text:
    John L. Brown, sole surviving partner of Brown, DeTurck & Company, for use of Bassett, McNabb & Company, Appellee, v. John Gerson and Rosa Deimel, Appellants.
    Gen. No. 18,404.
    1. Judgments, § 6

      —what process necessary to sustain judgment. Under section 14 of the Practice Act, J. & A. 8551, .allowing a plaintiff to proceed to trial and judgment where part of the defendants are served, it is not incumbent upon the plaintiff to present reasons why the codefendants have not been served, before proceeding to such judgment.
    2. Judgments, § 126*-—what is admitted by default. Where, under Rules 15, 16, 17 of the Municipal Court, a defendant was defaulted for failing to file an affidavit of merits to the plaintiff’s statement of claim, which statement described a judgment sued on and alleged that such judgment was in full force and effect and unpaid, such default admitted that the judgment was in effect but did not admit the amount of damages, wherefore evidence not pertinent to the amount of damages was immaterial.
    3. Municipal Court op Chicago, § 8*—what actions court has jurisdiction of. Section 2 of the Municipal Court Act, J. &. A. If 3314, providing that such court shall have jurisdiction of “all actions on contracts, express or implied,” was not intended to confer jurisdiction of actions on judgments.
    4. Appeal and error, . § 1771*-—when Appellate Court may reverse a judgment. Under the rule that the Appellate Court may reverse a judgment without remanding, “when it reverses for errors of law which cannot be obviated or cured on another trial,” reversal is proper where the Municipal Court lacks jurisdiction of an action.
    Appeal from the Municipal Court of Chicago; the Hon. James C. Martin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912. Certiorari denied by Supreme Court (making opinion final.)
    Reversed.
    Opinion filed October 9, 1913.
    Statement by the Court. This is an appeal from a judgment of the Municipal Court of Chicago for $20,087.89, rendered in favor of appellee, plaintiff below, and against appellants.
    The action was one of the first class and was commenced in April, 1911, by the filing of a praecipe “in a suit of contract” against appellants as defendants. It was stated in the original statement of claim that plaintiff’s claim was based upon a judgment in debt, recovered in the Circuit Court of Cook county against said defendants and in favor of William S. Brown, Jacob DeTurck and John F. Brown, partners as Brown, DeTurck & Co., for $12,000 debt and the sum of $10,187.64 damages, the amount of debt to be discharged upon payment of damages, the date of said judgment being November 6, 1891, together with interest thereon. It was alleged in the original affidavit of claim that the nature of plaintiff’s demand was for the amount of said judgment, interest and costs of suit, and that the balance due was $20,087.89. Both of said defendants were served with summons, and on May 22, 1911, they filed an affidavit of merits by an agent, stating as the nature of their defense that “there is not any record of the said supposed judgment * * * against these defendants.” Subsequently, plaintiff was given leave to file an amended statement of claim, instanter, and the amended claim and affidavit so filed were substantially the same as the original statement and affidavit, except that it was stated that said judgment was against “Rudolph Deimel, Joseph Deimel, Simon Deimel, Ignatz Deimel, John Gerson and Rosa Deimel. ’ ’ Subsequently plaintiff was ordered to file a certified copy of the judgment sued on, which he did. Subsequently, on June 5th, on motion of plaintiff, it was ordered that all records, papers and proceedings be amended by making Rudolph Deimel, Joseph Deimel, Simon Deimel and Ignatz Deimel codefendants, that plaintiff have leave to file an amended statement of claim instanter, that a writ of summons issue for said codefendants and that said defendants file an affidavit of merits within ten days. Plaintiff’s second amended statement of claim and affidavit were substantially the same as the amended statement and affidavit, with the exception of naming the additional parties defendant and the allegation that said judgment was now in full force and effect and wholly unpaid. A summons was issued as to the four codefendants “impleaded with Rosa Deimel and John Gerson,” dated June 6, 1911, and was returned by the bailiff “the within named defendants not found in the City of Chicago this 12th day of June, 1911.” On June 23rd, the motion of the defendants, John Gerson and Rosa Deimel, to strike the second amended statement of claim from the files, on the ground that the action was unfounded in law and could not be maintained against said defendants, was overruled and they were given leave to file an affidavit of merits within ten days. It appears from a.bill of exceptions, filed July 15th, that said motion was supported by an affidavit of an attorney at law, in the employ of the attorneys for said defendants, to the effect that affiant, upon investigation, learned that on June 6th the summons issued against said four co-defendants was filed in the office of the bailiff of said court; that when so filed a deputy-bailiff marked on the upper right-hand corner of said summons the word “Hold;” that to each copy of the summons was pinned a slip of paper by the deputy-bailiff in charge of the serving of summons upon which slips was also written the word “Hold;” that no address of any of said codefendants appeared on said slips or on said summons; that following the practice of said bailiff’s office said summons was placed in a pigeon-hole in the desk of said deputy-bailiff, and that the same there remained until the return day, June 12th, when it was returned “not found” by a deputy-bailiff whose duties did not take him outside of said office.
    On July 3rd, on motion of defendants, John G-erson and Rosa Deimel, they were given ten days additional time to file an affidavit of merits. They, however, never filed any affidavit of merits subsequent to the one filed on May 22nd, above mentioned. On September 26th, it appearing to the court that said defendants were in default for want of an affidavit of merits, on motion of plaintiff it was ordered that judgment be entered against them by default for want of such affidavit; and a jury being sworn to assess the damages, heard the evidence and, following the courts instruction so to do, returned a verdict assessing plaintiff’s damages at the sum of $20,087.89. Said defendants thereupon moved for a new trial, and in arrest of judgment, both of which motions were overruled, and judgment against said defendants was entered upon the verdict, sind subsequently a joint appeal was perfected by them to this court. It appears from the bill of exceptions, filed November 23, 1911, that at the hearing on the assessment of damages before the jury on September 26th, both plaintiff and said defendants were represented by counsel, and the transcript of said judgment of November 6, 1891, was introduced in evidence, and Charles F. Eathbun, a witness for plaintiff and one of his attorneys, testified that he had computed the interest on the amount of said judgment from said date down to the day the present suit was started, and that the total amount due, including the interest, was $20,087.89. On cross-examination the witness testified that of his own personal knowledge he knew that the dockets of the Circuit Court showed a judgment; that the transcript introduced in evidence was a transcript of that judgment; that he signed the affidavit of plaintiff’s claim; that when in that affidavit he stated that there was due plaintiff from the defendants the said sum of $20,-087.89, he based that statement on the statement made to him by the plaintiff that no part of said judgment had ever been paid; that that was the extent of his personal knowledge in the matter; and that so far as he knew of his own personal knowledge the judgment might have been satisfied in the years gone by, if his client had told him an untruth. The attorney for defendants thereupon moved that the court instruct the jury that there was nothing in the evidence upon which they could assess any damages, and also objected to the transcript of the judgment introduced in evidence as being insufficient in that it did not show any convening or adjourning order of the Circuit Court, so that for aught that appeared the judgment might have been satisfied or set aside during the same term at which it was rendered. The motion and objection were overruled and exceptions taken by defendants.

      McEwen, Weissenbach, Shrimski & Meloan, for appellants.
    Ashcraft & Ashcraft and E. M. Ashcraft, for appellee; Charles F. Rathbun, of counsel.

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

   Mr. Justice Gridley

delivered the opinion of the court.

Three points are argued and relied upon by counsel for appellants for a reversal of the judgment, namely: (1) The Municipal Court had no jurisdiction of the cause of action set forth in plaintiff’s amended statement of claim, filed June 5, 1911; (2) even though the court had jurisdiction, it erred in rendering judgment against a less number than all of the joint judgment debtors, who were made parties defendant, and (3) the verdict and judgment are not supported by the evidence.

We do not think there is any merit in the second point. Section 14 of the Practice Act (J. & A. 8551) provides: “If a summons or capias is served on one or more, but not on all of the defendants, the plaintiff may proceed to trial and judgment against the defendant or defendants on whom the process is served, and the plaintiff may at any time afterwards, have a summons, in the nature of scire facias, against the defendant not served with the first process, to cause him to appear in said court, and show cause way he should not be made a party to such judgment, * * * .” See also Fender v. Stiles, 31 Ill. 460; Cassady v. Trustees of Schools, 105 Ill. 560, 565; Green v. Shaw, 66 Ill. App. 74, 76. Counsel argue that it appears from the affidavit contained in the bill of exceptions, filed July 15th, that the summons issued for the codefendants was marked by a deputy-bailiff with the word “Hold” and that no bona fide effort was made by plaintiff to obtain service on said codefendants. Under the language of the above section of the statute, we cannot see that it was incumbent upon plaintiff to present reasons why said codefendants had not been served with process, before proceeding to judgment against the defendants who had been served. Furthermore, it is not alleged in said affidavit that either plaintiff or his attorneys knew the addresses of said codefendants, or requested that service should not be made upon them, or that the failure to serve was occasioned by any fault of plaintiff.

As to the third point urged by counsel it is argued that the verdict of the jury was based upon the unsupported and hearsay testimony of one of the attorneys for plaintiff, to the effect that the judgment sued on had not been paid or satisfied, and, therefore, the judgment entered upon that verdict is unwarranted and should be reversed. We cannot agree with counsel. In compliance with Buie 15 of the Municipal Court plaintiff filed a statement of claim, in lieu of a declaration. Subsequently plaintiff filed, on June 5, 1911, an amended statement of claim, which sufficiently complied with the requirements of said Buie, and sufficiently showed the nature of plaintiff’s demand. It fully described the judgment sued on, and alleged that the judgment was in full force and effect and unpaid. Accompanying it was a transcript of said judgment, and also accompanying it was a sufficient affidavit of plaintiff’s claim, showing the amount due, in compliance with Bule 16 of said court. The defendants were ruled to file an affidavit of merits to said amended statement of claim, but they did not do so, and, in compliance with Bule 17, the court defaulted them for want of such an affidavit and ordered that a jury be impaneled “to assess the plaintiff’s damages.” By reason of said default the defendants admitted every material allegation of plaintiff’s statement of claim, one of which allegations was that the judgment sued on was in full force and effect and wholly unpaid, but the defendants had not by their default admitted the amount of damages. On that question they were entitled to cross-examine plaintiff’s witness before the jury so impaneled, but, in our opinion, they were not then entitled to cross-examine plaintiff’s witness as to the extent of the witness’ knowledge as to certain facts, not pertinent to the amount of damages, and which facts they had previously, by their default, admitted to be facts. The extent of the knowledge of said witness as to those facts at the then stage of the proceedings was wholly immaterial. “While the default admits every material allegation of the declaration, still, it does not admit the amount of the damages. The defendant, on the execution of the writ of inquiry before the court, could not introduce evidence tending to show that plaintiff had no cause of action, but would have the right to cross-examine plaintiff’s witnesses and introduce witnesses on its part on the question of damages, ask'for instructions as to the proper measure of damages, and preserve the rulings of the court by bill of exceptions.” Cairo & St. L. R. Co. v. Holbrook, 72 Ill. 419, 422; Plaff v. Pacific Exp. Co., 251 Ill. 243, 247.

The main contention urged by counsel for appellants for a reversal of the judgment is, that the Municipal Court had no jurisdiction of the cause of action. The question has been exhaustively argued by the respective counsel in their printed briefs and arguments, and is one which we have found somewhat difficult of determination. Section 2 of the Municipal Court Act (J. & A. If 3314) is in part as follows: “That said Municipal Court shall have jurisdiction in the following cases: First. Cases to be designated and hereinafter referred to as cases of the first class, which shall include (a) all.actions on contracts, express or implied, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars $1,000; * *

Counsel for both parties to this appeal seemingly agree that the decision of the question turns upon the construction to be given the words “all actions on contracts, express or implied,” contaipecl in said section. The present action was one “of contract” and was brought upon a judgment, within twenty years from the date of its rendition. Counsel for appellants contend that a judgment is not a contract, either express or implied, within the meaning of the statute.

In Bidleson v. Whytel, 3 Burrow’s Rep., 1545-48, it was decided in an opinion delivered by Lord Mansfield that a judgment is no contract, nor can be considered in the light of a contract; for judicium reddiiur in invitum.” Following that decision, the Supreme Court of this State, in the early case of Williams v. Waldo, 4 Ill. (3 Scam.) 264, 269, said: “A decree or judgment at law is not a contract. Contracts are made between the willing; judgment and decrees are rendered against the unwilling, and they extinguish the contract.”

In Rae v. Hulbert, 17 Ill. 572, the question arose, under the provisions of an existing statute providing that a defendant “in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff, may set up the same and have them allowed him upon the trial, ’ ’ whether a judgment could be set off by the defendant in an action against him, and it was held that it could not be. The Court said (p. 579): “We cannot agree with counsel that a judgment is a contract, within the meaning of the statute. It is the conclusion of the law upon the rights of the parties, and it is not very common that it is entered up by the agreement of the unsuccessful party, but the reverse is generally the case. * * * A judgment is no more a contract than is a tort. In one sense it is true that every member of society impliedly agrees to pay all judgments which may be regularly rendered against him; and, in the same sense, does he impliedly agree to make amends for all torts which he may commit. ’ ’

In Ambler v. Whipple, 139 Ill. 311, it appeared that a certain act of the legislature, passed in 1849, provided that “all actions founded upon any promissory note, simple contract in writing, bond, judgment, or other evidence of indebtedness in writing, caused or entered into after the passage of this act, shall be commenced within,” etc. It further appeared that subsequently the legislature passed an act as a substitute for the former act, which provided that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts or other evidence of indebtedness in writing, shall be commenced within,” etc. It was contended that the words “other evidence of indebtedness in writing” in the later act necessarily included judgments. But the Court held to the contrary, saying (p. 319): “It will be observed that the later statute omits the word ‘judgment’ before the general clause, ‘or other evidence of indebtedness in writing. ’ It is to be presumed that by the change in the phraseology some change was intended to be made in the rule of law, and would clearly indicate an intention to exclude judgments from the operation of the later enactment. It cannot be presumed that the omission was accidental, nor can a misapprehension of the legislature as to the effect of the change in the law be inferred. In construing this section it is proper to consider it with reference to the state of the law before its adoption.” The Court also held (p. 318) that a judgment for the payment of money is evidence of indebtedness of the highest dignity known to the law, but quoted with approval portions of the opinion in Rae v. Hulbert, supra, wherein it was held that a judgment was not a contract.

In Belford v. Woodward, 158 Ill. 122, 135, the Court cites with approval the cases of Williams v. Waldo and Rae v. Hulbert, supra, and said: “Counsel for plaintiff in error claim, that a judgment is a contract. Some courts have held that a judgment is a contract, and others have held that it is not a contract. * * * The doctrine of this court is that is, that a judgment is not a contract.”

In Morley v. Lake Shore & M. S. Ry. Co., 146 U. S. 162, Mr. Justice Shiras, in delivering the opinion of the court, said: “It is contended on behalf of the plaintiff in error * * * that the judgment is itself a contract. * * * The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. ‘A judgment is, in no sense, a contract or agreement between the parties.’ Wyman v. Mitchell, 1 Cowen [N. Y.] 316, 321.”

Counsel for appellee have cited many cases in other States, holding that a judgment is a contract, and they have also called our attention to several well-known text books, wherein it is stated that a “judgment” is a “contract of record”, but they have not cited, nor has our attention been called to any later case decided by our Supreme Court, wherein the “doctrine” of that court, that a judgment is not a contract, has been expressly departed from. Counsel admit that in a limited sense the word “contract” has one meaning, and that to fall within this meaning it must have all the elements of a contract, such as a consideration, meeting of minds, etc., but they contend that the word, as used in said statute, has a much broader meaning. They argue that a judgment is a legal obligation, that being a legal obligation the judgment debtor impliedly agrees to pay it, and that the legislature of the State, in making the classification in the first paragraph of section 2 of the act, intended to separate actions ex contractu and ex delicto, and, by the use of words ‘ ‘ all actions on contracts, express or implied,” in clause “a” of said paragraph, intended to give the Municipal Court jurisdiction of actions on judgments where the amount claimed by plaintiff exceeded $1,000. In support of their argument they cite the cases of Chudnovski v. Eckels, 232 Ill. 312, and Harty Bros. & Harty Co. v. Polakow, 237 Ill. 559.

In the former case the court held that the Municipal Court has jurisdiction, under said clause of the statute, in an action of assumpsit by a passenger against a common carrier for breach of the implied contract of carriage, resulting in an injury to the passenger, if the amount claimed by plaintiff exceeds $1,000. In the latter case it .was held that the Municipal Court has jurisdiction, under the same clause of the statute, of an action of assumpsit brought under section 28 of the Mechanic’s Lien Act (J. & A. j[ 7165) by a subcontractor against the owner and contractor, jointly, by reason of the implied contract between the subcontractor and the owner, there being an express contract between the owner and the contractor and an express contract between the contractor and the subcontractor. In the ChudnovsJci case, supra, the Court said on page 316 (italics ours): “Appellants contend that the words ‘contracts, express or implied, ’ in this section, do not include cases for personal injuries. They seek to apply to the construction of these words a distinction between constructive contracts, or fictions of law adapted to enforce legal duties by actions of contract, and implied contracts, which arise under circumstances which, according to the ordinary course of dealing and the common understanding of men, show a mutual intention to contract. * # * (p. 317.) The term ‘implied contract’ is a familiar one in the law. By reason of the relation of the parties or the existence of an obligation or duty a contract may be implied by law which the party never actually intended to enter into and the obligation of which he did actually intend never to assume. * * * (p. 319.) The distinction between contracts implied by law from the existence of a plain legal obligation, without regard to the intention of the parties or even contrary thereto, and contracts implied in fact from acts or circumstances indicating their mutual intention, is unimportant in this case. All alike come within the natural and usual meaning of tJ%e tvords ‘implied contract.’ * * * (p. 320). There is nothing in any part of the act indicating that the words ‘contract, express or implied,’ were used in other than their natural and ordinary sense. * '* * While it is true that actions of trespass vi et armis for an injury to the person and actions on the case are not within the jurisdiction of a justice of the peace, we know of no reason why such magistrate has not jurisdiction of an action for a breach of contract of carriage resulting in an injury to the passenger, where the amount claimed does not exceed his jurisdiction. * * * It is very clear that neither the legislature nor the courts have given to the expression, ‘contracts, express or implied, ’ any technical or limited meaning other than the words naturally bear.”

In the Polakow case, supra, it is said, on page 564 (italics ours): _

_ “The term ‘implied contract’ has been used to denote not only contracts implied in fact,—that is, obligations where the mutual intention to contract, although not expressed, is implied or presumed from the acts of the parties or from surrounding circumstances,—but also to denote that class of obligations imposed or created by lato without the assent of the party bound, and sometimes even notwithstanding his actual dissent, upon the ground that they are dictated by reason and justice. These latter obligations have sometimes been called constructive contracts or contracts implied by law,—fictions of law adopted to enforce legal duties. * * * This court has held in the recent case of Chudnovski v. Eckels, 232 Ill. 312, that there is no distinction between contracts implied by law from the existence of a plain legal obligation, without regard to the intention of the parties, or even contrary thereto, and contracts implied, in fact, from acts or circumstances indicating the mutual intention; that all alike come within the natural and usual meaning of the words ‘implied contract.’ ‘Whatever the laws order anyone to pay, that becomes instantly a debt which he hath beforehand contracted to discharge.’ 3 Blackstone 160; Bowen v. Hoxie, 137 Mass. 527; Bishop on Contracts, sec. 205; Pacific M. S. Co. v. Joliffe, 2 Wall. 450.”

In neither the Glmdnovski case nor the Polakow case supra, did the court expressly decide that the Municipal Court, under said clause of the statute, had jurisdiction of an action upon a judgment, nor did it refer to the question whether or not a judgment was a contract. Counsel for appellee, however, contend that from the language used in the opinions it is clear that a judgment is such a legal obligation as comes within the natural and usual meaning of the words “implied contract,” and that those cases in effect decide that, by the use of the words “contracts, express or implied” in said clause of the statute, the legislature intended to confer jurisdiction upon the Municipal Court of an action upon a judgment. In view of the prior decisions of our Supreme Court, above mentioned, we are unable to agree with counsel’s conclusion.

In Wright v. People, 101 Ill. 126, 131, it is said: “It is universally conceded that one of the most efficient means in ascertaining the legislative intent in the adoption of a new statute is to consider it with reference to the state of the law before its adoption, and particularly with reference to the previous legislation on the same subject.” See also Ambler v. Whipple, supra; 36 Cyc. 1144. When the section of the Municipal Court Act in question was adopted it was the law of this State that a judgmrJ si — ‘ -s not a contract; and long prior to and at the tip f its adoption there were statute laws which mi distinctions between unwritten contracts and wrii contracts and judgments, as to the limitation o me within which actions could be brought therr . These distinctions exist today. It was then the b as now, that “actions on unwritten contracts, expre d or implied, * * * shall be commenced within í . years next after the cause of action accrued” (ch. >. 83, sec. 15, Bev. St.; J. & A. j[ 7210); that “actions i bonds, * * * written contracts, or other evidei íes of indebtedness in writing, shall be commenced vithin ten years next after the cause of action ace ad” (sec. 16; jj 7211); and that “judgments in an; iourt of record in this State may be revived by sou facias, or an action of debt may be brought thereon ..ithin twenty years next after the date of such judgment, and not after” (sec. 26; 7221). In 1886, in the case of United States v. Board of Auditors, in the Circuit Court for the Northern District of Illinois (28 Fed. Bep. 407, 408), Blodgett, J., said that the section of the statute last above quoted “clearly takes judgments in the courts of record out of the classes of indebtedness covered by sections 15 and 16 of chapter 83 [ff]f 7210, 7211], which relate specifically to indebtedness evidenced by oral and written contracts, and preserves the right of action on such judgments for the term of 20 years.”

In 1911, the legislature of this State (House Bill No. 615, approved June 10, 1911) passed an act, subject to the approval thereof by a majority of the legal voters of the city of Chicago voting thereon, amending certain sections of the Municipal Court Act. (Laws of Illinois, 1911, page 260.) One of the sections amended was section 2, and clause “a” in the first paragraph of said section was amended to read as follows: “(a) All actions on contracts, express or implied, and actions on judgments when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000).” The legislature directed that the act should be submitted to said legal voters “at the first regular municipal, judicial, general or special election” which should occur after July 1, 1911. We are informed by counsel that the act was submitted to said voters at the regular election held in November 1911, but failed of adoption. During the present year, 1913, the legislature of this State (House Bill No. 416, approved June 28, 1913) passed an act, subject to the approval of a majority of the legal voters, etc., entitled “An act in relation to the Municipal Court of Chicago.” (Laws of Illinois 1913, page 212.) The legislature directed that this act should be submitted to said legal voters “at the first regular municipal, judicial, general or special election which shall occur in said city of Chicago after the date of the passage of this act.” Such election has not at present writing yet been held. Clause “a” of the first paragraph of section 2 of this new act reads as follows: “ (a) All actions on contracts, express or implied, and-actions on judgments, when the amount claimed by the plaintiff, exclusive of costs, exceeds one thousand dollars ($1,000),” It is to be noticed that by these two acts of the legislature it was and is sought to expressly confer jurisdiction upon the Municipal Court of “actions on judgments,” in addition to the jurisdiction previously conferred of “actions on contracts, express or implied.”

In view of the foregoing, and after careful consideration, we are of the opinion that when the legislature passed the section of the act in question it was not its intention to confer jurisdiction on the Municipal Court of an action on a judgment; and we have reached the conclusion, and so hold, that the trial court did not have jurisdiction of the present action, and for that reason the judgment must be reversed. As said in the Polákow case, supra, at page 567, the Appellate Court may reverse a judgment without remanding the cause under two conditions, the second of which is “when it reverses for errors of law which cannot be obviated or cured on another trial. A want of jurisdiction in the Municipal Court falls within the second class.” The judgment of the Municipal Court will, therefore, be reversed, but the cause will not be remanded.

Reversed.


source: Caselaw Access Project

author: Mr. Presiding Justice Baker

license: Public Domain

text:
    Thomas Foulkes, Defendant in Error, v. Francis M. Steward, Plaintiff in Error.
    Gen. No. 17,367.
    (Not to be reported in full.)
    Abstract of the Decision.
    1. Fraud, § 111

      —what evidence is sufficient to show fraud of a physician. In an action by a patient against a physician for various sums of money which the patient claimed had been obtained from him by fraud, he being induced to believe that his eyes were diseased, held that the evidence of plaintiff was so self-contradictory and so opposed to the testimony of other witnesses that the judgment in his favor should be reversed.
    2. New trial, § 52*—when new trial will he granted. Evidence held not to sustain a claim for one hundred and fifty dollars which a patient alleged had been stolen from him by a physician at a Turkish bath house, wherefore a new trial should be granted.
    Error to the Circuit Court of Cook county; the Hon. Jesse A. Baldwin, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1913.
    Statement of tlie Case.
    Action of assumpsit by Thomas Foulkes against Francis M. Steward. From a judgment of two thousand two hundred and forty-seven dollars for plaintiff, defendant brings error.
    Edward L. Harpham and C. W. Greenfield, for plaintiff in error.
    J. Marion Miller and Charles R. Whitman, for defendant in error.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

3. New trial, § 52*—when new trial will be granted. Held that a finding that five hundred dollars was paid by a patient to an agent of defendant physician was against the clear preponderance of evidence, wherefore a new trial should have been granted.

4. Witnesses, § 256*—what matters affect credibility. An instruction as to the credibility of witnesses held to omit the important element of the number of witnesses, the consistency of their testimony, its conformity with experience and its coincidence with collateral circumstances.


text:
    George W. Wheeler, Appellee, v. Chicago and Western Indiana Railroad Company and The Belt Railway Company of Chicago, Appellants.
    Gen. No. 17,828.
    1. Master and servant, § 115

      —when railroads jointly liable for injuries to engineer. An engineer hired by one railroad com. pany but engaged in operating an engine for two railroad companies having a joint interest in and control of the work, is a joint servant of both and both are liable for injuries sustained by him by reason of their failure to discharge the duties of master.
    2. Master and servant, § 745*—time servant may continue worle pending repairs, question for jury. Whether an engineer, after reporting that his engine needed repairs, continues to use the same longer than was reasonably necessary to permit repairs to be made is a question for the jury.
    3. -Master and servant, § 745*—imminency of danger, question for jury. Whether the danger was so imminent that no reasonable man would have continued to work under the circumstances is a question for the jury.
    4. Evidence, § 423*—when opinion of medical experts admissible. Medical experts may express their opinion whether plaintiff’s physical condition was due to the injury where the fact of the injury is uncontroverted.
    5. Trial, § 40*—examination of injuries. Refusal of court to permit defendants’ physicians to examine plaintiff’s injuries, held not error.
    6. Damages, § 122*—when not excessive. Verdict for $15,000 for injury to leg of a locomotive engineer, held not excessive.

      7. Pleading, § 473

      —wlien pleadings aided by verdict. An omission of the word “not” in a count in the declaration, held a clerical error not rendering such count insufficient after verdict.
    Appeal from the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    William S. Kies, C. G. Austin and Beverly W. Howe, for appellants.
    Clarence S. Darrow and Edgar L. Masters, for appellee.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

In an action on the case by plaintiff Wheeler against the two defendant railroad companies to recover for damages alleged to have been sustained by him through the negligence of the defendants, both defendants were found guilty and plaintiff’s damages assessed at $20,000. Plaintiff remitted $5,000, had judgment for $15,000, and the defendants appealed. The Chicago and Western Indiana Railroad Company owned certain tracks and engines and leased the same to the Belt Railway Company. At the time of the accident the Belt Railway Company was engaged in elevating the tracks leased to it by the Chicago and Western Indiana Company from 83rd street north to Archer avenue, and used in such work engine 32, an engine leased to it by the Western Indiana Company. Plaintiff was employed by the Western Indiana Company in 1883 and was in its service as a locomotive engineer up to August 12, 1907, when he received the injury for which he sued.

To back the engine a reverse lever was used, which worked in a quadrant with ratchets. The lever extended about four and a half feet above the floor of the engine and underneath the floor was a rod which extended forward about half the-length of the boiler, then crossed underneath the boiler and was connected with the arms of the tumbling shaft. Links weighing two hundred pounds were attached to the tumbling shaft, which raised when the lever was pulled back in the quadrant to reverse the engine and went back into place when the lever was pushed forward, to start the engine ahead. A counter-balance spring was located under the boiler in an iron case, which aided to lift the links and hold the reverse lever in place when the engine was reversed. While operating the engine Saturday, August 10, plaintiff noticed that the counter-balance spring did not hold the reverse lever in place when the engine was reversed, and to prevent it from flying forward he was compelled to and did throw his weight against the lever when backing the engine. On taking his engine into the round-house at 83rd street at close of the day’s work, plaintiff reported the defective condition of the counter-balance spring by writing in the work book “Engine 32, counter-balance spring in bad order. Either weak or broken. Engine will not stay locked in back motion. Wants new- spring.” He testified that he reported the condition of the spring to Eisle, the night foreman for both companies, and told him that he had “put it on the book. ’ ’ He further testified that Monday morning, August 12, he asked Eisle if the work on the engine had been done, and Eisle said “Yes” and ordered him to take the engine and go to his work. Eisle contradicted the plaintiff, and it will be presumed, in affirmance of the verdict, that the jury believed the plaintiff. About 11:30 A. M. plaintiff was backing the engine, holding the lever in place by throwing his weight against it, and took his “heft” off the lever to shut off the throttle to prevent the engine from slipping. As he did so the lever came out of the ratchet and pressed plaintiff’s right leg against a valve and fractured his knee cap. He worked the remainder of the day and regularly from that time until August 31, when he called on Dr. Webster, the chief surgeon of the Western Indiana company. There was some swelling at the, right knee cap and it was an inch and a half larger than the other knee. The leg was red on the inside, but there was no evidence of infection. Dr. Webster bandaged the knee. • Two days later plaintiff returned and the doctor tightened the bandage. A week later Dr. Webster and his assistant, Dr. Lofton, saw plaintiff at his house and then discovered that his knee cap had been fractured transversely at the lower quarter. Dr. Webster testified that when he first saw plaintiff he could not feel his knee cap because of swelling, but that when he saw him at his house the swelling had subsided so that he could discover the fracture. Plaintiff remained at home from that time until September 23, when he resumed work and worked regularly until the early part of May, 1898. His leg began to swell after he went back to work in September and he went to Dr. Webster for treatment from time to time until some time in the following May, when he went to Mudlavia for treatment. He returned at the end of a week with the knee normal in size and after a few days went back to his work as an engineer. His leg soon began to swell again and he quit work May 29. Since that time his leg has been painful and very much swollen from his ankle to a point midway between the knee and the hip, and he has not been able to work as a locomotive engineer, but since October, 1898, has been a stationary engineer.

The appellants contend that plaintiff was the servant of the Western Indiana Company only, that the court therefore erred in refusing to direct a verdict for the Belt Bailway Company and in rendering judgment against either Company. It was admitted by counsel for the defendants at the trial that the Chicago and Western Indiana Bailroad Company owned engine 32; that at the time of the accident “the engine was working on track elevation for the Belt Bailway Company, ’ ’ and also that the engine was then “working on track elevation for the Chicago and Western Indiana Bail-road Company.” Plaintiff ran engine 32, and if he, with that engine, was engaged in track elevation for both railroad companies, both companies must have had a joint interest in and control of the work, and plaintiff, in so rendering services to both, was the joint servant of both, and both were charged with the duties of a master to him, although he was hired by the Western Indiana Company.

The appellants further contend that the court erred in permitting each of the medical experts called by the plaintiff to testify in answer to a hypothetical question, that in his opinion the condition of plaintiff’s leg was due to the injury testified to by him. There is in the record no evidence tending to show any injury to plaintiff’s knee other than that which he testified he sustained August 12, 1907, and his testimony as to that injury is not controverted. The controverted question was not whether he sustained such injury, nor how it occurred, but whether such injury caused or contributed to the subsequent condition of the leg. In such a case physiciaus may express their opinion as to whether the physical conditions were the result of the injury. City of Chicago v. Didier, 227 Ill. 571.

Appellants further contend that, taking as true the testimony of the plaintiff, he assumed the risk. His complaint and the promise of the defendants, through their night foreman, Eisle, to repair the counterbalance spring, were made when the engine was returned to the round house at the close of the day’s work Saturday, August 10. At six o’clock Monday morning he saw that he was to have engine 32, and asked Eisle if he “had done that work on her” and Eisle replied “Tes” and ordered plaintiff to take the engine and go to work. As the complaint was made at the close of work Saturday and plaintiff took out the engine Monday morning at six, if he had taken it out without asking whether the work asked for had been done it would have been a question for the jury whether he continued to use the engine longer than was reasonably necessary to permit the counter-balance spring to be repaired or replaced by a new one; and we do not think that the time that he might use the engine without assuming the risk was lessened or diminished because the night foreman, in place of making no statement as to whether the work promised had been done, or renewing his promise to do the work asked for, stated that the work had been done, when in fact it had not been done. It is not accurate to say that plaintiff knew at nine o’clock that the work had not been done. What he knew was that when at nine o’clock he first backed the engine the spring acted as it had Saturday. We think that the questions whether the danger was so imminent that no reasonable man would have continued to work under the circumstances, and whether the plaintiff continued longer than was reasonably necessary for the condition to be remedied, were questions of fact for the jury.

We find no reversible error in the rulings of the court on evidence or instructions.

We think the court did not err in refusing to permit defendants’ physicians to make an examination of the plaintiff’s knee.

We think the omission of the word “not” in the fourth count was a clerical error, and that the count, after verdict, must be held sufficient. We do not think that the verdict is against the evidence nor that the amount of the judgment can be held excessive in view of the condition of plaintiff’s leg, which the jury might, we think, properly find from the evidence, was the result of the injury.

We think the record is free from error, and the judgment is affirmed.

'Affirmed.


text:
    Catherine A. Kennedy, Administratrix, Appellee, v. Charles C. Heisen, Appellant.
    Gen. No. 17,856.
    1. Negligence, § 24

      —when owner is liable for injuries to water inspector. An owner of a building who leases a part thereof, giving lessee the right to install a separate water meter impliedly invites a city water inspector to enter his premises for the purpose of inspection and is liable for injury to the inspector resulting from the unsafe condition of the premises.
    2. Negligence, § 23*—when license or invitation is inferred. Invitation is to be inferred where there is a common interest or mutual advantage, while a license is inferred where the object is mere pleasure or comfort of the person using it.
    3. Negligence, § 24*—duty to mere licensee. A mere licensee has no cause for action for injuries received through the negligence of the licensor in the place he is permitted to enter.
    4. Negligence, § 3*—rule as to duty of persons to avoid danger of injury to others. Whenever one person is, by circumstance, placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such .danger.
    Appeal from the Superior Court of Cook county; the Hon. Richard E. Burke, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.
    Winston, Payne, Strawn & Shaw and Henry M. Hagan, for appellants; Edward W. Everett and James H. Winston, of counsel.
    Timothy J. Fell, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

This is an appeal by the defendant Heisen from a judgment for seven thousand five hundred dollars, recovered Tby the administratrix of the estate of Thomas F. Kennedy, deceased, in an action on the case for wrongful death. Heisen owned the building Nos. 485 to 493 and the building Nos. 493 to 501 West Kinzie street. The buildings were on the north side of the street and between Nos. 491 and 493 and in the rear of the buildings was an alley nineteen feet wide. The entire building on both sides of the alley was supplied with city water through a meter in Kinzie street just west of the alley. September 2, 1908, Heisen leased by written lease to George H. Anderson & Co. the first floor of Nos. 485 to 491 for a term of ten years from January 1, 1909. By a contract in writing, executed by the parties. at the time of the execution of the lease, it was provided; “That the lessees install their own meter and pay their own water taxes, less $5.00 per month of such amount, which is chargeable to the lessor for water ordinarily furnished for all ordinary purposes.” The ordinances of the city of Chicago prohibit any person from interfering with a water meter without permission of the commissioner of public works; provide that water meters shall be located at such places as the commissioner of public works shall direct, and that all manufactories shall have the water supply thereto controlled by water meters. The lease also provided that the premises should be occupied for manufacturing, beveling and silvering glass. Heisen therefore knew when he leased the premises to Anderson & Co., by a lease which required the lessees to install a water meter, that to do so the ordinances required the lessees to procure a permit from the water bureau and that the commissioner of public works would send an inspector to inspect the premises before granting a permit to tap the main and install a meter. Anderson & Co. applied to the water bureau for a separate meter and connection and were told that the bureau would send an inspector to examine and report. The deceased was an inspector in the water bureau. He was ordered by Ms superior to go to defendant’s building, make an investigation as to the size of the supply pipe, the meter and the pipes coming from the meter, so that it might be determined whether an order should be made for an additional supply of water. In pursuance of tMs order deceased went to the building, passed from the alley in the rear into the boiler room, asked for the engineer and was told by the fireman that he was in the engine room. He passed through a swinging door from the boiler room into the engine room. In the engine room a few feet from the door was a thirty-six inch belt passing over a fly wheel eighteen feet in diameter at “the south end of the room and over a small pulley at the north end running north on top and south at the bottom. This belt passed under the floor at a point just south of the south jamb of the door. Deceased fell down on the belt, was carried down by it beneath the floor to the fly wheel and killed.

The fundamental question in the case is: Did the facts raise a duty on the part of the defendant towards the plaintiff, the breach of which is shown? The question whether the circumstances make a case of invitation in the techMcal sense of that word as used in many adjudged cases, or only a case of mere license is not free from difficulty. The difficulty is not in ascertaining what is the law, but in applying it to the facts of the case. When a person is a mere licensee he has no cause of action on account of an injury received through the negligence of the licensor in the place he is permitted to enter. In Campbell on Negligence, quoted by Mr. Justice Harlan in Bennett v. Louisville & N. R. Co., 102 U. S. 585, it is said: “The principle appears to be that invitation is to be inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or comfort of the person using it.” Here there was a common interest in the work between Heisen and the deceased and it was to their mutual advantage that the inspection be made—to Heisen’s because such inspection was required in part performance of the covenants of his lease; to the advantage of the deceased because the making of such inspection was in the performance of the duties of his employment. It is immaterial that the request to the superintendent of the water bureau to have the premises inspected was made not by Heisen but by Anderson. Heisen knew that an inspector would be sent to inspect the premises before a permit to install a new connection with the water main would be granted. The employer of the deceased was bound to make the inspection and properly sent the deceased to perform that duty, and this prevents the case from being that of one who is a mere licensee. Holmes v. N. E. R. R. Co., L. R. 4 Exch. 254.

The deceased did not enter defendant’s building under license or authority given By the law, and the case is on this ground to be distinguished from Gibson v. Leonard, 143 Ill. 182. We think that there was, in the sense in which the word is used in many of the adjudged cases, an invitation of the deceased by the defendant to go into his building to inspect the water pipes and connections, and that deceased went into said premises by the implied invitation of the defendant and not as a mere licensee.

But there is another and broader ground on which the defendant was bound to use ordinary care to avoid danger of injury to the deceased. We think the case comes within the rule stated by the Master of the Rolls in Heaven v. Pender, 11 Q. B. D. 506, that: “Wherever one person is, by circumstances, placed in such a position with regard to another that every one of ordinary sense who did think .would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.” Shearman & R. on Negligence (6th Ed.) sec. 116; Smith on Negligence (Am. Ed.) 10.

As a reasonable man defendant must have known that if he was negligent in respect to the condition of the premises he might cause injury to the person sent to inspect the premises, and in such case the law imposed on him the duty not to be negligent.

We think that if the defendant owed to the deceased the duty to exercise reasonable care for his protection, the jury might from the evidence properly find that defendant was guilty of' a breach of such duty, and that the deceased was not guilty of contributory negligence. The accident occurred just after the engine had been started up at noon and before electricity was generated to light the electric lamps. The engine room was not well lighted, the sun was shining and there was snow on the ground. One coming in from the outside might, without negligence, fail to see the belt. While the evidence was contradictory as to how far in front of the door the railing in front of the belt extended, we think the jury might from the evidence properly find that by fully opening the door one could walk directly in oh the belt.

We think the court properly overruled the motion for a new trial on the ground of newly-discovered evidence.

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

Affirmed.


text:
    Mary E. Miller, Administratrix, Appellee, v. John W. Duntley, Appellant.
    Gen. No. 17,859.
    1. Contracts, § 12

      —mutuality. A contract signed by both parties whereby one party is to pay a certain sum by a day named and the other to release from any claims upon payment of such sum, held mutually obligatory.
    2. Release, § 4*—consideration. An agreement to release from a claim is sufficient consideration for a promise to pay a certain sum.
    3. Contracts, § 2*—executory contracts. A contract whereby one party agrees upon the payment of a certain sum to release the other from any claim against him is not wholly executory when signed by both parties and delivered.
    4. Damages, § 88*—when provision is for forfeiture. Provision in a contract that if. one party should fail to pay a certain amount in full by a certain day he shall forfeit and lose payments which have been made, held a provision for a forfeiture and not for liquidated damages.
    Brown, J., dissenting.
    Appeal from the Municipal Court of Chicago; the Hon. Isadorb H. Himes, Judge, presiding. Heard in this court at the October term, 1911. Affirmed.
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.
    Steers, Williams & Steere, for appellant; George S. Steere, of counsel.
    Harlan & McCandless, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

December 9, 1899, appellant Duntley and S. F. Miller, plaintiff’s intestate, executed the following instrument in writing:

“Chicago, Illinois, December 9th, 1899.
I hereby acknowledge receipt for $1,500.00 received this date from J. W. Duntley, which is in part payment on $10,000.00 worth of stock in the Chicago Pneumatie Tool Company, which J. W. Duntley promised me.
I hereby agree to allow him until August 1st, 1900, to pay the balance of $8,500.00, and if the said J. W. Duntley should fail to pay the full amount by August 1st, 1900, he will forfeit and lose payments which have been made.
And upon payment of this full amount I release him from any promise or claim whatsoever between the said J. W. Duntley and myself.
S. F. Miller,
J. W. Duntley.”

On this instrument Miller made the following indorsement: “Received March 6th, 1900, 1500 on acct., and this agreement is extended to Nov. 1900.” Duntley paid Miller in addition to the sums mentioned in the receipt, Jan. 15,1900, $1,000; Oct. 9,1900, $1,000; March 23, 1901, $600; June 13, 1901, $250; a total of $5,850. Plaintiff had judgment for $6,216.33, the difference ($4,150) between the moneys so paid by Duntley and $10,000 and $2,066.33 interest, and defendant appealed.

We think that the contract of the parties, as expressed in the writing signed by them, was that Miller was to receive from Duntley $10,000 worth of stock which Duntley had promised him, or, in lieu thereof, $8,500 in money in addition to the $1,500 paid when the writing was executed. This was, we think, the construction given by the parties to the writing. Duntley paid Miller $1,000 January 15, 1900, and $1,000 March 6, 1900, when the indorsement, “this agreement is extended to Nov. 1900” was made. This indorsement meant that the time of payment of the $8,500 was extended from August 1 to November, 1900. There is in the writing no express promise by Duntley to pay Miller $8,500, but from Miller’s express agreement to allow Duntley, “until August 1st, 1900, to pay the balance of $8,500,” and the signing of the writing by Duntley, there arises by implication a promise by Duntley to pay that sum on or before the date specified. Both parties signed the paper; and, if a contract is created, it is a mutual contract. Both are liable or neither. We think that the contract was mutually obligatory on the parties—on Duntley to pay $8,500 by August 1,1900, and on Miller to accept said sum and release Duntley from “any promise or claim whatsoever between said J. W. Duntley and myself.” By entering into the contract Miller agreed, on the payment of the balance of $8,500, to release Duntley from any claim against or promise by him. The contract in suit cannot, therefore, be regarded as wholly executory when it was signed and delivered. By the act of signing Miller agreed, on the terms therein mentioned, to release Duntley from a claim or promise of some kind. This, constituted a sufficient consideration for the promise, by implication, by Duntley to pay Miller the balance of $8,500. Miller died May 20, 1902.

The contention that the judgment should be reversed on the ground of variance is without merit. The contention that the judgment must be reversed on the ground that, by the terms of the contract, the damages were liquidated and limited to the amount shown to have been paid by Duntley is also, we think, without merit. We think the provision that if Duntley should “fail to pay the full amount by August 1st, 1900, he will forfeit and lose payments which have been made,” is a provision for a forfeiture and not a stipulation for liquidated damages.

It follows from what has been said that in our opinion the contract is not within the statute of limitations. The case is not free from difficulty, but in the opinion of the majority of the court the judgment is right and it is affirmed.

Judgment affirmed.

Mr. Justice Browh dissenting.


author: Mb. Pbesiding Justice Baker

text:
    In Re Jacob H. Smyser. Lena Amborn, Appellee, v. Jacob H. Smyser, Appellant.
    Gen. No. 17,873.
    1. Assault and battery, § 1

      —what constitutes. In an action for assault there must be a wrongful act done intentionally without just cause or excuse, and such an act is “malicious” in the statutory sense.
    2. False imprisonment, § 3*—what is element of tort. In an action for false imprisonment there must be a wrongful act done intentionally without just cause or excuse, and such an act is “malicious” in the statutory sense.
    3. Execution, § 279*—when execution against the person is authorised. Where a defendant was arrested a capias ad satisfaciendum issued on a judgment rendered in trespass for assault and false imprisonment, held that the dismissal of his petition for release from arrest was proper, malice being the gist of the action in which the judgment was rendered.
    Appeal from the County Court of Cook county; the Hon. John E. Owens, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Geeting, Potts & Van Dellen, for appellant.
    Louis Levy, for appellee.

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

   Mb. Pbesiding Justice Baker

delivered the opinion of the court.

In trespass for assault and false imprisonment brought by Lena Amborn against appellant, plaintiff had judgment for five thousand five hundred dollars. A capias ad satisfaciendum was issued on the judgment and defendant, appellant here, was arrested on the writ. He filed his petition in the County Court to be released from such arrest and tendered his schedule which the court refused to accept, dismissed his petition and defendant appealed.

The decision turns on the question whether malice was the gist of the action in which the judgment was rendered.

“The intention to do harm is the essence of an assault.” Greenleaf’s Ev. sec. 33.

“In order to, constitute false imprisonment there must be a detention and the detention must be unlawful.” 3 Bl. Com. 127.

In First Nat. Bank of Flora v. Burkett, 101 Ill. 391, it is said (p. 394): “Malice * * * in some cases implies a wrong inflicted on another with an evil intent or purpose, and this is the sense in which it is employed in this statute. It requires the intentional perpetration of an injury or wrong on another. The wrong and intention to commit the injury are necessary to deprive the party of the right to a discharge from arrest or imprisonment. In this case there was an intentional wrong, little, if anything, short of a criminal act, and it was malicious, in the statutory sense.”

In Re Murphy, 109 Ill. 31, it was held that under the rule stated in the Bank of Flora case, supra, malice was the gist of an action for assault and battery, “within the sense of the word ‘malice’ as used in the statute.”

We are unable to perceive any ground on which it can be held that malice is the gist of an action of assault and battery and not of an action , for false imprisonment. In both actions there must be a wrongful act done intentionally without just cause or excuse, and such an act so done is malicious in the statutory sense.

The judgment is affirmed.

Affirmed.


text:
    Mark F. Madden and Michael S. Madden, copartners as Madden Brothers, Appellees, v. Alexander D. Ferguson and Sarah J. Ferguson, Executors, Appellants. Mark F. Madden and Michael S. Madden, copartners as Madden Brothers, Appellants, v. Alexander B. Ferguson and Sarah J. Ferguson, Executors, Appellees.
    Gen. No. 17,911.
    Gen. No. 17,647.
    1. Municipal Court of Chicago, § 20

      —when appeal will be dismissed. An appeal from a judgment is properly dismissed whei. not prayed for within twenty days from entry, as required by section 22 of the Municipal Court Act, J. & A. f 3334, and where no petition for vacating the judgment is filed, as permitted by section 21 of such act (fl 3333).
    2. Judgment, § 271*—what is object of writ of error coram nobis. The writ of error coram nobis is not intended to authorize any court to review and revise its opinion, but only to vacate some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which without fault or negligence of the party, was not presented to the court.
    3. Brokers, § 92*—when a finding as to a broker’s compensation will not be disturbed. Held that a finding as to the existence of a contract by which a defendant agreed to pay plaintiff brokers a certain commission on stock sold, and that such brokers had no claim in excess of the amount of such commissions, would not be disturbed, the evidence being conflicting.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    McArdle & McArdle, for appellants, Madden Brothers.
    Edgar L. Masters, for appellees, Alexander D. Ferguson et al.

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

   Mr. Presiding Justice Baker

delivered the opinion of the. court.

In 1910, Dr. Alexander H. Ferguson was the owner of eight hundred of the one thousand shares of the capital stock of the Chicago Hospital, a corporation. This Hospital property was incumbered by a mortgage for $35,000. Madden Brothers, as brokers for Dr. Ferguson, sold his stock for $32,000 and claimed that their agreement with Dr. Ferguson was that he should pay them a commission of five per cent, on the amount the stock was sold for, and also on the $35,000 mortgage indebtedness of the Hospital. Dr. Ferguson paid them $500 on account and for the remainder of their claim, $2,864, they brought suit in the Municipal Court December 13, 1910.

In the Municipal Court, Dr. Ferguson contended that the agreement was that Madden Brothers should be paid only a commission of five per cent, on the amount the stock was sold for. In his affidavit of defense he stated that he employed plaintiffs as brokers to sell for him eight hundred shares of stock, agreeing to pay them a five per cent, commission on the amount realized on the sale of the stock; that plaintiffs sold the stock for $32,000 and defendant thereby became liable to pay them $1,600 as commissions; that he paid them $500 on account and owed them “$1,100 balance on the commission and $14.00 for the abstract, making $1,114.00 in all, and nothing beyond this.” February 3, 1911, the court, under the provisions of section 55 of the Practice Act of 1907 (J. & A. ft 8592), entered judgment for the plaintiffs for $1,114, and reserved for future adjudication the remainder of plaintiffs’ demand. The defendant moved to set aside the judgment of February 3 for $1,114, and his motion was denied April 6. The issues on the claim of the plaintiffs in excess of the judgment for $1,114 entered on the affidavit of defense were submitted to the court, and April 6 the court found the issues as to said claim for the defendant and entered judgment for the defendant accordingly. From this judgment plaintiffs took the appeal docketed as No. 17,647. The defendant prayed and was allowed an appeal from the order denying his motion. April 14 defendant’s motion for a new trial was entered and overruled nunc pro tunc as of April 6. April 21 an order was entered amending the order allowing defendant an appeal so as to read: “Appeal by defendant from order denying motion to set aside judgment of February 3, 1911, for $1,114 and from said judgment of February 3, 1911, for $1,114, allowed on filing bond in sum of $1,500,” etc. April 22 defendant filed his bond for an appeal from the order of April 6 and also from the judgment of February 3, and his appeal was docketed as No. 17,911.

In this court, on motion of appellees, the appeal from the judgment of February 3,1911, was dismissed and the motion to dismiss the appeal from the order denying the motion to vacate the judgment denied.

Pending the appeal Dr. Ferguson has died and his executors have been substituted as appellants and appellees respectively.

The appeal from the judgment of February 3 was properly dismissed because it was not prayed for within twenty days from the entering of the judgment, as required by section 22 of the Municipal Court Act (J. & A. U 3334), and no petition for vacating the judgment was filed, as permitted by section 21 of said Act. (U 3333.)

The affidavit of defense is equivalent to an express acknowledgment of the action for $1,114. The case was not a proper one for a writ of error coram nobis. That writ is not intended to authorize any court to review and revise its opinions, but only to vacate some adjudication made while some fact existed which, if before the court, would have prevented the rendition of the judgment, and which, without any fault or negligence of the party, was not presented to the court. 1 Freeman on Judgments, sec. 94.

The motion to set aside the judgment was properly-denied.

The order denying the motion of defendant to vacate the judgment is affirmed.

Order affirmed.

The question presented by the appeal of the plaintiffs from the judgment for the defendant on the issues as to the claim of the plaintiffs in excess of the judgment for $1,114 recovered by plaintiffs on the admission in the affidavit of defense, is one of fact on which the evidence is conflicting. We cannot on the evidence say that the court might not properly find that the contract between the plaintiffs and Dr. Ferguson was that Dr. Ferguson should pay plaintiffs a commission of five per cent, on the amount they sold his stock for, and if that was the contract the plaintiffs had no claim to any sum in excess of the amount of the judgment for $1,114 entered on the admissions of the defendant in his affidavit of defense.

The judgment for the defendant on the issues as to the claim of plaintiffs in excess of the judgment for $1,114 is affirmed.

Judgment affirmed.


text:
    George A. Follansbee, Trustee, Appellee, v. John C. Outhet, Jr. et al. On Appeal of John C. Outhet, Jr. by L. L. Barth, Guardian, Appellant.
    Gen. No. 17,940.
    1. Trusts, § 211

      —what may he considered in determining a trustee’s compensation. While a trustee of an estate is not entitled to an allowance for strictly legal services, he is entitled to compensation for his labor, care and responsibility, and in determining wbat is just compensation the court may take into consideration the fact that he is an able and experienced lawyer.
    2. Tbusts, § 211

      —how a trustee’s compensation is determined. The reasonable compensation of a trustee depends largely on the circumstances of each case, and in determining the amount the responsibility incurred, the amount of the estate and the time and labor devoted to the discharge of his duties may be considered.
    3. Tbusts, § 218*—what amount of compensation is proper. Held that the discretion of the court in fixing a trustee’s compensation at $17,500, where an estate worth about $600,000 was involved, and where the services covered a period of about two years and a half, would not be disturbed.
    Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoee, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Herrick, Allen & Martin and Frank E. Harkness, for appellant.
    Follansbee, McConnell & Follansbee and Fred Barth, for appellee.

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

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

Beuble M. Outhet died testate September 18, 1907. His residuary estate amounted to upwards of $650,000 and consisted in part of a lot and building at the corner of Madison and Franklin streets, known as the Commercial Building, valued at $435,000, and of a building on Franklin street valued at $100,000. By his will the testator gave to certain persons legacies amounting to $31,000 and gave the residue of his property to appellee Follansbee to hold on certain trusts until testator’s grandson, John C. Outhet, Jr., if he survived his father, John C. Outhet, reached the age of forty years, when five-tenths of the trust estate was to be conveyed and transferred to him and the remainder converted into money and distributed, in certain specified proportions, among the appellees, who, with said John C. Outhet, Jr., were made defendants to the bill filed by the trustee. The will provided that in case of the death of G-eorge A. Follansbee, three persons therein named should execute the trust, “and they shall thereupon be invested with the same title and with as full power and authority as my said trustee, George A. Follansbee, is hereby vested with; and in case of any of their deaths before the expiration of this trust, I hereby direct that any court of competent jurisdiction of this county may appoint a new trustee in the place of such deceased trustee aforesaid.

14. I hereby direct that there shall be paid to my said trustee, or his successors in trust, a reasonable compensation for his or their services in connection with the duties to be performed hereunder, the amount thereof to be fixed from time to time by any court having jurisdiction of such matters.” The purpose of the bill was to settle the trustee’s accoimts and have his compensation fixed from the death of Beuble M. Outhet to April 17, 1910. The decree ordered: “That $17,-500 should be allowed the trustee in full payment of all the services to the trust estate, including all expenses for office rent, clerical and other assistance, stationery, postage and expenditures that he has not charged up to the estate, and which do not appear upon his accounts filed in court, for the period from September 18, 1907, to April 17,1910.”

The court by the decree found that the trustee had taken from the trust estate $300 per month, which he estimated would cover the cash outlays which he was .obliged to make on account of the estate; ordered that said sums, amounting to $9,300, be deducted from said sum of $17,500; found that the amount still due the trustee for services was $8,200, and decreed that the trustee pay to himself said sum of $8,200 for his services to said trust estate from September, 1897, to April 17, 1910. From the decree John O. Outhet, Jr., a minor, appealed, and contends that the allowance to the trustee is excessive. The trustee has assigned cross-errors and contends that the evidence shows that he was entitled to $22,500 as compensation for his services; that the court erred in allowing him only $17,500.

The question as to the compensation which should be allowed the trustee for his services in the care and management of the trust estate is not free from difficulty. The trustee had, under the will, full power to sell or lease the property. The building of the North Western railway station and of the LaSalle hotel on Madison street within a few blocks of the Commercial Building tended to increase the value of that building, but it could not be foreseen with certainty whether the property would increase in value, and it required •the exercise of a wise judgment by the trustee to decide whether it was for the interest of the estate to sell the building or lease it for a long term of years, or to grant only. short term leases and so secure to the estate the benefit of the increase in value of the property, in case there was an increase.

The trustee is a lawyer of ability and experience, and it is conceded that he acted wisely in deciding not to sell the Commercial building or lease it for a long term of years. He personally acted for the trust estate in some litigated matters, rendering strictly legal services, and no doubt because he was an able and experienced lawyer, it was not necessary for him to retain counsel or subject the estate to the hazard of ill advised proceedings in matters where it would have been proper and necessary for a trustee who was not a lawyer to employ counsel. For strictly legal services we think the trustee is not entitled to an allowance. He was entitled to compensation for his labor, care and responsibility, and we think that in determining what was just compensation the court might take into consideration the fact that he was an able and experienced lawyer. The compensation of a trustee is not determined by any established practice or rule, but in determining such compensation the responsibility incurred, the amount of the estate, the time and labor properly devoted by the trustee to the discharge of his duties are to be considered. What is reasonable compensation depends largely on the circumstances of each case.

We do not regard it as important or controlling that the master found that the testimony of the witnesses tended to show that the trustee was entitled to $22,500 as compensation for all the services rendered. The question for the master and for the chancellor was, what was the compensation the trustee was entitled to for the services for which he was entitled to compensation from the trust estate? The court and master both found that $17,500 was full compensation for such services. We think that the discretion of the court in so fixing the compensation of the trustee should not be be disturbed, and the decree is affirmed.

Affirmed.


text:
    John S. Woodruff, Appellant, v. Mary Jordan et al., Appellees.
    Gen. No. 17,957.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Wuxiam Fenimore Cooper, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded with directions.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Bill in equity by John S. Woodruff to foreclose a trust deed in the nature of a mortgage made by Mary Jordan. From a decree dismissing the bill because of usury, complainant appeals.

      Abstract of the Decision.
    1. Ustjby, § 1

      —what constitutes. On a bill to foreclose a mortgage where the mortgagor contended that the notes secured were given for usury, held that the evidence did not show that the mortgagee had any knowledge of the mortgagor’s previous transactions with the firm of loan brokers who procured the loan, and that the transaction was not usurious.
    2. Usury, § 15*—when loan broker may charge commissions. Evidence held to show that certain persons were not general agents of a lender of money, but were brokers engaged in loaning money, and that they were entitled to receive a commission from the borrower without rendering the transaction usurious.
    David O. Dunbar, for appellant.
    Chauncey M. Millar, for appellees.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Anna Grossmann, Appellee, v. Frank Grossmann, Appellant.
    Gen. No. 17,969.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Cook county; the Hon. William Fenimoee Cooper, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Bill in chancery by Anna Grossmann against Frank Grossmann for separate maintenance. From a decree directing the defendant to pay the complainant five dollars per week for her support, defendant appeals.

      Abstract of the Decision.
    1. Husband and wine, § 2’67

      —what is necessary to support a decree on appeal. To sustain a decree for separate maintenance, on appeal, the party in whose favor such decree is rendered must in some way preserve the evidence or the decree must find the specific facts proved on the hearing.
    2. Appeal and ebrob, § 1269*—what evidence will be presumed to have been heard. There is no presumption on appeal that evidence not appearing in the record was heard in support of a decree.
    3. Appeal and ebrob, § 855*—when certificate of evidence is .necessary. A decree for separate maintenance, finding that “the allegations of the bill of complaint are true as therein stated,” states only a conclusion and is not sufficient to supply the place of a certificate of evidence.
    Matthew J. Huss and Robert R. Mix, for appellant.
    No appearance for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.


text:
    Esther Landau, Administratrix, Appellee, v. Chicago, Burlington & Quincy Railroad Company, Appellant.
    Gen. No. 17,983.
    Railroads, § 584*—what evidence shows contributory negligence. Evidence held not to show that a person killed by a railroad train exercised reasonable care for his own safety. •
    Appeal from the Circuit Court of Cook county; the Hon. H. Sterling Pomebot, Judge, presiding. Heard in this court at the October term, 1911.
    Reversed and remanded.
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.

      J. A. Connell and Chester M. Dawes, for appellant.
    Delos P. Phelps and Kaplan & Kaplan, for appellee ; Elijah N. Zoline, of counsel.
   Mr. Presiding Justice Baker

delivered the opinion of the conrt.

This is an appeal by the defendant from a judgment for four thousand dollars recovered by the administratrix of Kalman Landau in an action for wrongfully causing his death. The decedent was killed by a train of the defendant at Monmouth, Ill. There were at Monmouth two east and west tracks with a station and platform north' of the north track and a platform south of the south track. An eastbound passenger train three or four hours late came in on the south, the east bound track, and stopped at the usual place with the engine and part of the car next to it east of the platform. The agent, who was also the telegraph operator, was notified by telegraph of the approach of this train and four or five minutes before its arrival notified the persons then at the station of the approach of the train and directed them to cross the tracks to the south side. After the notice of the approach of the train was given the baggageman took his truck from the baggage room across the tracks to the south platform. After the train stopped, decedent was found lying on the south platform so injured that he died in a few hours and was unconscious from the time of his injury until his death. The accident occurred in the midst of a driving snow storm from the northwest. The decedent was last noticed in the baggage room north of the tracks. No witness saw him cross the tracks, but it is clear that he had ample time to safely cross the tracks after the notice of the coming train was given and before its arrival, for the baggage man took his truck across after the notice was given and stood on the south platform a minute or two before the train arrived.

We think the evidence fails to show that the decedent exercised reasonable care for his own safety and that therefore the court erred in denying defendant’s motion for a new trial. This conclusion renders it unnecessary to consider the question whether from the evidence the jury might properly find that the defendant was guilty of negligence, and on that question we do not express any .opinion.

For the error indicated the judgment is reversed and the cause remanded.

Reversed and remanded.


text:
    Frank Gibis, Appellee, v. The Clinic Publishing Company, Appellant.
    Gen. No. 18,001.
    1. Master and servant, § 414

      —when servant obeying orders may rely on care of master. A servant acting under a specific order of his superior has the right to assume that his superior will not be negligent in making unsafe the act he is ordered to perform.
    2. Master and servant, § 244*—when master liable for the negligent orders of foreman. A pressman, whose duty is to direct the operation of printing presses, represents the master in giving orders to a helper to go beneath a press, and the master is liable where injury results to the helper for failure of the pressman to order that press should not be started while the helper is obeying the order.
    3. Master and servant, § 102*—care required of master. It is the duty of master to do no negligent act that would tend to make it dangerous for servant to obey orders.
    Appeal from the Superior Court of Cook county; the Hon. Theodore Brentano, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.

      Statement by the Court. This is an appeal by the defendant from a judgment for $3,145 recovered by the plaintiff in an action on the case for personal injuries alleged to have been sustained by him through the negligence of the defendant. In the basement of defendant’s printing office were six large electric printing presses. Paul Kuehn was pressman in charge of presses three and four. A man called Jack was his helper on press three and plaintiff his helper on press four. In the operation of the presses the pressmen never worked together on the same press. Kuehn’s duties were to make the presses ready, take care of them during their operation and direct the men assisting him in any way he thought fit and necessary. Plaintiff worked nights beginning at 6:30 P. M. The night he was injured, Kuehn was engaged in making ready press four up to some time between eleven and twelve and was about ready to start when he decided to oil the tympan. Plaintiff could not find the can containing the oil used for that purpose and Kuehn ordered him to go under press three to look for it, say-' ing that he thought he saw it there. It often happened that a sheet of paper went wrong or something broke and in that case Jack would stop his press. At the time Kuehn gave plaintiff the order to go under press three that press was not running. Plaintiff asked Kuehn to see that no one started the press while he went under it to look for the oil can and Kuehn replied that he would see that no one started the press. Kuehn failed to give Jack any order not to start the press or to notify him that plaintiff had gone under the press, and while plaintiff was under it, in obedience to Kuehn’s orders, Jack started the press and thereby plaintiff sustained the injuries for which he sued.
    Julian C. Ryer, for appellant.
    Gallagher & Messner, for appellee.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

We think that in giving the order to plaintiff to go under press three Kuehn was performing the master’s duty and not merely the duty of a fellow-servant. He gave the order which it was the duty of plaintiff to obey and he could only give orders as the representative of the master. He did not join plaintiff as a fellow-servant in searching ■ for the oil can but he gave the specific order under which plaintiff acted. He was in the position of one exercising authority.

It was the duty of the master to do no negligent act that would tend to make it dangerous for the plaintiff to obey his order. In this case Kuehn was doing what a master usually and. properly does when present in person for he was commanding and directing the execution of what he commanded. By his own act in failing to direct Jack not to start the press under which he had ordered plaintiff to go, or to warn him that plaintiff was under the press, Kuehn made it unsafe to do what he had ordered should be done. In Chicago & A. R. Co. v. May, 108 Ill. 288, it was said, page 299: “When the negligent act complained of arises out of and is the direct result of the exercise of the authority conferred on a servant by the master over his co-laborers, the master will be liable. In such case he is not the fellow-servant of those under his charge, with respect to the exercise of such power, for no one but himself, in the case supposed, is clothed with authority to command the others. ’ ’’

We think that from the evidence the jury might properly find that the acts and conduct of Kuehn in failing to direct Jack not to start press three or to notify bim. that plaintiff had gone under that press, constituted and was negligence and that such negligence was the negligence of the master.

Plaintiff acting under a specific order had the right to assume that his superior who gave the order would not, by his own negligence, make the act he was ordered to perform unsafe and therefore did not assume the risk, nor was he guilty of contributory negligence.

We think the declaration after verdict must be held sufficient.

We find no errors in the rulings of the court on questions of evidence or instructions, and the judgment is affirmed.

'Affirmed.


text:
    Bert E. Manville, Appellee, v. The King-Richardson Company, Appellant. Robert E. Trosper, Jr., Appellee, v. The King-Richardson Company, Appellant. Charles E. Ely, Appellee, v. The King-Richardson Company, Appellant.
    Gen. No. 18,029.
    (Not to be reported in full.)
    Gen, No. 18,030.
    (Not to be reported in full.)
    Gen. No. 18,031.
    Not tobe reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in this court at the October term, 1911.
    Decrees modified and .
    Opinion filed October 13, 1913.
    Rehearing denied October 27, 1913.
    Statement of the Case.
    Bills in equity by Bert mville, Robert E. Trosper, Jr. and Charles E. E linst The King-Richardson Company. From dec n favor of complainants, defendant appeals. Co lated and heard in this court as one appeal.
    These cases present th me questions. Bach appellee filed his bill in equit . ainst The King-Richardson Company, a decree w- titered in his favor and from such decrees defendant appealed. The defendant company was engaged in selling hooks by subscription. It employed each of the complainants as a department manager, the territory in which it sold books was divided between them and to each was given the exclusive right to sell for the company in the territory assigned to him. Each of the complainants had a written contract with defendant, by the terms of which his employment began January 1,1908, and ended December 31, 1910. The complainants employed field managers who employed canvassers to sell the books. The men employed by the department managers were required to give security to cover money advanced and merchandise shipped to them. The entire expense of the business was borne by the three department managers in the proportion that the total net sales of each for the year bore to the total sales of all. The defendant was paid by Trosper and Manville thirty-nine per cent, and by Ely forty-two per cent, of the retail price of the books sold. Each of the complainants received as an advance one hundred and fifty dollars per month. Defendant agreed to furnish to each department manager by October 25th of each year a statement showing accounts to October 1st and thereafter by the 25th of each month statements showing accounts up to the 1st of the month until all the business of the fiscal year was closed. The contract provided that in stating the account for the year each manager should be charged with his salary, all advances to him for personal expenses and all salaries, allowances, etc., paid to employes in the sales department of his department, with the salaries of stenographers and other office assistants engaged in his department, with all-supplies, postage, etc., used in the conduct of the business of his department and with that proportion of the total expense of the Chicago office, including rent and the auditing and shipping department as his total net sales for the year bore to the total net sales of all the departments of the Chicago office. The contract also provided that a department manager should be entitled to any excess of his receipts and credits over the charges against him and that the amount of such excess should be immediately due and payable to him. The complainants had been employed as department managers in 1907 under contracts similar in their provisions to the contracts of 1908, 1909 and 1910. They were discharged by defendant July 16, 1910, and filed the bills in these cases July 29, 1910, praying for an accounting by defendant as to the business done in 1907,1908 and 1909. The decree in the Ely case gives complainant a decree for $1,064.33 for moneys collected by defendant belonging to complainant, decrees that defendant deliver to him thirteen promissory notes amounting to $469.64 and assign to him over two hundred accounts amounting to more than $10,000; that in the Manville case' gives complainant a decree for $761.35, orders one note to be delivered to him and nearly two hundred accounts to be assigned to him; and that in the Trosper case gives complainant a decree for $1,276.10, orders thirty-six notes to be delivered and two hundred and fifty accounts to be assigned to him. The complainants had prior' to their discharge organized a corporation called the W. E. Richardson Company to engage in the same business as defendant company was engaged in.
    Abstract of the Decision.
    1. Account, § 19

      —when may he had in equity. A bill in equity to determine the amount due department managers under a contract with a subscription book company for the sale of books in exclusive territory may be maintained where the settlement involves examination of an intricate account as to charges, expenses, salaries of assistants, supplies, etc.

      Boyle, Mott & Haight, for appellants.
    Alden, Latham & Young, for appellees.

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

   Mr. Presiding Justice Baker

delivered the opinion of the court.

2. Appeal and ebrob, § 1570*—harmless error. Where a decree on accounting by sales managers against a subscription book company is erroneous in directing the turning of certain notes and accounts for books sold over to complainants, it will not for that reason be reversed where four years have elapsed since the period for which the defendant was required to account, during which, by virtue of appeals, it has retained possession.

3. Equity, § 400*—what costs may he allowed on reference. Where, on a bill for accounting, a motion for an interlocutory order that certain notes and accounts be turned over to complainants was referred to a master to take proofs and afterwards a general order of reference to the same master was made and the parties stipulated that the proofs previously taken should stand as proof under the general order, the costs of taking such proofs are properly included in the master’s costs upon a judgment .against defendants for costs.

4. Account, § 49*—what decree as to disposition of notes proper. Where, upon a bill for accounting by sales managers against a subscription book company, the court directs that certain notes and accounts for goods sold be turned over to complainants, the decree is properly modified by requiring the notes to he indorsed “without recourse.”


author: Mr. Justice Brown

text:
    Henry Smith, Defendant in Error, v. Henry H. Roberts, Plaintiff in Error.
    Gen. No. 17,423.
    (Not to he reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Arthur W. Deselm, Judge, presiding. Heard in this court at the October term, 1911.
    Affirmed.
    Opinion filed October 13, 1913.
    Statement of the Case.
    Action by Henry Smith against Henry H. Roberts to recover on a promissory note. From a judgment for plaintiff for $512.33 and costs, defendant brings error.

      Abstract of the Decision.
    1. Bills and notes, § 56

      —what constitutes failure of consideration. The consideration for a note given by one partner for his copartner’s interest in the partnership does not fail because the payee did not turn over the evidence of certain contracts as assets.
    2. Bills and notes, § 406*—proof of right to set-off. In an action on a promissory note given by one partner for the interest of his copartner in order for defendant to avail of a set-off on account of plaintiff’s failure to turn over certain written contracts as assets in accordance with the agreement for dissolution, he must prove the existence and nondelivery of such contracts, the undertaking to deliver same, the default in that undertaking and the resultant damages.
    James J. Leahy, for plaintiffs in error; Albert O. Olson, of counsel.
    I. M. Jordon and Thomas Bentham, for defendant in error.

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

   Mr. Justice Brown

delivered the opinion of the ' court.