author: Mr. Justice Gridley Mr. Presiding Justice Matchett and Mr. Justice Barnes

text:
    James F. Bishop, Administrator, Appellee, v. The Prudential Insurance Company of America, Appellant.
    Gen No. 24,984.
    1. Divorce, § 167

      —what is effect of. A divorced wife is not a relative by blood nor a connection by marriage of her former husband by reason of their previous marital relation, but upon divorce they become as strangers to each other.
    2. Insurance, § 502*—how “facility of payment” clause in industrial policy construed,. The “facility of payment” clause contained in industrial insurance policies which authorizes the insurer to make any payment provided for in the policy to any blood relation, connection by marriage or any other person appearing to the insurer to be equitably entitled thereto by reason of having incurred expense on behalf of the insured for any purpose is intended to remove the chance of litigation between claimants and to protect the insurer in making a prompt payment without the expense of administrative proceedings.
    3. Insurance, § 502*—validity and construction of “facility of payment" clause. The “facility of payment clause” in industrial policies is not against public policy and should be liberally construed.
    4. Insurance, g 502*—option as to payments under “facility of payment” clause. Where an industrial insurance policy containing a “facility of payment” clause is payable to the executor or administrator of the insured, payment to one of the classes mentioned in such clause is optional with the insurer, and one of such class cannot compel the insurer to make the payment to him.
    5. Insurance, § "505*—action where insurer fails to exercise option under facility of payment clause. Where an insurer fails to exercise the option as to the person to whom it will pay, given it by the “facility of payment” clause in an industrial insurance policy payable to the executor or administrator, recovery may be had at the suit of the executor or administrator.
    6. Insurance, § 502*—effect of payment by insurer .under “facility of payment” clause. Where no specific beneficiary is designated by an industrial insurance policy containing a “facility of payment” clause and the insurer has exercised its option and has in good faith made payment to a person in one of the classes enumerated in the facility clause, it is thereby discharged from further liability on the policy.
    7. Insurance, § 502

      —effect of payment to divorced wife of insured under “facility of payment”■ clause. An insurance company which pays the value of an industrial insurance policy containing a “facility of payment” clause and payable to the executors or administrators of the insured, to the divorced wife of the insured, is thereby relieved from liability on the policy at the suit of the administrator, where it appears that for nearly 3 years before the death of the insured the wife had paid the premiums from her own earnings, that she had prevented the insured from destroying the policy and after her separation and subsequent divorce from her husband she contributed from her earnings to the support of two of the children of the marriage.
    Appeal from the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed with finding of facts.
    Opinion filed March 9, 1920.
    Hoyne, O’Connor & Irwin, for appellant.
    Francis H. McKeever, for appellee; Charles Goodman and Arthur M. Kracke, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois Notes Digest, Vole, XI to XV, a-nd’ Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an appeal from a judgment of the municipal court of Chicago for $498.44 against the defendant insurance company. The case was tried before the court without a jury.

James F. Bishop, public administrator of Cook county, was appointed administrator of the estate of Chester A. Anderson, deceased, by the probate court of Cook county on November 4, 1916. The letters of administration were issued at the instance of certain creditors of the deceased, who had claims against his estate for medical and hospital services and for funeral expenses, aggregating about $260. The present action was commenced by said administrator on December 14, 1916, on a policy of insurance, commonly known as an industrial policy, issued by the company upon the life of said Anderson. According to the inventory filed by the administrator in said probate court, the only asset of the estate is the claim against the company here in question. The policy is dated August 14, 1911, and provides for the payment of a weekly premium of 29 cents. No beneficiary is named but it is provided therein that the benefit of $500 shall be paid “unto the executors or administrators of the insured, unless settlement shall be made as provided in Article 2d, * * * immediately upon receipt of due proof of the death of the insured during the continuance of this Policy.” Article 2d is wfiat is commonly known in industrial policies as the “facility of payment clause, ’ ’ and is as follows:

“The company may make any payment provided for in this Policy to any. relative by blood or connection by marriage of the insured, or to any other person appearing to said company to lie equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his' or her burial, or, if the insured be more than fifteen years of age at the date of this policy, for any other purpose, and the production by the company of a receipt signed by any or either of said persons or of other sufficient proof of such payment to any or either of them shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto, and that all claims under this policy have been fully satisfied. ’ ’

Among the errors' assigned and here argued is that the trial court erred in entering judgment on the finding- against the company.

At the time the policy was issued in August, 1911, the insured, 27 years of age, and Anna J. Anderson, his wife, were living together as husband and wife. He was then working for an express company as bookkeeper receiving a salary of $45 per month. She also worked and earned-small sums. Until he lost his position with the express company, early in the year 1914, the premiums on the policy were paid, sometimes by money earned by him and sometimes by money earned by her. In 1914, they had three children (a boy about 9 years of age, and two girls, about 4 and 2 years of age, respectively) and had kept in force another policy, a “Children’s policy” for $1,000, in the same company. In the fall of 1914 they quarreled. She testified: “He took the $1,000 policy and tore it up. T grabbed this one, * * * and said he should not have this, but leave something for me and the children. He said: ‘You shall not have a cent.’ * * * I took the policy and hid it.” She continued to pay the premiums. In April, 1915, the husband and wife separated. She further testified: “He had not been working for a year before we separated. * * * During that year he contributed nothing toward the support of the family, except a little once in a while, a dollar or two.” In the summer of 1915, she was obliged to go to the county hospital. When she came out she was informed by an agent of the company that the policy had lapsed for nonpayment of premiums and that it could not be revived 'without her husband’s signature. She went to her husband and he refused to sign the revival application. She again saw the agent and subsequently the company authorized him to revive the policy on payment of all arrears in premiums. She paid all arrears, and from that time until her husband’s death she paid all the premiums. On March 1, 1916, she obtained a divorce. Subsequently, on August 12, 1916, Mr. Anderson died at Montevideo, Minnesota. At that time the eldest child, the boy, was in an orphan’s home and had been since the preceding February, the elder girl was living with an aunt and had been for about 2 years, and the younger girl was living and being supported, as she had always been, by Mrs. Anderson. Prior to Mr. Anderson’s death, Mrs. Anderson had paid a portion of the boy’s support in said orphan’s home, and after said death the boy was removed from said home and taken to his father’s relatives in Montevideo. On August 24, 1916, Mrs. Anderson filed a written claim for the benefit payable under the policy and made due proof of the death of Mr. Anderson. On August 28 a brother of the deceased notified the company that there were several unpaid claims against the estate of the deceased for expenses in the last illness and for funeral expenses, and, in effect, made the claim that the money due on the policy should be paid in liquidation of those claims and should not be paid to the divorced wife. The company made a careful investigation, and, on October 30, 1916, reached the decision that it would pay the benefit due under the policy to Mrs. Anderson, and notified said brother that said decision was in accordance with the “facility of payment clause in the policy.” The company subsequently delivered to Mrs. Anderson its check for $498.44, dated October 30, 1916, and she received said amount about November 20, 1916. At the time the company decided to pay the benefit to Mrs. Anderson it was in possession of the substance of the facts as above outlined. Mrs. Anderson, after she received the amount of said check, paid the sum of $100 to the said aunt, with whom said elder daughter had been living for about 2 years, for the support of the latter. On January 2, 1917, Mrs. Anderson was married to a man named Fairchild.

By the “facility of payment clause” of the policy the company is authorized to make any payment provided for in the policy “to any relative by blood or connection by marriage of the insured, or to any other person 'appearing to said company to be equitably entitled to the same by reason of having incurred expense on behalf of the insured, for his or her burial, or * * * for any other purpose”; and it is further provided in said clause that the production by the company of “sufficient proof of such payment” to any or either of said persons “shall be conclusive evidence that such benefits have been paid to the person or persons entitled thereto,” and that all claims under the policy have been “fully satisfied.” The evidence clearly shows that the company, acting in good faith, paid an amount, practically equal to the face of the policy, to Mrs. Anna J. Anderson; that she formerly had been the wife of the insured but that about 5 months before his death she had obtained a divorce from him; but that at the time of his death she was not a relative of his by blood, neither was she a “connection by marriage,” for the reason that after the divorce they became as strangers to each other. (2 Nelson on Div. & Sep. sec. 981; Zilley v. Dunwiddie, 98 Wis. 428, 433; In re Ensign’s Estate, 103 N. Y. 284, 287; Plaster v. Plaster, 47 Ill. 290, 294.)

The question presented for decision is whether, under the provisions of the policy and under the facts disclosed, the company had the right to pay the insurance benefit to Mrs. Anderson. If it did, it should not by this judgment be compelled to pay the amount a second time.

From the reading of a number of adjudicated cases we glean the following: That the so-called “industrial” policies of life insurance, containing what is known as a “facility of payment” clause, are usually issued for small amounts, sometimes as small as $25, in consideration of the payment of small weekly premiums, and upon the lives of persons of limited means; that prompt payment of the benefit is usually provided for after the receipt of satisfactory proofs of the death by the insurer; and that the purpose of such a clause is the protection of the insurer in making a prompt payment without the expense of administrative proceedings. (Thomas v. Prudential Ins. Co., 148 Pa. St. 594, 598; Wokal v. Belsky, 53 N. Y. App. Div. 167, 65 N. Y. Supp. 815, 817; American Trust Co. v. Prudential Ins. Co., 16 App. Cas. [D. C.] 318, 321); and another purpose is “to remove the chance of litigation between claimants.” (Bradley v. Prudential Ins. Co., 187 Mass. 226 229.) That such a clause is not against public policy (Bradley v. Prudential Ins. Co., supra; Metropolitan Life Ins. Co. v. Schaffer, 50 N. J. L. 72, 75), and should be liberally construed. (Brooks v. Metropolitan Life Ins. Co., 70 N. J. L. 36, 40.) That, where the policy is payable to the executor or administrator of the insured, the payment to a person in one of the different classes mentioned in said clause is optional with the insurer, and a person of a particular class, to whom the insurer might have elected to make payment but did not, cannot compel the insurer to pay the.benefit to him (Griffith v. Prudential Ins. Co., 172 Ill. App. 304, 307; Heubner v. Metropolitan Life Ins. Co., 146 Ill. App. 282, 287; Ferretti v. Prudential Ins. Co., 49 N. Y. Misc. 489, 97 N. Y. Supp. 1007); and, where the insurer fails to exercise its option and has paid no part of the benefit, a recovery may be had at the suit of the executor or administrator. (Wokal v. Belsky, supra.) That, where no specific beneficiary is designated by the policy, and the insurer has exercised its option and has, in good faith, made payment to one of the persons of one of the several classes, the insurer is thereby discharged from any further liability on the policy. (Thomas v. Prudential Ins. Co., supra; Bradley v. Prudential Ins. Co., supra; Thompson v. Prudential Ins. Co., 119 N. Y. App. Div. 666, 104 N. Y. Supp. 257, 259; American Trust Co. v. Prudential Ins. Co., supra; Metropolitan Life Ins. Co. v. O’Farrell, 64 Kan. 278, 281; Chance v. Metropolitan Life Ins. Co., 147 Ga. 396, 398; Brennan v. Prudential Ins. Co., 170 Pa. St. 488, 494.) And that, under peculiar circumstances, even a partial payment of the amount of the policy, made in good faith, will discharge the insurer from further liability. (Brennan v. Pru dential Ins. Co., supra; Sheridan v. Prudential Ins. Co., 128 Ill. App. 519.)

In the leading case of Thomas v. Prudential Ins. Co., 148 Pa. St. 594, above cited, Thomas, as administrator of the estate of Griffith Pugh, deceased, sued the insurance company to recover the benefit of $60 on a policy of insurance, payable to the executor or administrator of Pugh, and containing a “facility of payment” clause very similar to the clause in the policy here in question. The amount of the benefit was paid to Laura Evans after Pugh’s death by the company, under and by virtue of the provisions of said clause. She was not related to Pugh. The administrator obtained a verdict and judgment in the trial couid. In reversing the judgment the Supreme Court said (p. 598): “We are unable to see how the administrator can recover from the company the money which it paid in strict compliance with the contract between it and the assured. * * * The manifest object of the second schedule of the policy * * * was to enable the company, in case of the death of the assured, to pay the amount of the policy without the expense of an administration. The sum of $60, if it could be paid only by raising up a legal administration, would be of little use to any one, as nearly the whole of it would be absorbed in fees and expenses. Aside from this, the company has a right to protect itself, with the consent of the assured, against trifling but expensive litigation, which might constantly occur over disputes as to the parties entitled. * * * The company paid this money to the person appearing to it to be equitably entitled thereto, and produced a receipt signed by her for the same. This was a complete defense, under the very terms of the policy. It is for the company to judge who is the person to be equitably entitled to the money. This discretion is vested in it by the contract between the parties. The contract itself does not offend against any rule of law or public policy, and we cannot hold that the administrator is entitled to recover without making a new contract for the parties. It appears from the evidence that the assured hoarded with Laura Evans up to the time of his death; that he owed her $20 for board, and that she advanced $8 for funeral expenses. This may, or may not, be the reason why the defendant company regarded her as equitably entitled to the insurance money. It was sufficient for the purposes• of this case that she appeared to said company to be so entitled.” This Pennsylvania case was quoted from with approval by this branch of this Appellate Court in the case of Sheridan v. Prudential Ins. Co., supra.

In the above cited case of Bradley v. Prudential Ins. Co., 187 Mass. 226, Bradley, administrator of the estate of Mary Sawyer, deceased, brought suit to recover the benefit of $500 upon a policy almost identical with the provisions of the policy here in question. The cause was tried in the lower court upon an agreed state of facts and was there decided in favor of the company and the administrator appealed. It appears from the agreed facts that the policy was issued upon the life of Mary Sawyer; that she was then the wife of Henry Sawyer and continued so to be until her death; that after taking out the policy she and her husband separated; that she and one Murphy went through the form of marriage and lived together as husband and wife until her death; that, after her separation from Henry Sawyer, the weekly premiums were paid partly by her and partly by Murphy with his own money; that after her death he paid her funeral expenses amounting to $158, delivered to the company the usual proofs of death stating that he was the husband of the deceased, and the company subsequently paid to him in good faith the full amount of the policy under and by virtue of the “facility of payment” clause, it believing that he was the person who best fulfilled the requirements of said clause inasmuch as he hfid paid a, part of the premiums and the expense of the burial of his alleged wife; that Murphy gave the company a receipt reciting that said payment was in full for all claims against the company under the policy; and that after said payment the rightful husband of the insured demanded payment from the company of the amount of the policy, and upon refusal plaintiff, after being appointed administrator, brought the suit. The Supreme Court held that the payment to Murphy was a complete bar to plaintiff’s claim, saying (p. 228): “Under the circumstances * * * there is no promise to pay to the plaintiff, and the payment stipulated for has been made in accordance with the terms of the policy. The plaintiff contends that Murphy was not equitably entitled to the payment. But the stipulation is not as to payment to one in fact equitably entitled to payment, but is as to payment to any person appearing to the company to be equitably entitled to the same. Such stipulations are common in industrial policies, the amounts of which always are small; and one purpose of them is to enable the amount of the policy to be paid very speedily after the death of the insured, without the delay or expense of tailing out administration. * * * In effect, the article gives the company power, acting in good faith, to discharge its debt and perform its contract by making payment to any person who is a relative by blood or marriage of the insured, or who has incurred expense for the insured.”

In the above cited case of Chance v. Metropolitan Life Ins. Co., 147 Ga. 396, plaintiff was the administrator of the estate of Charley Ford, deceased. During the lifetime of Ford the company had issued a policy insuring his life. The policy provided for the payment of a benefit of $240, and there was contained therein a “facility of payment” clause similar to the one here in question. For 10 months prior to the death of the insured, Kate Ford paid the premiums. The company decided to pay the benefit to her and made out a check payable to her order for the sum named, but before it was delivered several other claimants of the fund served the company with summons of garnishment. These claims were based on the contention that the amount of the policy was payable to the heirs at law of the insured. The company filed a petition of interpleader, and upon the hearing the lower court held that the company had the right to decide who was equitably entitled to receive the amount of the policy, and had properly exercised that right in favor of Kate Ford. On appeal by the administrator the Supreme Court affirmed the judgment, saying (p. 398): “Under the contract of insurancé, the insurance company could exercise its discretion in making payment, on the death of the insured, to any person appearing to' the company to be equitably entitled to it by reason of having incurred expense on behalf of the insured. It appears from the record that the payee of the check, Kate Ford, did incur expense by paying the premiums on the policy, and the insurance company was therefore in the proper exercise of its discretion in making a check payable to her for the amount of the policy. ’ ’

Our conclusion is that, under the facts disclosed, and under the law, the municipal court erred in entering the judgment in this case against the company. It seems clear to us that the payment of substantially the face of the policy to Mrs. Anderson was made by the company in good faith, and that by the terms of the policy itself that act is conclusive evidence that all claims under the policy have been fully satisfied, and that the company should not be compelled to pay said amount a second time at the instance of the administrator in the present action. It seems equally clear that, at the time the payment was made, not only did it appear to the company that Mrs. Anderson was equitably entitled to the same by reason of having incurred expense on behalf of the insured, but also that she was in fact so equitably entitled to the fund. For nearly 3 years after the policy was taken out and before Mrs. Anderson and her husband quarreled she paid some of the premiums out of her own earnings.. This was an expense incurred on behalf of the insured. In the fall of 1914, about 2 years before the death of the insured, she prevented the destruction of the policy by him and thereafter until his death paid all of the premiums with her own earnings and kept the policy alive, for the reason she wanted something for the children and herself. Had it not been for her payment of these premiums the policy would have been forfeited. After her separation from her husband in 1915, she contributed towards the support of the eldest child in an orphans’ home and she always supported the youngest child with her own earnings. While it was perhaps her duty to support the children, so far as she was able, as well as it was the father’s duty, the primary duty was upon him. (Zilley v. Dunwiddie, 98 Wis. 428, 433; Plaster v. Plaster, 47 Ill. 290, 291.) And we f.biuk that in so contributing to the support of the children she incurred further expense on behalf of the insured.

For the reasons indicated the judgment of the municipal court is reversed.

jReversed with finding of facts.

Mr. Presiding Justice Matchett and Mr. Justice Barnes

concur.

Finding of facts. We find as ultimate facts that Anna J. Anderson, during the lifetime of the insured, Chester A. Anderson, incurred expense on his behalf in the paying of premiums due on the policy in question, and in the contributing of moneys to the support of the ehldren of said Anna J. and Chester A. Anderson; and that the defendant insurance company paid substantially the amount of said policy to Mrs. Anna J. Anderson in good faith.


source: Caselaw Access Project

license: Public Domain

text:
      M. B. Donchian, Appellee, v. Brink’s Chicago City Express Company, Appellant.
    Gen. No. 24,998.
    1. Cabbiers, § 161

      —right to stipulate against liability for loss at common law. At common law a carrier may, by special contract, stipulate against liability for any loss not the result of its own negligence or that of its servants.
    2. Cabbiers, § 165*—limitation on liability on basis of vcilue stated. Where a shipper has knowledge of a provision in a carrier’s receipts given him by the carrier whereby the carrier limits his liability for loss to a specified amount unless a different value is stated in the receipt and assents thereto, he cannot recover of the carrier an amount in excess of that stipulated on the loss of his shipment.
    3. Cabbiers, § 178*—lohen evidence shows assent of shipper to limitation on liability. In an action by a shipper against an ex-pressman to recover for the loss of the shipment, evidence examined and held to show that the shipper had knowledge of a provision in the expressman’s receipt placing a limit on the value of shipments in the absence of another value being stated by the shipper, and that the shipper assented to such limitation and made the shipment without specifying the value of the article but concealed its real value.
    4. Appeal and error, § 1810*—power of Appellate Court to enter judgment where cause tried without a jury. Where a case is tried before the court without a jury, the Appellate Court may enter there such a judgment as the trial court should have entered. ¡
    5. Costs, § 89*—on reversal and entry of judgment against appellant for a less amount. Where, on appeal, the judgment below is reversed and judgment is entered against the appellant for a less amount, the costs in the Appellate Court will be taxed against the appellee.
    Appeal from the Municipal Court of Chicago; the Hon. Prank H. Graham, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and judgment with finding of facts.
    Opinion filed March 9, 1920.
    William English, for appellant.

      Joseph D. Irose, for appellee.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

This is an action of the fourth class, in contract, commenced in the municipal court of Chicago against the defendant, a common carrier, to recover the sum of $125, the value of a package of three rugs, which the defendant received from plaintiff and agreed to safely carry to the residence of a Mrs. Wilson in Chicago, but lost it in transit. It did not appear how the package was lost or that defendant was guilty of any negligence. Defendant admitted that the fair market value of the rugs was $125. Plaintiff’s theory was that the defendant was liable for said amount as an insurer. The defense was that plaintiff was only entitled to recover the sum of $20 because of the fraud of plaintiff in concealing from defendant that the value of the package was in excess of $20. On the trial, in addition to certain documentary evidence, the testimony of two witnesses was heard,—the plaintiff in his own behalf, and W. J. Bueneman, a driver for defendant. Plaintiff’s shipping clerk, who delivered the package in question to Bueneman, on October 12, 1916, was not called as a witness, or the failure to produce him explained. The case was tried without a jury, and the court found the issues against defendant and assessed plaintiff’s damages at $125, upon which finding the judgment appealed from was entered.

The following facts in substance were disclosed by the evidence: Plaintiff was a dealer in rugs at 21 S. Wabash avenue, Chicago. In the spring of 1915, about 18 months before the shipment of the package in question, Bueneman had a conversation with plaintiff relative to defendant making deliveries of packages for plaintiff in Chicago. At that time plaintiff was informed that the prices for deliveries of goods were fixed according to the weight and value of the goods, and plaintiff was given a blank receipt book, identical in form with the receipt book hereinafter mentioned, and, at plaintiff’s request, the driver wrote in said book a schedule of charges based upon weight and value. Subsequently plaintiff gave many packages to defendant to be delivered to various places in Chicago. The usual method adopted was that plaintiff’s shipping clerk would write on a page of said receipt book the name and address of the consignee of a particular package, and sometimes be would put down a value of the package on said page and sometimes not, then the amount of the total charge, based on value and weight, would be figured, and defendant’s driver would receive the proper sum of money, sign a receipt for the package on said page and take the package away for delivery to the consignee. When the package in question was delivered to Bueneman, the shipping clerk presented to Bueneman for his signature a prepared receipt made out on one of the pages of a receipt book. This particular book was introduced in evidence by plaintiff, and is in the transcript of evidence before us. It was not the same book, though identical therewith, which had been given plaintiff in the spring of 1915. It apparently had been in use since April, 1916. It contained 48 pages. On each page there was a “value’’ column, wherein could be written down the value of a particular package if that value exceeded $20, and there was printed on it, in large black type, up and down another column immediately to the left of the “value” column, the words: “Correct value must be stated hereon when same is more than $20.” Each page also had printed on it at the top the words: “It is further agreed that in no event shall the holder hereof demand beyond the sum of twenty dollars, at which the article herein mentioned is valued, unless otherwise herein stated, in which event an additional charge will be made for insurance.” On the next to the last page there appears the date, “10/12/16,” the name of the consignee, “Mrs. K. S. Wilson,” and her address, all written in pencil and seemingly in the same handwriting ; opposite said name and address and in the column headed “Receipted by” is the name “Bueneman” and the figures “25,” written in pencil in a different handwriting; in the “value” column opposite the name of Mrs. Wilson, no sum appears to be written, but in said column it appears as if something had been erased; on the same page are the names of three other consignees and their respective addresses, and opposite each is the name “Bueneman,” and the abbreviated words and figures “Pd. 50,” all written in pencil. An examination of the other pages of said receipt book discloses that all writing thereon is in pencil; that the date on the second page is. “4/26/16”; that the other pages bear dates subsequent thereto; that there are written names and addresses of other consignees on most of the other pages, opposite which frequently appears in the “Receipted by”, column, the name “Bueneman,” and occasionally other names; that, opposite the names of many of said other consignees and in the “value” column, there are written figures denoting the value of the particular package; that in several instances these figures are “$50,” and in some “$25,” “$56,” “$60,” and “$104,” and that frequently no figures at all appear in said column. Bueneman testified in substance that on the day the package was delivered to him by the shipping clerk, in the rear of plaintiff’s store, he asked if said clerk had “put the value down”; that the clerk replied, “No, it is under $20”; that only said clerk and the witness were present at this conversation; that said clerk then went to plaintiff, who was in the front of the store, and “brought back the money,” gave it to the witness and he receipted for the package and took it away; that a few days afterwards he learned that the package had been lost and he went again to plaintiff’s store, saw plaintiff and said shipping clerk, and also the receipt he had signed; that the receipt then had “$125” written in the value column, opposite Mrs. Wilson’s name, which figures were not there when he receipted for the package; that he told plaintiff that “the receipt would be void with the value put in afterwards ’ ’; and that thereupon plaintiff said he would “rub it out,” and did so. Plaintiff, in his testimony, admitted that the “$125” value had been written on the receipt by somebody after Bueneman had receipted for the package, and that after his talk with Bueneman the figures were erased; and that he (plaintiff) was in the rear of his store, on October 12, 1916, when the package in question was delivered to Bueneman, that nothing was said at that time by 'either Bueneman or the shipping clerk as to the value of the package, and that he heard “practically” everything that was said at the time by either Bueneman or said clerk. Plaintiff further testified in substance that, while he had ‘ glanced over these receipts many times,” yet he, personally, “did not know that there was a provision in the receipt limiting the liability for loss to $20 unless the value was stated”; but that he did not know whether said shipping clerk knew of the limitation or not. Bueneman further testified in substance that plaintiff’s different shipping clerks had many times delivered packages to him, as defendant’s driver, and paid him charges thereon based upon value as well as weight.

“At common law a carrier might by special contract stipulate against liability for any loss not the result of its own negligence or that of its servants.” (Ellison v. Adams Exp. Co., 245 Ill. 410, 413.) By section 1 of chapter 27 of the Revised Statutes of Illinois (Hurd’s Rev. St. 1917, J. & A. ¶ 2165), it is provided that it shall not be lawful for a common carrier to limit its common-law liability safely, to deliver property “by any stipulation or limitation expressed in the receipt given for such property.” In Nonotuck Silk Co. v. Adams Exp. Co., 256 Ill. 66, it is decided that a provision in an express company’s receipt, limiting the amount of liability to a certain sum less than the value of the goods in case no valuation is given, is an attempt by the express" company to limit its common-law liability. (See also, Cutter v. Wells, Fargo & Co., 237 Ill. 247.) In Plaff v. Pacific Exp. Co., 251 Ill. 243, 248, it is said: “The law is, we think, settled in this State that where a common carrier delivers to the shipper a receipt for goods received for shipment which limits its common-law liability, in order to bind the shipper it must be made to appear by the carrier that the shipper was atoare of the restriction contained in the receipt.” In Boscowitz v. Adams Exp. Co., 93 Ill. 523, 530, it is said: “A clause in a receipt given to a shipper of goods limiting and restricting the carrier’s common-law liability incident to its general employment, if understandingly assented to by the owner, will as effectually bind him as though he had signed it. Whether such restrictions have been assented to in any given case is always a matter of evidence. ’ ’ And the burden is upon the carrier to show that the shipper assented to the restrictions. (Wabash R. Co. v. Thomas, 222 Ill. 337, 344; Illinois Match Co. v. Chicago, R. I. & P. Ry. Co., 250 Ill. 396, 401.) In the case of Henry Oppenheimer & Co. v. United States Exp. Co., 69 Ill. 62, the question presented, under the peculiar facts disclosed by the evidence, was as to the effect of the clause in a receipt restricting the liability of the carrier to a certain named amount unless the value of the package is stated. The court said that “the'denial in the testimony that the consignors had knowledge of this condition in the receipt must be held to be overcome by the circumstances of the case.” The court further said (p. 66) :

“A distinction exists between the effect of those notices by a carrier which seek to discharge him from duties which the law has annexed to his employment, and those, like the one in question, designed simply to insure good faith and fair dealing on the part of his employer—in the former case, notice alone not being-effectual, without an assent to the attempted restriction; while in the latter case, notice alone, if brought home to the knowledge of the owner of the- property delivered for carriage, will be sufficient. * * * The common carrier is liable, as we find it frequently laid down, in respect to his reward, and the compensation should be in proportion to the risk. As the carrier incurs a heavy responsibility, he has a right to demand from the employer such information as will enable him to decide on the proper amount of compensation for his services and risk, and the degree of care which he ought to bestow in discharging his trust. * * * But independent of the qualifying provision contained in the receipt, we should be inclined to sustain the defendant’s claim of exemption from liability on the ground of a want of good faith in not disclosing the value of the goods. * * * This (certain evidence as outlined) shows that there was a designed suppression of the value of the goods. That was unfair conduct on the part of the shippers of the goods. The effect of such conduct to relieve the carrier from his liability as insurer, is asserted in the cases of Chicago & A. R. Co. v. Thompson, 19 Ill. 578, and American Exp. Co. v. Perkins, 42 Ill. 459. * * * The court below was justified in coming to the conclusion that the consignors elected to take the risk of the loss, rather than subject the plaintiffs to the enhanced charges that would have been made had the value of the package been disclosed. ”

In the Boscovitz case, supra, in referring to said Oppenheimer case, our Supreme Court said (p. 531):

“While that case declares salutary rules designed to secure good faith between the shipper and the carrier, it does not go to the extent counsel seem to understand it. We do not wish to be understood as departing in any degree from the law declared to be applicable to the facts of that case. * * * It will be seen there is in that cáse no departure from the uniform decisions of this court, that a carrier cannot he released from the duties and liabilities annexed to its employment, unless the shipper assents to the attempted restrictions. That is apparent from the fact it is said, in the beginning of the case, ‘the denial in the testimony that the consignors had knowledge of this condition in the receipt nlust be held to be overcome by the circumstances of the case. ’ The condition to which reference is made is the limitation clause as to the amount of recovery in case of loss, where no valuation of the goods .is stated. _ On looking into the facts of the case, the conclusion was fully warranted. There was in that case what is very justly characterized as ‘unfair conduct on the part of the shippers of the goods.’ ”

In the Cutter case, above cited (237 Ill. 247, 249), it is said: “The Oppenheimer case was explained in Boscovitz v. Adams Exp. Co., supra, and as there explained is not in conflict with the other Illinois cases cited above.” In other cases decided in this State it has been held that, where there is a concealment of the value of the goods delivered for transportation, the common carrier is relieved from its liability as an insurer of the full value. (Chicago & A. R. Co. v. Shea, 66 Ill. 471; Michigan Cent. R. Co. v. Carrow, 73 Ill. 348.)

We think it clearly appears from all the evidence in this case, notwithstanding plaintiff’s testimony to the contrary, that plaintiff' had knowledge of the condition mentioned in the receipts given from time to time by defendant to plaintiff for packages, limiting defendant’s liability for loss to $20 unless a different value was stated in said receipts, and had assented to such condition; that the package in question was shipped without specifying any value in excess of $20, and with such knowledge and assent; and that the real value was at the time of shipment concealed from the defendant. And we are of the opinion that, under the law applicable to such facts? the trial court should have limited plaintiff’s recovery to the sum of $20. And this canse having been tried before the court without a jury, we can enter here such judgment as the trial court should have rendered. (Manistee Lumber Co. v. Union Nat. Bank, 143 Ill. 490, 504; Papke v. G. H. Hammond Co., 192 Ill. 631, 643.)

Accordingly, the judgment of the municipal court will be reversed, and judgment entered here against the appellant for $20, but the costs in this court will be taxed against the appellee. (Moore v. People, 108 Ill. 484, 488; Romberg v. McCormick, 194 Ill. 205, 212.)

Reversed and judgment here/ for $20 against appellant with finding of facts.

Mr. Presiding Justice Matchett and Mr. Justice Barnes

concur.

Finding of facts. We find as ultimate facts that at the time of the shipment of the package in question, the plaintiff, M. B. Donchian, had knowledge of, and had assented to, the condition specified in the receipt given by the defendant, Brink’s Chicago City Express Company, whereby said defendant’s liability for loss of said package was limited to $20, unless a greater value was in said receipt stated; that at said time no greater value was stated by plaintiff in said receipt or otherwise; and that at the time of said shipment the plaintiff, acting in bad faith, concealed from the defendant the true value of the contents of said package.


author: Mr. Justice Gridley

text:
    Irving Isador, trading as Irving Isador & Company, Appellant, v. Joseph Harris, Appellee.
    Gen. No. 25,086.

      1, Alteration of instruments, § 20

      —when plaintiff in action on altered note may show ignorance of alteration. Where, in an action to recover against an indorser on a promissory note, plaintiff’s statement of claim sets up that defendant executed the guaranty of payment of the note appearing above his indorsement and defendant avers, among other defenses, in his affidavit of merits that the guaranty was placed above his signature after the execution and delivery of the note and without his knowledge and consent and constituted a material alteration which released him from liability, and plaintiff files an amended statement of claim based upon defendant’s liability as indorser and not as guarantor, on which the case is tried and under which plaintiff makes out a prima facie case, and plaintiff, on the trial, admits that the guaranty was placed on the note after its execution and delivery, as shown by defendant’s evidence, it is error to refuse to permit plaintiff to introduce evidence to show that he was not aware of the averments in the statement of claim, that he did not know that the guaranty had been placed on the note until the case came to trial and that the guaranty was placed thereon without his knowledge or consent.
    2. Alteration of instruments, § 14*—when recovery not barred by alteration. The insertion of a guaranty above an indorser’s name by an employee of the bank with which the payee had placed the note for collection, such guaranty being added without the payee’s knowledge or consent, is not such an alteration as will relieve the indorser from liability as such, notwithstanding the statement of claim, prepared by his attorney without plaintiff’s having seen it or knowing its contents, set up the guaranty, where the amended statement on which the case is tried bases defendant’s liability on his indorsement and not on the guaranty.
    3. Principal and agent, § 185*—what essential to show ratification. A knowledge of the principal of all of the material facts and action in the light of such knowledge are essential to bind a principal on the theory that he has ratified, assented to or acquiesced in the act of his agent.
    Appeal from the Municipal Court of Chicago; the Hon. Howard Hayes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.
    Reversed and remanded.
    Opinion filed March 9, 1920.
    Rehearing denied March 22, 1920.
    Frank Schoenfeld, for appellant.
    Cooke, Sullivan & Ricks, for appellee; Edwin Hedrick and Homer D. Dines, of counsel.

      See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

   Mr. Justice Gridley

delivered the opinion of the court.

In an action (as amended by plaintiff’s amended statement of claim) against the indorser on a promissory note for $2,000, the court instructed the jury to return a verdict finding the issues ag*ainst the plaintiff. The jury returned such a verdict and the court entered judgment on the verdict and plaintiff appealed.

In plaintiff’s original statement of claim, filed October 31, 1918, it is averred that on May 1, 1918, Joe Harris executed and delivered to plaintiff a promissory note, as follows:

“$2000.00 Chicago, Ills., May 1st, 1918.

90 days after date I promise to pay- to the order of Irving Isador & Co., Two Thousand - - 00/100 Dollars, at 509 S. Franklin St. Chicago, Ill. Value received with interest at the rate of 6 per cent per annum.

Joe Harris.”

that defendant guaranteed the payment of said note by a written guarantee indorsed thereon as follows:

“For value received, I hereby guarantee the payment of this note and all expenses of collecting the same, includings attorneys’ fees, and waive protest and notice of ion-payment and diligence in collecting the same, and consent that security may be taken or the time of payment be extended without impairing this guarantee.

Joseph Harris.”

and that there is owing to plaintiff the sum of $2,000, together with interest at 6 per cent per annum, and reasonable attorney’s fees.

Joe Harris, the maker of the note, and Joseph Harris, the defendant, are different persons.

Defendant filed an affidavit of merits and demanded a jury trial. Later he filed an amended affidavit of merits in which he averred in substance, among other things, (1) that the supposed note, and his supposed indorsement thereon, were made without any good and valuable consideration; (2) that the execution and indorsement of the note were obtained by fraud; (3) that there was a material alteration of the note after its delivery to plaintiff, in that, the words of guaranty on the back of the note, above defendant’s signature, were not thereon when the same was delivered to plaintiff, and had been subsequently placed thereon without the knowledge or consent of defendant, and that he had never so guaranteed the note; and (4) that no notice of dishonor or nonpayment by the maker had ever been given by plaintiff to defendant as required by the statute.

Subsequently, on February 7, 1919, when the case was about to be called for trial, plaintiff obtained leave to file instanter, and filed an amended statement of claim, and it was ordered that defendant’s amended affidavit of merits stand thereto. In plaintiff’s amended statement of claim he sets forth in hose verba the said note, and avers, in substance, that on the back thereof there appears said words of guaranty above the signature of the defendant; that on July 30, 1918, the day of the maturity of the note, plaintiff caused demand for payment to be made on the maker, that the maker did not pay the same, and that thereupon on July 31, 1918, plaintiff gave to defendant notice of' the dishonor of the note pursuant to the statute.

On the trial plaintiff produced the note in question and the same was admitted in evidence. The words of guaranty were printed, evidently by the use of a rubber stamp, above the signature of the defendant on the back of the note. It was disclosed by plaintiff’s witnesses that the note, prior to its maturity, was placed for collection with a certain Chicago bank, as plaintiff’s agent; that a messenger of the bank duly presented the note for payment to the maker, Joe Harris, on July 30, 1918, the day of the0maturity of the note, and that the maker did not pay the note; that on the morning of July 31, 1918, plaintiff received notice from the bank that the note had not been paid; that he immediately procured possession of the note and on the same day caused notice of the nonpayment of the same by the maker to be given to defendant. Plaintiff then rested his case.

The defendant then called a witness for the purpose of showing that the words of guaranty, which appeared over the signature- of defendant on the back of the note, were not thereon printed or written when the note was originally delivered to plaintiff. Plaintiff’s attorney then admitted that such was the fact. Defendant then rested his case and moved for a directed verdict in his favor. Plaintiff’s attorney then offered to introduce certain testimony in rebuttal and stated, in substance, that he proposed to show that said words of guaranty on the back of said' note were placed thereon by some employee of said Chicago bank without plaintiff’s knowledge, consent or authority, after plaintiff had placed the note with said bank for collection; that when the note was returned to plaintiff by said bank on July 31, 1918, he gave the note to his attorney for recovery of the amount due; that plaintiff never read, or was informed of, any of the pleadings filed in this cause, which were prepared by his attorney; that the first information that plaintiff had that said words of guaranty were on the note was when the note was exhibited to him on the trial; and that plaintiff never at any time authorized, acquiesced in, or approved of, the putting of said words of guaranty on the back of said note. The court refused to allow plaintiff to make proof of these facts, saying: “The filing of this suit and the action taken by plaintiff constitutes a ratification in all respects of the act of the bank.” The court thereupon instructed the jury to return a verdict finding the issues against the plaintiff, and the judgment appealed from followed.

We are of the opinion that the court erred in refusing to allow plaintiff to make proof of the facts above mentioned and in instructing the jury to find the issues against the plaintiff. Plaintiff’s statement of claim, as amended, and upon which the case was tried, was based upon the liability of defendant as an indorser, and not upon his liability as a guarantor. And plaintiff’s evidence made out a good prima, facie case of liability on the part of defendant as an indorser.

In 2 Am. & Eng. Encyc. of Law (2nd Ed.), p. 216) it is said: “In the United States the effect of an alteration by an agent is dependent on whether the act is or is not within his express or implied authority. If the agent acts within the line of liis authority in making the alteration; it will have the same effect in invalidating the instrument as if made by the party claiming thereunder himself. But if, on the other hand, the agent has mo authority whatever, either express or implied, to make_ the alteration, it is simply a spoliation by a strang’er to the contract, and does not impair the validity of the instrument as it originally stood.” In Bledsoe v. Graves, 5 Ill. 383, 385, a case where an erasure of the indorsement of a promissory note had been made without the knowledge or consent of the holder, it is said: “The erasure being made by a third person, without the knowledge of the plaintiff, could affect the rights- of neither party, any more than if it had been occasioned by accident. Had such been the case, it would hardly be denied, that the party might explain the circumstance by proof, and thus give effect to the real undertaking of the party. Had the plaintiff made or procured the alteration, with a fraudulent intent, the case would have been sufficient. As it was, the original contract between the parties still subsisted, and when that was ascertained, it was proper for the court to let it go to the jury.” In Catlin Coal Co. v. Lloyd, 180 Ill. 398, 405, it is said: “The mere fact of an interlineation or an erasure appearing in an instrument does not, of itself, raise any presumption of law either for or against the validity of the writing, but that the question when, by whom and with what intent it was made is one of fact to be submitted to the jury.” In Fry v. Jenkins, 173 Ill. App. 486, one Gilbert, the attorney of plaintiff, without the knowledge or direction of plaintiff, changed the date of a note and mortgage to conform with the date of another note and mortgage for which they were substituted. It was contended that the filing of a bill to foreclose the mortgage was a ratification by plaintiff of the act of his agent, but the Appellate Court of the Fourth District held otherwise, saying (p. 489):

The alteration of the note was a material one under section. 124 of article 8 of the Act of 1907, entitled ‘Negotiable Instruments,’ but Gilbert had no authority to alter it and eyen if such act of alteration could be ratified (being in violation of a statute) there is no evidence of any ratification by appellant of the act of Gilbert in altering the date. It is contended • that the filing of the bill to foreclose was in some way a ratification. On the "contrary the bill set forth to the court all the facts and circumstances of the alteration, and while it specifically prayed a correction of a mistake and a foreclosure of the mortgage or in the alternative of the original mortgage, this was no ratification of Gilbert’s act in making the alteration. We are unable to see how the circumstances shown in evidence can deprive appellant of his lien. What act has he committed that it should operate to take away his right to enforce the lien of his mortgage ? He has been guilty of no fraud or áttempt to defraud the mortgagor. Even if the act of Gilbert could be said to operate as a fraud upon' the mortgagor which was not intended, appellant is not to lose his lien for the act of Gilbert with which he had nothing to do, which was not within the scope of Gilbert’s authority as his attorney, and of which he has sought no undue advantage. ’ ’

In 21 Ruling Case Law, p. 928, it is said: “In order to hind a principal by ratification, assent, or acquiescence in prior acts of his agent in excess of authority actually given, a knowledge of the material facts must be brought home to him. He must have been in possession of all of the facts and must have acted in the light of such knowledge.” (See also, Coleman v. Connolly, 242 Ill. 574, 583; Cadwell v. Meek, 17 Ill. 220, 227.)

For the reasons indicated the judgment of the municipal court is reversed and the cause is remanded.

Reversed and remanded.

Mr. Presiding Justice Matchett and Mr. Justice Barnes concur.


author: Mr. Presiding Justice Thomson

text:
    Corn Planter Refining Company, Appellee, v. George R. Jenkins & Company, Appellant.
    Gen. No. 24,795.
    1. Dismissal, nonsuit and discontinuance, § 11

      —right to dismiss as to one or more defendants in action ex contractu. In actions ex contractu against several defendants, a plaintiff may dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining.
    2. Appeal and ebbob, § 438*—when variance waived. Variance between the declaration as originally filed and the evidence, by reason of the dismissal of the suit as against one of the defendants, will he deemed on appeal to have been waived where no point is made in regard thereto during the trial.

      3. Pleading, § 431

      —when dismissal as to all but one defendant without amending declaration charging joint liability constitutes a variance. Where a declaration in an action against several defendants charges a joint liability and breach of contract but, before judgment, plaintiff dismisses as to all defendants save one, without amending the declaration, and the remaining defendant raises the question of variance, and the verdict is against the remaining defendant only, it is error to overrule such defendant’s motion for a new trial.
    4. Contracts, § 350*—when counts charge joint liability. Even though counts in the declaration in an action for breach of contract allege that plaintiff had bargained with “the defendants, and each of them,” where they further allege that the bargain was “to buy of the defendants and the defendants then and there sold to the plaintiff * * * and the defendants then and there agreed with- the plaintiff to deliver,” and they further allege that “the defendants did not * * * deliver * * * but refused so to do, and the plaintiff, at the request of the defendants, .extended the time for delivery * * * the defendants again failed,” etc., to make delivery, such counts are joint and not joint and several.
    5. Sales, § 73*—when modification of contract not shown. In ap action to recover for breach of a contract for the sale of gasoline, evidence examined and held insufficient to establish an agreement modifying the terms of the contract as to the time of delivery so as to have it include the succeeding month, but merely to show an offer to that effect by plaintiff, a counter offer by defendant to deliver as fast as it was able to and a rejection of such counter offer by plaintiff as “absurd.”
    6. Sales, § 377*—measure of damages for nondelivery of full amount bargained for. Where a • contract by which defendant agrees to sell plaintiff gasoline provides for the delivery of twelve cars in July and defendant delivers only one, and for the delivery of thirteen cars in August and defendant delivers four, the most which defendant can be required to pay plaintiff in damages is the difference between the contract price for eleven cars and the market price on July 31 and the difference between the contract price for nine cars'and the market price on August 31, and evidence as to the price of gasoline on subsequent dates is irrelevant.
    7. Sales, § 376*—what is purchaser’s measure of damages on breach by seller. On a breach of a contract of sale by the seller, the buyer is entitled to recover- the actual damages he has sustained and no more.
    8. Sales, § 381*—duty to mitigate damages on breach of contract by other party. When the seller under a contract for the sale of gasoline begins to fail to ship as directed under the contract, it was the purchaser’s duty, under the evidence in this case, to do all he reasonably could to mitigate the loss and, to that end, to buy the necessary gasoline elsewhere, even though the time in which the seller could deliver under the contract had not expired.
    9. Sales, § 382

      —measure of damages for nondelivery Where buyer purchased elsewhere. In an action by the purchaser for breach of a contract for the sale of gasoline by the terms of which defendant was to deliver a certain number of cars in a stated month f. o. b. Chicago, but delivered only a part, where it appears that plaintiff purchased gasoline needed to supply the deficit, the proper measure of damages is the difference between the contract price and the market price on the last day of such month, f. o. b. Chicago, except as to such cars as it purchased elsewhere in that month, by reason of defendant’s failure to deliver, and as to those cars, plaintiff can only recover the difference between the contract price and the market price f. o. b. Chicago, on the dates of such purchases or the difference between the contract price and the price at which it actually purchased, if that was less than the market price.
    10. Sales, § 371*—who has burden of proving damages from nondelivery. In an action by a purchaser to recover damages for a breach of contract for the sale of gasoline,, while it is proper for the seller to show, as affecting the damages recoverable by the purchaser, that the latter purchased gasoline elsewhere, the burden is on' the purchaser to establish its damages properly by showing what the purchases were and the prices paid.
    11. Sales, § 133*—liability for nondelivery caused by car shortage. The seller of a specific quantity of merchandise f. o. b. cars at a given point who fails to deliver as agreed is liable in damages for his breach, though it may be caused by a shortage of cars making it difficult or even impossible to obtain them, the agreement to deliver being unconditional.
    Appeal from the Circuit Court of Cook county; the Hon. Prank Johnston, Jr., Judge, presiding. Heard in the Branch Appellate Court at the October term, 1918.
    Reversed and remanded.
    Opinion filed March 18, 1920.
    Walter A. Brendecke, for appellant.
    Frederick A. Bangs, for appellee.

      See Illinois Notes Digest, Vóls. XI to XV, and Cumulative Quarterly, same topic and section number.

      See Illinois, Notes Digest, Vols, XI to XV, and Cumulative Quarterly, same topic* and section number.

      See Illinois Notes Digest, Yols. XI to XV, and Cumulative Quarterly, same tuple and section number.

   Mr. Presiding Justice Thomson

delivered the opinion of the court.

This was an action for breach of contract, wherein the plaintiff recovered a judgment for $5,014.31, from which the defendant has perfected this appeal. The plaintiff originally brought suit against George B. Jenkins, trading as George B. Jenkins & Company, and Consumers Mutual Oil Company, a corporation. Before the declaration was filed, plaintiff amended its prcecipe by adding George B. Jenkins & Company, a corporation, as a party defendant. After the declaration was filed, the suit was dismissed as to George B. Jenkins,'trading as George B. Jenkins & Company. Later the plaintiff filed additional counts as to the remaining two defendants. The contract declared on was entered into between the plaintiff and George B. Jenkins & Company, a corporation, but before suit was commenced, plaintiff discovered that George B. Jenkins & Company was acting for an undisclosed principal which was the other defendant, Consumers Mutual Oil Company. The issues were submitted to a jury and they found for the plaintiff as against both defendants but before judgment was entered the suit was dismissed, on plaintiff’s motion, as to the Consumers Mutual Oil Company, following which judgment was entered on the verdict against the sole defendant remaining, George B. Jenkins & Company, a corporation, appellant here.

In an action ex contractu against several defendants, a plaintiff may dismiss as to one or more at any time during the trial and before final judgment and proceed to judgment as to those remaining. Teich v. Ayer, 213 Ill. App. 41, and cases there cited. Appellant made no point during the trial that there was a variance between the declaration as originally filed and the evidence, by reason of the dismissal of the suit as against George B. Jenkins, trading as George B. Jenkins & Company, and must, therefore, be deemed to have waived it. Mayer v. Brensinger, 180 Ill. 110; Teich v. Ayer, supra. Furthermore, after such dismissal, a number of additional counts were filed, declaring against the two remaining defendants alone. However, when the motion of plaintiff to dismiss the suit as against the Consumers Mutual Oil Company was allowed, appellant, then the only remaining defendant, immediately made the point of a variance, the declaration charging a joint liability and breach of the contract and the verdict standing against one defendant only. In that situation, we are of the opinion that it was error, in the absence of an appropriate amendment of the declaration, to overrule appellant’s motion for a new trial and enter judgment against it alone. This was an action in the circuit court of Cook county, in which formal written pleadings are necessary, under our practice. All the counts in the declaration alleged a joint liability. The last two filed did allege, as appellee points out, that the plaintiff had “bargained with the defendants, and each of them,” but they go on to allege that the bargain was “to buy of the defendants and the defendants then and there sold to the plaintiff * * * and the defendants then and there agreed with the plaintiff to deliver,” and they further allege that “the defendants did not * * * deliver * * * but refused so to do, and the plaintiff, at the request of the defendants, extended the time for delivery * * * the defendants again failed, refused and neglected to make delivery * * We consider these joint counts and not joint and several, as appellee contends.

But there is further error in the record which, in our opinion, necessitates a reversal of this judgment. The contract was one for the sale and delivery f. o. b. Chicago of .twenty-five cars of gasoline,—twelve in the month of July and thirteen in thé month of August. Only one was delivered in July and four in August. Appellee contends that there was an extension of the contract into September and a definite refusal of appellant. on September 16 to make further deliveries, and therefore the measure of damages is the difference between the contract price and the market price, on that date, on the amount called for by the contract and not delivered. We are of the opinion that the evidence shows no extension of the contract as contended. On August 28, appellee wrote appellant, saying, in part: “As Tuesday, the 31st, will be the last day for your people to deliver the goods to make up this contract, we wish to advise you that we will have to charge you with the difference between the market price and the price at which we purchased for any amount that is undelivered after the 31st.” Under date of September 2, appellant replied saying: ‘ our party stands ready to, as a matter of- courtesy, fill the balance of the order, but only with the understanding that no claims will be allowed for differences.” In reply to that letter, appellee wrote under date of September 4, saying in part: “We will offer this change in the contract, viz.: Tour parties can ship the balance of the gasoline during this month at the rate of one car per day and we can use the goods if this -is done, but we do not want the shipments spread off into October and November for we will have plenty of gasoline of our own at the time. We want you to advise us not later than Thursday of next week, just exactly what we can count on * * *.” Appellee wrote appellant another letter under the same date that they were twenty cars short "“and we will have to charge you with the difference between the present market price and the price of purchase and as the market today on this product is 10y2c per gallon, we will send you a bill for the difference. If there is anything that you have to say in regard to the transaction, we would be .pleased to hear from you by return mail.” On the same day appellant wrote appellee, referring the latter to appellant's letter of the 2nd, and saying: “Our principal advises that, as a matter of courtesy, he is willing to make shipment as fast as he is able to and if you desire to have same made with the above understanding, please advise.” On the 6th, appellee replied calling appellant’s proposition “absurd,” as shipments might be extended over a period of a year or two and said: “We either want the goods or settlement and we will put it up' to you as to whether you will make the shipment within thirty days, or adjust with Us for the difference.” Under date of the 9th, appellant again wrote appellee-, repeating the offer that its principal would “deliver under the contract as fast as he is able to” and asking how many cars appellee considered due it under the contract, and adding that the offer of shipment was being made “"without any prejudice to the rights of any party.” On the 11th, appellee wrote appellant, saying: “We note the position that your refiner takes in regard to deliveries and that he will make them as fast as he is able. You understand, of course, that this is not at all in line with our understanding.” Again appellee made the offer contained in its letter of the 4th to take the balance of the gasoline called for by the contract ‘ during this month.” ' Under date of September 16, appellant wrote appellee, saying: “In your letter, you insisted that the shipments should be made during the month of September. Now, all we can get out of them (their principal) is that, as a matter of courtesy, to us, as they put it, they will make shipments as fast as .they are able to and that is the best we can do; this on agreement that the contract is not to be considered as reinstated as it has expired.” Appellee wrote in reply on the 23rd: “Your letter received in regard to your considering our contract canceled, and you of course understand that this- is not the case. We have turned the matter over to our attorneys and you will please make the adjustment with them. ’ ’

,It seems entirely clear that this correspondence did not effect an agreement between the parties, modifying the terms of their contract as to time of delivery so as to have it include the month'of September. That offer was made by appellee and resulted in appellant’s counter offer to deliver “as fast as they are able to” which in turn was rejected by appellee as “absurd.”

Under the contract, appellant had all of July in which to deliver twelve cars and they delivered only one. They had all of August in which to deliver thirteen cars and they delivered only four. The evidence shows that the market price of gasoline was steadily rising all during that period. The most appellant could be required to pay appellee in damages would be the difference between the contract price for eleven cars and the market price on July 31, and the difference between the contract price for nine cars and the market price on August 31. Gallum v. Seymour, 76 Wis. 251. That this would come to less than the amount of the verdict returned by the jury seems not to be controverted. Much of the proof as to the market price submitted by the- plaintiff related to the date of September 16, which in our opinion had nothing to do with the situation, inasmuch as no extension of the contract was made/

But there is further error in this record in the matter of damages. On a breach of a contract of sale by the seller, the buyer is entitled to recover the actual damages he has sustained and no more. It appears from the record that appellee was buying the gasoline called for by this contract to supply certain gasoline stations which it maintained, and it gave appellant shipping instructions calling for the consignment of a car of gasoline to each of these stations every.few days during the periods covered by the contract. When the appellant began its failure to ship as thus directed, it was the duty of appellee to do all it reasonably could to mitigate the loss (Armeny v. Madson & Buck Co., 111 Ill. App. 621; Hardwood Lumber Co. v. Adam, 134 Ga. 821; 35 Cyc. 641), and to that end to buy gasoline elsewhere, with which to supply its stations, and the record shows that this is what it did do.

Under the date of July 30, appellee wrote appellant saying in part: “By chance, we have been able to get them (certain stations appellee had planned to supply with gasoline called for by the contract in question) two or three cars for prompt delivery to prevent them from running out of gasoline a,t some of the. stations, otherwise we would be placed in bad shape.” Under date of August 28, appellee wrote appellant, saying in part: “When we found that they (appellant’s principal) could not ship them (cars as ordered) we began to buy on the outside to keep the stations running.” One Allen testified: “We (appellee) were relying on this oil being furnished at the stations, and when it was not furnished we had to buy to keep the stations going. * *■' * We did not buy to take the place of this gasoline that was not delivered at these stations. We were buying steadily for those stations. We had to buy to keep them going. * * * We bought on account of the failure of them (appellant and its principal) to deliver * * *. I suppose we bought ten or fifteen tanks each month during the months of July and Augmst when they failed to deliver.” Therefore as to the eleven cars that appellant failed to deliver in July, as agreed in the contract, appellee’s proper measure of damages was the difference between the contract price and the market price on July 31, f. o. b. Chicago, except as to such cars as it purchased elsewhere in that month by reason of appellant’s failure to deliver, and as to those cars, appellee could only recover the difference between the contract price and the maiket price f. o. b. Chicago, on the dates of such purchases or the difference between the contract price and the price at which it actually purchased, if that was less than the market price. 35 Cyc. 641; Hercules Coal & Mining Co. v. Central Investment Co., 98 Ill. App. 427; Consolidated Coal Co. of St. Louis v. Block & Hartman Smelting Co., 53 Ill. App. 565; Long v. Conklin, 75 Ill. 32. Likewise, as to the nine cars that appellant failed to deliver in August, as agreed in the contract, appellee’s proper measure of damages was the difference between the contract price and the market price on August 31, f. o. b. Chicago, except as to such cars as it purchased elsewhere in that month by reason of appellant’s failure to deliver, and as to those cars, appellee ijould only recover the difference between the contract price and the market price f. o. b. Chicago, on the dates /of such purchases, or the difference between the con!tract price and the price at which it actually purchaser!, I If that was less than the market price. Appellee intimates that the burden was on appellant to show what gasoline appellee purchased elsewhere and the price paid for it. That is not correct. It was proper for appellant to show that in fact purchases had been made by appellee elsewhere, but the burden remained upon appellee to properly establish its damages by showing what those purchases were and the prices paid. It is of course true, as appellee points out, that when these outside purchases were made by appellee, because appellant was failing to ship as directed, the time within which -appellant could deliver under' the terms of the contract had not expired. In our opinion that does not affect the situation. Appellee having purchased the gasoline under this contract, to supply certain of its stations, as. soon as appellant failed to make deliveries as instructed, it devolved upon appellee to mitigate its loss as far as possible by supplying its stations through purchases elsewhere. If appellant had delivered a.11 the cars called for by the contract at the close of the periods within which it had the right to deliver, under the terms of the contract, appellee would have been obliged to receive and accept them and that situation might have affected the question of appellee’s damages, but tka.t did not occur and the question is therefore not presented.

Appellant contends that under this contract it was only required to make a reasonable effort to procure cars for shipment and if it did make such an effort and was not able to make delivery because of a shortage of cars, it should be excused for its breach. Such is not the law. The seller of a specific quantity of merchandise f. o. b. cars at a given point who fails to deliver as agreed, is liable in damages for his breach, though it may be caused by a shortage of ears making it difficult or even impossible to obtain them, the agreement to deliver being unconditional. Irwin v. Kelly, 176 Ill. App. 178, L. R. A. 1916F 37n. The case of Burt v. Garden City Sand Co., 237 Ill. 473, cited by appellant, has no application to the case at bar. In that case there was involved, not a sale of a specific quantity of a given article f. o. b. cars at a specified point, but of the output of defendants’ plant for the yeah, and the Supreme Court, commenting on the fact that in the trial court the jury had been instructed that if appellee was unable to procure cars in which to ship cement, that fact would relieve him from liability for a failure to fill the shipping orders sent him by appellant, said that the trial court was mistaken in its view of the law that appellee was bound to use all reasonable effort to operate his plant for the entire year and to fill all shipping orders sent him by appellant, under the terms of the contract there involved, but if that were the law and appellee was required to try his case upon the theory that it was, then he was only required to make all reasonable effort to malee shipments of cement upon orders of appellant, and if he was unable to procure cars in which to make shipments he would be relieved from liability. The decision of the trial court was affirmed because the error of law pointed out was favorable to appellant and had not been made the subject of cross error by appellee. The facts involved in that case were not at all similar to those presented here.

For the reasons stated, the judgment of,the circuit court is reversed and the cause is remanded to that court for a new trial.

Reversed and remanded.

Mr. Justices Taylor and O’Connor concur.