author: Mr. Justice Chytraus

text:
    Frank J. McKay, Plaintiff in Error, v. The People of the State of Illinois, Defendant in Error.
    Gen. No. 13,808.
    1. Amendments and jeofails—when motion to amend record should he made. A motion to amend a record should not he permitted to he made in “ blanket” form and then continued; specification, at least in general terms, should be insisted upon by the court.
    2. Amendments and jeofails—when amendments may he made after lapse of judgment term. Amendments of the record of a court after the lapse of the judgment term can only he authorized where there is some official or quasi-official note or memorandum or memorial paper remaining in the files of the cause or upon the record of the court or in the minutes of the judge or in some book required to be kept by him, showing that the record as standing does not speak the truth or contains an omission.
    3. Appeals and errors—within what time hill of exceptions must he signed. The hill of exceptions must he signed during the term at which final judgment is entered or within such further time as may be allowed by order entered during the term or within such further time as may he fixed by the extension of such order, such latter extension being made before the expiration of the time fixed by the original order.
    4. Appeals and errors—when hill of exceptions not considered.
      A hill of exceptions signed without jurisdiction is no part of the record and will not he considered on appeal.
    5. False pretenses—when indictment sufficiently charges. Held, that the indictment in this case sufficiently charged false pretenses and that the conviction thereon should be sustained.
    Criminal prosecution for obtaining money under false pretenses. Error to the Criminal Court of Cook county; the Hon. George Kersten, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed December 18, 1908.
    Rehearing denied January 5, 1909.
    Charles E. Erbstein, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

Plaintiff in error was convicted of obtaining money by false pretenses, on March 6, 1907. By his consent he was tried before the court without a jury.

There is a peculiarity in the manner in which the motion to quash the indictment, the motion in arrest of judgment and the overruling of both these motions appear in this record. January 16, 1907, the plaintiff in error pleaded not guilty to the indictment. On the same day he was given a hearing and after the hearing the case was postponed to January 19. The cause was continued on the latter date and on several occasions thereafter, upon his motion, until on March 6, 1907, when he was found guilty and a judgment entered. The record shows an order, entered on March 30, 1907, as follows: “Counsel for said defendant now here moves the court to amend the record in this cause, and it is ordered that the hearing on said motion be and the same is hereby continued. ” On May 28, 1907, the record shows the following: The motion of the defendant to amend the record heretofore entered and continued hitherto is allowed by the court, and the court orders that the record in this cause be and the same is hereby amended.

“And the court therefore orders as of the sixteenth day of January, 1907, that in the record of the proceedings in this cause on that day, the following words be and are hereby inserted before the record of the plea of the defendant to the indictment: ‘The defendant now here moves the court to quash the indictment in this cause. And the court hearing counsel in support of said motion as well as in opposition thereto and being now fully advised in the premises doth overrule said motion and orders that the motion of the defendant to quash the indictment in this cause be and the same is hereby overruled accordingly.’

“And the court further orders as of the sixth day of March, 1907, that in the record of the proceedings in this cause of said day the following words be and hereby are inserted after the record of the finding by the court that the defendant is guilty, and before the record of the judgment: ‘The defendant now here moves the court in arrest of judgment. And the court hearing counsel in support of said motion as well as in opposition thereto and being now fully advised in the premises doth overrule said motion and orders that the motion of the defendant in arrest of judgment be and the same is hereby overruled accordingly.’ ”

Courts should make their records speak with some degree of certainty. It is to be observed that the motion to amend is what might be termed a “blanket motion”. It fails to specify even the subject in respect of which emendation of the record was desired. There is no certainty whatever in the motion. We do not know that the order of May 28 was made in pursuance of that motion. For aught the record indicates it may or may not have been. The form of motion is one that for future convenience it may be expedient for practitioners to present in all their cases. The learned trial judge should have required counsel when making the motion to have specified, at least in some general way. Amendments of records are not permitted on the same grounds that amendments of pleadings are permitted. It is a very serious matter to amend a record by interpolating into the record a motion to quash and an order thereupon after a plea has been entered by the defendant to the indictment, and even after the entry of judgment.

On March 6,1907, when judgment was entered, plaintiff in error was allowed thirty days within which to present a bill of exceptions. On April 5,1907, this time was extended by the allowance of thirty days and on May 4, 1907, a further extension of seven days was allowed. According to these orders the time for filing a bill of exceptions expired on May 12, 1907. On May 13, 1907, plaintiff in error applied for and obtained a further extension of seven days. The bill of exceptions shown in the record was not signed or filed until May 22, 1907.

The law does not permit the entering of orders in a cause or the signing of bills of exceptions after jurisdiction has been lost by lapse of time. It is true that after a term at which a cause has been disposed of has expired amendments of the record may be made by nunc pro tuno orders so as to make the record speak the truth. But in such cases the amendment must be based upon some official or quasi-official note or memorandum or memorial paper remaining in the files of the case or upon the records of the court, the judge’s minutes or some entry in some book required to be kept by law. A private memorandum of a witness is not sufficient; nor can the fact proposed to be incorporated into the record be based upon the recollection of the judge or other person, or upon affidavits or testimony taken after the event has transpired. And the basis upon which the amendment was made must be shown and preserved in the order or in the record. Hubbard v. People, 197 Ill. 15; Frew v. Danforth, 126 Ill. 242. The reason for the requirement that the basis of the amendment be shown and preserved is that the warrant for the exercise of the new jurisdiction may appear. The power of the court to exercise jurisdiction over the parties and the subject-matter expires with the termination of the term. Jurisdiction to exert power thereafter depends upon the existence of facts extrinsic to the record. Without such facts being shown in the record, upon review the record will show no jurisdiction.

Time may be allowed when a final judgment is entered, within which to file a bill of exceptions, and such time may be from time to time extended. But unless a bill of exceptions is presented and filed within the time allowed or before the expiration of a properly allowed extension or extensions, the bill of exceptions does not become a part of the record.

In this case it appears that, by the lapse of time before the entry of the order of May 13, the court lost jurisdiction to sign a bill of exceptions herein. Futhermore, had that order of May 13 been entered in time there would, nevertheless, have been a loss of jurisdiction to sign a bill of exceptions on May 22 when the court did sign what purports to be a bill of exceptions herein. Such records should not be returned to this court.

There should have been no bill of exceptions signed by the presiding judge on May 22, 1907.

It is the imperative duty of the trial judge not to enter orders in a cause or sign any bill of exceptions after jurisdiction has ceased. The court should not be imposed upon nor should the judge presiding- permit himself to be imposed upon. If counsel, after jurisdiction has ceased, should culpably present orders for entry or bills of exception for signature with the design of taking advantage of the confidence a presiding judge is entitled to repose in the members of an honorable profession, then such counsel should be most strictly dealt with. The dates of the various orders giving extensions of time and the .periods of the extensions herein are not disclosed in the abstract of the record.

The purported bill of exceptions in this record, therefore, has not been and cannot be considered, for it is properly no part of the record.

On the question of the sufficiency of the indictment the argument is made that the indictment fails to show that the deceitful practices caused any pecuniary loss. It is true, as contended, that the indictment cannot be explained by extrinsic evidence, i. e., by the evidence appearing in a bill of exceptions.

The indictment is not correctly construed by counsel for plaintiff in error. The indictment does present that, on March 10, 1906, Frank J. McKay pretended to Batchelder & Hunt, co-partners, that he, McKay, had, before that time, for and on behalf of Batchelder & Hunt, paid for twelve horses purchased. for them the sum of $1,132.75. That this pretense was a false pretense and this false pretense was then and there made by him with the design and purpose to then and there induce Batchelder & Hunt to pay him the sum of $165. That Batchelder & Hunt, then and there believing such false pretense to be true and being then and there deceived thereby, were then and there by reason thereof induced to pay him said sum of $165, and by this false pretense said McKay did then and there obtain from Batchelder & Hunt said sum of $165 in money. That this false pretense was then and there made by McKay to Batchelder & Hunt with the design and for the purpose of then and there cheating and defrauding them of said sum of $165 so obtained. To the foregoing statement of facts, which we regard as a sufficient indictment in law, there are added averments to the effect that in truth and in fact McKay knew that he had not paid for the horses the sum of $1,132.75 but, in truth and in fact, as he well knew, he had paid for them the sum of $967.75 and he knew his pretense to be false.

What McKay obtained by means of his false pretense, viz.: $165, is an entirely separate and distinct matter from obtaining a return of such money, if any, as he may have laid out and expended for Batchelder & Hunt. Counsel is confused in his argument by failing to differentiate between what the averments in fact are, i e., that by certain false pretense McKay succeeded in obtaining $165, which constitutes a crime and what counsel in his own mind assumes to be a fact and concerning which nothing is averred, viz.: that McKay had paid out and expended for Batchelder & Hunt a certain large sum of money which he was entitled to get back. He may and he may not, so far as the indictment is concerned, have been entitled to receive back money laid out for the firm. That is beside the question. The fact, if it he one, would not permit him to falsely represent that he had paid out for the firm $1,132.75 when he had not paid out such sum and by such false representation, as the indictment avers, obtain from the firm $165. The falsity of the pretense, it is averred, induced the firm to pay over to him $165. Be the fact one way or or the other as to his having advanced money which should be returned to him, the averments of the false pretense and the obtaining of the $165 thereby still remain. We find no error prejudicial to the plaintiff in error in this record.

The judgment of the Criminal Court is affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois ex rel. Herman B. Myers, Plaintiff in Error, v. Joseph F. Haas, County Clerk of Cook county, Defendant in Error.
    Gen. No. 13,952.
    1. Public offices—when two, cannot be held at the same time. A single person cannot at the same time hold two public offices if incompatibility exists between the two so held.
    2. Public offices—how incompatability between, determined. In connection with the right of a single incumbent to hold two public offices incompatibility between such offices may arise (1) when the written law of a state specifically prohibits the occupant of either one of the offices in.question from holding the other and (2) where the duties of either office are such that the holder of that office cannot in every instance, properly and fully, faithfully perform all the duties of the other office.
    3. Public offices—what two offices may not he held. By constitutional enactment incompatibility exists between the office of state senator and that of clerk of the Municipal Court of - Chicago and the same person cannot hold both offices at the same time; likewise, is there incompatibilty between the two offices arising by virtue of the duties cast upon the incumbents holding them. •
    4. Public offices—what amounts to resignation. The acceptance of a second public office which is incompatible with another public office held by the same person, operates ipso facto as a resignation from the first office.
    5. Mandamus—when lies against county cleric. Mandamus lies to compel the county clerk to notify the governor that a vacancy exists in the office of state senator when he becomes apprised that a state senator has been elected to the office of clerk of the Municipal Court.
    Mandamus. Error to the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1907.
    Reversed and remanded with directions.
    Opinion filed December 18, 1908.
    Statement by the Court. On November 8, 1904, Homer E. Galpin was elected state senator from the second senatorial district in this state and on January 11, 1905, he qualified and took his seat. When the petition herein was filed his term of office had not yet expired by the lapse of time. At the election held November 6, 1906, Galpin was elected clerk of the Municipal Court of the City of Chicago, and on December 3, 1906, he duly qualified as such clerk and entered upon the duties of that office. It is contended that Galpin cannot hold both offices and that his act in accepting the clerkship of the Municipal Court amounted to a resignation, at that time, of the state senatorship.
    To test this contention the petition for mandamus now under consideration was filed, on February 23, 1907. The law of this state imposes upon the county clerk of the county in which a state senator resides, the duty to notify the governor when a vacancy occurs in the office. Upon receiving such notification it becomes the duty of the governor to call an election to fill the vacancy, unless there shall neither then be a session of the General Assembly nor be any session thereof before the next general election. Rev. Stat. chap. 46, sec. 129. By statute it is also provided that whenever it is alleged that a vacancy in any office exists the officer whose duty it is to fill the vacancy, by ordering an election, shall have the power to determine whether or not the facts occasioning a vacancy exist, Ib. sec. 126. The governor, not the county clerk, has the power to determine whether a vacancy exists in a state senatorship. But the governor acts upon information from the county clerk of the proper county. In the petition herein Cook county is shown to be the county wherein State Senator Galpin resides and, consequently, it became the duty of the county clerk of that county to notify the governor when a vacancy occurred in the second senatorial district. Evidently being in doubt regarding his duty in. the premises, as not he but the governor possessed the power to determine whether a vacancy existed, the county clerk of Cook county did not notify the governor of any vacancy in the senatorship of this district when Galpin accepted the Municipal Court clerkship. Thereupon this petition for a mandamus requiring the county clerk to notify the governor was filed.
    This petition sets up that the respondent, Joseph F. Haas, is the county clerk of Cook county, that it is his duty to notify the governor that there is a vacancy in this senatorship and that he has and does refuse to do so. The petition prays for a writ of mandamus commanding Joseph F. Haas, county clerk of Cook county, to forthwith notify the governor of the vacancy. A general demurrer to the petition was sustained in the Circuit Court and, petitioner electing to stand by his petition, the- same was dismissed at petitioner’s costs. From the order of dismissal this writ of error is prosecuted.

      Thomas E. D. Bradley and Samuel E. Harper, for plaintiff in error.
    Barker, Church & Shepard, for defendant in error; Frank L. Shepard, of counsel.
   Mr. Justice Chytraus

delivered the opinion of the court.

There is no question in this case as to the election of Homer K. Galpin to the office of state senator nor as to his qualification to hold the office. Indeed the contention, by the petitioner, that Galpin by his voluntary act and conduct resigned the state senatorship, eliminates the questions of his election as such and of his possessing the requisite qualifications for holding the office. The sole question is: Has he by his voluntary act resigned? Neither is there any question of “ousting” Mr. Galpin from the senatorship involved. This record now before us does not disclose to us that Mr. Galpin is seeking to hold two public offices and to draw two salaries from the people at the same time. He is not a party to this proceeding, and from this record we do not know whether or not he claims to be senator. So far as this record is concerned he is passive. If he has resigned, then he does not hold the office of senator, but not because of any question in respect to his election or of his lacking in any qualification for the office.

If there be incompatibility in the holding of the two offices, then Mr. Galpin must be held to have resigned the senatorship. Incompatibility, in this connection, is present when the written law of a state specifically prohibits the occupant of either one of the offices in question from holding the other and, also, where the duties of either office are such that the holder of the office cannot in every instance, properly and fully, faithfully perform all the duties of the other office. This incompatibility may arise from multiplicity of business in the one office or the other, considerations of public policy or otherwise. Bacon’s Abridgement Vol. 7, Tit. “Officers”, K.; Rex v. Tizzard, 9 B. & C., 418; 1 Dillon on Mun. Corp., p. 308-9, secs. 225-7 and note 4; McCrary on Elec., secs. 336 et seq. 4th Ed.; Mechem on Pub. Off., sec. 429; Dickson v. People, 17 Ill. 191; People ex rel v. Hanifan, 96 Ill. 420; Packingham v. Harper, 66 Ill. App. 96. From these authorities it also appears that in case of incompatibility the acceptance of the second office is ipso facto a resignation of the first office. By his own action the officer expresses his voluntary resignation.

In the constitution of the State of Illinois, Art. IV, sec. 3, we find the following provision: “No judge or clerk of any court * * * or person holding any lucrative office under the United States or this State * * * shall have a seat in the General Assembly”.

This language is plain and to the point. Thereby a constitutional incompatibility is declared which forbids one person from holding the offices of state senator and clerk of the Municipal Court at the same time. Twice did Mr. Galpin solemnly swear to obey this constitution, first, when sworn in as senator and again when he was sworn in as clerk of the Municipal Court. We cannot presume in Mr. Galpin any such mendacity as that when he took his oath of office as clerk of the Municipal Court he meant otherwise than to resign the senatorship.

In the Revised Statutes of Illinois, chap. 37, sec. 277, we find the following provision:

“That there shall be a clerk of said Municipal Court * * * . He shall perform, with respect to said Municipal Court the duties usually performed by clerks of courts of record. He shall give his personal attention to the performance of the duties of his office. He shall maintain an office in each district and each office shall be kept open for the transaction of business from eight o’clock a. m. to six o’clock p. m. of each working day during the year”.

Under this act the clerk of the Municipal Court is not, of course, required personally to attend to the details of the work in his office. He is, however, mandatorily required to give his “personal” attention to the performance of the duties of his office. This he does not do if he is personally absent from his office so that he cannot be found there during business hours from day to day by the judges of the court, his subordinates, lawyers, litigants and the public. The Municipal Court is a court in which there is transacted a large amount of litigation and constant supervisory attention is consequently required. This the statute provides shall be “personal” and he cannot, therefore, rightfully delegate it to a subordinate. The term of his office is six years. The duties of a state senator are purely personal in their nature. During the sessions of the General Assembly his personal presence is constantly required if he shall honestly and conscientiously perform the duties of that office. There may also be special sessions of the legislature. While the General Assembly is in session the duties of a state senator require his presence in Springfield. The duties of a clerk of the Municipal Court require his constant presence in Chicago. The incompatibility is clear.

Counsel for defendant in error advance the argument that the courts of the state may not try the title and qualifications of a senator to his seat in the senate. Undoubtedly it is true, and we dare not gainsay it because the constitution so provides, that in the General Assembly each house shall “be the judges of the election returns, and qualifications of its members”. Far be it from us to undertake to adjudicate in respect to the election, the election returns or the qualifications of Mr. Galpin as a state senator. For the purposes of the present inquiry we may, however, determine, and not only that but it is our duty, under the "law, to determine and adjudicate upon the question, whether or not Mr. Galpin has voluntary resigned the office of state senator of the second district. We are not to be deterred from performing our duty in this respect, as we understand it, because of the closeness, in subject, of that question to the other questions of title and qualification. We follow the law as laid down by our Supreme Court. A like closeness of subject arose in the case of People ex rel. Melville W. Fuller v. Hilliard, 29 Ill. 413. From that case it appears that our present Chief Justice of the Supreme Court of the United 'States was candidate for a seat in the General Assembly in 1862. That case was an original petition for a mandamus requiring the respondent L. P. Hilliard, county clerk, to issue a certificate of election, which he refused to do because of a defect in the affidavits of two of the judges and two of the clerks in a certain election precinct. The returning board, composed of Mr. Hilliard and two justices of the peace, refused to count the votes of this precinct and these votes not counted were decisive of the election. Objection was made to the issuance of the writ for the reason, among others, that the court had not jurisdiction, as the House of Representatives alone had jurisdiction. The court awarded a writ of mandamus. Among other things the court said: “Though the House of Representatives is the sole and exclusive judge of the qualifications of its members, this application has no reference whatever to the point of qualifications”. The board of canvassers was merely a ministerial body, it was held, and in asking for its certificate the relator did not ask to be admitted to office, that is, to turn one man out and put the relator in.

The statute makes it the duty of the governor to decide when a vacancy exists and to call an election. The statute makes it the duty of the county clerk to notify the governor. And in section 126 of chapter 46 of the statute it is said that whenever it is alleged that a vacancy in this office exists the officer whose duty it is to fill the vacancy by ordering an election shall have the power to determine whether or not the facts occasioning the vacancy exist. Of course in the last instance the senate decides upon the title of a senator to office. But nevertheless there is a duty resting upon the governor to act when a vacancy is alleged and the county clerk cannot, by refusing to perform his mere ministerial duty, prejudge the question which the statute requires the governor to decide. When application is made to a court to compel the county clerk to perform this ministerial duty it becomes the duty of the court, before acting upon the application, to determine whether the situation exists which makes it the duty of the clerk to perform his ministerial duty. If, upon the notification from the county clerk, the governor decides that a vacancy exists and calls an election and at an election thereupon held a senator is elected, then, the question may come before the senate and what the senate determines will be final. But the county clerk may not, by his refusal to act, prejudge the whole matter and prevent the question from ever coming before the senate. If the county clerk refuses to perform his merely ministerial act the court will compel him. See on this subject Rhode Island v. South Kingstown, 18 R. I., 258 (22 L. R. A. 65). Were it not so then the statutory provision giving the governor power of determination would be but an idle provision.

There is no doubt as to the right of the relator to the writ of mandamus as prayed for. The judgment of the Circuit Court is reversed and the cause remanded to that court, with directions that it overrule the demurrer of the defendant to the petition and proceed with the cause in conformity with this opinion.

Reversed and remanded with directions.


text:
    Joseph N. Gettys et al., Defendants in Error, v. Phillip A. Marsh, Plaintiff in Error.
    Gen. No. 14,223.
    1. Sales—presumption as to time of consummation. The presumption is that every sale is to he consummated at once.
    2. Contracts—when undertakings of parties fixed without formal instrument. A written proposition and acceptance fixes the rights of the parties without the execution of a formal contract where at the time of the making of such proposition and acceptance thereof there was no apparent intention of entering into a formal contract.
    3. Contracts—how question of existence of, determined. Where the existence or non-existence of a contract depends upon writings alone, it is error to submit the determination of such question to the jury. Reid, however, in this case that the error of so submitting such question to the jury was harmless in that the jury properly found the existence of the contract.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed December 18, 1908.
    Durand & Cunningham and Charles A. Phelps, for plaintiff in error.
    Charles T. Farson and Gardner, Stern & Anderson, for defendants in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

J. B. Albach & Co. are merchandise brokers in St. Louis, Missouri. This suit is an action of assumpsit by Joseph N. Gettys and Harry C. Gilbert of St. Louis against Phillip A. Marsh of Chicago. The action is brought upon a contract made by the plaintiffs and defendant, through J. B. Albach & Co. as brokers, for the sale of one thousand cases of standard canned corn at ninety cents per dozen which contract, it is alleged, Marsh refused to carry out, to the damage of Gettys & Gilbert.

The action was brought in the Municipal Court, where a trial before a jury was had. The jury returned a verdict for $225 against Marsh, plaintiff in error, and on October 19, 1907, a judgment was rendered upon the verdict. To reverse that judgment this writ of error was sued out.

The only evidence of a contract of sale and purchase consists of correspondence between Marsh, in Chicago, and J. B. Albach & Co., the brokers, in St. Louis. Gettys & Gilbert, of St. Louis, claim as principals in the transaction. There is no evidence in the record showing the existence of the relation of Gettys & Gilbert as principals of J. B. Albach & Co., the brokers, at the inception of the negotiations. Marsh contends that the minds of the parties never met in the consummation of a contract of purchase and sale. While Marsh also was a broker, he acted for himself in this transaction. Plaintiff in error introduced no evidence and as the only evidence, bearing upon the formation of a contract, is to be found in the correspondence there is in this regard no conflict in the evidence and, hence, in that respect nothing remains for the court except interpretation of the language of the parties. This is a function of the judge and not of the jury.

On September 18, 1903, Marsh wrote a letter to J. B. Albach & Co. offering certain other merchandise, and ended his letter by saying, “Regarding corn, beg to say I have a lot of one thousand cases of corn, for which I want 90$ per dozen. Quality is first class standard corn. I was at the factory yesterday and saw them putting up as pretty corn as I ever saw go into cans. Think this corn is cheap at $1.00 a doz.”

Standard corn does not mean corn of any particular place or pack, but is corn of a good color, tender and of a good consistency. The Chicago market is the standard in price for the middle or central west consisting of the states of Iowa, Illinois, Wisconsin, Indiana and Michigan.

Albach & Co. replied to this letter by mail the next day, September 19, as follows: “As per your letter of the 18th enter Gettys & Gilbert one thousand cases number two Standard corn, ninety cents Janesville, cash less one and one-half per cent.; wire immediately if all right”. To this letter Marsh responded by a postal of the same date, September 19, saying: “Am just back from the country. Frost has played H— with us. Can’t entertain your offer of 90$, am sure corn will bring a 1 case note per doz. before we have another moon full, hear me and heed. Get wise, Bro. Jim. Would have wired you had I got to office in time to do you any good”.

Apparently Marsh, notwithstanding his own offer, was making an effort to get a higher price. On the 21st of September Albach & Co. wrote him: “Now in the tone of your letter of the 18th, which we wired you on Saturday morning, made a positive offering of a 1000 c/s of corn at 90$ which we took and asked you for telegram in reply confirming in the usual way. We are sorry that you cannot fill this order as it looked very much, like we said before, a positive offer on your part, and our parties will be very much disappointed too”. Undoubtedly Marsh’s letter of the 18th and Albach & Co.’s reply of the 19th was an offer and an acceptance; but by their letter of the 21st Albach & Co. acquiesced in Marsh’s rescission.

After receiving the Albach letter of the 21st, however, Marsh evidently concluded he could not get a higher price for his corn, so on the 24th of September he sent both a telegram and a letter to Albach <fe Co. The telegram is as follows: “Will accept your offer thousand cases standard corn ninety cents Janesville, wire pleasure”, and the letter is as folllows: “Have wired you accepting your offer on corn providing you want it and ask your pleasure, 90$ Janesville. * * * I am awaiting your pleasure regarding the 1000 cases of corn”.

While Marsh speaks of “your offer” he, in reality, was renewing his own previous offer and his communications at this time are to be considered in the light of the previous correspondence. Albach & Co. promptly, on the same day, the 24th, replied as soon as they received the telegram. Their reply is as follows: “Enclosed find confirmation of telegram received from you this morning accepting order for 1000 c/s corn at 90¢ f. o. b. Janesville, Wis. Kindly send us contract to deliver to Gettys & Gilbert, this city, and hold same for shipping instructions from them”. There is not the slightest question but what the minds of the parties had now met as to the subject-matter of the contract, the price and the place of delivery. It is a horn-book principle in the law, with reference to sales of merchandise, that there is a presumption that every sale is to be consummated at once. 1 Parsons on Cont., p. 519, 6th Ed. The witnesses as to the custom of the market testified the telegram meant payment to be net in 60 days or 1½% discount if paid within ten days. On this point there is no dispute in the evidence. The parties were mutually bound. It is true that in the letter of the 24th Albach & Co. say: “Kindly send us contract to deliver Gettys & Gilbert, this city”. But Marsh, so far as we can see, did not contemplate, as a condition precedent to the completion of the contract the parties were negotiating, that it should be reduced to a formal written one; nor does he in any way indicate any intention that the contract should, before completion, be reduced to a formal one. We cannot gather from anything said or done by Albach & Co. that they contemplated or intended, as a condition precedent to the completion of a contract, that there should be a formal written one. The law, in this instance, did not require, in order to make the contract valid, that it should be formal. The contract was completed so far as the law required and, in view of their experience, Albach & Co., to evidence the contract made, desired that Marsh reduce it to a formal written one. The expression to him of this desire did not authorize or permit him to vary the terms of the contract already made. Such contracts as this need not even he in writing, and it is the law in such case that when all the terms are mutually agreed upon, so that the contract is complete, then an arrangement for the reduction thereof to a formal writing does not prevent or even suspend its effectiveness. In B. & O. S. W. Ry. Co. v. People, 195 Ill. 423, 428, the Supreme Court quoted the rule as follows: “The true rule may be stated in these words: Where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done. And this is true although all the terms of the contract have been agreed upon. But where the parties have assented to all the terms of a contract, the mere reference to a future contract in writing will not negative the existence of a present contract”. In Scott v. Fowler, 227 Ill. 104, quoting with approval from Sec. 319 Bishop on Contracts, the court said: “If parties agree on terms, however precise, 'subject to the preparation and approval of a formal contract, ’ the concurrence of their wills is suspended, and where nothing further is done there is no contract. Yet the mere fact that the reduction of an informal agreement, oral or written, to a formal written one, was contemplated or stipulated for, does not prevent the former from taking immediate effect. The question whether it does or not depends upon what the parties intended”. Manifestly this rule is both logical and just. In the case at bar it would be obviously unjust for us to hold that the parties had not passed out of the stage of preliminary negotiations.

On the 28th of September Marsh wrote Albach & Co. as follows: “I herewith enclose you contract for Gettys & Gilbert for 1000 cases of corn. Please have the original signed, return to me promptly, and oblige. Have the contract made out on the company’s contract as I have no forms of my own”. The writing enclosed was as fellows:

“Farms and Factories at Cassville, Prairie du Chien, and Janesville, Wis.; also Dubuque, Iowa.

Sept. 26, 1903.

M. Gettys & Gilbert, St. Louis, Mo.

Bought of P. A. Marsh,

37 River st., Chicago, Ill. Janesville, Wis.

Cases 2 lb. Dewey, Bower City or Maple Leaf Brand Corn........at per doz.

1000 Cases 2 lb. Corn ..........................at 90^ per doz.

Cases 2 lb. River View Corn......at per doz.

Cases 2 lb. Pride of Cassville Corn ..............................................at per doz.

Cases 2 lb. Pride of Janesville Corn ...............................................at per doz.

Cases 2 lb. Key City Corn..........at per doz.

Cases 3 lb. Dewey Brand Tomatoes ................................................at per doz.

Cases 3 lb. Badger State Tomatoes ................................................at per doz.

Cases 3 lb. Key City Tomatoes at per doz.

Cases 3 lb. Badger Brand Canned Kraut ..........................................at per doz.

Cases 3 lb. Dewey or C. V. Canned Kraut ..........................................at per doz.

F. O. B. cars at Janesville, Wis.................

Terms........................cash........................less one and one-half % if paid within ten days from date of invoice. Shipments to be made at packer’s option during month of October 1903.

(In case of a partial failure of the crop we consent to the cutting down of this order, pro rata, with all other orders taken, of thirty per cent., without liability for claim for damages, and to accept a cash payment of fifteen cents per ease for the cutting down of an additional twenty per cent. In case of destruction of the cannery by the elements, the packer is not to be held liable for damages for non-delivery.)

Remarks :

......................Brokers. P. Hokenadel, Jr. Co. The above order accepted this 9/29th day of..........1903.

Gettys & Gilbert.”

Mr. Marsh had taken a printed blank of P. Hohenadel, Jr., & Co., who were packers of corn, while he, Marsh, was a broker dealing in corn, and had not fully adapted the form to the condition he was dealing with.

On the 29th of September Albach & Co., writing Marsh with reference to other corn, added the following: “Further, replying to yours of the 28th, enclosed find contract from Gettys & Gilbert, and you will note they have scratched the stipulation as to delivery, stating that they have bought spots ”. “ Spots” means a purchase for cash or immediate delivery in contradistinction to “futures”, a purchase for future delivery, according to the custom in the corn market. The part within the parentheses had been crossed out by Gettys & Gilbert. To this letter Marsh replied on the 30th as follows: “Tour favor of yesterday at hand, containing Gettys & Gilbert’s contract, with conditions changed from what they originally were. Ton ought to know that such conditions are not equitable, and we beg to say, we turn this order down for the reasons above named”. On October 1st, Albach & Co. wrote Marsh a letter protesting, and to this Marsh, on October 2nd, replied: “Tour favor of yesterday at hand, and in reply beg to say that we are still packing corn in the north. Will be for several days yet. I still adhere to contents of my letter of the 30th. Would like to know what protection a packer would have against fire-clause or anything else when he is selling corn, without the packer’s clause, as it originally stood. Ton know as well as anybody wRen conditions are changed after they are signed by the maker, they are void. Wish you would so advise Gettys & Gilbert”. These two letters of Marsh’s are a refusal to carry out his contract. There was some more correspondence between the parties, but it is not material, except that it may be noted that on October 12th he closed a letter by saying: “As far as I am concerned, this ends the matter, as far as this contract goes I absolutely refuse to ship the goods, as I am under no legal or moral obligation to do so”. The only reason Marsh ever gave for his refusal was this crossing out of part of the printed form of contract, by Gettys & Gilbert. What was stricken out was something at no time mentioned between the parties. It had not the remotest applicability in a sale for immediate delivery between a seller who was not a packer of corn and a purchaser from him. Terms in respect to a whole or partial failure of crop might have applicability in a sale by a packer of an output before the crop is grown, but such terms in this sale for immediate delivery made in September, after the year’s crop was harvested, would have been an absurdity. Whether or not the packer should or should not be held liable in case of destruction of his cannery was, as between these parties, equally irrelevant.

We cannot hold that parties may evade performance of their contracts for any such reason. The question of the amount of damages that resulted from the refusal to carry out the contract, being the difference between the contract price and the market price, was properly left to be fixed by the jury. The refusal by Marsh to perform fixed the time of breach. The difference between the contract price and market price on the day of refusal was testified to be from 95^5 to $1.05. Hence there is evidence in the record which justifies the amount of the verdict. There is evidence that Illinois, Wisconsin and certain other states are termed the central or middle west market for corn, and it appears from the evidence that in this market the corn is sold delivered at Chicago or f. o. b. factory so that therefore Chicago practically fixes the price. The freight rate between Janesville and Chicago was shown. The evidence is ample to warrant the amount of the verdict.

Counsel for plaintiff in error contend that the trial judge erred in submitting to the jury a question of law in that he submitted to the jury the question whether the plaintiff’s exhibits constituted a contract; and counsel say: “there can be no doubt but that these instructions are erroneous”. We agree with counsel in this contention. Here, if there was a contract at all, and we have above held there was, it arose entirely upon the correspondence between the parties, for there is no oral evidence on the subject. Hence there is no conflict of testimony on the subject of what occurred between the parties. Whether upon what occurred a contract can be predicated is, then, a question of law. “The questions as to what writings should be considered, and whether or not those considered constituted a written contract, and whether or not the written contract fully expressed the agreement between the parties, were for the court”. Telluride Power Co. v. Crane Co., 208 Ill. 218, 226. This is a familiar rule. The trial judge should by interpretation of the language and construction, according to the principles of the law, have determined whether or not the negotiations conducted by correspondence ripened into a contract and what that contract was and instructed the jury accordingly.

Conflict in language used by parties is to be disposed of by the trial judge, alike, whether it occurs in a contract written on one sheet of paper or in a contract consisting of letters which have passed between the parties, so long as there is no dispute as to the language actually used. Had there been such conflict of language that the terms of the contract were not clearly settled and agreed upon, then there would not have been a contract. But in this particular ease plaintiff in error was in nowise injured by the error of submitting to the jury the question of the existence of a contract, for the jury found that there was a contract such as we have above found, that the parties entered into.

Other points are made by plaintiff in error which we have fully considered, but we find no reversible error in the record. We are fully satisfied that the judgment below is not contrary to the law applicable or the evidence in the case.

The judgment of the Municipal Court is affirmed.

Affirmed.


author: Mr. Justice Chyteaus

text:
    Joe Barni, Defendant in Error, v. Warren Springer, Plaintiff in Error.
    Gen. No. 14,228.
    Master and servant—duty to furnish safe place. It is the duty of a master to exercise reasonable care to furnish his servant a reasonably safe place in which to perform his duties to the master; when the nature of the business in and about which the servant is employed is such that the exercise of reasonable care requires it, then there is on the part of the master an active and continuous duty of inspection to discover hidden or latent defects. The servant may rely upon the discharge by the master of his duty in this respect.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed December 18, 1908.
    Statement by the Court. Plaintiff in error sued out this writ of error to reverse a judgment obtained - against him in the Municipal Court for $1,000, in an action on the case for a personal injury.
    Joe Barni, defendant in error, who recovered the judgment, was employed by plaintiff in error, Warren Springer, as a fireman in the latter’s building. There were an east and a west boiler room in the building. In the west room the boilers are placed in a row along the north side of the room. In front of them there is a space ten or twelve feet wide. But south of the boilers manure, used for fuel, is piled, beginning three feet in front of them and running to the south wall, so that a lane or passage-way three feet wide is left open. Approximately over this lane, parallel to the line of boilers and fifteen or twenty feet overhead, runs the main steam pipe which carries the steam from all the boilers to the engine room. The pipe is a ten-inch pipe. December 10, 1906, at about six o’clock in the morning, Barni was called to this west boiler room to fix a loose bolt on the face of a boiler. Five or six men, including Falvo, who was engineer and foreman, stood around and watched. Barni stood in the lane, working at the bolt on the boiler. Suddenly the main steam pipe overhead blew out and filled the room with steam and hot water. The pipe pulled out of a T fitting. The threads, as the witness Wishart and Springer himself inform us, were badly strained, weakened and not full enough to hold the parts together. The other men escaped with but slight injuries, but Barni was blinded by the steam and was horribly scalded. There is no dispute but what the injury sustained warrants the amount awarded.
    Stedman & Soelke, for plaintiff in error.
    Peckham, Packard, ApMadoc & Walsh, for defendant in error.
   Mr. Justice Chyteaus

delivered the opinion of the court.

We find here a total absence of negligence on the part of the servant. Barni was in no way at fault.

It is the duty of a master to exercise reasonable care and prudence to furnish the servant a reasonably safe place in which to work and perform his duties to the master. When the nature of the business in and about which the servant is employed is such that the exercise of reasonable care requires it, then there is on the part of the master an active and continuous duty of inspection to discover hidden or latent defects. Bailey’s Master’s Liability, pp. 93, 101, 107-8. The servant may rely upon the discharge by the master of his duty in this respect. “In other words, the master has a duty of inspection as well as of observation; the obligation of the servant is that of observation”. Illinois Steel Co. v. Mann, 100 Ill. App. 367, 376; Cribben v. Callaghan, 57 Ill. App. 544; affirmed in 156 Ill. 549; Libby v. Scherman, 146 Ill. 540; Baier v. Selke, 211 Ill. 512, 517; Armour v. Brazeau, 191 Ill. 117, 125. “The master cannot screen himself from liability upon the ground that he did not know of the defects in his appliance, if he might know of them by the exercise of due care. ‘The law will imply and infer notice of any defect, which, by the use of ordinary care, might have been known to the master’.”, Missouri etc. v. Dillon, 206 Ill. 145, 152. The verdict being against Springer, the jury found as a fact that the operation by him of his steam plant was a business of such character that, for the safety of his servants employed about it, it imposed upon him the duty of active and continuous inspection to discover hidden or latent defects. Of .course, only such duty of inspection was imposed as ordinary care required, the steam plant and its nature being considered. The evidence shows that the building wherein he maintained the steam plant was put up by Springer about fifteen years previous to the time Barni was injured. Springer testified that he did not put in the boiler room until five or six years after the building was put up and that the steam main was put in “about eight, nine or maybe ten years ago ’’. Wishart, a mechanical engineer who had previously done work for Springer, was called in by him immediately after this “blow out” to advise him, and together they inspected this ten-inch main. Wishart says of the main, that right at the joint the pipé was out of line and “it was piped rather careless ’ ’; that if the joints were not square with each other it would result in an undue strain at some particular point; that where the threads are is the weakest point in the pipe and the strain would come where they were out of square and that the fittings were in fact badly strained; that when they subsequently used part of the pipe a good deal of it was found to be crystallized and “pitted”, i. e. little molecules rusted out, but that the fact it was pitted would not “have affected it if it had not been weakened by crystallization”. It appears that the main leaked at some points, not where it burst, however, and leakage shows weakness of threads at the point of the leak. If a pipe is a good grade of pipe crystallization will not occur for years, but in a poor piece of pipe it may happen in a week from vibration and strain. The possibility of crystallization is one of the things that suggests the necessity of constant inspection. Crystallization, says the witness Wishart, “is the same as if we take a piece of wire and bend it back and forth until crystallization takes place and it breaks”. There is evidence tending, to show that the pipe was rusted and corrugated with slate.

One John Snyder had been master mechanic for Springer at this building for three months, but quit the morning after the accident happened. Mr. Springer tells us he did not tell Snyder that the plant needed a general overhauling but that his, Snyder’s, duty was to inspect and report to him, Springer. Snyder testified that while he had no conversation with Springer about this main pipe he did speak to him about the condition of the plant generally and that the plant needed an overhauling in several instances, and to this Springer said: “When we get more tenants we will make a general overhauling and straighten these things up ’ ’. In his cross-examination however Snyder said that in this conversation with Springer this particular steam line that ran in front of the boilers was spoken of. The evidence shows no inspection or overhauling of the steam plant since it was put in. Springer had the affirmative of this proposition and could readily adduce the evidence had there been any inspection. As he showed none the jury could fairly infer that there had been none. The plant was allowed to wear out with the wear and tear of age. The defense is advanced that the particular defect which caused the injury to Barni was not obvious and indicated by leakage at the joint that pulled out—that it was not observable by those who saw the pipe. This may be considered as true but it is not a sufficient defense in a case such as this where there is a duty of active and continuous inspection. To hold such defense sufficient here would be to totally abrogate the active duty of inspection. It was testified to by witnesses for the defense that the probable life of such a steam pipe is twenty to twenty-five years. But in this same connection the witness Wishart testified that the probability of life depends upon the care and attention the pipe receives; that undue vibration might bring on an accident at any time even two hours after the installation of the plant; that where the pipe would be out of square there would the greatest strain be, that the weakest part is where the threads are, and that if a pipe wore out there is where it would pull out. And so it happened here. We cannot escape the conclusion that had the pipe been inspected—overhauled—according to Snyder’s request of Springer, then Barni would not have been injured. As it happened Springer did not perform his duty to defendant in error in that respect and did not exercise reasonable care and prudence to furnish him a reasonably safe place in which to work..

The judgment of the Municipal Court will be affirmed.

Affirmed.


text:
    Daniel W. Newby, Defendant in Error, v. Swift & Company, Plaintiff in Error.
    Gen. No. 14,235.
    1. Contributory negligence—when servant guilty of. Held, under the evidence in this case, that the servant injured while descending a ladder was guilty of contributory negligence which barred his recovery.
    2. Master and servant—when appliance not defective. Held, under the evidence in this case, that the ladder, descending which the servant was injured, was not of such negligent construction as to justify a recovery against the master for an injury sustained by the servant by reason thereof.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1908.
    Reversed.
    Opinion filed December 18, 1908.
    Winston, Payne, Strawn & Shaw, for plaintiff in error.
    A. L. Gettys and Frank V. Campe, for defendant in error.
   Mr. Justice Chytraus

delivered the opinion of the court.

Daniel W. Newby brought this suit in the Municipal Court, by Bennoi Newby, his father and next friend, against Swift & Company, his employer, to recover damages for a personal injury. A trial by jury was had, a verdict in his favor for $400 returned and a judgment was entered upon that verdict. Plaintiff in error sued out the writ herein to reverse that judgment. We can find no way of justifying that verdict and judgment. The young man when hurt was employed as a carpenter and he had worked in connection with that trade for about a year and a quarter. He worked for Swift & Company at Kensington, Illinois, where they were putting up an addition to an ice house. He was eighteen years old, and strong. He was injured by falling off a ladder about twelve o’clock noon on December 20, 1906, and at that time had had his position about three months. For two days before he was hurt he had been at work laying a floor in a hay-loft in the building. On the east side of the building there were ten permanent ladders, not slanting but fastened up flush against the building. The ladders were distributed along the side of the building. Each ladder was alongside of a door or, rather, an up and down series of doors, one for each story of the building. The building was forty-seven feet high from the ground to the top of the hay-loft. The hay-loft made a ceiling over the rooms below it. Each ladder consisted of two uprights (the evidence is not clear whether two-by-four or two-by-six) into which the rungs were mortised. The ladders had been made on the ground, and, when completed, two-by-six pieces of wood were nailed across the several ladders at distances of eight feet apart. These two-by-six crosspieces are claimed to have caused the trouble. When the ladders were nailed up to the side of the building, spikes were driven through these cross-pieces into the wall of the building to hold the ladders in place. These cross-pieces thus came between the ladders and the building and some of them came nearly opposite rungs in the ladders. There is no complaint of the rungs.

When he was hurt Daniel was following another workman down one of the ladders from the loft, in response to the noon whistle. At a distance of about sixteen feet from the ground, when putting his right foot down from one of the rungs, he put the toe thereof on the two-by-six instead of on the rung whereon he intended to step. Then, as he says, when he stepped with his left foot he “fell right straight down”.

It appears that the upper edge of the two-by-six, which he says he placed his toe upon, is about four inches above the rung on which he intended to place his foot. In the exercise of reasonable care he must have observed that his foot had not reached.the rung of the ladder. The rungs, as he says, were about one foot apart in all the ladders. He had gone up and down these ladders several times and had even gone up this particular ladder. The distance between the rungs was not so great but that the difference, when it was lessened by about four inches, must have been noticed in the exercise of due care. Besides his sense of feeling must have informed him that he was not stepping on a rung of the ladder. The rungs of the ladder were somewhere from four to six inches in depth.

Under the circumstances we do not regard the placing of these cross-pieces between the ladder and the building as negligence. We consider that the ladders as constructed were a reasonably safe appliance and the mere fact of injury is not a ground for recovery against a master. The judgment of the trial court is reversed and the cause will not be remanded.

Reversed.


author: Mr. Presiding Justice

text:
    Peoples Gas Light & Coke Company, Appellee, v. City of Chicago et al., Appellants.
    Gen. No. 14,088.
    Ordinances—construction as to frontage consents. Held, that a gas reservoir proposed to be constructed was to be located “on” 64th street in the city of Chicago, and that under the terms of the ordinance regulating the right to erect such a building, frontage consents were essential only with respect to said 64th street.
    Bill for injunction. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honore, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Statement by the Court. The People’s Gas Light & Coke Co., May 4, 1907, filed a bill against the City of Chicago and Joseph Downey, defendants, praying an injunction to restrain said defendants from in any wise interfering with or preventing, or attempting to interfere with or prevent the construction of a foundation and erection of a gas reservoir on certain property of complainant.
    The defendants answered the bill, the cause was heard on the pleadings and on a stipulation of facts and testimony heard in open court and exhibits, and the court, June 24, 1907, found and decreed, in substance as follows: The court finds all the material allegations of the bill to be true; that complainant is a corporation, incorporated under a special act of the legislature of this State, approved February 12, 1855, as amended by special act approved February 7, 1865, and is engaged in the manufacture of gas, etc., and is the owner of certain described lots, which property was acquired by it for the purpose of its business, at an expense of more than $100,000; that it caused plans and specifications to be made for a gas reservoir, to be erected on parts of lots 3 and 4, in block 10, in Skinner and Judd’s subdivision, in the northeast quarter of section 21, township 38 north, range 14 east of the third principal meridian, said gas reservoir having a diameter of approximately 180 feet, to be located at a distance of four feet south from Sixty-fourth street, at its nearest point, and at a distance of over twenty-six feet at its nearest point from Drove avenue, on Sixty-fourth street. Between State street and Drove avenue are the following buildings (exclusive of the reservoir in process of erection) fronting south, three buildings, one residence, one shop and one stable; and fronting north is one building, a residence, owned by complainant, and on the southwest corner of Sixty-fourth and State streets is a saloon, having its entrance on State street.
    Sections 1108 and 1111 of the building ordinance of the city of Chicago, known as sections 687 and 692 of the Revised Municipal Code, are correctly set out in the bill and are as follows: (copying the sections). The court further finds that less than two-thirds of the buildings on both sides of Sixty-fourth street, between State street and Drove avenue, the two nearest intersecting streets, one on either side of the point at which the gas reservoir is to be erected, are used for residence purposes, and that complainant is the owner of more than a majority of the frontage on both sides of Sixty-fourth street between State street and Drove avenue. And the court further finds that complainant submitted said plans and specifications to the commissioner of buildings of the city of Chicago, and requested from him a permit to erect a gas reservoir in the aforesaid location, in accordance with said plans and specifications, and, January 24, 1907, Peter Bart-zen, then such commissioner, issued to complainant a permit, in the usual form, to construct the foundations for the gas reservoir, for which complainant paid $5.00 to said city; and, February 7, 1907, said Peter Bart-zen, commissioner as aforesaid, issued to complainant a permit, in the usual form, to erect said gas reservoir, and complainant paid said city therefor $459.30, but by a clerical error, the block in which the property is was written 9 in said permit, instead of 10, which last was mutually intended. Complainant, subsequently to the issuance of said permits, contracted with Thomas Hayward for the construction of the foundations and the erection of said gas reservoir, for the total price of $445,000, and said contractor entered upon the construction of said foundations, and has expended more than $25,000 in said construction. The said foundations are on lots 3 and 4 in block 10, in said Skinner & Judd’s subdivision, and are located four feet from Sixty-fourth street, at its nearest point, and more than twenty-six feet from Drove avenue, at its nearest point; and the valve house, used in connection with said reservoir, will be in Sixty-fourth street, and the gas mains running to said reservoir come into said reservoir from Sixty-fourth street, and said reservoir is on Sixty-fourth street, and not on Grove avenue. The defendant, Joseph Downey, is now the commissioner of buildings of the city of Chicago, and the defendants, the city and said commissioner, threatened to revoke said permits, and notified complainant and said contractor to cease said work, and that he, said commissioner, would, if necessary to prevent the same, invoke the aid of the police force of the city of Chicag’O, and, prior to the filing of the bill, the said police actually interfered to prevent the carrying on of said work. Following the foregoing findings, the court decreed, in substance, rectifying the mistake in the permit of block 9 instead of 10, above mentioned, and perpetually enjoining the defendants from revoking said permits, and from, in any manner, interfering with complainant, or said contractor, in continuing the construction of said foundations and the erection of said reservoir.
    George E. Dierssen and George W. Miller, for appellants; Edward J. Brundage of counsel.
    Sears, Meagher & Whitney, for appellee; James F. Meagher and Edward S. Whitney, of counsel.
   Mr. Presiding Justice

Adams delivered the opinion of the court.

It is not assigned as error or contended by counsel for appellant, in argument, that the findings of fact by the court are not warranted by the evidence. The contention of appellants’ counsel is solely one of law, viz.: that, to entitle appellee to a permit, it must have not only the consent of a majority of the frontage on Sixty-fourth street, between State street and Grove avenue, which it is conceded appellee has, but also a majority of the frontage on Grove avenue. In advancing this proposition, counsel for appellants rely on the following sections of an ordinance of the city of Chicago:

“1108. Whenever in this ordinance a provision is made that frontage consents shall be obtained for the erection, * * * of any building or structure in any block, the word ‘block’, so used, shall not be held to mean a square, but shall be held to embrace only that part of a street bounding a square which lies between the two nearest intersecting streets, one on either side of the point at which such building or structure is to be erected * * * unless it shall be otherwise specifically provided”.

“1111. It shall not be lawful for any person or corporation to locate, build, construct or maintain, on any street or alley in the city, in any block in which two-thirds of the buildings on both sides of the street are used chiefly for residence purposes, any building for a * * * gas reservoir * * * without the written consent of a majority of the property owners according to frontage on both sides of said street or alley.

“Such written consent shall be obtained and filed with the Commissioner of Buildings before a permit is issued for the construction of any such building. Provided, that in determining whether two-thirds of the buildings on both sides of the street are used chiefly for residence purposes, any building fronting upon another street and located upon a corner lot shall not be considered”.

Sixty-fourth street is an east and west street, and 'State street and Grove avenue lie north and south, and are the nearest intersecting streets to the place where the gas reservoir is located, State street lying-east and Grove avenue west of that place. The proposed gas reservoir will be circular in form. Its nearest point to Sixty-fourth street will be four feet south of the south line of Sixty-fourth street, and its nearest point to Grove avenue more than twenty-six feet east of the east line of Grove avenue. By section 1111, above quoted, it is provided: “It shall not be lawful for any person or corporation to locate, build, construct or maintain, on any street or alley in the city, in any block in which two-thirds of the buildings on both sides of the street are used chiefly for residence purposes, any building for a gas reservoir, without the written consent of a majority of the property owners, according to frontage, on both sides of said street or alley”.

The word “on” in the phrase “on any street or alley in the city”, evidently means fronting on or next to any street or alley. If a building were constructed, fronting on Sixty-fourth street, four feet from the- street line, and of width equal to the diameter of the proposed reservoir, it could not be contended that it was not on the street, within the meaning of section 1111. The word “block”, as used in the ordinance, is defined by section 1108 as not meaning a square, but as embracing “only that part of a street bounding a square which lies between the two nearest intersecting streets”. This definition applies very clearly to that part of Sixty-fourth street within four feet of which the gas reservoir is located, and which lies between the two nearest intersecting streets, State street and Grove avenue, and is not in the least applicable to the part of Grove avenue between Sixty-fourth and Sixty-fifth streets, on which part, of the street the reservoir is not located. The concluding language of section 1111 is: “Provided, that, in determining whether two-thirds of the buildings on both sides of the street are used chiefly for residence purposes, any building fronting upon another street, and located on a corner lot, shall not be considered”. In view of this provision, if there were a building on the southeast corner of ‘Sixty-fourth street and Grove avenue, fronting on Grove avenue and extending back next to the south line of Sixty-fourth street, it could not be considered in estimating the frontage. This emphasizes the view that the frontage which is to be considered is that on the part of street next to or fronting on which the gas reservoir is located, viz., Sixty-fourth street.

We think it plain that under the ordinance the appellee is only required to have the consent of a majority of the property owners, according to frontage, on both sides of that part of 'Sixty-fourth street between State street and Grove avenue. Counsel for appellant, in their argument, say: “It is conceded that appellee is the owner of a majority of the frontage on both sides of Sixty-fourth street, and, if permitted to continue the frontage on Sixty-fourth street with its frontage on Grove avenue, then appellee still has a majority on both streets”. But the court found, and the finding is not questioned, “that less than two-thirds of the buildings on both sides of Sixty-fourth street, between' State street and Grove avenue, the two nearest intersecting streets, one on either side of which said gas reservoir or holder is to be erected, are used for residence purposes”, so that appellee requires no frontage consents on Sixty-fourth street.

The decree will be affirmed.

Affirmed.


author: Mr. Presiding Justice Adams

text:
    Louis Craney, Appellee, v. Ernest Schloeman et al., Appellants.
    Gen. No. 14,093.
    1. Licensees—who not mere. A person who enters upon premises upon which an auction is to be conducted, for the purpose of purchasing at such auction, is not a mere licensee but is upon such premises by implied invitation.
    2. Contributory negligence—when person standing in horse auction ring not guilty of, as a matter of law. Held, under the evidence in this case, that it was for the jury to determine whether a person injured while standing in an auction ring where horses were being exhibited prior to sale, was in the exercise of ordinary care.
    3. Practice—when general objection will not avail. A general objection will not reach the irresponsiveness of an answer.
    4. Instructions—when modification requiring knowledge in plaintiff of loaning sign, proper. Held, that the modification of the following instruction by the insertion of the italicized words, was proper:

      “You are instructed that if you believe from the evidence that at the time of the injury to the plaintiff there was displayed conspicuously in the ring in question a sign reading as follows: ‘Do not stand in the ring. Persons standing in this ring do so at their own risk’; and that the plaintiff knew of said sign, and that the plaintiff received his injuries while standing in the ring in question, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendants.”
    5. Verdict—when not excessive. A verdict for $3,500 rendered in an action for personal injuries is not excessive where it appears that plaintiff suffered as a result of the accident three fractured ribs, contusions to the back, stomach trouble, pleurisy, pain, etc.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1907.
    Affirmed.
    Opinion filed December 21, 1908.
    Rehearing denied January 7, 1909.
    Winston, Payne, Stbawn & Shaw, for appellants; John D. Black, of counsel.
    Miles J. Devine, for appellee; John T. Mttebay, of counsel.
   Mr. Presiding Justice Adams

delivered the opinion of the court.

This is an appeal from a judgment for $3,500, recovered in an action on the case by appellee against appellants. The Union Stock Yards and Transit Company of the city of Chicago owns a building in said city, in which is a large arena surrounded by stationary seats, used for conducting auction sales of horses, which that company permits persons to hold. The size of the arena is variously estimated by the witnesses at sixty to eighty feet from south to north and from twenty-five to thirty feet from east to west. There are tiers of seats around the ring in which the horses are exhibited; these tiers rise gradually from the front backwards and are easy of access from the floor of the ring. On each side of the ring where the horses are exhibited, and near the centre of the ring, are two posts extending from the floor to the roof, and the auctioneer’s box is between the two posts on the east side of the ring. The defendant, Ernest H. Schloeman, was in the horse commission business and, on Tuesday, August 5, 1902, he had the use of the premises mentioned, for the purpose of selling horses at auction, and his sale commenced about 11:30 o’clock in the forenoon of that day. The plaintiff, Louis Craney, was engaged in the teaming business and went to the auction sale that day for the purpose of buying a horse. He was standing at one of the posts on the east side of the ring, near the auctioneer’s box, when a blind horse, which was being led in the ring, broke away from its leader and ran against plaintiff, crushing him against the post and seriously injuring him.

The propositions argued by appellants’ counsel are, that plaintiff, in attending the sale, was a mere licensee, and took his license subject to the manner in which the business was conducted; that plaintiff was guilty of contributory negligence; and that the trial court erred in its rulings on evidence and instructions. The plaintiff was not, in going into the auction room, a mere licensee. There was an implied invitation by the defendant Schloeman, to all persons desiring to purchase horses to attend the auction. Schloeman was engaged in selling horses at auction, and the plaintiff attended the sale for the purpose of purchasing a horse. The business, therefore, which was being carried on, was one in which the plaintiff and Schloeman were mutually interested. In Pauckner v. Wakem, 231 Ill. 276, the court distinguishes between a mere licensee and “one who comes on the premises of another by invitation express or implied”, and says, “An implied invitation means more than a mere license—means that the visitor was there for a purpose connected with the business in which the occupant is engaged, or which he permits to he carried on”. Ib. 281.

In Hart v. Washington Park Club, 157 Ill. 9, the plaintiff attended a public exhibition of horse-racing given by the club, and was injured by a runaway horse attached to a vehicle. Held, that the plaintiff was entitled to recover, the court saying, among other things: “If an owner or occupier of land, either directly or by implication, induces persons to come upon his premises, he thereby assumes an obligation that such premises are in a reasonably safe condition, so that the persons there by his invitation shall not be injured by them, or in their use for the purpose for which the invitation was extended”. Citing cases. See, also, Calvert v. Springfield Light Co., 231 Ill. 290, and 1 Thompson on Law of Neg., sec. 968. The only case cited by appellants’ counsel in support of their contention is Bentley v. Loverock, 102 Ill. App. 166. The case is not, in the least, in point. The plaintiff in that case was the representative of an insurance company, and went into a place on the defendant’s premises without invitation, express or implied, of his own volition, and solely in the interest of the insurance company. The basis of the contention that the plaintiff was guilty of contributory negligence is the claim that there was $a sign in front of the auctioneer’s box, reading, “Do not stand in ring; persons standing in this ring do so at their own risk”, and that, notwithstanding this sign, the plaintiff stood in the ring, next a post, as hereinbefore mentioned. The evidence is conflicting as to whether there was such a sign at the time of the accident. The plaintiff testified that there was not, and there is no evidence that, if there was such sign, he' knew of it; also that if there was such sign, it was customarily and persistently disregarded, with the permission of the defendants. Mr. Schloeman, defendant, testified: “It was customary for the men who wanted to buy horses to be in the ring, the object being to get close to a horse, to see what kind of a horse he is, to see whatever defects may be on him, and they cannot do that very well from a seat”.

There is no conflict in the evidence that, at the time of the accident, there were a number of men standing-in the ring while the horses were being exhibited. Higgins, witness for plaintiff, and in Schloeman’s employ at the time in question, testified that there were from 100 to 150 men standing in the ring when the accident happened.

"Arthur O’Neil, clerk at the auction, called as a witness by defendants, testified that the “ring was crowded with people that day of the sale”. There is other evidence to the same effect. It was a question for the jury, whether, in view of this evidence, plaintiff did not exercise ordinary care. The horse which injured the plaintiff was blind. He was led by a halter into the ring by one Anderson, who was in Schloeman’s employ, and was turned over by Anderson to Michael G-. Higgins, also in Schloeman’s employ, whose duty it was to lead the horses round the ring.

Anderson testified that he told Higgins, when he delivered the horse to him, to be careful with him, that, “he was off in the eyes”. That this information and caution were proper is shown by Mr. Schloeman’s evidence. He testified: “A blind horse is liable to run into anybody, or into the auctioneer’s stand; that is the reason I give them precaution to be careful—the men that handled the horses down in the ring, Mr. Ramp and Mr. Higgins, the man that led the horse; I told them to be careful, out of the auction box. I told Mr. Ramp to be careful”. Ramp was Mr. Schloeman’s ringman, and it appears from the evidence chat it was his duty to drive the horses, while they were being led, round the ring. Higgins, after testifying that Anderson told him that the horse was blind and cautioning him to be careful, testified as follows: “I examined the horse and I noticed that the horse was totally blind. I led the horse to the centre of the ring and Mr. Schloeman, the auctioneer, was in the auction box, and Mr. Ramp said that the horse is sound and right except a little off in the wind, and I says to Mr. Ramp; ‘The horse is blind’, and Mr. Ramp says to me: ‘Keep your mouth shut; take a short hold of him and don’t mind’. So I went and winded the horse to the best of my ability. He said he was sound and right except a little off in the wind. I got a short hold of the horse’s head and led him to the centre of the auction ring. I led the horse north for to wind him. I turned him once and went south three sucessive times. Mr. Ramp was whipping the horse. I had the check on him and I had the rope attached to that. The halter check would be two and one-half feet and the rope would be three feet. I told Mr. Ramp, says I, ‘Ease up on the horse’. Mr. Ramp as a rule don’t pay much attention to me. * * * I was just losing control of the horse when I told him to keep the whip off the horse. He kept whipping the horse. I was coming on up and I lost control of the horse down the centre of the ring. The horse got away from me and he was going right straight south. I had him by the head and I lost control of him and I ran into the end of the room, and while I hung onto the horse, the horse got off at an angle and ran right into this man Craney and doubled him up against a post and he kind of moaned round and swooped right down and fell onto the platform right in line with the auction box. As the horse fell backwards I lost control of the horse. I couldn’t hold him”. This witness also testified, “I spoke to Mr. Ramp four or five times. I told him the horse was blind. I told him not to light on the horse—whip him up, I was losing control of the horse, and he says, ‘Never mind, take a short hold of him, go ahead and wind him’.”

O’Brien, witness for plaintiff, testified that the horse was being whipped, and Mr. Craney, the plaintiff, testified: “Mr. Ramp was whipping him all the time, he was whipping him most of the time; * * * I saw him hit the horse, and saw the horse break loose from the other man. * * * I have seen them whip all kinds of horses; but I have not seen them whip as bad as this one”.

Ramp denied whipping the horse. Piso, for defendant, testified: “Nobody in the ring hit him with a whip. We never hit a blind horse. Mr. Ramp did not hit him that I know of”. Hayden, called by defendant, testified: “I saw Mr. Ramp in the ring this day in question. He was ring-master. He was whipping the horses. I did not see him whip this gray horse. I did not see him whip the blind horse”.

Our conclusion from the evidence is, that it was a question for the jury to decide, from all the evidence, whether the horse was whipped by Ramp, the servant of the defendant, Schloeman, and whether the whipping was negligence and the proximate cause of the injury to the plaintiff. This, certainly, is not a question of law on the evidence, nor can we say that the verdict is contrary to the evidence. Anderson was questioned and answered as follows:

“Q. Did you hear any one, that day, when this horse was brought out, say that this horse was blind?

A. I was the one that told Mr. Higgins to be careful of him, that he was off in the eyes.”

The answer is not strictly responsive; but counsel objected merely generally, specifying no ground of objection. We do not think the court erred in overruling the objection.

The Court: “Did any one beside you say anything about that horse, and, if so, who was it?

A. There was nothing mentioned about the horse being blind to me. I told Mike Higgins to be careful, that he was off in the eyes, and I took the horse Mike Higgins had and gave him this one”.

Counsel moved to strike out the answer, stating no reason for the motion, and the court overruled the motion. We perceive no reversible error in the ruling. The foregoing answers could not have prejudiced defendants. It is not controverted that the horse was blind, and the defendant, Schloeman, himself, testified that he had cautioned Ramp and Higgins to be careful, as the horse was blind.

The following question was asked Higgins and answer made:

“Q. What, if anything, did you'say to him, Anderson, after he got the horse?

A. Anderson told me the horse was totally blind, and to look out for him, that he would step on. me”.

Counsel objected generally to the question and the objection was overruled. The ruling is not reversible error.

The plaintiff asked the following instruction, except the words italicized, which the court modified by inserting the italicized words, and gave it as modified:

“You are instructed that if you believe from the evidence that at the time of the injury to the plaintiff there was displayed conspicuously in the ring in question a sign reading as follows: ‘Do not stand in the ring. Persons standing in this ring do so as at their own risk’; and that the plaintiff knew of said sign, and that the plaintiff received his injuries while standing in the ring in question, then you are instructed that the plaintiff cannot recover and your verdict must be for the defendants”.

The instruction as asked was bad, and the modification was proper.

Objection is made to two instructions in respect to the care which the plaintiff should have exercised, and in respect to whether he failed to exercise reasonable care. These instructions are substantially included in five instructions given at the request of the defendants, to which we cannot refer by numbers, as the instructions are not numbered, as they should be.

Lastly, it is urged that the damages are excessive.

The post against which the plaintiff was crowded by the horse was a rough timber post eight by eight or ten by ten inches in lateral dimensions, supporting the roof of the structure, and the weight of the horse, as testified by one witness, was 1,300 pounds and by another 1,400 pounds. Dr. Flanagan testified that he was called to the Stock Yards to attend plaintiff, at the time of the accident, and, on the examination, found that he had three fractured ribs on the left side and contusions on his back, and was suffering great pain; that the fractures were alongside the sternum, and that he, witness, at that time gave him a little stimulant and immobilized his side as well as he could with bandages and adhesive plaster; and that he saw him again about two weeks after the accident, and had seen him since the accident, in all about twenty times, and examined him about four days before giving his testimony, and found that his third and fourth ribs were not united as well as they should be, and that, in his opinion, they would never be any better. He further testified that, two weeks after the accident, he treated plaintiff for cough and stomach trouble, and examined his chest and diagnosed his complaint as pleurisy, and that the pleurisy resulted from the accident.

Doctor McGregor testified that he examined plaintiff in the latter part of July, or in August, 1903, and also the day before he testified, and found that there had been a separation of the sternal ends of the ribs, and that the indication was that the ligaments which hold the ribs to the sternum had been torn and had not united, and that, in his opinion, the condition would be permanent, and would affect plaintiff in the movement of his chest and arms, and would limit his ability to work, and would cause pain if he worked.

The evidence shows that before the accident plaintiff was a very strong man, could lift heavy weights and was healthy, and that, since the accident, he has been weak and cannot work or lift as formerly. We do not feel warranted in disturbing the jury’s assessment of damages.

The judgment will be affirmed.

Affirmed.