author: Mr. Justice Mack

text:
    Lanson D. Miller et al., Plaintiffs in Error, v. Birdie Doran et al., Defendants in Error.
    Gen. No. 14,215.
    1. Corporations—status of stock certificates as to negotiability. Stock certificates are not negotiable instruments. Bona fide purchasers or pledgees for value are, however, in some instances protected through the application of the principles of estoppel.
    2. Corporations-—when not protected against delivery of certificates. If a corporation is a party to a bill by which the true owner of stock stolen and pledged seeks to recover the same and to prevent the pledgee from being recognized -by the corporation as the owner of the certificates in question, and such corporation is an active party in the litigation by answering the bill and demanding proof, it is not protected against delivery of such certificates to the pledgee by a decree rendered in favor of the pledgee which is subsequently reversed, nor is it protected by a judgment in favor of the pledgee rendered in a replevin suit to which the true owner of the certificates was not a party. A corporation, in such a situation, in order to protect itself, should await the final termination of the litigation or else should, by petition in the court in which it is pending, place itself in the positon of a stakeholder and acquire the same measure of relief which is accorded upon bill of interpleader.
    3. Pledges—when may be recovered by true owner. If corporate stock has been stolen and pledged for value, the true owner may recover the same of the pledgee, even though such pledgee received the stock without notice of the rights of the true owner.
    4. Pleading—when answer overrules plea in chancery. If an answer filed to a bill in chancery was not in support of a plea likewise filed to such bill, but was independent of such plea, the answer being to the entire bill operates to overrule the plea.
    5. Abatement—when plea of former suit pending inappropriate. The plea of prior suit pending at law is not the proper method of directing the attention of a court of chancery to the pendency thereof.

      6. Chancery—jurisdiction to protect stockholder whose certificates have been stolen. The claim of an owner of stocks to recover his stolen certificates which are an indicia of title and worthless as against him in a stranger’s hands, though capable of causing him. considerable litigation, as well as his claim against the corporation to continue to be recognized by it as a stockholder and for an accounting of dividends wrongfully paid to another, has always been held to be one of equitable jurisdiction.
    7. Decrees—duty of compliance. It is the duty of a party against whom a decree in chancery has been rendered, to be ready at all times to obey such decree. If such party place himself in a position where he can no longer specifically obey, he must then put the party in whose favor the decree has been rendered in the same position as near as may be as if he had obeyed.
    8. Decrees—when appropriate in action to recover' stock certify cates. Held, that the decree in this case properly directed that the defendants return to complainant the certificates of stock in question or to pay the value of such stock on the day when the decree was entered.
    Bill for injunction. Error to the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed in part, reversed in part and remanded with directions.
    Opinion filed November 19, 1909.
    Rehearing denied December 3, 1909.
    Statement by the Court. Birdie Doran bought stock in the United States Steel Corporation, endorsed the certificates in blank because her husband told her that this would avoid a confusion in her affairs if she died without a will, and kept them in a safe deposit box to which she and her husband had access. Without her knowledge, the husband took them from the box and pledged them to plaintiffs in error, who, for the purposes of this case, may be assumed to be bona fide pledgees, although Mrs. Doran has alleged that they took them on gambling transactions. As soon as she learned of the misappropriation, she demanded them back and notified the United States Steel Corporation and the Hudson Trust Company, its transfer agent, co-defendants in error, not to recognize plaintiffs.
    Thereupon plaintiffs sent the certificates to the Hudson Trust Company for transfer and brought their bill of complaint to enjoin Mrs. Doran from asserting her claim of ownership and to require the corporations to transfer the stocks on their books.
    The corporations answered demanding strict proof.
    Mrs. Doran having answered, filed her cross-bill against the plaintiffs and the corporations, demanding the return of the certificate from whichever of them might then have the possession thereof, that the plaintiffs be enjoined from making any claim thereto and that the United States Steel Corporation pay over any accrued dividends. Nio answer by either corporation appears in the record, but in the decree on bill and cross-bill it is recited that the cause came on to be heard inter alia on the answers of the United States Steel Corporation and the Hudson Trust Company to said cross-bill.
    The decree entered August 20, 1904, found the title in plaintiffs and dismissed the cross-bill.
    On writ of error, this court found that Mrs. Doran had never lost title to the certificates, reversed the decree and remanded the cause. The facts will be found more fully stated in Doran v. Miller, 124 Ill. App. 551.
    On the subsequent hearing, after amended and supplemental pleadings had been filed and additional evidence heard, the court found that Birdie Doran had never lost title to the certificates and had been wrongfully deprived of the possession of them by the refusal of the plaintiffs and co-defendants to deliver them on demand made in November, 1903; that in November and December, 1904 (being subsequent to the entry of the original decree and before the writ of error had been sued out) the corporations at plaintiffs’ request' had cancelled the old certificates and issued successively new certificates that reached the hands o-f bona fide purchasers; that as between plaintiffs and Doran, plaintiffs thereby became obligated to return the equivalent of said certificates and that Birdie Doran was entitled to the value of dividends declared in February, 1904, and at subsequent quarters, none of which had been paid to her but which had been paid to the persons who, at the times when said dividends were declared, were registered on the corporation books as share owners; that the cross-bill as to some certificates not mentioned in the original bill was not germane and moreover, as against the co-defendant corporations, the entire cross-bill was without equity. Thereupon the court dismissed the original bill and dismissed without prejudice so much of the cross-bill as was found not germane, decreed as against the individual cross-defendants, now plaintiffs in error, that they give cross-plaintiffs certificates for an equivalent number of shares and on default pay over an amount found to be the market value at the date of the decree and dismissed the cross-bill as against the two corporations, Cross-defendants, for want of equity.
    Complainants appealed and question the correctness of the. finding against them on the matter of title, the rule adopted by the trial court as the measure of damages, and right to any relief under a cross-bill after the original bill is dismissed.
    Cross-complainant Doran has assigned cross-errors on 'the dismissal of so much of the cross-bill as was found not germane and on the findings and dismissal of the cross-bill as against the corporations.
    Glenn E. Plumb, for plaintiffs in error.
    T. F. Laramie, Wolpp & Rothschild, Knapp & Campbell and WhjLiam Beye, for defendants in error.
   Mr. Justice Mack

delivered the opinion of the court.

We find nothing in the additional evidence to change the conclusions reached by this court on the former hearing, and we are therefore bound by the former decision of this court. In any event, we concur in the conclusions there stated.

Whether or not corporate stock certificates should be made more negotiable than they now are, so as to protect a bona fide purchaser taking them under the circumstances of this case, is a question that the Legislature will have to consider when the Stock Certificate Act drafted by the Commissioners on Uniform State Legislation is presented to them. That act provides for this protection to a bona fide purchaser or pledgee. But though some measure of negotiability has been worked out without legislation, through the application of principles of estoppel, no case cited or that, we have been able to find would protect these complainants.

In the case nearest to this in its facts, Bangor Elec. L. & P. Co. v. Robinson, 52 Fed. R. 520, it appeared that Robinson had certain business relations with one Williams, a broker, and that they had in common a‘ safety deposit box, to which each had' access; that Robinson placed the certificate therein, endoresd in blank, and that, without his authority or knowledge, Williams abstracted it therefrom, and transferred it to Mrs. Lee, as collateral security for a loan.

The court said: “Certificates of stock indorsed in blank are so far of a negotiable character that they ordinarily pass from hand to hand, that they are not subject to lis pendens and that, as stated by Daniel, in order to effectuate the ends of justice and the intention of the parties, the courts ordinarily decree a better title to the transferee than actually existed in the transferrer. Nevertheless, we do not find that any court of authority has ever gone so far as to hold that the holder of them may lose the title to such as may be stolen from him, as he may of negotiable promissory potes, bills, scrip, or bonds, payable to bearer or indorsed in blank,

“ * # # The contest at bar relates to the mere negligence of the original holder, and how far this may prevent him from reclaiming his property. At first it occurred to the court that, inasmuch as Rohinson had seen fit to leave this certificate in such condition as to indicate that somebody was authorized to acquire it and fill in the indorsement, he was barred; but the court is unable to find any authorities sustaining this suggestion, and is compelled to treat this certificate, indorsed in blank and stolen, as it would any other stolen property, aside from strictly negotiable securities.”

In The Farmers’ Bank et al. v. The Diebold Safe & Lock Co. et al., 66 Ohio St. 367, at 378 the court said:

“The case at bar may be summed up in a paragraph. The secretary of the corporation was a holder of its stock represented by a valid certificate. He pledged the stock to the Company as security for a debt owing to it, and assigned the certificate in blank and delivered it so assigned to the Company. It was then placed by the president in his drawer in the Company’s safe. Later the secretary, by private agreement with the president, sold the certificate to him outright. Without fault of the Company, or of the president, the certificate had become mislaid. Some time after, the secretary found and fraudulently abstracted the certificate from the drawer and pledged it for a private debt to an innocent taker who accepted the security without inquiry. This pledgee took no title.” See, too, Knox v. Eden Musee Co., 148 N. Y. 441, at 457 et seq.

2 Cook on Corporations, 6th ed., sec. 437, says:

“It is extremely doubtful whether a purchaser of a certificate of stock which was indorsed in blank, and which has been lost by the owner and found by another who sells it, or which has been stolen by the latter, would be protected in his purchase; even though he buys in good faith. In a case of negotiable paper, such a purchaser would, of course, be proteeed; But probably the purchaser of the certificate of stock would not be. Ho case holds that he would be protected, while many hold that he would not. If the real owner was guilty of gross negligence, perhaps the purchaser from the thief or finder of the certificate indorsed in blank would be protected. In one case this question of negligence was submitted to the jury.”

The plaintiffs in error, although assigning for error the sustaining of a demurrer to the plea of prior suit pending, have not urged this point in their brief.

The so-called demurrer to a plea was doubtless regarded by the court as equivalent to a motion to set the plea down for argument. The overruling of the plea may be sustained on several grounds: First, the answer was not an answer in support of the plea but independent of the plea, and being to the entire cross-bill it, of itself, overruled the plea; second, the plea of the prior suit pending at law seems not to be the proper method of directing the attention of the court to the pendency of another suit at law.

In Way v. Bragaw, 16 N. J. Eq. 213, at 217, the court says: “A plea of another suit pending for the same cause in bar of a suit in equity, can only be of a suit pending in the same or in some other court of equity.

“Where a suit is pending for the same cause in a court at law, all that the defendant can ask is an order putting the complainant to his election, whether he will proceed' at law or in equity.” (Citing authorities.)

Plaintiffs in error contend that the original bill having been dismissed for want of equity, the cross-bill which, it is alleged, sought relief on a purely legal claim, should also have been dismissed. But firstly the cross-defendants answered the cross-bill and secondly the claim of an owner of stocks to recover his stolen certificates which are an indicia of title and worthless as against him in a stranger’s hands, though capable of causing him considerable litigation, as well as his claim against the corporation to continue to be recognized by it as its stockholder and for an accounting of dividends wrongfully paid to another, has always been held to be one of equitable jurisdiction. The owner may sue in tort as for a conversion but he is not compelled to do so, and thereby give up his position as stockholder. Treadwell v. Clark, 190 N. Y. 50, at 57; Penna. Co. v. Franklin Fire Ins. Co., 181 Penns. St. 40.

As between Miller and Bostedo and Mrs. Doran, the only remaining question is as to the measure of damages.

Whatever the true rule of damages may be in an action of trover for converting stock, the cross-bill under which the relief was decreed in this ease was for the recovery of the possession of specific certificates in the possession or control of the cross-defendants at the time the cross-bill was brought and the original —but subsequently reversed—decree was entered.

If the contentions of the cross-bill were correct, the cross-defendants had property belonging to the cross-complainant, which it was their duty, in equity, specifically to return. That they subsequently incapacitated themselves from obeying the decree finally entered, is no excuse. It was their duty to be ready at all times to obey the decree which a court of equity would enter if it found the facts against them. If they cannot now obey specifically, then they must put “the cross-complainant in the same position, as near as may be, as if they had obeyed. The decree properly directed that they return to her so many shares of stock, or pay the value of the shares of stock on the day that the decree was entered.

In Fowle v. Ward, 113 Mass. 548, the court says: “In the common law action of trover, the rule of damages is undoubtedly the value of the chattel in controversy at the time of conversion. So also, in an action for non-fulfillment of a contract to deliver stock, the measure of damages would ordinarily be the value at the time when it should have been delivered. * * * But, in the case before us, the plaintiff seeks and is entitled to have the specific equitable remedy of being replaced in his original possession. His claim is not damages for the breach of a contract or for the wrongful conversion of property, but to compel the .reconveyance of shares which ought to be in the defendant’s hands at this moment.”

The original bill sought to establish complainants’ claim to certain specific certificates representing stock still standing in Mrs. Doran’s name. The cross-bill sought to hold the original complainants liable not only for these but also for other certificates which had theretofore been surrendered and1 cancelled and for which new certificates were outstanding in the hands of bona fide purchasers, but disclaimed any attempt to hold the corporations liable for the latter class of certificates. Cross-complainants, while assigning error on the finding of the trial court that this claim is not germane to the original bill, fail to raise the question in their brief and have therefore waived it. We are, in any event, inclined to concur in the view adopted by the trial court that the claim is not germane.

So far, therefore, as the controversy is between Miller and Bostedo as plaintiffs in error, and Birdie Doran as defendant in error, the decree will be affirmed.

As between Birdie Doran on the one hand and the Steel Corporation and Trust Company on the other hand, the contention is that as they were parties to the original proceedings both in the trial and appellate courts, the reversal of the original decree rendered it an absolute nullity as to them as well as to the original complainants. Ure v. Ure, 223 Ill. 454.

The companies on the other hand contend that they were in the position of stakeholders; that they had no interest in the original decree and were not in a position enabling them to appeal therefrom; or, if perchance they had the right to appeal, at least they could not have assigned as error that the decree confirmed complainants’ title and denied Doran’s title to the shares, and that as they were directed by the original decree to recognize Miller and Bostedo, they would have been in contempt of court had they refused to do so.

After the original decree and before the writ of error had been sued out, the counsel for the companies, acting cautiously in their interest, endeavored to secure a bond from Miller and Bostedo before recognizing their title. Failing in this, he adopted the suggestion of complainants’ counsel, under which, through a replevin suit against the companies and their agent who had physical possession of the certificates, to which Birdie Doran was not made a party and of which she was not notified so as to enable her to protect her claim by defending the right of the corporations, as against the plaintiffs, to retain the certificates, one of the complainants, Bostedo, obtained the physical possession of the certificates. Thereupon the companies transferred the stock on their books upon the demand of the complainants.

Birdie Doran contends that this replevin suit was a fictitious proceeding and a subterfuge; that the stock was transferred on the books of the company, not because of the original decree in the case ordering this to be done, but voluntarily, pursuant to arrangement between the companies and the original complainant.

We cannot see any wrong in the action of the counsel for the Steel and Trust companies. He desired protection for his clients against every possibility of injury. If, under the original decree, the Steel Company would be justified in at once recognizing Miller and Bostedo’s title or even if they would be protected had they recognized it only as an alternative to accepting punishment for contempt of court, the fact that they recognized it only after the replevin proceedings would not put the companies in any worse position.

We do not see any inconsistency in the plea to the replevin suit in which the original decree was set up coupled with the allegation that Doran had notified them of her intention to sue out a writ of error and would hold them liable for damages and claiming therefore the right to retain possession until a final decision should be reached, and their present position that after this plea was adjudged bad and the possession was awarded the plaintiff in replevin, they were then compelled to obey the original decree.

Nor is a corporation in any true sense of the word a trustee for each registered shareholder, so as to impose some fiduciary obligation upon it to protect him as against the holder of the certificate. A shareholder is the owner of a chose in action of a peculiar nature; the corporation is the obligor in that chose in action. It owes him a duty similar to that which any creditor owes a debtor upon a non-negotiable chose in action. It cannot escape payment of the debt, it cannot deny his right as shareholder unless with his consent or in some way that would create an estoppel against him, his right has become barred or by a novation has become vested in another. The claim made by the corporations is that by the former adjudication as between complainants and defendants the former were held to have become the shareholders. If the corporations had not been parties to the record, if the contest as to the property had been solely between the two claimants, no trust obligation toward Doran would have forbidden the corporations, after such an adjudication, to recognize Miller and Bostedo’s rights.

Nor can we assent to the proposition that because the corporations are foreign so much of the original decree as directed them to transfer the stock is a nullity and therefore affords them no protection. This point is raised for the first time in the reply brief of counsel for Birdie Doran, and as has been frequently held by the Supreme Court, it should not now be considered. Harrow v. Grogan, 219 Ill. 288, at 294.

Waiving this, however, it is our opinion: First, that when no objection is made by the foreign corporation to the jurisdiction of the court to decree the transfer of stock, none of the other parties can raise it; second, that in a bill such as this to determine the ownership as between two claimants of stock and to compel the corporation to recognize the victor, no question of the internal management of the corporate affairs is involved, in the absence of some contention on the part of the corporation as against either or both of the claimants; and third, if the original decree had been a nullity as.against the corporations, then, a fortiori they would be entitled to recognize the victor under it, irrespective of whether it was subsequently reversed or affirmed on writ of error.

But the question still remains whether the reversal of the original decree nullifies it not only as to Miller and Bostedo but also as to the corporations so as to deprive them of any protection that they would enjoy had they been strangers and not parties to the record. In other words: Is a stake holder under the circumstances of this case, though technically a party to the record, in the same position as a stranger, and were these corporations really in the position of stake holders in this case?

To obtain the. protection accorded a stake holder, one must act as such, act promptly and take no other position. In this case, the corporations could have filed a bill of interpleader, turned the certificates over to the court or to its receiver and compelled the claimants to litigate their rights. Dickinson v. Griggsville Nat’l Bank, 209 Ill. 350; 2 Cook on Corporations, 6th ed., secs. 387, 407.

After one claimant had commenced suit against the other and the stake holder, a bill of interpleader would probably be improper; but, by motion or petition in the suit, the same results could have been obtained. The court should and doubtless would then have permitted a surrender of the documents or the issuance of new ones to its receiver and a dismissal of the corporations from the case. McLennan on Interpleader, p. 12, and case's cited. No such step was taken. Instead, the corporations answered the bill which sought as against Doran an adjudication of title and as against them the transfer on the books, by neither admitting nor denying the allegations but demanding strict proof.

Then the cross-bill was filed. What, if any, answer was made- thereto by the corporations does not appear from the record, except the bare recital in the original decree, that the cause was heard on cross-bill and answer by all defendants. We cannot assume that this answer was any different from the answer to the original bill. By the cross-bill the stockholder of record demanded back her property, her certificates, from the holders of them, the corporations, together with dividends declared thereon. That the corporations had received them merely for transfer, made them no less the actual holders. When they refused to deliver them up to the true owner, they were subject to an action at law or a bill in equity. Inasmuch, however, as the other claimants were defendants to the cross-bill, the corporations could still have answered and, by petition or motion, have secured the benefits of a complainant in a bill of interpleader. But again they failed to act. They therefore remained in the case as defendants demanding, according to the pleadings, strict proof as against themselves.

Moreover the plea of the corporations in the replevin suit recites that in this chancery suit they claimed the right of possession of said certificates of shares until it was determined which of said parties was justly entitled to the same. ’ ’ Such a claim to the right of possession is inconsistent with the position of an interpleader who wants to give up the property to the court and get out of the litigation.

While therefore the corporations might have been , out of the litigation before the final decree and might have been entitled to the same protection that is granted to a stranger who takes under a decree not appealed from or not stayed by writ of supersedeas, had they acted in the manner prescribed by law, we are constrained to hold that as active parties to the record they are subject to the general rule that a reversal nullifies the former decree. Ure v. Ure, 223 Ill. 454.

It follows that the court erred in dismissing the entire cross-bill as to them and in not decreeing that the corporations, as well as Miller and Bostedp, deliver an equivalent amount of stock or pay the value thereof to said Doran.

The decree will be affirmed in part and reversed in part and the cause remanded to the Circuit Court with directions to that court to modify the decree in accordance with the views herein expressed.

Affirmed in part, reversed in part and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    The Wickizer-McClure Company, Plaintiff in Error, v. Bermingham and Seaman Company, Defendant in Error.
    Gen. No. 14,590.
    ' 1. Trial—effect of discharge of jury. When a jury has returned its verdict, it may again retire to reconsider it, but this cannot he done after the separation and discharge of the jury from consideration of the case.
    2. Trial—when improper re-submission to jury will not reverse. However erroneous the action of the court may be in permitting the jury to reconsider and correct a verdict rendered after they have separated, the court will not- reverse unless there are some merits to the case.

      Assumpsit. Error to Municipal Court of Chicago; the Hon. Charles N. Goodhow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed November 19, 1909.
    Adams & Froehuoh, for plaintiff in error.
    Henry C. Adams, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

Plaintiff sued for $317.24, a balance due for goods sold and delivered. Defendant sought to recoup for breach of warranty. The jury returned a verdict for $43.77. They were sent to the assignment room. In the hall, plaintiff’s attorney questioned them in the presence of a representative of defendant’s attorney, whereupon about half of the jury returned to the court room. The judge was told that the verdict was erroneous, that it was for the amount to be deducted from plaintiff’s claim instead of for the balance due after such deduction. Thereupon the court instructed them to return the next day and on the opening of court, afterthey had unanimously stated on being then polled that the original verdict had not been and was not their verdict, over objection the court permitted them to retire and bring in another verdict. The second verdict was for the net balance, $273.47, after deducting the amount of the first verdict, $43.77, from plaintiff’s claim of $317.24. We disapprove of the procedure here adopted. When the jury had returned its verdict, it could have been polled, and could again have retired to reconsider it; but this could not be done after the separation and discharge from the consideration of the case. Bigg v. Cook, 4 G-ilman, 336, at 346, 352. But however erroneous the action of the court was in permitting the jury to reconsider and correct the verdict rendered, after they had separated, the court will not reverse unless there are some merits to the defense. The defendant concedes that this is the correct rule.

On a suit for goods sold and delivered, recoupment of damages for breach of warranty may be allowed without a bill of particulars. Municipal Court Act, section 48, clause 2, requires such a bill of particulars, only for a set-off or counterclaim, but it has no reference to recoupment, by virtue of which the claim of plaintiff could only be reduced, but on the basis of which, unlike a set-off or counterclaim, no judgment for damages could be rendered in favor of defendant.

Is there then any basis for defendant’s claim of recoupment over and above the amount of $43.77 allowed by the verdict?

The evidence offered showed that the transaction originated in an order as follows:

“The Wickizer-McClure Co.

Argos, Ind., July 18, 1907.

Bermingham Seaman Co.,

Chicago, III.

Ship Via................... When At Once.

Please furnish us with the following Price.

62 Rms. 42 x 60 144 No. 2 White Enamel Mill 106 at $5.75 per cut P. O. B. Argos Ind. Shipment within not less than 2 weeks. Advise amount bill and will mail check immediately overrun not exceed 5%.

As per your quotation of 7-18 1907.

Please acknowledge receipt of this order and state date of delivery.

The Wickizer-McClure Co.

By Brooks Estell,

Manager.”

to which the following reply was sent:

“Bermingham & Seaman Co. .

1220 to 1226 Tribune Bldg.

July 18, 1907.

Wickizer-McClure Co.,

Argos, Ind.

Gentlemen:

Referring to your order received this a. m. through Mr. Estell, we beg to state that we have this day sent same to our mill to manufacture 62 reams 144 No.—42 x 60 No. 2 White Enamel, price 5 3-4c. f. o. b. Argos, amounting to $513.36, less 3% for cash.

In accordance with our understanding you are to mail us a check for this amount, and will take care of any over-run up to and including 5%.

Thanking you very kindly for the order, and assuring you we will use our best endeavors to get it to you at specified time, we are

Yours very truly,

Bermingham & Seaman Co.

W. Pa Dalford.”

Pad—M. P.”

July 29 plaintiff wrote defendant that they were advised by the mill that the paper would go forward that day. On August 6 a similar letter was written and subsequently on the 7th, 8th and 9th defendant wired urging plaintiff to trace the goods. They were finally received on August 12. Defendant complained at once about the quality and sizes, adding: “Of course we will accept it. We are obliged to accept it, as our presses have been standing idle for over a week waiting for it, but not without charging you with our loss on the transaction, which will be something over $100.00, possibly as high as $200.00.

Plaintiff answered as follows:

“August 13th, 1907.

Wickizer-McClure Co.,

Argos, Ind.

Gentlemen:

Replying of the August 12th, we beg to state that if this stock is cut- the wrong size and is not what you ordered in every respect, we do not wish you to accept it at all, and if you use same will insist upon full payment at the price which it was sold to you. We do not want you to use it at all if it is not as represented and will accept no charge against us for any loss you may incur in the transaction. We did not guarantee exact date of delivery.”

On the 14th defendant answered:

“ * * * you understand that we are obliged to deliver the job this stock was bought for, and you are running very little risk in making this statement. *» * * You are correct in your statement that you did not guarantee exact date of delivery, but on July 29th you wrote that you were shipping that day, and on this information we calculated that we would receive it in time. You did not ship for several days after this. * * # > J

To which plaintiff replied on the 15th:

“ * * * in using this stock you are doing so against' our will, if it is not what it should be and as stated in our previous letter, we will not accept settlement for any loss which you may incur. As we previously stated, we did not guarantee date of delivery. JL j{. . WWW

“We certainly are not concerned in any penalty or loss which you may suffer and, under the circumstances, cannot see how you can think for a minute of deducting anything whatever. * * * ”

On September 12th defendant wrote:

“ * * * You accepted the order for the enameled stock on condition that it was to be shipped within two weeks, which it was not, and furthermore you represented to us on the 29th of July that you were shipping it that day. You were the cause of the delay, very evidently, and we see no reason why you should not stand the loss.

“Your representative represented that the books would weigh a certain number of ounces, and we were to an expense of $120.00 on this score, and this we have charged to you. * # * ”

Defendant claimed in addition to $32.50 damages on a former transaction, $117.90 for difference between the alleged market value of the paper delivered and the contract price, and $15 a day for four days’ delay in shipment.

Its witnesses testified that it was under a time contract for printing this lot of paper into catalogues which were not .to exceed 9% ounces in weight; that at the time of purchase plaintiff stated to defendant’s buyer that the paper in question would make a book weighing 9y2 ounces; that in fact it weighed so much more that the mailing cost was increased $120.

There is not a word of evidence that plaintiff was advised at the time of the purchase that defendant was under a time contract or under a guaranty of weight contract. Moreover it is to be observed that in defendant’s letter of July 18th it said, “assuring you that we will use our best endeavors to get it to you at specified time.” This was a distinct refusal to agree to the two weeks’ limit as being of the essence of the contract, and therefore if the letters constituted the contract, as both parties claim, time was not of the essence. Even if it had been, there is no proof in the record but that the goods were shipped within, two weeks of the date of the order, and that the delay was on the part of the railroad.

The goods were not sold by sample, but by description. The size of sheets, weight per ream and grade of paper were specified. There is not a word of testimony that the goods delivered did not comply with these specifications.

Even if plaintiff made the controverted statement that the catalogues made from this paper would weigh only 9% ounces, that statement formed no part of the contract and must therefore be taken as an estimate, not as a warranty or condition.

. The judgment will be affirmed.

'Affirmed.


text:
    Edward Thompson Company, Plaintiff in Error, v. Alexander Collins et al., Defendants in Error.
    Gen. No. 14,654.

      Replevin—when lies "by vendor in conditional sale contract. If merchandise is sold under a conditional sale contract, title being retained by the vendor until payment in full shall be made, failure to make such payment entitles such vendor .to maintain replevin to recover such merchandise.

      Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed November 19, 1909.
    Rehearing denied December 3, 1909.
    Martin & Martin, for plaintiff in error.
    George I. Haight, for defendant in error; B. A. L. Thomson, of counsel.
   Mr. Justice Mack

delivered the opinion of the court.

The plaintiff replevied a set of the American English Encyclopedia of Law, 2nd edition, delivered to defendant Collins under a conditional sale contract. The title was retained until payment in full should he made. Nothing has ever been paid for the books, which were in the possession of defendant Thomson, who was directed in writing by Collins to deliver them to plaintiff and on demand refused to do so.

These facts established complainant’s right to possession as against Collins and those claiming under him other than bona fide purchasers or attaching or execution creditors. The burden at least of going forward with proof to bring himself within the excepted class devolved on defendant Thomson. To sustain his claim, he offered in evidence an uncertified copy of a justice of the peace execution against the goods of Collins and a receipt purporting to be signed by a constable, reading:

“$38. December 16,1906.

Received of B. A. L. Thomson, thirty-eight dollars for thirty-six volumes books, American and English Encyclopedia of Law, one waste basket, one table and one chair, sold this day by virtue and under ¿n execution issued. Judgment. T. O’Leary vs. Alexander Collins, of date November 24, 1906. $200 and costs, case No. 13,217.

A. C. Stayer, J. P.

Henry A. Johnson,

County Constable.”

No other proof of any judgment against Collins was made.

Plaintiff duly excepted to the overruling of its objection to this evidence.

In our judgment the evidence did not present even a prima facie defense and the finding and judgment for the defendant were without any basis in the evidence.

The judgment will be reversed and, the case having been heard without a jury, the court will enter a finding of fact that the defendants were guilty and that the right of property is in the plaintiff and judgment thereon.

Reversed.


text:
    The Best Brewing Company of Chicago, Plaintiff in Error, v. Louis Sachs, Defendant in Error.
    Gen. No. 14,667.

      Verdicts—when set aside. A verdict which awards damages and a judgment thereon are erroneous, if all evidence as to damages has been stricken from the record.
    Replevin. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 19, 1909.
    Winston, Lowt & McGinn, for plaintiff in error.
    Thomas W. Reilly, for defendant in error.
   Mr. Justice Mack

delivered the opinion of the court.

The judgment in this replevin suit is that the defendant have return of the property and that he have and recover $100 for his damages with costs. Whatever evidence there was in the case bearing on the question of damages was stricken out; even if it had remained in it would not have justified the verdict.

The evidence leaves the merits of the controversy and the right of possession and property very doubtful. It does not clearly appear from the testimony what has become of the old fixtures or whether defendant claims an outright gift or an exchange of old goods for new, either permanently or temporarily.

The judgment will be reversed and the cause remanded

Reversed and remanded.


text:
    William N. Gemmill, Appellee, v. Warren Springer, Appellant.
    Gen. No. 14,495.

      Verdicts—when set aside as against the evidence. A verdict clearly against the preponderance of the evidence will be set aside on review, unless the impropriety of the verdict is merely as to the amount thereof, in which case a remittitur will be required as a. condition to affirmance.

      Assumpsit. Appeal from the Superior Court of Cook county; "the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed on remittitur.

    Opinion filed October 29, 1909.

      Remittitur filed and judgment affirmed November 6, 1909.
    Douglas C. Gregg and William J. Ammen, for appellant.
    Morse Ives, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The controversy in this case resolves itself into a consideration rather of the facts than of the law. The suit is one for the recovery of a balance due for attorney’s fees. The controversy is mainly in respect to the amount due for services rendered the appellant by the appellee in securing the quashing of an indictment in a criminal case. The jury and the trial judge have accepted the appellee’s version of the facts, and the jury was ready to give appellee $2000 more than he himself claimed. There can be no question but that this first verdict was due to the fact that defendant had concealed from the plaintiff a perfectly clear and liquidated obligation of the defendant to him in the sum of $500 which plaintiff had forgotten, and was ready at all times to take advantage of this oversight; due also to certain evidence bearing strongly on the defendant’s general character, much of which was improperly and eagerly set forth, by the plaintiff in the course of his testimony, despite repeated objections and cautions to answer the exact questions propounded; due too to the skillful advantage taken by counsel in his closing argument of the $500 episode, and of this last-mentioned testimony.

The court, however, on the return of the verdict, annulled it and gave the jury further instructions upon which they promptly returned a verdict for the entire amount claimed by the plaintiff. We find no error in the method adopted by the court in this respect; but we are nevertheless unable to confirm the verdict of the jury and the judgment of the trial court assuming wherever there is a conflict that the plaintiff’s version is correct.

The situation is this: plaintiff was defendant’s attorney for a number of years at a salary of $100 a month, a salary for which he performed important services in extremely important civil cases involving large amounts and the expenditure of a great deal of time. He was, according to his own admission, inexperienced in criminal matters and was retained to secure the quashing of an indictment after three of the leading* criminal lawyers of the city had been consulted and had advised either that the indictment could not be quashed or that it was inadvisable to attempt to quash the same. He was, according to his version, to be paid ordinary fees for this service in addition to the $100 per month for his work in civil cases. His testimony is that he devoted at least four solid months in a period of six months to the preparation for the argument and for the trial in case the motion should be overruled. He kept no books and no memoranda of the time that he devoted to the case. He was successful in having the indictment quashed. His own testimony is that the time expended was reasonably necessary and that the reasonable and customary value of such services was at least $3000. His expert witnesses, on a hypothetical question assuming all that he had done and the time consumed in doing it to have been reasonably necessary, placed the value of the services at from $2500 to $5000. Expert witnesss for the defendant testified that from one to two weeks would have been amply sufficient for a lawyer of fair skill and practice in the criminal law to prepare for the motion, and that services so rendered for such a period would have been reasonably worth at the most $500. Plaintiff brought forward no evidence of any witnesses that the amount of time expended by him was reasonably necessary for the preparation for the hearing on the motion to quash and there is not a word of testimony in the case that he was retained to try the case if the motion to quash should be overruled. Under these circumstances we are of the opinion that the dear preponderance of the evidence is that the amount of time expended by the plaintiff was not reasonably necessary for a lawyer of reasonable skill in the criminal law, and that therefore the testimony as to. the value of services based upon the expenditure of four months’ time must be disregarded. In this aspect of the case the highest amount that the plaintiff could claim for this work would therefore be $500.

But more than this; no sum was mentioned as between the parties until after the victory. Some time thereafter, in discussing the state of the accounts between them the plaintiff, making a memorandum of the various items for the defendant’s clerk, included therein the sum of $500 for the services in the criminal case. His statement, contradicted by the other side, is that he drew a circle around the $500 and stated that he would accept that amount for his services only if the entire account was then settled, which was not done. At a later period he again stated that he would accept $500 if the account was then settled, but that if it was not then settled he would increase it to $1000, and subsequently, the account not having been settled, he demanded whatever a jury would give him. There is a very considerable conflict in the testimony as to whether the circle around the $500 was put there by the plaintiff and for the purpose stated by him, or whether it was put there for an entirely different purpose at a much later time. If the plaintiff’s version is the correct one, the offer to take $500 would not limit the amount recoverable by him to this sum. Very shortly thereafter, however, and in the same month that this memorandum was made, the defendant wrote to the plaintiff discontinuing the monthly services. In answer thereto the plaintiff immediately replied: “Now, I did tell Mr. Boberts that as soon as you paid me I would be very glad to cease doing all further work in your'interest, but I am not enough of a fool to allow you on the last day of February, after you have gotten into my debt over $3000', a part of which you still persist in disputing, to send me the sort of a letter that you did, and think by so doing you can cancel any contract which exists between yourself and me in relation to fees.” At the time this letter was written the defendant was indebted to the plaintiff in a little in excess of $2500, exclusive of the services in the criminal case and exclusive of the $500' that the plaintiff at that time knew nothing about. The $3000 referred to in the letter could therefore be only the undisputed $2500 and $500 as the charge in the criminal case. Moreover, the part which the defendant still persisted in disputing could be only the $500 charged for the-services in the criminal case inasmuch as the defendant’s contention at all times was that no additional-charge of any kind beyond the monthly salary was to be paid for these services. Whatever therefore may have been the conditions originally attached by the plaintiff to his charge of $500, we have here a clear and unequivocal statement that that amount was his claim in the criminal case. Under these circumstances, to permit him, because of the non-payment thereof, to' increase the same to whatever sum a jury might award, would not be in accordance with law. We therefore cannot permit a judgment in which more than $500 for the services in the criminal ease shall be allowed to stand. The additional $814 of the verdict includes the $100 per month from August 1, 1903, to May 31, 1904,-in accordance with the bill of particulars, although the plaintiff stated in his testimony that he did not charge anything after the first day of May, 1904. One hundred dollars must therefore be deducted from this amount.

If within ten days the plaintiff shall remit so much of the judgment as is in excess of $1214 the judgment of the Superior Court will be affirmed; otherwise it. will be reversed and the. cause will be' remanded.

Affirmed on remittitur. '

"November 6, 1909, remittitur filed and judgment affirmed.


author: Mr. Justice Smith

text:
    William Bruner, Defendant in Error, v. Elijah J. Fisher, Plaintiff in Error.
    Gen. No. 14,473.

      Verdicts—when set aside as against the evidence. A verdict clearly against the preponderance of the evidence will be set aside on review, unless the impropriety of the verdict is merely as to the amount thereof, in which case a remittitur will be required as a condition of affirmance.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Max Eberhardt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and remanded unless remittitur filed.
    Opinion filed October 29, 1909.
    Reversed and remanded November 9, 1909.
    Edward E. Wilson, for plaintiff in error; Edward H. Morris, of counsel.
    W. L. Martin and W. M. Farmer, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

This writ of error brings before this court for review a judgment of the Municipal Court of Chicago in an action in that court involving a controversy which arose between the plaintiff in error and the defendant in error over certain real estate transactions between them.

It appears from the record that Fisher, the plaintiff in error, in April, 1906; had entered into a contract with one B oxley, an agent, for the purchase of two lots in the city of Chicago known as Nos. 2821 and 2823 Vernon avenue, for the sum of $2650. Later arid before the purchase was closed, Bruner, plaintiff below, stated to Fisher, plaintiff in error, that he—Bruner—desired to purchase some real estate, and that he had about $1000 in cash which he could then pay on the purchase price. Fisher called Bruner’s attention to the Vernon avenue property, and went with Bruner to see it. Bruner, being satisfied with the property, agreed with Fisher to purchase the lots at the price of $2650 and paid $100 down as earnest money. Mr. Farmer, an attorney, was employed to examine the title and attend to closing the transaction. When the title was found to be good, Bruner paid Fisher $975, of which amount. $75 was to defray Farmer’s fees for his services in the transactions. A deed conveying the property to Fisher was delivered to Fisher, who at once endorsed on the bottom of the deed, “I, Elijah J. Fisher, transfer all my interest to William Bruner,” and signed it and acknowledged it. before a notary. Fisher’s explanation of the fact that the deed was taken in his name is that it was done at the request of Bruner, who was having some difficulty with a brother, and a suit against him was threatened. This is denied by Bruner. We do not think that there was any fraud practiced or intended by Fisher in taking the title in this manner.

There was no encumbrance on the property at the time of the purchase of $1500. The purchase was made for $2650, subject to an encumbrance of $1650. Consequently Fisher, in closing the purchase, gave six notes, for $25 each, and a trust deed securing them on the property. This was explained to Bruner, and Fisher told him that if he would pay Fisher $135 in cash, he—Fisher—would pay the six notes as they became due. Bruner paid Fisher the $135. As a part of this transaction Fisher gave Bruner a note for $150, payable to W. A. Hawley, the vendor, to hold until he took up the six notes for $25 each, it being agreed between them that the $150 note to Hawley should be given back to Fisher, when the six notes were paid. Fisher paid the six notes, and thereafter, at an interview with Bruner on May 8, 1907, tore his signature from the note.

Bruner afterwards became dissatisfied with the property or was having some trouble with his family and told Fisher that he would like to get the property off his hands and sell him the property back. Fisher replied that he was not in a position to buy the lots. Bruner then said that all he wished was to get out of it what he had put into it. Fisher then purchased from Bruner one lot known as No. 2821 Vernon avenue giving him $402 in the notes of Dr. Brown, his —Fisher’s—check for $100 dated November 28, 1906, and his own note for $75. Fisher also agreed to sell the other lot for Bruner, and subsequently found a purchaser, Mr. McQueenie, who took the property for $400 in cash and $200 in six months, according to Bruner ’s testimony.

From this purchase and the resales of the property, and the collection of rents- from the property in the meantime by Fisher this controversy arose between the parties, Bruner claiming that Fisher owes him $391.96 which he sues to recover, and Fisher claiming that there is nothing due from him to Bruner.

We have had much difficulty in getting at the facts of this case and satisfying ourselves as to the truth of the claims of the respective parties, because of the condition of the record. Without stopping to discuss the details of the evidence we must content ourselves with a short statement of our conclusion as to the state of the account between the parties. After a careful consideration of the evidence we think that plaintiff in error, Fisher, is justly indebted to Bruner in the sum of one hundred and eight dollars. The utmost that Fisher, as the agent and trustee of Bruner, should be charged with in this action is the difference between $2650, the purchase price of the property, and $1500, the encumbrance on the property when Bruner purchased it, or $1150: To this should be added $45 for rents collected and $75 paid Farmer for legal services. This amounts in all to $1270. Bruner, we think, has no claim against Fisher based on the $150 note or the transaction in which it was given. The evidence shows clearly that Bruner received $1,162 which should be credited on the above amount, leaving a balance of $108 due Bruner.

The judgment of the lower court is therefore reversed' and the cause remanded unless defendant in error shall remit within ten days down to $108, in which case the judgment will be affirmed for that amount.

Reversed and remcmded unless remittitur is filed.

November 9, 1909, reversed and remanded.


text:
    Warren Springer, Defendant in Error, v. Samuel Bingham’s Son Mfg. Co., Plaintiff in Error.
    Gen. No. 14,624.
    Landlord and tenant—provision of lease as to supplying of light construed. Held, under the terms of the lease in question in this connection, that the landlord was not obligated to purchase current from an outside source and furnish it to the tenant, hut that in the event of the landlord’s temporary inability to furnish current by reason of accident, etc., he was given a reasonable time in which to make repairs, and that if he made such repairs and resumed the supply of current within a reasonable time, no obligation attached against him.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Jtjdson F. Goins, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed November 19, 1909.
    Willard & Evans, for plaintiff in error.
    Stbdman & Soelke, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The controversy involved in this proceeding turns upon the construction of a written lease given by Warren Springer, defendant in error, to Samuel Bingham’s Son Manufacturing Company, plaintiff in error, of the premises known as Nos. 195-207 South Canal street, Chicago. Springer is the owner and operator of a large manufacturing building containing the above premises. The Bingham Company, the lessee, conducts an extensive plant in the premises for the manufacture of printers’ inking rollers. The lease is dated March 17, 1897, and grants to the Bingham Company a term from May 1, 1897, to April 30, 1902. Among other covenants in the lease, the lessor was to furnish, Sundays and legal holidays excepted, steam for the heating apparatus of said premises, when necessary, from October to May, inclusive, in each year, and sufficient live steam through suitable pipe conduits (lessee to furnish and maintain all steam connections and properly trap the same) and sufficient horsepower for the operation of such machinery and appliances as the lessee shall or may place in said premises, except electric dynamos for lighting purposes, for ten hours per diem, except as prevented by accident or unavoidable delay, and to furnish during the term, at such times as his electrical appliances are in operation, the electric current necessary to operate nine arc electric lights, each of 2000 candle power capacity.

The lease further provides that the lessor shall be allowed for each year of the term, for repairing or erecting machinery, or other work, 120 hours between the hours of 7 a. m. and 6 p. m., besides Sundays and legal holidays, during which time no power, live steam, steam heat, water, elevators or electric light need be furnished to the lessee, said 120 hours to be taken, selected and distributed when and as the lessor may see fit, consecutively or not, as the lessor may elect. No stoppage of live steam or heat or power or water or elevators or electric lights of less than two hours at any one time should be considered as part of, or deducted from the 120 hours, and the lessor should not be liable therefor, nor should there be any abatement or deduction to the lessee on account thereof. In the event of failure by the lessor to furnish electric light as therein agreed, through accident or otherwise, a deduction should be made from the rent reserved at the rate of 30 cents per diem, while such failure continued, for each light therein agreed to be furnished, as liquidated damages.

By an indenture dated May 1,1907, between the parties, the lease> and the extension thereof dated October 25, 1901, was extended to include additional space, and a term expiring April 30, 1912. In the extension the lessor agreed to furnish electric current to the lessee for 16 arc lamps of the same or similar power to those then in use in the building and suitable wiring to connect the leased premises with his dynamo.

The record shows that about 2 o’clock in the afternoon of November 14, 1907, the electric lights in the leased premises failed and were not furnished for a period of nine days and a fraction, except for a short time on November 26th. It appears that the fly-wheel or driving pulley on the main engine in the lessor’s building broke on November 13,1907, and caused some damage to the electric appliances. This accident cut off about 1000 horsepower from the building, and left only a small auxiliary engine of about 200 horsepower in service. This small engine was connected with the elevators and with an electric generator, but it was insufficient to generate lights for the whole building. Springer subsequently arranged with the Edison Company to furnish electric current for 800 horsepower, but did not turn any of this power into the premises of the Bingham Company, claiming that the voltage was too great for the Bingham Company’s lamps, and would burn them up. As to this claim of Springer there is a controversy in the evidence, evidence of plaintiff in error tending to show that if the Edison Company current had been turned on to the premises of the Bingham Company, it would have been used.

The Bingham Company paid the February, 1908, rent of its premises, except $84.75 thereof for which amount it claimed a set-off or recoupment for failure on the part of Springer to furnish electric light nine days at thirty cents per day for each light, $67.50; and for failure to furnish heat $15; and third for lumber used in installing electric cables $1.75.

Springer brought suit to recover the rent unpaid and the Bingham Company sought to set off or recoup the above items against it. The trial court allowed only the second item of $15 and gave judgment for $69.75.

No evidence was offered on the trial as to the third item, and no question is here made as to its disallowance. It is urged, however, on behalf of plaintiff in error that its claim for failure to furnish electric light current should have been allowed, under the provisions of the lease.

No claim is made in the evidence of any unnecessary delay in repairing the engine, or electric appliances. The contention of plaintiff in error is, that inasmuch as Springer could and did arrange with the Edison Company, an outside agency, for electric current, he was bound under the provisions of the lease to deliver the current to plaintiff in error, in the demised premises. Stated in other words, this contention is that Springer, under the provisions of the lease, and the circumstances shown, was bound to purchase current from an outside source and furnish it to plaintiff in error, where that could be done, while necessary repairs were being made to his machinery.

We cannot assent to this contention. We find no such covenant in the lease in express terms, and as we understand the contentions of plaintiff in error it is not claimed there is any such express covenant or agreement. It is, however, urged that the covenants above mentioned when construed fairly, and according to the manifest intention of the parties, and so as to maintain a reciprocity between the contracting parties, require that Springer should have a reasonable time, in case of his temporary inability to furnish heat and electric current by reason of the accident, fire or the lik'e, in which to place himself in condition to resume the service contracted for, and such only was the intent of the 120 hour clause. With this interpretation of that clause we are inclined to agree, for we do not think that by that clause it was intended to give Springer the right to deprive plaintiff in error of the service contracted for, and absolutely vital to the prosecution of its business arbitrarily or capriciously, and without any necessity therefor during the period named or any part of it. But this construction of the clause falls "far short of compelling Springer to purchase electric current of any available outside agency for plaintiff in error while he was necessarily engaged in repairing his machinery. To hold that it requires such purchase by him would be reading into the lease a provision not expressed in it, or implied in any expressed covenant. This we are not permitted to do under the law.

The conceded facts in the record leave no room for question as to the reason why defendant in error ceased furnishing the lights to plaintiff in error. It was due to the accident to the engine relied upon mainly to furnish the necessary power. It is also clear, we think, from the evidence that the auxiliary engine used by defendant in error was not equal to the task of supplying the electric current for lights in addition to the other service performed by it, if defendant in error was required to bring that engine into that service by the lease. Bepairs to the main engine were made necessary by the accident. They were in fact made within a reasonable time according to the evidence, and within the one hundred and twenty hours reserved in the lease.

The covenants and agreements of the lease are expressed in terms so clear that the meaning thereof, and the intention of the parties are obvious, and there is no occasion to resort to any construction of the contract, or particular clauses thereof, for the purpose of ascertaining their true intent.

We think the judgment of the Municipal Court is correct, and it is affirmed.

Affirmed.


text:
    J. W. Scott, Plaintiff in Error, v. First National Bank of Englewood, Defendant in Error.
    Gen. No. 14,631.

      Contracts—what not part of architect’s certificate. A statement appended to an architect’s certificate and not formally incorporated therein, held, not a part of such certificate and not an authorization to the owner to refuse to pay the face of the certificate.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. Edwin K. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 19, 1909.
    Rehearing denied November 30, 1909.
    Statement by the Court. The plaintiff in error, J. W. Scott, was engaged in the business of manufacturing and erecting structural iron under the name of American Iron & Wire Works. On September 27, 1906, he entered into a written contract with the First National Bank of Englewood, defendant in error, for the structural iron work on a bank building to be erected a,t Nos. 443 to 445 West 63rd street, Chicago. The contract price was $3460. Julian Barnes was named in the contract as the architect under whose directions the work was to be done, and specifications prepared by him were attached to and made a part of the contract.
    The contract specifies the work to be done, and provides that the architect’s decision as to the trpe construction and meaning of the drawings and specifications shall be final; and that payments were to be made for the work and materials on the architect’s certificates.
    Article 5 of the contract provides:

      ‘ ‘ Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architect, the owner shall be at liberty, after three days’ written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architect shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for the said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work, such excess shall be paid by the owner to the contractor; but if such expense shall exceed such unpaid balance, the contractor shall pay the difference to the owner, the expense incurred by the owner, as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall he audited and certified by the architect, whose certificate thereof shall be conclusive upon the parties.”
    Article 6 of the contract fixes the time for the completion of the work as follows:
    “He shall have the basement columns and the first floor beams in place in the building on or before the 15th day of October, 1906, and shall wholly complete the work on or before the 15th day of November, 1906, providing the walls of the building are in readiness to receive his work at the time specified. Should the contractor fail to complete the several portions of the work at the time specified then he shall forfeit to the owner the sum of Twenty-five Dollars ($25) for each and every day thereafter that the work remains unfinished, as and for liquidated damages.”
    The walls of the building were not in readiness to receive the structural iron at the time specified. The evidence on the part of plaintiff in error tends to show that for that reason he could not begin the work specified in the contract until October 18, 1906, and that he was unable to complete it until the following March.
    In the latter part of November the carpenter contractor began preparations to build the wooden trusses for the support of the roof. The shoes, rods, bolts, etc., for use in putting together these trusses, were to be furnished by plaintiff in error under the contract, and were not at that time ready for use. There is a controversy in the evidence as to the time when the plaintiff in error was notified that the carpenter contractor would be ready for the truss irons. Plaintiff in error made his first delivery of truss irons November 26, 1906, and the last delivery on December 8, 1906.
    On May 15, 1907, plaintiff in error’s work having been completed, Barnes, the architect, gave him a final certificate to the effect that he was 1 ‘ entitled to a final payment of $517.62 by the terms of the contract.” Under the signature of the architect was written on the certificate the following: 1 ‘Remarks: This contract- or delayed the work of the building twelve days, for which the contract provides a forfeiture of twenty-five dollars per day as liquidated damages.”
    When plaintiff in error presented this certificate for payment, the defendant in error offered to pay him $217.62, but refused to pay the additional $500 called for by the certificate.
    Gtdeon S. Thompson, for plaintiff in error.
    William A. Doyle, for defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The controversy here involved arises from the attempt on the part of the architect and owner to fix damages for delay in the work, and deduct the amount thereof from the balance due plaintiff in error on the completion of his contract.

The only authority for this in the contract is found in article 6 quoted above. Upon a reading of that article it will be observed at once that the obligation to complete the several portions of the work as specified, is conditioned upon the walls of the building being in readiness to receive plaintiff in error’s work at the specified times. No forfeiture or penalty can be exacted under the provisions of the contract unless the walls were in readiness as therein provided. There is no provision in the contract which we have been able to discover which authorizes or provides for a penalty of $25 a day for delaying the work of other contractors or for delaying the completion of the building, other than for a failure to place the basement columns and first floor beams in the building on or before October 15, 1906, and to complete the work on or before November 15, 1906; and this provision is enforceable only, if the walls of the building were in readiness to receive the work of plaintiff in error. If the walls of the building were pot in condition to receive the work on the days named, no expressed limitations as to the time of doing the work or any part of it are made in the contract.

The evidence in the record shows that the walls were not ready to receive plaintiff in error’s work at the dates specified. As to this fact it may be said on the record that it is not controverted. It follows that if the remarks appended to the architect’s certificate can be treated or considered as a part of the'certificate, the contract does not confer the power on the architect to declare a forfeiture of $25 per day for delaying the work on the building, and deduct the amount thereof, as liquidated damages, from the amount due plaintiff in error, the condition on which such a forfeiture was enforceable having never existed. We infer from the form of the certificate, and the fact that the appended statement was not formally incorporated in the certificate and a deduction made from the amount due and signed by the architect, that he did not construe the contract as giving him the power to make the deduction. But, however that may be, we do not think the appended remarks are a part of the certificate, and therefore there was no ground or basis for defendant in error to refuse to pay the amount of the face of the certificate on presentation thereof to it for payment.

Furthermore, upon consideration of all the evidence, we do not think it is shown that plaintiff in error delayed the completion of the building twelve days. In our opinion the trial court erred in not finding for the plaintiff in error and against the defendant in error for the sum of $517.62, the face of the certificate, and costs, and rendering judgment therefor. The judgment must therefore be reversed and a judgment rendered in' this court for $517.62 and interest thereon from the date of the demand for payment, amounting to $582.37. Reversed and judgment in this court.


author: Mr. Justice Smith Mack, J.,

text:
    Lena Henry, Defendant in Error, v. Adolph Breyer, Plaintiff in Error.
    Gen. No. 14,641.
    Landlobd and tenant—when not liable for personal injuries, Personal injuries ensuing to a tenant resulting from disrepair of a portion 'of the premises Over which the landlord had no control, cannot be recovered for of the landlord.
    Mack, J., dissenting.
    Action in case for personal injuries. Error to the Municipal Court of Chicago; the Hon. Max Ebebhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed November 19, 1909.
    Rehearing denied December 3, 1909.
    William A. Jones and James K. Lambert, for plaintiff in error.
    Wallace Streeter, for defendant in error; Cornelius Lynde, of counsel.
   Mr. Justice Smith

delivered the opinion of the court.

The plaintiff, Lena Henry, brought action in the Municipal Court of Chicago against Adolph Breyer, the defendant, for injuries sustained by her by the falling of a porch of a house owned by defendant, on July 27, 1906. The trial of the cause resulted in a verdict for $500 against the defendant, and judgment was entered thereon.

The evidence in the record shows that the defendant as owner of the house leased to plaintiff four rooms on the second floor of the house, and that he leased the third or upper floor of the house to one O'’Toole. It was a frame building, and Mrs. Henry with her family and the O ’Toole family were its only occupants. There was at the rear end of the building a flight of stairs leading up from the ground to the flat occupied by plaintiff, with a platform at the entrance of plaintiff’s flat. From this platform another flight of stairs led up to the apartment occupied by the O’Tooles on the third floor, with a platform at the entrance of the third floor flat There was a small platform halfway between the platforms above mentioned. These flights of stairs were on the outside of the building. ."While plaintiff was on this small halfway platform, or, as she testifies, on the top platform leading into the O’Toole flat, with her four children, and while Mrs. O’Toole and her child were also there, the top platform and the stairs leading up to it from the platform at the second story flat fell down, and plaintiff fell to the ground and was injured. The stairs leading from the ground to plaintiff’s flat on the second floor of the building and the platform at the second floor remained standing.

A preponderance of the evidence shows, however, that only the small platform halfway up from the second floor platform and the stairs between these platforms fell. The stairs leading from the halfway platform to Mrs. O’Toole’s platform at the third floor and that platform were directly nailed or attached- to the building and did not fall. The plaintiff, therefore, must have been on this halfway platform, or on the stairs leading up to it.

The evidence does not show, and it is not claimed, that the defendant Breyer, the landlord, expressly agreed to keep the premises occupied by these tenants in repair, or that the defendant Breyer was in control of the stairs and platforms leading up from the second story platform to the third story of the building, unless the facts above stated, in legal effect, gave to him, or placed in him such control.

Access was also had to these apartments by stairs on the east or front end of the building.

The plaintiff offered evidence tending to show that the defendant Breyer had a conversation a short time before the accident in question with one Shooker, a carpenter, in which Shooker told Breyer that he should fix that porch, and that Breyer replied: “This can stand for years yet.” Breyer denies that he had any such conversation and that he ever saw Shooker before the trial.

The question is raised whether, on the facts shown, the defendant Breyer is liable for the alleged injuries.

The liability of the landlord must rest upon the theory that the platform and stairs which fell were common appurtenances to both tenements and used by the tenants as the means of access to and egress from the premises demised to them, and that Breyer, as landlord, retained control over the same for the common use of both tenants, and that, therefore, he was under an implied obligation to use reasonable diligence to keep such platform and stairway in a safe condition. This is the theory urged by counsel for plaintiff.

In our opinion the portion of the stairs and the platform leading up from the second story platform to the third story platform were an appurtenance to the third story flat, and not a common appurtenance to both tenements. They were a necessary means of ingress to and egress from the third story flat only. The stairway was not an appurtenant to any other part of the building. Breyer did not retain control over these stairs and platforms. The control passed to O’Toole as an appurtenance to his flat. No other tenant had the right to use the platforms and stairs against his will or objection.

We do not think the fact that the stairway from the ground to the second story flat leased to the plaintiff was designed and used as a means of access to both tenements in the building, and the stairway leading from the second story platform or porch to the third, story flat was a continuation of the same, changes the character of the upper portion of the stairway or its use, or the legal relations of the defendant Breyer to it. The controlling fact is that it could only be used in connection with the 0 ’Toole flat, and it was not there for the common use of both tenants. The section of the stairway which fell was not necessary or essential to the enjoyment of the second story flat, and it was therefore not a common appurtenance to both flats. Plaintiff did not take with her lease of the second floor flat any easement or right over the section of the stairs "which fell, because such easement was not necessary to her enjoyment of the flat leased to her. Taylor’s Landlord and T., see. 162. As said in Root v. Wadhams, 107 N. Y. 384, at page 394 of the opinion: “Nothing passes by the word appurtenances except such incorporeal easements or rights or privileges as are strictly necessary and essential to the proper enjoyment of the estate granted. A mere convenience is not sufficient to thus create such a right or easement. (See Ogden v. Jennings, 62 N. Y., 526; Green v. Collins, 86 id. 246; Griffiths v. Morrison, 106 id. 165.) ”

In our opinion the use of and rights and privileges over the section of stairs which fell were strictly necessary and essential.to the proper enjoyment of the 0 ’Toole flat and passed to 0 ’Toole as an appurtenance thereto. If so, defendant Breyer had no control over it at the time of the accident, was under no implied obligation to use reasonable diligence to keep it in safe condition for use. In the absence of a covenant to repair, the defendant Breyer is not liable for injury resulting from the faulty construction or condition of the premises, the control over which is in the hands of a tenant, either to the tenant or third persons, unless he was guilty of fraud in misrepresenting the condition of the premises or concealed facts relative to their condition which it was his duty to disclose to the tenant. Woods Landlord and T., sec. 384. There is no evidence in this case of any such fraud or concealment.

We conclude, therefore, that there is no liability on the part of the defendant for the injuries sustained by the plaintiff and that the judgment of the Municipal Court is erroneous and contrary to law. The judgment is reversed with a finding of fact.

Reversed with finding of fact.

Mack, J.,

dissenting: I cannot agree that the defendant Breyer was not in control of that part of the staircase that fell. There is no contention that he owed complainant a duty as to that part of the staircase because of the fact that she was his second story tenant. As such tenant, she had no right appurtenant to her premises, in and to the staircase leading to the third floor. But it is claimed that he was under the same duty to her that he was to the third floor tenant and to any of her guests.

The exact question is this. A house has several flats, each comprising all of the rooms on one floor. A stairway leads from the ground to the top with platforms on each floor and landings halfway between each floor. The owner of the premises leases the rooms on each floor. The majority of the court concede that on these facts, the landlord will be held to have remained in control of that part of the stairs and landings and platforms over which the tenants of more than one floor necessarily have an easement of passage, but hold that he will be held not to' have retained the control of the top floor platform and so much of the stairs as leads to it from the floor next below, because as to these none but the top floor tenant has an easement. We have been unable to find any authority directly in point on the proposition. It may be conceded that the landlord could divide his possession and control, that he could demise with the top floor flat not merely an easement of passage over the upper platform and stairs but the upper platform and top flight of stairs themselves, thus giving the upper floor tenant the right to obstruct them or to use them for any purpose. But in the absence of any evidence of a lease to this effect, or of such actual exclusive possession and use by the upper floor tenant,' the proof of ownership and of the common use of the stairway, the lower portion of which, it is conceded, remains in the landlord’s control "because of the common right of several tenants, justifies a finding that the landlord and not the upper floor tenant retained the possession and control as well of the upper as of the lower stairs. The presumption that arises from this evidence may of course be rebutted by proof that such possession was in fact demised to the tenant, but no such proof was offered. In my opinion the judgment should be affirmed.


text:
    C. E. Elkins, Defendant in Error, v. Mary Schillinger et al., Plaintiffs in Error.
    Gen. No. 14,657.
    1. Mechanics’ lien—what essential to joint judgment against owner and contractor. Under section 28 of the mechanics’ lien law, the subcontractor must prove that he is entitled to a lien on the premises in question in order to entitle him to a joint judgment against the owner and contractor.
    2. Mechanics’ lien—erroneous to render judgment for attorney's fee. Eeld, that the rendition of a judgment for attorney’s fee in an action brought under the mechanics’ lien act is erroneous.
    Mechanics’ lien. Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1908.
    Reversed.
    Opinion filed November 19, 1909.
    McCasexll & Sou, for plaintiffs in error.
    No appearance by defendant in error.
   Mr. Justice Smith

delivered the opinion of the court.

The defendant in error, Elkins, brought an action in the Municipal Court of Chicago under section 28 of the lien law to recover $33.50 alleged to he due him for labor on a building of Mary Schillinger, plaintiff in er-tor, as a subcontractor. The court found in favor of the plaintiff and entered judgment for the amount sued for, and five dollars attorneys ’ fees in the ease. Errors are assigned on the judgment.

Upon an examination of the record we find that the judgment is erroneous upon the merits, and for the reason that it includes an attorney’s fee.

In our opinion the evidence does not, under the law, warrant the conclusion that defendant in error is entitled to a mechanic’s lien on the premises. The plaintiff must prove, in actions brought under this statute, that he has a lien on the premises in order to entitle him to a joint judgment against the owner and contractor. The plaintiff failed'to make this proof. The evidence shows that he is not entitled to a lien. Nb indebtedness is shown and found from the owner to the contractor. The judgment is therefore erroneous. Merritt v. Crane Co., 126 Ill. App. 337; Culver v. Elwell, 73 Ill. 536.

The judgment is also erroneous because it allows an attorney’s fee. Manowski v. Stephan, 233 Ill. 411.

The judgment is reversed but the cause is not re- • manded.

Reversed.


author: Mr. Presiding Justice Holdom

text:
    John Winter, Defendant in Error, v. Fred W. Meier, Plaintiff in Error.
    Gen. No. 14,665.
    Accobd and satisfaction—what consideration sufficient to establish.' While the common law doctrine that a debt could not be settled by the payment of a less sum, is still the law of this State, yet a slight variation in the way of added consideration will remove a case from the operation of this strict common law rule. After an accord and satisfaction has been made, subsequent payments are voluntary.

      Assumpsit. Error to the Municipal Court of Chicago; the Hon. W. W. Maxwell, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and judgment here.
    Opinion filed November 22, 1909.
    Rehearing denied December 6, 1909.
    Frederick H. Wickett and George J. Meier, for plaintiff in error.
    William D. Johnson, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

The original statement of plaintiff’s claim filed in the Municipal Court is “for money lent by the plaintiff to defendant on or about the month of June, 1895, the sum of $400. ’ ’ By leave of court this statement of claim was amended by adding in form a count declaring upon four notes, one for $125 and three for $100 each, made by defendant, payable to the order of plaintiff, all dated February 1, 1897, and payable respectively February 1, 1898, 1899, 1901 and 1902, after date, with interest at six per cent per annum. The count concludes, “that said four promissory notes were afterwards returned to the defendant herein by the plaintiff herein, and the defendant then either lost or destroyed them.”

The cause was tried before the court, a jury having been waived, and the court found the issues for the plaintiff, with damages assessed at $444.95, for which sum judgment was entered, and defendant sued out from this court a writ of error and asks a reversal of the judgment and a finding by this court in his favor. The testimony shows that the original transaction involved a loan of $400 in the spring of 1895 to defendant from plaintiff, for which defendant gave to plaintiff the notes of Meier, Heldt and Rosenfeldt for $400; that these notes were subsequently surrendered for the four notes of defendant set out in the amended statement; that in February, 1902, defendant being in failing circumstances and owing more money than he could pay, settled the claim of plaintiff by paying him $200 and receiving from him a surrender of the four notes for $100 each last given; that at the same time defendant took a written release signed by plaintiff. Plaintiff denied that any representation was made that defendant was in failing circumstances at the time of receiving the $200 and the surrender of the notes, but admits defendant said he owed a lot of money, but denies giving the release received in evidence on the proffer of defendant. Plaintiff contends that at the time of receiving the $200 from defendant and his surrender of the notes to him, defendant promised1 to pay the balance, and it is admitted that defendant did subsequently pay plaintiff an additional $50'. It seems to us that the finding of the Municipal Court is against the preponderating force of the evidence. While defendant insists he made plaintiff aware of the fact at the time that he claims a settlement was made, that he was in financial straits, plaintiff denies it, yet admits that defendant told him he owed a lot of money. A man owing a lot of money, and so representing to a creditor with whom he is making a settlement at 50 per cent on a long past due claim, may, by inference at least, be regarded as representing himself as financially embarrassed, and when the creditor accepts the money proffered and surrenders the evidences of such indebtedness to the debtor and gives a written release of all claims, a strong presumption may rightfully be indulged that the money was received and the notes surrendered and the release given because of the financial embarrassment and at least apparent insolvency of the debtor. The pertinent facts, not in dispute, strongly corroborate defendant’s contention. Much of plaintiff’s evidence is refuted by his admissions of facts which tend to corroborate defendant’s claimed defense and in a large measure support it.

While the common law doctrine that a debt could not be settled by the payment of a less sum, but that such payment must be regarded as received on account of the debt due and a pro tanto reduction of the debt, is still the law of this State, yet a slight variation in the way of added consideration will readily remove a case from the operation of this strict common law doctrine. So the courts of this and other States have held that any other consideration not of intrinsic value to the creditor, moving from the creditor, is sufficient to withdraw the case from the operation of the common law doctrine. A settlement made in view of the insolvency of the debtor is a consideration of sufficient value to bind the parties to the settlement made and work an accord and satisfaction between them.

In Curtis v. Martin, 20 Ill. 557, it was held that “if a smaller sum be taken by way of compromise * * * from a debtor in failing circumstances, in full discharge of the debt, no reason is perceived why it should not be binding on the parties.” ' Murphy v. Halleran, 50 Ill. App. 594; Rice v. Mortgage Co., 70 Minn. 77; Dawson v. Beall, 68 Ga. 328; Hinckley v. Arey, 27 Me. 362.

The case must be adjudged as of February, 1902, when the settlement was made and the money received, the notes surrendered and release given. This was upon a sufficient consideration and the debt was then discharged. Whatever money was subsequently paid was a voluntary payment and in no way affected the prior settlement. This being our view of the case, the other points made and argued become of no importance to our decision.

The judgment of the Municipal Court is reversed and judgment for defendant is directed to be entered in this court.

Reversed and judgment for defendant here.


text:
    Albert Broeckert, Defendant in Error, v. Morava Construction Company, Plaintiff in Error.
    Gen. No. 14,666.
    Personal injuries—who liable for violation of ordinance. In an action for an injury resulting from the violation of an ordinance regulating protection to be afforded where buildings are Being erected, repaired, altered or removed, it is the owner or the general contractor having supervision or control of the building in question who is liable.
    Tort. Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in this court at the October term, 1908.
    Reversed and remanded.
    Opinion filed November 22, 1909.
    Rehearing denied December 6, 1909.
    John Clark Baker, for plaintiff in error.
    Felix J. Streyokmans, for defendant in error.
   Mr. Presiding Justice Holdom

delivered the opinion of the court.

Plaintiff recovered a judgment for $650 against plaintiff in error in the Municipal Court upon the verdict of a jury. The action was of the fourth class in tort and brought against the National Fire Proofing Company and the Morava Construction Company by plaintiff to recover damages for a personal injury to him, which he claims resulted from the negligence of both the companies named. The jury found in favor of the National Fire Proof Company and by their verdict of not guilty eliminated it from the cause.

Plaintiff was a laborer in the employ of the National Fire Proof Company and at the time of being hurt was engaged in moving some planks from an alley into a building which was in course of construction, for the steel work of which the Morava Company had a contract. On the morning of the accident to plaintiff the Morava Company’s workmen were engaged in construction work on the third floor. From that, floor a piece of so-called “lagging,” which was a board or plank about 2” x 4’ and 7’ in length, fell from the third floor and struck plaintiff “edgeways” on his left hand between the thumb and second finger, crushing the thumb and otherwise injuring his hand.

As this cause must again be tried, we refrain from commenting upon the weight of the evidence, whatever it may be, which may tend to support a recovery against plaintiff in error under its liability at common law, but shall confine such discussion as we may indulge in to the proof, or rather lack of proof, that the Morava Company violated section 728 of the Municipal Code of Chicago, the material part of which is, “All scaffolds erected in this city for use in the erection, repairing, alteration or removal of buildings shall be well and safely supported and of sufficient width and properly secure so as to insure the safety of persons working thereon or passing under the same, and to prevent the falling therefrom of any material that may be used, placed or deposited thereon.

“It shall be the duty of every owner, person or corporation who shall have the supervision or control of the construction of or remodeling of any building having more than three frame floors, whether some or all of such floors are above or below the established street grade, to provide and lay upon the upper side of the joists or girders, or both, of the first floor below the riveters and structural steel workers a plank floor. * * *

The case as finally given to the jury limited the liability of the Morava Company to its violation of section 728, supra. Counsel for plaintiff read the ordinance to the jury, the court in instructing the jury again read it to them, and at a subsequent stage of his instructions repeated a portion of it to the jury. The trial judge concluded his instructions to the jury by saying to them as the final word from the court, “that the only grounds upon which the plaintiff can recover in this case, if at all, is upon the allegations that defendant violated the ordinance introduced in evidence or some portion thereof.”

The court gave the quoted instruction in the place of a similar preceding instruction which he withdrew, omitting therefrom the qualifying words, “and to recover on that ground he must prove that the defendant has the control or supervision of the construction of the building. * * * ” To so prove was the burden of plaintiff before he could recover damages. The instruction as first given stated the legal proposition with accuracy; its withdrawal was prejudicial to defendant, and the giving of the final instruction reversible error. The ordinance being subversive of the common law, nothing necessary to a recovery can be presumed, but that which is made essential to a recovery by the ordinance must be established by affirmative proof before a recovery can be sustained. The persons liable under the ordinance are “every owner, person or corporation who shall have the supervision or control of the construction of or remodeling of any building,” etc. There is no evidence that the Morava Company was owner or had supervision or control of the building. It was not a general contract- or, but contractor for the steel construction work. There is no evidence that there was any general contractor, and for aught that appears to the contrary the owner may not have employed any general contractor, but have let the contracts for work and material entering into the building himself. The persons liable for a violation of the ordinance are the owners and persons supervising or in control. The Morava Company was neither owner nor in control or supervision. There is no pretense that it was either. The trial judge seems to have proceeded upon the erroneous theory that notwithstanding the ordinance cast no duty upon the Morava Company and imposed no obligation whatever upon it, yet it might be made responsible for

the policy to Davis, the usee plaintiff, and that no con-any violation which may have resulted from failure to conform to the ordinance by those charged with that duty by its terms. Such was the trend of the instruction last given to the jury. As said by Mr. Justice Baker in Wells v. Conroy, No. 13719, not reported, “We do not think sec. 728 of the city ordinance applicable to the facts of this case.” Grace v. Gallagher, 140 Ill. App. 603.

The judgment of the Municipal Court is reversed and the cause remanded.

Reversed and remanded.