author: Mr. Presiding Justice Smith Mr. Justice Brown,

text:
    John Clark, Appellee, v. Wisconsin Central Railway Company, Appellant.
    Gen. No. 16,936.
    1. Pleading—general issue. In an action for personal injuries received when an agent of defendant railway company propelled a railroad velocipede against plaintiff, the ownership and operation of such velocipede is not in issue under the general issue.
    2. Evidence—concerning matter not issue. Where the ownership and operation by a railway company of a railroad velocipede which caused injuries to plaintiff is not in issue under a plea of the general issue, evidence in relation thereto is immaterial and is properly excluded.
    3. Pleading—when discretion not abused 6y denial of permission to file special pleas. It is not an abuse of discretion to deny motion for leave to file special pleas denying ownership and operation oí the instrumentalities which caused plaintiff’s injuries, where the motion is made at the trial had after the expiration of the two-year limitation period and process was served on defendant more than one year and eight months before the expiration of such period.
    Brown, J„ dissenting.

      Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Geobge W. Patton, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Hiner, Burch & Latimer and W. A. Hates, for appellant.
    P. R. Barres, I. W. Baker and C. E. Heckler, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellee recovered a judgment of twelve hundred dollars against the appellant in an action for personal injuries. The declaration consisted of two counts. The first count alleged, quoting from the appellant’s brief, “that on October 7,1907, the defendant was operating a steam railroad through Cook County and that Fred Tollinger was its station agent , at the station known as McKinley in said county, and that on said day plaintiff was driving a one-horse vehicle eastward on an east and west highway in said county, about a mile south of McKinley station, at the intersection thereof with defendant’s railroad, and was in the exercise of ordinary care for his own safety; and that the defendant through its employee Fred Tollinger negligently propelled a railroad velocipede southward into and against plaintiff’s vehicle.” “ * * * The second count is substantially the same, with the additional averment that Tollinger was in the custom and habit of propelling said railroad velocipede along defendant’s railroad rails and that the defendant allowed and permitted such use of its railroad rails;” and that by reason thereof appellee suffered certain injuries and damages.

The said Tollinger was made a party defendant. He filed a plea of the general issúe and also a special plea, averring that he had caused the appellee’s carriage to be repaired in full satisfaction and discharge of the grievances mentioned in the declaration as to the said Tollinger. The appellant pleaded the general issue.

The accident occurred on October 7, 1907. The suit was begun January 16, 1908, and service of process therein had upon the appellant January 17, 1908. The trial was before the court and jury March 9th and 10th, 1910. On the trial, on the motion of the appellee, the cause was dismissed as to Tollinger. The appellee, in his testimony, denied the averments made in Tollinger’s said special plea.

The appellant defended on the ground that “At the time of the collision Tollinger was not acting within the scope, of his employment, and his employer is not liable for damages resulting from such collision,” and offered evidence tending to show that it did not own the said railroad velocipede and did not permit its use upon the said tracks, and that at the time in question Tollinger was not on duty; all of which the court excluded as not being admissible under the general issue. Thereupon the appellant moved for leave to file a special plea denying that it owned, operated or controlled the said velocipede at the time in question, and averring therein that it was the property of the said Tollinger. The court denied said motion, with the result that the appellant was not able to avail itself of the said defenses; and it is here urged that for the erroneous rulings of the court therein the judgment should be reversed and the cause remanded.

In Chicago Union Traction Co. v. Jerka, 227 Ill. 95, the court say: “The plea of not guilty did not put in issue the ownership of the street car line or the cars operated thereon.” In Pell v. Joliet, P. & A. R. Co., 238 Ill. 510, the court say: “The plea of the general issue did not put in issue the ownership of the track or the control of the cars, and the defendant was required to plead the same specially.” In Brunhild v. Chicago Union Traction Co., 239 Ill. 621, the court say: “Appellant contends that under its plea of not guilty the ownership and operation of the instrumentalities that caused the injury were in issue. This court has several times ruled to the contrary.” Many authorities are cited in each of the said cases in support of the said rule there announced. Under the general issue in the case at bar, the ownership and operation of the instrumentalities that caused the injury were not in issue. Not being in issue, the evidence offered in re- . lation thereto was immaterial and the trial court properly excluded same.

The contention that the trial court erred in denying the appellant’s motion for leave to file the said special plea during the trial of the case should not be sustained. From the time of service of process upon the appellant to the expiration of the two-year limitation period, October 7, 1909, was over one year and eight months. That this was much more than ample time to obtain leave to file a special plea is not subject to argument. In Dow v. Blake, 148 Ill. 76, the court say: “The application (for leave to file additional pleas) was made only three days before the cause was reached for trial, and more than seventeen months after the issues had been made up. It was discretionary with the court to allow the pleas to be filed at a date so late in the progress of the cause, and we cannot say that, under the circumstances, there was any abuse of discretion in denying the application. Brown v. Booth, 66 Ill. 419; Millikin v. Jones, 77 Ill. 372; Fisher v. Greene, 95 Ill. 94; Chicago & E. I. R. Co. v. O’Connor, 119 Ill. 586.’.’ We do not think, under the circumstances, that the trial court abused its discretion in denying the said motion.

We think the statement of the Supreme Court in the Jerka case, supra, pertinent to the questions here urged by the appellant, and we quote the same:

“Whether the rule above laid down is in strict accord with the principles of common law pleading as they existed prior to the adoption of the rule of the court of the Hilary term, 1834, is a matter of little practical concern, since the rule of stare decisis requires us to enforce the law as we find it, unless considerations of a very controlling character were presented which would justify us in overruling the previous decisions of this court and again laying the foundations of law anew. We see no hardship in requiring a defendant in a case of this character to plead specially that it was not the owner or in possession or op-. eration of the property or instrumentalities which have caused the injury. The enforcement of this rule will, in our opinion, promote the ends of justice. If a plaintiff is afforded timely notice by a special plea that the want of ownership is relied upon as a defense, the plaintiff will have an opportunity of making investigation, and if he ascertains that he has sued the wrong party, he may, before the Statute of Limitations becomes a defense, bring his suit against the party that is, in fact, liable. We cannot imagine a case where the rule established by the decisions of this court can work any hardship on defendants. We see no reason for departing from the previous holdings of this court upon this question.”

The judgment is affirmed.

Affirmed.

Mr. Justice Brown,

dissenting.

I think this judgment should be reversed and the cause remanded. I think that the evidence offered by the defendant company for the purpose of showing that it did not own or control or even give permission for the use on its tracks of the tricycle which did the .damage, and that Tollinger was not acting within the scope of his employment for the railroad company at the time the accident happened, but was off duty, was admissible under the pleadings as they stood, and ought not to have been excluded.

If the court below was right in excluding it, however, then I believe that it was an abuse of discretion to refuse permission to file the additional plea which appellant desired to file on the trial.

There is nothing to say against the justice and expediency of the rule often announced by the Supreme Court, that where the general issue only is pleaded and neither plaintiff nor defendant introduces or offers any evidence on the subject of the defendant’s being the owner and operator of a railroad or train or other agency which does damage, such ownership and operation will be considered as impliedly conceded by the pleadings; but this is a very different thing from saying that evidence should be excluded offered by the defendant under the general issue, to the effect that the defendant had nothing to do with the agency or agent doing the damage because neither the owner of the one nor the employer of the other at the time the accident happened. This court in Chicago Union Traction Co. v. Lundahl, 117 Ill. App. 220, speaking through the present writer, alluded to this difference, and through Mr. Justice Baker the Branch Appellate Court did the same in Smith v. Devlin; 127 Ill. App. 492; so also did the Appellate Court for the Third District in Cincinnati, H. & D. R. Co. v. Goodson, 101 Ill. App. 123.

In the case at bar the plaintiff said, in his declaration, that the defendant permitted its agent and employee to drive a railroad velocipede over its tracks into his carriage and injured him. I hardly see how the defendant could more specifically deny it than to say it was not guilty. Having said that, I think it ought to be allowed to show, if it could, that it had nothing to do, at the time of the accident, with the man or velocipede that plaintiff proved ran into him, A railroad velocipede is not like the rolling stock of a ' railroad and the road itself, in the necessary possession and control of the person or corporation operating the road. It was not “inducement,” but the material gist of the declaration that Tollinger was the agent of .the defendant and allowed by it to use its tracks on a velocipede. There was no allegation of the ownership of the machine, hut the evidence of ownership was material on the question of permission.

If the defendant had proceeded to attempt only to show that the accident never took place, or that the plaintiff was contributorily negligent, and offered no evidence as to the ownership or permission to use the velocipede, or as to the agency or employment of the defendant, perhaps e.ven if it had attempted to deny the ownership of the railroad, a similar case would have been presented to those relied on by the appellee; McNulta v. Lockridge, 137 Ill. 270, and Chicago Union Traction Co. v. Jerka, 227 Ill. 95, for example. I do not think the present case is similar to or controlled by them.

Of course the question of whether it was an abuse of discretion, under the circumstances, to deny the defendant an opportunity of filing a special plea, is one on which opinions may very widely differ, but it seems to me that it was.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Weir & Craig Manufacturing Company, Appellant, v. G. Y. Bonus, Appellee.
    Gen. No. 16,930.
    1. Negotiable instruments—holder in due course. "Where plaintiff accepts a note in payment of money then due to it and has no notice that the note is without consideration, and there was no fraud in the execution, it becomes a holder in due course to the extent of the amount paid.
    2. Negotiable instruments—where payee is foreign corporation. Where defendant executes a note without consideration payable to a foreign corporation doing business in this state without having complied with the statutes, he admits the existence of the payee and its then capacity to indorse, and is liable to a holder in due course for the amount the holder has paid on it, even though he may not have been liable to payee.
    Appeal from the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 4, 1913

      Stuart G. Shepard and Robert R. McCormick, for appellant.
    Hurbert E. Page, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the appellant, brought suit against the defendant, here the appellee, in a case of the first class in the Municipal Court of Chicago, as the owner and holder in due course of a note as follows:

“$5,625.00 Chicago, July, 1, 1909.
Three months after date I promise to pay to the order of The Schott Engineering Company $5,625.00 payable at the Fort Dearborn National Bank, for value received, with interest at 6 per cent, per annum from date.
Gr. T. Bonus.”

Endorsed on the hack of the note is the following:

“The Schott Engineering Company, by C. V. Kasson, Treasurer.”

The defenses were, first, that the plaintiff was not a holder in due course in that there was a failure of the consideration for said note and the plaintiff took same with notice thereof; and, second, that The Schott Engineering Company, endorser of the note sued on, was organized under the laws of the State of Maine; had its principal offices in the City of Chicago, in the State of Illinois, and there maintained and transacted business for profit in exercise of its corporate powers; and had not complied with the Illinois statute regulating the admission of foreign corporations to do business in the State of Illinois; that its transactions in Illinois were illegal and void and therefore the endorsement and delivery of said note was illegal and void and the plaintiff acquired no claim or right of action against, the defendant by reason thereof.

After all the evidence had been submitted to the court and a jury, the court, on motion of the defendant, instructed the jury to find the issues for the defendant, and, the jury by its verdict so finding, judgment was entered thereon.

It appears by the evidence that Mr. W. H. Schott with others organized the corporation, The Schott Engineering Company, under the laws of Maine, with a capital stock of one million dollars, for the purpose of constructing Central Heating Plants throughout the country; which said Company took over the business of the said Schott and he became the president thereof. The defendant, relying upon certain representations, was induced to subscribe for seventy-five shares of the preferred stock of the said company and in payment thereof gave to said company certain notes, which were renewed from time to time; the last renewal of which was the note in question. We find no evidence tending to show fraud in the execution of the said note, but the evidence does tend to show a failure of the consideration. On a careful examination of both the abstract and additional abstract we find no evidence tending to show notice to the plaintiff of a failure of consideration at the time it became a holder in due course. The said note was received from The Schott Engineering Company and accepted in payment of thirty-five hundred to thirty-six hundred dollars then due and owing the plaintiff by the said Company for pipes, valves, fittings, etc., purchased by the said Engineering Company from the plaintiff. On the evidence before us it seems that the plaintiff was a holder of the said note in due course for, at least, the sum of thirty-five hundred dollars. There was some evidence tending to show that as to the balance of the said note the plaintiff might come within section 72 of the Negotiable Instrument Act, Hurd’s Stat. 1911, p. 1596: “Where the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him.” But whether it was a holder in due course as to the balance of said note, we express no opinion.

The Schott Engineering Company was a foreign corporation doing business in this state without having complied with the statute of the state in any particular toward qualifying it to do business in Illinois. The defendant insists that The Schott Engineering Company, being a foreign corporation, maintaining its office and doing business in Illinois contrary to the laws thereof, its contracts made within the state are void arid not enforceable, and therefore the note in question was void and no action can be predicated thereon or on an endorsement and delivery thereof by the said payee. We are of the opinion that this contention is not applicable to the note in question under the circumstances of the case at bar, because of the provisions of the Negotiable Instrument Act. Section 10 of that Act (Hurd’s Stat. 1911) provides: “If any fraud or circumvention be used in obtaining the making or executing of any of the instruments aforesaid, such fraud or circumvention may be pleaded in bar to any action to be brought on any such instrument so obtained, whether such action be brought by the party committing such fraud or circumvention or any assignee of such instrument.” Section 70 defines a holder in due course. Section 75, “A holder in due course holds the instrument free from any defect of title or prior parties, and free from defenses available to prior parties among’ themselves, except the defect and defense specified in section 10 * * * and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.” Section 78 provides. “The maker' of a negotiable instrument, by making it engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to endorse.” The evidence shows that the plaintiff was a holder in due course. There was no evidence that there was fraud or circumvention in the execution of the note. The defendant, under the statute, engaged to pay the note according to its tenor and hound himself to pay in accordance with the payee’s indorsement to a holder in due course,, even though the defendant may not have been liable thereon to the payee.

The plaintiff asks judgment here. There can be no judgment here for two reasons: First, the cause was presented to a jury; and, second, it appears as indicated that there was evidence tending to prove a defense under the statute to about nineteen hundred dollars thereof.

The judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Mary McInerney and John F. Mahon, Administrators, Appellees, v. Chicago City Railway Company, Appellant.
    Gen. No. 16,912.
    1. Master and servant—contributory negligence. Where an employee in the car barns of defendant street car company carelessly runs between the wall and a car which is coming in slowly with bell ringing and headlight on, he is guilty of contributory negligence, and a judgment in favor of his administrator is reversed.
    2. Negligence—where defendant is charged with knowledge of danger. Where a street car in turning into the barn comes within a few inches of the wall and an ordinarily prudent man would know that to go between a moving car and the wall would be extremely dangerous, an employee who has knowledge of the situation is charged with knowledge of the danger.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Mazzini Slusser, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed with finding of fact.
    Opinion filed March 4, 1913.
    Edward C. Higgins and Watson J. Ferry, for appellant; Leonard A. Busby, of counsel.
    Thomas McEnerny, for appellees.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment for four thousand dollars against the appellant for negligently causing the death of Dennis J. Mclnerney.

The appellant had a car barn facing north on 39th street between State street and Wabash avenue, Chicago. In the front of the barn on 39th street were three ear entrances, each twenty feet or more wide and through each of which were two car tracks. These tracks curved from the main lines on 39th street until they were about eighteen feet inside of the said barn, when they then extended straight north and south parallel to each other inside the barn. At the northwest corner of the barn was a sand room, and next east and adjacent thereto was an oil room. The east side of the oil room was a brick wall extending on a slight angle from the front of the barn about eighteen or twenty feet south and a little easterly. At the northeast and southeast corners of said rooms were iron posts. Just east of the oil room was the westerly of the said car entrances and through which the westerly track curved from the main line at a point on 39th street west of said entrance. This entrance track was so close to the said posts and the east wall of the oil room that the appellant’s large cars running on said track barely cleared the said posts, and when partly in the barn on the said curve would come up to within five to eight inches of the said wall. The decedent, in passing out of the barn, was caught between the said w;all and an incoming car and so badly crushed that he died immediately thereafter.

The appellant insists that the proof fails to show it to be guilty of the negligence charged and also that the decedent was clearly guilty of contributory negligence.

The appellee called two witnesses who gave testimony in relation to the accident. The first was the motorman who operated the car in question, but was not at the time of the trial employed by the appellant. He testified, among other things, that the said car was about fifty feet long and nine or ten feet wide; that he came east on 39th street and turned into the barn on said westerly track, sounding his gong and going at the rate of three miles an hour; that he did not see the decedent, and the first he knew of the accident was when he heard a yell; that he thereupon stopped his car, within two or three feet, and the front end of the car was then about thirty feet past the oil room; that he then looked back and the decedent was lying on his back about three feet from the track and about two and a half feet south of the oil room. The other witness, James Mikitize, gave most of his testimony through an interpreter. It is often inconsistent, and in many respects it is difficult to determine exactly what he did mean. On an examination of the record, giving the appellees the most favorable version it is susceptible of, it is on the material points in substance as follows: That he was working for the appellant at the time of the accident, but not at the time of the trial; that about nine months after the accident he was laid off and told to return in thirty days, but did not return; that just south of the sand room was a coal room, and south of and adjacent to the coal room was the wash room, which would be southwest of the oil room; that he was in the wash room with the decedent and he saw the decedent pass out of the wash room and go toward the door, walking slowly; that he first saw the car just as the decedent passed the post at the southeast corner of the oil room; that the bell on the car was ringing and it was going pretty fast, about four to five miles an hour; that when the decedent had passed the post about three or four feet, and when about a foot back of the front vestibule, the car struck him and crushed him against the post; (he also testified that the decedent walked about six, seven or eight steps past the post before he was struck by the car); that the westerly rail was about two feet from the wall, with just enough space for the car to pass, and that it cleared the said post by about five inches; that there were no signs warning them of danger at the place in question; that the employees at the barn went in and out of the entrance in question and at that time of the evening cars came into that door every two or three minutes and sometimes oftener.

In behalf of the appellant the conductor and three workmen testified in relation to the accident, all of the workmen testifying through an interpreter. The conductor testified that the car ran into the barn at the rate of about two miles an hour, and the car bell was ringing continuously; that the headlight on the front of the car was lit and also lights were burning inside the car, but he was at the rear of the car and did not see the decedent until after the accident. The workman, Joseph Zarumba, a sweeper about the barn, testified that he was about fifteen or. twenty feet south of the corner post and saw the accident; that the decedent started out on the run, made a turn at the post and ran in by the wall as the car came in; that the car was coming very slowly; the bell was being rung and there were lights in the car; that about the middle of the car struck the decedent when about three feet from the post; that he “hollered” at the decedent when he ran around the post; that the car cleared the post about six or seven inches. The other workman, Gregor Grinevesky, testified that he was about ten or fifteen feet south of the said post and saw the accident; that the car came into the barn very- slowly and he thought that the bell was ringing; that the decedent started out on a run and ran in between the car and the wall; that “it was about the third part of the car that pressed him,” and at that time he was close to the corner of the oil room; that sometimes a car went in that entrance every minute. The other witness, Frank Damisky, testified that his work was wiping cars; that he stood just south of the oil room and saw the accident; that the car came in very slowly and the bell was ringing; that the decedent ran out and was going fast; that witness “hollered” at him when he turned the corner of the oil room; “that the car when it came in was away and then afterwards it straightened up and pressed him to the wall;” that about the middle of the car struck him when close to the post, and the car was ten or fifteen feet in when decedent went between it and the room; that sometimes cars came in those doors every two or three minutes.

The accident was about six o’clock in the evening of October 1, 1907. The decedent had been working for the appellant about the said barn for five days. He was forty years old and a cooper by trade, and so far as can be determined by the record was of ordinary intelligence. The location of the tracks, the posts and the wall and the situation, with cars coming in and going out of the barn on the said track, were open and apparent. The appellees argue that there is a difference between knowledge of the situation and knowledge of the dangers. That is true; but in a situation of the nature shown in this case it is apparent that a knowledge of the conditions means a knowledge of the dangers. Any ordinarily prudent man with knowledge of the proximity of that track to the posts and wall would certainly know that to get between a car and the wall or one of said posts would be extremely dangerous. Two of the workmen recognized the dangerous position of the decedent the instant they saw him turn the corner and called to him. We think the decedent must, in the very nature of the situation, have known and understood the danger.

The car was coming into the barn at a speed of about three to four miles an hour, and there is no evidence that this was other than the ordinary speed of a car coming into said barn. The bell was ringing and the headlight burning. We do not think that the decedent slowly and deliberately placed himself in so manifestly a perilous position between said wall and car. Three witnesses testify that he turned the corner of the oil room, on the run. The circumstances tend to support that statement of the witnesses. On an analysis of the foregoing evidence the greater weight of the evidence is clearly and manifestly that the decedent was in a hurry and ran around that corner and suddenly found himself between the car and the wall. The evidence in some respects tends to show he attempted to get back past the post and so escape, but was unable to do so. That he carelessly ran into said place explains this unfortunate and distressing accident. There is no escape from the conclusion that the decedent was guilty of contributory negligence. We are thus impelled to hold that the decedent being guilty of contributory negligence, the judgment cannot be sustained.

In the view we take of the case it becomes unnecessary to discuss the negligence of the appellant as alleged in the various counts or to pass thereon.

The judgment is reversed with a finding of fact.

Reversed.


text:
    Albert Giese, Plaintiff in Error, v. Chicago Union Traction Company, Defendant in Error.
    Gen. No. 16,846.
    Street railroads—running car at unusual speed on curve prima facie negligence. Where plaintiff was driving along a street and his wagon was struck by a car of the defendant street railway company which had jumped the track while coming around a sharp curve from a barn, and it appears from defendant’s testimony that the car came around the curve at a speed of four miles an hour, while the customary speed of operating around the curve was two to three miles an hour, the operation of the car on a sharp curve so much faster than ordinarily operated thereon tends to prove negligence, the maxim of res ipsa loquitur applies, and unless such prima facie case is met by proof showing that the company was not at fault, a verdict finding defendant not, guilty is manifestly against the evidence, and judgment thereon will he reversed.

      Action in case for personal injuries. Error to the Circuit Court of Cook county; the Hon. Edward M. Mangan, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 4, 1913.
    Horton, Wickett, Miller & Meier, for plaintiff in error; Arthur L. Ballas, of counsel.
    John A. Rose and Frank L. Kriete, for defendant in error; W. W. Gurley, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of - the court.

The plaintiff in error, hereinafter called plaintiff, brought suit against the defendant in error, hereinafter called defendant, to recover damages for personal injuries. The plaintiff recovered a judgment against the defendant for two thousand dollars, which judgment, on an appeal by the defendant, was affirmed and reported in 130 Ill. App. 608, and by the Supreme Court reversed for errors in the admission of evidence and remanded. Chicago Union Traction Co. v. Giese, 229 Ill. 260. On a retrial the jury found the defendant not guilty and the court entering judgment on the verdict, the plaintiff sued out this writ of error.

The plaintiff was driving along the street when the front trucks of a car owned and operated by the defendant, coming around the curve from one of defendant’s barns, jumped the track and struck plaintiff’s wagon, throwing ■ him from the seat thereon and injuring him. For a more particular statement of the case we refer to the opinions in the reports above mentioned.

The plaintiff was driving on the street, where he had a right to so do, and we think there is no evidence tending to show him guilty of any negligence. The Supreme Court has held that under the circumstances of the case the maxim res ipsa loquitur applies and a verdict would be justified “unless such prima facie case is met by proof showing that the company is not at fault.”

The plaintiff testified that the car came around the curve fast, in his opinion at the rate of fifteen miles an hour. The testimony for the defendant was that the car came around the curve at the rate of four miles an hour; that “the customary speed of operating around that curve was two or three miles an hour; that at the place the car left the track, close to the main track, there was a very sharp curve—much sharper then the balance of the curve that leads out of the barn.” The motorman and conductor examined the car and tracks after the accident. The motorman testified that the flanges of the wheels were intact, the rails were all right and there was no loose stone or obstruction in the track. The conductor testified that the flanges of the wheels were all right, that he did not know the cause of the car leaving the track, and when they got the car back on the track they continued their trip and also made other trips with the car in question. The testimony shows that as to the flange of the wheels, the rails and obstructions in the track, the defendant was guilty of no negligence. Whether a car is being operated at a too high rate of speed depends of course upon the circumstances. In the usual operation of a street car the speed of four miles an hour would be considered very slow, but under the circumstances in the case at bar that rate of speed was from one-third faster to twice as fast as a car was customarily operated over the curve in question. To operate a car on a sharp curve so much faster than a car was ordinarily operated thereon does not, in our opinion,' prove ordinary care, but tends to prove negligence, and was, as it seems to us, under all the circumstances in evidence, the cause of the car jumping the track. The prima facie case made by the plaintiff was not met by proof showing the defendant was not at fault. On the contrary, instead of establishing a defense, it tends to support the plaintiff’s case.

We conclude that the verdict was clearly and manifestly against the weight of the evidence, ánd the judgment is reversed and the cause remanded.

Reversed and remoulded.


text:
    Harry W. Marks, Defendant in Error, v. William Schulze, Plaintiff in Error.
    Gen. No. 16,832.
    1. Brokers—when not entitled to commission. In an action by a broker for commission, where he procured a purchaser and represented that such purchaser would give in exchange certain property subject to a certain incumbrance, and a contract is accordingly executed for such exchange, when the principal later cancels the contract on the ground that the incumbrance is greater than that represented, or as stated in the contract, the plaintiff is not entitled to recover commission.
    2. Brokers—commission earned when purchaser accepts. Where a broker is engaged to procure a purchaser for defendant’s premises, and defendant enters into a mutual contract with a purchaser so procured, the broker’s commission is earned as a general rule; but where the commission is agreed upon on the theory that the deal shall go through and it does not, through no fault of the principal, or where the deal is not consummated because of fraud or misrepresentations on material facts of the broker to his principal, the latter does not become liable because of his acceptance of the purchaser.
    Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in this court at the October term. 1910.
    Reversed.
    Opinion filed March 4, 1913.
    Rehearing denied March 17, 1913.
    William Kent, for plaintiff in error.
    J. G. Grossberg, for defendant in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The plaintiff, here the defendant in error, brought suit against the defendant, here the plaintiff in error, to recover his commissions as a real estate agent, claimed by him, by reason of services in a certain real estate transaction. On a trial by the court without a jury a judgment was entered for the plaintiff for the sum of five hundred dollars and the defendant sued out this writ or error.

The plaintiff was employed by the defendant to procure a purchaser of his property, or one who would make an exchange satisfactory to him. The plaintiff procured a Mr. Eaemer, with whom the defendant entered into a written, contract to convey his said premises in consideration of Eaemer paying him $2,500.00, giving a note for $7,500.00 secured by a trust deed upon the premises to be conveyed to him by Mr. Schulze, the defendant, and also a conveyance of certain described premises “subject to an existing mortgage of $12,500.” The contract provided that the parties furnish complete merchantable abstracts of title, showing good title in the respective parties on the date of the contract, and also that upon the examination of the said abstracts of title objections be made thereto, the same to be in writing within a certain time, and if material defects be found in said title, “then, if such defects be not cured within sixty (60) days after notice thereof, the contract shall, at the option of the party delivering the objections, become null and void; notice of such election to be given the other party, but party delivering such objections may elect to take such title as it then is, and in such case other party shall convey as above agreed; provided, however, that such party delivering such objections shall first give written notice of such election within ten (10) days after the expiration of said 60 days and tender performance on his part. In default of such notice of election to receive such title and tender within time limited, the party delivering such objections shall without further action by either party be deemed to have abandoned his claim upon the premises and thereupon this contract shall cease to have any force or effect against said premises or the title thereto or any right or interest therein, but not otherwise.”

The attorney for Mr. Schulze made several objections to the title of the premises to be conveyed by Mr. Raemer; the principal one (the others being cured or apparently waived) being that the said premises were subject to two trust deeds, securing an indebtedness of $11,000 and $5,500, respectively, making a total of $16,500.00 instead of $12,500.00, as provided by the contract. The counsel for appellee argues that while the record did show an indebtedness of $16,500.00, four of the notes for $1,000.00 each, shown by the record to be secured by the first trust deed and past due, were shown by the evidence to have been paid and cancelled. Neither the abstract nor the additional abstract of the record shows testimony to that effect. We find that there was evidence that certain notes secured by other trust deeds released before the maturity of the said notes thereby secured, were presented to counsel as paid and cancelled, but on a careful examination of the record we are not able to find any evidence that tends to show that the said four notes of $1,000 each were shown to have been paid and cancelled or any evidence that the indebtedness secured by the said trust deeds was $12,500 and not $16,500, as therein shown. It- would not seem reasonable to us to hold that Mr. Schulze should waive this objection when no proof was submitted to him or his attorney that the said indebtedness was reduced from $16,500 to the sum named in the contract,—$12,500. The defendant refused to accept the title and the contract was can-celled.

It is contended by the plaintiff that being employed by the defendant to procure a purchaser for the defendant’s premises, he procured Mr. Raemer, whom the defendant accepted and with whom he entered into a mutual contract of exchange, and thereupon the plaintiff’s commission was earned. Conceding the general rule of law relied upon by the plaintiff to be correct, and assuming that the contract to exchange was mutual and binding on the parties, we think it does not apply in the case at bar for the following reasons: The plaintiff, by his agent, in getting the defendant to sign said contract, stated and represented to the defendant that the premises owned by Mr. Eaemer were “subject to a mortgage of $12,500 due in about two years;” at the time of the signing of the contract the commission was discussed and the plaintiff’s agent testified that he asked plaintiff about same, “and Mr. Marks said so long as the deal is going through we will accept five hundred dollars. ’ ’ It seems that the commission was agreed upon on the theory that the deal would be consummated. In Fox v. Ryan, 240 Ill. 391, the court states the rule relied upon by the plaintiff, but it seems that where there is fraud or misrepresentation by the broker to his principal, the principal does not become liable for commissions because of his acceptance of the purchaser produced by the broker where the deal is not consummated because of the fraud or misrepresentation.

We do not hold that there was any fraud in the case at bar, but there was misrepresentation. We think that the representation of the plaintiff’s agent as to the title of Mr. Eaemer was a statement by the plaintiff of a controlling and material fact inducing the defendant to enter into the said contract. On the record it appears that the defendant was ready, willing and able to carry out the terms of his said contract of exchange, and it was through no fault of his that the exchange was not consummated. The title the defendant contracted for was not as represented by the plaintiff, and because thereof the deal failed of consummation. We are of the opinion, under the circumstances, that the plaintiff was not entitled to recover commission, and the judgment is accordingly reversed.

Reversed.


text:
    William O’Neill, Appellant, v. City of Chicago, Appellee.
    Gen. No. 16,794.
    1. Master and servant—defective- scaffold. Where plaintiff, while putting up a cable box under a viaduct for street lighting purposes for a city defendant, was injured by the falling of a scaffold which had been defectively erected by other employees, and the plaintiff had on the previous day constructed the scaffold in the same way, except that he had placed a hoard under the outer leg of a ladder standing on a slanting sidewalk, the plaintiff had a right to assume that defendant had performed its duty as imposed by law and that the scaffold was reasonably safe, and he was not hound to inspect, but only to observe, its condition, and the questions as to whether such unsafe construction was simple, open and obvious to plaintiff, whether in the exercise of ordinary care he would have known of such defect, and whether he assumed the risk, are all for the jury.
    2. Master and servant—defective appliances. Where it is not so clear that ail reasonable minds will agree that an employee in the exercise of ordinary care, by observation, but not by inspection, would have known of a defective construction of an appliance, the question is one of fact and should he submitted to the jury.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. William H. McStjeely, Judge, presiding. Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 4, 1913.
    Morse Ives and Symmes & Kirkland, for appellant.
    Edward J. Brundage and John B. Caverly, for appellee ; Edward O. Fitch, of counsel.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The appellant was a lineman working for the appellee at the time of the accident on 51st street under a railroad viaduct, putting up cable boxes and a pipe to run cable through for street lighting purposes. The appellee, by its foreman, ordered certain of the men to put up a scaffold on the sidewalk under the viaduct. The south end of the viaduct was supported by a concrete wall. Along this wall on the south side of 51st street was a sidewalk about eight feet wide sloping downward from the wall toward the street. The scaffold was constructed by placing a plank parallel to the wall supported at the east end by an iron horse about seven feet high, and at the west end of the rung of a ladder standing on the sidewalk and the top leaning against an iron girder of the viaduct extending north and south. From the sidewalk to the bottom of the viaduct it was twelve to thirteen feet high. When the foreman ordered the scaffold built he also ordered the plaintiff “to get a box and sulphur ready to put the bolts in to put the box up on the wall,” and the appellant was so engaged while the scaffold was being built, and had nothing to do with building the same. The appellant then got onto the scaffold at the east end, and while working at that end by the horse, putting the bolts in and the box up as near the bottom of the viaduct as it could be placed, the scaffold fell, injuring him.

The declaration consisted of three counts. The first alleged the negligence of appellee, in that the place furnished appellant to work was dangerous and unsafe; the second, that the appellee was negligent in that it failed to warn the appellant of the danger in doing the said work with the appliances then furnished him; the third, in negligently ordering the appellant to go upon said defective scaffold in the performance of said work.

At the close of the appellant’s case the court instructed the jury to find for the appellee, and the jury so finding entered judgment on the verdict.

In the argument here the appellee does not deny that the scaffold was defectively constructed, dangerous and unsafe, but vigorously contends that the construction thereof was simple, open and obvious to the appellant, and that he assumed the risk, quoting from Armour v. Brazeau, 191 Ill. 117, as follows: “Although a servant is not required to make the critical examination of appliances which is meant by the term inspection, yet if the defect is open and obvious, so that by the exercise of ordinary care in the use of the appliance he would have knowledge of the defect, he is charged with notice thereof, since a servant cannot assume that a defect which is open to observation does not exist.”

The appellant had worked at the same place the day before and had on that day constructed the scaffold in practically the same way, except he had placed a board one inch thick under the north leg of the ladder, so that it could not tip toward the street. The appellee says: “The only difference between what plaintiff had done for himself and what the master did for him was in the use of this board at the foot of the ladder. That difference was apparent to ordinary observation, and it is scarcely conceivable that plaintiff, under the circumstances clearly shown could have failed to observe the difference.”

The appellant testified that he looked at the scaffold, but did not examine it and did not know of the said defect in the construction thereof, and there is no evidence to the contrary. The only question then, is whether the said defect was so open and obvious that the appellant, in the exercise of ordinary care, would have known thereof. The appellant had a right to assume that the appellee had performed the duty imposed by law and that the scaffold was reasonably safe for the performance of the work required; and there was no duty of inspection resting upon appellee, but only the duty of observation. The evidence shows that he got upon the scaffold from the east and by means of the iron horse, and there continued to- work until the scaffold fell. When he got upon the scaffold it appeared firm. It also appears that when he got upon the scaffold to work, one of the men working with him stood at the ladder holding it and so remained for about ten minutes, when he was ordered to leave the ladder and do other work, and no person took his place. The appellant was occupied in the preparation of the box, etc., while the scaffold was being constructed, and after going upon the scaffold his attention was directed to putting the said box upon the wall close up to the bottom of the viaduct. Under all the circumstances should it be held that in the exercise of ordinary care on his part he would have known of the said defective construction ? It may be; but it seems to us that it is not so clear that all reasonable minds would ■ agree. The question was one of fact that, in our opinion, should have been submitted to the jury. The judgment is accordingly reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice Barnes

text:
    Michigan Mutual Life Insurance Company, Complainant, v. Charles Liphart et al. On Appeal of Minnie L. Reed, Appellant, v. Charles Liphart, Appellee.
    Gen. No. 17,001.
    1. Trusts—insurance policy. Voluntary statements by a party insured in a policy to a stranger after its issuance do not create or declare a trust in respect to its proceeds and are not binding on the beneficiary, who has a vested right to the fund, unless power to divest her of that right is specially reserved by the assured by some provision of the policy.
    2. Trusts—must he created before or contemporaneous with execution of instrument. Declaration of a grantor to create a trust must be prior to or contemporaneous with the vesting of rights under the instrument under which the trust is claimed.
    Appeal from the Superior Court of Cook county; the Hon. George A. Duput, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded with directions.
    Opinion filed March 4, 1913.

      P. H. Bishop, for appellant.
    Kruse & Peden and Boy C. Merrick, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

Complainant filed a bill of interpleader to require defendants to interplead and set up their respective claims to the proceeds of a policy, which it had issued on the life of one Moir in favor of appellant. By order of court the proceeds were deposited with the clerk of the court and complainant was released from any claim on account thereof.

The decree finds that the proceeds were impressed with a trust to pay Moir’s funeral expenses, incurred by appellee to the amount of $169.25, and directs the payment of said sum to appellee, and that the balance of the fund after deducting costs be paid to appellant.

The evidence relied upon in support of a trust of such character was wholly insufficient. The only evidence as to the declarations of Moir prior to, or contemporaneous with, the taking out of the policy, was by appellant and to the effect that the same was taken out for the benefit of her children, and she testified that there was no agreement or understanding by her with Moir of any other character. She expressly denied any agreement with him to pay out of the proceeds the expenses of his last illness and burial. The only evidence relied' upon by ■ appellee consisted of alleged statements made by Moir to one Foster after the issuance of the policy to the effect that he carried burial insurance to the amount of $300, and wanted a “good funeral.” Such declarations were not admissible to vary the construction of the policy, and were insufficient to raise a trust in respect to its proceeds. Wason v. Colburn, 99 Mass. 342. A trust could not be created or declared by voluntary statements of that character to a stranger after issuance of the policy. Nor were they binding upon appellant who had a vested right to the fund unless power to divest her of that right was specially reserved to the assured by some provision of the policy. Mutual Life Ins. Co. of New York v. Allen, 212 Ill. 134; 25 Cyc. 889. The policy was lost and there was no evidence of its contents, or that it had any such reservation. The declarations of a grantor to create a trust must be prior to, or contemporaneous with, the vesting of rights under the instrument under which the trust is claimed. 1 Perry on Trusts (3rd Ed.) sec. 77.

In the cases cited by appellee there was either proof of an express trust or admission of its existence by the trustee. There was no proof of that character in this case. Two letters from appellant were received in evidence, presumably as tending to prove such an admission. One was to the company, stating that she was the beneficiary and asking if it had paid the policy to anyone, or the expenses of Moir’s illness and burial, and saying that if it had, she was entitled to the balance. The other letter was to a relative of Moir, saying that had she been in Chicago at the time of his death, she would gladly have borne all the expenses of his illness and burial, and that when she collects the insurance money she will confer with him as to such expenses and the payment of the same. These expressions did not constitute admission of her liability to pay such expenses, or that she was the beneficiary of the fund for such purpose.

The decree must be reversed and the cause remanded with directions that a decree be entered, awarding the proceeds of the policy to appellant as the beneficiary named therein.

Reversed and remanded with directions.


text:
    Charles R. Gnuske and Albert L. Gnuske, Copartners, for use of C. Sidney Sheppard & Company, Appellees, v. Neil J. Duffy, Appellant.
    Gen. No. 17,041.
    1. Building contracts—architect’s certificate. Where a contract for work on a building provides that payments thereunder should be made¡ upon certificates of an architect, the obtaining or presentation of such certificate is a condition precedent to the right to recover in the absence of facts or circumstances excusing it.
    2. Building contracts—recovery where architect’s certificate not obtained. Where certificates of an architect, required by a contract providing that payments should be made upon such certificates, are not demanded or obtained, recovery may be had only for the amount which is undisputed.
    3. Parties—amendments at trial. Though six years have elapsed since action was commenced, it is neither error nor an abuse of discretion to allow an amendment at the trial making an additional party plaintiff so as to conform to the proof.
    Appeal from the Circuit Court of Cook county; the Hon. Arthur H. Frost, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed on remittitur.
    Opinion filed March 4, 1913.
    Hugh J. Kearns, for appellant.
    Thomas M. Poynton, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

Plaintiff recovered judgment for $69 for alleged completed work done under a written contract on defendant’s building. Defendant concedes that he was justly indebted to the amount of $35. The contract provided that the payments thereunder should be made upon certificates of the architect in charge of the construction.

In the absence of, facts or circumstances excusing it—and there are none in this case—the obtaining or presentation of the certificate was a condition precedent to the right to recover. International Cement Co. v. Beifeld, 173 Ill. 179. Plaintiff admits that no final certificate was demanded or issued. In view, therefore, of that fact and that the amount in excess of $35 is in dispute, the judgment can be affirmed only for such amount.

It was not error or an abuse of discretion to allow an amendment at the trial, making an additional party plaintiff, so as to conform to the proof, even though six years had elapsed since the commencement of the suit.

If plaintiff will within ten days from the filing of this opinion file in this court a remittitur of $34, the judgment will be affirmed; otherwise the judgment will be reversed and the cause remanded for a new trial.

Affirmed on remittitur.


text:
    National Union Building Association, Appellant, v. George Knab, Appellee.
    Gen. No. 17,057.
    Landlord and tenant—when no rental contract made. No rental contract exists where, from conversations contemporaneous with the making of a written proposition by defendant and the fact that a lease was subsequently submitted, it is clear that the parties contemplated that a formal agreement should be drawn up and signed as a condition precedent to the completion of a contract, and, though plaintiff’s agent stated that defendant’s proposition was accepted, a lease was submitted to defendant which he did not accept, containing additional and different terms from those in his written proposition.
    Appeal from the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.

      Scott, Bancroft & Stephens, for appellant.
    Delbert A. Clithero and James H. Dunn, for appellee.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an action to recover rent and judgment was for defendant. Plaintiff’s evidence alone discloses that there was no contract. Johnson, chairman of its renting committee, testified that he had negotiations with defendant with reference to his renting a store from plaintiff; that defendant wanted to put in-a lunch counter; that plaintiff objected to a restaurant; that he told defendant that he would submit the matter to the renting committee and to make a proposition in writing, which defendant did in the following letter:

“Mr. John Johnson,
Dear Sir:
In regard to the store at 66 Adams street. I agree to take same for a lunch room at $5,000 per year for a term of 7 years. I agree to keep same well ventilated and free from odors. Will keep same open day and night and keep an exhaust fan running at all times. * * * For reference call on the following people:
(Here follow names of the parties referred to.)
Please send reply as' soon as possible.
Tours truly,
Gteo. Knab.”

Johnson testified that after its receipt he called up the persons referred to in the letter, submitted it to the renting committee, called up Knab and told him his proposition had been accepted; that Knab replied, “All right, make out the lease;” that it was made out and left at Knab’s office and returned a few days later; that he did not hear from Knab thereafter, never gave him a key or possession of the premises but rented the same to other parties a month or so afterwards; and did not demand rent from defendant for two years.

The defendant’s testimony is not materially different except in this that after receiving the lease, he told Johnson that he could not sign it with a certain clause in it and that Johnson said they would not make any change in it, and this testimony was not disputed.

It is too plain for discussion that there was no meeting of minds between the parties, and hence no contract. The acceptance of defendant’s proposition was not unconditional. The contemporaneous talk about a written lease and the subsequent submission of one render it clearly a case where the parties negotiating a contract contemplated that a formal agreement should be drawn up and signed as a condition precedent to its completion, and it would not be a contract until that was done. Amer. & Eng. Ency. of Law, vol. 7 (2nd Ed.) p. 140. As said in the case of Baltimore & O. S. W. R. Co. v. People, 195 Ill. 423, “the parties did not on the day of the acceptance assent to all the terms of the contract, but the approval of the contract itself was reserved for future action.” The lease submitted not only contained many additional clauses and conditions but terms different from those in the letter, especially as to the payment of rent which it required to be paid monthly in advance. The very fact that plaintiff submitted a different proposition in the form of a lease indicates that there never was an unconditional acceptance of the proposition on its part.

The judgment will be affirmed.

Affirmed.


text:
    H. L. Hollister, Appellee, v. Lyon & Healy, Appellant.
    Gen. No. 17,077.
    1. Assumpsit—common counts. In an action of assumpsit on the common counts, where plaintiff returned a pianola to defendants with the understanding that he should receive credit for $250 on the purchase price of a piano which he was to get some time in the future, it is error to direct a verdict for plaintiff, since there ' could he no recovery on the common counts.
    2. Assumpsit—agreement not for payment of money. IndeMtar tus assumpsit does not lie where the agreement is not for the payment of money, nor on an executory contract, nor for the nondelivery of goods.
    Appeal from the Circuit Court of Cook county; the Hon. Duane J. Carnes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Reversed and remanded.
    Opinion filed March 4, 1913.
    William B. Jarvis, for appellant.
    Harris F. Williams, for appellee; Eldon M. Votaw, of counsel.
   Mr. Justice Barnes

delivered the opinion of the court.

This was an action of assumpsit on the common counts. The only question that need be considered is whether, on the facts appearing in the record, plaintiff could recover on the common counts only.

Plaintiff claimed to have returned a pianola, previously bought of defendant, with the understanding that he was to be credited with $250 on a piano or orchestrelle which he was to get some time in the future—when he got into a new house he was building— and for which he was to pay $1,000. He called about three^years afterwards and was unable to get any information about the matter from any one he consulted in defendant’s store. Nothing more was done about the matter and he brought this action.

On evidence of such facts, the court directed a verdict for $250 and accrued interest.

There was no agreement to pay him money, but simply to give credit for $250 on condition of a sale of either a piano or an orchestrelle, or on a sale that was executory, or where delivery must be made in the future. Under any theory he could not recover on the common counts. Indebitatus assumpsit will not lie where the agreement is not for the payment of money but for the doing of some other thing; (Meyers v. Schemp, 67 Ill. 469); nor on an executory contract (Cast v. Roff, 26 Ill. 453); nor for the nondelivery of goods (Seckel v. Scott, 66 Ill. 106). In such cases the party must declare serially on the contract.

Assuming that plaintiff had taken the necessary steps to perfect a cause of action, it nevertheless was one for unliquidated damages of which there was no proof.

The court erred in directing a verdict and denying the motion in arrest of judgment. The judgment will be reversed and the cause remanded.

Reversed and remmded.


text:
    Desplaines Safety Deposit Company, Appellant, v. William E. Lucas, Trustee, et al., Appellees.
    Gen. No. 17,906.
    1. Landlord and tenant—construction of lease. Where there is a provision in a lease that in case the building shall be rendered untenantable by fire the lessor may at his option terminate the lease or repair said building within sixty days, the period of sixty days is construed to begin at once from the time of the fire.
    2. Landlord and tenant—where lessee does not delay repairing. Where the lessee removes the stock and salvage within a reasonable time after a fire and places no unreasonable obstacles in the way, the lessor is not excused from the terms of the lease requiring repairs to be made within sixty days.

      3. Landlord and tenant—where lessor does not repair within the required time. In an action for rent, where lessee sets up the defense that the lease was terminated hy failure of lessor to reconstruct within the required time after a fire, the lessor cannot contend that lessee rented other premises and did not intend to return, since such fact has no tendency to prevent doing the work within the required time.
    Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 4, 1913.
    Charles T. Farson and Stern, Anderson & Davis, for appellant.
    Frederick W. Winkler, for appellees.
   Mr. Justice Barnes

delivered the opinion of the court.

This bill was filed to recover rent and subject certain property alleged to be held by defendants as trustees to a lien therefor. If upon the facts disclosed the court below properly held that the term of the lease set up in the bill had been terminated, and that appellees were thereby relieved from the obligation to pay further rent, then no other grounds for dismissing the bill need be considered.

The lease contained this clause:

“and in case the said demised premises, or the building in which said demised premises are situated, shall be rendered untenantable by fire, or other casualty, or by reason of necessary repairs, the lessor may, at Ms option, terminate this lease, or repair said premises or buildings within sixty (60) days, and failing so to do, or upon the total destruction of said building by fire, or other casualty, the term hereby created shall cease and terminate.”

The building was rendered untenantable by fire on August 23, 1906, and the work of repair or reconstruction was not completed until about November 15th, at least eighty-four days thereafter. The rent was paid to September 1st. Appellees were obliged to vacate the premises, and while out of possession were not required to pay rent. Notice of the completion of the work of repair or reconstruction was given them on November 17th, but they never resumed possession of the premises.

These questions arise: (1) When did the sixty-day period begin to run; and (2) if it began at the time of the fire, was the failure to repair within the required time occasioned by appellees ?

As to the first question, we think the language of the lease admits of but one construction, namely, that the period for repair began upon the happening of the event requiring appellant to exercise its option. The provision referred to is very explicit. It contains no conditions and nothing on which to predicate any implied obligation on the part of appellees other than not to hinder the lessor in the exercise of its option. That the clause was so construed by appellant is indicated by the fact that on the very day of the fire its president wrote appellees a letter saying, “I find that we are entitled to sixty days, and there is no question in my mind but what we will have the building ready in that time.” Manifestly he understood that the period for repair began to run at once, and the election to repair must have been made not only with that understanding, but with full knowledge and in contemplation of what, under the circumstances then existing, would be required to be done in preparation and completion of the work of reconstruction.

Was appellant hindered by appellees from completing the work within the required time? A consideration of this question calls for a brief review of the principal facts.

The damage by the fire rendered the occupation of the building for business impracticable until it should be repaired. The fire went up from the second floor, destroying the middle portions of the third, fourth and fifth floors and of the roof. The front and rear portions of these upper floors were still standing and carrying such stock as did not fall through. It was recognized that no property could be removed until the adjustment of the insurance, which as to the stock was completed August 30th, and as to the building September 4th. From the date of the adjustment of the insurance to September 10th, appellees were engaged in removing and removed everything which could be handled from the basement and second floor without danger to the men doing the work. On September 10th they began the removal of salvage and the last of the stock was removed on October 5th. It does not appear that an unreasonable length of time was taken for such work as appellees were thus expected or required to do.

As to appellant’s undertaking, it appears that shortly after the fire its architect was directed to prepare plans and specifications for reconstruction and solicit bids for the work, that the time taken and required therefor was about three weeks, and that the contract for reconstruction was not let till September 19th. It appears that appellant employed the same firm to do the wrecking that was employed by appellees to remove the salvage; that the wrecking was begun September 20th and finished September 30th, and in the same time salvage was being removed but by a different gang of men. But there- is nothing in the record to indicate that the work of one gang interfered with that of the other.

Appellant got some of the timbers on the ground September 27th. It was not possible to proceed with the work of hoisting and framing them until the stock was removed, and it is not claimed that after October 5th or 6th there was anything done by appellees to prevent the work of reconstruction.

Appellant wrote to appellee September 10th and 12th and October 1st, complaining that Benson & Son, the firm that removed the salvage and did the wrecking, were delaying the beginning of the work of reconstruction. That could hardly have been the fact before October 1st, as appellant had not closed its contract for reconstruction until September 19th, did not get timbers for the building on the ground until September 27th, and did not finish the work of wrecking before the 30th. The delay in these matters was not caused by appellees. These letters, therefore, are more suggestive of urging speed on the part of appellees than readiness on the part of appellant to proceed with the work of reconstruction.

It is appellant’s contention that it was prevented by appellees from beginning the work of reconstruction until October 6th; that it was completed within a reasonable time thereafter, namely, from forty to forty-two days, and that under such circumstances the law would allow it a reasonable time for the completion of the work if in law the time limit under the circumstances was not absolutely abrogated.

As we view the facts and construe the lease, when appellant elected to repair the building, it knew its condition, and that a reasonable time would have to be taken for the adjustment of insurance, for the removal of salvage, for the work of wrecking, for the preparation of plans and specifications, for the submission of bids, and for the closing of contracts, before it could begin the actual work of reconstruction, and at the time of such election apparently realized that these matters would consume a part of the sixty-day period. It does not appear that the time taken for any of these matters was unreasonable. Even the three weeks taken by the architect he deemed reasonably short, and it does not appear that the contractor’s failure to be ready before September 27th was due to appellees. Surely it could not be chargéd to appellees that appellant did not close its contract before September 19th, get its timbers ready before the 27th, or complete its wrecking before the 30th. The only delay, therefore, that could be charged to appellees, if any, was such as took place after appellant was ready to proceed with work at the building, namely, between September 27th or 30th and October 6th, a period of seven to nine days. As the evidence shows that appellant took from forty to forty-two days thereafter on the work of actual reconstruction, and over twenty-one days prior thereto in preparation therefor, a period of more than sixty days, during which no unreasonable obstacles were presented by appellees, so far as disclosed by the record, the chancellor’s finding was not contrary to the evidence.

Appellant urges that appellees did not intend to return to the building, and acted in bad faith in renting, shortly after the fire other premises into which they removed their goods. Whatever their motives may have been, such fact had no tendency to prevent appellant from doing the work of repair within the time stipulated for it.

The decree will be affirmed.

Affirmed.


author: Mr. Presiding Justice Clark

text:
    John I. Maloney, Administrator, Appellee, v. North American Union, Appellant.
    Gen. No. 17,043.
    1. Fraternal benefit societies—member not in good standing. Where a prima facie case has been made out on a certificate issued by a fraternal beneficiary society which was thereafter merged with another, by proving the certificate, the contract between the two organizations and the death of the member before suit brought, etc., the fact that the deceased was not a member in good standing of the original society at the time of transfer, if not pleaded as a defense and shown to be a fact by defendant, does not bar recovery.
    2. Fraternal benefit societies—amount payable. Where a certificate issued by a fraternal beneficiary society provides that on "the death of the member assured a sum not exceeding $1,000 will be paid to the beneficiary, it is incumbent on the society to show that the mortuary proceeds of one assessment at the time of death of such member would not have yielded the full amount.

      3. Fraternal benefit societies—merger of societies. Where an insurance society takes over the assets of another, the former will he held to have assumed the obligations of the latter.
    4. Appeals and ebkobs—harmless error. Where plaintiff introduces a letter in evidence over defendant’s objection, and after its being admitted and read by the jury is permitted to withdraw it, defendant is in no position to complain of the withdrawal.
    5. Pleading—plea of general issue covering matter specially pleaded. Where a defense set forth in a special plea can be shown under a plea of the general issue, demurrer is properly sustained.
    Appeal from the Superior Court of Cook county; the Hon. Marcus Kavanagh, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed March 4, 1913.
    Rehearing denied March 18, 1913.
    R. E. Hamilton, for appellant.
    Joseph J. Thompson, for appellee.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit was brought by the appellee as plaintiff against the appellant as defendant, upon a certificate issued by the Modern Aztecs, a fraternal beneficiary society of this state, which after the issuance of the certificate was merged with the defendant. The contract of merger provided that all members of the Aztecs in good standing at the time of the contract was entered into, who signified their compliance with the requirements of the merging contract, either in writing or by payment to the defendant of the sum required to cover the amount of one monthly payment in full, should be regarded as members of the defendant society, and the defendant society should be liable for all losses caused by the death of such members.

There was proof tending to show that all payments were made to the Modern Aztecs to the time of the consolidation as they fell due, and also proof tending to show that the defendant had accepted dues from the member after the consolidation.

There was a trial before the court and a jury, the jury finding a verdict for the plaintiff for the amount of $1,000 upon which judgment was rendered. Several pleas were filed to the declaration, to three of which demurrers were sustained, as we think properly. The matter set up in them could be shown under the plea of the general issue. In our opinion, also, the declaration set forth a cause of action, and plaintiff made a prima facie case by proving the certificate, the contract between the two organizations, the death of the member before suit brought, etc. Prima facie proof thus having been made, if it was a fact that the deceased was not in good standing with the original company at the time of the transfer to the defendant, that should have been pleaded as a defense and shown to be a fact by proof. Brown v. Mutual Reserve Fund Life Ass’n, 224 Ill. 576. The case cited is also authority for the proposition that when an insurance society takes over the assets of another the former will be held to have assumed the obligations.

The certificate issued by the Modern Aztecs, after reciting that Owen T. Maloney had been regularly admitted to the annuity class as a member of a certain council, recites that “in accordance with and under the provisions of the laws of the Supreme Council of the Modern Aztecs, he is entitled to all the rights, benefits and privileges of membership therein, and that at his death a sum not exceeding One Thousand Dollars will be paid to Ellen Maloney, bearing relation to him of Mother,” etc.

A report of the supreme secretary of the Modern Aztecs was put in evidence by the defendant. It is argued it was thus shown that the value of the certificate when said member (Owen T. Maloney) died was $752.41, and it is insisted that that is the. maximum amount which should have been allowed by the jury, inasmuch as the certificate read, “not exceeding the sum of One Thousand Dollars.” The Supreme Court of Iowa held (Wasson v. American Patriots, 148 Iowa, 142) in construing a somewhat similar contract containing the words, “her beneficiary shall receive an amount equal to the mortuary proceeds of one assessment not exceeding the sum of $1,000,” that it was incumbent upon the defendant to show that an assessment at the time of the death of the member would not have yielded the full amount of $1,000. We think this a proper construction of the contract. No attempt was made to prove such a fact in the case under consideration, except the report referred to and that was not sufficient.

The court excluded evidence offered by the defendant, being’ a portion of the proofs of death, which contained the statement of a physician that death was caused by alcoholism. This proof related to no issue presented in the case, and we think the action of the • court was proper.

The court also permitted the withdrawal by the plaintiff of a letter previously offered in evidence by him, which had been admitted and read to the jury. We do not find that the letter would have been harmful to the defendant if allowed to remain in evidence, and the defendant is in no position to complain of its withdrawal after having itself objected to its introduction.

The judgment will be affirmed.

Affirmed.


text:
    George W. Roberts, Appellee, v. Robert H. Howe, Appellant.
    Gen. No. 17,963.
    1. CoNteacts — where consideration, executed, intent of parties governs. Where the defendant at the time of signing a contract for the purchase of real estate also signs a letter attached thereto in which he agrees to pay plaintiff a certain amount “in consideration of your having secured” such contract of sale, the defendant’s broker has been previously notified that plaintiff has an agreement with the owners that he shall have all he can procure for such real estate in excess of a certain amount, and defendant is told that both papers have to be signed, the fact that the services of plaintiff in procuring such sale were fully performed and the consideration executed, and that no previous promise had been made by defendant when he signed, such agreement with plaintiff, does not bar recovery.
    2. Contracts — construction. In order to give effect to the intention of the parties to a contract and enforce its performance according to the sense in which they mutually understood it, where the intent is sufficiently apparent, effect must be given to it in that sense, though violence be done thereby to its words, and the use of a word in the past tense in referring to the consideration should not blind the court to the actual intent of the parties.

      Appeal from the Municipal Court of Chicago; the Hon. James C. Mabtot, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 4, 1913.
    Phillip S. Brown, for appellant.
    Bowen W. Schumacher, for appellee; Schumacher, Wenban & Wood, of counsel.
   Mr. Presiding Justice Clark

delivered the opinion of the court.

Suit in assumpsit was brought by the appellee as plaintiff ag’ainst the appellant as defendant. The first count of the declaration is based upon the following letter, treated as a contract to pay the stipuláted amount:

“Chicago, July 8, 1909.
Mr. George W. Roberts,
Chicago.
Dear Sir :
In consideration of your having secured a certain contract of sale and purchase, dated June 21, 1909, and executed by Anna A. Roberts and Nettie L. R. Jones, for 1230 Wabash avenue I hereby agree, upon delivery of deed to me to pay you the sum of twelve hundred and fifty dollars ($1,250.00) dollars, in addition to the consideration of $36,250.00 named.
Robert H. Howe.”

The second count is based upon the alleged agreement of defendant to pay plaintiff $1,250 if plaintiff would secure a contract of sale and purchase from Mrs. Roberts and Mrs. Jones. The third count is based upon an alleged agreement on the part of the defendant to pay the plaintiff the same amount in consideration of plaintiff’s obtaining and delivering to the defendant a deed from Mrs. Roberts and Mrs. Jones conveying to the defendant the said real estate. The fourth count is based upon an alleged agreement between the defendant and Mrs. Roberts and Mrs. Jones to purchase certain real estate for $37,500, and to pay to Mrs. Roberts and Mrs. Jones $36,250 and to pay plaintiff the balance of the purchase price, namely, $1,250. The common counts are added, and the plaintiff insists that the amount of bis claim is recoverable under them as money due Mm from tbe defendant in equity and good conscience, whether arising from contract or tort — as obtaining money under false pretenses — as obtaining by false representations a contract or deed of real estate worth to the defendant the sum of $1,250.

There was a trial before the court and a jury and a verdict for the plaintiff for $1,340. From a judgment rendered on the verdict the defendant appeals. We are asked to reverse the judgment on the grounds that an instruction tendered by the defendant directing the jury to find a verdict for the defendant was erroneously refused; also that there was error in the admission of testimony.

It would appear that Anna A. Roberts and Nettie L. R. Jones were the mother and sister of the plaintiff, and were the owners of certain real estate in the city of CMcago; that the defendant had contracted to buy the adjacent lot and desired to purchase the lot owned by Mrs. Roberts and Mrs. Jones; that he employed Mr. Read of the firm of McKey & Poague to negotiate for the purchase; that the plaintiff had charge of the real estate in question for Ms mother and sister, and that they had agreed with him that he should have all he could procure for the lot in excess of $36,250; that they were represented in the negotiations for the property by Mr. Oliver, a real estate agent; that Mr. Read made several offers to Mr. Oliver for the property, which offers were refused. The testimony of Mr. Oliver is to the effect that during the negotiations he said to Mr. Read that the plaintiff had an interest in the property; that his mother was willing that he should have all above a certain amount he could get for the property and that if the property was sold there would have to be a contract between the mother and sister at the net price, and that an additional contract for an amount over the net price between the purchaser and George Roberts would have to be made; that Mr. Reed finally said that was acceptable to the defendant and to get the contract. Mr. Read, when called as a witness for the defendant, testified that he never knew that plaintiff expected to be paid something out of the sale of the property until after the suit was commenced; that he never had any conversation with Mr. Oliver regarding the payment to plaintiff of any money prior to the signing of the instrument heretofore set forth. When examined as a witness for the plaintiff he had previously testified that he saw plaintiff’s exhibit one (the contract between Mrs. Roberts and Mrs. Jones and the defendant) in Mr. Robert’s office; that there was another paper attached to it, namely, the foregoing letter addressed to plaintiff by Mr. Howe; that he took both of the papers to Mr. Howe and that Mr. Howe signed them; that he told Mr. Howe that both papers were to be signed or neither; that Mr. Howe called up his attorney, who read the papers over, whereupon they were signed and afterwards delivered to Mr. Oliver; that the transaction took place in one day, and that the earnest money of $1,250 mentioned in the contract was delivered to Mr. Oliver with the papers; that he first saw the plaintiff on the day the sale was closed in the office of the Chicago Title & Trust Company, August 10, 1909, where he met the defendant, Mr. Oliver, Mr. Roberts and Mr. Boddinghouse, an officer of the Trust company; that the defendant had a certified check for $35,000, which he tendered to Mr. Roberts for the deed; that then the question about the $1,250 came up, and that Mr. Howe said he would not pay until he saw his attorney ; that on the next morning he met the plaintiff and defendant together and walked with them to the Trust company office, where Mr. Howe handed Mr. Bodding-house the cheek for $35,000 and Mr. Boddinghouse handed to Mr. Howe the deed; that he and the defendant then went to the recorder’s office and recorded the deed. The witness testified that lie might have told the plaintiff that he was safe in giving Mr. Howe the deed as Howe was responsible. The defendant in his testimony corroborated Mr. Head with respect to Mr. Read’s having told him that he wonld have to sign both the contract and the letter form or neither. He further testified that he was advised by his attorney to sign the letter form and that there wonld be no legal liability on his part to pay the amount; that he did not expect or intend to pay it at the time he signed the paper; that he expected to get the deal through without paying the $1,250.

The defense interposed and the proposition relied upon for reversal is that the services rendered by Roberts for Howe were fully executed and performed before the signing of the instrument sued on, and without any promise or moral obligation on the part of Howe to pay the same before their performance; that therefore the consideration is past and executed, and no recovery may be had. We do not agree with this construction. It is true the contract for the sale had been signed by Mrs. Roberts and Mrs. Jones when presented to Mr. Howe, but his agent, Mr. Read, was given possession of it with the distinct understanding between him and Mr. Oliver, the agent for the grantors, that it was not to be executed by Howe and delivered to Mr. Oliver (to be held by the latter pending investigation of title, etc.) unless Mr. Howe should at the same time execute the second paper, namely, the agreement to pay the sum of $1,250 in addition to the sum of $36,250.

The argument of the defendant is based largely upon the first clause in the agreement, viz: “In consideration of your having secured,” etc. In Walker v. Douglas, 70 Ill. 445, it is said to be a familiar elementary principle of construction that it is the duty of the court to discover and give effect to the intention of the parties, so that performance of the contract may be enforced according to the sense in which they mutually understood it at the time it was made; and where the intention of the parties to the contract is sufficiently apparent, effect must "be given to it in that sense, though violence be done thereby to its words. The mere use of the past tense in the form should not blind us to the actual intent of the parties. The contract as to the sale and purchase was not completed until the signature of Mr. Howe was appended thereto, and as this was done at the same time that the contract sued upon was executed by him, the two, in our opinion, should be treated as constituting one transaction. No one, in our opinion, on reading the documents could properly reach any other conclusion than that the intention of the parties was that the $1,250 should be paid as recited in the instrument itself as part of the transaction. The avowed determination of Mr. Howe, now frankly confessed, not to carry out the contract so made by him, cannot now be urged by him in argument for the proposition that the minds of the parties did not meet. He cannot thus take advantage of a wrong which he attempted to perpetrate.

In the brief for the defendant it is stated: “While we admit that he (Mr. Howe) intentionally deceived Mr. Roberts in order to obtain possession of the deed and place the same on record, still, as he was under no legal obligation to pay Mr. Roberts any money, such conduct can in no way alter his legal status.” In view of the fact that under the agreement the sum of $1,250 was not to be paid to Roberts until he caused to be delivered or there was delivered to Howe the deed for the property in question, we are unable to adopt the reasoning so advanced.

Complaint is made that certain testimony of Mrs. Roberts and Mrs. Jones was improperly received. It was allowed by the court merely as proof tending to show the agency of the plaintiff, and in our opinion no error was committed.

We are unable to find any error in the charge of the court to the jury.

,The judgment will be affirmed.

Affirmed.


author: Mr. Presidihg Justice Clark

text:
    Long Bell Naval Stores Company, Appellee, v. Central Commercial Company, Appellant.
    Gen. No. 17,973.
    1. Appeals and errors — when no propositions of law presented on appeal. Where no propositions of law are submitted as provided for by municipal court rule 23, which is Practice Act, §61, no question of law is presented on appeal unless errors assigned as to the admission or exclusion of evidence necessarily involve such a question.
    2. Sales — when seller justified in treating contract as canceled. The seller may treat the contract as canceled where it provides that the goods should he taken up at least every thirty days, but the buyer refuses to furnish shipping directions after numerous requests, though he informed the seller by letter that he would furnish such directions within thirty days.
    3. Sales — when seller may treat contract as terminated. The seller may treat the contract as terminated where part of the goods were apparently accepted by the buyer, though he alleges that they did not comply with the contract as to quality, and where he credited the seller with a certain amount on his books after the shipment but did not pay for such shipment or tender the amount credited.
    Appeal from the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1911.
    Affirmed.
    Opinion filed March 4, 1913.
    William A. Rogan, for appellant.
    Adams, Candee, Steere & Hawley, for appellee.
   Mr. Presidihg Justice Clark

delivered the opinion of the court.

Suit was brought for the recovery of the value of a tank car of ■ turpentine, freight charges and interest. Previously, on April 15, 1907, the parties had entered into an agreement whereby the appellee agreed to sell and the appellant agreed to purchase the appellee’s “entire production of resin and turpentine and all which, they make, own, or control, during* the entire season from April 1, 1907, to April 1,1908, ’ ’ the price being* based upon the official closing market at Savannah, G-a. It was further provided that both the resin and the turpentine should be taken up at least every thirty days. Inspection of the resin and turpentine before shipment was provided for, and the appellant agreed to pay cash through its Chicago office upon receipt of document showing shipments of the resin and turpentine from the railroad company with the invoice attached.

The car for which the claim is made was shipped on January 25, 1907. A month later the appellant rendered an account to the appellee, whereby it credited the appellee with $814.29, and this is the amount which was allowed by the trial judge in the judgment appealed from. The defense sought to be interposed was the failure of the appellee to ship all of its product. The reply to this contention is, first, that the appellant violated the contract by not paying for the car in question- according to the terms of the contract; and second, that it violated the contract by not giving orders to the appellee to ship the resin so that the terms of the contract providing that the resin and turpentine should be taken up at least every thirty days would be complied with.

* The case was tried before the court without a jury. No propositions of law were submitted by either side. Section 61 of the Practice Act, which has been adopted by the Municipal Court by Buie 23 of that court, provides for the submission of written propositions to be held as law in the decision of the case, which shall be marked “refused” or “held” by the court as the court is of opinion is the law etc. As no such propositions were submitted by either party, no question of law is presented for our determination, unless the errors assigned as to the admission or exclusion of evidence necessarily involve the consideration of such a question. (Keating v. Springer, 146 Ill. 481.) No question as to the admission or refusal to admit evidence is raised in the appellant’s brief.

We are satisfied, however, from the evidence that the appellee was justified in treating the contract as rescinded by appellant. It seems that all of the resin and turpentine had been inspected. In a letter written in February, 1908, appellant stated: “You now have specifications for five hundred odd barrels, which will reduce your stock materially, this leaving only 1,210 barrels unshipped. We will furnish you shipping instructions on these 1,210 barrels in the course of the next thirty days, and trust this will be satisfactory.” We think it was the duty of appellant under these circumstances to furnish appellee with shipping directions, and its refusal to do so after numerous requests was a sufficient repudiation of the contract to permit its being treated by the appellee as canceled. (Weill v. American Metal Co., 182 Ill. 128.)

The other ground for treating the contract as canceled is also, in our opinion, well taken. Although the car of turpentine is alleged by the appellant not to have complied with the terms of the contract as to quality, it was apparently accepted by the appellant, and the appellant should have paid for it or at least tendered the amount for which it credited the appellee on its’books. The refusal to so make payments might properly be treated by the appellee as a termination of the contract. (Burt v. Garden City Sand Co., 237 Ill. 473.)

We find no competent proof of any valid set-off to the claim of the appellee other than was allowed, and the judgment is therefore affirmed.

Affirmed.