text:
    Mutual Investment Company, Appellant, v. T. T. Wildman and Miriam P. Wildman, Appellees.
    Gen. No. 18,281.
    1. Bills and notes, § 240

      -r-when bona fide purchaser protected. An indorsee or assignee of commercial paper who takes before maturity for a valuable consideration without knowledge of any defects and in good faith will he protected against the defenses of the maker, and mere suspicion of defect of title, or the knowledge of circumstances calculated to excite suspicion in the mind of a prudent man, or even gross negligence on his part at the time of transfer, will not defeat his title.
    2. Bills and notes, § 244*—when corporation takes with notice of maker’s defenses. A corporation becoming a purchaser for value before maturity takes with constructive notice of want of consideration where its officer representing the corporation in the transaction had notice thereof.
    3. Coepobations, § 387*—when knowledge of officer is constructive notice to corporation. Knowledge of an officer of a corporation concerning a transaction is imputable to the corporation where such officer acts in its behalf.
    4. Corporations, § 387*—when knowledge by officer is not notice to corporation. An officer of a corporation who is dealing with the corporation in his own interest and opposed to the interest of the corporation does not represent the corporation so as to charge it with knowledge he possesses.
    5. Cobporations, § 387*—when question of law whether knowledge of officer is imputed to corporation. Where it is admitted that an officer of a corporation has notice of certain facts, the question whether his knowledge is constructive notice to the corporation is a question of law.
    Appeal from the Municipal Court of Chicago, the Hon. John D. Tuenbaugh, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Rehearing denied October 23, 1913.
    Statement by the Court. TMs is an appeal from a judgment of the Municipal Court of Chicago in a first class suit. At the conclusion of all the evidence the court directed the jury to return a verdict finding the issues against the plaintiff, Mutual Investment Company, which they did, and judgment was entered in favor of the defendants for costs.
    Plaintiff, a Wisconsin corporation, with principal office at Milwaukee, Wisconsin, sued to recover, as indorsee, the principal sum of a promissory note, together with interest. The note was dated Milwaukee, September 11, 1909, and by its terms T. T. Wildman and Miriam P. Wildman promised to pay to the order of Federal Eubber Company, on June 1, 1910, the sum of one thousand dollars, with interest at six per cent, per annum. The note bore the indorsement “Pay to order of Mutual Invt. Co., Federal Eubber Co., by J. H. Frank, Pres.” The Federal Eubber Company, hereinafter called the Federal Co., was also a Wisconsin corporation and also had its principal office at Milwaukee, Wisconsin. The defense interposed was that the defendants were induced to sign the note by reason of the false representations of J. H. Frank, president of the Federal Co.; that T. T. Wildman was then indebted to the Federal Co., which was not the fact, although it was supposed to be by the defendants at the time; and that the note was transferred to the plaintiff with the fraudulent purpose of preventing the defendants from making any defense; and that plaintiff was not a bona fide holder of said note without notice.
    On the trial, after the plaintiff had introduced the note and rested, the defendants introduced a check for one thousand dollars, dated at Milwaukee, Septeinber 14,1909 (three days after the date of said note), drawn on the Germania National Bank of Milwaukee, payable to the order of the “Federal Rubber Co.,” signed “Mutual Investment Company, by Emil H. Koepke, Sec’y.” and countersigned by “J. H. Frank, Y. Pres. & Treas.” On the back of the check was the indorsement “Pay to Germania National Bank of Milwaukee or order, for deposit, to the credit of Federal Rubber Co.” It was stipulated by the respective parties that “J. H. Frank, who countersigned this check, as vice-president and treasurer of the plaintiff company, was at the same time the president of the Federal Co., and as such president endorsed the note to the plaintiff company.” The following facts were also stipulated and agreed to:
    “It is stipulated• and agreed that at the time the Federal Co. was organized it entered into a contract, through its president John H. Frank, with the defendant T. T. Wildman, whereby the said T. T. Wildman should have the exclusive agency for the sale of the goods of said Federal Co. in the City of Chicago and should receive commissions on all sales of the Federal Company’s goods in the City of Chicago whether said sales were solicited by said defendant or not; that in addition to selling goods on commission, the defendant T. T. Wildman was allowed to purchase goods at the regular price less his commission and resell the same at whatever price he could obtain and was allowed a credit with said Federal Co. for this purpose; that on September 11th, 1909, while defendant T. T. Wildman was in the office of the Federal Co. in Milwaukee, Wisconsin, the president of said Company, Mr. John H. Frank, advised said Wildman that at that time he (Wildman) was indebted on his account to the Federal Co. between two and three thousand dollars and asked said Wildman to sign a note for $1,000 on account thereof; that at that time said Wildman supposed said statement was true and agreed with said Frank that he would sign a note for $1,000 provided it was made for a long enough period so that the commissions coming to Mm from time to time would be sufficient to pay the same; that said Frank had said note made out and dated September 11th, 1909, payable June 1st, 1910 and told said Wildman that if he would sign the same and have his wife Miriam Parker Wildman, the other defendant in this suit, sign said note that the said Federal Co. would apply all commissions coming to said T. T. Wildman as they accrued upon the payment of said note; that said Wildman told said Frank that if the Federal Co. would do that he was willing to sign said note and have his wife sign it also and the note was signed with that agreement; that before and at the time said note became due said T. T. Wildman had earned enough commissions from said Federal Co. to more than pay said note and interest and all indebtedness from said Wildman to said Federal Co., and that at the time of the signing of said note the said Federal Co. was withholding commissions due said Wildman without his knowledge and that at that time said Wildman was not as a matter of fact indebted to said Federal Co.”
    At the conclusion of the defendants’ evidence, the plaintiff moved that the court instruct the jury to find the issues for the plaintiff, which motion was denied. Plaintiff thereupon called Emil H. Koepke as a witness in rebuttal. He testified that on September 14, 1909, he was the secretary of plaintiff; that on that day J. H. Frank telephoned him to come over to the offices of the Federal Co., which he did; that Frank said he had a note for one thousand dollars, which he wanted discounted and which had been given by one of the customers of the Federal Co., and which was a good note but was not discountable at the bank; that he (Koepke) then returned to the office of plaintiff and made out the check for one thousand dollars and signed it as secretary ; that all checks of plaintiff under the sum of two hundred dollars were signed by the witness as secretary, but that all checks over that sum were required to be countersigned- by either the president or vice-president of plaintiff; that he tried to reach the president of plaintiff for the purpose of having him countersign the check, hut the president was not then in his office; that subsequently J. H. Frank countersigned the check, and Koepke turned over the check and received the note in return, indorsed as aforesaid. On cross-examination Koepke testified that at the time of the transfer of the note the president of plaintiff was Louis F. Frank, a brother of J. H. Frank; that the three directors of plaintiff were the two brothers and Bertha M. Frank, widow of a deceased brother; that J. H. Frank had been the vice-president and treasurer of plaintiff ever since the organization of the company in 1905; that the Federal Co. was organized in 1908 with a capital of $620,000; that there were sixteen or eighteen directors of that company, and that J. H. Frank was no longer an officer of the Federal Co.
    Alden, Latham & Young, for appellant; Charles Martin, of counsel.
    Harper E. Osborn, for appellees.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

It appears from the evidence in this case that the one thousand dollar note in question was signed by the defendants because they at that time believed that the representations of J. H. Frank, president of the Federal Co., that T. T. Wildman was then indebted to that company, were true, although as a matter of fact he was not then so indebted, and because of the agreement that the commissions to be earned by said Wildman should be applied in payment of said note, evidencing said supposed indebtedness. Three days after the execution of the note and before its maturity, J. H. Frank, as president of the Federal Co., in violation of said agreement, indorsed said note over to plaintiff and plaintiff delivered to the Federal Co. its check for one thousand dollars, payable to the order of the Federal Co., which check that company subsequently cashed. The check was signed by Emil H. Koepke, the secretary of plaintiff, and was countersigned by said J. H. Frank, the vice-president and treasurer of plaintiff. It appears that all checks of plaintiff under the sum of two hundred dollars were signed by said Koepke, as secretary, but that all checks over that sum were required to he countersigned by either the president of plaintiff or by J. H. Frank; that after Koepke had made out the check and had signed it as secretary he endeavored to get the president to countersign the check, but that the latter was not in his office; and that said J. H. Frank subsequently countersigned the check, as vice-president and treasurer of plaintiff, and the note, indorsed as aforesaid, was delivered to plaintiff. It thus appears that while J. H. Frank was representing the Federal Co. he was an essential representative of plaintiff in the transaction. In the absence of the president of plaintiff, the countersignature of J. H. Frank was necessary to then transfer the one thousand dollars named in the check to the Federal Co.

“The rule now is, that the endorsee or assignee of commercial paper who takes the same before maturity for a valuable consideration, without knowledge of any defects and in good faith, will be protected against the defenses of the maker, and mere suspicion of defect of title or the knowledge of circumstances calculated to excite suspicion in the mind of a prudent man, or even gross negligence on his part at the time of the transfer, will not defeat his title.” Bradwell v. Pryor, 221 Ill. 602.

Counsel for plaintiff contend that the trial court erred in directing the jury, at the conclusion of all the evidence, to return a verdict in favor of the defendants, and argue that the plaintiff took the note before maturity for a valuable consideration, without knowledge of any defects and in good faith, and for the reason that the knowledge of J. H. Frank of the defect in the paper and of the fraud practiced upon the defendants is not imputable to the plaintiff. Counsel have cited, among others, the cases of Higgins v. Lansingh, 154 Ill. 301, and Seaverns v. Presbyterian Hospital, 173 Ill. 414, as supporting their position. In the Higgins case, supra, it was decided that a corporation making a purchase from its president of certain securities is not chargeable with his knowledge of the infirmities in his title thereto. In the Seaverns case, supra, it was decided that where the president of a corporation negotiates a loan from the corporation to a third party, which will operate to the president’s individual interest and against the interest of the corporation, the president stands as a stranger to the corporation, and must be held not to represent it in the transaction so as to charge it with the knowledge which he possessed but did not communicate to it, and which it did not know. In the Higgins case, supra, at page 387, our Supreme Court quotes with approval from the case of Barnes v. Trenton Gas Co., 27 N. J. Eq. 33, in which quotation there is, first, a statement of the general rule, viz: “that notice of facts to an agent is constructive notice thereof to the principal himself, where it arises from, or is at the time connected with, the subject matter of his agency,” and, second, a statement of an exception to the general rule, viz: that where the agent is an officer of a corporation, and is dealing with the corporation in his own interest and opposed to the interest of the corporation, he is held not to represent the corporation in the transaction, so as to charge it with the knowledge he possesses, which he does not communicate to the corporation and which the corporation does not otherwise possess. In the Higgins and Seaverns cases, supra, the foregoing exception to the general rule was considered as being properly applicable to the facts in those cases, but we do not think that said exception should, under all the facts in evidence, be applied to the present case. There are several well considered cases which recognize a qualification to said exception to the general rule, viz: where the officer of the corporation (though he also acts in his own interest or the interest of another corporation) is the sole or an essential representative of the corporation in the transaction in question, in which event his knowledge is held to be imputable to the corporation. See Brobston v. Penniman, 97 Ga. 527; Morris v. Georgia Loan Co., 109 Ga. 12; Black Hills Nat. Bank v. Kellogg, 4 S. D. 312; Steam Stonecutter Co. v. Myers, 64 Mo. App. 527; Traders Nat. Bank of Ft. Worth v. Smith, (Tex. Civ. App.) 22 S. W. Rep. 1056; Niblack v. Cosler, 74 Fed. Rep. 1000. In 2 Pomeroy’s Eq. Jur. (3d. Ed.) sec. 675, note 1, the author expresses a doubt whether said exception to the general rule can apply to “presidents, and other such managing officers of a corporation, through whom alone the corporation can act.” In an exhaustive note, following the report of the case of Waynesville Nat. Bank v. Irons, 8 Fed. Rep. 1, at page 11, it is stated that “in order to charge the corporation with notice of facts of which a director or other officer had knowledge, he must have acted in the transaction on behalf of the corporation.” Several cases are there cited in support of the statement, in which cases the officer of the corporation acted in its behalf in the transaction and his knowledge was held to be imputable to the corporation. See Bank of U. S. v. Davis, 2 Hill (N. Y.) 451; First Nat. Bank of New Milford v. Town of New Milford, 36 Conn. 93; Clerks’ Sav. Bank v. Thomas, 2 Mo. App. 367; National Security. Bank v. Cushman, 121 Mass. 490. Under the stipulated and other facts in evidence in this case, we have reached the conclusion that the knowledge of J. H. Frank was imputable to the plaintiff.

It is also urged that the question whether the plaintiff had notice, etc., was a question of fact which should have been submitted to the jury. Under the stipulated facts, J. H. Frank admittedly had knowledge of the defects in the paper and of the fraud, and the question was whether that knowledge was constructive notice to the plaintiff. We think this was a question of law on the admitted facts (10 Cyc. 1061), and we are of the opinion that the trial court in this case did not err in directing a verdict in favor of the defendants.

And we do not think that the court committed prejudicial error in its rulings as to the admissibility of certain testimony offered by plaintiff.

The judgment of the Municipal Court is therefore affirmed.

'Affirmed.


source: Caselaw Access Project

author: Mr. Justice Gridley

license: Public Domain

text:
    A. B. Brooks, Defendant in Error, v. Vinegar Bend Lumber Company, Plaintiff in Error.
    Gen. No. 18,293.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dickeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by A. B. Brooks against Vinegar Bend Lumber Company, a corporation, to recover commissions on" sale of lumber alleged to have been procured by plaintiff for defendant. From a judgment for plaintiff for two hundred and twenty dollars, defendant brings error.
    W. Knox Haynes and Michael Frinberg, for plaintiff in error.
    Harry A. Biossat, for defendant in error.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Bbokebs, § 48 —right to commissions when sale made by principal. Finding and judgment allowing plaintiff commissions on a sale of lumber by defendant direct to purchaser after an agreement by defendant to pay commissions and after disclosing identity of purchaser, held not contrary to the evidence.

2. Municipal Coubt of Chicago, § 30*—when failure to prove claim as alleged, not reversible error. Fact that cause of action as proved was not accurately set forth in statement of claim, held not reversible error when defendant is not prejudiced thereby.


text:
    Sadie Hannan, Appellee, v. Frederick W. Dreckman, Appellant.
    Gen. No. 18,307.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Executobs and administbatobs, § 364

      —what constitutes an agreement by an administrator. Evidence held to support a finding of an agreement by an administrator to pay an heir a certain sum of money on the sale of a mortgage.

      Appeal from the Superior Court of Cook county; the Hon. William Fenimobe Coopeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Sadie Hannan against Frederick W. Dreckman on an agreement to pay a certain sum of money. From a judgment of one hundred and forty dollars for plaintiff, defendant appeals.
    O’Donnell & O’Donnell, for appellant.
    Arnold Tripp, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

2. Frauds, statute of, § 21*—what is special promise to answer for debt of another. A verbal agreement of an administrator, on distribution of an estate, to sell a mortgage and pay a portion of the proceeds to certain heirs, held to be an original undertaking and not within the statute of frauds.


text:
    In the matter of the petition of Wilson Carey. On Appeal of C. W. Lasher, Appellant, v. Wilson Carey, Appellee.
    Gen. No. 18,337.
    1. Executions, § 296*—what constitutes malice preventing discharge of an insolvent debtor. On application for discharge under the Insolvent Debtors’ Act, J. & A. W6198-6233, a statement of claim filed in the Municipal Court of Chicago, containing the words “which checks the defendant cashed and fraudulently and tortiously appropriated to his own use and has failed to account therefor,” sufficiently shows malice, so as to prevent discharge.
    2. Assignments, § 2*—what causes of action are assignable. A cause of action arising from tort, as where a person appropriates money to his own use and fails to account therefor, is assignable.
    3. Judgments, § 582*—when a judgment is assignable. A judgment for the recovery of money which a defendant appropriated to his own use is assignable.
    4. Judgments, § 590*—what rights an assignee of a judgment acquires. The assignee of a judgment has the legal right to sue out a ca. sa. and have the judgment debtor arrested, particularly under an assignment by which the assignor makes the assignee his attorney to “sue out executions and other writs and take all lawful ways for the recovery of the money due.”
    5. Executions, § 302*—what evidence is necessary on applicar tion for discharge of an insolvent debtor. Where a petition for discharge of an insolvent debtor shows the issuance of a ca. sa. and the arrest of the debtor, the fact that the transcript of the record in the Municipal Court does not show such issuance is immaterial. >

      6. Executions, § 305

      —what objections can be urged on appeal from, discharge of an insolvent debtor. An objection that no money was paid to the sheriff for advance board of an insolvent debtor will not be considered on appeal when the regularity of the proceedings culminating in arrest were not attacked in the court below.
    7. Appeal and ebbob, § 1113*—what constitutes ground for dismissal. Where a judgment against a debtor is assigned and subsequently an appeal is allowed from an order" discharging such debtor from arrest, as insolvent, upon the “arresting creditor” filing an appeal bond, the fact that such bond is executed in the name of the assignor of the judgment, the nominal party in interest, instead of the real party, will not warrant dismissal of the appeal on the ground that the bond is defective.
    8. Appeal and ebbob, § 1106*—what parties may urge dismissal of an appeal. Where an appeal is prosecuted by the assignee of a judgment in the name of the assignor, indemnity being offered, the assignor cannot urge the dismissal of the appeal on the ground that he has no interest in the proceedings.
    9. Appeal and ebbob, § 339*—what persons are entitled to review. Where an assignment of a judgment contains a power of attorney authorizing the assignee to “take all lawful ways for the recovery of the money due,” an appeal from an order discharging the judgment debtor, under the Insolvent Debtors’ Act, J. & A. fllf 6198-6233, is a “lawful” and necessary step to recover the money due, and the judgment debtor cannot urge that the assignee has no power to appeal.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Henry W. Price and Hugh T. Martin, for appellant.
    Lewis, Folsom & Streeter, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the County Court of Cook county, discharging Wilson Carey,, appellee, from the custody of the sheriff of Cook county. The judgment was entered upon his application for release under the provisions of the “Act concerning Insolvent Debtors.” (J. & A. ¶¶ 6198-6233.)

On January 4, 1909, the appellant, C. W. Lasher, commenced a tort action against the appellee in the Municipal Court of Chicago. Appellant’s statement of claim filed in that action was as follows: “Plaintiff’s claim is for the proceeds of two checks aggregating $107.30, drawn by the plaintiff, payable to the order of E. T. Stokes, and delivered to the defendant, for the purpose of payment of an open account due from the plaintiff to the said E. T. Stokes and which checks the defendant cashed and fraudulently and tortiously appropriated to his own use and has failed to account therefor. ’ ’

On March 5,1909, Carey was served with summons, and he subsequently entered his appearance in said action. The cause was tried before a jury, and on June 3, 1909, they returned the following verdict: “We, the jury, find the defendant guilty as alleged in plaintiff’s statement of claim and assess the plaintiff’s damages at the sum of one hundred and seven and 30-100 dollars ($107.30) in tort.”

On June 18, 1909, after overruling motions for a new trial and in arrest of judgment, the Municipal Court entered judgment against Carey on said verdict, and directed that an execution issue. Carey was given thirty days in which to file a bill of exceptions, and the stay of execution bond was fixed at three hundred dollars. It does not appear that any bill of exceptions or stay of execution bond was ever filed in said Municipal Court.

On September 13, 1911, there'was filed in the office of the clerk of the Municipal Court a written assignment of said judgment, dated September 12, 1911, signed, sealed and acknowledged by said Lasher, in which it appeared that Lasher, in consideration of the $53.65 to him paid, had sold and assigned to Raymond W. Stevens, and his assigns, the said judgment ‘6 and any and all sum and sums of money that may be had or obtained by means thereof, or on any proceedings to be had thereupon;” and in which it further appeared that Lasher had appointed Stevens, and Stevens’ executors, administrators and assigns, his true and lawful attorney, for him and in his name, but for Stevens’ sole use and benefit and at Stevens’ own costs and charges, “to ask, demand, and receive, and sue out executions, and other ivrits, and take all lawful ways for the recovery of the money due, or to become due, on the said judgment, and, on payment, to acknowledge satisfaction, or discharge the same, * * * hereby ratifying’ and confirming all that his said attorney, or substitute, shall lawfully do in the premises; ’ ’ and in which it further appeared that Lasher covenanted that there was due on said judgment the sum of $107.30, and that he would not collect or receive the same, nor release or discharge the judgment but would “own and allow all laivful proceedings therein,” Stevens saving Lasher harmless of and from any costs and charges in the premises.

On September 18, 1911, the appellee, Carey, filed his petition in the County Court for Ms release in wMch he alleged that he “has been arrested under a writ of Ga. 8a. issued by Homer K. Galpin, clerk of the Municipal Court of Chicago, in favor of C. W. Lasher for the sum of $107.30, and is now in the custody of the sheriff of said county of Cook, under and by virtue of said writ, and is desirous of releasing his body from such arrest or imprisonment by delivering up his property.” On the same day he presented his appearance bond in the penal sum of two hundred fifty dollars, conditioned for his subsequent appearance before the county court, which bond was approved, and he was released subject to the conditions of the bond, and the cause was continued.

On October 6/ 1911, the appellant, Lasher, filed an answer to said petition in wMch'he averred that said writ of Ga 8a. under which Carey was arrested, was issued upon said judgment of the Municipal Court against Carey; that said judgment was rendered in a cause in which malice on the part of Carey was of the gist of the action; that that fact was res adjudicata between the parties; and that inasmuch as the question of malice was settled by said judgment Carey was not entitled to be discharged and that the petition should be dismissed.

Subsequently a hearing was had, at which time a transcript of the record of said cause in the Municipal Court, certified by the clerk of that court as being a “true, perfect and complete” transcript, was introduced in evidence, and Lasher objected to the taking of any verbal testimony on behalf of Carey in support of the latter’s petition for a discharge, on the ground that malice was the gist of the action in the cause in the Municipal Court (in which cause judgment had been entered and the writ of Ga. 8a. issued thereon) and that the fact that malice was the gist of that action could be determined by an inspection of said transcript of the record, and was res adjudicata. The objection was overruled, and exception'taken, and Carey testified at length in his own behalf, after which Lasher also testified. In the view we take of the case it is unnecessary to comment on the testimony of these two witnesses. Suffice it to say that it was quite conflicting. At the close of the evidence appellant moved to exclude all the testimony offered except said transcript of the record of the Municipal Court, which motion was overruled and appellant excepted. The Court thereupon, on October 19, 1911, ordered and adjudged, it appearing that Carey had made a full, fair and complete schedule of his assets and an account of his liabilities, that Carey be released from arrest and be discharged from the custody of the sheriff and that the costs of the proceeding be taxed against Lasher and that Carey have execution therefor, to the entry of which judgment Lasher excepted and prayed an appeal to this court, which was allowed upon the “arresting credit- or” filing within sixty days a bill of exceptions and bond in the sum of two hundred dollars with sureties to be approved by the court.

On November 23, 1911, appellant filed a bill of exceptions and an appeal bond, which bond was approved by the court. The bond was signed by “Charles W. Lasher, by Raymond W. Stevens, his attorney in fact,” as principal, and by James W. Stevens, as surety.

When malice is the gist of the action, an insolvent debtor is not entitled to his discharge under the provisions of the “Act concerning Insolvent Debtors.” (J. & A. ¶¶ 6198-6233.) Jernberg v. Mix, 199 Ill. 254; First Nat. Bank of Flora v. Burkett, 101 Ill. 391; People v. Greer, 43 Ill. 213. Whether or not malice is the gist of a civil action is to be determined from an inspection of the record in that action; (Jernberg v. Mix, supra; Biebel v. Kuttnauer, 147 Ill. App. 627, 629) and particularly from the allegations of the declaration; (People v. Healy, 128 Ill. 9; Penoyer v. People, 105 Ill. App. 481; Kellar, Ettinger & Fink v. Norton, 228 Ill. 356), and, where the action is in the Municipal Court of Chicago, particularly from the statement of claim there filed. Rex. v. People, 166 Ill. App. 607. And where malice is the gist of such a civil action the judgment therein is conclusive of the question of malice ana is res adjudícala. Jernberg v. Mix, supra; Biebel v. Kuttnauer, supra; Drygalski v. Thiele, 163 Ill. App. 290. The term “malice,” as used in the Insolvent Debtors’ Act, “applies to that class of wrongs which are inflicted with an evil intent, design or purpose. It implies that the guilty party was actuated by improper or dishonest motives, and requires the intentional perpetration of an injury or a wrong to another. * * * The gist of an action is the essential ground or principal subject matter, without which the action could not be maintained.” Jernberg v. Mix, 199 Ill. 254, 256.

Counsel for appellant here contend that from an inspection of the transcript of the record of that cause in the Municipal Court, and particularly of plaintiff’s statement of claim, it appears that malice was the gist of the action, that the County Court, on the hearing ol Carey’s petition for a discharge, erred in admitting testimony on the question of malice, and in not remanding Carey to the custody of the sheriff, after said transcript was introduced and the court had inspected the same. To this contention counsel for appellee reply that Lasher’s statement of claim in the Municipal Court, and particularly the words therein “which checks the defendant cashed and fraudulently and tortiously appropriated to Ms own use and has failed to account therefor,” do not show that malice was the gist of the action. Counsel argue that the cause of action, as shown from said statement of claim, amounts to np more than an action in trover, in which action malice is not the gist. Citing Jernberg v. Mix, supra. Counsel further argue that without the qualifying adverbs “fradulently” and “tortiously” the words “appropriated to his own use” would certainly not convey the idea that the money was taken by Carey with an evil intent, design or purpose, and that, taken together, the words “fraudulently and tortiously appropriated to his own use” cannot be said to sufficiently allege that the appropriation by Carey was made with an evil intent, design or purpose. We cannot agree with the contention of counsel for appellee. We think that said words sufficiently allege an evil intent, design or purpose, in other words, malice. In Spalding v. People, 172 Ill. 40, 56, it is said that the word “embezzle” and words “fraudulently convert to his own use,” as used in section 80 of the Criminal Code (J. & A. if 3624), “mean the same thing. In both a criminal intent is necessary, but if the acts constituting the embezzlement are fraudulently done they are done with a criminal mtent.” In Blattau v. Evans, 57 Ill. App. 311, 315, in which qase the jnry found “the defendants guilty of wrongfully and unlawfully converting to their own use the property of the plaintiffs, with the intent to injure and defraud the plaintiffs ’ ’ it was held that the verdict was equivalent to a finding by the jury that malice was the gist of the action. Citing First Nat. Bank of Flora v. Burkett, supra. In Biebel v. Kuttnauer, supra, the declaration alleged that the defendant “wilfully and fradulently converted the moneys so collected to his own use,” and the jury found the defendant “guilty of wrongfully, wilfully and fradulently converting to his own use” the money and property of the plaintiffs, “with intent to cheat and defraud the plaintiffs out of the same, ’ ’ and it was held that malice was the gist of the action. In the present case the jury found Carey “guilty as alleged in plaintiff’s statement of claim.” In Subim v. Isador, 88 Ill. App. 96, 99, the jury found the defendant “guilty of false and fraudulent representations and fraudulently contracting the indebtedness sued for” and it was held that this finding was equivalent to a finding that malice was the gist of the action. In Bank of Montreal v. Thayer, 7 Fed. Rep. 622, 625, the allegation of the petition was that the defendant “wrongfully, fraudulently and falsely certified and represented,” etc. It was contended that a fraudulent intent was' not alleged, but the Court held otherwise, saying, “We must give to the term ‘fraudulently’ as found in the petition, the meaning which the law gives it, and which attaches to it in common usage, to-wit, a deliberately-planned purpose and intent to deceive and thereby to gain an unlawful advantage.”

But counsel for appellee further contend that it was never intended that the assignee of a tort judgment should by his purchase acquire the right to imprison the debtor under a Ca. Sa. Counsel first argue that the tort complained of by Lasher was not assignable before. judgment, and, hence, it could not be assigned as respects that wrong after judgment. We think that counsel are in error in their premise and that Lasher could have assigned his cause of action before judgment. “By the common law, actions arising out of torts did not, in general, survive. The statute of this State has materially changed the rule with reference to actions which survive, and it is now the general rule in this country that causes of action arising from torts to property, real or personal, or injuries to the decedent’s estate by which its value is diminished, survive, * * * and such causes of action are assignable.” North Chicago St. R. Co. v. Ackley, 171 Ill. 100, 105; Leonard v. Springer, 174 Ill. App. 516, 526. And we are also of the opinion that the judgment was assignable, and that the assignee of said judgment, particularly under the terms of the assignment by which the assignor made said assignee his attorney to “sue out executions and other writs and take all lawful ways for the recovery of the money due,” had the legal right to sue out the Ca. Sa. and have Carey arrested. “The assignment of a judgment carries with it all incidental or collateral rights, remedies, and advantages, existing at the time of the assignment and then available to the judgment creditor. ’ ’ 23 Cyc. 1422; Moore v. U. S. Barrel Co., 238 Ill. 544, 551. And it has been specifically decided that “the assignee of a judgment in actions in which imprisonment is allowed is entitled to an execution against the person of the judgment debtor.” 17 Cyc. 1502; King v. Kirby, 28 Barb. (N. Y.) 49; Dougherty v. Gardner, 58 How. Pr. (N. Y.) 284.

Counsel for appellee further contend that the order of the County Court discharging Carey was proper and should be affirmed for the reason that the transcript of the record of the cause in the Municipal Court, introduced in evidence in the County Court, failed to show that any capias was ever sued out on the judgment. We do not think there is any merit in this contention. The fact of the issuance of a Ca. Sa., and the arrest of Carey, is shown by the allegations of Carey’s petition for Ms discharge. Nor do we think there is any merit in the further contention that the transcript of the record fails to. show that any money was paid to the sheriff for advance board of Carey. Carey, in his petition for discharge does not make any such point, nor does it appear that any attack was made in the County Court on the regularity of the proceedings culminating in his arrest.

For the reasons indicated, we are of the opinion that the County Court, upon making an inspection of the transcript of the record of the cause in the Municipal Court, erred in not dismissing Carey’s petition and remanding him to the custody of the sheriff.

After the appeal had been perfected in this court, Lasher and Carey filed their several written motions' to dismiss the appeal and those motions were reserved to the hearing. Lasher, after stating that on September 12, 1911, he executed the assignment of the judgment to Raymond W. Stevens and that the writ of Ca. 8a. was subsequently sued out thereon, alleged as grounds for his motion that he never signed the appeal bond in this cause, never prayed or procured the allowance of said appeal, never authorized any person to procure or prosecute said appeal, and that since executing said assignment of the judgment he has not had, and has not now, any interest in the proceedings. Carey, as grounds for his motion, stated that the appeal from the judgment of the County Court was allowed-upon the “arresting creditor” filing an appeal bond and bill of exceptions within sixty days; that inasmuch as the bond was executed by “Charles W. Lasher, by Raymond W. Stevens, his attorney in fact” appellant has not filed an appeal bond in accordance with the order allowing said appeal; and that there is no power of attorney from Lasher to Stevens authorizing the latter to execute the same. Carey filed suggestions in support of his motion, and counter suggestions in objection to both motions were also filed. Accompanying the latter suggestions was an affidavit of Raymond W. Stevens, in which it was alleged that he purchased said judgment against Carey and subsequently, on September 13, 1911, sued out said writ of Ca. 8a.; that after the appeal from the judgment of the County Court was allowed he “asked the said Lasher to sign the appeal bond;” that Lasher refused; that “affiant offered to give a bond to said Lasher, indemnifying him against any claims whatever against him by reason of the said appeal, but the said Lasher refused the said indemnity and refused to sign the said appeal bond;” that subsequently affiant, “as attorney in fact of the said Lasher, signed the said bond;” and that affiant “afterwards called this fact to the attention of said C. W. Lasher, who made no objection, but stated in substance that it was satisfactory to him.”

After careful consideration we have reached the conclusion that the motions to dismiss the appeal should be denied.

Under the terms of the order of the County Court allowing the appeal, if the appeal bond had been executed in the name of Raymond W. Stevens, the real party in interest, instead of in the name of C. W. Lasher, the nominal party, appellee could have had the appeal dismissed in this court. Tedrick v. Wells, 152 Ill. 214; Union Nat. Bank of Chicago v. Barth, 179 Ill. 83; Gates v. Thede Bros., 91 Ill. App. 603. Lasher having assigned the judgment to Stevens is in no position to urge a dismissal of this appeal. In Sumner v. Sleeth, 87 Ill. 500, 503, it is said: “It has long been the practice of courts of law to look through the nominal parties, to the rights of the real parties in interest, and where a necessary nominal party, either as plaintiff or defendant, fails or refuses to use his name, either in prosecuting or defending an action at law, courts will (upon proper indemnity as to costs and damages) permit the real party in interest to use the name of the nominal party, and that against the protest of the nominal party.” In Foreman Shoe Co. v. Lewis & Co., 191 Ill. 155, 158, it is said: “An equitable owner of a chose in action is entitled, by virtue of such ownership, to bring an action at law in the name of the party having the legal right, for his use. Such legal plaintiff cannot prevent the use of his name in the action, nor can he arrest or discontinue the suit, save on the failure of the usee to secure him against liability for costs.” It appears from the affidavit of Stevens that he offered to indemnify Lasher from any liability on said appeal bond. And we do not think that Carey, in view of the language of the assignment of judgment and the power of attorney therein given by Lasher to Stevens, can successfully urge the dismissal of the appeal. Stevens was therein given power by Lasher, in Lasher’s name, at Stevens’ costs, to “ask, demand and receive, and to sue out executions and other writs, and take all lawful ways for the recovery of the money due * * * on the said judgment.” The perfecting of said appeal was a “lawful” and necessary step towards the recovery of the amount of the judgment, and in our opinion Stevens, as attorney in fact for Lasher, had power to execute' the appeal bond in Lasher’s name. “An undertaking on appeal may be executed by a duly authorized agent or attorney. * * * If the authorization of such agent or attorney is questioned it will be presumed by the appellate court that the court below was satisfied that the agent or attorney was properly constituted as such.” 2 Cyc. 840; Sullivan v. Dollins, 11 Ill. 16; Sheldon v. Reihle, 2 Ill. 519. In Michigan Southern & N. I. R. Co. v. Day, 20 Ill. 375, 378, it is said: “It is laid down as a universal principle, that whether the agency be of a special or general nature, that it includes, unless the inference is expressly excluded by other circumstances, all the usual modes and means of accomplishing the ends and objects of the agency.” In Merrick v. Wagner, 44 Ill. 266, a general power of attorney, given to an agent to settle the principal’s business and collect all claims due the principal in Illinois, was held sufficient to authorize said agent to sign a replevin bond. In State v. Banks, 48 Md. 513, it was held that a general power of attorney to control and manage property authorized the agent to sign a certain injunction bond. See also Hemstreet v. Burdick, 90 Ill. 444; Davidson v. Dallas, 8 Cal. 227, 250.

The judgment of the County Court of Cook County is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    Joseph J. Grealish, Appellee, v. Sykes Steel Roofing Company, Appellant.
    Gen. No. 18,347.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John McNutt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed with finding of facts.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Joseph J. Grealish against Sykes Steel Roofing Company, a corporation, to recover damages for personal injuries. From a judgment for plaintiff for two thousand two hundred and fifty dollars, defendant appeals.
    J. F. Dammann, Jr., for appellant.
    Marvin E. Barnhart, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 358 —when servant is of sufficient age to assume the risk of injury. A servant aged eighteen years and six months who is engaged as a helper to a mechanic in connecting rain spouts on a building, and who is required to walk upon a ledge about fourteen inches wide, twenty-five feet above the ground, is of sufficient age to appreciate the danger of his employment.

2. Master and servant, § 316*—when servant assumes the risk of injury. Where a servant assisting a mechanic in connecting rain spouts on a building was requested to throw a rope to such mechanic a distance of about ten feet, such servant being then upon a narrow ledge about twenty-five feet above the ground, held, that the servant was not misled by the order, and that he assumed the risk of falling from the ledge.


text:
    Frank Trenkhorst Manufacturing Company, Defendant in Error, v. John Peter, Plaintiff in Error.
    Gen. No. 18,355.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the March term. 1912.
    Reversed and remanded.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Frank Trenkhorst Mfg. Co., a corporation, against John Peter to recover damages for breach of a contract to furnish materials to plaintiff. From a judgment for plaintiff for six hundred and twenty-seven dollars and ninety-nine cents, defendant brings error.
    C. A. Fitch, for plaintiff in error.
    A. J. Redmond, for defendant in error; Simon La Grou, of counsel. ......

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Sales, § 372 —when evidence as to price paid elsewhere, inadmissible. In an action for breach of contract to furnish certain materials and work, admission of testimony as to the price paid another party for same, without showing that such price was the reasonable and fair market price, held reversible error.

2. Sales, § 382*—measure of damages for breach, when buyer purchases elsewhere. In an action to recover the difference in price between the price for which defendant agreed to furnish "materials and the price actually paid another party on failure of defendant to perform, defendant cannot be charged with the difference in price on a greater amount of materials than he agreed to furnish.


text:
    John J. Hanrahan, Appellee, v. F. Salter & Company, Appellant.
    Gen. No. 18,363.
    1. Landlord and tenant, § 250*—who liable as landlord for injuries resulting from defective condition of premises. One who accepts an assignment of a lease from the original lessee and executes a lease demising the premises for a term expiring when the original lease expires, held to be a landlord and liable as such for injuries resulting to a pedestrian by the falling of a defective wooden awning suspended over the sidewalk in front of the premises.
    2. Landlord and tenant, § 426*—relation between lessee and his grantee of residue of term. Whether, as between a party who has received an assignment of a lease and his lessee for the residue of the term, the former is a landlord or a mere assignor of a lease depends upon the intention of the parties.
    3. Damages, § 110*—when not ■ excessive, for personal injuries. Verdict for three thousand dollars for injuries which caused pain in chest and neck for three years and permanent injuries, such as a “kink” or prominence in the back, crookedness of right arm and loss of freedom of motion of right elbow, held not excessive.
    4. Appeal and error, § 1735*—when decision on former appeal not res adjudicata. Decision of Appellate Court on a prior appeal remanding cause on the ground that declaration did not state a good cause of action against one defendant, held not res adjudieata on question of liability of the other defendant, such question not having been considered and the parties and the evidence being different.
    Appeal from the Superior Court of Cook county; the Hon. Albert C. Barres, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Arnott Stubblefield, for appellant.
    John C. King and James D. Power, for appellee.
   Mr. Justice Gridley

delivered the opinion of the court.

This action was originally commenced by appellee, plaintiff below, in May, 1904, against F. Salter & Company, a corporation, hereinafter called Salter & Co., appellánt, and the City of Chicago, Frank Salter and Dave Heyman, as defendants, to recover damages for personal injuries, occasioned by the falling upon plaintiff of a defective and dilapidated wooden awning suspended over the sidewalk from a building at No. 6700 Stony Island avenue (also known as Jackson Park avenue), which avenue was a public highway in the city of Chicago. Plaintiff alleged in the additional count of his declaration, inter alia, that prior to the day of the accident Salter & Co. was the owner of the building, to which was attached an awning, which extended over and above the sidewalk and under which pedestrians were accustomed to pass; that long prior to said day, and prior to and at the time of the leasing or letting of the building thereinafter referred to, Salter & Co. “wrongfully and negligently permitted” the awning to be and remain in such defective and insecure construction, and in such an old, rotten, weak and dilapidated condition, that it was liable to fall down upon pedestrians, and which said condition “amounted to a nuisance,” all of which facts were known or could have been known by Salter & Co. by the exercise of ordinary care; that prior to the day of the accident and while the awning was in said condition, Salter & Co. “negligently leased” the building, including the awning, to Heyman and Heironimus, to be used as a saloon, and they took possession of the same and remained in possession from thence to and including the time of the injury complained of; and that while plaintiff was walking along and upon said sidewalk and under said awning, and while exercising ordinary care for his own safety, said awning, as a direct result and in consequence of said defective condition, broke, collapsed and fell upon plaintiff, and severely and permanently injured him. To plaintiff’s declaration Salter & Co. pleaded the general issue and special pleas to the effect that at the time of the injuries complained of it was not in possession or control of the said building.

There have been three jury trials of this case. During the first trial, in July, 1907, the plaintiff discontinued the action as to the defendants Frank Salter and Dave Heyman, and subsequently the jury returned a verdict finding Salter & Co. and the City of Chicago guilty and assessing plaintiff’s damages at five thousand dollars. Plaintiff remitted one thousand five hundred dollars and judgment for three thousand five hundred dollars was entered against both defendants. Both appealed to this court, and in December, 1908, this court reversed the judgment and remanded the cause, on the grounds, as stated in the opinion (145 Ill. App. 38), that the declaration did not state a cause of action against the City of Chicago, and that the trial court erred in refusing to permit plaintiff to answer certain questions asked of him on cross-examination. The transcript of the record now before us discloses that on the second trial, in October, 1911, the jury returned a verdict finding Salter & Co. guilty and assessing plaintiff’s damages at one thousand dollars; that Salter & Co. moved for a new trial, and plaintiff also moved for a new trial as to the City of Chicago, and that both motions were sustained and a new trial awarded. On the third trial, at the conclusion of plaintiff’s case and on motion of the City of Chicago, the court instructed the jury to find the City not guilty, and the jury thereupon returned a verdict accordingly and a judgment in favor of the City for costs was subsequently entered. At the conclusion of plaintiff’s case, also, and again at the conclusion of all the evidence, Salter & Co. moved for á directed verdict in its favor, but the motions were severally denied and exceptions taken. The jury returned a verdict finding Salter & Co. guilty and assessing plaintiff’s damages at three thousand dollars, and on December 23, 1911, the court entered judgment on the verdict, which judgment appellant, Salter & Co., seeks by this appeal to reverse.

The two principal contentions urged by counsel for Salter & Co. are (1) that Salter & Co. did not, at the time of the accident, or at any time, have any ownership, possession or control of the building or premises in question, and did not in law execute a lease of the premises with a nuisance thereon to Heironimus & Heyman, and, hence, is not liable for the injuries sustained by plaintiff, and (2) that the damages awarded by the jury are excessive.

As to the first contention, counsel for plaintiff argue at the outset that, inasmuch as this court on appeal reversed the judgment entered on the first trial and remanded the' cause on the ground that the declaration did not state a good cause of action against the City of Chicago, that decision is conclusive of the question that the case was properly submitted to the jury and that the jury might properly find for the plaintiff as against Salter & Co., and that the question of the liability of Salter & Co., as a matter of law, is no longer open, but is res adjudicata. Counsel for plaintiff, in support of their position, cite the case of Turck v. Chicago, R. I. & P. Ry. Co., 152 Ill. App. 488. In that case it appeared that, on a former appeal taken by the defendant from a judgment against it on the first trial, the Appellate "Court had held that the trial court erred in giving a certain instruction for the plaintiff, and for that error that judgment was reversed and the cause remanded. When the case was tried the second time, by stipulation all of the evidence on the first trial was read, and no additional evidence was offered by either party, and plaintiff again obtained a verdict and judgment, and defendant again appealed. On the second appeal the Appellate Court held in effect that the question, whether on the same evidence the jury might properly find the defendant guilty, had been determined in favor of the plaintiff by the court on the former appeal remanding the cause. In the present case the evidence heard on the third trial is not the same as that presented on the first trial and which was before this court on the former appeal, and the parties now before this court are not the same. Furthermore, this court in its decision on the former appeal made no reference to the particular questions then presented for its decision on behalf of Salter & Co., and seemingly did not consider them. And we are of the opinion that both of the points urged by counsel for Salter & Co. are now properly before us for consideration and decision. Casey v. Reedy Elevator Mfg. Co., 166 Ill. App. 595, 598; Jachson v. Glos, 249 Ill. 388, 392. In the Jachson case, supra, it is said: “If an appellant or plaintiff in error, by his assignment of errors and brief and argument, presents questions which are not considered or decided by the court and the judgment is reversed on other grounds, he will, of course, not be concluded as to them on the second appeal.”

It is admitted by counsel for Salter & Co. in his printed brief and argument that plaintiff on the last trial introduced evidence to show that the wooden awning projected out over the sidewalk from the building for about ten feet and was about ten feet above the sidewalk; that it had been built about five or six years before the accident and had become “rotten and decayed;” that this condition existed on and prior to August 20, 1903 (the date of the written lease of the building from Salter & Co. to Heironimus and Hey-man, hereinafter mentioned); that on December 12, 1903, plaintiff, while walking on Stony Island avenue under the awning, was knocked down by the falling upon him of the awning; that when the awning was removed from him by persons who came to his assistance it “fell to pieces,” and that the boards of the awning “were rotted;” and that plaintiff was severely injured. Plaintiff testified that as a result of the accident he was in the hospital about two weeks and while there suffered great pain; that he had to remain at home for about six months, during which time he could neither lie in bed for any long period of time nor walk for more than ten minutes at a time; that the pain in his chest and neck continued for about three years; that his neck is still stiff and that he still has a “kink” or prominence in his back; that he has been unable to stand up straight since the accident; that his right arm is crooked with less freedom of motion and about two inches shorter than before the accident; that at the time of the trial he was receiving three dollars per day as wages, which is nearly as much as he was receiving at the time of the accident. Two physicians testified as to the kink or prominence in plaintiff’s back and that the condition was permanent, and one of these physicians and another physician testified as to the limitation of motion in plaintiff’s right elbow and that the condition was permanent. The evidence introduced by Salter & Co. was confined, principally, to the endeavor to show that it did not own, possess or control the building on the day of the accident or at' any time prior thereto. ■

On this point the facts disclosed by the evidence are as follows: The ground upon which the building stood was owned by the Bass estate, and the premises were in the possession of E. K. Hand, a saloonkeeper, as lessee, from 1894 to August 20, 1903. The last lease which Hand received was dated May 1, 1903, was signed by “R. P. Bass, executor, by John F. Bass,” and by Hand, and by it the lessor demised and leased a “space of ground,” described by metes and bounds, with the appurtenances, to Hand, as lessee, for a term of two years, expiring April 30, 1905, at a monthly rental of fifty dollars. Hand testified that E. A. Hartman erected the building on the land; that he (Hand) acquired the building about two years after Hartman built it and had been in possession thereof from 1894 down to August, 1903. The lease above mentioned was introduced in evidence and below the signatures the following undated endorsement appeared: “In consideration of one dollar and other valuable considerations, I hereby assign all my right, title and interest in .the within lease to F. Salter & Co., a corporation. (Signed) E. K. Hand.” On August 20, 1903, Hand sold the stock of goods which he had in the saloon to the firm of Heironimus & Heyman, with the understanding of the latter that they would get a lease of the premises, and on said day Hand surrendered possession of the same to said firm, and they continued in possession until December 1,1903, when Heyman alone obtained possession, which he still retained at the time of the third trial. There was also introduced in evidence, as “Plaintiff’s Exhibit 1,” a written lease of said building, together with all bar fixtures, tables, chairs and all restaurant fixtures, to A. G-. Heironimus and D. A. Heyman, dated August 25,1903, for the period from August 20,1903, to April 30,1905, “subject however to the conditions embodied in the ground lease.” This lease was signed “F. Salter & Co., F. Salter, Pres.,” and bore the imprint of the corporate seal of Salter & Co., and provided that there should be paid to Salter & Co., “as rent for the said demised premises,” the sum of one hundred and fifty dollars per month for the months of May, June, July, August, September and October, and the sum of seventy-five dollars per month for the other months in the calendar year. The lessees covenanted that at the expiration of the term they would “yield up the said demised premises” to Salter & Co., and that if they should remain in possession thereof for ten days after notice of default, or after termination of “this lease,” they should be deemed guilty of “forcible detainer,” under the statute. There was also introduced in evidence, as “Defendant’s Exhibit 1,” what apparently is a duplicate of the above lease, and which was signed “Heironimus and Heyman, D. A. Heyman.” The rent mentioned in “Plaintiff’s Exhibit 1” was-paid during the entire term to Salter & Co.-, and Heyman, plaintiff’s witness, testified that he never had any other lease for the premises than that one, prior to December 12, 1903. Frank Salter, president of Salter & Co., testified on the first trial, and his testimony was read on the third trial by agreement, that he personally signed that lease, on behalf of Salter & Co., on August 20th; that “Mr. Hand came into my store and handed me this lease, and talked over the consideration, and I accepted the transfer of the ground lease at the same time,” and that the indorsement was made on the ground lease at the same time, August 20th. Heyman further testified that on the day of the sale by Hand of the saloon stock of goods to his (Hey-man’s) firm, August. 20th, and before his firm was let into possession, Hand told him that he (Hand) owed Salter & Co. a certain amount of money, and that he (Hand) was going to turn over the building to Salter & Co., so that Salter & Co. could get the amount of the debt that he owed Salter & Co. out of the additional rent which Heyman’s firm would pay, over and above the amount of rent reserved! in the ground lease, that Heyman’s firm would get a lease from Salter & Co., and not from Hand, whereby they would be allowed to remain in possession until the end of the term mentioned in the ground lease, namely, April 30,1905, and that Heyman’s firm would pay rent to Salter & Co. and not to him (Hand); that W. S. Baker, vice-president of Salter & Co., was present at this conversation, and that Baker told Heyrnan at that time that Salter & Co. would make the lease to Heyman’s firm; that Hand did not at any time tell him (Heyrnan) that Hand would give Heyman’s firm a lease of the premises, and that Hand never made such a lease; and that Heyman’s firm never at any time agreed to pay any rent to Hand and never conducted any negotiations for a lease with anyone except Salter & Co. Fred Oesterle, Hand’s, bartender, testified that, “a couple of days” before August 20th, Hand told Heyrnan, in Baker’s presence, that Heyrnan “would have to do business with Salter & Co. Naturally pay the rent to Salter & Co.” The testimony of Hand and Baker, witnesses called on behalf of Salter & Co., is quite conflicting with the testimony of plaintiff’s witnesses as above set forth. Hand, while admitting that he never signed a lease to the firm of Heironimus & Hey-man, testified that when he sold his stock to them “nothing was said about Salter & Co. giving them a lease;” that he (Hand) said that the firm could have the premises until the expiration of the ground lease, and that he (Hand) would give them a leaser that it was subsequent to the time when he surrendered possession to said firm that he first said anything to them about their getting a lease of the premises from Salter & Co., and that he made that arrangement with Salter & Co. after he had sold out and delivered possession to said firm. Baker testified that on August 20th he was in the building and assisted Hand, and said firm, in making an inventory of Hand’s stock of goods; that on that day he did not, nor did he hear Hand, tell either of the members of said firm that they could get a lease from Salter & Co.; that on the next day he asked Hand if the latter could do something to secure his debt to Salter & Co., and that Hand replied that he would arrange to do it out of the rent “as soon as he got the leases signed up;” and that prior to the time Hand sold out the saloon Salter & Co. had no interest therein, or in the premises, other than that of a creditor of Hand. Both Hand and Baker testified that it was not until August 25th that the ground lease was assigned by Hand to Salter & Co. and the lease, in duplicate, from Salter & Co. to Heironimus & Heyman executed.

It is contended by counsel for plaintiff that when on August 20, 1903, Salter & Co. accepted an assignment of the ground lease from Hand and made a written lease of the building to Heironimus & Heyman, Salter & Co. acquired the ownership of said building, subject to the conditions of the ground lease, and the relation of landlord and tenant was established between Salter & Co. and Heironimus and Heyman. And counsel for plaintiff further contend that Salter & Co. is liable, as such owner or landlord, for the injuries to plaintiff, for the reason that it is the settled law of this State that the owner or landlord of leased premises is liable for injuries inflicted by reason of neglect or failure to keep the premises in repair, if the dangerous or defective condition by which the injury was occasioned existed when the premises were leased, or if that which occasioned the injury was a nuisance and was upon the premises when the lease was executed. Citing West Chicago Masonic Ass’n v. Cohn, 192 Ill. 210, 218; City of Peoria v. Simpson, 110 Ill. 294; Gridley v. City of Bloomington, 68 Ill. 47, 51; Everett v. Foley, 132 Ill. App, 438, 443. Counsel for Salter & Co. concedes that this statement of the law is substantially correct, but contends that the rule does not apply, for the reason that, under a proper construction of the facts as shown in this record, Salter & Co. did not own, possess or control the premises, never was in actual possession thereof, never assumed any control thereof, and did not in law execute any lease of the premises, but only an assignment, and as a legal consequence was not a landlord in contemplation of law, and, hence, is not liable. Counsel argues that while the instrument was in the form of a lease, executed by Salter & Co. and dated August 25, 1903, by which was demised the building, etc., for the period ending April 30, 1905, the same day the ground lease expired, it was in legal effect an assignment, because Salter & Co. having demised the building to the end of the term of the ground lease, had no reversionary right or interest therein, and the true relationship between the parties to the instrument was not that of landlord and tenant, but that of assignor and assignee, and that if Salter & Co. was an assignor rather than a lessor or landlord it is not legally liable. Counsel cites in support of his contention, among others, the cases of Sexton v. Chicago Storage Co., 129 Ill. 318, 326, and Taylor v. Marshall, 255 Ill. 545, 547.

When Salter & Co. accepted the assignment to it of the ground lease from Hand it stepped into the shoes, so to speak, of Hand, as original lessee, and as such lessee it executed the'lease, or instrument, dated August 25, 1903, demising the building, etc., to Heironimus and Heyman, for a term expiring when the original lease expired, but at a considerably increased rental. In the Sexton case, supra, it is said (italics ours):

“The general principle, as held by all the authorities, is, that where the lessee assigns his whole estate, without reserving to himself a reversion therein, a privity of estate is at once created between his assignee and the original lessor, and the latter then has a right of action directly against the assignee on the covenants running with the land, one of which is that to pay rent; but if the lessee sub-lets the premises, reserving or retaining any reversion, however small, the privity of estate between the sub-lessee and the original landlord is not established, and the latter has no right of action against the former, there being neither privity of contract nor privity of estate between them. The chief difficulty has been in determining what constitutes such reservation of a reversion. * * * Where all of the lessee’s estate is transferred, the instrument will operate as an assignment, notwithstanding that words of demise instead of assignment are used, and notwithstanding the reservation of a rent to the grantor, and a right of re-entry on the non-payment of rent or the non-performance of the other covenants contained in it. * * * Undoubtedly many cases may be found wherein the lessee has granted to another party his entire term, retaining no reversionary interest in himself, and it has been held the relation as between the parties was that of landlord and tenant, * * * because such was clearly the intention of the parties; but this was the result of contract, only, and not conclusive upon the original landlord, since he was not a party to it.”

In Stewart v. Long Island R. Co., 102 N. Y. 601, 607, it is said (italics ours) :

“Where a lessee of land leases the same land to a third party, the question has often arisen whether the second lease is in legal effect an assignment of the original lease, or a mere sub-lease. The question has frequently, and probably most generally, arisen between the lessee and his transferee, and much confusion will be avoided by observing the distinction between these cases, and cases where the question has been between the transferee and the original landlord. * * * As between the original lessee and his lessee or transferee, even though the original lessee demises his whole term, if the parties intend a lease, the relation of landlord and tenant, as to all but strict reversionary rights, will arise between them. The effect, therefore, of a demise by a lessee for a period equal to or exceeding his whole term is to divest him of any reversionary right and render his lessee liable, as assignee, to the original lessor, but at the same time the relation of landlord and tenant is created between the parties to the second demise, if they so intended.”

This last sentence in the opinion of the Stewart case is quoted by our Supreme Court in its opinion in the Sexton case. In Craig v. Summers, 47 Minn. 189, 192, it is said: “It is also well settled that the same instrument may in law create an assignment of the term, as between the original lessor and the assignee, and also the relation of landlord and tenant between the parties to the second demise.”

In 18 Am. & Eng. Ency. Law (2d Ed.) p. 658, it is said: “While one receiving from a lessee the interest in his whole term incurs the liability of an assignee to the original lessor, the transaction may create, if so intended, the relation of landlord and tenant between the lessee and the sub-lessee, on the principle of a reversion by estoppel, so as to confer on the original lessee, as against the sub-lessee, the rights and remedies of a landlord.”

It would seem from the above citations of authority that, in the present case, the question whether Salter & Co., at the time it executed the instrument dated August 25,1903, to Heironimus & Heyman, became, as between the parties to that instrument, a landlord or a mere assignor of a lease, depends upon the intention of the parties. What was that intention, as disclosed from the evidence ? The instrument provided that the rent reserved therein, which was considerably larger than the rent reserved in the ground lease, should be paid to Salter & Co. And the testimony shows that the reason for this was that Hand owed a debt to Salter & Co., and the difference between the amount of the rent reserved in the instrument and that reserved in the ground lease was to go to Salter & Co. in liquidation of that debt. Furthermore, it was provided in the instrument that possession of the building should be surrendered to Salter & Co. at the expiration of the term mentioned in the instrument, and that Salter & Co. should have the right of re-entry as against Heironimus & Heyman for conditions broken, and that a holding over should be considered as a forcible detainer. We are of the opinion that it was clearly the intention of the parties to that instrument, at the time of its execution, that Salter & Co. should be considered as a landlord, with the rights and remedies of a landlord (Dunlap v. Bullard, 131 Mass. 161, 162), and this intention was further made manifest by the payment to Salter & Co., each month during the term mentioned, of the rent reserved. And Salter & Co. had an especial reason for acting as a landlord. By so doing it expected to have, during the term, an old debt owing- to it paid. If Salter & Co. wanted to become a landlord, and got the rights and privileges thereof, we think Salter & Co. should be held to have assumed the duties and liabilities thereof under the law. And we are of the opinion that the evidence shows that the dangerous and defective condition of the awning, by the fall of which plaintiff was injured, existed, and amounted to a nuisance, on and prior to August 20, 1903, and on and prior to August 25, 1903.

Counsel for Salter & Co. further contends that on August 20, 1903, when Hand was still in possession under the ground lease, that Hand delivered possession of the premises to Heironimus & Heyman and made a verbal lease to them for the unexpired term mentioned in the ground lease, before the written assignment of the ground lease was made by Hand to Salter & Co., and before Salter & Co. executed the lease or instrument dated August 25th, and, hence, Hand had nothing to assign to Salter & Co., and the said written assignment of the ground lease passed nothing to Salter & Co., and, as a consequence, Salter & Co. never had any title or interest in the premises. It is a sufficient answer to this contention to say that the question whether Hand made such a verbal lease was for the jury to decide, and that by their verdict they seemingly decided that question in the negative, and we think that it is shown by the preponderance of the evidence that no such verbal lease was made.

We are also of the opinion that no prejudicial error was committed by the trial court in refusing to give certain instructions offered by Salter & Co., as contended by counsel. And we do not think that the damages awarded by the jury are excessive. The judgment of the Superior Court is affirmed.

Affirmed.


author: Mr. Justice Gbidley

text:
    The Quality Car Company, Appellee, v. J. J. Corkill, Appellant.
    Gen. No. 18,375.
    (Not to he reported in full.)
    Appeal from the. Municipal Court of Chicago; the Hon. Max Ebbkhabdt, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by The Quality Car Company, a corporation, against J. J. Corkill to recover on a promissory note given by defendant. From a judgment for plaintiff for two thousand dollars, defendant appeals.
    Adams, Cahdee, Steere & Hawley, for appellant.
    Miller, Gorham & Wales, for appellee.

      See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

   Mr. Justice Gbidley

delivered the opinion of the court.

Abstract of the Decision.

1. Bills and notes, § 27 —sufficiency of delivery. A delivery of a note to an agent of the payee is a sufficient delivery.

2. Bills and notes, § 121*—authority to indorse. No particular form of appointment is necessary to authorize a person to indorse a promissory note as agent.

3. Bills and notes, § 375*—"burden of proof. Introduction of a promissory note in evidence without objection makes a prima facie case for plaintiff, and the burden of proving that the note was without consideration and was a mere accommodation note is upon the defendant.


text:
    Mary Collins, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 18,383.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. Mazzini Sltjsseb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Affirmed.
    Opinion filed October 9, 1913.
    Statement of the Case.
    Action by Mary Collins against Chicago City Railway Company for damages for personal injuries. From a judgment for plaintiff for two thousand dollars, defendant appeals.
    James G. Condon and Watson J. Ferry, for appellants; Leonard A. Busby, of counsel.
    Blaisdell & Ranes, for appellees; H. F. Brewer, of counsel.

      See Illinois Notes Digest, Veis. XI to XIV, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

Abstract of the Decision.

1. Appeal and ebbob, § 1447 —what constitutes prejudicial error. Where two counts of a declaration for personal injuries each state a good cause of action which there is evidence to support, the refusal of the court to instruct the jury to find the defendant not guilty under a third count charging “wilful and wanton misconduct,” which is unsupported by the evidence, is not prejudicial error warranting reversal.

2. Street railroads, § 62*—what constitutes negligence in operation. In an action for personal injuries sustained by a woman while attempting to board an electric street car, due to the jolting or sudden starting of such car, held that the question as to whether the defendant was guilty of negligence was for the jury, and that their verdict was not manifestly against the evidence.

3. Appeal and ebbob, § 1490*—what exclusion of evidence is harmless. Where the conductor of the car had testified that the motorman was trying to put plaintiff on the car and “she refused,” causing a delay of several minutes, the conductor, in answer to a further question as to why the car was delayed, replied “because she refused to get on.” On motion of plaintiff this answer was stricken. Held, the exclusion of this latter statement was not prejudicial error, even assuming that the statement was one of fact and not an expression of an opinion or conclusion.

4. Instructions, § 138*—-when requested instructions need not he given. The refusal to give certain instructions is not prejudicial error where the matter is sufficiently covered by the instructions given;