text:
    H. Bailey & Co. v. The Valley National Bank.

      Practice Act — See. 28 — General Issue with Notice — Negotiable Instruments — Denial of Execution of Note — Failure of Consideration — Partnership — Set-off—Attachment—Seroice—Variance — Instructions —NultTiel Corporation.

    1. In an action on two promissory notes'purporting to have been made by the defendants as copartners, and assigned and indorsed to the plaintiffs it is held: That there was no error in striking a notice of set-off from the files, the declaration not having been filed prior to the filing of said notice; that no defense special to one of the defendants was allowable; that there was no error in the refusal of the court to strike the amended affidavit and bond of attachment from the files; that the attachment being against but one of the defendants, he only could assign errors in the attachment proceedings; that the court properly refused to quash the attachment writ on account of the service; that the entry of default on attachment was proper, no notice of an attachment in aid being necessary where there has been service in the original cause; that there was no variance between the dec. laration and the larger note and indorsements thereon; that the plea did not put in issue the indorsements; that the plea of general issue and notice sworn to did not, under Sec. 28 of the Practice Act, put in issue the execution of the note; that evidence of partial failure of consideration was inadmissible under the notice of total failure of consideration; that said evidence was properly excluded although the evidence was not all in; and that the instruction as to the burden of proof that the plaintiff was a corporation was properly refused, as an issue of nul tiel corporation can not be raised by notice under the statute.
    2. The execution of a note can only be denied by plea of non est factum, or non assumpsit verified.
    3. Where the note is made by copartners and the plea of non assumpsit is verified by one partner it is good only as to him.
    4. Where the general issue with notice is substituted for a special plea, the defense must be proved as stated in the notice.

      [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of Kankakee County.
    Statement by Welch, J. Tliis was an action of assumpsit brought by the appellees against the appellants on the 29th of August, 1885, upon two promissory notes; one for the sum of §450 purporting to be executed by the appellants payable to O. H. Queal, and by him assigned to the appellees ; the other for the sum of §1,500 purporting to be executed by the appellants payable to Kate E. Queal and H. S. Towle, adm’rs, etc., by them assigned to John H. Queal, and by him, under the name and style of J. H. Queal & Company, indorsed to the appellees.
    There was service on Thomas C. McCulloch, one of the appellants, on the 2d of September, and on Iliram Bailey, the other appellant, on the 7th of September. On October the 9th the appellants placed on file a notice of set-off; November lltli attachment writ in aid of suit issued; November 21st the appellees filed their declaration with affidavit of merits, together.with astipulation that suit was upon the two promissory notes described in the declaration; December 1st appellants filed motion to quash the attachment writ; December 2d appellees filed motion to strike appellants’ notice of set-off from the files, which motion was allowed, and ap pellants then and there excepted. Appellees were granted leave to amend affidavit and bond for attachment. An amended affidavit and bond in attachment was filed by the appellees. December 9th appellants filed plea of general issue and notice under the statute of the defense relied on verified. Appellee Bailey also filed his motion to strike affidavit for attachment from the files, and the bond filed December 9th for reasons assigned. One was, that the bond had no seal; the court allowed the seal to be affixed to the bond, and overruled appellant Bailey’s motion. Appellants then moved the court to quash the service of attachment writ which was overruled. On January 10, 1888, appellant Bailey having filed no plea to the attachment, as required by the rules of court, was called and defaulted. On April 16th there was a trial, verdict, and judgment for appellees for the sum oí $2,148.90. Motion was made for new trial, motion overruled and appeal taken.
    Messrs. Stephen R. Moore and Harrison Loring for appellants.
    Mr. Daniel H. Paddock, for appellee.
   Welch, J.

In view of the numerous errors assigned we have deemed it iimportant to set out each step taken in the case with particularity as to time. The first point insisted on by counsel for appellant is that the court erred in striking notice of set-off from the files. Under section 28 of the Practice Act The defendant may plead as many matters of fact in several pleas as he may deem necessary to his defense, or may plead the general issue and give notice in writing under file-name of the special matters intended to be relied on for a defense on the trial.”

Section 29th of Act, supra: “ The defendant in any action » brought upon any contract or agreement, either expressed or implied, having claims or demands against the plaintiff in such action, may plead the same or give notice under the general issue, or under the plea of payment.” Section 30, Act, supra i “ When such plea or notice of set-off shall have been interposed, the plaintiff shall not be permitted to dismiss his suit.” When and how can the defendant avail himself of a set-off ? He has one of two methods. Special plea, or filing the general issue and giving notice under it. Appellants adopted neither. At the time of giving notice appellees had not filed their declaration. Ho plea or notice under it could be filed prior to the filing of the declaration.

Section 36 of Practice Act authorizes the plaintiff to file with his declaration an affidavit of merits. When this is done, ' if the defendant is a resident of the county in which the suit is brought, he shall file with his plea an affidavit of merits. An affidavit of merits was filed with the declaration in this case. Counsel for appellant claims tliat this section does not apply to the appellant Bailey; that he was a non-resident. The notice does not purport to be the notice of Bailey, but of both defendants. It is not pretended as a special defense for Bailey. Ho defense special to Bailey could have been allowed.

The claim of the appellee was based on partnership obligation; individual matters could not be brought in as off-sets to such claim. There was no error in striking the notice of set-off from the files.

Counsel for appellant insists the court erred in not striking the amended affidavit and bond of attachment from the files. This is a matter personal to Bailey as the attachment was against him alone. In the motion for new trial this was not made a ground for same, and no motion in arrest of judgment on the attachment was made. And in the errors assigned the only errors are assigned by the appellants. Ho error is assigned by Bailey individually, and only he can take exception to the attachment proceedings. Even conceding that the error had been assigned by Bailey we hold that there was no error in the ruling of the court thereon. Ryan v. .Driscoll, 83 Ill. 415; City of Chicago v. Gage, 95 Ill. 593.

It is also insisted by counsel for appellant that the attachment writ should have been quashed on account of the service, and refers to the first affidavit. This affidavit was amended by order of the court. The property levied on was „ only the interest of H. Bailey. The return shows a levy upon “ all the right, title and estate of Hiram Bailey to the following described property, being the property of H. Bailey & Co.” The amended affidavit charges that Hiram Bailey was, at the time of swearing out the writ, a resident of the State of Florida, and that he had fraudulently conveyed his property to djfeat his creditors. We do not consider this point well taken.

It is also insisted by counsel for appellants that the court erred in entering default against Hiram Bailey on the attachment for the reason that he was not served with the attachment writ, and there was no publication and no appearance by Bailey except as claimed for the purpose of a motion to strike affidavit from files. This was an attachment in aid of a suit at law. Bailey was served with process in that suit on the 7th day of September. Under Sec. 33 of the Attachment Law, Upon the return of attachments issued in aid of actions pending, unless it shall appear- that the defendant or defendants have been served with process in the original cause, notice of the pendency, etc., shall be given as required in cases of original attachment.” 1STo notice was necessary when there had been, as there was in this case, personal service in the original cause.

It is next insisted by counsel for appellant that the court erred in admitting in evidence the note for $1,500. The objection made was that the note was not indorsed to the appellee. The declaration, after describing this note in haee verba and properly setting forth its legal effect, proceeds thus: “ Kate E. Queal and Henry S. Towle, administrators of the estate of B. F. Queal, to whom or to whose order this note was payable, then and there indorsed the same in writing, by the name and style and description of Kate E. Queal and Henry S. Towde, administrators of the estate of B. F. Queal, and then and there ordered and appointed said sum of money mentioned in said promissory note to be paid to John H. Queal or order, and then and there delivered the same so indorsed to the said John H. Queal, and the said John H. Queal, to whom or to whose order the said note then and there became payable, and then and there was payable, then and there in writing indorsed said note in the name, style and description of J. H. Queal & Go., and then and there ordered and appointed said sum of money, mentioned in said promissory note, to be paid to the plaintiff (now appellee), and then and there delivered the same so indorsed to the said plaintiff.”

The indorsement of the note offered in evidence is as follow’s: “Pay John H. Queal or order, Kate E. Queal, Henry S. Towle, administrators of the estate of B. F. Queal.” “ Pay to the Valley national Bank, of Des Moines, Iowa, or order. J. IT. Queal & Go.”

There was no variance between the allegations in the declaration and the note and the indorsements thereon. There was no plea denying the indorsement. The plea was general issue and notice thereunder of special defenses verified.

Section 33 of Practice Act: “¡Noperson shall he permitted to deny, on trial, the execution Or assignment of any instrument in writing, whether sealed or not, upon which any action may have been brought f ,* * unless the person so denying the same shall, if defendant, verify his plea by affidavit.” The indorsement must be put in issue by plea verified. Even the plea of non est factum verified does not put in issue the indorsement. Shipley v. Carroll, 45 Ill. 285; Templeton v. Hayward, 65 Ill. 178 ; Walker v. Krebaum, 67 Ill. 252.

It is further insisted, “ before the notes were introduced in evidence, proof of their execution must be offered.” That under Sec. 28 of Practice Act, supra, the plea of general issue and notice sworn to, put the appellee on proof of the execution of the note. We hold not. The notice under the statute, as we construe it, only applies to cases where affirmative matter is introduced by defendants as a defense' — in other words, confession and evidence.

The statute is in derogation of the common law, and must be strictly construed. We do not understand that the case of Hunt v. Weir, 29 Ill. 83, overrules the case of Burgwin v. Babcock, 11 Ill. 28, but re-affirms the rule as there announced, that the execution of a note can not be denied except by plea of non est factum or non assumpsit, verified. By filing notice instead of plea, the defendant assumes the burden of proof of what the notice alleges; even if it should be conceded, which we do not, that under a notice verified, an issue as to the execution of the notes could have been presented, so as to require proof of their execution.

The notice and affidavit in this case were insufficient. The affidavit as made by the appellant T. Gr. McCulloch, in which he says that defendants’ defense, under their notice filed with the general issue, wherein they set forth that the notes sued on are not their notes nor the notes of said firm of H. Bailey & Co. and that the same were not delivered by the defendants to the payees thereof, is true as therein set forth. By reference to the notice they say they will further show that defendants never delivered said notes or either of them to the said payee nor consented that said Jenks should deliver said notes to them, or in any manner authorized said Jenks or any other person to deliver said notes or either of them to said payees thereof or to any other person. It will he perceived that this notice does not negative the idea that the delivery of the notes was not ratified after their delivery. The affidavit should have been a direct denial of the execution of the notes, or of their ratification after delivery as to the person making the affidavit, McCulloch. He could not testify for Bailey. A plea of non assuvvpsit verified by one partner is good only as to him. Stevenson v. Farnsworth, 7 Ill.; Davis v. Scaritt, 17 Ill. 202.

It is further insisted by counsel for appellant that the court erred in excluding defendants’evidence from the jury. If it should be conceded that the defendants had made proof to the extent as claimed by their counsel, yet the court would have been justified under the law in excluding it.

The rule of law is where a notice of general issue is substituted for a special plea the defense must be proved as stated in the notice. The record discloses a suit on two notes, one for $450 payable to O. H. Queal and assigned to appellee, one of $1,500 payable to Kate E. Queal and H. S. Towle, administrators, and by them assigned to John H. Queal and by him assigned to appellees.

The notice of special defense says that both these notes were delivered in escrow to Jenks for certain shares of stock that never were delivered, and that John H. Queal, the intermediate indorser on the $1,500 note, knew all about it. They will prove also that John H. Queal, to whom said notes were indorsed by the payees, knew these facts when he took said notes; that he paid nothing for said notes, but took the same as a means of carrying out the scheme attempted to be made to defraud these defendants.

There Avas no claim of proof that the note for $450 Avas delivered in escrow to Jenks, or that the same was Avithout consideration.

■ There was no claim of proof that J. H. Queal, the intermediate indorser on the $1,500 note had any knowledge of anything alleged by the appellants in their notice, that they would prove he had or that he" paid no consideration for the note.

The notice as given in this case was a total failure of consideration. It can not be sustained by evidence of partial failure. Burnop v. Cook, 32 Ill. 168. The essential allegation in the notice in this case was a total failure of consideration of the notes, and knowledge thereof to J. H. Queal, the indorser, and that he paid no consideration therefor. There was no evidence as claimed, tending to prove either. Poleman v. Johnson, 84 Ill. 269; Martin v. Chambers, 84 Ill. 579.

It is, however, claimed by counsel for appellant that the court excluded the evidence before the evidence was all in. As we understand from this record there was no claim made or disclosed to the court that they had other evidence by which they could prove the failure of consideration of both notes and knowledge thereof to J. H. Queal, as charged in the notice, and that he paid no consideration therefor.

It is next insisted that the court erred in refusing to give an instruction asked by appellants that the burden of proof was on the appellee to prove that it is a corporation. An issue of mil tiel corporation can not be raised by notice under the statute. It is a negative plea the effect and purport of which is to put the corporation on the proof that it was a corporation defacto or de jure.

The same reason exists as to the necessity of a plea as is given supra, as to the necessity of a plea of non est factum. We are satisfied with the rulings of the court on the other assignment of error. The judgment is affirmed.

Judgment affirmed,


source: Caselaw Access Project

author: Lacey, J.

license: Public Domain

text:
    Michael Byrne v. Alfred I. Hartshorn.

      Sales — Action to Recover for Lumber Alleged to have been Sold to Defendant and Delivered through a Contractor — Evidence—Question for Jury —Instructions.

    In an action to recover the value of lumber alleged to have been sold to the defendant and delivered through the contractor, who was building him a house, it is held: That an instruction to the effect that the acceptance and presentation by the plaintiff of an order by the contractor on the defendant was prima facie evidence that the contractor and not the defendant was originally liable, was erroneous, being in effect in view of the evidence an instruction to disregard the evidence of the plaintiff and find for the defendant; that an instruction to give the plaintiff’s evidence in regard to oral statements of the defendant special scrutiny, was erroneous; that án instruction not applicable to any "evidence in the case should not have been given; and that if evidence to show that the defendant had paid the full contract, price of the house to other parties was improperly admitted, the error can be corrected on a new trial.
    [Opinion filed December 11, 1886.]
    Appeal from the Circuit Court of La Salle County; the Hon. Charles Blanchard, Judge, presiding.
    Statement by Lacey, J. This was a suit brought by the appellant in December, 1883, to recover for a bill of lumber which he claimed to have sold to appellee and which was used by the latter in building his dwelling house, in the spring of 1882. The bill was for $1,503.67.
    Upon proper issues being joined the case was tried by a jury which found a verdict in favor of the appellee and this appeal is taken. The appellant on the trial swore that he sold the lumber to appellee by an agreement with him that the lumber was to be charged to him and to be sent to him at the order of one Lamb, who was a building contractor and had entered into a contract with appellee to build him a house and furnish the labor and materials for the sum of $3,900. The appellee, however, contends that he had no such contract with appellant but that Lamb purchased the lumber of appellant on his own account and that he had nothing to do with the dealings between appellant and Lamb.
    The appellant, to maintain the issues on his side, produced himself as a witness and his books of account, showing that the lumber was all charged to appellee at the time it was procured and not to Lamb. He also testified that he had an express agreement with appellee that the lumber was to be sold to him and charged to him at Lamb’s order, and that the lumber was so sent. The contract with appellee was made in May, 1882, about the time the contract was let by appellee to Lamb to build the house and before any lumber was furnished. Appellant also produced witnesses in corroboration of his own testimony to show certain statements made by appellee in their presence. These witnesses are James Y. Caughlin, S. S. Fairfield and D. A. Lamb. Fairfield, whose shop was across the street from Byrne’s office, testified to having a conversation with appellee before the house was commenced and bid on the work himself.
    Afterward he had a conversation -with him about the letting of the contract and appellee told him that there was a man whose figures were $300 or $900 less than witness’s. lie (possibly a week afterward) heard a conversation between appellant and appellee back of appellant’s office near the sidewalk; witness was going across to pick up some lumber from four to ten feet from them. They were talking about the lumber for the house. Appellee said “ to send the lumber and he would pay for it or see it paid.” Appellee said something about going on Lamb’s bond. John W. Caughlin, appellant’s bookkeeper at the time, heard a conversation between appellant and appellee in the former’s office just after a conversation outside the office in June, 1882, in which appellee said to appellant, “as I am going to pay for the lumber I want- good lumber;” and appellant replied, “ Mr. Hartshorn, if there is a stick or board goes out there that ain’t satisfactory send it back.” Also witness presented the bill in suit to appellee for payment September 3, 1882, and told him the amount, and he said “ Don’t I want more than that ? ” I told him I didn’t know that he would. “ Well ” says appellee,' “ that is all right, I will come up and see Mike.”
    And D. A. Lamb testified in behalf of appellant in rebuttal: “In early part of September, 1882, Hartshorn said to me that this lumber bill of Byrne’s must be getting pretty large and asked me if I knew how much it was, and 1 told Hartshorn it was about $1,500.” Witness had another conversation with appellee after that about the cost of the work done on the house by witness, and appellee said to him, “There is that lumber bill of Byrne’s of $1,500; that" must be paid.”
    The appellee denied on the witness stand that he had ever authorized appellant to let Lamb have lumber on his account. He also denied the conversation with Caughlin when the. bill of appellant was presented for payment. Lamb didn’t do much after September 9th, after the plastering went on. Appellee also denied the conversation with Lamb in the manner Lamb had testified to.
    The appellee was corroborated by the testimony of one Horace W. Scholfield, who testified to having a conversation with appellant in regard to sending for the doors and blinds for the appellee’s house, in presence of Caughlin, in which appellant said he would not furnish them; that “Lamb had got évery dollar’s worth of lumber on that job or any other unless he paid in advance.” The evidence showed that appellant had accepted an order from D. A. Lamb, the contractor, on the appellee, about September 8,. 1882, for $1,503.67 for this lumber bill, and which appellee refused to accept or pay.
    The above, was substantially the case as it appeared before the jury, with the exception of some of the attending circumstances given in evidence.
    Messrs. Duncan & O’Conner, for appellant.
    It is not for the court to instruct the jury in a case where the evidence is conflicting, or indeed in any case, as to what evidence is the strongest. The jury in a civil suit should find from the preponderance or greater weight of the evidence, and for such purpose they should ascertain the value of the evidence before them, and in so doing the interference or direction of the court is not required or allowed. The weight of the evidence is a matter with which the court is not in any manner concerned. Frizelle v. Cole, 42 Ill. 362; Chittenden v. Evans, 41 Ill. 251; T., W. & W. R’y Co. v. Brooks, 81 Ill. 245; Hartley v. Lybarger, 3 Ill. App. 524; Straubher v. Mohler, 80 Ill. 21; Wright v. Bell, 5 Ill. App. 352; L. N. A. & C. R’y Co. v. Shires, 108 Ill. 632 ; Smith v. C. & W. I. R’y Co., 105 Ill. 521.
    The seventh instruction given for appellee was misleading, ambiguous and improper under the issues, and is not authorized by the evidence adduced.
    Instruction summing up the facts which the testimony tends to prove on one side and omitting all on the other is erroneous. Pa. Co. v. Stoelke, 104 Ill. 201; Armfield v. Humphrey, 12 Ill. App. 90; Cushman v. Cogswell, 86 Ill. 62; Ogden v. Kirby, 79 Ill. 555.
    When there is evidence tending to prove a fact having an important bearing upon the law of a case, even though strongly contradicted, an instruction is erroneous which ignores the existence of such fact. C. I. F. Co. v. Bradley, 10 Ill. App. 328; Chi. Pkg. & Prov. Co. v. Tilton, 87 Ill. 547-553.
    Where an instruction undertakes to canvass the salient features of appellee’s evidence and calls attention particularly to it, to the exclusion and detriment of the evidence of appellant, such instruction is erroneous. Anderson v. Warner, 5 Ill. App. 416; Wright v. Bell, 5 Ill. App. 352; Frame v. Badger, 79 Ill. 441; Martin v. Johnson, 89 Ill. 537.
    Messrs. E. F. Bull and G. S. Eldredge, for appellee.
   Lacey, J.

The main cause assigned for error by appellant’s counsel is the giving by the court the seventh, tenth and twelfth instructions for appellee : the allowing the appellee to prove against appellant’s objection that the former had paid out the full sum of the contract price, §3,900, which he was to pay Lamb for furnishing materials and labor for building the house, to Lamb and other parties on Lamb’s account, and that the verdict was manifestly against the weight of the evidence. We will notice the seventh instruction given for appellee first because first in order.

The substance of this instruction is that the order accepted by the appellant for §1,503.67 from Lamb, for the bill of lumber sued on, drawn on the appellee, dated September'S, 1882, and presented to appellee by appellant for payment, was by virtue of such acceptance and presentation, prima, fade evidence and established the fact prima facie that D. A. Lamb and not the appellee was originally liable to the plaintiff for such lumber. By this instruction the question mainly in issue, whether or not the appellee purchased the lumber of appellant as charged, was established to exist prima facie in the former’s favor from and after the date of the acceptance and presentation in September, 1882. There was no dispute as to the acceptance and presentation of the order at that time or that the lumber was furnished on Lamb’s order. This instruction virtually shuts out from the consideration of the jury, all plaintiff’s evidence touching facts existing prior to the establishing of such prima facie case, and the defense must be regarded by the jury as completely successful unless the appellant could adduce evidence of facts subsequently occurring that would have the effect to overcome such prima facie case; and as there was no such evidence, it was the duty of the jury under the instruction to find for the appellee.

The effect of the instruction was, in view of the evidence presented, to command the jury to find for the appellee. The instruction did not present the law of the case and gave the mere fact that the appellant had accepted and presented the order, an exaggerated importance. The value of the fact of the acceptance and presentation of the order was nothing more than rebuttal evidence in appellee’s favor, tending to show that the appellant in fact gave Lamb the credit and not appellee, and tending to establish the contention of the latter. The weight that should be given to it ought to rest with the jury. It was a fact to be considered in connection with all the other evidence in the case.

According to appellant’s theory the order was taken as a means only of collecting the debt due from appellee to him, but because the payment of the claim by appellee to him would extinguish so much of the debt of appellee to Lamb under his contract, it was essential to have Lamb satisfied and the matter settled with his consent, which his giving the order would effectuate. The giving the order may have been consistent with appellant’s contention that the credit was given to appellee for the lumber.

The appellee, of course, contends that it was proof that the appellant had acknowledged that he had no claim against him, otherwise he would not have taken an order. There may be other considerations for and against on both sides, which the jury had.a right to consider. It was for the jury to settle the matter as to what weight should be given to this particular part of the evidence, instead of being compelled by the instruction to give it the effect of excluding all other evidence in the case up to that time. The position that every plaintiff and every defendant occupies in every case is that before the introduction of evidence there is a prima facie presumption in defendant’s favor and the plaintiff must overcome that by evidence. This was the only prima facie case that could have existed in favor of appellee and it would remain until the evidence was all introduced, when it was for the jury to say whether it had been overcome by a preponderance.

The 12th instruction given by the court for appellee is particularly complained of by appellant. It is thought that the instruction unjustly discriminates against that portion of the appellant’s evidence that rests in the proof of the admissions of appellee in reference to the main fact in issue. The instruction is as follows: “ The jury are instructed that they should examine with care all the evidence in this case; that especially is this so in relation to all such parts of the evidence as exist in oral statements of defendant testified to by other witnesses in the case. The jury should consider whether such evidence may or may not be subject to much imperfection and mistake; whether the speaker may have been misunderstood by the witness; whether the speaker may not have correctly expressed his own meaning; whether the witness may have forgotten a part of the language used or may use some expression which may change the meaning of the speaker, or the witness may have added a word or expression not used by the speaker or may have a word or expression used by the speaker which changes the meaning of the speaker.”

We think it was erroneous to give this instruction. Aside from the requirement of the instruction to give the appellant's evidence in regard to ora.1 statements of appellee especially close scrutiny, the instruction tended strongly to weaken the force of the appellant’s evidence and to lead the jury to think that the court was of the opinion that the class of evidence introduced was of the < very weakest nature. Nearly every imaginable suggestion was offered to the jury in regard to the manner in which they should especially be watchful to prevent deception. There was nothing in the nature of the evidence as given to suggest that it was liable to deceive in the matters suggested by the instruction and to which such pointed attention was called.

It seems that the instruction was suggested to counsel by an examination of the comments of law text writers upon, the nature of admissions in which much of the language of the text is employed. Starkie on Evidence; Sharswood’s notes, marginal pages, 325-7 ; Greenleaf on Evidence, Yol. 1, Sec. 200. This would not justify an instruction 'of this kind under the practice in this State where the jury are the sole judges of the weight to-be given to the evidence.

In these same texts the commentators say that this class of evidence is “the weakest and most unsatisfactory,” yet it has often been held that to give an instruction based on such a rule as announced by the text books, is' error. Mauro v. Platt, 62 Ill. 450; Wright v. Bell, 5 Ill. App. 352; Rockwood v. Poundstone, 38 Ill. 199 ; Frizelle v. Cole, 42 Ill. 362, and other cases. This class of evidence may be the -weakest of all evidence yet it may be the strongest especially when the admissions are clearly .established. It may b.e the most convincing. The jury was not even told in the instruction that such was the law. We hold the court erred in giving the instruction complained of.

The jury were told in the tenth instruction that the minds of the parties must meet in order to make a binding contract, and that the terms and conditions thereof must be understood and assented to by each party. While this is tine as a general rule, there was nothing in this case to call for such an instruction. If there was any such agreement as the appellant testified to, their minds met beyond question, and there was nothing in the nature of the alleged contract to suggest that they did not readily understand the meaning of it. The appellee denies the entire story as told by appellant in every part in regard to his agreement to pay for the lumber and have it furnished to him. The instruction was not applicable to any evidence in the case and should not have been given. We would not be willing to reverse the judgment for such error alone, but nevertheless the instruction ought not to have been given.

In regard to the point raised that the court erred in the admission of the evidence going to show that appellee had paid out to other parties 'the full contract price for the building, the appellee, while not claiming that it would have been proper, as we do not think it would, asserts that it was admitted without objection; and to the greater part we see no objection noted and suppose there was none. As the judgment is to be reversed it will be unnecessary to comment on .the matter ’"urther, supposing that such alleged error, if made, will be corrected on a new trial.

As to the weight of the evidence, we will refrain from discussing that for the reason that the case may be again tried.

For the errors above noted the judgment is reversed and the cause remanded.

Judgment reversed a/nd cause remanded.


author: Mr. Justice Matohett

text:
    Alice V. Heelan, by Patrick Heelan, Appellee, v. Max Guggenheim, Appellant.
    Gen. No. 23,207.
    1. Automobiles and garages, § 3

      —when contributory negligence of person struck by automobile is question for jury. In an action to recover for personal injuries received by one struck by an automobile as she was crossing the street after alighting from a street car, contributory negligence of plaintiff held a question of fact.
    2. Master and servant, § 844*—when master liable for tort of servant. To render a master liable in tort for the act of his servant, it must be made to appear that the servant was, at the time of the tort, acting within the scope of his employment.
    3. Master and servant, § 836*—what must be shown to make master liable for torts of another as alleged servant. To render one liable in tort for the act of another alleged to have been his servant, it is necessary to show that the tort-feasor wa¡s defendant’s servant, that the relationship existed at the time of the injury and with respect to the particular transaction from which the tort arose.
    4. Master and servant, § 845*—when servant acting within scope of employment in driving automobile. Where a chauffeur, after depositing his employer at his destination, drives the car to a moving picture theater, with his employer’s consent, and, after attending the performance, commences to drive the car hack to the garage, pursuant to the direct order of the employer, in thus returning he is acting within the scope of his employment and about the master’s business, and the doctrine of respondeat superior applies so as to render the employer liable for injuries to a pedestrian struck by the automobile as the chauffeur was returning it to the garage.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    H. L. Howard, for appellant.
    William; Prentiss and Edward J. Green, for appellee.

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

   Mr. Justice Matohett

delivered the opinion of the court.

This is an appeal by the defendant below from a judgment of the Circuit Court of Cook county entered upon the verdict of a jury in an action on the case.

The appellee while crossing 47th street in the City of Chicago at the corner of Shields avenue was struck by an automobile owned by appellant. The automobile was being driven east on 47th street by the chauffeur of appellant who was generally employed by him for the purpose of driving the car.

The defendant lived at 4749 Indiana avenue in the City of Chicago and his machine was kept in a garage at No. 59 East 47th street, near to his home. His place of business was the stockyards, some distance to the west.

On the evening in question the chauffeur some time between 7:30 and 8 o’clock drove defendant and his wife in the automobile from their home to 62nd street and Vernon avenue; this was in a southeasterly direction and about 2% miles from defendant’s home. At 62nd and Vernon defendant told the chauffeur to go back to the garage to be subject to call between 11 and 12 o’clock. The chauffeur asked defendant if he might go to a nickel show and defendant answered, “Yes, but be at the garage after 11 o’clock because I shall call you there.” The chauffeur left the defendant and turned the car west on 63rd street and drove to Halsted street, some 2 miles west, where he entered a moving picture show. He left the picture show about a quarter after 10 o’clock and turned north on Halsted street at 47th street, then east on 47th street for the purpose of going to the garage. While he was so driving the accident occurred. The chauffeur testifies that he was going at the time of the accident at about the rate of 16 or 17 miles per hour. The testimony for the plaintiff indicates that he was going at about 30 miles per hour.

About 200 feet west of the place where the accident occurred is a culvert where the Pennsylvania railroad tracks cross 47th street and the street there is depressed. At the crossing of 47th street, Shields avenue is not in a direct line north and south, that part of the avenue north” of 47th street being about 5 feet further west than the same avenue south of 47th street. An arc light was on the northeast corner of Shields avenue and 47th street.

Plaintiff testified that she had taken a westbound 47th street car to go to her home, which was south of 47th street on the west side of Shields avenue. The car stopped on the north side of 47th street on the east side of Shields avenue, which was its usual stopping place. She walked south, crossing 47th street, and when between the rails of the eastbound track was hit by the automobile and dragged from 20 to 30 feet.

Appellant argues that plaintiff was guilty of contributory negligence which would bar her recovery,' but it seems clear to us that this question was for the jury. The real point in the case is that raised by the special plea which set up that “the said defendant did not control, and operate by his said servant and agent an automobile at the time and at the place as plaintiff has alleged in her said declaration.”

That in order to make a master liable in tort for the acts of his servant, it must be made to appear that the servant at the time of the alleged tortious act was acting within the scope of his employment, is elementary and needs no citation of authority. The difficulty arises in determining when the servant is and when he is not acting within the scope of such employment.

In order to make the master liable it is necessary to show: First, that the tort-feasor was the servant of the defendant; second, that such relationship existed at the time of the injury; and third, that such relationship existed with respect to the particular transaction from which the tort arose. Johanson v. William Johnston Printing Co., 263 Ill. 236.

Appellant relies on Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316. In that case the defendant was driven by his chauffeur to a certain place on Brush street, and when the defendant alighted told the chauffeur to return for him at 12 o’clock. No further orders were given. The chauffeur drove to his own residence about three-quarters of a mile away and learning there that his wife had gone to the home of her father on another street drove there, about 3 miles from Brush street. He remained there for some time and then started back to keep his appointment with defendant. On the way he took in three men as passengers, intending to carry them to a destination not on his route back to Brush street. On the way he ran across a sidewalk crashing into plaintiff’s store. The trial court directed a verdict for defendant which was sustained by' the Supreme Court of Michigan on the theory that the chauffeur was not, at the time, acting within the scope of his employment. The court in its opinion said: “There certainly was no proof of any express consent by defendant that the chauffeur might use the car to visit his father-in-law, nor do the proofs tend fairly to show any implied consent.”

In the instant case there was not only evidence from which the consent of the defendant to the trip to the theater might be implied, but it clearly appears that defendant gave his express consent thereto.

Without deciding whether the chauffeur’s deviation to attend the theater with his employer’s consent and for his own pleasure was such a departure as to take the driver outside the scope of his employment, we are disposed in conformity with the rule announced in Devine v. Ward Baking Co., 188 Ill. App. 588, to hold that upon his beginning the return journey to the garage, in pursuance of the direct order of the master and in furtherance of the master’s business, he was within the scope of his employment, and the doctrine of respondeat superior therefore applied. The judgment will be affirmed.

Affirmed.


author: Mr. Justice Matchbtt

text:
    Andrew J. Getz, Appellee, v. Western Laboratories, Appellant.
    Gen. No. 23,213.
    (Not to be reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. John P. Haas, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Reversed.
    Opinion filed March 12, 1918.
    Abstract of the Decision.
    1. Contracts, § 289

      —when contract terminable at will by either party. Where an agreement between certain members of a voluntary association and a corporation, which provides for the purchase of a share of stock in the corporation and a deposit with the corporation of a certain amount in cash or merchandise by each member, fixes no time for its termination, it may be terminated at the will of either of the parties.
    2. Associations, § 6*—when corporation liable to association and not to individual members thereof on contract. By an agreement between the majority of the members of a voluntary association and a corporation it was stipulated that each of such members would buy a share of stock in the corporation and also deposit with the corporation $100 in cash or the equivalent in merchandise, which was to be kept by the corporation as a separate account and used only to purchase such supplies as the association should from time to time direct. The corporation agreed to carry goods which had theretofore been carried by the association and to sell them to members at cost plus 2 per cent. In an action by a member against the corporation to recover the value of goods deposited by him under the agreement, held that the liability of the corporation, if any, was to the association and not to the individual members.

      Statement Of the Case.
    Action by Andrew J. Getz, plaintiff, against Western Laboratories, a corporation, defendant, to recover goods deposited with defendant under a contract. From a judgment for plaintiff for $90.86, defendant appeals.
    Cruice & Langille, for appellant.
    B. C. Merrick, for appellee.

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

   Mr. Justice Matchbtt

delivered the opinion of the court.


author: Mr. Justice Matchett

text:
    John A. Devlin, by James Devlin, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 23,221.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Joseph Sabath, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by John A. Devlin, a minor, by James Devlin, Ms next friend, plaintiff, against Chicago City Railway Company, defendant, to recover for personal injuries due to a collision of one of defendant’s cars with the wagon in which plaintiff was riding and wMch he was driving. From a judgment for plaintiff, defendant appeals.
    Franklin B. Hussey and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Gutlliams, of counsel.
    Richard J. Finn, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 135 —when contributory negligence of driver of wagon is question for jury. In an action against a street railroad company by the driver of a wagon to recover for personal injuries sustained in a collision at a street intersection, held that the contributory negligence of plaintiff was a question for the jury.

2. Negligence, § 53*—what constitutes proximate cause. To constitute proximate cause, the negligent act or omission must be the cause which produced the injury, but it need not he the sole cause or last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time which, in combination with it, causes the injury or which sets in motion a chain of circumstances and operates on them in a continual sequence unbroken by any new or independent cause.

3. Negligence, § 196*—when proximate cause of injury is question for jury. Whether a second injury received before a recovery from a prior one proximately results from the same cause as the prior injury, is ordinarily a question for the jury.

4. Negligence, § 47*—when person may not recover for second injury. It is the duty of one who breaks his knee to use due care to effect a cure and prevent a second injury, failing in which he cannot recover damages for such second injury.

5. Damages, § 191*—when question for jury- whether proximate cause of second injury to Tcnee due to original injury. In an action for damages for personal injuries, where it appeared that plaintiff sustained a fracture of the patella of the right knee; that splints were put on and remained on the leg for 9 weeks; that, after these were taken off, he used crutches for a month and thereafter a cane, all under the advice of his physician; that while the injured limb was still swollen, and while plaintiff was walking along a sidewalk at night 3 days after starting back to work, using a cane, his left leg slipped and thereupon the right one doubled under him, fracturing the patella in the same place that it was originally broken, and the testimony of experts was in conflict as to the proximate cause of the second injury, held that the proximate cause of the second injury was a question for the jury.

6. Appeal and error, § 1241*—when defendant in personal injury case cannot complain of instruction given on behalf of plaintiff. In a personal injury case, defendant cannot complain of the giving of an erroneous instruction on behalf of plaintiff, where, although an exception was taken to the instruction, yet, prior to reading the same, the instructions were all considered hy the court and counsel, out of the presence of the jury, in compliance with a rule of court, and at such conference the attorney for defendant said that he had no objection to it if given with the “antithesis” which he had drawn, and the court stated that they would be given jointly, which was done.


text:
    Charles Kappmeyer, Appellee, v. Chicago Railways Company, Appellant.
    Gen. No. 23,229.
    (Not to he reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Makcus Kavanagh, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.

      Certiorari denied by Supreme Court (making opinion final).
    Statement of the Case.
    Action by Charles Kappmeyer, plaintiff, against Chicago Railways Company, defendant, to recover for personal injuries sustained in a collision between plaintiff’s motorcycle and one of defendant’s street cars. From a judgment for plaintiff, defendant appeals.
    Philip Rosenthal and Watson J. Ferry, for appellant; W. W. Gurley and J. R. Guilliams, of counsel.
    Frank & Lurie and Pollock, Rainey & Livingston, for appellee; Alered T. Johnson, of counsel.

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

   Mr. Justice Matchett

delivered the opinion of the court.

Abstract of the Decision.

1. Street railroads, § 131 —when evidence shows operation of car at full speed in approaching crossing. In an action for damages for personal injuries received in a collision between plaintiff’s motorcycle and one of defendant’s street cars at a street intersection, evidence held sufficient to show that the car was going at full speed and did not slacken its speed in approaching the crossing. s

2. Negligence, § 204*—-when contributory negligence question for court. The general rule is that negligence and contributory negligence are questions of fact for the jury, but when the facts are admitted and all reasonable minds agree that the injury was the result of plaintiff’s own negligence, the court may, as a matter of law, find that there was such contributory negligence on the part of plaintiff as to defeat a recovery, and so inform the jury by a peremptory instruction.

3. Evidence, § 534*—when witness not permitted to say he looked and did not see object. While the general rule is that a court will not permit a witness to say that he looked but did not see an object, which it must be clear to everyone must have been seen if the witness had looked, its application must depend upon the situation disclosed by the particular case, including all physical circumstances existing at the time and just prior to the accident.

4. Street railroads, § 135*—when contributory negligence of driver of motorcycle is question for jury. In an action to recover damages for personal injuries sustained in a collision between plaintiff’s motorcycle and one of defendant’s street cars at a street intersection, where plaintiff had intended to cross, but, on seeing the car 15 feet away, turned to the right to avoid the car, which was coming at full speed, held that the questions whether plaintiff in the exercise of reasonable care could or should have seen the car in time to avoid the accident, whether he should or could have increased his speed and thus avoided the injury, and whether he should or could have stopped his motorcycle, were all questions for the jury.


text:
    Richard W. Pollard, Appellee, v. G. & J. Coal Company, Appellant.
    Gen. No. 23,239.
    (Not to he reported in full.)
    Appeal from the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Rehearing denied March 23, 1918.
    Abstract of the Decision.
    1. Fraud, § 87*—when not presumed. Fraud Is never presumed and must be proved by the party alleging it and by clear and convincing evidence.
    2. Bills and notes, § 375*—when presumed negotiable paper is issued for valuable consideration. Negotiable paper which has been executed and delivered is presumed to have been regularly issued for a valuable consideration.
    3. Bills and notes, § 375*—when presumption that bond coupons were issued for valuable consideration not overcome. Evidence held insufficient to overcome the presumption that certain bond coupons issued by defendant corporation and delivered were regularly issued for a valuable consideration.
    Statement of the Case.
    Action by Richard W. Pollard, plaintiff, against Gr. & J. Coal Company, a corporation, defendant, to recover the sum of $66, being the aggregate amount of eight coupons representing accrued interest due upon certain bonds issued by defendant. From a judgment for plaintiff, defendant appeals.
    Edmund S. Carr, for appellant.
    William Capesius, for appellee.
   Mr. Justice Matchett

delivered the opinion of the court.


text:
    John W. Morsbach, Appellee, v. Collison F. Waddell, Appellant.
    Gen. No. 23,251.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Municipal Court of Chicago, § 26*—what reviewed upon striking of statement of facts. Where the statement of facts is stricken in a case tried'in the Municipal Court of Chicago before the court without a jury, only errors assigned on the common-law record will be reviewed.
    2. Municipal Court of Chicago, § 16

      —when demand for fury too Tate. A demand for a jury trial in an action of the fourth class in the Municipal Court of Chicago is too late, under Rev. St. ch. 37, sec. 30 (J. & A. f 3342), when made 10 days after entry of an appearance in writing.
    Appeal from the Municipal Court of Chicago; the Hon. John Courtney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 12, 1918.
    Statement of the Case.
    Action by John W. Morsbach, plaintiff, against Collison F. Waddell, defendant. From a judgment for plaintiff, defendant appeals.
    John M. Hess,"for appellant.
    Arthur E. Nelson, for appellee.

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

   Mr. Justice Matchett

delivered the opinion of the court.


author: Mr. Presiding Justice Taylor

text:
    R. S. Newman and Charles Maixner, trading as Newman & Maixner, Appellees, v. Union Pacific Railroad Company, Appellant.
    Gen. No. 23,117.
    1. Appeal and error, § 1410

      —when finding not against manifest weight of evidence. The finding as to defendant carrier’s negligence in the shipment of certain live stock, based upon conflicting evidence, held not against the manifest weight of the evidence.
    2. Carriers, § 241*—when failure to give proper notice of loss or damage shown. Evidence held to show that plaintiffs failed to comply with all the requirements of their contract of shipment of certain live stock as to notice of loss or damage in transit, except as to one 10-carload delivery.
    3. Carriers, § 241*—when federal act governs contracts for shipment of live stock. Shipping contracts for the interstate shipment of live stock containing provisions requiring notice to be given the carrier within a given time of loss or damage in transit are subject to the Carmack amendment to the Interstate Commerce Act.
    4. Carriers, § 241*—binding effect of provision for notice of loss or damage to live stock. The requirement, in a shipping contract for the interstate shipment of live stock, of notice within a given time of loss or damage in transit is rigorously binding, and neither party is entitled to set up by way of defense the unreasonableness of the requirement.
    5. Carriers, § 245*—when shippers suing in tort may not avoid effect of contract. Shippers of live stock under a written contract for interstate shipment containing provisions requiring notice to the carrier within a given time of loss or damage in transit may sue in tort for such loss or damage, but will not be allowed to avoid the effect of such provisions.
    6. Carriers, § 250*—when instruction on compliance with requirement of contract as to notice of loss or damage is erroneous. An instruction to the effect that if the defendant carrier had knowledge, within the time required by a contract for the interstate shipment of live stock for notice to be given to the carrier by the shipper of loss or damage in transit, of the loss or damage to the plaintiff’s live stock for which plaintiff sought recovery, then, as a matter of law, such requirement of the contract was complied with, held to he erroneous, in an action to recover for loss or damage to live stock in transit.
    Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed and remanded.
    Opinion filed March 13, 1918.
    John A. Sheean, for appellant.
    Charles A. Butler, for appellees; Franklin Baber, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

. This .was a suit in assumpsit brought by appellees (plaintiffs) in the Circuit Court of Cook county, against appellant (defendant) to recover damages for a breach of contract in the transportation and handling of three shipments of sheep. A trial was had before a jury and on December 23, 1916, a verdict for the sum of $6,260 and costs was rendered against defendant. On December 29, 1916, plaintiffs (after verdict), by permission of the trial court, changed their form of action to tort and filed an amended declaration and an amended bill of particulars, whereupon judgment was entered on the verdict for the full amount. From that judgment this appeal was taken.

On September 2, 1913, plaintiffs shipped 24 cars of sheep from Evanston, Wyoming, over the Union Pacific Bailroad, defendant, under a written contract to deliver them in Chicago, Ulinois. When this shipment reached Valley, Nebraska, its destination was changed to South Omaha, Nebraska, where it was unloaded and marketed.

When the 24 cars left Evanston on September 2, 1913, they contained 5,279 lambs and 1,776 ewes, which, according to the evidence, were about 80 per cent, killers, and the balance feeders.

The contract of September 2, 1913, which was a limited liability contract of shipment made between the plaintiffs and the defendant, provided, among other things, as follows:

“In consideration of the special reduced rate herein provided for the transportation of live stock above described, it is hereby stipulated and' agreed as follows: * * * Unless claims for loss, damage or detention are presented within ten days from the date of the unloading of certain stock at destination, and before said stock has been mingled with other stock, such claims shall be deemed to be waived, and the carriers of each thereof shall be discharged from liability.”

On September 18, 1913, plaintiffs shipped, under a written contract, to Chicago, Illinois, from Evans-ton, Wyoming, a second consignment of 20 cars of sheep, over the Union Pacific Bailroad, defendant. On the same day 5 more carloads of sheep were picked up at Altamont, Wyoming (about 13 miles from Evans-ton) and consigned, under a written contract with said defendant, Union Pacific Bailroad Company, to South Omaha, Nebraska. The 25 ears were then carried in the same train as far as Grand Island, Nebraska. At Laramie and at Grand Island the sheep on all the 25 cars were unloaded for feed, water and rest. At both places the two shipments of the 2O' cars and the 5 cars became mingled together and thereby lost their identity. At Grand Island 14 of the 25 carloads were sent to South Omaha and the remaining 11 carloads to Chicago.

The contract between the plaintiffs and the defendant, for the shipment of the 20 cars from Evanston on September 18, 1913, which was a limited liability contract, provided as follows:

“The said shipper further agrees that as a condition precedent to his right to recover any damages for loss of or injury to any of said stock, he will give notice in writing of his claim therefor, to some officer of said carriers or to their nearest station agent, before said stock has been removed from said place of destination and before such stock has been mingled with other stock, and present a formal statement of his claim duly verified to said carriers within sixty days thereafter.”

The contract made between the plaintiffs and the defendant in regard to the 5 carloads shipped from Evanston and made on September 18, 1913, and which became part of the same train with the 20 cars, contained a similar provision in regard to giving notice as to any claim for damages as the contract of September 2,1913, which latter covered the 24 cars shipped from Evanston.

Considerable evidence was offered for the purpose of showing negligence in the transportation of all of the 49 carloads of sheep. The total shipment aggregated about 14,000 head of sheep and lambs. They were received by the defendant, Union Pacific Bail-road Company, as initial carrier. The evidence shows that the sheep suffered severely on the way, many dying and a majority of the others shrank in weight in an unusual degree. In the first shipment of 24 cars from Evanston, Wyoming, to Omaha (September 2, 1913), about 100 died on the way to the town of Valley, and, after being unloaded for the purpose of being fed, about 200 died there in the pastures, the greatest number dying in what was shown to be the best pasture. There were 5,335 lambs and 1,829 ewes loaded into the 24 double-decked ears and when they reached Omaha they were in an unusually poor condition. Of the second shipment, that of September 18, 1913, consisting, in part, of 20 carloads from Evanston, some of the sheep began to die before reaching Altamont, which is only 13 miles east of Evanston. One of the plaintiffs who accompanied the train testified they took out 3 dead sheep at Altamont. When the train left Altamont it consisted of 25 carloads and, at the next stop, one of the plaintiffs testified he took out 6 dead sheep and took out dead sheep at nearly every stop until the train reached Grand Island, about 600 miles from the starting place. He further testified that when they reached the latter place the sheep looked badly shrunken and were in poor condition.

It is the claim of the plaintiffs that the unusual loss and damage to both shipments was caused chiefly by the unnecessary delays and severe jolting of the cars, by reason of which an injurious “piling up” of the sheep was caused.

Considerable testimony was given by experienced sheep men, witnesses for the defendant, tending to show that the cars were overloaded, in some instances as high as 300 sheep being loaded in a single'car; that the sheep were not fed enough, and especially at one stop, namely, the first stop, where, after traveling 400 miles, they were given a pound of hay to the head, whereas they should have had at least 4 to 5 pounds each; that instead of being kept only a few hours at feeding stations, they should have been allowed at least 24 hours for rest and feed; that the death of the large number at Valley, where a majority of the deaths took place in the best pasture, was caused by colic brought on by overeating rich grasses after a long fast.

The evidence as to whose fault it was that so many sheep died and so many lost weight is conflicting. That there was considerable unnecessary delay in handling the trains at various points along the way seems to be fairly well established. On the other hand, as to the fatalities of the September 18th shipment, beginning at Altamont and continuing at nearly every stopping place, and the losses at Valley in the first-shipment, it is difficult to attribute them to the negligence of the defendant. However, the negligence charged was an appropriate subject for the determination of the jury, and, in view of what the record contains, we do not feel justified in concluding that the verdict of the jury upon that subject was clearly and manifestly against the weight of the evidence.

In the view we take of the case, however, the general subject of negligence on the part of the defendant becomes unimportant. It is contended by the defendant that the plaintiffs failed to comply with the requirements of the three so-called limited liability livestock contracts.

We will first consider the 24-car shipment of September 2, 1913, which was originally billed to Chicago and subsequently diverted to Omaha. Of the 24 cars, 14 reached Omaha on Sunday, September 7, 1913. Plaintiffs’ witness Dohan, head buyer for Cudahy, testified that he sorted the 24-car shipment of September 2nd at Omaha and ordered 14 cars into the market on Sunday the 7th of September and sold about two-thirds of them on the 8th, and the remainder on the 9th. The remaining 10 carloads arrived at South Omaha at 7:15 a. m., September 11th, and were sold either on that day or the next. Anderson, the assistant superintendent of the defendant, testified from the train sheets that the 14 carloads reached South Omaha at 3:45 a. m. on September 8th, and that the other 10 carloads arrived there on September 11th. Newman, on behalf of the plaintiffs, testified that the 14 carloads were all sold on Monday, September 8th, the day they arrived, and that the remainder, 11 carloads, were sold on the 9th. The result of the evidence as to arrival and sale, however, is to the effect that two-thirds of the 14 carloads were sold on Monday, September 8th, the remaining one-third on September 9th, and that the 10 carloads were sold on September 11th. On September 19, 1913, the attorney for plaintiffs mailed, in Chicago, a letter with an inclosure to the claim agent of the defendant at Omaha, Nebraska, which letter and inclosure notified the defendant that the plaintiffs made a claim for loss and damage incurred in the shipment of “sheep from Evanston, Wyoming, to Chicago, Illinois via Union Pacific Railroad, arriving at Chicago on or about September 10, 1913, as follows: To excess shrink, depreciation in value due to condition and appearance on arrival, and sheep lost in transit... .$4787.10.” It will be observed that the notice, either by inadvertence or otherwise, makes a claim for loss and damage to sheep shipped from Evanston to Chicago and arriving at Chicago, and does not in any way refer to loss and damage to sheep shipped from Evanston to South Omaha. Further it may be assumed that the defendant did not receive that notice until September 20, 1913. On October 4, 1913, the attorney for the plaintiffs sent, by mail, from Chicago, what is called an amended claim in which it is recited that the loss and damage incurred was through a shipment of sheep and lambs from Evanston to South Omaha. From the foregoing it is obvious that as to the 14 carloads which were sold on September 8th and 9th, the notice, which was mailed on September 19th, and received not earlier than September 20th, was not within the 10 days, and, therefore, was insufficient.

The contract of September 18, 1913, covering the Altamont shipment of 5 carloads, also provided for a 10 days’ notice of claim for damages. That shipment was taken up and made a part of the 25-car train from Evanston on the same date. The sheep of those two shipments, of 20 cars and 5 cars, were intermingled in transit at the feed places so that it became impossible to tell under which contract any of those sheep actually were shipped. When the trainload of 25 cars reached Grand Island it was divided into 14 carloads which were delivered at South Omaha, arriving there September 23rd and 11 carloads, which were delivered at Chicago, arriving there September 25, 1913.

It is, of course, impossible to determine whether the- requirement of a 10 days ’ notice of claim for loss or damage applied to 5 of the 14 cars sold at South Omaha, or 5 of the 11 cars sold at Chicago, and, also, it is impossible to determine whether the provisions of the contract of September 18, 1913, that a written notice of claim shall be given to some officer of the defendant or its nearest station agent before the stock has been removed and before it has been mingled with other stock, and present a formal statement of his claim, duly verified, to said carriers, within 60 days thereafter, apply to the 14 cars delivered at Omaha, or to the 11 cars delivered at Chicago, and 9 delivered at South Omaha.

No specific notice of claim was sent concerning the Altamont, September 18, 1913, shipment of 5 carloads to Omaha, or concerning the 20 carloads sent to Chicago. On October 2, 1913, two notices of claim were sent to the defendant’s freight agent at Omaha, one for loss and damage to 3,255 lambs, being 11 carloads shipped from Evanston to Chicago, and the other for loss and damage to 2,533 lambs, for 1,592 ewes, being 14 carloads shipped from Evanston to Omaha. No further notice of claim was made by the plaintiffs. As stated above, the contract for the Evanston shipment of 20 carloads of September 18, 1913, contained no 10-day clause, but, in addition to a stipulation that notice -in writing should be presented before the sheep were removed and mingled with others, it was provided that a formal statement of claim, duly verified, should be sent to the defendant within 60 days after the removal of the sheep from the place of destination. Neither requirement was complied with. All the sheep, not only of the 20 cars, but the 25 cars, were sold and mingled and lost their identity before any notice whatever was given and no formal statement of claim, duly verified, was, within 60 days of the sale and mingling of the stock, sent to the carrier.

The sheep were all shipped at reduced rates. The rate otherwise, had it not been for the limited liability contract, would have been 150 per cent, of the rate actually charged. The tariffs and a copy of each of the contracts were duly filed, with each statement, with the Interstate Commerce Commission and published and declared.

The plaintiffs admit the binding force of the 10-day notice clauses, and, also, that there has been no waiver and no estoppel, but contend that they complied with all the provisions of the shipment contracts. We are of the opinion that the evidence shows a failure to comply with all the notice requirements, with the exception of that which was sent on September 19, 1913, and covered the 10 carloads of sheep which were sold in South Omaha on September 11, 1913.

It is contended further by counsel for the plaintiffs that a limited liability contract containing a double provision, such as the contract of September 18, 1913, is legally complied with if the claim is filed within 60 days, and Looney v. Oregon Short Line R. Co., 192 Ill. App. 273, and Chicago, I. & L. Ry. Co. v. Priddy (Ind. App.), 115 N. E. 266, are cited.

Being interstate shipping contracts all three are subject to the Carmack Amendment to the Hepburn Act, and the law in regard to the validity of the provisions in such contracts which require a written notice within a given time,., or, for example, before stock is removed from place of destination or mingled with other stock, is now well settled. Northern Pac. Ry. Co. v. Wall, 241 U. S. 87; Erie R. Co. v. Stone, 244 U. S. 332 (decided June 4, 1917).

The reason for the requirement of notice is that there may be apt opportunity on the part of the carrier to make an investigation; it is not for the purpose of evading liability. The requirement in some instances may seem harsh, but it is the voluntary obligation of the shipper for a consideration, and has an entirely practical and useful purpose. Georgia, F. & A. R. Co. v. Blish Milling Co., 241 U. S. 190. It follows, therefore, that the- provisions as to notice, which are contained in all three of the limited liability contracts, here involved, are rigorously binding, and that neither party to those contracts is entitled to set up, by way of defense, even their unreasonableness. To that extent Chicago, I. & L. Ry. Co. v. Priddy, supra, seems to be overruled. In Erie R. Co. v. Stone, supra, Mr. Justice Day used the following language: ‘ ‘ These rates and that contract, which contained the notice requirement, thus became binding upon the parties until changed by order of the Commission. This is too well settled to need discussion. * * * The binding force of these contracts and regulations has been affirmed in many cases: Kansas City Southern R. Co. v. Carl, 227 U. S. 639, 652; Boston & M. R. Co. v. Hooker, 233 U. S. 97, 112; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 98; Great Northern Ry. Co. v. O’Connor, 232 U. S. 508, 515 [8 N. C. C. A. 53]; George N. Pierce Co. v. Wells, Fargo & Co., 236 U. S. 278, 285; Southern R. Co. v. Prescott, 240 U. S. 632, 638; Cincinnati, N. O. & T. P. Ry. Co. v. Rankin, 241 U. S. 319; Norfolk Southern R. Co. v. Chatman, 244 U. S. 276.”

It is contended further by the appellant that it was error on the part of the trial court to permit the plaintiffs, after verdict, to change the action from contract to tort. Whether the trial court exceeded its discretion in allowing the amendment pursuant to chapter 110, par. 39, Rev. St. (J. & A. ¶ 8576), is undoubtedly debatable, but,. inasmuch as the judgment will be reversed and the cause sent back for a retrial, it becomes unnecessary for us here to consider that question. There is no doubt but that the plaintiffs are entitled to sue in tort, but in doing so they will not be allowed to avoid the effect of the stipulations as to notice. As said by the court in Georgia, F. & A. R. Co. v. Blish Milling Co., supra, which was a ease in trover against a carrier for a misdelivery of flour: “But the parties could not waive the terms of the contract under which the shipment was made pursuant to the Federal act; nor could the carrier, by its conduct, give the shipper the right to ignore these terms which were applicable to that conduct and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations.”

It is contended further by appellant that Instruction No. 12, which was given at the request of the plaintiffs, which was to the effect that if the defendant “had, within the time mentioned in said contracts, actual knowledge of the damage, if any, claimed by the plaintiffs herein, then, and in that event, as a matter of law, the said provision, if any, in said contract was complied with,” was improper. Bearing in mind that the jury may have inferred from the evidence that the defendant did have actual knowledge of some damage to the sheep, and the principle of law, that actual knowledge does not dispense with written notice, we are of the opinion that the trial court erred in giving such instruction. Inasmuch as the notice of September 19, 1913, was good as to 10 carloads of sheep, another trial becomes necessary.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    William J. Newman Company, Appellant, v. Sanitary District of Chicago, Appellee.
    Gen. No. 23,204.
    (Not to be reported in full.)
    Abstract of the Decision.
    Bailment, § 26

      —when instruction on care required of bailee is proper. An instruction that “the court instructs the jury that, as a matter of law the bailee, in a mutual bailment, is not an insurer of the property bailed, but is bound to exercise ordinary and reasonable care, or the care that a reasonably prudent man would take of similar property under similar conditions. If the jury finds such a reasonable care has been exercised, they will return a verdict for the defendant,” held proper, in an action to recover damages for injuries to a machine rented by plaintiff to defendant.
    Appeal from the County Court- of Cook county; the Hon. Andrew D. Webb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Rehearing denied March 25, 1918.
    Statement of the Case.
    Action by William J. Newman Company, a corporation, plaintiff, against Sanitary District of Chicago, defendant, to recover damages for injuries to plaintiff’s derrick rented to defendant. From a judgment for defendant, plaintiff appeals.
    Adams, Cbews, Bobb & Wescott, for appellant.
    Edmund D. Adcock, for appellee; John F. Bolton, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.


text:
    Winfield S. Allison, Appellee, v. Louis Sumner, Appellant.
    Gen. No. 23,210.
    (Not to fie reported in full.)
    Abstract of the Decision.
    1. Bills and notes—when shown guaranty stamped on notes at or before time of signature. Evidence held to sustain the finding that the printed guaranty stamped on the hack of certain notes sued on over defendant’s signature was placed there at or before the time he signed his name thereto, in an action to recover on the guaranty.
    2. Bills and notes, § 27

      —what constitutes delivery of note. Delivery of a note by the maker to the payee for the purpose of having the latter secure the guaranty thereon of another party, under an agreement between the parties that the payee would not accept the maker’s note without such guaranty, was not a legal delivery of the note as a negotiable instrument, and there was no such delivery until the guaranty was placed thereon and the note again returned to the payee in its completed form .according to the agreement.
    Appeal from the Municipal Court of Chicago; the Hon. Wells M. Cook, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1917.
    Affirmed.
    Opinion filed March 13, 1918.
    Statement of the Case.
    Action by Winfield S. Allison, plaintiff, against Louis Sumner, defendant, to recover on defendant’s guaranty of certain promissory notes. From a judgment for plaintiff for $1,073.15, defendant appeals.
    Smith, Fake, Levinson & Hoffman, for appellant.
    Adams, Crews, Bobb & Wescott, for appellee.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

3. Bills and notes, § 159*—when consideration for guaranty of note must be shown. Where a guarantor indorses a note after a legal delivery to the payee is consummated a consideration must be shown, unless it appears that it was agreed between the maker,. the payee and the indorser that the latter should guarantee the note.

4. Appeal and error, § 1410*-—when finding not disturbed as against weight of evidence. A finding that there was not such a valid contract of extension of the note sued on' as to release defendant as guarantor on the note, held not clearly against the weight of the evidence, in an action to recover against the guarantor.

5. Bills and notes—when release of guarantor shown. Evidence held insufficient to show a release of defendant as guarantor on the note sued on by reason of a composition of the plaintiff with the maker of the note.v


author: Mr. Presiding Justice Taylor Mr. Justice O’Connor

text:
    Carstens Packing Company, Appellee, v. Sterne & Son Company, Appellant.
    Gen. No. 23,222.
    1. Brokers, § 25

      —when warranty of quality of turkeys shown. Evidence as to the quality of certain turkeys purchased by defendant for plaintiff, held insufficient to show or tend to show a warranty by defendant of the quality, in an action by the principal against' the broker purchasing the poultry.
    2. Brokers, § 25*—when broker's note is evidence of contract for purchase of poultry. A “broker’s note” made by defendant and forwarded to plaintiff, making a full and complete disclosure of the terms of a certain contract between ' plaintiff and defendant for the purchase by defendant for plaintiff of certain turkeys, constituted exclusive evidence of such contract.
    3. Brokers, § 25*—when ratification of contract for purchase of poultry shown. Evidence held to show a ratification by plaintiff of defendant’s contract for the purchase by defendant for plaintiff of certain turkeys, irrespective of the quality of the turkeys as' regarding defendant’s warranty of the quality, in an action to recover for inferior quality of the turkeys.
    O’Connor, J., dissenting.

      Appeal from the Municipal Court of Chicago; the Hon. Sheridan E. Ery, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1917.
    Reversed with finding of fact.
    Opinion filed March 13, 1918.
    Rehearing denied March 25," 1918.
    Rosenthal, Hamill & Wormser, for appellant; Charles H. Hamill and Harry Markheim, of counsel.
    Frederick A. Brown, for appellee; Raymond S. Pruitt and Jesse J. Herr, of counsel.

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

   Mr. Presiding Justice Taylor

delivered the opinion of the court.

This is an appeal by Sterne & Son Company (defendant) from av judgment—after a jury trial—in the sum of $1,648.33, entered in the Municipal Court in favor of Carstens Packing Company (plaintiff).

On December 11,1911, the plaintiff filed a statement of claim “for damages for a breach of a brokerage contract, whereby on or about October 28, 1910, defendant agreed to buy for plaintiff at a given price, a carload of turkeys to be shipped to plaintiff at Tacoma, Washington, promising that the same would be of choice, quality”; that “defendant * * ■* bought of the United States Packing Company, and had shipped to plaintiff at said price, a carload of turkeys, but did not require said seller to furnish turkeys of choice quality”; that they were “in fact of inferior quality, worth in the market $2,060.68 less than they would have been if of the quality agreed upon.” The defendant, in its affidavit of merits, denied that it promised the merchandise would be of choice quality or that it agreed that it would require the United States Packing Company to furnish turkeys of choice quality; denied indebtedness; denied that the turkeys were of inferior quality and worth less than the market price of turkeys of the quality bought by the plaintiff.

The history of the trials in this canse shows the following: (first trial) the jury discharged on motion of the plaintiff; (second trial) a juror withdrawn on motion of the plaintiff and the cause continued; (third trial) a verdict for the plaintiff in the sum of $600, which, on motion of the defendant, was set aside and a new trial granted; (fourth trial) a disagreement of the jury; and (fifth trial) the judgment here appealed from.

On October 18, 1910, plaintiff, at Tacoma, wrote to the defendant, £ £ Could you inform us as to the best place to buy turkeys, or where you think they are the cheapest and the fattest! Can you give us the names of some reliable dealers in Kansas, or wherever they are!” On October 22, 1910, defendant wrote the plaintiff that it had taken the matter up with several of the local people, and that they had found a concern in Chicago which had “a number of places through Missouri, Kansas and Nebraska, from which they could ship to the coast.” The letter further stated: ££If you will give us specifications of your requirements for a car, we will be pleased to take the matter up with these people and purchase these turkeys for you. We would want it strictly specified as to just what you want and we will see to it that the shippers fill your order in accordance with your directions. The writer has had some experience in handling poultry arid we believe that we could handle this deal for you and obtain the brokerage from the sellers, and, at the same time, get the turkeys for you just as you could get them yourselves. Therefore, if you will comply with our suggestions, we will be pleased to go into the matter and advise you as to just what price we can get a car delivered Tacoma for you.” On October 26th the defendant sent a telegram stating that they found Texas was the best place to buy Thanksgiving turkeys and that they could get a car from there for shipment in time for the Thanksgiving trade. “Advise ordering immediately as market likely to go higher Thanksgiving approaches; these guaranteed choice fresh birds.” That telegram was confirmed by a letter of October 26, 1910, in which letter it was stated: “The offer we have is only for a day or two and we feel that the market is likely to go higher. The Chicago market, at the present time, is about 20 cents on turkeys, but a very poor selection of birds could be purchased at that price and the ones that we are offering you are guaranteed choice quality. We hope to hear from you giving us an order for this car.” On October 28, 1910, the defendant telegraphed the plaintiff, “Can use one or two cars frozen turkeys as per your telegram.” On October 29, 1910, defendant telegraphed the plaintiff that it had booked one car turkeys which would be “thoroughly chilled to temperature of car, shipped in barrels * * * Wire City National Bank, Wichita Falls, Texas, that draft will be paid. Answer.” On the same day the plaintiff wired the defendant that the “birds must be'choice and routed Burlington and N. P.” In the letter of October 29, 1910, the defendant wrote that upon receipt of plaintiff’s order they called up “the parties offering the turkeys and ascertained from them that these are thoroughly chilled before putting into the iced car, and that they would guarantee their condition for shipment to the coast * * *. Shippers also requested us to wire their bank at shipping point that draft will be paid. They were not acquainted with you and thus their reason for asking this. We find we omitted in our wire to state who would be making the draft and for your information will say that this is the U. S. Pkg.” In that letter was also inclosed and sent to the plaintiff the defendant’s memorandum referred to as a “Broker’s Note,” which is as follows: “Carstens Packing Co., Tacoma, Wash. We have sold you. for account of United States “Packing Co., 22-5th Ave., Chicago, one (1) car dressed turkeys in barrels, 65% yonng toms, 35% hens. Price 20% per pound, f.o.b. Texas shipping point. * * * Inspection: Guaranteed fresh packed stock, to be properly chilled and shipped in properly refrigerated car. Brokerage: Sellers.” Upon the back of the broker’s note there was stamped, “Rec’d Nov. 1, 1910, Carstens Packing Co., 3:20 o’clock.” A corresponding note was sent by the defendant to the United States Packing Company, which recited, among other things, that the defendant had sold, for the account of the United States Packing Company to the plaintiff, the property in question and that the defendant’s commission was 3% per cent. Some further correspondence took place between the plaintiff and the defendant on the subject of further purchases of turkeys by the plaintiff. On November 1,1910, the City National Bank, Wichita Falls, Texas, sent a telegram to the plaintiff: “Answering wire. Guarantee must be from a bank and for a draft up to certain amount not specifying the kind of turkeys. We have no means of knowing whether turkeys are choice or that they would meet yo-ur grades. Understand draft to be made by United States Backing Company.”

On November 2, 1910, plaintiff, by letter, requested the National Bank of Commerce of Seattle to wire the City National Bank of Wichita Falls, Texas, that it would guarantee the draft of the United States Packing Company for $5,000 on the defendant for turkeys. The National Bank of Commerce, accordingly, wired the City National Bank as directed. Two days later, on November 4, 1910, the defendant wired plaintiff, requesting it to wire the City National Bank at Wichita Falls that they would honor the draft of the United States Packing Company, which telegram recited further: “This is new bank they are dealing with and bank wants explicit instructions. Expect get car started tomorrow. Quality guaranteed,”

The United States Backing Company, on November 10, 1910, at Wichita Falls, Texas, drew on the plaintiff at Tacoma, for the sum of $4,123.12, to the order of the City National Bank. Attached to the draft was a bill of lading covering the shipment, which acknowledged the receipt of the turkeys at Greensville, Texas, on November 9, 1910. The draft, going through various banks, was finally paid on November 23, 1910.

The turkeys were received in Tacoma, November 22, 1910, and on the following day plaintiff wired the defendant: “Turkeys poor * * *. Had them sold but none would take them account quality. You must help us make settlement. Shipment came through in fine condition but quality not at all what we bought. ’ ’ On November 25, 1910, defendant answered' the telegram of November 23rd, in part, as follows: “We have called up the United States Packing Company this morning and told them of your complaint. They told us that they would let us know this evening what they could do in the matter, but up to this writing we have not heard from them again.” In that telegram the defendant further stated that it was willing to send a check for $50 as evidence that it wished to satisfy the plaintiff.

On February 28, 1911, the United States Packing Company wrote the defendant: “We cannot understand how they could make such a loss as that on a car of turkeys. We simply did our part when we packed the car and sold it f.o.b our station, and we delivered just what we promised to deliver * * *.” On February 28, 1911, the defendant wrote the plaintiff that it had talked with one Marlowe of the United States Packing Company and that he stated that the Packing Company “had promised to ship the best birds obtainable at that time of the year,” and that they had done so. In its letter it further wrote: “As stated in our letter yesterday, we did not consummate the trade with these people until we had investigated them to our entire satisfaction and when they guaranteed to ship the best quality of birds obtainable, we considered that that was sufficient and, therefore, closed the trade. * * *”

It is contended by the defendant: First, that the evidence does not show that the defendant warranted the quality of the turkeys; second, that the contract effected by the defendant for the purchase of the turkeys from the United States Packing Company was ratified by the plaintiff.

The evidence shows that the plaintiff sought information from the defendant in regard to where turkeys might best be bought; that on October 26, 1910, in a telegram, evidently giving voluntary advice to the plaintiff, the-defendant, after advising an immediate order as the market was likely to go higher, used the words,- “these guaranteed choice birds.” From the context, the reasonable conclusion seems to be that those words had reference to a guaranty by the sellers and not by the defendant. That interpretation is supported by the telegram which was sent on October 26, 1910, which contained the words “but a very poor selection of birds could be purchased, at that price and the ones that we are offering you are guaranteed choice quality.” The subsequent telegram, that of October 28, 1910, from the defendant to the plaintiff, ‘ Can use one or two cars frozen turkeys as per your telegram,” and the telegram of October 29, 1910, in which the defendant telegraphed the plaintiff that it had booked one car turkeys which would be “thoroughly chilled to temperature of car, shipped in barrels * *■ * Wire City National Bank, Wichita Falls, Texas, that draft will be paid. Answer,” together with the answer of the plaintiff, by wire, “Birds.must be choice and routed Burlington and N. P.,” and the letter of October 29, 1910, from .the defendant to the plaintiff, in which the defendant wrote that upon receipt of plaintiff’s order it called up “the parties offering the turkeys and ascertained from them these are thoroughly chilled before putting into the iced car,” and that they would guarantee their condition for shipment to the coast, constitute, all taken together, practically all the material evidence of whatever obligations became binding on the defendant to the plaintiff.

It is impossible to read the correspondence and all the material evidence in regard to the obligation of the defendant—all of which lies within the four corners of the letters and telegrams—without being driven to the conclusion that, wherever words were used by the defendant in reference to the quality of the turkeys, they were used as meaning the quality which the seller would agree upon and not the quality which the defendant undertook, itself, to guarantee.

Undoubtedly there is some ambiguity in the phraseology used by the defendant in regard to the alleged guaranty, that the merchandise would be of choice quality, but, after careful analysis, we are of the opinion that, taken altogether and fairly interpreted, it does not sufficiently tend to prove, let alone actually prove, an express promise on the part of the defendant “that the same would be of choice quality,” as alleged in the statement of claim.

Further, we are of the opinion that the broker’s note, which, on October 29, 1910, the day the contract was consummated, and which made a full and complete disclosure of the terms of the contract, and was forwarded to the plaintiff at Tacoma, where it was received at 3:20 p. m., November 1, 1910, constituted exclusive evidence of the contract made by the defendant for the purchase of the turkeys. Saladin v. Mitchell, 45 Ill. 79; Murray v. J. M. Doud & Co., 167 Ill. 368; Eau Claire Canning Co. v. Western Brokerage Co., 213 Ill. 561. Then, too, not only did the plaintiff accept the broker’s note as to the terms of the contract, but, subsequently, wired the Texas bank that the draft covering the shipment, drawn on the United States Packing Company, would be paid. Bearing such facts in mind, it is impossible to avoid the conclusion that even if the defendant did not do what it promised to do, the plaintiff ratified what it did do. Inasmuch, therefore, as the evidence failed to prove that the defendant made any binding promise as to the quality of the turkeys, and, as all the evidence on that subject—consisting entirely of letters and telegrams—places us in such a position that we have the same opportunity of determining the facts in that regard as the jury; and as the evidence shows that the contract of purchase—as shown by the acceptance of the bought-note—was ratified, after full knowledge, by the defendant, we are óf the opinion that the plaintiff failqd to establish a cause of action, and that the judgment should be reversed.

Reversed with a finding of fact.

Finding of fact. That the evidence fails to show that the defendant promised that the merchandise would be of choice quality; that the bought and sold notes constituted the evidence of the contract which was made as to the merchandise; and that the plaintiff by its conduct accepted and ratified the contract so made.

Mr. Justice O’Connor

dissenting.

Defendant was employed by plaintiff to purchase turkeys of choice quality, which defendant agreed to do. Defendant purchased turkeys for plaintiff which defendant said were of choice quality. The turkeys, however, were of inferior quality. The defendant, therefore, breached its agreement, and as a result of such breach plaintiff incurred damages, for which defendant should be held liable.