author: Mr. Justice Brown

text:
    Lillie B. Murray, Appellee, v. Metropolitan Trust & Savings Bank, Appellant.
    Gen. No. 15,413.
    1. Negotiable instruments—effect of want of' consideration. Notes, if genuine, are good against the maker in the hands of an innocent purchaser for value (and this although the failure of consideration is fatal to the security), unless they are rendered void in such hands by falling under the provisions of section 10 of the Act of March 18, 1874, revising the law in relation to negotiable paper.
    2. Negotiable instruments—fraud in consideration as defense against innocent holder. Strict construction is given to the defense of fraud where interposed as against an innocent holder. Fraud in relation to the consideration merely will not invalidate negotiable paper in such hands.
    3. Negotiable instruments—when fraud in consideration not a defense as against innocent holder. Reasonable care must be exercised by the maker in the transaction which results in the note, or the defense of fraud and circumvention is not allowed him as against an innocent holder.

      4. Negotiable instruments—when equity should not take jurisdiction of fraud in consideration as against innocent holder. In this proceeding to foreclose a trust deed securing notes which were in the hands of the complainant as an innocent holder, it is not obligatory upon, nor desirable or proper that a court of equity should determine the question as to whether - the notes in question were void because of fraud in the consideration, the defense of want of consideration being established and being sufficient to determine and settle the pending proceeding.
    Bill in chancery. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.
    Heard in this court at the March term, 1909.
    Decree modified and affirmed.
    Opinion filed January 23, 1911.
    Statement by the Court. This is an appeal from certain portions of a decree in equity of the Circuit Court, entered December 14, 1898. The decree was entered in a suit by bill in chancery of Lillie B. Murray v. The Metropolitan Trust & Savings Bank, William Anderson and others, in which suit there was also a cross-bill of William Anderson v. Lillie B. Murray and others, and a cross-bill of The Metropolitan Trust & Savings Bank v. Lillie B. Murray and others, both of which cross-bills were also disposed of by the decree.
    The original bill prayed that William Anderson and The Metropolitan Trust & Savings Bank might each be enjoined from proceeding by foreclosure, or otherwise, against the complainant Murray on either of two principal notes (each with one interest coupon outstanding), each purporting to be secured by a trust deed on certain real estate in Chicago belonging to said Murray, until such time as the court might ascertain the rightful owner of the lien on the premises, which the complainant alleged only existed by virtue of one of said sets of notes and the trust deed securing the same. The bill prayed that the court should declare one or the other set of notes void, and require the party who might hold the same to cancel them.
    One of the said principal notes was for $2,500 and signed by Mary J. Howes. It was dated June 27,1898, and was originally due by its terms on June 27, 1903. Connected with it was an “extension interest note” for $68.75 signed by Lillie B. Murray and husband. These notes were owned by William Anderson. The other principal note was for $2,500 and was dated June 27, 1903, and was signed by Lillie B. Murray and husband, with an interest coupon of $68.75, also signed by them, attached. These notes were held by the Metropolitan Trust & Savings Bank.
    Each of these principal notes and interest purported to be secured by a trust deed of the real estate in question; the Anderson note by a trust deed dated June 27,1898, signed by one Mary J. Howes, of whom Lillie B. Murray had purchased the property in 1900, then assuming as a part of the purchase price the Anderson indebtedness. The Metropolitan Trust & Savings Bank note and interest purported to be secured by a trust deed of the date of June 27,1903, signed by Lillie B. Murray and husband, and describing the note and interest coupon (and other like interest coupons) held by said Bank.
    The bill alleged that one Lewis acted as the agent of Mary A. Howes when Mrs. Murray purchased the property, and appeared to act as the agent of the holder of the Howes note and trust deed, and that after the purchase and assumption by Mrs. Murray of the Howes indebtedness she paid the interest on the notes at Lewis ’ office and received from him the interest coupon notes. It also alleges that when the Howes note became due by its terms in June, 1903, she applied to Lewis for an extension of said loan on the property for three years, and Lewis told her that the extension could be made and that he would-prepare the papers; that the said Lewis did prepare certain papers and informed her that said papers were intended to and formed a part of the papers required in making the extension, and that whatever papers she signed she supposed to be only the papers required to be signed by her in order to effect the extension of the said loan, and. that she did sign certain interest notes, each for $68.75, with the intention of securing the future interest upon the principal note of $2,500, which was still a lien on said premises. Of these she had paid and received canceled all but one; that at the time of the maturity of the indebtednesss as extended she first learned of the existence and ownership of the two sets of notes above described, and that she filed the bill for the purpose of ascertaining which of the parties claiming to hold a lien on her property was actually entitled to such a lien.
    William Anderson and The Metropolitan Trust & Savings Bank respectively answered and each filed a cross-bill.
    The record is by praecipe and the answer and cross-bill of William Anderson do not appear, but the recitals of the first decree in the cause show that the ¡cross-bill prayed the foreclosure of the Howes trust deed. The Metropolitan Trust & Savings Bank answered on information and belief that Lillie B. Murray executed the note and trust deed held by the Bank for the purpose of evidencing the indebtedness of $2,500 which she had assumed in the purchase from Mary J. Howes and retiring the trust deed and notes which had been made by Mary J. Howes on June 27, 1898, and that the Bank was a bona fide holder for value of the notes and trust deed held by it. The cross-bill of The Metropolitan Trust & Savings Bank alleges the due execution and delivery by Lillie B. Murray of the note, and by Lillie B. Murray and her husband of the trust deed held by the Bank, and that the Bank became the owner and legal holder of said notes and trust deed before the maturity thereof. It prays the foreclosure thereof by decree of the court. The cross-bills were answered by Lillie B. Murray and the other respective defendants, and the whole cause (original bill and cross-bills) was referred to a master in chancery of the Circuit Court. The master took testimony and reported his conclusions to the court, the essence of which was that the William Anderson note and trust deed constituted a valid lien against the premises in question and should be foreclosed; that Lillie B. Murray executed the papers held by The Metropolitan Trust & Savings Bank, but that the same were executed without any consideration, and that consequently the trust deed was null and void and should be cancelled. Further, that Lewis procured the signing of all the papers held by the Bank surreptitiously and fraudulently and without the knowledge and consent of Lillie B. Murray, and that therefore the note and coupon interest note held by the Bank were so tainted with fraud that the bank could not enforce them. The master therefore recommended a decree ordering a foreclosure under the Anderson trust deed, and ordering further that the trust deed held by The Metropolitan Trust & Savings Bank should be held a cloud on the complainant Murray’s title, to be delivered up for cancellation and release, and that the note and interest coupon held by the Bank should also be delivered up to be cancelled.
    To this report the Metropolitan Trust & Savings Bank filed objections, which were afterward allowed to stand as exceptions. They complained of the finding in the report that the notes and trust deed held by it were executed by Lillie B. Murray without consideration and that consequently the said trust deed was null and void and should be cancelled; and of the findings that the said Murray did not know she had signed said notes and trust deed, and that Lewis procured the signing of them surreptitiously and fraudulently; and of the findings that the said notes were so tainted with fraud that the Bank could not enforce them; and complained also of the recommendation that the trust deed should be decreed to be a cloud on Murray’s title, to be delivered up for cancellation, and that the notes should be also delivered up to be cancelled. Further the Bank claimed that the master should have found that the cross-complainant, The Metropolitan Trust and Savings Bank, was entitled to a decree or judgment against said Murray as in a proceeding at law for the amount advanced as an innocent purchaser of said notes on the same.
    The Circuit Court on hearing overruled the said exceptions to the master’s report and confirmed the same, adopting his recommendations. The findings of the decree follow those of the master. It provided for the foreclosure of the Anderson trust deed and found that the notes, as well as the trust deed held by the Bank, were executed without consideration and consequently the trust deed should be cancelled. Further, it found that “Lillie B. Murray went to the office of Lewis on June 27, 1903, for the purpose of executing the extension agreement and the interest coupon notes bearing that date held by William Anderson, and not for the purpose of executing said principal and coupon interest notes now held by said Metropolitan Trust and Savings Bank; that she was not requested to sign said last mentioned principal and interest notes in their true meaning and did not wittingly sign the same, and did not know that she had done so; that no consideration passed to her at the time she signed these last mentioned principal and interest notes, except the extension of the loan on the Anderson papers; that Oscar A. Lewis procured the signing of said last mentioned principal notes surreptitiously and fraudulently for the purpose of defrauding the said Lillie B. Murray, and without her knowledge or consent and without consideration to her, and that she thought she was signing the papers for the Anderson extension only, and was induced to sign the said Metropolitan Bank papers with that belief.”
    As the complement of this finding the decree declared the note and interest coupon in question null and void, and ordered the said bank to deliver them up to said Lillie B. Murray for cancellation and to be perpetually enjoined from selling, transferring, using or disposing of the same. The cross-bill of The Metropolitan Bank was by the decree dismissed with costs.
    The Metropolitan Trust & Savings Bank prayed for and was allowed an appeal to this court from that portion of said decree overruling the exceptions of said Metropolitan Trust & Savings Bank to the master’s report, and from that portion of the decree which finds that the said Lillie B. Murray executed the trust deed dated June 27, 1903, and the principal note for $2,500 of that date, and the interest coupons, without any consideration, and decrees that the said trust deed is null and void, and that the same should be cancelled and released, and from that portion of the decree which finds that the said principal note for $2,500, bearing date of June 27, 1903, and owned by The Metropolitan Trust & Savings Bank, was unwittingly signed by the said Lillie B. Murray, that she did not know that she signed the same, and that no consideration passed to her at the time of the execution thereof, and that the signing thereof was procured surreptitiously and fraudulently for the purpose of defrauding the said Lillie B. Murray and without her knowledge and consent ; and from that portion of the decree finding that the said principal note for $2,50Q dated June 27, 1903, and held by said Metropolitan Trust & Savings Bank is null and void and of no force and effect, and ordering that the same be delivered up by the said Metropolitan Trust & Savings Bank to the said Lillie B. . Murray for cancellation.
    In the assignments of error in this court the appellant also claims that the court below erred in that it did not enter a decree in favor of the Metropolitan Trust and Savings Bank for the amount due on the principal note and interest coupons introduced in evidence on behalf of said Metropolitan Trust and Savings Bank, and its counsel argues in favor of the same proposition.
    Horton & Miller, for appellant.
    J. Henry Kraft, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

The full statement prefixed to this opinion shows that no question is made in this appeal concerning that portion of the decree in this cause which holds valid the Howes note for $2,500 (with its accompanying coupon) owned by Anderson and orders the foreclosure of the appellant’s property on the same. The decree was plainly right in this respect and is not appealed from.

We think it was also right under the evidence, in those findings which are appealed from, that declare that Lillie B. Murray executed the trust deed dated June 27,1903, and the note for $2,500 of that date, with its accompanying interest coupons, without any consideration (if it be assumed that she executed them at all), and that the said trust deed is consequently null and void and should be cancelled and released, and also right therefore in ordering the cross-bill of the appellant dismissed with costs.

But the decree goes further. Although the appellant, The Metropolitan Trust & Savings Bank, is a holder for value and presumably an innocent holder of the note and coupon in question, the decree, after finding that Lillie B. Murray did actually execute them, orders that they be held null and void and be delivered up by the appellant Bank to said Lillie B. Murray for cancellation. This order is based on the findings quoted at length in the statement prefixed to this opinion. It is not necessary to discuss whether these findings in themselves can be construed as sufficient- to support the order of which they form the basis, because if a construction be given them which would make them so sufficient, they are unsupported by the evidence.

It is clear that although executed without consideration these notes, if genuine, are good against the maker in the hands of an innocent purchaser for value (and this although the failure of consideration is fatal to the security), unless they are rendered void in such hands by falling under the provisions of section 10 of the Act of March 18,1874, revising the law in relation to negotiable paper, which section re-enacted an already existing provision of the statutes of Illinois dating at least from 1827. The provision is: “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 by any assignee of such instrument.”

To sustain the usefulness of negotiable instruments, so important in the commercial world, the Supreme Court of Illinois, early adopted and has constantly held to a strict construction of the defense thus given against innocent holders of notes originally tainted with fraud. It held in Woods v. Hynes, 1 Scam. 103, in 1833, that fraud in relation to the consideration or to the contract would not be such a defense, and repeated the holding in Mulford v. Shepard, 1 Scam. 583.

In Latham v. Smith, 45 Ill. 25, the court held that misrepresentations relating to the legal effect of an instrument and not to its form or character, were not a sufficient ground of defense, and that if the maker of the note involved could read, the presumption must be indulged that he read it before he attached his signature to it. In Shipley v. Carroll, 45 Ill. 285, the maker of a note was held to be liable to an innocent holder for value, although the possession of it after it was made was secured by “stealth which no doubt embraced fraud.”

In Elliott v. Levings, 54 Ill. 213, it was held that a maker would be liable who did not know he was signing such a note as actually was made, but thought it was only to be paid on a contingency, which did not occur.

In Clarke v. Johnson, 54 Ill. 296, it was held that the stealing of a note from the maker after it was made and before it was delivered, would not prevent its being good in the hands of an innocent holder for value. And to the same general purport are numerous other cases, such as Adams v. Wooldridge, 3 Scam. 255; Easter v. Minard, 26 Ill. 495, and Martina v. Muhlke, 186 Ill. 327. In this last case the notes secured by a trust deed, although given without consideration, were held good, while the trust deed was ordered canceled. And reasonable care must be exercised by the maker in the transaction which results in the note, or the defense of fraud and circumvention is not allowed him as against an innocent holder. Taylor v. Atchison, 54 Ill. 196; Leach v. Nichols, 55 Ill. 273; Mead v. Munson, 60 Ill. 49; Swannell v. Watson, 71 Ill. 456; Homes v. Hale, 71 Ill. 552.

In Mead v. Munson the court said: “Under the proof we cannot infer the fraud and circumvention intended by the statute which shall void the note. To do so would be to offer a premium for gross negligence.

“The maker of the note could read and write with facility and could not have been imposed upon if he had exercised the most ordinary prudence.”

The defense of “fraud and circumvention” to negotiable paper is a purely legal and statutory one. Had there not been the matter of security involved in the case at bar it would not have been within the ordinary equitable jurisdiction of the court at all. It is true that once having taken cognizance of the cause, it was within the power of a court of equity to go on and adjust the rights of all parties to the controversy. But it was not in this case obligatory on it to do so; and in view of the extremely meagre and unsatisfactory evidence concerning the execution of the notes in question, presented by either party in the case at bar, we do not think it was desirable or proper for it to do so. For the same meagre and unsatisfactory evidence is relied on by the appellant to justify its demand for a money decree on these notes in its favor. It is true that in a suit at law, the presentation of the notes (and proof of signature, if denied) would make a prima facie case, and place on the defendant the burden of proving her defense. But the cross-bill of the appellant under the record in this case in equity was, we hold, properly dismissed. Its equitable justification was the claim of right to foreclose the security involved, That right was shown not to exist. We think, in view of the record in this case, that with the denial of the validity of the trust deed held by the Bank and the disT missal of its bill, the chancellor should have ended his adjudication of rights between the Metropolitan Trust & Savings Bank and Lillie B. Murray, leaving to the former the right to prosecute at law any claim that it may have been advised it had on the notes in question, and to the latter the right to resist the claim on the ground either of forgery, of fraud and circumvention, or of any other defense which she in her turn may have been advised was available to her. In such a litigation the questions of fact involved would be submitted to a jury, we might hope with greater precision and more enlightening evidence. The burden of proof would then, too, be properly distributed.

We have modified the decree in this case by changes which adjudicate somewhat differently the relative rights of appellant and appellee herein, in accordance with the views above expressed. The other provisions of the decree are of course unchanged. The form of the decree after modification is filed by us contemporaneously herewith.

As thus modified the decree of the Circuit Court is affirmed. In this court the costs are to be taxed against appellee, however. t

Decree modified and affirmed.

This case was considered and decided before Me. Justice Smith took his seat in the court, and he took no part therein.


source: Caselaw Access Project

license: Public Domain

text:
    Nicholas Verdon, Appellee, v. Nicholas Lessares, Appellant.
    Gen. No. 15,454.

      Vebdicts—when not disturbed as against the evidence. A verdict will not be set aside on review as against the evidence unless clearly and manifestly against its weight.
    Assumpsit. Appeal from the Circuit Court of Cook county; the Hon. Solon Philbrick, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    Miles J. Devine, for appellant; John T. Murray, of counsel.
    Haynie R. Pearson, for appellee; Samuel W. Jackson, of counsel.
   Mr. Justice Brown

delivered the opinion of the court.

The plaintiff in this case recovered a judgment against the defendant for $496 and costs, January 9, 1909. The suit was for wages claimed to be due. Prom this judgment the defendant has appealed and claims that the verdict was manifestly against the weight of the evidence, and that the court below therefore erred in not granting a new trial. The evidence was conflicting. The plaintiff himself swore that he had worked for the defendant at a certain rate of wages for over sixteen months, and had not been paid. The defend- ‘ ant swears that he paid him every week, and brings corroborating evidence of others, who say they saw him paid.

We think the question being one entirely of credibility, the jury and the court below could decide better than we where the real weight of the evidence lay.

We have examined the instructions as a whole, and do not think that the jury were incorrectly or insufficiently instructed, or that the refusal, complained of, of certain instructions, was injurious error.

Under the pleadings and evidence, there is no merit in the contention that the claim should have been defeated because, if it existed, it was a partnership debt of the defendant and another.

The judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Florentina Roman, Appellee, v. Ester Silbertrust, Appellant.
    Gen. No. 15,464.
    1. Appeals and ebbobs—when question of sufficiency of evidence saved for review. To preserve as a question of law, so that the Supreme Court can take cognizance of the point that no evidence in the case, with the legitimate inferences and implications to be drawn from it, furnishes any basis for a verdict for the plaintiff, a motion in writing for a directed verdict must he presented, accompanied by an instruction to find for the defendant, but the Appellate Court has the power and duty, op an assignment of error calling in question the ruling of the trial judge on the motion for a new trial, to pass on the facts, to weigh the evidence, that is; and if its weight is clearly and manifestly against the verdict, to do what the court below should have done and grant a new trial by a remandment for that purpose, or even, in proper cases, to reverse without remandment, and with a finding of fact conclusive of the controversy.
    2. Instp.tjctions—when repetitions upon question of damages will not reverse. Notwithstanding many instructions upon the question of damages are given, if they all contain correct statements of the law a reversal will not be awarded.
    Action for assault. Appeal from the Superior Court of Cook county; the Hon. Oscab B. Heabd, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    James A. Deming and Lynn, Baumer & House, for appellant.
    Symmes & Kirkland and H. M. Ashton, for appellee.
   Mr. Justice Brown

delivered the opinion of the court.

This is an appeal by the defendant, Ester Silbertrust, from a judgment of the Superior Court of Cook County for $1,075 against her, rendered on the verdict of a jury in an action for an alleged assault made upon the plaintiff and appellee, Florentina Eoman, by the agents of the defendant.

Complaints are made in the assignments of error and argument of the appellant: First, that the verdict is so manifestly against the weight of the evidence that the trial judge erred in not granting a new trial. Second, that the court below erred in its instructions to the jury. It is said that in five of them, given at the instance of the plaintiff, the question of damages in its various phases was kept too prominently before the jury. Counsel say: This “was an invitation to them (the jury) to allow punitive damages and tended to prejudice them against the defendant. It tended to smother the question of liability and to induce the jury to believe that all they had to do was to award damages.” One of these instructions on damages is also declared vicious, because it states the law in relation to punitive damages too broadly. Third, It is said that incorrect rulings were made by the trial judge in the admission and exclusion of evidence.

Of these grounds of attack upon the judgment, the first is the most serious and important. There is an absolutely irreconcilable conflict of testimony, and it may be that the jury erred in believing one set of witnesses rather than the other. Counsel for the appellee say in their argument that the appellant cannot raise that question in this court because a motion in writing for a directed verdict, accompanied by an instruction to find for the defendant, was not presented to the court by the defendant at the close of all the evidence. This shows an entire misapprehension of the law on this subject in this state. No such rule exists. To preserve as a question of law, so that the Supreme Court can take cognizance of the point that no evidence in the case, with the legitimate inferences and implications to be drawn from it, furnishes any basis for a verdict for the plaintiff, such a motion must be made, but the Appellate Court has the power and duty, on an assignment of error calling in question the ruling of the trial judge on the motion for a new trial, to pass on the facts, to weigh the evidence, that is; and if its weight is clearly and manifestly against the verdict, to do what the court below should have done and grant a new trial by a remandment for that purpose, or even, in proper eases, to reverse without remandment, and with a finding of fact conclusive of the controversy.

But naturally this court proceeds with reluctance and hesitation to pass on conflicting evidence which involves, as in the present case, the credibility of witnesses.

There was in this case, testimony which, if believed by the jury, warranted them in finding that two or more agents of the defendant, acting within the scope of their authority in the defendant’s business, and under her general instructions to reclaim and take away from plaintiff’s rooms certain furniture bought or leased (it matters not which) from the defendant, but not paid for according to the contract, violently assaulted and injured the plaintiff in the course of the transaction. This would render the defendant civilly liable.

There was certainly other testimony in direct contradiction of the plaintiff’s and which pictured the whole proceeding as one which would have been entirely peaceful except for the unresented bellicose action of the plaintiff, who, according to this version of the affair, was not the assaulted, but the assaulter. Without the sight or hearing of the witnesses the only reasonably certain deduction which we could make from the mere written record, would be that there was a fight at the place and time mentioned and that the respective parties were in it The jury had a better opportunity than we to judge of the relative truth of the stories told, and although we are far from asserting that the probability that their determination of this case was a correct one amounts to a moral certainty, we know of no better test than their view of it to apply to it. Therefore we shall not interfere with their verdict on the facts.

As to the instructions, we can see no reversible error in them. We cannot undertake to say that merely because more instructions, all correct statements of the law, were given on one subject than were actually necessary, the verdict should he set aside. Several instructions given at the defendant’s instance also correctly stated the law concerning damages, punitive and otherwise, and we do not think the jury were or could have been misled. The instructions on the subject of damages, taken together, seem to furnish a very fair exposition of the law, nor is any one of them reversibly erroneous.

We see nothing in the rulings on the admission or exclusion of evidence calling for discussion or justifying interference with the judgment. It is affirmed.

Affirmed.


author: Mr. Justice Smith

text:
    Joseph Connelly, Appellee, v. George A. Fuller Company, Appellant.
    Gen. No. 15,458.
    1. Negiugence—duty of general contractor. A general contractor erecting a building is obligated to exercise ordinary care not to injure persons lawfully working upon such building in connection with their employment by subcontractors.
    2. IrrsTEtrcTioNS—when failure to limit fury will not reverse. Held, that it was not error to fail to limit the jury, by an instruction given, to such testimony as was pertinent to the count remaining in the case, the jury having been instructed to disregard all other counts.

      3. Instructions—when cannot be complained of. A party cannot complain of an error in an instruction if such error is likewise contained in an instruction given at his instance.
    4. Removal of CAUSES:--io7te«, refusal of court to order removal not subject to review. If the petition for removal is not abstracted or if the abstract does not show the order of the court upon such petition, it will be presumed that the order entered was correct.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. George W. Patton, Judge, presiding.
    Heard in this court at the March term, 1909.
    Affirmed.
    Opinion filed January 23, 1911.
    Follansbee, McConnell & Follansbee, for appellant; Mitchell D. Follarsbee and Clyde E. Shorey, of counsel.
    George E. Gorman, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This was an action to recover damages for personal injuries brought by the appellee, hereinafter referred to as plaintiff, against the appellant, George A. Fuller Company, and also L. H. Prentice Co. and the National Fire Proofing Co., hereinafter" referred to as defendants. The parties went to trial on the fourth amended declaration, consisting of five counts and additional counts thereto. At the close of the plaintiff’s case the court instructed the jury to find the defendants L. H. Prentice Co. and National Fire Proofing Co. not guilty, and also instructed the jury to find the defendant George A. Fuller Co. not guilty on all the counts of said fourth amended declaration, except the second count thereof, and not guilty as to all the additional counts thereto. The defendant George A. Fuller Co. offered no evidence, and the case went to the jury on the said second count. The jury found the said George A. Fuller Co. “guilty under the second count of the fourth amended declaration,” and assessed the plaintiff’s damages at the sum of $3,000; judgment was entered thereon, and the defendant George A. Fuller Co. appeals.

The defendant George A. Fuller Company was the general contractor in charge of and erecting an addition to the Marquette building, in Chicago. The defendants L. H. Prentice Company and National Fire Proofing Company were sub-contractors of the said Fuller Company.

At the time in question there was an opening, called a hatchway, on the east side and near the north end of the building. The east side of this hatchway was the west wall of the old Marquette building. The other sides of the hatchway were not enclosed, except by a two by four railing about four feet above the floor. It seems the hatchway was divided into two parts by a six inch steel I beam. In the east part from the second to the seventh floors was a “succession of lad-, ders” extending from floor to floor for the use of the various employees passing from floor to floor. This side was also used to hoist plank up to the various floors to be used in building scaffolds. The plank were hoisted by hand with a rope extending from the ground floor to a tackle fastened at this time at about the fourteenth floor. In the west part of the hatchway, that is west of the I beam, a hoist was operated to lift wheelbarrows of brick, tile, mortar, etc.

The plaintiff began work on this building on a Tuesday morning, employed by the L. H. Prentice Company as a steamfitter, and was injured between 8:30 and 9:00 o’clock the following Thursday morning. During that time he had not been higher than the eighth or ninth floors. On the morning of the accident he was working on the sixth and seventh floors, beginning at 8 o’clock. Going up the ladder from the sixth to the seventh floor, he heard a noise “like something striking against something else,” and the next instant was struck on the head and fell to the ground floor, receiving serious injuries.

The said second count, on which the verdict rests, avers as the ground of negligence that the defendants “failed and neglected to provide guards, barriers, covers or other means of preventing said brick, tiling, fire proofing or other hard substances from falling through said hatchway while so being moved or carried about upon said floors above the seventh floor of said building, and by means of the premises * * * and for want of guards, barriers, covers or other protection over or around said hatchway, said quantities of brick, tiling, fire proofing and other hard substances fell from the upper floors, to-wit, the fifteenth floor of said building, and into and through said hatchway and upon the plaintiff,” etc.

The defendant contends that the plaintiff failed to show that the defendant was guilty of any negligence or violation of any duty that the defendant owed him, and that the plaintiff was guilty of contributory negligence. We think the duty the defendant owed the plaintiff under the circumstances of this case was to exercise ordinary care not to injure him. Webster Manufacturing Co. v. Mulany, 68 Ill. App. 607; John Spry Lumber Co. v. Duggan, 80 Ill. App. 394, affirmed 182 Ill. 218; Leach v. Durkin, 98 Ill. App. 415; Flanagan v. Wells Bros. Co., 237 Ill. 82. That a brick or some material fell from some place above the seventh floor and struck plaintiff, there can be no question, and from all the facts and circumstances in evidence it is a fair and reasonable inference that it would not have fallen had there been some guard on the- floors above the seventh around the east part of the hatchway, that part provided for and necessarily used by the workmen going to and from the second and seventh floors. In the exercise of ordinary care, should the defendant under all the circumstances have provided guards, or other means, on floors above the seventh, to prevent brick, tiling or other materials from falling through the said east part of the hatchway used by the plaintiff and others, in the usual course of their employment, from the second to the seventh floors, was a question, together- with that of plaintiff’s contributory negligence, under all the facts and circumstances in evidence, properly submitted to the jury.

The defendant next complains that the court, having instructed the jury to find the defendant not guilty on all counts except the second count of the fourth amended declaration, should not have given the following instruction:

“The jury are instructed that in determining what facts are proved in this case, they should carefully consider all the evidence given before them, with all the circumstances of the transaction in question as detailed by the witnesses, and they may find any fact to be proved which they think may be rightfully and reasonably inferred from the evidence given in the case, although there may be no direct evidence or testimony as to such fact,”

because it did not limit the jury to the consideration of the testimony pertinent to the said second count. We do not think the instruction misled the jury or was improperly given. Moreover, the defendant will not be heard to complain of said instruction, because the court gave, at its request, an instruction subject to the same objection, if it be an objection, which stated that the jury as “judges of the credibility of the witnesses and the weight of the testimony, and that in so judging they may consider to what extent witnessses were corroborated or contradicted by other evidence and circumstances proven in the case, the probability or improbability of the matters they testify to when considered in connection with the other evidence, and that if the jury believe any circumstances proven in the case relative to any issue were of greater weight in determining that issue,” etc. Baker v. Fawcett, 69 Ill. App. 300; Springer v. City of Chicago, 135 Ill. 552.

It is urged that the petition of the defendant that the cause be removed to the United States Court should have been allowed. The petition is not abstracted, nor does the abstract show the order of court pertaining thereto. Under such circumstances the presumption is the court below was justified in its action. Mayer v. Schneider, 112 Ill. App. 628. We may add that the argument of the defendant that the cause should have been removed because of fraud in the joinder of the parties defendant, is not supported by the evidence.

The objections to the testimony pertaining to the injuries are not considered important, and we do not feel justified in holding the damages are excessive.

The judgment is affirmed.

Affirmed.


author: Mr. Presiding Justice Mack

text:
    Henry Plaff, Appellee, v. Pacific Express Company, Appellant.
    Gen. No. 15,025.
    1. Express companies—when liable to consignee. If merchandise has been actually bought and the purchaser become liable to pay therefor, such purchaser, when the seller consigns such merchandise through the medium of an express company, may recover of the express company for the loss thereof, notwithstanding the seller has not pressed the purchaser for payment.
    2. Express companies—when consignee not bound by limitations of liability. A consignee is not bound by limitations of liability contained in a shipping receipt issued to the consignor, such consignor neither having express nor implied authority to waive obligations of the carrier.
    3. Measure of damages—for loss of merchandise. In an action by the consignee of merchandise to recover its value, the measure of damages is the value thereof at the time and place of delivery, but a sufficient basis to support a finding by the court is given by evidence, unobjected to, of the cost at retail in the regular course of business at the place of shipment just prior to the shipment.
    4. Appeals and errors—when exceptions unavailing. An exception to an answer is unavailing to question the propriety of such answer, no objection having been made to the question.
    5. Interstate Commerce Act—effect as to relations of consignor and consignee. The Interstate Commerce Act in no way attempts to regulate or change the law of Illinois as to the relation of a consignor and consignee in interstate shipments; until Congress shall exercise its power in this respect, the law of the state, whether common or statutory, will govern. It is only a direct regulation of interstate commerce by the states, not a regulation incidentally affecting hut not directly burdening it, that is prohibited even in the absence of congressional legislation.
    Appeal from the Superior Court of Cook county; the Hon. Ben M. Smith, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1911.
    John Gibson Hale, for appellant.
    C. C. Collins and E. S. Metcalf, for appellee.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Appellee, a liquor dealer in El Paso, Texas, bought sundry articles from Spaulding & Co., Chicago, for the sum of $538. After the sale, some were sent to the engraving room to be engraved; subsequently they were shipped by Spaulding & Co., addressed to plaintiff at his home, via. Pacific Express Company, the defendant, in accordance with plaintiff’s instructions as to the route for shipping.

Defendant offered in evidence the receipt given by the Express Company to Spaulding & Co., containing a clause limiting liability to $50 as the agreed value of the property unless otherwise therein stated. No value was stated at the time of delivery but the evidence as to its knowledge of and assent to this limitation is such that were Spaulding & Co. the plaintiff, recovery would be limited to $50, or under the Ellison case (infra) denied.

Evidence offered that plaintiff had not yet paid for the goods and was not being pressed for payment by Spaulding & Co. was rejected.

The only proof of the value of the goods was the purchase price at retail in Chicago. The goods were never delivered to plaintiff.

The court found for plaintiff and rendered ¡judgment for $538.

It is unnecessary to detail additional facts or to discuss some interesting questions raised on this record, inasmuch as our decision on three questions raised by the foreg’oing statement, regardless of our views on other points, compels an affirmance of the judgment.

1. As it is uncontradicted that plaintiff actually bought and therefore became liable to and still remains liable to Spaulding & Co. for $538, it is immaterial that he has not yet paid the claim or that this company, regarding itself perhaps as morally if not legally bound to reimburse plaintiff for any loss he may suffer because of the goods having been shipped under such a limited liability receipt, is awaiting the determination of this case, before demanding payment.

2. While the value of the goods at the time and place for delivery is the true measure of damages for breach of an obligation to deliver, nevertheless, as the proof of the cost at retail in the regular course of business at the place of shipment just prior to the shipment was not objected to, it furnished, in this case, a sufficient basis for the finding of the court.

A statement in the bill of exceptions, that counsel excepted, following the answer to a question, to which according to the bill of exceptions, no objection appears to have been made, presents nothing to be passed upon by a reviewing court.

3. The principal controversy, however, is whether, conceding that Spaulding & Co. if it had remained the owner of the goods would have been bound by the limitation of $50 recovery, plaintiff is, therefore, or for any other reason, similarly bound.

Plaintiff’s case rested on proof of a delivery to a common carrier for shipment and the failure to deliver. Defendant sought to show a limitation of liability by proof of a contract with plaintiff’s agent. To this plaintiff answers that his agent was authorized to ship but not to contract away his common law rights as shipper, to which defendant replies, 1st, that plaintiff as a liquor dealer in Texas must know that such receipts are customary and therefore must he held to have authorized the shipment in this manner; 2nd, that, in any event, there is a presumption that an agent authorized to ship is authorized to enter into such a contract of shipment as he deems proper; third, that whatever may be the law of Illinois, the Interstate Commerce Act governs this interstate shipment and that by virtue thereof Spaulding & Co.’s contract necessarily binds the plaintiff.

The mere fact that plaintiff is a liquor dealer in Texas is no basis for a presumption either that he knows such receipts to be customary in the liquor business or in the jewelry business; especially in a shipment, not by a wholesaler to a retailer, but by a retailer to a customer for the latter’s private use.

Nor is there any basis for presuming, merely from the direction to ship via Pacific Express, that plaintiff authorized Spaulding & Co. to ship under a limited liability obligation. In the absence of proof of a different agreement, either express or implied from the methods of doing business, the agent in such a case would not only be justified but he would be bound to protect his principal’s interests instead of waiving them.

In the case of Brown v. L. & N. R. R., 36 Ill. App. 140, followed by Wabash R. R. v. Curtis, 134 Ill. App. 409, in which Merchants Despatch Transportation Company v. Joesting, 89 Ill. 152, was distinguished, the court may have been justified in finding from the course of dealings between the parties that the vendor was in fact authorized to ship as agent for the vendee under a limited liability obligation of the carrier. We cannot doubt, however, on this record that Spaulding & Co. had no such authority, either express or implied.

It is, however, strenuously urged by the appellee that whatever Spaulding & Co. ’s actual authority may have been, plaintiff, by authorizing it t.o ship, gave it apparent authority to ship in such manner as it deemed best; in other words, that the carrier need not look into the actual authority of the consignor, but may accept the goods, on behalf of the owner and become liable to him, under such a contract of shipment as the consignor is willing to make.

Whatever might be our views on this proposition as an original question, whatever may be the decisions in other jurisdictions, we are concluded by the decision of our Supreme Court in the Joesting case {supra). While the decision in that case might have been rested on other grounds, the court did expressly hold that actual authority was essential to bind the consignee. They said, at page 155:

“In this case appellees did not see the shipping receipt, and were not aware that it contained the exception until after the goods passed to appellants. But it is said the merchants of whom the goods were purchased knew of the exceptions when they shipped them. Concede this to be true, and there is no evidence that appellees ever authorized them to make a contract limiting the carrier’s liability. In the absence of evidence, the presumption would be that they had only authority to ship them with all the liabilities of the common carrier attaching, without exceptions of any description. So it is seen that appellant has failed to show that appellees ever expressly or by implication assented to the exemption from liability by loss from fire.”

The Interstate Commerce Act as construed by our Supreme Court in Ellison v. Adams Express Co., 245 Ill. 410, would prevent Spaulding & Co. from recovering anything from these defendants. This decision, which is the basis of an interesting discussion in 5 Ill Law Review, pp. 240-243, 311-314, and 372-378, has, however, no bearing upon the question before us.

Whatever liabilities, civil or criminal, Spaulding & Co. may have incurred because of any violation of the Interstate Commerce Act in knowingly shipping goods at an agreed valuation less than the actual value, and we intimate no opinion as to whether or not they incurred any liability, plaintiff cannot be affected thereby if, as we hold, Spaulding & Co. were not his agents for the purpose of contracting for a limited liability or an agreed valuation less than the real value. The Interstate Commerce Act in no way attempts to regulate or change the law of Illinois as to the relations of a consignor and consignee in interstate shipments; until the Congress shall exercise its power in this respect, the law of the State, whether common or statutory, will govern. It is only a direct regulation of interstate commerce by the States, not a regulation incidentally affecting but not directly burdening it, that is prohibited even in the absence of congressional legislation. W. U. T. Co. v. Milling Co., 218 U. S. 406.

As, in our judgment, there was in this, case neither direct evidence nor any basis for a presumption that Spaulding & Co. was actually authorized to accept a limited liability contract for the consignee, he is not bound thereby and the defendant became liable to him under its common law liability as a common carrier for the value of the goods. The judgment will therefore be affirmed.

Affirmed.


text:
    Mary Karaffa, Defendant in Error, v. Supreme Court of the Independent Order of Foresters, Plaintiff in Error.
    Gen. No. 15,167.
    1. Fraternal benefit societies—what constitutes application. Held, under the evidence in this case, that a document (not a formal application) which contained certain questions and answers, was competent as constituting, in effect, an application upon which the certificate in question was predicated.
    2. Fraternal benefit societies—when false answers vitiate cer

      tiftcate. Answers as to previous nonrejection of insurance, if false, where made to a matter so material to the risk that even though they constitute mere representation, will void a cerificate predicated thereon.
    3. Fraternal benefit societies—when representations are warranties. Held, that the representations made in the application for a certificate, under the express terms of such application and the certificate issued thereon, were warranties, the falsity of which vitiated the certificate.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed with finding of facts.
    Opinion filed January 24, 1911.
    Charles J. Kavanagh, for plaintiff in error; G. A. Harper, of counsel.
    Parker & Hagan, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

A benefit certificate for $1,000 was issued February 1, 1907, by defendant to plaintiff on application by her husband, who died in December, 1907, of pneumonia. The certificate recites that it is issued, “in consideration of the application for membership and of the medical examination paper of the hereinafter mentioned member, including the statements, answers, declarations, agreements, waivers and warranties contained in the said application for membership and said medical examination paper (which are hereby referred to and made a part of the contract with the said member). * * * and subject also to the provisions and conditions on the face and on the back hereof. ’ Among the conditions printed thereon is the following: “The application for membership of the said member and the medical examination paper of the said member and the conditions, statements, answers, agreements, declarations, waivers and warranties in each contained shall be a part of the contract between the said The Supreme Court and the said member.”

A physician testified that the deceased signed a document offered in evidence and answered the interrogatories contained therein, in his presence, on January 10, 1907, and that he mailed it to the chief medical examiner of the defendant at the home office; that this paper was the only examination he had made of the deceased for membership in the defendant and that he was the only examiner for the court referred to in the benefit certificate, of which deceased became a member. Thereupon, over plaintiff’s objection the document was admitted in evidence- This testimony was, in our judgment, a sufficient basis for the action of the trial court in admitting this document in evidence as the medical examination paper referred to in the certificate and expressly made a part thereof. In any event, no cross-errors having been assigned, it must now be deemed properly in evidence.

The paper contained inter alia the following:

“84—Have you ever applied for life insurance? No.
84A. If so were you accepted?
85. Were you ever rejected by any Society or Company? No.
85a. If so, when and by what Society or Company?
85b. What was the cause of your rejection? •
“I hereby warrant that all the foregoing statements and answers, Nos. 1 to 120a inclusive, whether written by myself or by some one else, are mine, and that they are each full, complete and true as herein recorded * * * and this medical examination paper (including the said warranty which I agree shall constitute and shall always be accepted and construed as constituting a continuing warranty, and including also the statements and answers, agreements and waivers herein) is offered by me to the said The Supreme Court of the Independent Order of Foresters as a consideration for accepting me as a member of the said Order and for the policy or benefit certificate and contract; and I agree that this medical examination paper shall become and be a part of the policy or benefit certificate which is to be issued on my application for membership and this medical examination paper; and I agree that if there is any concealment, misrepresentation, false statement or untrue answer in this medical examination paper, which may be issued to me, that my membership in the said Order and the said policy or benefit certificate and contract shall be null and void from the beginning and all moneys paid on account of my said membership and policy or benefit certificate and contract shall be forfeited to the said The Supreme Court. ’ ’

The evidence shows that in 1900, and again on December 17, 1906, the deceased had filled out and signed applications for insurance in the Prudential Life Insurance Company; that in each instance he had paid a premium in advance to the solicitor of the company; that the solicitor in 1900 took the application so signed to “the Prudential Insurance Company, to the Branch office,” and that it was given by him to the supervising manager of the company at that office; that the solicitor in December, 1906, took the paper “down to the office” and gave it to Mr. Brophy; that in each instance, within two or three weeks thereafter, the solicitor called on the deceased and told him that his application had been rejected by the Prudential Company.

In our judgment, the motion of defendant to instruct for it should have been granted.

If the answers as to the other applications and rejections, which were clearly false, were only representations, they were so highly material to a determination by the company as to whether it would accept the risk, that their falsity, even if not fraudulent and even without the express agreement to that effect, would render the certificate null and void. But in our judgment, their correctness was clearly and expressly warranted in the document, which by the express terms thereof and of the certificate, formed a part of the contract between the parties. Their falsity for this reason was a complete defense to this action. Spence v. Ins. Co., 236 Ill. 444, at 448; Peckham v. Modern Woodmen, 151 Ill. App. 95, at 103.

i Inasmuch as a verdict for defendant should have been directed, the judgment must be reversed with a finding of facts.

Reversed with a finding of facts.


text:
    May Gassman, Defendant in Error, v. Edward Gassman, Plaintiff in Error.
    Gen. No. 15,180.
    Municipal Coubt—when judgment affirmed. A finding of the trial court where supported by the preponderance of the evidence, will he affirmed on appeal.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    B. M. Shaffner, for plaintiff in error.
    John F. Haas, for defendant in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

Plaintiff sued her father for $303.50 loaned to him. He claimed that it was his own money. In addition he claims by way of set-off for board and lodging furnished the plaintiff.

No controverted questions of law are presented by this record. We agree with the conclusions of the trial judge, to whom the cause was submitted without a jury, that a preponderance of the evidence sustains plaintiff’s claim and fails to sustain defendant’s set-off.

Affirmed.


text:
    Adolph Schwartz et al., Defendants in Error, v. Joseph Kaufman, Plaintiff in Error.
    Gen. No. 15,186.

      Pledges—when conversion established. Held, under the evidence in this case, that there was an actual, absolute and unconditional tender by the pledgor and a refusal by the pledgee to accept such tender, and a consequent conversion of the pledge by the pledgee.
    Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    Menz I. Rosenbaum and Louis M. Cahn, for plaintiff in error.
    G. E. M. Pratt, for defendants in error.
   Mr. Presiding Justice Mack

delivered the opinion of the court.

About April 13, 1908, the plaintiffs applied to defendant for a loan of $500. They were then moving their factory from Chicago to Milford, Illinois. Defendant held a claim of $85 against Louis Schwartz, a brother of the plaintiffs. Defendant agreed to loan $500 for sixty days on condition that the plaintiffs would assume and pay this $85 within the sixty days, and give as collateral certain manufactured goods. Defendant went to the factory of the plaintiffs and examined the goods offered as security, which were valued at $835.75. Subsequently defendant refused to loan $500 on the security offered, claiming plaintiffs agreed to give from $800 to $1,000 worth of goods, and at defendant’s suggestion, plaintiffs put in 117 sweaters in an unfinished condition, worth, according to the testimony, $409.50.

The goods were packed in cases and delivered at defendant’s office on April 16, 1908. After the goods were received, he opened the cases to ascertain whether all the goods agreed to he delivered were there, and after his examination plaintiffs called for the $500.

Defendant then drew up the following agreement:

“Joseph Kaufman advances $500.00 to the Schwartz Knitting Mills, Adolph and Nathan Schwartz, proprietors of same, and holds as security for the $500.00, merchandise comprised of sweater coats and sweaters as per attached invoice, and which they are to pay back the $500.00 and all our claims against them within thirty days. All these goods are free from incumbrances or liens of any nature. Unless the $500.00 and our claims against Adolph and Nathan Schwartz are not paid within sixty days from date, all merchandise held by Joseph Kaufman becomes the property of said Joseph Kaufman.
(Signed) Schwabtz Knitting Mills,
Adolph Schwartz, Nathan Schwartz, Proprietors.”

Some of the facts are controverted, but for the purposes of this decision we shall assume the correctness of defendant’s version that the $500 was changed to $300 by consent at the time the money was paid. In any event, only $300 was advanced.

Plaintiffs moved to Milford.

On May 25, 1908, defendant wrote to plaintiffs in part, as follows:

“We are about to close up our office until the middle of August, and would like for you to settle the amount you owe us, as you promised to pay us all by May 1st, but you have not fulfilled your promise. It is now growing near the sixty days limit which we will claim the goods we hold and try to dispose of them for what we can get. Wé can’t quite understand your action in this matter. Let us know at once what you intend doing, as we want the matter settled.”

Plaintiffs did not answer this letter until June 11th, and after excusing the delay because of the writer’s absence from the city until June 11th, they say, “that the reason we did not let you know from us sooner was entirely not for lack of intention or will, but simply because we were up against it.”

June 13th defendant again writes that the Chicago office is closed, and that he will not be in Chicago for some time—that plaintiffs can either send a draft or pay defendant’s expenses to Chicago of about $8.

On June 15th plaintiffs write that they want goods shipped to Milford, Ill., and attach bill of lading to draft, as “we are unable to pay you any other way.”

On June 16, 1908, defendant replied, “The goods in question will not leave our possession until we are paid in full $415.00. The time is drawing near, your sixty days are nearly over. * * * If cash is not forthcoming we will take steps to realize on the merchandise. * * > ?

On June 18, 1908, plaintiffs answered, “You are either entirely unreasonable or have misunderstood our letter of the 15th. We have told you plainly that we are ready to pay you all we owe you, and in return for our payment, we want you to return to us all our goods you are holding as collateral. * * * ” To which defendant replied on June 20, 1908: “There is no use for us to keep writing any longer. We will only send the goods when we receive our draft in full. If you cannot comply with this agreement, we will consider the goods our property and dispose of them in the way we see fit. * * * Now, unless you can comply with our demands, it will close the correspondence. Once for all, the goods will not leave our office until we receive all the money due us. If you want me to come to Chicago, I will come and deliver the goods in person, providing you send me $10 for expenses. Now, we must have the cash first, before we can move anything. We will answer no more letters, and will consider the matter closed unless we receive a draft in full or $10 for a trip to Chicago. Now, unless you can comply with either of these demands, we will consider the matter closed. * * * This is plain enough, we cannot talk plainer, and the cash must be coming at once. This is no bluff, we remain, etc.

P. S. Further argument is useless.”

On July 6, 1908, plaintiffs’ attorney wrote defendant, “They are in a position to pay this money any day that you will deliver the goods to them. # * *

Will you kindly inform me when it will he convenient for you to deliver the goods in Chicago, at which time I will have Mr. Schwartz check them off and pay you the money that is due you,” and on July 9, 1908, he again wrote: “Mr. Schwartz called at my office this morning with the cash to pay your claim. I have requested that he remain in the city for the next two days to give you an opportunity to turn over to him the goods upon payment to you of the money due you.

Kindly arrange for the delivery of same at once, and oblige.” * * *

On July 11th plaintiffs telegraphed defendant to Whitehall, Michigan, “Am here with the money to pay your account, when will you arrive?

Adolph Schwartz,

Great Northern Hotel,

Chicago.”

On July 13, 1908, the attorney again wrote, “Mr. Schwartz has been in the city several days with the money to pay your account. I have written you and he has telegraphed you. We have heard nothing whatever in reply, and we shall therefore take it for granted that you have converted the goods to your own use, and shall take such action as we deem best on Wednesday of this week, if you do not put in your appearance or arrange for the delivery of the goods to Mr. Schwartz.”

The following telegram was sent defendant July 15, 1908:

“Will pay your expenses and your claim if you will meet me here Thursday morning. Wire.
Adolph Schwartz,
Great Northern Hotel.”

No answer was received to either of these telegrams or to any of these letters.

The plaintiffs waited till August 31,1908, for defendant to deliver these goods to them, and receive his money, at which date they filed this action to recover the value of these goods alleged to have belonged to the plaintiffs, and by the defendant to have been converted to his own use. The court found the issues for the plaintiffs and rendered judgment for $825 against the defendant. This is slightly less than the value of the goods as testified to, after allowing defendant the full amount of $415 claimed by him.

Assuming the correctness of defendant’s contention, that there can be no recovery in this case without a conversion, and that there must be an actual tender of and refusal to accept the money due before a pledgee, who still retains the goods, can be deemed to have converted them (Brown v. Leary, 91 N. Y. Supp. 463), we are of the opinion that under the facts in this case the judgment of the trial court was correct.

Whether the debt became due in thirty or in sixty days is immaterial, because the pledgee took no steps to foreclose or sell the pledged goods. Plaintiffs were entitled to get back these goods at any time after maturity of the debt on a proper tender of the money. It was defendant’s duty to be ready to receive the money and to deliver the goods in Chicago. Plaintiffs were not obligated either to follow him out of the jurisdiction into Michigan and to make a tender there, or to send the money to Michigan and take chances on getting back the goods, or to pay his expenses to return here. Notwithstanding this, defendant expressly stated on June 20th that unless they did this, “we will consider the goods our property. * * * Further argument is useless.” That he meant this to be taken literally is demonstrated by his failure to answer any more letters or telegrams.

Plaintiffs were in Chicago at defendant’s office in July with the full amount of money claimed by defendant ; defendant was in Michigan; he was notified by letter and wire of the plaintiffs’ readiness to pay and demand for their goods; his silence under the circumstances amounted to a reaffirmation of his declaration in the letter of June 20th.

These facts, in our judgment, prove, not a mere offer to pay, but an actual, absolute and unconditional tender, refusal and express conversion.

When the suit is not in replevin to recover specific goods, but is in trover because of the conversion, based on a refusal to deliver after a proper tender, and the value of the goods exceeds the debt, there is no requirement that the original tender be kept good in court.

Affirmed.


author: Mr. Justice Baldwin

text:
    Jacob C. Portis, Defendant in Error, v. Bernard Sangerman, Executor, Plaintiff in Error.
    Gen. No. 14,862.
    1. Appeals and errors—effect of absence of bill of exceptions. If the record does not contain a hill of exceptions no question is raised as to the evidence or instructions in the court below.
    2. Judgments—when pleadings support. In an action brought against a defendant styled as executor a judgment against such defendant personally is supported by the common counts; the addition of the title “executor” being regarded as descriptive.
    Assumpsit. Error to the County Court of.Cook county; the Hon. William C. DeWolf, Judge, presiding.
    Heard in the Branch Appellate Court at- the October term, 1908.
    Affirmed.
    Opinion filed January 24, 1911.
    Charles Herman, for plaintiff in error.
    Morton A. Mergentheim, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Jacob C. Portis, real estate broker, sued Bernard Sangerman, executor of the last will and testament of Abraham. Singer, deceased, in the Conntv Court of Cook county, and recovered a judgment of $425 as commissions for the sale by Portis of a certain piece of property owned by Singer in his lifetime.

The first count sets out the ownership of certain real estate by the deceased in his lifetime; alleged that defendant was executor of the last will, etc., and had full power to sell the real estate of deceased, and to employ agents for that purpose; that plaintiff was a duly licensed real estate broker, and, as such, made a sale, and was entitled to his commission therefor, etc. To this first count was added the common counts consolidated—to all of which the defendant pleaded the general issue.

The record does not contain any bill of exceptions, and so no question is raised as to the evidence or instructions in the court below, but it is contended the pleadings do not sustain the judgment.

We do not agree with this contention. The judgment entered in this case was not against the defendant as executor, and payable in due course of administration, but was against him personally for $425 and costs, and ordered execution therefor.

The cause of action was really against the defendant personally, and he should, in his settlement with the estate, be given credit for any amounts he legitimately pays out for its benefit. He is primarily liable. As we regard the addition of the title executor to the name of the defendant in the suit as merely descriptive of the person of the defendant, the common counts, at least, charged him personally. See Wolf v. Beaird et al., 123 Ill. 585, and citations therein.

We find no reversible error in the record, and the judgment is, therefore, affirmed.

Affirmed.


text:
    Mary E. Morris et al., Defendants in Error, v. Thomas Kerrigan, Plaintiff in Error.
    Gen. No. 15,166.

      Evidence-—when proof of rental value incompetent. A definite contract having been established as to the amount to be paid for the use of real property, proof of its fair rental value is properly rejected.
    Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.
    Benjamin F. J. O’Dell, for plaintiff in error.
    Boyle, Mott & Haight, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

This case is brought before us upon writ of error to review the judgment of the Municipal Court of Chicago, entered against plaintiff in error (Kerrigan) on October 6, 1908, for the possession of certain real estate. The trial below was before a jury, but the court directed the verdict.

It appears that the parties entered into a contract on the 27th of July, 1907, for the purchase, by Kerrigan, of premises known as 6611 Justine street, Chicago, for which he was to pay (in addition to specified previous payments) the sum of $2,000 in monthly payments of $35 each—together with taxes and assessments.

The property in question was a two story flat building with a basement, in the nature of a cellar, without cement floor. At the time possession was delivered to Kerrigan under his contract (about August 7, 1907), one of the defendants in error (Morris) used the basement as a storage place—possession of the flats being then delivered to Kerrigan.

In September, 1908, defendants in error sued for the possession of the premises upon the ground that Kerrigan had defaulted to the extent of $150 in the monthly ¡payments and the taxes, to be paid by him under the terms of the contract.

On the trial below Morris testified that it had been agreed between him and Kerrigan that Kerrigan should be allowed upon his contract the sum of one dollar per month for the use of the basement for storage purposes, and this testimony was not contradicted by any one.

Plaintiff in error contends that the trial court erred in refusing to allow him to prove the fair rental value of the basement, and to show that his (Kerrigan’s) consequent damages resulting from the continued occupancy of the basement by defendants in error, aggregated more than the amount due from him under the contract.

It having been established by uncontradicted evidence in the case, that a definite price of one dollar per month had been agreed upon, the court below did not err in refusing to allow Kerrigan to prove the fair rental value for the use and occupation of the basement, and the judgment is therefore affirmed.

Affirmed.


text:
    Minerva Blair, Defendant in Error, v. The American Forwarding Company, Plaintiff in Error.
    Gen. No. 15,174.
    Common cabbiebs—when waiver of liability established. Held, under the evidence, that the shipper had given authority to an agent which authorized a shipment at reduced rates upon condition that waiver of liability as at common law be made.
    Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Reversed.
    Opinion filed January 24, 1911.
    Smith, J., dissenting.

      Statement by the Court. Defendant in error, Minerva Blair, brought suit in the Municipal Court against the plaintiff in error, the American Forwarding Company. A jury trial was had, resulting in a verdict and judgment against the defendant for $278.75, to reverse which the cause is before us on a writ of error.
    Defendant in error claimed damages sustained by reason of the alleged failure of plaintiff in error to safely carry and deliver to her a box containing some clothing and other articles, delivered to it September 26, 1906.
    It appears that in September, 1906, plaintiff resided in Peru, Indiana, and, being about to remove to Long Beach, California, boxed her household goods for shipment to that point. After having the box addressed to her brother, “Deo Hank, Long Beach, California,” she turned it over to one Stephens, of Peru, to attend to details of its shipment. Upon directions from Stephens, the Peru Teaming Company, took the box, thus marked, and delivered it to the freight depot of the Wabash Railroad there, and billed it to the defendant at Chicago. The receipt, or bill of lading, had printed on its face, “Released and at owner’s risk,” and the name of Jesse Stephens as consignor was signed upon it. The freight was prepaid to Chicago at the low rate accorded for transportation where it is shipped at owner’s risk, and the Wabash freight receipt, or bill of lading, was mailed to the defendant company, with the statement that the box was “to be forwarded to Long Beach, California.” On the 26th of September the Peru Teaming Company received from the defendant company its bill of lading, which the teaming company turned over to Stephens, and Stephens sent it to Long Beach, California, where it reached the plaintiff. On October 9th the defendant company sent a teaming company and procured the box from the Wabash freight depot in Chicago, and brought it to defendant’s warehouse. At this time, and for several years previously, the defendant had been engaged in Chicago, receiving at its warehouse goods of persons who have less than a carload lot, which they desired to have forwarded from Chicago to any given point. Such goods are held in its warehouse until sufficient quantity, destined for a point of shipment, belonging to other persons, are received, sufficient in the aggregate to make up a carload. When a carload is thus assembled, the goods, marked with the names of their several owners, are placed in an ordinary freight car belonging to the railroad company which is to transport the goods. The car is billed to some representative of the defendant, at the terminal point of shipment, from whom the various owners of the goods in the car can get them. The defendant makes a lump charge to each shipper, which covers its services for receiving, warehousing, loading and forwarding the goods, and also the shipper’s proportion of the freight charge of the railroad company for their transportation. The freight rate on household goods in carload lots from Chicago to Los Angeles, the terminal point, was $1.12% per hundred pounds. The defendant charged the plaintiff $1.80 per hundred pounds, and the difference between these sums covered the compensation of the defendant—the freight to be paid to the railroad company—transfer charges, etc. The freight rate to Los Angeles on less than carload lots was $2.30 per hundred pounds.
    The defendant company did not own any cars, tracks, locomotives, or railroad equipment, or any interest in any railroad or railway. It did not own or have any interest in the car in which the goods were forwarded, nor in any part of the tariff or freight charge of the railroad company.
    On October 10th defendant had at its warehouse sufficient goods, destined for Los Angeles, to make up a carload. Its foreman loaded a Bock Island car with goods, including plaintiff’s box, and notified the railroad company that the car was ready for shipment to the Pacific Coast Freight Company, Los Angeles. The railroad company sealed up the car, placed a card upon it showing its destination, and moved it away, after which the defendant had no custody or control of the car or its movements. The car left Chicago the same day, and, on the next, the car and its contents were destroyed by fire on the tracks of the Eock Island Railroad Company near Joliet. Plaintiff was notified by defendant of the loss on October 12,1906.
    When the car was turned over to the Rock Island Railroad Company, the defendant signed an instrument, releasing the railroad company from liability in excess of $5 per hundred pounds.
    The Pacific Coást Freight Company of Los Angeles, to whom the car was consigned, did not charge defendant for distributing and handling goods at that point. Their charges were collected from the owners of the goods. They got the teaming and often the storage in their warehouse.
    The receipt, or bill of lading, issued by defendant to plaintiff, was as follows:
    “Inland Form 1
    Inland Bill of Lading
    No. 8578.
    THE AMERICAN FORWARDING AND MERCANTILE CO.
    General Office: Security Bldg., Cor. Madison St. and 5th Ave., Chicago, 111.
    Forwarders, Distributers, Domestic and Foreign Freight Contractors.
    Sept. 26, 1906.
    Apply for delivery to Pacific Coast Frt. Co., Los Angeles, Calif.
    READ THE MUTUAL CONDITIONS OF THIS CONTRACT.
    Received, in apparent good condition by the American Forwarding and Mercantile Co., except as otherwise noted herein, for account of M. Jesse Stephens of Peru, Ind., the property described herein, to be forwarded to marked Deo Hank, Long Beach, Calif., subject however to the following conditions, agreements and stipulations:

      1. The American Forwarding and Mercantile Company, hereinafter designated as the Company and ..............hereinafter designated as the Shipper, agree that the said Company is hereby constituted the agent of the said Shipper for the purpose of forwarding the goods described herein to the destination given above.
    2. The Company agrees to forward the goods herein^ mentioned to..................or some other distributing point as soon as a carload has been accumulated, and is not to be held liable for any loss or damage arising from the detention of the goods for that purpose, nor for the neglect or refusal of any carrier to receive and forward the same.
    3. It is expressly agreed and understood that in case of loss or damage to said property while not in the actual possession of said Company, no action, suit, or proceeding shall be instituted by said Shipper against said Company, but said Shipper shall proceed to collect the damages from the Carrier, insurance company, or other person at fault.
    4., It is understood and agreed that the transit insurance covers only damages arising from fire, derailments of cars and collisions, any damage arising from other causes while the goods are in possession of the Company, Carriers or other Persons, shall be settled on the basis of $5.00 per cwt. of goods so damaged.
    5.' The Company shall in no event be liable for loss by fire, floods, insurrections, riots, acts of God, civil or military authority or strikes, but only for damages as may arise from fraud or neglect of its servants, and then only when claim is presented .within fifteen days from the arrival of the goods at their final destination.
    And finally, in accepting this Bill of Lading, the Shipper, owner and Consignee of the goods, or holder of this Bill of Lading, agree to be bound by all of its stipulations, exceptions and conditions, whether written or printed herein, as fully as if they were all signed by such Shipper, Owner, Consignee or Holder.
    DESCRIPTION OF ARTICLES.
    No. 1 box H. H. Goods.

      Car No.
    Weight 340 Bate from Chicago, 111., to Long Beach, Cal. per Cwt. $1.80 $6.12
    (Subject to correction)
    Other charges, viz................................■
    Total to collect for our account....................
    Marks: Marked Deo Hank, No. 1 inclusive
    From Jesse Stephens Consigned to Deo Hauk • .
    Place or origin Peru, Ind. of Long Beach, Calif.
    Bemarks: ........................................
    The American Forwarding and Mercantile Co.
    Per D.”
    The freight bill, issued by the Bock Island Bailway Company, covering the carload of freight which included plaintiff’s box, expressly released the company from all liability for loss or damage in excess of $5 per hundred pounds, and this was signed by the. defendant company.
    At the close of the testimony for both sides the court instructed the jury to find for the plaintiff, and assess as damages the fair market value of the property at the time and place they were to be delivered, less $5 per hundred pounds—that being the amount of liability assumed by the Bock Island road under its bill of lading, and which amounted to $17.50, and reads as follows :

      ‘ ‘ CHICAGO, ROCK ISLAND & PACIFIC RT.
    Chicago Station. October 10, 1906.
    In consideration of the price (special rates on carloads, and First Class Bates on less quantities) at which the Chicago, Bock Island & Pacific Bailway Company hereby agrees to transport a quantity of Household goods, furniture, or emigrant movables (including Live Stock, if any, in the car), from Chicago Station to Los Angeles, Cal., Station, the same being consigned to Pacific Coast Freight Co., I, American Forwarding & Mercantile Co., the Consignor, hereby release the said Company and all other Bailroads and Transportation Companies, over whose line the above property may pass to destination, from all liability from any loss or damage said property may sustain in excess of $5.00 per 100 lbs., and I hereby guarantee all charges for freight on connecting lines to destination.
    The American Forwarding & Mercantile Company,
    Consignor.
    N. B.—When household goods, etc., are shipped at rate based on valuation of $5.00 per hundred pounds, agents will require the owner or consignor to sign this agreement, and when signed same must be kept on file at forwarding station. Agent must then note on waybill, ‘Released to valuation of $5.00 per hundred pounds.’
    C. B. I. & P. 60486.”
    Plaintiff contends that defendant was liable, 1st, because in its relation to the plaintiff it was a common carrier, and that its bill of lading is not a contract to forward the goods merely, but was a contract for their transportation and delivery at Los Angeles; 2nd, that, even if defendant’s relation to plaintiff was merely that of agent, or forwarder, it had no authority to release the railway company from loss in excess of the $5 per hundred pounds weight of the box.
    Byron Y. Craig, for plaintiff in error.
    Cratty Bros. and Jarvis, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

We have carefully considered the arguments of counsel and have examined the cases submitted, among which are Bare v. The American Forwarding Co., 146 Ill. App. 388, and the same as reported in 242 Ill. 298; also, the Interstate Commerce Commissions Decisions in Export Shipping Co. v. Wabash R. R. Co. et al., 14 I. C. C. Rep. 437, and California Commercial Ass’n v. Wells Fargo & Co., 14 I. C. C. Rep. 422.

The facts before this court in the Bare case were very different from those in the case at bar, and may have warranted entirely different conclusions than can be reached in this case. In that case, the plaintiff in person took the goods to the freight depot of the railway company for shipment and there met one of the officers of the American Forwarding Company, who received the goods and issued a receipt therefor; and there is, also, testimony in the case (though denied by the defendant) to the effect that the officer of the forwarding company, thus receiving the goods, assured the plaintiff that the company would be responsible for the trunk if lost.

Upon the evidence in this case, and so far as this case is concerned, we regard the transaction by the defendant company as one in which it acted as a forwarding agent, and not as a common carrier.

The business of gathering from various small shippers their freight, and assembling it into carload lots, and thus enabling the forwarding company to secure the transportation of the various parcels of freight at carload rates—and, to secure this carload rate, waiving the protection which otherwise the shippers of less than carload rates would have—with the difference between the carload and less than carload rates distributed between the forwarding company and the shipper in such proportion as the forwarding company may find necessary to secure business, leaving to the railway company the burden of maintaining its equipment and expensive terminal privileges for such amounts as it can earn upon the less than carload lots of freight which it is compelled to handle for individual shippers to such places, as are not important terminal points, involves considerations upon which much might be said upon both sides.

It is clear, however, that if the forwarding agent, to get this business, is to be allowed to release the railway company from all liability, except such as is comparatively nominal, for losses or damages incurred by reason of the shipment, it should be done only with the assent of the shipper. Perhaps this should he in the form of a distinct notification to the shipper, at the time the goods are accepted, that, in order to secure the reduced rate obtained by shipping at carload rates, and of which reduced rate the shipper is a beneficiary, it is necessary that the shipment be “released and at owner’s risk,” but, in some manner, the shipper must be advised and assent.

In this case defendant in error (Minerva Blair), after packing the box, had a Mr. Stephens, a merchant of Peru, Indiana, call and mark it for shipment, and she authorized him to attend to the details of shipping it to California for her. ' The drayman for Stephens came and took it for that purpose, and turned it over to the Peru Teaming Company of Peru, Indiana, which billed it over to the Wabash Bailroad Company to plaintiff in error in Chicago, and enclosed the bill of lading to plaintiff in error in a letter, stating “Herewith enclosed find bill of lading for one box H. H. Goods, to be forwarded to Long Beach, California. The box is plainly marked for consignee, Deo Hank, with freight paid to Chicago.” The bill of lading enclosed, acknowledges receipt in good order from Jesse Stephens by the Wabash Bailroad Company, to be delivered to The American Forwarding & Mercantile Company of Chicago, Ill., one box H. H. Goods, weight 340 pounds, marked Deo Hank, Long Beach, California. On this bill of lading there appeared, among other things, the following:

“The consignor of this property has the option of shipping same at a higher rate without limitation as to value in case of loss or "damage, but agrees to the specified valuation named in case of loss or damage in consideration of the lower rate accorded for transportation.
Jesse Stephens, Consignor,
subject to all the terms and conditions of the bill of lading now in use by the Wabash Bailroad Company.”

Also the following:

“Beleased at owner’s risk.”

There was, also, evidence in this case to- the effect that it was the custom of forwarders to ship at the reduced rate, and to waive liability, as plaintiff in error did in this case.

We think the evidence in this case justified the act of the plaintiff in error in shipping the box at the reduced rate and in waiving liability on the part of the railroad company.

Jesse Stephens was the agent of defendant in error to attend to the shipment. He delegated the work to the Peru Teaming Company, which did ship to Chicago at the reduced rate, and waived liability, and the only instructions which the plaintiff in error had consisted of the letter and bill of lading it received from the Peru Teaming Co.—showing the goods were “to be forwarded,” and that the freight was “paid to Chicago.” Plaintiff in error, as sub-agent for defendant in error, in shipping at the reduced rate, did what her agent had already done within the scope of instructions, and, therefore, it was not liable.

The judgment of the court below is reversed, with a finding of facts.

Reversed.

Me. Justice Smith dissents.


text:
    Max Margulies, Defendant in Error, v. Fred Oppenheimer, Plaintiff in Error.
    Gen. No. 15,184.
    Employee and employe—what does not authorise arbitrary discharge. The right to terminate a contract of employment “for cause” means such cause as is contributed to by the employe and does not authorize an arbitrary discharge by the employer even though he may be the sole judge of the cause.
    Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1910.
    Affirmed.
    Opinion filed January 24, 1911.
    Rehearing denied March 3, 1911.
    Henry S. Blum, for plaintiff in error.
    Harry C. Levinson, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Max Margulies sued Fred Oppenheimer in the Municipal Court of Chicago, and recovered a verdict and judgment for $196, which judgment Oppenheimer seeks to reverse upon a writ of error.

On June 22, 1907, Oppenheimer being then engaged in the general commission business in Chicago, employed Margulies upon a written contract, running till May 1, 1908, at a salary of $25 per week. On December 7, 1907, without previous warning, he discharged Margulies, who sued for loss in wages by reason of his discharge.

Oppenheimer claims he was justified in discharging Margulies, because he found him inattentive to business, and otherwise unsatisfactory, and because the contract between them provided that the employer 1 ‘for cause, may, at any time, terminate said employment, at his election. Of the cause for discharge, said Fred Oppenheimer shall be the sole judge.”

On the trial below, plaintiff (Margulies) contended that he was wrongfully discharged—not for “cause,” as contemplated by the contract, but merely because Oppenheimer thought business too dull to justify paying the salary, and he hoped to re-hire plaintiff, after discharging him, at a much less salary.

The evidence was heard by a jury, who had the witnesses before them. The instructions of the court fairly stated the law, and told the jury that, if they believed there was cause for the discharge, they must find for the defendant, if they believed that r j acted in good faith.

Plaintiff in error seems to contend, however, that Oppenheimer, under the terms of the contract, might lawfully discharge Margulies for any reason. We do not so construe the contract. Margulies’ contract for hiring was for a definite period, subject, however, to termination at any time “for cause,” but this clearly means such “cause” as is contributed to by Margulies, and not merely an arbitrary act' on the part of the other party to the contract, even though he he, as in this case, “the sole judge” of the “cause.”

The jury was properly instructed; the evidence before them was conflicting. Much depended upon the credibility of the witnesses to determine whether Oppenheimer acted in good faith, and we cannot say the verdict was manifestly against the weight of the evidence.

, The judgment must therefore be affirmed.

Affirmed.


text:
    City of Chicago, Defendant in Error, v. Berry’s, a corporation, Plaintiff in Error.
    Gen. No. 15,226.
    Weights and measures—lohen violation of ordinance established. A consummated sale Is not essential to establish the violation of an ordinance which makes it an offense “to practice deceit or fraud.” If the deficiency in weight result from including the receptacle containing the merchandise, the ordinance violation is none the less established even though a sign hanging in the store of the defendant states its practice to include the receptacle in its weights, such sign not having been seen by those asserting the practice of the deception.
    Action in debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed January 24, 1911.

      Moses, Rosenthal & Kennedy, for plaintiff in error; Hamilton Moses, of counsel.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Baldwin

delivered the opinion of the court.

The City of Chicago brought action in debt in the Municipal Court against Berry’s, a corporation, to recover a penalty for the alleged violation of a city ordinance.

Section 2478 of the Revised Municipal Code of Chicago, as amended September 26, 1906, and on April 4, 1907, after providing that certain articles, like potatoes, etc., shall be sold by heaped measure, etc., says:

“Any person or corporation who shall practice deceit or fraud of any kind whatsoever in the sale of any commodity or article of merchandise of any kind whatsoever, whether sold by dry measurement or liquid measurement or linear measurement, or superficial measurement, or cubic measurement, or by weight, or by any unit of enumeration used in determining or measuring quantity, by selling or offering for sale any commodity or article of merchandise of any kind whatsoever, in quantities of less weight or measure or enumeration than the weight or measure or enumeration represented by the vendor or his agent or employe upon such sale or offer of sale, or who shall sell or offer for sale any commodity in any receptacle containing a less quantity than it is represented at the time of such offer or sale to contain * * * shall be fined not less than twenty-five dollars nor more than one hundred dollars for each offense.”

The bill of particulars says:

“Plaintiff’s claim is for a penalty not exceeding One Hundred Dollars for a violation by defendant of Section 2478 * * * in that defendant, on, to-wit: the 29th day of September, 1908, did, through one Emma Morris, a clerk for the above, practice deceit and fraud in the sale of a certain amount of candy by offering for sale and selling an amount of candy that was of less weight than the weight represented to he, at 591 West Madison street, Chicago, Illinois.”

After hearing the witnesses for the plaintiff and defendant, respectively, the court below entered judgment against the defendant for $50 and costs, to reverse which judgment defendant brings the case here upon a writ of error.

It appears that L. H. Gallagher, a deputy inspector and weight sealer of the city of Chicago, called at Berry’s candy store December 29,1908, and asked how much a pound the candy in the show case was, and the saleslady replied, “Fifty cents a pound.” He then said, “Give me two pounds.” Whereupon she said, “I have it done up in two-pound boxes.” He then replied, “Let me have two pounds.” She reached back on the shelf and took down a box, tied up with paper and strings, and handed it to him. He said, “Is this two pounds?” She said, “Yes.” Thereupon he notified her that he was an inspector, and represented the city sealer’s office, and wished to weigh the candy; that he weighed it and found that the box and candy weighed two pounds, the box alone weighed four ounces, making the net weight of the candy one pound and twelve ounces. The witness testified that he then asked her, “Were you instructed to sell this for two pounds ?” and she replied that they were. The witness did not pay for the candy, but took it away with him just as it was. The witness further testified that he did not see a certain sign, which the defendant offered in evidence, and will be hereafter referred to, though the witness says he looked around to see if there were any signs with reference to selling candy by the box, and did not see it.

Frank Walsh, a deputy inspector for the city, testified to having been present with Gallagher, and says, that when they entered the store Gallagher asked the young lady how much the candy was worth a pound, and she told him fifty cents, and. he said, “I will take two pounds;” that she then said, “It is done up,” and handed him a box, when he asked, “Is there two pounds in that box?” and she said, “Tes.” He stated that the box of candy being weighed, it was found that the gross weight of both was two pounds, the box weighing four ounces, and the candy one pound and twelve ounces. Witness testified on cross-examination that he did not see the sign referred to, and did not know that Berry’s included the receptacle in the weights in which they sold candies.

The testimony of the witnesses for the defendant (two salesladies) did not essentially contradict the testimony of the two inspectors. They did, however, testify that there was hanging on the wall, about twelve feet from the front of the store, and back of the show case, a sign, which was offered in evidence, and which was upon a card about nine by twelve inches, upon which was printed the following:

“During the past 35 years all weights on candy quoted by us have included the container. This policy will be followed in the future as in the past.
Berry’s.”

And that this sign had been thus displayed in the store for a long time.

“During the oral argument, and in the briefs, counsel for plaintiff in error contended that to constitute an offense under the ordinance, it was necessary to prove a consummated sale. It was insisted that in the phrase, “Any person or corporation who shall practice deceit or fraud of any kind whatsoever in the sale of any commodity,” etc., the words “practice deceit,” etc., must be construed as requiring a completed sale. We do not so understand the ordinance. To give effect to its evident purpose, and to all of its language, including the words “by selling or offering for sale any commodity,” etc., we think the ordinance must be construed as if it read: “Any person or corporation who shall practice deceit or fraud of any kind whatsoever in the matter of the sale of any commodity or article of merchandise of any kind whatsoever, ’ ’ etc.

In this view of the ordinance we think the evidence justified the lower court in its finding against the defendant, and judgment is, therefore, affirmed.

Affirmed.