text:
    Mary Kerwin, Appellee, v. Thomas J. Balhatchett, Appellent.
    Gen. No. 14,183.
    1. Trover&emdash;what allegations sufficient to sustain. A count in trover which alleges that the plaintiff lost the money in question and that, the same came to the possession of the defendant hy finding is a sufficient averment to sustain the fiction of the common law to support an action of trover.
    2. Trover&emdash;when action of, does not lie. An action of trover does not lie if it app'ears that the money in question was voluntarily given hy the plaintiff to the defendant to do certain things with, namely, to pay himself a debt which the plaintiff owed him and then to discharge other specified indebtedness of the plaintiff and to account to the plaintiff for the balance.
    3. Trover&emdash;when does not lie. Trover lies for specific chattels
    wrongfully converted, and not for money had and received for payment of debts. It does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted. ,
    4. Appeals and errors&emdash;tobera assignments of error sufficient to preserve rulings upon instructions. If it is assigned as a reason why a reversal should be ordered that the trial judge erred in overruling a motion for a new trial and if such a motion was made in writing, specifying'as one of the grounds therefor the action of the court in giving a particular instruction, the propriety of such instruction is subject to review.
    5. Capias ad satisfaciendum&emdash;in what actions may issue. In an appropriate action, upon an appropriate showing of fraud, a capias ad satisfaciendum may issue to enforce the payment of a judgment rendered in an action of assumpsit.
    Trover. Appeal from the Superior Court of Cook county; the Hon. Albert C. Barnes, Judge, presiding.
    Heard in this court at the October term, 1907.
    Reversed and remanded.
    Opinion filed February 4, 1909.
    Rehearing denied April 8, 1909.
    George Willard, for appellant.
    Stahl & Lewald and George M. Bagbt, for appellee.
   Mr. Justice Holdom

delivered the opinion of the court.

Appellee made a motion to strike from the files a supplemental record filed pursuant to leave granted by this court,, together with an abstract of said supplemental record, which motion the court reserved to the hearing. That motion is now denied.

Plaintiff recovered a judgment upon the verdict of a jury for $1,256.86, in an action of trover. While a declaration consisting of two counts was originally filed, plaintiff entered a nolle prosequi as to the first count, and the cause proceeded to trial under the second count and a plea of not guilty. Two juries have passed upon the facts, each rendering their verdict in favor of plaintiff. From the judgment rendered on the last verdict we are asked to review the record and reverse the judgment. We are convinced that neither the second count of the declaration nor the evidence of plaintiff states or furnishes facts supporting, or even- tending to support, an action of trover. After stating in the second count that plaintiff lost the money in question, and that the same came to the possession of defendant by finding, which is a sufficient averment to sustain the fiction of the common law to support an action of trover, it proceeds to aver that defendant, well knowing the money to be plaintiff’s except the sum of $176.50, refused to surrender the same, after repeated demands, and that defendant, after finding the money, promised plaintiff to pay certain debts of plaintiff, one for $184 and another for $90; that defendant failed to pay either, and that such failure was with malicious intent to financially ruin plaintiff. It is then averred that plaintiff, at the time defendant found her money, was in the laundry business, the receipts of which aggregated $3,000 a year and yielded a profit of $800 a year, and that the actions of defendant in detaining her money and not paying the two debts mentioned caused plaintiff to lose her laundry business, which was of the value of $2,000. Pleading to this declaration and the verdict rendered on such issues might furnish a cure of the defects in this pleading, and we might seek the shield afforded by the verdict of the jury as establishing facts sufficient to prove the wrongful conversion of the money charged, if it were not for the erroneous instruction numbered ten given to the jury at the request of plaintiff.

Defendant was the medical attendant, at and before the time of the transaction in conflict, in the family of plaintiff, who had, just preceding this transaction, lost her husband by death. At the time of the death of her husband he was a member of the Ancient Order of United Workmen, and in virtue of such membership plaintiff was entitled to receive as an insurance benefit $2,000. At the time of the payment of this benefit plaintiff was ill and believed that she would not recover. Defendant attended her in this sickness. A Mr. Vail brought to plaintiff the check of the order for the $2,000. The undertaker who had buried her husband was present to collect his bill for such services. Defendant was also present and lifted plaintiff up in her bed into a sitting posture, so that she could, as she did, endorse her name on the back of the check. Vail and Bell went to the bank on which the check was drawn and cashed it. Bell, who was cashier of the bank, brought the money back to plaintiff. Two hundred and forty-five dollars were taken out of the $2,000 for house rent which plaintiff owed, before the balance of the money was placed upon the bed upon which plaintiff was lying. Bell then remarked to defendant that some one was waiting for him in his office, whereat defendant picked up all the remaining money but $550 and left. The undertaker’s bill against plaintiff for burying her husband was $600, as he claimed, and when the money was counted after defendant had left, but $555 of it could be found. Plaintiff gave the undertaker $550, keeping but $5 for herself. Plaintiff, however, on further examination, materially varies this story. She says defendant told her that she was in a very critical condition, and that if she would leave the money with him until nine o ’clock the next morning, the hank being then closed, he would give her three checks and pay her bills out of it, and “have a reckoning afterwards”; that although defendant afterwards gave her several checks with which to pay some pressing bills, he subsequently took them from her and destroyed them. At this time plaintiff owed defendant for services and disbursements about $170. When plaintiff several days afterwards asked defendant for her money, he said he would get it as fast as he could, although, he added, she “had all the money belonging to her”. On cross-examination plaintiff testified that at the time defendant took the money she said to him, “Doctor, I am much obliged to you for your kindness”; and her daughter testified that when the doctor took the money her mother said “it was all right”. This testimony is all irreconcilable with the claim that defendant took the money under such circumstances as made him liable to respond therefor in an action of trover. Whatever the reason may be for his taking the money, this evidence makes it clear that he took it with the knowledge and consent of plaintiff.

Instruction 10, to the giving of which defendant excepted and assigned as a reason for the granting of a new trial, is as follows:

“The court instructs the jury that if they believe from the evidence that when the twelve hundred dollars was given or handed over to the defendant, the plaintiff, Mrs. Kerwin, did not then owe him that sum of money, but did owe him $176.50, and that it was the understanding between them that the defendant was to pay himself out of such money the amount she so owed him and keep the balance for her until demanded by her or paid out on her request, and if you further believe from the evidence that she owed him no more than $176.50 at that time or since, and that she demanded of him the balance of $1,023.50, and that he refused to pay her the same or any part thereof and has never paid her or for her account since that time any part of such sum of $1,023.50, and that he has converted the same for his own use, then you shall find for the plaintiff and for such amount with interest at the rate of five per cent per annum from the date of such demand”.

The court overruled defendant’s motion for a new trial, and that action of the court is assigned on the record as error.

Plaintiff insists that the giving of instruction 10 is not subject to review in this court, because defendant has not assigned such action of the court upon the record for error. Defendant’s motion for a new trial was in writing, and assigned as a reason why the court should grant a new trial, error in giving that instruction. We understand the rule to be that this action of the trial judge in giving that instruction is open to review, by the assignment as error the action of the court in overruling defendant’s motion for a new trial.

Plaintiff relies upon the case of Grand Pacific Hotel v. Rowland, 88 Ill. App. 519, as being so similar in fact and law as to be controlling of our decision in this case. But the cases are not at all similar. In the Rowland case the hotel waiter having received' a $500 United States bill with which to pay an account contracted by Rowland in the hotel restaurant, decamped with it. There was a clear unlawful conversion by the servant, in the ordinary course of his employment, which made the master liable for his tortious act. Not so here. The money was voluntarily given to defendant, to do certain things with— to pay himself the debt which plaintiff owed him and then to discharge other specified indebtedness of plaintiff and to account to her for the balance. The relation of debtor and creditor was thus created between them. Trover lies for specific chattels wrongfully converted, and not for money had and received for payment of debts. It does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted. Donaghue v. Henry, 4 E. D. Smith, 162; Kreider v. Fanning, 74 Ill. App. 230; Loomis v. Stave, 72 Ill. 623; Hayes v. Ins. Co., 125 ibid. 626; Sec. 524, 2 Cooley on Torts, p. 857.

In Loomis v. Stave, supra, it was held that a surplus arising upon the sale of bonds sought to be recovered in an action of trover could not be recovered in that action. And in Donaghue v. Henry supra, that set-off could not be interpolated as a defense in a tort action in the nature of trover under the New York code. In Cooley on Torts, supra, the text writer lays it down as an axiom of the law that trover will not lie for money given to a defendant to be used for a particular purpose, which defendant converts to his own use or which may be found due upon an accounting.

The instruction complained of follows the evidence, and the second count of the declaration, and is not an instruction in trover. By its directions the jury are in effect required to state an account between the parties in relation to the money entrusted to defendant’s keeping, to be paid out and accounted for in the manner which plaintiff claims' was agreed when she allowed defendant to take it away. The instruction starts out by telling the jury “that if they believe from the evidence that when the twelve hundred dollars was given or handed over to the defendant, the plaintiff did not then owe him that sum of money, but did owe him $176.50”, etc., inhibits the holding that the money was either tortiously taken or retained.

It is somewhat regrettable that counsel for plaintiff should have mistaken the form of action in which to prosecute his client’s apparently meritorious claim, thereby necessitating another trial upon reformed pleadings- The action of trover is one of the survivals of the common law in this jurisdiction, abolished many; years since in the country of its origin. It is an ancient remedy, involved in technicality of procedure and environed with legal fiction; but he who invokes it must maintain the cause in accord with precedent established for its adjudication. This court is not unmindful that the purpose of counsel in resorting to an action of trover was apparently to enable an enforcement of the judgment expected by the drastic process of a body execution. If there was actual fraud in the contracting of the debt, and such fraud is established by the proofs in an assumpsit action, it does not follow that plaintiff would not be entitled to the writ of capias ad satisfaciendum to enforce such a judgment. Section 1, Chapter 16, B. S., title “Bail in Civil Cases”, expressly includes assumpsits at law, and if the nature of the case stated develops fraud in fact, and such fraud constitutes a tort in law, the same remedies may be had in an action of assumpsit as in an action which is brought in form as a tort action. It was in effect so held in an action of debt in Parker v. Follensbee, 45 Ill. 473. When the case again peaches the trial court, plaintiff will have the right, if she is so advised, to change her form of action from trover to assumpsit.

For the errors indicated, the judgment of the Superior Court is reversed and the cause remanded for a new trial, in accord with the views here expressed.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Justice Holdom

license: Public Domain

text:
    A. H. Woods Production Company, Defendant in Error, v. Chicago, Cincinnati & Louisville Railroad Company, Plaintiff in Error.
    Gen. No. 14,291.
    1. Corporations—purpose of statute regulating foreign. „The statute which requires foreign corporations doing business in this state to comply with certain regulations was not intended to prevent or interfere with interstate commerce, but its purpose was to guard against foreign corporations doing business in this state in competition with domestic corporations without being subject to the same restrictions and control as the domestic corporations and to prevent what, in effect, would be, but for the statute, unfair competition in domestic trade, in giving advantages to the foreign corporation not possessed by the domestic.
    2. Corporations—when foreign not doing business in this state. To contract in another state to produce a play and to produce it in this state is not doing business in this state so as to require compliance with the statutory regulations applying to foreign corporations.
    3. Criminal law—what not disturbance of peace upon Sunday. Held, that the giving of the theatrical performance in question in this case upon Sunday did not contravene the statute as a noise, rout or amusement tending to disturb either the peace, of society or of any private family.
    4. Appellate courts—when without jurisdiction. The appellate courts of this state have no jurisdiction to pass upon the constitutionality of a statutory enactment.
    Error to Municipal Court of Chicago; the Hon. William N. Cottrell, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 4, 1909.
    Rehearing denied April 8, 1909.
    Worth E. Caylor, for plaintiff in error.
    Adolph Marks, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This writ of error is sued out in an endeavor to have this court, on review of the record presented, reverse the judgment of the Municipal Court for. $430.34 and costs, rendered by it in favor of plaintiff against defendant.

Defendant urges as grounds for reversal two reasons :

First, that plaintiff is a foreign corporation (and it is), and has not complied with the laws of this state in relation to foreign corporations, embraced in section 679, chapter 32 R. S. (and it has not).

Second, that plaintiff contravened sections 261 and 262 of the Criminal Code, which, it is contended, prohibits the giving of theatrical performances on Sunday.

The plaintiff is a New York corporation. The contract to produce in Chicago the theatrical play of “Nellie, the Beautiful Cloak Model”, was made in the city of New York. The contract between plaintiff and defendant to carry the theatrical company of performers from Cincinnati to Chicago was made at Cincinnati, in the state of Ohio. Plaintiff has no office or place of business in Chicago. It maintains but one office and place of business, and that is in New York City.

We are unable to hold that the numerous cases cited by plaintiff in support of its first contention have any application to the facts in the case at bar. Within the reasoning of these cases, plaintiff was neither established nor doing business in Illinois within the purview of the statute supra. That statute was not intended either to prevent or interfere with interstate commerce, for if it was so intended it would defeat such purpose, as such an act would be a nullity as violating the interstate commerce clause of the federal Constitution. What is intended by the statute supra was to guard against foreign corporations doing business in this state in competition with domestic corporations without being subject to the same restrictions and control as the domestic corporation, and to prevent what in effect would be, but for the statute, unfair competition in domestic trade in giving advantages to the foreign corporation not possessed by the domestic. The sending of sales agents by foreign corporations into this state tc take orders to be filled at the home office of the foreign corporation, and shipping therefrom the goods so ordered to the persons within this state from whom the orders were taken, has been held not to be in violation of the statute supra, and not to be doing business within this state so as to make it necessary to comply with the provisions of this statute in order to validate the right to maintain an action for goods so sold. Spry v. Chappell, 184 Ill. 539; G. C. R. v. Hook, 40 Ill. App. 547; Bradley v. Waukegan, 113 id. 600; March v. Strobridge, 79 id. 683; Havens v. Diamond, 93 id. 557; Goepfert v. Campagnie Generale Transatlantique, 156 Fed. Rep. 196.

The second contention is equally as fallacious as the first. . Sections 261 and 262 of the Act supra are as follows:

“Sec. 261. Whoever disturbs the peace and good order of society by labor (works of necessity and charity excepted), or by any amusement or diversion on Sunday, shall be fined not exceeding $25. This section shall not be construed to prevent watermen and railroad companies from landing their passengers or watermen from loading and unloading their cargoes, or ferrymen from carrying over the water travelers and persons moving their families, on the first day of the week, nor to prevent the due exercise of the rights of conscience by whomever thinks proper to keep any other day as a Sabbath.

“Sec. 262. Whoever shall be guilty of any noise, rout or amusement on the first day of the week, called Sunday, whereby the peace of any private family may be disturbed, shall be fined not exceeding twenty-five dollars”.

It can hardly be seriously contended that the giving of the theatrical performance in question on Sunday contravened this statute as a noise, rout or amusement tending to disturb either the peace of society or any private family. Especially is this so when it is a matter of common knowledge that the theatre in which the Sunday performance was given is far removed from family dwellings. A contract made to be performed on Sunday was held valid and binding in McCurdy v. Alaska & Chicago Commercial Co., 102 Ill. App. 120.

With the constitutionality of the Act in question this court has no concern, as it is a question which, under the law, it is impotent to decide. But in Foll v. People, 66 id. 405, it was decided that labor on Sunday did not violate Section 261 supra, unless done in a way to disturb the peace and good order of society. There is no evidence in this record justifying the assumption that the performance of “Nellie, the Beautiful Cloak Model”, disturbed the public peace or good order of society.

The judgment of the Municipal Court being without error is affirmed.

Affirmed.


text:
    James B. Clow & Sons, Plaintiff in Error, v. Morris Goldstein et al., Defendants in Error.
    Gen. No. 14,331.
    1. Mechanic’s liens—what essential to maintenance. No mechanic’s lien will be allowed unless predicated upon a valid claim.
    2. Accord and satisfaction—when payment by agent established. Held, under the evidence in this case, that payment by the owner to a lien claimant had been established, .it appearing that such payment was made through an agent who was indebted to the lien claimant individually and that the money paid by such agent to the lien claimant should have been, although it was not, credited upon the account of such owner rather than upon the individual account of the agent.
    3. Debtor and creditor—application of payments. The general doctrine as to the application of payments undoubtedly gives the creditor the right, in the absence of a direction, to apply a credit according to his own selection, or the law, in certain cases, will apply it to the item first due, but a different doctrine obtains where the rights of third parties are involved; then the law will apply the payment as may seem reasonable and just.
    Mechanic’s lien. Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    Newton Wyeth, for plaintiff in error.
    Jacob Diamond and James F. Hutchinson, for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

Plaintiff sought to establish a mechanic’s lien against certain property of defendant Goldstein, to the amount of $156.30 for certain bath tubs and sinks sold at that sum to Hoffman, a plumber, who, under a contract with Goldstein, installed them into a flat building owned by him, which he was at the time engaged in renovating. Notice of lien was duly served. The cause was tried by the agreement of the parties before the trial judge without a jury, and the judge, after hearing all the evidence, found the issues in favor of Goldstein and entered judgment accordingly, and the record is brought to this court by plaintiff' for review.

The learned trial judge, after stating the evidential facts considered by him in arriving at his judgment in the premises, proceeds: “From the foregoing facts the court finds as a matter of law that the plaintiff would be entitled to maintain its action for lien herein; but the court finds as matter of law from said facts, that the payment of May 21, 1907, by Gold-stein to Hoffman, for the purpose of purchasing materials by said Hoffman for the Goldstein job having-been traced to the plaintiff, in the payment made May 29, 1907, by Hoffman to the plaintiff, the same should, as between the parties, be applied in favor of Gold-stein and charged to the plaintiff as a payment on account of the said materials sold and delivered for the purpose of the Goldstein job, and therefore the court finds the issues for the defendant”.

It is manifest that if plaintiff has been paid for the material bought of it by Hoffman, and which went into the Goldstein building, that the lien question is of no concern. There can be no lien without a live claim to support it. So that the trial judge, after concluding that plaintiff had no claim against Gold-stein for material furnished Hoffman which went into the Goldstein building very properly disregarded the lien contention. That Hoffman was, in the estimation of plaintiff, a tradesman of but little substance and limited financial credit, is inferable from the fact that by an understanding between them, Hoffman’s credit was fixed at the small sum of $100, although he was at times allowed credit for a larger amount. That Goldstein paid Hoffman $150 with which to pay for the bath tubs and sinks purchased by Hoffman of plaintiff, and subsequently put into his building by Hoffman, who paid plaintiff at the time $200, is not in dispute. 'So that unless some firmly-fixed principle of law relating to the application of payments received by a creditor from his debtor, without specific direction as to the account on which it is paid, vests the creditor with the right to make the application as he may see fit, regardless of the facts and the interests of third parties, Goldstein is entitled to prevail. That Hoffman cashed the Goldstein check and took it with $50 additional and paid it to plaintiff, is not denied. Therefore Goldstein’s money paid for all the goods which Hoffman bought and put into his building. On plain principles of equity, Goldstein should not be compelled to pay plaintiff more than once for goods bought by another and put into his building, when no contractual relationship existed between them, and no liability in law incurred except the right of plaintiff to a lien in a proper case, given by the mechanics’ lien statute. If plaintiff can succeed in again collecting from Goldstein the amount claimed, Goldstein will have paid twice for the goods bought by another, and of which he received the benefit; whereas, if he had bought them direct, it would not be pretended that they were not paid for. Goldstein could have said to Hoffman, “Have the goods billed in my name, and here is the money to pay for them”. If this had been done and the money paid to plaintiff at the time of the purchase, the indebtedness would have been effectually discharged. This, in our opinion, however, was the practical effect of the transaction.

The general doctrine as to the application of payments undoubtedly gives the creditor the right, in the absence of a direction, to apply the credit according to his own selection or the law in certain cases will apply it to the item first due. But a different doctrine obtains where the rights of third parties are involved. Then the law will apply the payment as may seem reasonable and just. Dehner v. Helmbacher, 7 Ill. App. 47, and cases in that opinion cited. What is reasonable and just as applied to the, facts of this case must determine our judgment. Some of the facts controlling on this point rest in the former dealings of plaintiff with Hoffman. It knew he bought its goods in the usual course of his business as a plumber, and that the purchases were for jobs he had in hand which necessitated the placing- of its material in the buildings of third parties. At every purchase it was within the plaintiff’s power to ascertain from Hoffman the building in which he purposed to install the goods bought, the name of the owner, and all the particulars of the transaction; and when Hoffman made payments, plaintiff could, if it so desired, have discovered on whose account the money had been received, and apply it accordingly. No such effort was made by plaintiff, and while there was no legal obligation resting upon it to discover any of the conditions, nevertheless, when the rights of a party having no contractual relationship with a claimant is involved, he whose equity is the strongest must prevail. There can he no dissent as to where the equities lie in this case as between plaintiff and Goldstein. Defendants have plaintiff’s goods and plaintiff has received defendants’ money in payment. Not so paid and designated, but in fact so received. That is sufficient to discharge the lien claimed; although it in no way affects the right of plaintiff to recover whatever may be due from Hoffman to it on any account.

The judgment of the Municipal Court does justice between the parties, and it is affirmed.

Affirmed.


text:
    John Gibbons, Defendant in Error, v. Chapin & Gore et al., Plaintiffs in Error.
    Gen. No. 14,345.
    1. Personae injuries—when owner of building not liable. If a person is injured upon premises in course of erection or repair the owner is not liable for such injuries, notwithstanding occasioned by negligence, if it appears that such premises were in possession of independent contractors who were so constructing the same and .that the owner did not and .was not exercising supervisory care or direction over such premises at the time of the accident.
    2. Personae injuries—when owner of building not liable. Held, that the ordinance in question in this case, which applied to the fixing of liability upon owners, contractors, builders, etc., having control or supervision of the construction of a building, did not change the rule of liability so as to render the owner of premises, in course of erection through the medium of independent contractors, liable for personal injuries sustained by a third person through the negligence of such independent contractors.
    3. Instructions—as to effect of failure to introduce evidence improperly refused, Held, error to refuse an instruction to the effect that the failure of the defendants tó introduce evidence raised no presumption of guilt.
    4. Instructions—as to effect of injury as evidence, improperly refused. Held, error to refuse an instruction which told the jury that the injury complained of was not in itself evidence of negliegnce.
    Action in case for personal injuries. Error to the Superior Court of Cook county; the Hon. Samuel C. Stoush, Judge, presiding.
    Heard in this court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 22, 1909.
    Rehearing denied April 8, 1909.
    Lawrence & Folsom and Horton, Brown & Miller, for plaintiffs in error.
    Cannon & Poage, for defendant in error.
   Mr. Justice Holdom

delivered the opinion of the court.

This is an action on the case for personal injuries happening to the plaintiff while working as a laborer for the contracting plasterers, McNulty Brothers, in the construction of a building for the defendant, Chapin & Gore, of which the defendant William Adams Company is said to have been the general contractor.

The declaration consists of three counts, in the first of which is set out an ordinance of the city of Chicago, requiring- floors to be constructed on each floor of buildings of certain character while in the course of construction, said to have been violated. A part of said ordinance reads: “It shall be the duty of all owners, contractors, builders or persons having control or supervision of all buildings in course of erection which shall be more than thirty feet high, to see that all stairways, elevator openings, flues, and all other openings in the floors shall be covered or properly protected”. The ordinance provides as a penalty for its violation a fine of not less than one nor more than two hundred dollars for each offense, and a revocation of the building permit at the discretion of the Commissioner of Buildings. The defendants interposed separate pleas of the general issue. A trial before the court and jury resulted in a verdict and judgment of $5,000 against defendants.

The accident happened in the evening of April 28, 1905. Plaintiff was working overtime that night. Salamanders were in use on the fifth floor, where plaintiff worked, to dry out the plastering, which had been freshly put on the walls and ceiling of the rooms on that floor. Plaintiff worked on that floor for four or five days previous to the accident. Gilbert, said to be the superintendent of construction, requested plaintiff to get a poker with which to stir up the fire in a salamander. It was about half past eight o’clock in the evening and the room was dark. Men were working by torchlight. .There were torches on that floor for use of workmen. In going for the poker, plaintiff did not take any torch, although he might have procured one. In returning with the poker he fell into a hole in the floor which had been previously used for pushing lumber through to the floor-above it. The result of the fall, among other injuries inflicted, caused plaintiff to be ruptured so that he wears a truss permanently. The liability of defendants is predicated on their being owners and contractors, having possession, supervision or control of the building within the purview of the ordinance, and in negligently permitting the hole through which plaintiff fell to remain unprotected, contrary to the provisions of the ordinance, supra.

The defendants Chapin and Gore urge in argument that they are not liable because, as owners of a building in course of construction by independent contractors, they were neither in possession nor had any supervisory control at the time plaintiff was injured, and that the ordinance in question had no effect to change the law affecting their liability; and that they are not liable under the doctrine of respondeat superior.

Defendant William Adams Company argues that there is no evidence in the record fastening upon it liability for the injuries of plaintiff; that plaintiff has not established by proof that he was in the exercise of due care for his own safety at and immediately preceding the time of the accident; that the court erred in refusing to give the first, seventh, and eighth refused instructions tendered by it, and that the damages are excessive.

We are at the outset of our examination confronted with evidence lacking in probative force of the facts assumed to be proven. There is no legitimate evidence that Chapin & Gore owned the premises on Adams street, in which plaintiff was hurt, or that the building was being erected for them. Nor is there evidence that the William Adams Company had any contract to erect or was erecting the building at the time plaintiff was injured; or that the hole through which plaintiff fell was negligently permitted to exist by either of the defendants. Neither is there proof of contracts or plans or specifications which in law amount to the dignity of legal evidence; and the same observations are equally pertinent as to who in fact was the architect or superintendent of construction.

Upon the assumption that Chapin & Gore were the owners of the premises, and that the building was in course of construction by independent contractors, so that in law Chapin & Gore could not be said to be in possession of the structure, dr exercising supervisory care or direction over it at the time of the accident, they cannot, under well-settled legal principles, be held responsible for plaintiff’s injuries. Gibbons could not tell who was the owner. Bedmond, the Mc-Nulty foreman, swears that the building was supposed to he Chapin & Gore’s. Gilbert testified that the building was supposed to be put up by the Chapin & Gore people. Thomas McNulty swore that his firm did the plastering under a contract with Chapin & Gore; and the witnesses Murray and Kelly swore that they were at work on a building known as the Chapin & Gore building. All this falls far short of legal proof of Chapin & Gore’s ownership or control of the building. This is a fair synopsis of the testimony on this subject. There was no testimony that Chapin & Gore furnished material or hired or discharged any of the workmen. In the final analysis of this testimony it proves that Bedmond, the foreman of McNulty Brothers, the plastering contractors, was in possession as the representative of his firm. Nor is there any further proof that either of the defendants was in possession or exercising any supervisory care or control of the building at the time of the accident. For aught that appears to the contrary, whatever may have been the Adams Company’s connection with the building, it had ceased; its work on the building may have been completed. The proof in the record shows that at the time of the accident McNulty Brothers, the plastering contractors, were in possession of that part of the premises upon which work was then being done, and had exclusive control of such work. This is sufficient primarily to exculpate Chapin & Gore from any liability. Pioneer v. Hansen, 176 Ill. 100. Whether one engaged in performing work under a written contract, is, as such, liable for the negligent acts of Ms servants is a question of law to be determined by a construction of the contract itself. There being no contract in evidence, how can it be determined that the liability rested upon the defendants, or either of them? There is no evidence that either of the defendants had any power to discharge any of the employes of the plastering contractor, or that Gilbert, the superintendent, present in the building at the time plaintiff was injured, had authority so to do, wMch is one of the tests wMch tends to fasten liability under the doctrine of respondeat superior.

In Grest v. Rothschild, 90 Ill. App. 324, it is held that “the fact that the work was to be inspected by the architect to see that it was done according to the contract, does not make the defendant liable”.

We think it clear that the ordinance itself does not create any liability against an owner or contractor, where no liability existed before its passage. The ordinance does not, by its terms, make owners and contractors liable without regard to their having supervision or control. We do not think that the ordinance in question is subject to any such interpretation. By construction, that ordinance applies to the fixing of liability upon such owners, contractors, builders or persons having control or supervision, and brings within its operation only such persons as are in actual control or who have supervision of a building or of its construction and fail to do the things commanded to be done by the ordinance. So that the words “owners and contractors and persons” are qualified by the words “having control or supervision of the building”, and are limited to such persons, to the exclusion of all others. This is our construction, without regard to punctuation, for, as is said in Hawes v. Sternheim, 57 Ill. App. 126, so say we—“Punctuation, while it may shed light upon, is never allowed to overrule, the plain meaning of a contract”, and we add, or a municipal ordinance.

"We think it was error of a prejudicial character for the trial judge to refuse to give the defendants’ seventh refused instruction, viz:

“You are further instructed that the mere fact that the defendants, the William Adams Company and Chapin & Gore, have introduced no evidence by .way of defense, is not to raise a presumption in your minds of the guilt of said defendants, but the plaintiff is held to the same strictness of proof of the allegations of his declaration as if the defendants had introduced evidence”.

The jury might well have assumed that defendants’ failure to put in evidence to meet plaintiff’s claim was a virtual admission of their liability. This instruction was calculated to remove such erroneous impression from the minds of the jury, if it existed. It was vital to the protection of defendants’ rights.

The following instruction requested by the Adams Company should have been given:

“You are further instructed that the mere fact that the plaintiff received the injury complained of is no evidence in itself of negligence on the part of the defendant Williams Adams Company, nor is it evidence in itself of the exercise of due care on the part of the plaintiff”.

The rights of the Adams Company were violated prejudicially by its refusal.

We do not decide whether it is shown from the evidence that the plaintiff was in the exercise of due care for his own safety at the time he fell through the hole and was injured. That is a question of fact primarily for the determination of the jury under the evidence when next tried, with pertinent instructions upon the law to aid them in solving what the evidence proves in this regard.

For the errors indicated, the judgment of the Superior Court is reversed and a new trial awarded, conformable to the views expressed in this opinion.

Reversed and remanded.


text:
    Etta Schreiber et al., Defendants in Error, v. Simeon Straus, Plaintiff in Error.
    Gen. No. 14,351.
    1. Contracts—how may not he varied. A written contract is conclusive of the rights of the parties thereto and parol evidence cannot be received to vary its terms nor can anything be read into it by construction.
    2. Contracts—status of defaulting party. A party in default has no standing in court to enforce any of the terms of a contract. In this case, held, that a party who had entered into a contract to sell and convey land, being in default in not being able to convey the amount of land called for by the contract, could not recover any part of the purchase price held in escrow under the terms of the contract.
    3. Attorney and client—when former cannot hind latter. An attorney is not the agent of his client, unless expressly authorized, to agree to accept upon behalf of his client a smaller amount of land than that called for by an executory contract of purchase and sale.
    4. Real property—what description controls. A contract for the sale and conveyance of real property which describes the same by lot number and by the further description as to the location of the property as “being the northwest corner of West 14th and Halsted streets,” and which contains no reference to courses or distances or designation of area, is a contract to convey so much land as is shown by the public records to be contained in the lot so described.
    5. Municipal court—when statement of facts made for purpose of review sufficient. If the statement of facts made by the trial judge of the Municipal Court is certified as “a correct statement of the facts appearing upon the trial * * and the decisions of the court * * it is immaterial that such judge in his certificate did not further certify that such statement contained “all questions of law involved in said cause and the decisions of the court upon such questions of law.”
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson P. Going, Uidgg, presiding.
    Heard in this court at the March term, Going Gone 1908.
    Reversed.
    Opinion filed March 22, 1909.
    Rehearing denied April 5, 1909.
    Simeon Straus, for plaintiff in error.
    Adler, Lederer & Schoenbrun. for defendants in error.
   Mr. Justice Holdom

delivered the opinion of the court.

The motion of the defendants in error to strike the statement of facts from the record, which was reserved for the consideration of the court to the hearing, is denied.

The defendant appeals from a judgment of the Municipal Court rendered against him on a trial by agreement before a judge of that court, without a jury, for $1,000 and costs.

Defendant held in escrow $1,000 under the terms of a contract for the sale of real estate in Chicago, from the plaintiffs to one Clara Pritikin, which the latter paid as earnest money. The purchaser refused to take title and complete the purchase upon the ground that plaintiffs did not furnish abstracts showing title in them or either of them, to the land agreed to be conveyed. The property contracted to be conveyed for the consideration of $34,200 is' described in the contract as lots 29 and 31 in block 11, in Brand’s Addition to Chicago, situate on the northwest corner of Halsted and Fourteenth streets, Chicago. At the time Straus, who was acting as Clara Pritikin’s lawyer, drew the contract, Bert Schreiber represented that the two lots had a frontage of forty-eight feet on Halsted street, although, he said, it might be a little short of that.

By the terms of the contract plaintiffs agreed to convey a good title and to furnish merchantable abstracts, showing such good title in them. The abstracts furnished for examination show a plat of the subdivision of block 11 of Brand’s Addition, and the lots in question to have a frontage of twenty-five feet each on Halsted street. These abstracts do not purport to show title to the whole of lots 29 and' 31, but are limited to lot 29 and the north eighteen feet of lot 31. The title to the last-described property appears from these abstracts to be in Etta Schreiber. It appears that at the time of the subdivision of block 11, Brand’s Addition, Fourteenth street did not exist at Halsted street. While no condemnation or other proceedings for the opening of Fourteénth street are shown in the abstracts submitted for examination, it does appear from a note made upon one of the abstracts, that an order was made by the Chicago Common Council for the opening of that street. It appears, however, inferentially at least, that the north seven feet of lot 31 is a part of Fourteenth street. Straus rejected the title, stating in his opinion, inter alia, that the “contract specifies lots 29 and 31 being of record fifty feet, while the south seven feet of lot 31 have been taken for opening of Fourteenth street”, and that “the abstract is made for the north eighteen feet of lot 31 only, and abstract does not show that Fourteenth street has been opened or that the north eighteen feet of lot 31 comes to the corner of the street”.

Etta Schreiber tendered a warranty deed from herself to Clara Pritikin, conveying lots 29 and 31 “except that- part thereof taken for opening of West Fourteenth street, formerly Mitchell street.” This was declined as not conveying the property called for by the contract between the parties, and therefore not satisfying the terms of that contract, Clara Pritikin was not obligated to accept such deed and pay the purchase price.

The paramount question for solution seems to be, according to the contention of the parties, whether the solemn written contract of the parties is to be regarded as controlling their rights, or the parol understanding inferable from the situation as to Fourteenth street and the taking of a part of lot 31 for its opening, being in the minds of the parties that what was left of lot 31 must by intendment be regarded and treated as all of that lot, the remainder being a part of the public domain. It is clear to our minds that the written contract of the parties is conclusive of their rights, and that in accord with its terms must the obligations and duties of the parties be ascertained and their rights settled. Parol evidence cannot be received to vary the written agreement of the parties; nor can anything be read into it by construction. While parol evidence is in certain conditions admissible to enable the court, from a view of the situation of the parties themselves at the time of entering into the writing, and as an aid to the court therefrom to interpret the writing in the light of such situation, yet such parol evidence cannot be received to add any condition not found in such writing or to expunge from it any clause or condition appearing in it. But it is said that after the true situation was known, Straus agreed to accept the deed conveying a smaller amount of land than called for by the contract; still, while this is not denied, Straus spoke for his client in her absence and without her authority, and as Clara Pritikin would not ratify the unauthorized suggestion of her counsel, his action in this regard was impotent to affect her rights under the contract. Notwithstanding it is true that the parties had in contemplation the property upon the corner upon which it is in fact situate, still, having contracted to convey by lot description, such will be adjudged to be their expressed intention and the measure of their obligation.

The contract in controversy is in its nature and essence executory. It covenants for acts and things to be done in the future. A party in default has no standing in court to enforce any of its terms in his favor. Plaintiffs being clearly in default, neither showing title nor offering to convey title according to their agreement, are in no position to maintain an action against Straus for that part of the purchase money held by him in escrow under the terms of the contract. Not being entitled to demand all the purchase price, they have no claim to that part of it held by Straus. The principle here applicable is stated in Hale v. Cravener, 128 Ill. 408, where the court say: “Where a contract for sale is strictly executory, so that no property, estate or interest in its subject-matter passes thereby to the purchaser, and cannot, except by a performance, it is an inflexible rule of law that the plaintiff cannot maintain an action for the purpose of enforcing it directly or indirectly by recovering damages for its non-performance, unless he performed or tendered performance of everything on his part to be done in pursuance of the literal terms of the agreement, at the very time and in the exact manner provided for by those terms. This doctrine, when applied to such contracts, viz: those purely executory, prevails in equity as well as at law, although its operation is much more limited and confined to fewer instances in equity than at law”.

There is nothing in the sale contract indicating an understanding or knowledge of either of the parties that any portion of either lot was excepted, or had been taken for street use. All that was said on the subject was the remark of Bert Schreiber that the corner lot was 23 feet and the inside lot 25 feet, and that together there was substantially 48 feet. If he had desired to limit his obligation as to the frontage, he should have done so by apt terms in the contract. The further description as to location of the property as “being the north-west corner of West Fourteenth and Halsted streets”, in no sense qualified the lot description or circumscribed the area of the lots called for by the designation of them in the contract as the property to be conveyed; for, as said in Rutherford v. Tracy, 48 Mo. 328, “the designation of the lot by its number must be regarded as the prominent object or monument; and where there is uncertainty, the monument must prevail over the description by courses and distances”. In the contract before us there is no reference to courses or distances or designation of area of the property contracted to be conveyed. The lot description had reference to a subdivision which was a matter of public record, and from which it appeared that each lot had a frontage on Halsted street of 25 feet. Parker v. Kane, 22 Howard (H. S.) 1.

Plaintiffs did not furnish a merchantable abstract of title to the lots contracted to be conveyed. This was incumbent upon them and their failure to furnish such an abstract constituted a breach of the contract on their part which cannot be excused. Parker v. Porter, 11 Ill. App. 602; Hale v. Cravener, supra. It was of no importance that Bert Schreiber was not possessed of title to the lots bargained to be sold to Clara Pritikin. If the other covenants of the contract had been performed on the part of the vendors and the abstract showed title in Etta Schreiber, then tender of a deed in dne form from Etta Schreiber to Clara Pritikin would have answered every legal requirement.

Defendants in error have argued at considerable length that the statement of facts in the record is not in compliance with the Municipal Court Act because the certificate of the trial judge did not contain in it the statement that it contained, “all questions of law involved in said case and the decisions of the court upon such questions of law.” The trial judge, however, did state in his certificate that the statement “was a correct statement of the facts appearing upon the trial * * * and the decisions of the court”. It seems that the trial judge erased from his certificate the clause in relation to the law involved, because he expressed himself as of the opinion that no questions of law were involved. In this view, however, he was in error, but surely it can hardly be seriously contended that defendant, because of such error of the trial judge, must be deprived of his right to a review of the record and a correction by this court of the errors of the court below. Furthermore, it is axiomatic that questions of law arise from the facts of each particular case, and it is the law when applied to .such facts in every case which determines and controls the court’s decision. Without facts, there can be no law to apply. With facts, the application of the law to them follows as a matter of course. It is equally well settled that every court before whom a cause is presented, when in possession of the facts will apply to such facts the principles of law applicable and essential to confer and enforce the rights which the law adjudged the party entitled to upon such facts. As the statement in the record presents the facts before the trial judge, we will, as we have already done in this opinion, apply the law to such facts and render judgment in accord therewith. While the certificate may be informal because of the trial judge’s misconception of the case and Ms judicial duty, yet it is in every material aspect sufficient to call for our review and judgment.

The judgment of the Municipal Court is wrong. It should have been in defendant’s favor. It is therefore reversed.

Reversed.


text:
    H. Elmer Chesley, Plaintiff in Error, v. Woods Motor Vehicle Company, Defendant in Error.
    Gen. No. 14,359.
    1. Principal and agent—burden of proof to establish agency. The burden oí establishing agency rests upon the party alleging it.
    2. Bailments—when not established. Reid, under the evidence in this case, that a porter employed in a garage had no authority to receive upon behalf of the owner of such garage property for safe-keeping.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Judson F. Going, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    Bice & O’Neil, for plaintiff in error.
    Adolph M. Schwarz, for defendant in error; Charles Herman, of counsel.
   Mr. Justice Holdom

delivered the opinion of the court.

During the year 1906 plaintiff was a city salesman . for Bichard Hudnut Company. The defendant, during that time, kept a garage on Twentieth street, Chicago. Plaintiff prosecuted Ms employment by traveling around Chicago in an automobile of Ms employer, which was kept at the garage of defendant. It seems that plaintiff had a case of samples, which he carried with him in his daily journeyings, and was in the habit of giving the sample case at night to the porter of defendant, who received and cared for the automobile, and who placed such sample case in the garage office. Plaintiff received the sample ease from the porter each morning when he called for the automobile. On or about February 1, 1906, plaintiff took the automobile to be repaired and left his sample case with the defendant’s porter, saying to bim that he would return for it later. Plaintiff did not call for his sample case until more than three months after leaving it. In the meantime defendant had moved its garage business to another place in Chicago and the porter had quit its employ. A search for the sample case proved unavailing. It was lost. Defendant, by its president and its bookkeeper, disclaimed having any knowledge at any time of plaintiff’s sample case. Defendant denied liability and interposed a counter claim, which plaintiff admitted to the amount of $12.50. On the trial before the court by agreement of the parties, the court, after hearing the proofs, found the issues in favor of defendant as to plaintiff’s claim and rendered a judgment in favor of defendant for the amount admittedly due defendant on its counter claim, and plaintiff brings the record for our review on writ of error sued out in accord with the Municipal Court Act.

As stated by plaintiff in his brief and argument, “The only question presented for our decision is whether the porter, in receiving the sample cáse for safe keeping, was acting within the line of his employment”. In this circumscribing of the issue we quite agree.

The record discloses no evidence amounting to the dignity of proof that the porter, at the times when he received plaintiff’s sample case, was acting within the scope of his employment; nor does it appear that defendant, or any of its office force, had any knowledge relating to the custody of the sample case or of its existence, until after its loss and the complaint subsequently made in consequence of such loss. Thus defendant was in the dark in relation to plaintiff’s sample case and its loss until it had not only moved its place of business, but had dispensed with the services of the porter to whom plaintiff entrusted it. For aught that appears to the contrary, the porter has it yet. With the porter plaintiff left his sample case; to him he must look for its return. The evidence does not even cast upon defendant the duty of a voluntary bailee or any other legal responsibility in relation to the sample case of plaintiff. Nor does plaintiff contend that any liability is fastened upon defendant from any direct evidence, but argues that liability arises by implication from the facts in evidence, and that by applying to such evidence “all such presumptions and inferences arising from it”, the porter is proven tobe the agent of defendant to receive the sample case of plaintiff. We are not able to follow either such logic or reasoning to the extent of holding that any, inference or presumption of agency is justified upon any legal theory known to us from proof of that or like character.

Again, it does not appear that defendant had any contractual relation with plaintiff at all. Its contract was to care for his employer’s automobile while such automobile was in its garage.

Cumins v. Wood, 44 Ill. 416, is said to be decisive of plaintiff’s right to recover. In the Cumins case liability was held to attach for negligence of a gratuitous bailee, but even so, defendant here was not a bailee of any description. The unauthorized possession by its porter of the sample case did not make such possession that of defendant in any sense for any purpose. Consequently, the porter’s possession did not create on the part of defendant any liability, on any theory, to anybody. In all the cases cited by plaintiff there was a bailment of some kind. Here there was none. Bennet v. O’Brien, 37 Ill. 250, was a case of gratuitous bailment.

Plaintiff was bound to inform himself of the scope. of the agency of the porter when he left his sample case with him, if he desired to fasten upon defendant responsibility for its safe-keeping. Jackson v. Commercial Bank, 199 Ill. 151; Kuecks v. New Home Sew. M. Co., 123 Ill. App. 660.

The burden of establishing agency rested upon plaintiff. Wiley v. First Nat’l Bk., 47 Vt. 546. This plaintiff did not prove.

The judgment of the Municipal Court, being without error prejudicial to plaintiff, is affirmed.

Affirmed.


author: Me. Justice Holdom

text:
    People, ex rel. Joseph D. King, Plaintiff in Error, v. City of Chicago, Defendant in Error.
    Gen. No. 14,368.
    1. Mandamus—what essential to award of writ. To entitle a relator to the award of the writ of mandamus, it is incumbent upon him to state in his petition every necessary and essential fact which prima facie at least shows that he is entitled to the writ.
    2. Mandamus—what essential averment in petition to compel restoration to police force. A petition filed for a writ of mandamus to compel civil service commissioners to restore the relator to the office of a patrolman must allege the existence of the office of patrolman and that the same was created either by statute or by an ordinance legally enacted by the municipality.
    3. Mandamus—when laches bars issuance of writ. A delay of ten months unexplained between a discharge as patrolman and an application by mandamus for restoration, will bar the issuance of the writ.
    Mandamus. Error to the Superior Court of Cook county; the Hon. Axel Chytbaus, Judge, presiding.
    Heard in this court at the March term, 1908.
    Affirmed.
    Opinion filed March 22, 1909.
    A. D. Gash, for plaintiff in error.
    Edward J. Brtjhdage, Clyde L. Day and Eme. C. Wettew, for defendant in error.
   Me. Justice Holdom

delivered the opinion of the court.

The controversy in the case at har is in all respects, both of law and fact, analogous to the case of People ex rel. McKenna v. City of Chicago, 127 Ill. App. 118, and what was there said is equally decisive of this case. It has the further' analogy of having been decided by the same learned judge sitting at nisi prius.

King was a policeman of the city of Chicago, put upon the force under civil service procedure, and after due notice and a hearing before the Civil Service Commission, on charges duly made, was on February 23, 1904, removed 'from the police department for violation of Rule 67. On December 28, 1904, King filed a petition for a mandamus to compel his reinstatement upon the police force. The city of Chicago interposed a general demurrer to relator’s petition, which being sustained, his petition was dismissed. Relator now brings the record to this court for our review, seeking a reversal of the judgment of the Superior Court.

To entitle relator to an award of the writ of mandamus it was incumbent upon him to state in his petition every necessary and essential fact, which prima facie at least showed that he was entitled to the writ. An essential and indispensable averment was that the office of patrolman existed and was created either by statute or an ordinance lawfully enacted by the city of Chicago. This the petition utterly failed to do. Stott v. City of Chicago, 205 Ill. 281. The Supreme Court say in People ex rel. Kisselberg v. City of Chicago, 210 Ill. 479: “Appellant fails to show the legal creation or existence of the office he claims to hold, nor does he show that he was in any legal manner elected or appointed to said office. If such an office exists in the city of Chicago, it can only be by virtue of some ordinance creating the same and providing the manner of filling the same. As no such office is created by statute, and as no ordinance is pleaded or set forth in the petition of appellant, by reference or otherwise, the courts of general jurisdiction of this state are unable to say such an office exists as appellant claims to hold, or that he was or could be legally appointed to the same. * * * He must show not only the legal existence of the office, but his clear legal right to hold the same and to receive the emoluments thereof, to entitle him to the writ prayed. This he has failed to do, and the demurrer to his petition was properly sustained”.

While the above reasons are all sufficient for denying relator the writ prayed, still there is another insuperable obstacle in his path to success, and that is the laches. imputable to relator for a delay exceeding ten months between the time of his dismissal and the filing of his petition for a writ of mandamus.

Confronted with the decision in Clark v. City of Chicago, 233 Ill. 113, there is no escape from the laches imputable to relator, and the avenue of redress is therefore forever closed against him in this proceeding. In the Clark case the end here sought by mandamus was there sought through a review by writ of certiorari. The cases are analogous for the end aimed at is the same, although the means differ simply in procedure through which the end is sought to be accomplished. The doctrine of laches, however, is as readily invokable in the one case as in the other. The court say in Clark case supra: “The petition for the writ in this case was filed ten months after the petitioner had been removed from office, and as the petitioner makes no showing why said petition was not filed at an earlier date and within six months of the date of the entry of the order of removal by the Civil Service Commission, we think the appellee should be held to be barred, by reason of his laches, of his right to have said order reviewed by the common law writ of certiorari, and that the Superior Court did not err in quashing the writ and dismissing the petition”.

These remarks are of equal force and pertinency to relator’s petition for the writ of mandamus, for by this writ he is seeking the same review as Clark did by his certiorari proceeding.

For the reasons assigned above, relator is barred from the relief prayed in his petition. The sustaining' of respondent’s demurrer to relator’s petition was without error, and the judgment of the Superior Court is affirmed.

Affirmed.


author: Me. Presiding Justice Smith

text:
    Euston & Company, Defendant in Error, v. Erie Railroad Company, Plaintiff in Error.
    Gen. No. 14,416.
    1. Common carriers-—when liable for through transportation. Held, that the carrier in this case by virtue of the bill of lading in evidence and. by the acceptance of the merchandise in question, became liable beyond its terminal point and to the point of destination.
    2. Measure oe damages—in action against carrier for failure to deliver in reasonable time. For the failure of a common carrier to deliver merchandise at its destination in a reasonable time, the true measure of damages is the difference between the value of the goods at the time they should have been delivered and the value when they were delivered. If the goods are forwarded by a carrier in pursuance of a contract of sale between the consignor and consignee, the measure of damages is the difference between the contract price and the value of the goods when actually delivered.
    3. Evidence—what prima facie showing of marlcet value. Held, that the evidence of a broker' who had made purchases of merchandise like that in question at the place in question and at or about the time in question, was sufficient to show prima facie the market value of such merchandise at the time and place involved.
    Error to the Municipal Court of Chicago; the Hon. John H. Hume, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Statement by the Court. This writ of error is prosecuted to reverse a judgment of the Municipal Court of Chicago in an action brought by Euston So Company, defendant in error, against Erie Railroad Company, plaintiff in error, for $485.
    It appears from the record that Euston So Company, on February 2, 1906, delivered to the Erie Railroad Company at Chicago, Illinois, one hundred tons of linseed-oil-cake, consigned to Francis Barnard, Bristol, England, and an export bill of lading was issued by plaintiff in error to defendant in error therefor. The shipment was delivered to plaintiff in error pursuant to an arrangement that it should go forward from New York during the month of February.
    The following stipulation of facts between the parties was offered in evidence:
    “That the lines of the defendant, Erie Railroad Company, extend only from Chicago, Illinois, to New York City, New York; that the 100 tons of linseed-oil-cake were delivered by the plaintiff to defendant at Chicago, Illinois, on February 2nd and February 3rd, 1906, and were carried over the lines of this defendant to New York City, where this shipment arrived February 12th; that the time this shipment was in transit over the lines of defendant was a reasonable time; that immediately on arrival of this shipment at New York City the agents of this defendant notified The Bristol City Steamship line of their arrival, and requested the agents of said Bristol City Steamship line to receive and carry the same to Bristol, England; that said Steamship Company had steamers sailing weekly from New York to Bristol; said shipment, however, did not leave New York until March 16th, although it could have left earlier, on to wit: March 8th, if it had not been for advices received from W. E. Eaton, agent, Chicago, purporting to originate from Euston & Co. to hold the shipment pending reconsigning orders from shippers to another point.”
    Attached to the stipulation, by agreement, were exact copies of the original bills of lading issued for the 100 tons oil cake, as follows:

      “Export Bill of Lading No. 301, Lot No...........
    Contract No................
    Erie Despatch.
    In connection with other carriers on the route.
    Received at Chicago from Euston & Company, the following property in apparent good order, except as noted (contents and conditions of contents of packages unknown) marked, numbered, consigned and destined as indicated below.
    Consignee and Marks and
    Destination. Numbers.
    Order Euston & Co., Brand AE, Four hundred (400) Bristol, England. Lot H. sks linseed oil cake.
    Shippers’ weight 112800.
    Party to be notified,
    Francis Barnard, (subject to correc-
    Bristol. tion.)
    To be carried to the port (A) of New York and thence by Bristol City line to the port (B) Bristol, or so near thereto as the steamer may safely get, with liberty to collect at any port or ports in or out of the customary route, and to be there delivered in like good order and condition as above consigned to consignees, assigns or to any other carrier on the route to destination if consigned beyond said port (B) upon payment immediately upon discharge of the property and the freight thereon at the rate from Chicago to Bristol, of 29 and 6/100 cents United States gold currency per 100 lbs., gross weight. * * *
    In witness whereof, the Agent signing on behalf of the said Erie Despatch, and of the said Ocean Steamship Company, or Ocean Steamer and her owner, severally and not jointly, hath affirmed to two bills of lading, all of this tenor and date, one of which bills being accomplished, the others to stand void.
    Dated at Chicago, this 2nd day of February, 1906.
    (Sgd.) W. E. Eaton, Agent,
    On behalf of carriers severally but not jointly.”

      The plaintiff in error, defendant below, carried the iinseed oil cake with reasonable dispatch to New York City, where it arrived February 12, 1906, and immediately on its arrival notified the Bristol City Steamship Line of the arrival of the shipment and requested the latter company to receive the goods for transportation from New York City to Bristol, England, on one of their steamers leaving New York weekly. The steamship company loaded the shipment on one of. its steamers which left the port of New York March 16, 1906, and the goods arrived in Bristol, England, April 6, 1906.
    The shipment of one hundred tons of linseed oil cake was sold on or about February 1, 1906, through Francis Barnard, of Bristol, at seven pounds, twelve shillings, six pence per ton cost, freight and insurance for shipment from the sea-board, during February, 1906. The cake not having been shipped as agreed in February, the buyers refused to take it and it was eventually sold in Bristol for six pounds, twelve shillings, six pence cost, freight and insurance just prior to its arrival in Bristol.
    The action was brought in the lower court to recover the loss sustained by reason of the failure of the plaintiff in error to perform its contract of shipment.
    W. O. Johnson and Gale & Johnson, for plaintiff in error.
    F. G. Offenlock, for defendant in error.
   Me. Presiding Justice Smith

delivered the opinion of the court.

( Plaintiff in error contends that the bill of lading issued by it to defendant in error was in effect a contract of carriage from Chicago to New York, and a contract of the Bristol City Steamship Line to carry from the port of New York to Bristol, England, in other words, that it was two separate contracts. With this contention we cannot agree. The bill of lading cannot be so construed. It is a through bill of lading from Chicago to Bristol, England. The plaintiff in error accepted the consignment for transportation beyond its terminal point, New York City, and became responsible for the transportation of the goods to Bristol, England. Wabash R. R. Co. v. Thomas, 222 Ill. 337; C. & N. W. Ry. Co. v. Simon, 160 id. 648; Anchor Line v. Dater, 68 id. 369; Merchants’ Despatch Trans. Co. v. Furthmann, 149 id. 66.

By the stipulation of facts offered in evidence it appears that the oil cakes arrived in New York City on February 12, 1906, and that it “did not leave that point until March 16th following, although it could have left earlier on March 8th if it had not been for advices received from W. E. Eaton, agent, Chicago, purporting to originate from Euston & Co., to hold the shipment pending reconsigning orders from shippers to another point.” It also appeárs by the stipulation that nine days was a reasonable time for the transportation of the shipment from Chicago to New York; and by the testimony of the witness Barnard that a reasonable time from New York to Bristol, England, is from fourteen to eighteen days after the sailing of the steamer. It also appears from the stipulation of facts that the steamship company had weekly sailings from New York to Bristol. From these facts the trial court, to which the cause was submitted without a jury, was warranted in finding that there was unreasonable delay in the transportation of the shipment to its destination.

It is well settled law that for failure of the carrier to deliver merchandise at its destination in a reasonable time, the true measure of damages is the difference between the value of the goods at the time they should have been delivered and the value when they were delivered. S. & M. R. R. Co. v. Henry, 14 Ill. 156; G. & C. U. R. R. v. Rae, 18 id. 488; 3 Sutherland on Damages, p. 215; Scovill v. Griffith, 12 N. Y. 509; Hackett v. Railroad Co., 35 N. H. 390. If the goods were forwarded by the carrier in pursuance of a contract of sale between the consignor and consignee the measure of damages is the difference between the contract price and the value of the goods when actually delivered. Ill Cent. R. R. Co. v. McClellan, 54 Ill. 58; Medbury v. N. Y. etc. R. R., 26 Barb. 564; Deming v. Grand T. etc. R. R., 48 N. H. 455.

It is contended, however, that this rule of damages does not apply to the case at bar because it is not shown that the plaintiff had notice of the contract of sale between defendant in error and the consignee at Bristol. But in Ill. Cent. R. R. Co. v. Cobb Christy & Co., 64 Ill. 128, the court answered.this contention by saying (page 141):

“The rule undoubtedly is, as between vendor and vendee, or shipper and carrier, that where the article is destined for a special purpose, that fact should be communicated to the vendor or carrier if it is to be made the foundation of special damages against them, and if it is of a character likely to affect the action of the vendor or carrier. Hadley v. Baxendale, 26 E. L. & Eq. 402; Griffin v. Colver, 16 N. Y. 490.

“The fact that this corn was intended for the government was undoubtedly known to the managing officers of the company, and we are not of the opinion that this rule, as expounded in these cases, requires that the shipper should communicate to the carrier the terms of a contract of sale in order to recover the contract price as damages, except so far as there may be some feature in the contract likely to affect the carrier’s action.”'

There was no such feature in the contract of sale between defendant in error and the consignee. We think, therefore, the rule of damages above stated, which was applied in this case by the trial court, was the correct rule.

It is urged that the evidence offered does not show that the price at which the goods were sold in Bristol was the market price or value there when the goods arrived. In our opinion the testimony of the consignee, who was a broker at Bristol, tends to show the market value of the oil cake when it arrived at Bristol. This witness, Barnard, had purchased, as the record shows, 4,260 tons of oil cake in 1906, and sold the same quantity. His purchases in January of that year were 250 tons; in February 200 tons; in March 100 tons; and in April 200 tons. He was therefore qualified to testify as to the market value of the cake at the time he sold it and at the time it would have arrived in Bristol if it had been shipped as contracted. It appears from the testimony of the witness that there were no.regular market reports in Bristol, and that he sold the oil cakes at six pounds, twelve shillings, six pence, cost, freight and insurance, which was “the best price obtainable;” and that if the cake had been ‘ ‘ shipped from the sea-board during the month of February, as contracted, it would have realized the price of seven pounds, twelve shillings, six pence, cost, freight and insurance’’. This, we think, makes a prima facie showing of the market price or value of the cake in Bristol, and in the absence of other proof is sufficient, and is proper under the rule. Muller v. Eno, 14 N. Y. 597, 607. In Sutherland on Damages, Vol. 2, page 375, the learned author says: “If the article in question has a market value, that will usually control as the best evidence of its value. If this test has been applied to it by actual sale of it, the fact may be proved as evidence of its value. It is not conclusive, but tends to show its value, and in the absence of other evidence would suffice. Even the amount the goods cost is admissible for the same purpose.”

We think the evidence in the record sustains the . finding and judgment of the court, and there being no material error in the record, the judgment is affirmed.

Affirmed..


author: Mr. Presiding Justice Smith

text:
    John Barnes, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 14,477.
    1. Evidence—when of medical expert incompetent. A medical expert who was called not for purposes of treatment but for qualification, when asked to testify should not he permitted to answer a question as follows: “Can he (plaintiff) flex his fingers to his palm?”
    2. Instructions—when as to preponderance of evidence erroneous. An instruction is erroneous which directs the jury to find “that the preponderance of the evidence is on the side sustained by a certain class of witnesses, namely, a class which in their judgment is the more intelligent and better informed.”
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. Merritt W. Pinckney, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Reversed and remanded.
    Opinion filed March 26, 1909.
    Rehearing denied April 7, 1909.
    Wm. J. Hynes, Albert T. Johnson and. Watson J. Ferb,y, for appellant; John R. Harrington, of counsel.
    John A. Bloomingston, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court in favor of appellee and against appellant.

The record shows that appellee Barnes with his daughter-in-law and his son boarded a Cottage Grove avenue car operated by appellant and paid his fare, and obtained a transfer on the Sixty-third street car line, also operated by appellant. The evidence on the part of appellee tends to show that the conductor of the car was notified between Sixty-fourth and Sixty-third streets that the party wished to alight at Sixty-third street, and that he was again notified at Sixty-third street. At this point appellee and his party arose from their seats and started for the rear platform, and appellee stepped down on to the car step, the daughter-in-law standing in the car door while the son was immediately behind her. The train crossed Sixty-third street at a slow speed. Appellee stood on the step waiting for the train to stop. When it reached a point north of Sixty-third street, the conductor gave a signal for it to proceed. The train started with a jerk and appellee, although grasping the hand-rail attached to the car with his left hand, was thrown off the car to the ground and received the injuries to his hand and other injuries of which he complains.

Appellant’s evidence supports the theory that when the train reached Sixty-third street there were no passengers who desired to alight at that point, and no persons on the north side of the street who desired to board the train, and the conductor gave a signal to proceed and the train did proceed. When the rear end of the train reached a point about 150 feet north of Sixty-third street appellee left his seat, announced his desire to alight and went to the rear platform and stepped down to the lower step, and while the train was still in motion stepped off and fell to the ground.

Inasmuch as the judgment must be reversed for error in procedure we refrain from discussing the evidence.

During the examination of Dr. Fox, a witness called by appellee, the witness was asked by appellee’s attorney the following question: “Q. Can he (plaintiff) flex his fingers to his palm?” and over the objection of attorney for appellant that the question called for matter purely subjective, and a symptom that was within the control of appellee, the witness was permitted to answer, “No”.

The witness had testified that he first saw appellee with reference to the accident in question about October 4, 1903, and that he treated his injuries for a period of nearly six months, not constantly, but from time to time. He was called about a week before the trial to examine the hand, not for treatment of the hand, but to look it over and find out how much mobility there was in the hand, as he testified, and thus to qualify himself to give an opinion as to its condition. Thereupon he was asked the above question. He further testified on cross-examination, “These muscles that run down there are under the control of the patient; they are known as voluntary muscles.”

The admission of this evidence was erroneous, we think, under the familiar rule stated in Greinke v. Chicago City Ry. Co., 234 Ill. 564 (page 571), as follows: “An expert witness called under such circumstances must base his opinion upon objective, and not subjective conditions.” It is true the witness expressed the opinion that he did not think it possible for an individual to resist, that is to control those muscles and resist any bending of the fingers, but he admitted he could not know exactly how much resistance the individual might exert in overcoming the power of the witness as that would depend upon the size of the man, and how much power he would exert. So that whether appellee was able to flex his fingers to his palm was a matter within his control, to some extent, and subject to his will, and yet the evidence of appellee’s self-serving demonstration was allowed to go to the jury for its consideration. We do not hold, however, that under the special circumstances of this case, and considering that the witness had treated the hand as above set forth, the admission of the testimony was reversible error. We think it was clearly erroneous.

At the request of appellee the court submitted to the jury the following instruction:

11 The jury are instructed that the fact that the number of witnesses testifying on one side is larger than the number testifying on the other side does not necessarily determine that the preponderance of evidence is on the side for which the larger number testified. In order to determine that question the jury must be governed by and take into consideration the appearance and conduct of the witnesses while testifying, the apparent truthfulness of their testimony, or the lack of it, their apparent intelligence or the lack of it, their opportunity of knowing or seeing the facts or subjects concerning which they testified, or the absence of such opportunity, their interest or the absence of interest in the result of the case, and from all these facts as shown by the evidence, and from all the other facts and circumstances shown, the jury must decide on which side is the preponderance.”

The testimony was conflicting on material questions in the case. The instruction directs the jury to find “that the preponderance of the evidence is on the side sustained by a certain class of witnesses, namely, the class which in their judgment is the more intelligent and better informed.” It does not announce a correct rule of law. Eastman v. West Chicago St. R. R. Co., 79 Ill. App. 585; C. W. D. R. W. Co. v. Bert, 69 Ill. 388; Hope v. West Chicago St. R. R. Co., 82 Ill. App. 311. While it is proper, and the duty of the jury, to consider the attributes named in the instruction in passing upon the credibility of the witnesses and the weight of their testimony, they should not be governed by the intelligence or lack of intelligence of the witnesses in determining the question of the preponderance of the evidence. The instruction is misleading. An instruction in regard to the weight and preponderance of the evidence goes to the entire case, and if misleading and erroneous, the error cannot be ignored.

The judgment must be reversed and the cause remanded.

Reversed and remanded.


text:
    William H. Myers, Appellee, v. Mary Ann O’Hare, Appellant.
    Gen. No. 14,482.

      Fobeclosube—when decree properly awarded. Seld, under the evidence, that the sufficiency of the consideration for the notes secured having been established, and their non-payment, that a decree of foreclosure was properly awarded in favor of one who became the legal holder, free from any equities, for value, of such notes as collateral security.
    Foreclosure. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Hokobb, Judge, presiding.
    Heard in the Branch Appellate Court at the March term, 1908.
    Affirmed.
    Opinion filed March 26, 1909.
    Statement by the Court. This appeal is prosecuted to reverse a decree of foreclosure. The hill was filed June 5, 1905, hy appellee Myers against appellant, Mary Ann O’Hare, and her husband, Edward O’Hare, J. N. Martineau, John T. Booz, the trustee in the trust deed, and Frank M. Burwash, successor in trust therein. The bill was dismissed as to Edward 0 ’Hare, who had died. Appellant filed an answer admitting the execution of the notes and trust deed, and the default of the other defendants was taken.
    The indebtedness secured by the trust deed was evidenced by two notes for $125 each made by appellant and her husband, dated December 24,1896. The notes and the trust deed were placed in the possession of J. N. Martineau on December 31, 1896, in payment, as he testified, of an indebtedness due to him from appellant. Myers, appellee, on that date loaned to Martineau $175 and Martineau indorsed and delivered the notes to Myers as collateral security for the repayment of the loan. Appellant, on the other hand, claims that she delivered the notes and trust deed to Martineau upon his agreement to pay off certain mechanics’ liens on the property in question and for no other consideration, and that Martineau failed to pay off and discharge the liens, and that the consideration for the notes failed.
    The court by its decree found all the material allegations of the bill of complaint were proved, and that there was due the complainant the sum of $291.36; also the sum of $75 as a reasonable solicitor’s fee, and ordered that if the defendants or some of them did not pay the complainant within twelve days from the date of the decree the said sum of $291.36 and the costs of suit, including solicitor’s fee and master’s fees taxed at $100.87, the premises be sold at public auction.
    T. F. Laramie, for appellant.
    M. J. Dunne, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The contentions of appellant may be briefly summarized as follows: first, that there was no consideration for the- execution of the notes and trust deed; and second, that if there was any consideration therefor, such consideration failed.

In behalf of the complainant, appellee, it was proved by the testimony of Martineau, Booz and Miss Noll that appellant in September, 1896, agreed with Martineau, who was in the real estate business, that the latter was to procure a loan of $1,100 for appellant on her lot described in the record, for the purpose of erecting a building thereon, and secure an architect to make plans for the building and let the contract for the erection of the building, attend to its construction, and also advertise and make an effort to sell a piece of property on Ashland avenue, Chicago, belonging to appellant. For this service appellant was to pay Martineau $250 when the building was completed. Martineau procured the loan, attended to the plans, let the contracts and supervised the construction of the building, making visits to the building three or four times a week during its construction. The building was estimated to cost about $1,350.

During the month of December, 1896, Martineau asked appellant for some money on account of what she owed him for these services. She said she could not give him any money as she had been unable to get any money from Canada as she expected. He said to her that if she could not give him any money, she might give him notes and second mortgage, and to this she acceded, and requested him to have the papers prepared and she would sign them. Martineau then had Mr. Booz, an attorney, prepare the trust deed and notes, set out in the bill of complaint, and appellant and her husband executed them on December 31, 1896, and delivered them to Martineau, who then applied to Mr. Booz to make him a loan on the notes.

Appellant was present in the office of Mr. Booz, where she had gone to acknowledge the trust deed. Mr. Booz asked appellant, in the presence of Martineau, if there was any reason why he should not make Martineau a loan and take the notes executed by her as collateral security, and appellant said it was all right to pay the money to Martineau. Thereupon Booz, for appellee Myers, loaned Martineau the sum of $175 and took the notes and trust deed as collateral security therefor.

Appellant stated in her testimony that when Martineau brought the notes to her house to have her execute them Mrs. Barry was present; that Martineau said there were liens on the property, and that the building could not be completed until she signed the notes and that they would then pay off the liens. Appellant testified that in Mr. Booz’ office she said to Booz that she signed the notes for the purpose of paying the liens and debts on the building. She also testified that Martineau had done no work for her and that she owed him nothing.

Mrs. Barry testified that she heard Martineau say to appellant that “the hnilding could not he completed until she signed the notes to pay off the liens that was on the house.”

From an examination of the evidence, the substance of which is given above, we are of the opinion that appellant was indebted to Martineau for services rendered to her at her request as testified to by him; and that she executed the notes to him, secured by a second mortgage on the premises described in the record, in payment for such services. We think the evidence shows by a clear preponderance that at the time appellant acknowledged the trust deed, she was informed by Booz that he was about to loan Martineau the sum of $175 and that she was then asked by Booz if there was any reason why he should not make the loan and take the notes as collateral security therefor, and that Booz stated to her at the same time that if there were any bills to be paid out of the money or if Martineau was to pay out any of the money he wished to know it and if so he would see that any such bills were paid; and that appellant replied it was all right to pay, the money to Martineau. Booz thereupon made the loan on behalf of appellee and took the notes as collateral security for the repayment of the loan for $175. The evidence shows, we think, that one purpose of having appellant go to the office of Booz was that Booz might satisfy himself, by seeing and talking to appellant personally, that there was no misunderstanding on the part of ' appellant as to the nature of the transaction, either between herself and Martineau or between Martineau and Myers, and that there were no equities between appellant and Martineau which could be urged against the securities to be taken as collateral to the proposed loan. We conclude further that there was a good consideration for the notes and that appellee became the legal holder for value of the notes as collateral security for the repayment of the loan without notice of and free from any equities between appellant and Martineau. The loan not having been paid appellee, Myers, is entitled to foreclose the lien of the trust deed given to secure the notes.

Although the master’s report found that there was due appellee, Myers, for principal and interest on the notes the sum of $414.05, and the decree in terms confirms the report, the chancellor by his decree properly found that the amount due appellee was $175 with interest thereon, amounting to $291.36, and decreed a sale for this amount, together with the solicitor’s fee and master’s fees and costs of suit.

The record is free from error and the decree is affirmed.

Affirmed.