author: ■ Mr. Justice Bakeb

text:
    John Elliot et al., Appellees, v. Frederick O. Swannell et al., Appellants.
    Gen. No. 15,041.

      Partnership—when established. Meld, that the evidence in this case, which showed a joint undertaking having for its object the acquisition of mining property, established, as to the plaintiffs, the relation of partners between the defendants.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. R. W. Clieeobd, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    Loomis, McMahon & Gbabeb, for appellants.
    Alden, Latham & Young, for appellees.
   ■ Mr. Justice Bakeb

delivered the opinion of the court.

Plaintiffs, solicitors at Nelson, British Columbia, brought an action of assumpsit in the Circuit Court against appellants and one Wollin for services as solicitors alleged to have been rendered by them to defendants. The pleas were non assumpsit by all of the defendants, a joint plea by Lausten and Wollin denying joint liability with each other or with the other defendants, and separate pleas by Swannell and Sherlock denying joint liability with any of the other defendants. While the suit was pending the death of Wollin was suggested on the record. A trial by the court resulted in a finding and judgment for $350 against Swannell, Sherlock and Lausten, to reverse which they prosecute this appeal.

In 1899 the defendants lived in Chicago. In September of that year, McCulloch, a mining broker at Nelson, B. C., came to Chicago and submitted to Swannell a mining proposition. He appears to have convinced Swannell that Beer Brothers of Nelson had leases on and options to purchase a group of mines situated about 150 miles from Nelson, which expired in July, 1900; that he, McCulloch, had an option to purchase said mines for $75,000, to become operative at the expiration of the Beer’s option; that at the mines were a hundred tons or more of ore of great value, but which could not be taken to market because there was no road or trail from the mines; that with $5,000 he could secure an assignment of the Beer lease and of the ore at the mine, obtain possession of and operate the mines and thereby ascertain their value before the expiration of the Beer’s option, construct a “raw hide” trail from the mines and thereby market the ore then on hand and that thereafter to be mined, and that from the sales of the ore the $5,000 could be repaid and great profits in' addition thereto made and realized. Through Swannell the other defendants were induced to take an interest in the proposition so submitted by McCulloch. That Swannell and Sherlock each contributed $2,750 and Wollin $625 is admitted. We think that from the evidence the court might properly find that Lausten contributed $625. Briggs and McCulloch were to go to Nelson and render their services in securing such leases and options and in the development of the mines without remuneration, except for their necessary personal expenses, until the amounts' so contributed should be repaid to the contributors. After all of said money had been repaid Briggs and McCulloch were to receive salaries, if they were retained. It was further agreed that the profits arising from the sale of the ore on hand and from the operation of the mines, after the repayment of the money so contributed, should be divided as follows: Briggs 10%, Wollin 5%, McCulloch 25%, Lausten 5%, Sherlock 27%%, Swannell 27%%, and that when the value of the mines was determined if it was decided to acquire and operate them a corporation should be formed, and that each of said parties should receive the same percentage of all the stock issued to all said parties that he was to receive of the profits. No part of the money so contributed was to be paid to McCulloch, and none was paid to him, but it was all placed in the hands of Briggs. It was further agreed between said parties that the agreement between them did not constitute a partnership. Briggs went to Nelson in October, 1899, secured an assignment to himself of the Beer’s leases and options, and proceeded to operate the mines in the name of the “Beatrice Mines”, and opened with a bank at Nelson ah account in the name of “C. H. Briggs, trustee”, in which he deposited the money received from the contributors and from the sale of ore and from which he paid expenses incurred in operating the mines. In thus acquiring said leases and options and in the operation of the mines Briggs was assisted by McCulloch.

It was important to defendants not only that they should learn the value or probable value of the mines by operating them in order to determine whether they should purchase them, but that they should be advised as to the validity of the leases and options they proposed to acquire. Briggs testified that he did not retain plaintiffs, but it appears from his testimony that he was at their offices at Nelson and saw one of the plaintiffs make a memorandum on a draft of a proposed contract between the defendants and himself and McCulloch, which Swannell had prepared. Lennie, one of the plaintiffs, testified positively that he was employed by Briggs to act for defendants in connection with the negotiations for the leases and options for said mines and to look after their interests while work was in progress at the mines. The services rendered were such as are usually required of a solicitor by a person who contemplates acquiring an interest in and operating a mine. They consisted in the examination of title papers, drawing and revising contracts and other documents in relation to the mines, consultation and advice as to matters in relation to the mines, application to the government of British Columbia for a refund of money expended on a wagon road and services in relation to snch application. We think that from the evidence the court might properly find that plaintiffs were employed to act for the defendants.

The principal ground of reversal urged is that the evidence does not show that the defendants were co-partners.

It is clear that the transaction' was not a loan of money by defendants to McCulloch. No part of the money was paid to him nor any promise, express or implied, made by him to repay the money to defendants. Wollin died pending the suit and the judgment was properly rendered against the remaining defendants if the evidence is sufficient to warrant and support a finding that as between them and plaintiff they were co-partners.

We think that under the evidence in the record the defendants were properly held liable as co-partners to the plaintiffs. Swannell v. Byers, 123 Ill. App. 545.

The record is, we think, free from error and the judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Bakeb

license: Public Domain

text:
    Joseph Mandelbaum, Appellee, v. A. L. Swift, Appellant.

      Gen. No. 15,056.

      Verdicts—when set aside as against the evidence. A verdict will be set aside on review where the same is clearly and manifestly against the weight of the evidence.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed April 18, 1910.
    Broke B. Davis, for appellant.
    At.tvret) E. Case, for appellee.
   Mr. Justice Bakeb

delivered the opinion of the court.

In an action of assumpsit in the Superior Court plaintiff had judgment for $350 and the defendant appealed. The evidence for the plaintiff consisted of his own testimony alone. He testified that in April, 1901, he entered into a written contract with the defendant to move for defendant certain presses from 180 Monroe street to the Springer building, 200 Clinton street, and that the said written contract was lost. He stated some of the contents of the writing, but gave no testimony tending to show the price agreed on in and by said written contract for the work. He testified that he performed the contract and also moved a printing press and certain desks and railings which were not included in the written contract; that the reasonable price for moving the desk was $40 and for the desk and railings $100. He further testified that after the work had been done he had a conversation with defendant, and that defendant agreed to give him $250 for doing the work; that the extra work was 1 in addition to that sum; that defendant made an objection that plaintiff had not delivered all the articles he received and afterwards was willing to give plaintiff $150.

Defendant testified that in 1901 he was president of a corporation, A. L. Swift & Company; that he never entered into a contract with plaintiff and never employed him to move any thing for any person; mat A. L. Swift & Co. moved from 180 Monroe to 200 Clinton in 1901, and let the contract for such moving to Gibson Brothers; that Gibson Brothers notified defendant that they had sublet the teaming part of the contract to plaintiff; that Gibson Brothers were paid for such moving less a deduction of $200 for articles taken by.plaintiff-’s teams from 180 Monroe and not delivered at 200 Clinton street; that A. L. Swift & Co. owned all the articles so moved and that defendant did not own any of them. Etten testified that he was at the time in question secretary and treasurer of A. L. Swift & Company; that Gibson Brothers undertook to move A. L. Swift & Company from 180 Monroe to 200 South Clinton. Hillison testified that he was superintendent of A. L. Swift & Company; that Gibson had the contract for moving A. L. Swift & Company.

The moving was done in the spring of 1901 and the suit was brought July 13, 1906.

We think that the verdict was so clearly against the weight of the evidence that the court erred in denying defendant’s motion for a new trial, and the judgment will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Baker

text:
    John Jarck, Appellee, v. Featherstone Foundry & Machine Company, Appellant.
    Gen. No. 15,061.

      Negligence—what tends to establish defect. Testimony by a witness that he picked up the broken pieces of a link in a chain at the time of the accident and saw where it was broken and that on one side of the link there was an old and rusty break, is evidence tending to show both that the chain was defective and that the master knew or should have known of such defect.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George A". Durov, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    E. E. Gray, F. J. Canty and J. C. M. Clow, for appellant.
    Boyal W. Irwin and Frank W. Koraleski, for appellee.
   Mr. Justice Baker

delivered the opinion of the court.

In an action on the case for personal injuries the plaintiff had judgment for $2,500 and the defendant appealed. Defendant had at Chicago a foundry, in which was a jib crane used to lift castings out of the flasks and also to overturn heavy flasks from which the castings had been removed, so as to dump the sand from the flasks on to the moulders’ floor. The crane was operated at night by hand. To overturn a flask a chain from the outer end of the jib or boom of the crane was hooked to one end of a flask, and by means of a windlass and crank operated by two men, the outer end of the jib or boom was raised and the flask thereby overturned. Plaintiff was a laborer in the services of the defendant, and worked nights. He had from time to time for several months assisted in operating the crane. He was injured about ten o’clock at night. He with another man was engaged in overturning a flask filled with sand, weighing 2,500 pounds o'r more. While he and the other man were turning the crank of the windlass to raise the jib or boom, the chain by which the end of the flask was attached to the outer end of the jib or boom broke, the crank was thrown off the end of the windlass and thereby plaintiff lost his balance and involuntarily threw some of the fingers of Ms right hand into the gear wheels nearby, whereby they were so injured that it was necessary to amputate three of his fingers.

The negligence alleged in the declaration is that the defendant “carelessly and negligently furnished, provided and maintained said derrick in a dangerous, unfit, unsafe and improper condition, and carelessly and negligently furnished, provided and maintained for plaintiff’s use in connection with said derrick, divers chains, cables and ropes which were worn out, weak, broken, unsafe and insufficient, of all of wMch the defendant had notice, or by the exercise of ordinary care on its behalf could have had notice, and of which the plaintiff did not have notice”, so that by means thereof, while using the same in exercise of ordinary care for Ms own safety, the same broke and plaintiff’s hand was thereby caught in the glaring of said machine and his fingers cut off.

We do not regard it as material whether the chain which broke was brought to plaintiff by his foreman on the night of the accident with a direction to use it in raising heavy flasks, as plaintiff contended, or was taken by plaintiff from a place where chains to be used for such work were kept, as defendant contended. In either case it was a chain provided by defendant for the use in which it was employed by plaintiff when he was injured, and the defendant owed to plaintiff the duty to use reasonable care to see that the chain was reasonably fit and suitable for the use and purpose for which it was provided. In either case the jury might properly find from the evidence that the plaintiff was ignorant of any defect in the chain ana was in the exercise of reasonable care for his own safety.

The chain which broke was made of % iron, the links four to six inches long. The only testimony as to the manner of the break was that of Busek, a witness called by plaintiff, who testified that he was at work in the same room, heard plaintiff cry out, went to Mm, picked him up and then saw the chain and took it in Ms hand. He testified that the link was in two pieces, broken across both sides of the link; “one side of it was a fresh break, the other old and rusted. * * * On top it was cracked and rusted and down in the inside it was a fresh break.” Busek further testified that he left the broken pieces of the link on the floor of the foundry, but defendant apparently made no effort to preserve them and they were not produced by defendant or accounted for on the trial. In Momence Stone Co. v. Grover, 197 Ill. 88, the plaintiff, a servant of the defendant, was injured by reason of the breaking of an iron hook used by defendant to attach cars to a cable, and it was held that testimony by a witness that he picked up the broken pieces of the hook at the time of the accident and saw where it was broken, and that the break was old and rusty, was evidence tending to show both that the hook was defective and that the defendant knew or should have-known of the defect. See, also, C. & N. W. Ry. Co. v. Gillison, 173 Ill. 264.

The distinction between this case and Sack v. Dolese, 137 Ill. 129, where the accident occurred by reason of the breaking of a brake chain, is, that in that case there was no evidence that there was any defect in the brake chain, and here the evidence showed a visible crack or break in the chain. We think that on the evidence in this record the jury might properly-find the defendant guilty of- the negligence alleged in the declaration, and the judgment of the Superior Court is affirmed.

Affirmed.


author: Me. Justice Bakeb

text:
    The People of the State of Illinois, ex rel. Joseph H. Greer, Plaintiff in Error, v. The City of Chicago et al., Defendants in Error.
    Gen. No. 15,944.
    1. Streets and alleys—when city may vacate. If an ordinance does not by its terms vacate a plat but vacates portions of a street and alleys, the ordinance is valid without a deed of vacation by lot owners, and the question of what motives may have influenced the city council in adopting such ordinance will not be judicially inquired into but -the presumption will be indulged in favor of the validity of such ordinance that there was a public necessity for its adoption.
    2. Streets and alleys—when ordinance of vacation not void. If owners of lots by a vacation are not deprived of the use of an alley in the rear of their lots, or of access to and from the public streets of the city, the courts will not say as a matter of law that the mere inconvenience to which they are put by the changes made by .an ordinance of vacation, is such a clear abuse of the discretion vested in the city council as to justify the holding of such ordinance void.
    3. Streets and alleys—lohen portion of ordinance of vacation

      void. Held, that an ordinance vacating portions of a street and alleys which contained a proviso that in a certain contingency such ordinance should he void, was, as to such proviso, and as to an attempted reservation of a right to maintain a sewer and water pipes in the vacated portions of such street and alleys, unauthorized by law and invalid.
    Bill in chancery. Error to the Circuit Court of Cook county; the Hon. Chables M. Walker, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    Statement Tby the Court. This was an amended bill in chancery filed in the name of the People of the State of Illinois by the State’s Attorney of Cook county on the relation of G-reer, a citizen and elector of Chicago, in his own behalf as well as that of the general public, to have adjudged void and invalid a certain ordinance of the city of Chicago purporting to vacate a portion of South Troy street and portions of two alleys leading thereto, and to enjoin said defendants from doing any act which should interfere with the use by the public of the portions of said street and alleys which said ordinance purported to vacate. The defendants demurred to said amended bill, their demurrers were sustained, and the complainant electing to abide, the amended bill was dismissed for want of equity. To reverse said decree complainant sued out in the Supreme Court a writ of error and the cause was, by order of that court, transferred to this court.
    The amended bill alleges in substance that in 1872 the then proprietors of certain lands surveyed and platted the same, acknowledged and recorded a plat thereof, which was accepted by the city of Chicago and duly recorded; that thereby the streets and alleys shown by said plat were dedicated to public use, etc.; that that portion of South Troy street shown on said plat between Jackson boulevard and Van Burén street lies between block 7 of said subdivision on the east and block 8 on the west; that the alleys in question extend across said block 8 from South Troy street to Kedzie avenue; that the defendant, the Servóte Fathers of West Chicago, is a corporation, was in possession of all of block 7 and maintained a church and school thereon, and was also in possession of that part of block 8 which abuts on said South Troy street; that October 29, 1896, the city council of Chicago passed an ordinance which was approved by the mayor and is as follows:
    “Be it ordained by the city council of the City of Chicago: Section 1. That that portion of South Troy street, bounded on the South by the North line of West Van Burén street, on the East by the West line of Lot 7 of James Couch’s Subdivision of North one-half (N. %), South one-half (S. %), Northwest one-quarter (N. W. 14 ), Section 13, 39, 13; on the North by the South line of Jackson Boulevard, and on the West by the East line of Block 8, James Couch’s Subdivision of the North one-half (N. %),- South one-half (S. %), Northwest one-quarter (N. W. %), Section 13, 39, 13; also that part of the first 16-foot alley South of Jackson Boulevard, beginning at the West line of South Troy street and extending 122.76 feet west; also that part of the first 16-foot alley North of West Van Burén street, beginning at the West line of South Troy street and extending 122.76 feet west, as shown in the space colored pink and marked ‘to be vacated’ in the attached plat, which for greater certainty is made a part of this ordinance, be and the same are hereby vacated and closed, provided, however, that if any part of the street or alleys so vacated shall at any time hereafter be used for any other than religious or educational purposes, then and in such case this ordinance shall be void, and the said vacation shall be for naught held; and provided further that the City of Chicago shall at all times have the right to maintain and operate any and all water pipes and sewers in said street and alleys.
    “Section 2. This ordinance shall take effect and be in force from and after its passage; provided, however, that the owner or owners of the property abutting upon the street and alleys hereby vacated shall within thirty (30) days after the passage' of this ordinance file with the ¡Recorder of Deeds of Cook County, Illinois, a copy of this ordinance and the plat attached thereto.”
    The bill then avers that said corporation filed for record a copy of said ordinance with the plat attached thereto, which plat is set out in the bill.
    It is further alleged in substance that said ordinance is in violation of section 3, article VIII of the constitution; that it is void because no petition therefor was filed or deed of vacation made by the lot owners in said subdivision, and also because it shows on its face that the object and purpose thereof was to vacate said street and alleys for private use and to give said corporation property rights in said street and alleys, etc.; that said corporation has taken possession of the portions of said street and alleys so vacated; that the purpose of the passage of said ordinance by said council was to donate to said corporation the portions of said street and alleys mentioned in said ordinance for the purpose of diverting public property to a private use; that said South Troy street had been a public street, in which were sidewalks, a sewer and water pipes.
    John J. Healy, for plaintiff in error; A. B. Chilooat, of counsel.
    Matthew P. Beady, Edward J. Beundage, John" J. Beilman and Emil O. Wetten", for defendants in error.
   Me. Justice Bakeb

delivered the opinion of the court.

The. power to vacate streets and alleys is given to the city council of cities by paragraph 7 of article V of the Cities and Villages Act. The ordinance does not by its terms vacate a plat, but vacates portions of a street and alleys, and no deed of vacation by the lot owners was required. It is not contended that the ordinance was not adopted in the manner prescribed by chapter 145, R. S.

Whether the motives which influenced the city council in adopting the ordinance in question are proper, cannot be judicially inquired into. People ex rel. Friend v. Wieboldt, 233 Ill. 572. It is to be presumed in favor of the validity of the ordinance that there was a public necessity for the action of the city council, and this presumption is not negatived or overcome by the language of the ordinance or by any fact stated in the bill. The allegations of the bill as to the object and purpose of the ordinance are but conclusions of the pleader and therefore are not admitted by the demurrer. If the title to the portions of the vacated street and alleys vested in the owners of the abutting property, it so vested by operation of law.

It appears from the plat, which is a part of the bill, that the alleys, portions of which were vacated by the ordinance, run to Kedzie avenue on the west and are connected immediately west of the portions so vacated by a north and south alley, so that from the rear end of each lot abutting on the unvacated portions of said alleys there is an alley sixteen feet wide leading to Kedzie avenue. The relator Greer and the other owners of said lots were not deprived of the use of an alley in rear of their lots, or of access to and from the public streets of the city, and this court cannot say, as a matter of law, that the inconvenience to which they are put by the changes made by the ordinance is such a clear abuse of the discretion vested in the city council as to justify this court in holding the ordinance void. People v. Wieboldt, supra.

The statute gave ‘to the council the power to vacate the street and alley and the ordinance provides that certain specified portions thereof “be and the same are hereby vacated”. Then follows the provision that if any portion of the street or alley so vacated sba.11 at any time thereafter be used for any other than religious or educational purposes, the ordinance shall be void, and the proviso reserving to the city of Chicago the right to maintain water pipes and sewers in said street and alleys.

We think that the ordinance was operative as a vacation of the portions of the street and alley which by its terms were vacated, and that the proviso that in a certain contingency the ordinance should be void and the. attempted reservation of a right in the city to maintain a sewer and water pipes in the vacated portions of said street and alleys were unauthorized by law and invalid. Cooper v. Detroit, 42 Mich. 584; Wirt v. McEnery, 21 Fed. 233; Cheshire Turnpike v. Stevens, 10 N. H. 133.

The amended bill of complaint does not, in our opinion, state facts entitling the complainant to the relief sought by the bill, and the Circuit Court did not err in sustaining the demurrer and dismissing the bill for want of equity, and the decree will be affirmed.

Affirmed.


author: Mr. Justice Freeman

text:
    John Bentley, Appellee, v. William J. Ross et al., On Appeal of William J. Ross, Appellant.
    Gen. No. 15,015.
    1. Assignments—what conduct by assignee will not invalididate. Sold, that the assignment in question in this case which conveyed an interest in the subject-matter of pending litigation to a party who was a material witness in such litigation, was not by virtue of such conduct invalidated, nor was the right of the assignee to enforce such assignment in a court of equity affected by his failure to disclose when on the stand as a witness in such litigation the fact of his interest in the subject-matter thereof.
    2. Reformation—jurisdiction of chancery. It is within the power of a court of chancery to reform an instrument in writing to make it conform to the mutual intent of the parties existing at the time of its execution.
    3. Masters in chancery—when objection to taxation of fees comes too late. An objection urged to the taxation of the fees of a master in chancery which is first urged in a particular form in the Appellate Court comes too late and will not be considered, such objection being of a character that if made in the trial court might have been there obviated.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Meeritt W. Pinckney, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    Rehearing denied May 2, 1910.
    Statement by the Court. In March, 1902, complainant Bentley filed a bill alleging in substance that prior to November 11th, 1901, he performed services and expended money for William J. Ross and J. J. Ross constituting the firm of Ross & Ross, who were contractors engaged in the construction of the Sixty-eighth street water tunnel in Chicago; that said firm had brought suit and recovered judgment against said city for $35,000, by reason of their contract for construction of said tunnel; that on the eleventh of November, 1901, said firm executed an assignment in writing to complainant of one-third of their claim in said suit over and above expenses of the litigation; that said firm and the city were negotiating and about to make a settlement of the suit for a sum of money to complainant unknown; that complainant on March 8, 1902, had requested William J. Ross of said firm to give him an order on the city for payment to him of his third of the amount of the settlement in accordance with the assignment; and that while admitting the indebtedness to complainant said Ross refused to give such order. The bill prayed for an injunction restraining the city from paying and the firm of Ross & Ross from receiving the money so due them until the further order of court.
    Subsequently an amended and supplemental bill was filed, alleging in substance that in the month of May, 1897, complainant was engaged by defendants Ross & Ross, as superintendent of the said tunnel work under an agreement then made with defendants, by which he was to receive for his services a monthly salary1 of $150 and in addition thereto a third interest in the net profits made by defendants under their contract for the construction of said tunnel; that in January, 1898, the city of Chicago attempted to forfeit defendants’ contract and took possession of the tunnel; that thereafter defendants began suit in the Circuit Court of Cook county against the city of Chicago, which was numbered general number 180,302; that said suit was an action in assumpsit brought for the purpose of recovering from the city the amount claimed by defendants to be due them under their contracts with said city for work and material furnished in the construction of said Sixty-eighth street tunnel; that the trial of said suit began early in October, 1901, and continued until on November 27, 1901, a verdict was returned in favor of defendants for $35,000, and on April 8, 1902, judgment was entered upon salid verdict. Complainant avers that under the verbal agreement between him and said defendants, he had a one-third interest in said claim and the proceeds of the said suit, but that no writing had been executed to evidence said agreement; and that while the trial of said suit was in progress becoming dissatisfied because of that situation he requested said defendants to assign and transfer to him his said interest in writing; that thereupon said defendants executed and delivered to him an instrument in writing as follows:
    “This Memorandum of Agreement made this 11th day of November, A. D. 1901, between William J. Boss and J. J. Ross, composing the firm of Ross & Ross, contractors, the City of Chicago, Cook County, Illinois, and John Bentley of the same place, Witnesseth:
    “Whereas, said Ross & Ross are the owners and holders of a claim against the City of Chicago for damages under a contract between said Ross & Ross and said city for the construction of the 68th street water tunnel, which said claim now in suit pending in the Circuit Court of Cook County, wherein said Boss & Boss are plaintiffs, and the said City of Chicago is defendant, being case Gen. No. 180,301.

      “Now, therefore, the said Boss & Boss, for and in consideration of the sum of one dollar and other good and valuable consideration by them, the said Boss & Boss, received of and from the said Bentley, have assigned, transferred and set over, and do hereby assign, transfer and set over to said Bentley one-third of their said claim in said suit, and one-third of ány final judgment which may be entered in their favor in said suit and one-third of any settlement or compromise of said claim, meaning and intending hereby that after payment of all court costs, attorneys’ and stenographers’ fees and expert witness’ fees; also, printing of briefs and other necessary expenses and obligations, deducting the same from the amount of the final judgment in said suit or settlement thereof, one-third of the balance remaining shall belong to and be the property of said Bentley, and he may receive and recover the same by suit or otherwise.
    “Witness the hands and seals of the parties the day and year first above written.
    “Boss & Boss,
    “By W. J. Boss.”
    It is further alleged that when the city of Chicago forfeited its contracts with said defendants in connection with said 68th street tunnel, it took possession of certain machinery, tools and material of said defendants, whereupon the latter began an action in trover against said city in the Circuit Court of Cook county, which was numbered general number 180,301 as complainant now knows, in which last mentioned suit complainant has not and never has had any interest. Complainant avers that the suit in which he was interested was the suit in assumpsit on trial in the Circuit Court at the time said written instrument and assignment above set forth was executed, and it was the claim involved in that suit which it was intended should be covered by and described in said written assignment and not the said trover suit; and that it was by mistake or inadvertence on the part of the scrivener by whom said instrument of assignment was drawn, that the general number 180,301 of said trover suit was erroneously inserted in said instrument, instead of the general number 180,302 of said suit in assumpsit, which it was the intention and agreement of the parties the said instrument of assignment should relate to; and therefore the said instrument of assignment should be reformed and corrected so that the general number 180,301 therein mentioned should be changed to 180,302 to accord with the agreement and intention of complainant and defendants. Complainant alleges that by ordinance effective April 9, 1902, the city of Chicago authorized settlement of said defendants’ claim at $35,000, a judgment for which amount has been entered in said assumpsit suit; that said defendants are insolvent and financially irresponsible, that they pretend complainant has no interest in said judgment and are fraudulently endeavoring to take advantage of. said mistake of the scrivener and pretend that it is not the $35,000 fund in which complainant has a third interest, but a fund of $5,000 for which defendants and the city settled the trover suit.
    The defendants answering deny the material averments of the bill, allege they received no consideration and were induced to execute the written assignment of November 11,1901, by threats and intended thereby to convey only ah interest in the trover suit.
    The cause was referred to a master, who found the issues in favor of complainant. Objections and exceptions of the defendants were overruled and the court entered a final decree reforming the written instrument of assignment so as to correct the number 180,301 purporting to be the general number of the suit referred to therein to 180,302, and decreeing that the city of Chicago in addition to costs allowed pay complainant under the assignment of November 11, 1901, out of the fund in its hands, the sum of $5496.77. From that decree this appeal is taken.
    David K. Tone, for appellant.

      Mann & Miller, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

It is contended in behalf of appellant, William J. Eoss, that the overwhelming weight of the evidence shows it was never agreed to give the complainant a third of the net profits of the tunnel contract, but that the sole reason for executing the assignment of date November 11, 1901, was to secure complainant’s testimony in rebuttal and prevent him from assisting the city in the cause then pending.

In a supplemental report the master'in chancery to whom the cause had been referred, reported that after a full consideration of all the evidence, he was convinced the testimony of the complainant Bentley was more reliable than that of the defendant Eoss, and that the evidence in complainant’s behalf was more credible than that offered in behalf of the defendants. He finds that in May, 1897, the defendant Eoss verbally agreed with complainant Bentley that if the latter would continue as superintendent of the tunnel work on the 68th street water tunnel Eoss would give him $150 a month and one-third of the net profits of the tunnel contract. The testimony of the parties is directly in conflict on this preliminary proposition. Complainant testifies to the effect "that he began work for defendants on the 68th street tunnel in the latter part of December, 1896. He was employed as a brick layer. The tunnel was a seven foot water tunnel extending from the shore of Lake Michigan out to a point a little over a mile in the lake. After working as a brick layer two or three weeks he became brick layer foreman and so continued until the fourth of May following, when' he became superintendent of the work. At that time he was receiving $7 a day. As superintendent he received $150 a month and his board. The proposition to become superintendent was made to him by a letter signed “W. J. Eoss for Eoss & Boss, ’ ’ dated May 4,1897. In that letter Boss stated that matters had “been going very unsatisfactorily,” and that after serious consideration he had decided to offer Bentley “the position as superintendent at the crib at a monthly salary of $150 per month, which may lead to better.” The letter expresses the writer’s confidence in Bentley’s ability to handle the work and says “it is a chance which I think you should embrace;” that Bentley will have absolute control and that he is “authorized to discharge and employ men as it may seem best for the interest of the work;” that the writer realizes “the position means anxiety and responsibility,” but that “close attention and looking a little ahead will very much reduce the obstacles .which are sure to arise in the conduct of such work.” Upon the 20th of May following Boss again wrote Bentley that he decided not to visit the crib “until you had everything going in good working order, so that it could not be said that you did not handle the job wholly yourself.” Among other suggestions the writer says “the cheaper work is done, the more encouragement it gives to the contractor to pay such a superintendent the very highest wages; and there is no telling where it will eventually end.” Complainant testifies that when the letter of May 4th was delivered by the defendants’ bookkeeper, he— Bentley—said he did not want the position of superintendent ; that later when defendant Boss- visited the crib and expressed satisfaction that complainant had “got everything working in good shape,” the latter said, “Now Mr. Boss I have got this job straightened out so it is in good working order and I don’t want this position any longer,” giving as reasons that the compensation was not enough in the first place, that he could make more money working at his trade, that he had the responsibility, a twenty-four hour day and a big job on his hands; that he could make $9 a day working at his trade, and did not propose to continue as superintendent and have the responsibility of the job and the worry and excitement, and did not want to continue any longer. Complainant states that Boss then said: “John, I will tell you what I will do. * * # I will give you $150 a month as superintendent. You will get that monthly toward your expenses, and I will offer you one-third of the net profits of this work for your brains and labor.” Complainant says he accepted the offer, 'and he con- • tinned as superintendent until about the 20th of January, 1898, when the city undertook to forfeit the contract and took possession of the plant. Defendant Boss denies that any such conversation and agreement occurred. It is argued in his behalf that a careful and prudent man like Boss would not “volunteer to give a man who had not requested it such an extraordinary copartnership contract.” There is however no inherent improbability in an agreement to give a third interest in a tunnel contract as compensation for the responsibility and care involved in taking charge of the construction, a work which Bentley had apparently shown himself competent to handle, at a time when previous management had been unsatisfactory at least if not unsuccessful.

The suit brought by Ross & Ross against the city, ' after the attempted forfeiture of the tunnel contract, came on for trial in October, 1901. The verdict was returned November 27, 1901., A motion for a new trial having been overruled, judgment was entered against the city in April, 1902, for $35,000. While that trial was in progress complainant testified in behalf of Ross & Ross and was deemed an important witness. It was during that trial that the assignment of November 11, 1901, now in controversy, from Boss to Bentley of a third of the claim then in suit' was executed. Complainant states that he had a conversation with appellant Boss, and told the latter he was liable to be called to California at any time because of the illness of his daughter who had been sent there for her health; that if he should go, he did not know when he would return, and that there ought to be a written agreement between them; that if anything happened to either of them, he would have nothing to show his interest in the work. He says Boss agreed to this and that one McKechney, who appears to have been assisting Boss in the trial in some way, happening to approach, Boss asked him “to go ahead and draft the paper,” giving the substance of the paper to be drafted. The assignment in controversy was the result. Defendant Boss now claims that this assignment was extorted from him by threats that if he did not sign it he would be “thrown in the air” by Bentley as a witness; that Bentley had said “he was going to give evidence for the city,” and that he signed upon assurance by McKechney to the effect that it was necessary to do so for his own protection in the then pending litigation. It is impossible within appropriate limits to analyze the large mass of evidence. There is evidence in complainant’s behalf tending to show that appellant Boss at different times and to different persons admitted that complainant had a third interest in the fund in controversy. Bentley assisted in the preparation of the case against the city, and it is claimed by his counsel that his action in this respect tends to indicate he was in some way interested in the outcome. He was in court nearly every day and was in the office of the attorneys for Boss it is said about a hundred times. He testified three days in October and again in rebuttal in November. His testimony as to the alleged verbal agreement with Boss for a one-third interest is apparently consistent with expressions in the latter’s letters of May 4 and May 20, 1897. In the former of these letters is the offer of the position as superintendent at $150 a month, with the intimation that it “may lead to something better.” In the letter of May 20th, after stating that the cheaper the work is done “the more encouragement it gives the contractors to pay such a Supt. the very highest wages,” Boss adds, “and there is no telling where it will eventually end. I am thoroughly convinced that you have the ability to make a success. ’ ’ These expressions indicate that Boss may have had in mind then an offer of something that might be better than the “very highest wages” if necessary to induce Bentley to take the superintendency of the tunnel work, which he writes had “been going very unsatisfactorily” before Bentley took hold. His letters indicate anxiety to retain Bentley’s services in that capacity.

On the other hand it is said that at the trial of the tunnel case Bentley gave and intended to give in his testimony and statements an impression that he had no interest in the tunnel litigation. The master found that on the witness stand in that case “he evidently sought to convince the court and jury that he had no interest,” but finds that the fact he attempted to conceal his interest in the litigation “may be explained very easily” on the theory that if his interest appeared his testimony would be of much less value. No direct question as to Ms interest was however put to Mm on the witness stand and as a witness he made no denial of the fact. That he sought to conceal his interest could not however, as said in Smith v. Cremer, 71 Ill. 185-189, “affect the good faith of the original transaction.” It is not claimed Bentley testified that he had no interest; and should any of his testimony in that case be regarded as affecting Ms credibility as a witness, he was not thereby estopped from asserting M this proceeding such actual interest as he may be able to show.

It is contended “that oh November 27, 1901, the appellee by an instrument in writing released appellant from all liability under the Bentley assignment.” A written instrument was introduced, purporting to be a release by Bentley of all claims of every kind against defendants, which is claimed to have "been executed the evening of November 27, 1901, the date the verdict for $35,000 in the assumpsit suit was returned. TMs alleged, release is before us as an exMbit, and is denounced as a forgery by complainant. It is written in pencil in the handwriting of appellant Boss. It is singular that if signed by Bentley November 27, 1901, it should be dated, as it clearly is, November 27, 1902. The signature alleged to be Bentley’s is witnessed by appellant W. J. Boss and his brother, one Kenneth Boss. The instrument is as follows:

‘6 Chicago, Nov. 27th, 1902.
In consideration of Boss & Boss giving me a promissory note for three hundred dollars at three months the same being a cancellation of all claims of every kind which I may have against Boss & Boss, the said promissory note being dated 27th of Nov’r 1902.”

This so-called release was produced when Bentley was under cross-examination, and he denied its signature. It is contended by his counsel that the testimony as to the alleged execution of the instrument is demonstrated to be absolutely false. The master finds the instrument was written by Boss, that it was dated in 1902, and was not signed by Bentley. One witness familiar with Bentley’s handwriting testified he thought it was Bentley’s signature. Two experts on handwriting testified it was not. But the contradictory evidence of the defendants’ witnesses who claim to have been present at the alleged execution of this so-called release, the mute testimony of the document itself in the handwriting of defendant Boss, its date of 1902 although it is alleged to have been executed in 1901, the evidence not only of the witnesses but of a time book showing complainant’s whereabouts at the time it is alleged by defendants to have been executed by him, the improbability that a man holding a written assignment of a third interest in a verdict for $35,000 against the city, which had been rendered a few hours before, would abandon it under the circumstances alleged, and other evidence not necessary to review at length, tend strongly to justify and confirm the master’s finding and to create a conviction that the instrument in question is the result of an elaborate scheme deliberately planned, involving forgery and perjury, in behalf of appellants. In this connection reference may be had to an instrument introduced in behalf of complainant by the witness McKechney, who testified that it was written by defendant Boss prior to the execution of the assignment of November 11, 1901, to express, as Boss is said to have claimed, more exactly the intention of the parties. It is said to have been written by appellant Boss while the assignment was in preparation and to have been left by him on the table where it was found and retained by McKechney, to whom the preparation of the assignment had been intrusted. Appellant Boss denies that he wrote this memorandum. If in fact written by him it tends to show that his testimony to the effect he had nothing to do with suggesting the terms of the assignment in controversy is untrue. The master finds the memorandum to be in the handwriting of appellant Boss and we are of opinion the great preponderance of the evidence justifies the conclusion. The memorandum is as follows:

“We agree to pay John Bentley 1-3 of any amount which may be due Boss & Boss after final judgment in the final court of resort. Certain obligations & undertakings have already been entered into by Boss & Boss and it may be found necessary to enter into further obligations and undertakings to carry the suit through to a final settlement, and after payment of said obligations and undertakings the remaining amount shall be divided 1/3 John Bentley, 2/3 Boss & Boss, and it is further agreed that this agreement shall be held in the custody of Mr. John McKechney of the City of Chicago as trustee, until a final adjustment is had.”

If written by Boss the memorandum is inconsistent with his assertion that the assignment of November 11, 1901, was executed merely for the purpose of securing the testimony of the complainant in the assumpsit suit against the city and without consideration.

It is urged the decree “should be reversed .because it was awarded upon a finding of facts contrary to and different from the facts alleged in the bill.” We do not concur in this contention. The bill alleges that complainant had a third interest in the claim set up in the assumpsit suit in the Circuit Court, and that it was the claim in that suit which complainant and defendants alike intended and agreed should be “covered and described in the instrument of assignment.” Inasmuch as by the terms of the written assignment defendants Boss & Boss assigned and transferred “to said Bentley one-third of their said claim in said suit and one-third of any final judgment which may be entered in their favor in said suit and one-third of any settlement or compromise of said claim,” this contention of the bill is sustained in this respect by the written instrument. If that instrument was intended to embody literally the alleged previous verbal agreement, it does not say so. It superseded the verbal arrangement, but its purpose and object appear to have been substantially the same, and it must be deemed to express the final agreement and understanding of the parties. The amended and supplemental bill seeks to enforce the lien of the written assignmént. We are unable to concur in appellants’ contention that it was incumbent on. complainant “to allege and prove that the tunnel contract was' completed at a profit. ’ ’

In view of the conclusion above stated, it is unnecessary to review the evidence relating especially to the error in the assignment by which the number of the trover suit of defendants against the city was inserted in the assignment instead of the number of the assumpsit suit. It clearly appears that this was a mistake from the wording of the assignment itself, which relates by its terms to the claim of defendants for damages under the contract for the water tunnel. The trover suit was not a'claim under that contract. There is no error in reforming the assignment in this respect, as was done.

It is urged that the court erred in taxing master’s fees against appellants. The decree finds that $1016.50 was “a fair and reasonable compenstion for the services rendered by the master;” that of that sum $550 had been paid the master by complainant and the balance by defendant Boss, and that complainant is entitled to recover the $550 paid by him as part of his costs in the case. - The ground of the objection is stated to be that “the master did not transmit with his report an itemized statement of his services * * * and the only evidence upon which the decree in this cause with reference to the master’s fees was entered was a certain conversation which took place between counsel for the parties at the time the decree was proposed and prior to its entry.” No other objection is urged in this court, and this objection was not made before the chancellor. The conversation referred to was in substance a statement of matters as to which counsel on both sides agreed, and was in the nature of a stipulation. The record in the cause shows 1274 pages of testimony taken before the master. The statutory fee for this testimony would apparently be about $522.34. This would leave a balance of $494.16 allowed the master for the work involved in analyzing the conflicting evidence, the arguments of counsel and preparing the reports. It is said in Gottschalk v. Noyes, 225 Ill. 94-101, the chancellor was able to determine from an inspection of the report what fees would be reasonable for the master’s work “and it was not necessary to produce evidence.” It is true however that this record does not show that the master itemized his charge and therefore does not “show the time he was necessarily employed in the examination of questions of law and fact and in preparing his report of such findings and conclusions” (Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138), as it should have done. In such cases the Supreme Court has said (Wirzbicky v. Dranicki, 235 Ill. 106-115) that it will not “enter upon an independent examination of his report for the purpose of attempting to state correctly the items covered by the charge, the time given by the master to each service and the amount that should be allowed on account of each, in order that he may be decreed the sum that could properly have been allowed him had he complied with law in reference to stating his claim. In such instances nothing will be allowed by us on account of services covered by the gross charge.” The objection to the master’s fee urged before the chancellor was that the fees charged were excessive and unreasonable. That point is not urged here and is therefore waived. Dunn v. Crichfield, 214 Ill. 292-299; McCarthy v. Neu, 91 Ill. 127-131. Had the objection that the master did not present an itemized statement been made before the chancellor the omission doubtless would have been cured then and there. The contention raised in the Circuit Court that the charge of the master was unreasonable and excessive having been waived and abandoned in this court, the objection that no itemized statement is furnished becomes purely technical. The object of such itemized statement here is to enable us “to state correctly the items covered by the charge” (Wirzbicky v. Dranicki, supra), and there is no necessity for such examination and statement except when we are called on to determine whether the charge is excessive.

In view of conclusions stated we deem it unnecessary to discuss other and minor points referred to in the briefs. For the reasons indicated the decree of the Circuit Court will be affirmed.

Affirmed.


author: Me. Justice Fbeeman

text:
    Mary J. Bole, Administratrix, Appellee, v. Milton L. Thackaberry, Appellant.
    Gen. No. 15,023.

      Verdicts—when not disturbed. A verdict will not he set aside on review as against the weight of the evidence unless clearly and manifestly so.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    W. B. Moak, for appellant.
    Joseph Cummins, for appellee.
   Me. Justice Fbeeman

delivered the opinion of the court.

This is an appeal from a judgment against appellant upon two promissory notes. The notes are dated October 22, 1897. The first of them is for $500, payable to the order of B. F. Bole on or before one year from its date, with interest at five per cent per annum. The second note of the same date to the same payee is for $572.56, payable on or before eighteen months after its date, with interest also at five per cent per annum.

The defense was set up by special plea to the effect that December 23, 1895, before making the notes, the payee, B. F. Bole, now deceased, agreed to sell defendant for $1450 and to convey in fee simple certain 'described real estate; that this real estate had been sold to Bole at a foreclosure sale and the conveyance was to be made when Bole acquired a deed to the land, after the expiration of the statutory period of redemption; that neither Bole nor any one in his behalf has conveyed said premises to defendant; that the certificate of sale to Bole is in the possession of the plaintiff as administratrix; that Bole never had title except as evidenced by such certificate of sale, never delivered any instrument of conveyance to defendant, and that such conveyance was the sole consideration of the notes. The cause was submitted to the court, ■ a jury having been waived.

It is stipulated in substance that on November 1, 1895, there was a foreclosure sale of the said real estate by a master in chancery to the complainant in that foreclosure proceeding—one Payson—upon a debt for $6,000 and interest, amounting in all to $6947, secured by a prior and first mortgage or trust deed, and that a deed on the master’s certificate of sale was issued to the same complainant at the expiration of the time of redemption, February 14, 1897. The defendant in that foreclosure suit and maker of the note and trust deed foreclosed was one Oscar J. Nelson. It appears also that B. F. Bole, the payee in the notes now in controversy, brought foreclosure proceedings upon a note to him by said Nelson endorsed by defendant, Thackaberry, secured by a second trust deed upon the same real estate, and that December 23, 1895, a master’s certificate of sale issued to said Bole, the amount of the debt to him being $1438.08. The certificate of sale referred to in the defendant’s special plea was issued therefore on the foreclosure of a second encumbrance upon the property it described, and nearly two months after the sale of the same land on foreclosure of a prior encumbrance upon which a deed was issued after the expiration of redemption period to the holder of the first encumbrance, February 14, 1897. The notes now in controversy were executed and delivered to the payee Bole by the defendant October 22, 1897, over eight months after the title had passed to the holder of the first encumbrance and after any interest of Bole under this master’s certificate of sale to him in the foreclosure of the second encumbrance had been cut off. The claim of - the defendant is therefore that the consideration for the notes in controversy was the delivery to be made to him of a deed conveying Bole’s interest in land in which Bole had ceased to have any interest whatever, as defendant then knew.

It appears from the record that defendant Thackaberry was endorser on the note for $1200 made by said Nelson secured by the second encumbrance, and that as such endorser he agreed to at least one extension of that note. The amount due Bole on Nelson’s note endorsed by defendant Thackaberry at the time of that foreclosure sale was $1438.08, including apparently costs and solicitor’s fees. On March 10, 1897, defendant paid Bole $250 by check of that date. This amount added to the costs of $65.91, a solicitor’s fee of $50 and the principal sums of the two notes in controversy, amounts to $1437.91, which is so near the $1438.08 due Bole from Nelson and from defendant as endorser at the time of the foreclosure sale as to indicate quite clearly the actual' consideration of the notes now in question.

It is claimed by defendant that there was a memorandum of agreement made between himself and the deceased Bole on or about the 10th of March, 1897. There is no competent evidence of the existence of any such agreement. The defendant’s testimony as to alleged conversations between himself and the deceased was not admissible, and although permitted to be heard pending objection, was apparently disregarded by the trial court. Oscar J. Nelson, the maker of the notes secured by the trust deeds foreclosed, was called as a witness in behalf of the defendant. He testified that he was present in defendant’s office when Bole, since deceased, came in and asked defendant in substance how he was to get his money, and that defendant answered, “Now you bring me here the deed of the property. I will give you the notes for that money,” referring as he states to the second encumbrance. It seems however that defendant did give the notes and did not get the deed. It is improbable at least, if we are to believe a valueless deed was the consideration, that defendant, a lawyer presumably capable of protecting his own interests, would have parted with the notes until he got the deed. The evidence tends clearly to show that the real consideration of the notes in controversy was the indebtedness of defendant to Bole on his endorsement of the note given for the loan made by Bole to Nelson secured by the latter’s note and a second trust deed upon the land referred to. There is evidence tending to show that defendant controlled the foreclosure proceedings for his client Bole, that although an endorser on the note secured by the trust deed he was foreclosing he was not himself made ■ a party defendant, whether with or without Bole’s knowledge, does not appear, and that the notes he seeks to repudiate now that Bole is dead, were given to evidence the unpaid debt for which, had the foreclosure proceedings been conducted by an uninterested lawyer, it is probable a judgment would have been entered against defendant in that foreclosure suit.

The judgment of the Circuit Court will be affirmed.

Affirmed.


author: Me. Justice Feeeman

text:
    Caetano Iavaroni, Appellee, v. Grand Crossing Tack Company, Appellant.
    Gen. No. 15,035.
    Master and servant—when duty of instruction does hot arise. The duty of instruction does not extend to work which the servant is not expected to do.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Julian W. Mack, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed.
    Opinion filed April 18, 1910.
    Hans L. Howard, for appellant; O. W. Dynes, of counsel.

      Charles M. Thomson, for appellee.
   Me. Justice Feeeman

delivered the opinion of the court.

Appellee, a boy over sixteen years of age at the time of the accident complained of—May 19, 1903— was employed in the factory of appellant at Grand Crossing, Illinois. He had been employed there at a former time, and during that former employment had worked on a “washer machine” on the third floor of appellant’s factory. He subsequently left that job for awhile because of illness, and upon his return seeking re-employment he was given work upon nail machines on the second floor of the building. At the time of the accident in question he had been at work there about six months. For a number of weeks before the accident he had charge of barbed wire machines in addition to the nail machines. The accident occurred about two o’clock in the afternoon. He had been told to work on one of the barbed wire machines. He found that a wedge used on that machine was missing. This wedge he described as “a piece about four inches long, sticking in, wedge like, to keep the wheel tight.” This piece had been lost once before but he had “looked around and found it.” On this occasion he could not find it. He says he spoke to the foreman, telling him the wedge was gone. The latter replied, “Well I am busy now. Do the best you can.” Plaintiff says he looked around and could not find the wedge but found a different piece of iron, a little thicker than he wanted. Some distance from where he was employed to work was a hack saw machine, and plaintiff went to this hack saw intending to use it to cut off a part of the iron piece, “but the belt was off.” The hack saw rested on a bench a little over a foot and a half in height. Four or five feet from it was the pulley which operated it. This was about two feet over his head. He could not reach it with his hands while standing on the floor, and when lie tried to put the belt on he stood on a box about two feet high. He testifies, “When I put the belt up, the belt slipped in and caught my hand under the pulley;” “the belt caught my left arm and swung it up under the pulley,” breaking the arm, and tearing the machine from its base. The jury awarded a verdict of $4500, for which amount judgment was entered. Defendant appeals.

The case was tried upon one count of the declaration, the others having been dismissed. The negligence charged is that defendant “carelessly, negligently and wrongfully failed to give said plaintiff reasonably proper and sufficient instructions concerning said cutting machine (hack saw) aforesaid, and said belt and shafting on said bench and table aforesaid and concerning the operation of said appliances,” of which defendant knew and plaintiff did not know and had not equal means of knowing;1 ‘ and while said plaintiff .was then and there as directed by the said defendant engaged in the performance of his duty in and about the replacing of said belt on said pulley, the said cutting machine suddenly and without any previous warning became unfastened and broke away from said table or bench,” by reason of which plaintiff was thrown against said belt and his left arm was caught, inflicting the injuries complained of.

Defendant’s attorneys insist that the plaintiff’s injuries were caused by his own negligence, and that the defendant was not guilty of negligence as charged. Assuming for the time being that the plaintiff was at the time of the accident in the defendant’s employ, which is a matter of dispute, the evidence shows beyond question that he was not injured in the course of his employment. There is no evidence to which our attention has been called which tends to show he was in any way authorized or expected or directed to operate the hack saw, or to adjust a belt upon it for any purpose whatever. He undertook to do this of his own volition. He states his duties as follows: “I was working on five machines in the forenoon. In working on the nail machines I fed the wire tp the machines, and the machine makes it into nails. My work is to bring the wire there, and I was supposed to take the nails or tacks away and put them behind the machine, and move them away from where they came out of the machine. They are piled in a box back of the machine. I would pull the box away and put an empty box in its place. I take the full boxes and pile them up behind the machine. Then some one else comes along with a truck and takes them away to a different part where they are put in kegs. The barbed wire machines operate themselves. I would bring the wire to the machine and feed it through and fix them up, put the belt on the fly wheel and start the machines.”

It is said by plaintiff’s attorney that whether a servant was guilty of contributory negligence or was a mere volunteer or was directed to do the work in which he was injured, was a question for the jury and that where evidence is conflicting the finding should not be disturbed unless manifestly improper. Here however the evidence material to the issue is not conflicting. The plaintiff was employed to operate certain machines and he had done so safely for some months. When on this occasion he found missing a wedge which was used to keep a wheel tight, he spoke to his foreman. The latter replied, “I am busy. Do the best you can.” There is in these words no suggestion or intimation that the employe should undertake to make a wedge and try to start another and different machine in order to do so, a machine of an entirely different character from that on which he was employed. The words cannot be given reasonably any such interpretation. The widest meaning of which they are susceptible under the circumstances cannot be held to include a direction or any authority to the employe to leave his machine in order to adjust belts to other moving machinery having no relation to his employment. The plaintiff was not employed to manufacture wedges nor authorized to do so. “Do the best you can, ’ ’ in the ordinary and usual significance of the words under the circumstances would be taken to mean “do the best you can with the machine as it is.” The machine would with care run without the wedge, apparently. It would require more watching, because as plaintiff says, “if the wedge was not there the wheel was loose and would not run right. The nut would come off and loosen all the wheels.”

The declaration charges defendant with negligently failing to give plaintiff proper and sufficient instruction as to the hack saw machine and its operation. Is it then the duty of an employer when he hires an employe for certain specified work upon specified machines to take him over the factory and explain the purpose and how to operate other machines with which under his employment the servant has nothing to do in the master’s service? In Bailey on Personal Injuries (Vol. 2, Sec. 2670) it is said: “The duty of instruction does hot extend to work which the employee is not expected to do. It was so held where a boy undertook to perform work with a machine in a place in which he was not expected to work.” Plaintiff’s attorney asserts “that it was the duty of the defendant” to instruct the plaintiff as to the saw and belt and shafting and that this is “abundantly shown by the relations and circumstances of the parties as disclosed by the evidence.” We find no such evidence, and assertion will not suffice to supply the place of evidence.

There are a number of alleged errors discussed in the briefs, which in view of the conclusions stated, it is unnecessary to consider. Under the showing made by plaintiff’s evidence we are of opinion he is not entitled to recover. The judgment of the Circuit Court will therefore be reversed with a finding of facts.

Reversed.


text:
    Albert Arndt, Appellant, v. Conrad Seipp Brewing Company, Appellee.
    Gen. No. 15,058.

      Negligence—what not actionable. Unless there • was a causal connection between the alleged negligence and the injury, a recovery will not he sustained. Held, in this case, that there was no evidence tending to show any causal connection between the alleged ví ant of sufficient light and the breaking off of a piece of a rivet which struck the plaintiff in the eye and caused his injury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McSueely, Júdge, presiding. Heard in this court at the October term, 1908.
    Affirmed.
    Opinion filed April 18, 1910.
    Charles J. O’Connor and E. P. Harney, for appellant.
    Frank M. Cox and E. J. Fellingham, for appellee.
   Mr. Justice Freeman

delivered the opinion of the court.

This is an action to recover for personal injuries. There is an agreed statement of facts made by plaintiff’s attorney and accepted by the defendant.

The declaration as amended contains a single count and the negligence charged is that defendant “negligently and carelessly failed to use reasonable and proper care to provide for the plaintiff a reasonably safe place in which to work, by negligently and carelessly failing to provide in said building where the plaintiff was working sufficient light whereby said plaintiff could properly perform the said work of driving out said rivets and reducing the size of said hoop without danger to the plaintiff;” and further “negligently and carelessly failed to provide said plaintiff with light sufficient to enable said plaintiff to do his said work without danger, and because of said unsafe place to work in on account of the want of sufficient light, and while said plaintiff was performing said labor” and exercising due care for his own safety, he was injured.

The agreed statement of facts shows that plaintiff was, on the 5th of November, 1906, employed as a cooper in defendant’s building, and at the time of the injury complained of was engaged in reconstructing certain tubs used in what is called a fermenting cellar. In setting up one of the tubs he and his associates were directed to take an old and rusty hoop, which being too large, it was necessary to reduce to the size of the tub upon which it was to be placed. To do this it was “necessary to unfasten the said hoop by driving out the rivets which held said hoop in a circle,” and to do this plaintiff and his associates were directed by the foreman to a part of the fermenting room, which plaintiff objected to as not light enough to work in. The foreman promised to ‘ ‘ see that sufficient light was furnished at once.” The room was about forty feet wide and eighty feet long and contained about fifty or more tubs. It was lighted by electricity and by windows. The men were ordered to fix a place in the designated corner of the room in which to work, and an iron stool or block about a foot high was set down by the foreman on the floor. On top of it was placed “a nut about two inches high.” It had a hole in it and over this nut “the hoop went to drive out the rivets in order to shorten up the hoop and put it around” the tub. The plaintiff and two other workmen were doing the work. The plaintiff was standing on one side of the hoop holding it, and another of the men on the other side, while the third man in the center was driving out the rivets. There was an electric light about twenty-five feet away, and the men were about fifteen or twenty feet from a window, which was so covered with dirt as to exclude the daylight from showing through. The only other light was from a candle setting on the floor. It was so dark there that the men “had to feel in order to put the punch on” the rivet at the right place in order to drive it out. While getting out one of these rivets and while the plaintiff was holding the hoop, another of the men in driving out the rivet struck the punch and “a piece of the rivet flew and struck Arndt in the eye and put his eye out.”

The defendant demurred to the statement of facts, moved the court to instruct the jury to find the defendant not guilty, and submitted a written instruction to that effect, which was given. Plaintiff appeals from the judgment against him.

The negligence charged in the declaration is, as above stated, failure to furnish sufficient light to enable plaintiff to do his work without danger, and it is charged that because of the want of sufficient light plaintiff received the injury. There is however no evidence and nothing in the agreed statement of facts tending to show any causal connection between the alleged want of sufficient light and the breaking off of the piece of the rivet which struck the plaintiff in the eye. It was a piece of the rivet which broke off, so that so far as appears the punch was placed on the rivet, and there is nothing in the record tending to show the accident would not have occurred in precisely the same manner had the place where they were working been brilliantly lighted. The plaintiff cannot recover except upon affirmative proof tending to show that the negligence charged was the proximate cause of the injury. Mere conjecture cannot take the place of evidence. Whether there is evidence tending to show that the negligence charged was the proximate cause of the plaintiff’s injury is a question of law and not a question of fact for a jury. Seymour v. Union Stock Yards Co., 224 Ill. 579-586. Similar accidents are not uncommon. The case of I. C. R. R. Co. v. Sporleder, 199 Ill. 184, cited by appellant, was an accident of like nature, where while a claw bar was being driven under the head of a spike a small piece of the spike broke off and destroyed the sight of the appellee’s eye. He was acting under orders of the foreman as to the manner in which the spikes should be pulled, and there was evidence tending to show the method the foreman directed was dangerous. No such order directing how the rivets should be driven out was given in the case at bar. The order of the foreman was a general order to do the work. In the case of Webster Manfg. Co. v. Nisbett, 205 Ill. 273, the accident was of a similar character. A small particle of steel flew from a hammer in a blacksmith shop, hitting appellee in one eye and destroying the sight. The judgment was reversed and the opinion treats of the question of assumed risk where there has been a promise to repair a hand hammer, a common implement with which the servant was familiar. No question of assumed risk is presented by the evidence in the case at bar, in the absence of proof of any causal connection between the negligence charged in the declaration and the injury complained of.

Finding no error, the judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Presiding Justice Holdom

text:
    William D. Voss et al., Petitioners, v. William Prentiss et al., Defendants, On Appeal of William Fitzgerald et al.
    Gen. No. 14,966.
    1. Mandamus—who can oMain affirmative relief'. The defendants in a mandamus proceeding who may hy showing a superior right defeat a petition for mandamus, may not themselves have affirmative relief.
    2. Mandamus—who may Be petitioners. It is not essential in all cases that a petition for mandamus he filed in the name of the People; such petitions are properly filed in the names of the persons seeking the relief.

      3. Mandamus—what final order. A final order is entered where the court decrees that a peremptory writ of mandamus issue as prayed and that the petitioners recover their costs, and judgment therefor is entered against the defendants.
    4. Mandamus—when court without jurisdiction to enter orders. After final order in a mandamus case and the lapse of the term at which it was entered, the court loses jurisdiction to enter any order in the cause.

      Mandamus. Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding. Heard in this court at the October term, 1908.
    Dismissed.
    Opinion filed May 2, 1910.
    Rehearing denied May 16, 1910.
    Fyeee & Adcock, for appellants; Colin C. H. Fyefe, of counsel.
    Hoyne, O’Connor, Hoyne & Irwin, for appellees; Maclay Hoyne, of counsel.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The petition in this cause, four times amended, sought a mandamus against the Civil Service Commissioners of Chicago, the Chief of Police and the Comptroller of Chicago. Belief finally prayed in the fourth amendment filed February 8,. 1908, is as follows, viz:

“Forasmuch as your petitioners can only have relief for the grievances herein complained of by the issuance of a writ of mandamus, therefore, your petitioners pray that the Honorable, the judges of the Superior Court of Cook County, grant the relief prayed for to your petitioners in the premises, by the issuance of a writ of mandamus, issued and directed to the following named defendants: Elton Lower, Zina B. Carter and Michael L. McKinley, as Civil Service Commissioners of the City of Chicago, and to G-eorge M. Shippy as General Superintendent of Police of the City of Chicago, and to Walter H. Wilson as comptroller of said City of Chicago, commanding them,’ and each of them, respectively, to do every act and thing devolving upon them by law as such officers for the certification, nomination and appointment of William D. Voss, Robert J. Blaney, John J. Gavin and John Q. Reilly, in and about the promotion of said aforementioned parties to the positions of desk sergeant, and patrol sergeant, under and in accordance with the provisions of the Civil Service Law of the State of Illinois, now in effect in the City of Chicago, and particularly directed to Elton Lower, Zina R. Carter and Michael L. McKinley, comprising the Civil 'Service Commission of the City of Chicago, commanding them as the members of the Board of Civil Service Commissioners to vacate and set aside, immediately, an order or resolution adopted and entered of record by the said Civil Service Commission on November 9, 1906, directing and ordering a consolidation of the three separate lists or registers of persons eligible for certification to fill by promotion a.vacancy or vacancies in the office of desk sergeant, patrol sergeant and detective sergeant of the Police Department of the City of Chicago, and particularly directed to George M. Shippy, now General Superintendent of Police of the City of Chicago, commanding him to notify in writing said Civil Service Commission of all vacancies existed or created since November 9, 1906, to the present time, in the office or position in the Police Department of said City of Chicago, known and designated as desk sergeant, patrol sergeant and detective sergeant, and sergeant of police, assigned to perform the duties of desk sergeant, patrol sergeant and detective sergeant of the Police Department of the city of Chicago, and particularly directed to the said Civil Service commissioners, commanding them to certify to the said General Superintendent of Police, the names of the persons eligible for promotion from each of said separate lists and registers existing prior to the date of the entry of the order of consolidation hereinabove referred to and particularly to certify from the list or promotional register, the names of William D. Voss, Robert J. Blaney and John J. Gavin as candidates for promotion to the_ position of desk sergeant, or sergeant of police .assigned to perform the duties of desk sergeant, and to certify the name of John Q. Reilly from the list or promotional register of patrol sergeant for promotion to the position of patrol sergeant, or sergeant of- police, assigned to perform the duties of patrol sergeant in manner and form as by law and the rules of said Civil Service Commission is required to be done, and particularly directed to the said General Superintendent of Police, commanding the said General Superintendent of Police to take such steps in regard to such applicants and candidates so certified to him for promotion by said Civil Service Commission, as he is by Civil Service law and rules adopted under the provisions thereof required to take, commanding him to promote upon receipt of proper certification by the Civil Service Commission .William D. Voss, Robert J. Blaney, and John J. Gavin to the position of desk sergeant of the Police Department of the City of Chicago, or sergeant of the Police Department of the City of Chicago, assigned to perform the duties of desk sergeant of the Police Department of the City of Chicago; commanding him to promote upon receipt of the proper certification by the Civil Service Commission, John Q. Reilly to the position of patrol sergeant of the Police Department of the City of Chicago, assigned to perform the duties of patrol sergeant of the Police Department of the City of Chicago, and commanding and directing him, the said General Superintendent of Police, to immediately notify the said Civil Service Commission of such promotion and appointment, and particularly directed to said Civil Service Commission, commanding such Civil Service Commission immediately upon the receipt of the notice of selection and promotion from the General Superintendent of Police of the persons aforementioned to the positions aforementioned, to certify the name of such appointees to Walter H. Wilson, comptroller of the said City of Chicago as the legally qualified appointees to the positions aforementioned, entitled in accordance with law to receive the pay and compensation provided by law and city ordinances to the incumbents of each respective position; and particularly directed to the said Walter H. Wilson, comptroller of the said City of Chicago, commanding said comptroller to place the names of William D. Voss, Robert J. Blaney, John J. Gavin and John Q. Reilly, and such other names as may be certified to him on the list of officers of the Police Department of the City of Chicago, under the name and style of desk sergeant, patrol sergeant and detective sergeant and sergeant of police thereof, assigned to perform the duties of desk sergeant, patrol sergeant and detective sergeant of the Police Department of the City of Chicago, whereby said aforementioned parties shall be entitled to lawfully draw the respective compensation or salary due them and to issue to them and each of them such voucher or memorandum in writing as is by law and the city ordinances of the City of Chicago required to be done, whereby each of the aforementioned parties shall have his name and occupation placed upon the payroll required to be kept of the public employes of the City of Chicago, all in manner and form and in accordance with law and the city ordinances of the City of Chicago. And particularly directed to each and all of the defendants, Elton Lower, Zina R. Carter and Michael L. McKinley, George M. Shippy and Walter H. Wilson in their official capacities to do and perform all, and all manner of action or proceeding required of each and of all such persons by the terms of the Civil Service Act, Rules and Regulations adopted by the Civil Service Commissioners, and the city ordinances of the City of Chicago whereby the mandate of this court may be fully performed and satisfied, whether they and each of them be thereunto specifically ordered and commanded herein to do, or not to do, and perform.”

The appellant Fitzgerald on May 1, 1907, by leave of court filed an intervening petition, seeking to be made a party defendant to the mandamus proceeding, averring as a reason why he should be made such party, that he was a person “claiming an interest in the subject-matter of this suit.” No further action was taken or order made in the matter of the Fitzgerald petition, but on June 20, 1907, the petitioners asked and obtained leave to file an amended petition, and in that document, afterwards filed in pursuance of such leave, Fitzgerald and the other appellants, together with other persons similarly situate, were added as defendants. The adding of such persons as defendants was in virtue of section 7, chapter 87, Revised Statutes, title “Mandamus.” Such party defendant however would not be entitled to affirmative relief of any kind, notwithstanding it might be demonstrated that petitioners were not only not entitled to the writ, but that such defendants would be in a proceeding in which they were the actors, entitled to the writ themselves. Proofs of. such character might constitute a complete defense and result in defeating the application for mandamus. Winstanley v. The People, 92 Ill. 402. Fitzgerald and other defendants interposed a general demurrer, which was by the court ordered to stand as a demurrer to the third amended petition, which being overruled Fitzgerald elected to stand by his demurrer and thereupon was defaulted. The remaining demurring defendants were by order of court, on their motion, allowed to adopt the answer theretofore filed by the defendants Patrick E. Wood and others as their own. Some of the defendants demurred and others answered the several amended petitions, and a number of orders were entered in relation thereto, which are not necessary to be set out here, as in the action which we have concluded to take on this appeal they become unimportant.

Many changes have been made in the names of the defendants, officials of the city of Chicago, to meet the varied exits from and accessions to the several offices occurring during the pendency of the proceeding in the trial court. The mandamus proceeding was started in the name of the petitioners, but the title of the case in many of the subsequent proceedings has, in the trial court and in this court, without any leave of court being asked or procured, been altered so that it now stands in the name of the People of the State of Illinois upon the relation of the petitioners. We have disregarded such substitution as unauthorized and unnecessary. As said by the Court in Higgins v. City Council of Galesburg, 96 Ill. App. 471: “Appellee suggests that the petition should have been filed in the name of the People on the relation of Higgins and others. Such is the usual and best approved practice, but Young v. Carey supra,—184 Ill. 613—and Peotone Drainage District v. Adams, 163 Ill. 428, are examples of numerous cases where the petition has been filed in the names of the parties asking relief. ’

On February 17, 1908, the court overruled the demurrers of the defendants, the Civil Service Commissioners, the Superintendent of Police and the Comptroller, to the amended petition as amended February 8, 1908, being the final amendment, and these defendants electing to stand by their demurrer it was ordered that a peremptory writ of mandamus issue as prayed in the last mentioned amended petition, and that petitioners recover their costs, and judgment therefor was entered against defendants. This is a final order and disposed of the entire case. No appeal was either prayed or allowed therefrom to this Court. Consequently the record is not before us for review, and the law does not clothe us with jurisdiction to review it.

On April 4, 1908, for what reason does not appear, an order was. entered dismissing the appealing defendants and others out of the case, and a writ of mandamus awarded with judgment for costs to the same purport and effect as the final judgment and order of February 17, 1908. The court was without jurisdiction to enter this later order and judgment, consequently it is a nullity, and the mere fact that none of the parties are complaining does not operate to restore the jurisdiction after it was lost. Neither motion nor order was made to vacate the first judgment, so that after the lapse of the February term, 1908, of the Superior Court, that court had lost all power to enter any other order or disturb the record of its judgment solemnly pronounced. The defendants attempted to be dismissed out of the case by the last order were effectually out of court when the final judgment order was entered. They are not prejudiced because the cause was not formally dismissed as to them in the final judgment, and if they were, it is an all sufficient answer to say that they did not complain of the informality or register any protest at the non-action of the court in that or any other particular. Neither did they pray an appeal.

Not being clothed with jurisdiction to review the record before us on this appeal, the appeal is dismissed.

'Appeal dismissed.