. The defendants Helen Bremer and Fred Oien were served with summons but failed to appear, and the defendant David- Pingree was not served and never appeared. To reverse the decree awarding the foreclosure, defendant Jacob Bremer appeals.
    The bill contained an allegation that the grantors in the trust deed had conveyed their equity of redemption to Jacob Bremer and that he was in possession of said premises, and that Helen Bremer, Fred C. Oien (a holder of a certificate of sale under the foreclosure of a subsequently recorded encumbrance) and David Pingree had or claimed to have some interest in said premises as judgment creditors or otherwise, “which interest, if any,* accrued subsequent to the lien of said trust deed and are subject thereto.”
    The notes involved a principal note for $3,500 dated July 20, 1905, and payable five years after date to the order of the makers, and ten interest notes each for the sum of $105, due at intervals of six months during the five years, all signed and indorsed in blank by Anna B. E. Bremer and Jacob Bremer. The trust deed in question, of the same date, was signed and acknowledged by the same persons and ran to Louis Rathje in trust to secure certain described notes, with the usual provision of such trust deeds that the legal holder of said notes might foreclose the said deed of trust in case of default in the manner provided- by law. The evidence taken in the cause showed that under date of April 18, 1908, Anna B. E. Bremer (in her own right) and Jacob Bremer (her husband) executed a warranty deed of the land in question to Jacob Bremer, reciting it to be “for and in consideration of the love and affection I have for Jacob Bremer, my husband, and other good, valued (sic) and sufficient consideration, and the further sum of one dollar in hand paid”; that said deed was acknowledged by both parties on April 18th and recorded on April 20, 1908, and that on April 19, 1908, Anna B. E. Bremer died intestate, leaving her surviving Jacob Bremer, her husband, and Katherine Peck and Julia E. Parker, her sisters, her only heirs at law and next of kin.
    Abstract of the Decision.
    1. Mortgages, § 451

      —when heirs or representatives or mortgagor not necessary parties. Where a husband and wife executed a trust deed to secure the payment of notes, and the wife died, but before her death conveyed her interest in the property to the husband, held on bill thereafter filed to foreclose the trust deed that it was unnecessary to make the heirs or representatives of the wife parties, and that the husband was estopped to make such claim for the reason he took the deed, recorded it and took possession of the property.

      Appellant urges as ground for reversal that there is a defect of parties in the cause in which it was rendered; that the cause should not have been referred to a master in chancery; that the master’s acts and report were unauthorized and unjustified in law; that the fees charged by him and allowed were illegal; that his report should not have been confirmed; that the trust deed foreclosed was not connected with the notes described in the decree which the court found it was given to secure; and that the contract as a part of which the trust deed was executed and delivered was usurious and the amount found due by the court was therefore under the law not due.
    Edward Roby, for appellant.
    Rathje & Wesemann, for appellees; Guy Van Schaick, of counsel.

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

   Mr. Presiding Justice Brown

delivered the opinion of the court.

2. Mortgages, § 531 —when proceedings "before master not invalid. Proceeding before a master in a foreclosure proceeding held not to be invalid for the reason. that certain persons made party defendants and personally served with summons were not defaulted before the reference, and that another person made a defendant in the bill was not served and never appeared, it appearing that such parties were made defendants under a general allegation of a supposed but inferior interest and that they were not complaining.

3. Equity, § 396 —right of master to fees. A master is not deprived of his right to fees because under an order of reference instructing him to report his findings as to ultimate facts he also “gave advice” to the court.

4. Mortgages, § 43 —when identity of notes question of fact. On a bill to foreclose a trust deed, held that the question whether the notes produced in evidence were those described in the trust deed was one of fact upon which a finding in the affirmative was warranted, though there was a variance between the recital of the trust deed as to the place of payment of the notes and the actual fact as shown by the notes, and though an accelerating clause in the principal note was not repeated in the recitals of the deed.

5. Usury, § 2 —when provision in note does not render loan usurious. An accelerating clause in the principal note secured by a trust deed making the amount due in case of default in the payment of any of the interest notes, held not to render the loan usurious.