text:
    Hiram T. Gilbert, Appellee, v. William Bross Lloyd et al., Appellants.
    Gen. No. 16,493.
    1. Verdicts—what not considered in determining question as to whether it is against the weight of the evidence. In determining whether the verdict rendered was against the manifest weight of the evidence the appellate court will not consider at whose instance a jury trial was had.

      2. Verdicts—power of appellate court to set aside, rendered for attorney’s fees. The appellate court is as free to set aside an excessive verdict in favor of a lawyer against his client as it is to set aside any other verdict which is contrary to the manifest weight of the competent evidence. Indeed, its power, if anything, should be the more readily exercised, inasmuch as the evidence is largely of opinion character and the element of seeing the witnesses and observing their demeanor is not so important.
    3. Verdicts—when set aside as against the evidence. When the verdict of a jury is contrary to the weight of the evidence, it is the duty of the appellate court to so declare, and to set aside the judgment based upon such finding.
    4. Attorney and client—how value of services to he determined. While opinion evidence is proper and should be considered the appellate court is qualified to form and is entitled to exercise an independent judgment.
    5. Attorney and client—how value of services to he determined. In determining the compensation which should be awarded for legal services, the question is as to the usual, customary and reasonable charge for like services, and such rule is to be followed notwithstanding there exists wide differences of opinion between the lawyers called as experts.
    6. Evidence—when competency of expert not subject to review. If the qualification of an expert to express an opinion as to the value of legal services Is not preserved by objection, the question of such competency is not «pen for review, but the infirmity of the testimony given may be considered by the court.
    Appeal from the Municipal Court of Chicago) the Hon. Freeman K. Blake, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1912.
    Reversed and remanded.
    Opinion filed April 19, 1912.
    Rehearing denied May 9, 1912.
    Scott, Bancroft & Stevens, for appellants.
    Edward W. Everett and Samuel S. Page, for appellee.
   Mr. Justice F. A. Smith

delivered the opinion of the court.

This is an appeal by William Bross Lloyd, Henry Demarest Lloyd and Demarest Lloyd from a judgment for $40,000, in favor of Hiram T. Gilbert for services rendered as an attorney.

The case was tried by the plaintiff upon the theory that there was no usual and customary charge for services of the character rendered and that the issue should be what was “fair and reasonable compensation. ’ ’

It is urged in seeking a reversal of the judgment that the services rendered were not exceptional- in character; that the fee claimed was extortionate and grossly disproportioned to the value of the services rendered; that the judgment is oppressive and palpably against the weight of evidence ; and that the $10,000 paid appellee before the suit was instituted was not only adequate but generous compensation for the services rendered by appellee.

In support of this contention it is urged:

First: That the fee is not justified by any consideration of the amount involved, for the clients, appellants, were not financially interested in any possible result of the proceedings;

Second: That it is not justified by the time devoted by the plaintiff below to the service of his clients, the service extending over a period of less than four months during which other matters of importance engaged a considerable portion of appellee’s attention;

Third: That it is not justified by the difficulty or complexity of the legal questions involved for no such questions were involved;

Fourth: That it is not justified by the proceedings instituted all of which were of an ordinary character and none of which were brought to a contested hearing, and in fact, plaintiff below rendered practically no service in court, and

Fifth: That it is not justified by the results achieved, for the plaintiff according to his own evidence, accomplished nothing which he set out to do; that on the contrary the result was a surrender to alleged conspirators whose purposes he was employed to defeat.

At the outset it is important to bear in mi'nd a correct impression of the extent of appellee’s services, and not confound them with the litigation spoken of in the record called the William Bross will suit. In that suit appellee took no substantial part and contributed nothing to the result reached. The issues involved therein were decided in favor of appellants and John B. Lloyd before appellee was' retained. Nor did he have anything to do with the mailing of the several trust agreements between the Lloyd heir-s which are set out in the record. The interlocutory decree determining the rights of the parties under the will of William Bross was entered July 18, 1908. Appellee was employed either in November or December following. That employment was for a different purpose and entirely supplementary to the will suit. The clear understanding and purpose for which appellee was employed by appellants, the brothers of John Bross Lloyd, was to take steps for the preservation of the property and person of John Bross Lloyd, a younger brother qf appellants, who, when he was a little over twenty years of age, became completely under the influence of a married woman twice his age, named McGraw. For some time he lived at her house near Boston. During the summer or early fall of 1907, appellants became uneasy as to his state of mind, and also as to the influence of the McGraw woman over him. In December, 1907, they learned that he had employed as his attorney one William D. Sprout, and that the latter was counsel for a company by which Mrs. McGraw’s husband was employed. It was believed by them that the influence of Sprout would be an extension of the influence of Mrs. McGraw, and it was feared that there might be a conspiracy to get John Bross Lloyd’s property away from him.

Acting under that fear appellants employed Powers & Hall, attorneys of Boston, early in January, 1908. These attorneys employed detectives who reported to them, and they considered, analyzed and prepared the evidence thus obtained for use in court. It was proposed to have a conservator appointed for John Bross Lloyd in order to tie up his estate as determined by the will suit above referred to. Some months after their employment the Boston attorneys advised appellants that in their opinion the necessary proceedings should be taken in Chicago for the reason that the Massachusetts courts would not have jurisdiction.

Miss Miller, who was counsel in the will suit, was consulted in regard to the situation o.f John B. Lloyd. When the Boston attorneys advised that proceedings be brought in Co.ok county, appellants did not feel that they could ask Mr. Rosenthal to take steps against their brother who had been represented by him in the will suit.. During the pendency of the William Bross will suit early in the summer of 1908 Miss Miller had brought the will to appellee with the request that he read it over, and she talked over the situation with appellee with reference to John Bross Lloyd. When the necessity for additional counsel arosfe, she induced William B. Lloyd to consider the employment of appellee in the matters relating to John Bross Lloyd. According to appellee’s testimony Miss Miller wrote him November 9, 1908, he being then at West Baden, stating that she was authorized to employ him as counsel in a partition suit of Lloyd vs. Lloyd, to be started as soon as the litigation concerning the will should be terminated. Appellee testified that the appellant William Bross Lloyd was a resident of Chicago, and acted for himself and other appellants who were residents of Boston. William Bross Lloyd employed appellee between the 18th and 20th of December, 1908, in relation to the matters of John Bross Lloyd and his estate. The period, therefore, during which appellee performed services under the employment of appellants, began about the 18th of December, 1908, and terminated, according to the evidence, on the 31st of March, 1909. All matters in controversy, however, in which appellee participated were settled on the 15th day of February, 1909.

It appears from the record that during this period appellee was engaged in other important matters. He had a bill pending in the Illinois Legislature to change the act in relation to the practice in the courts of Illinois, which was introduced in the early part of January, 1909. He testified that between the time the Legislature opened and the 30th day of March about twenty days of his time was taken up in attendance at Springfield in the matter. According to Ms testimoney he was also engaged in the case of the State of Illinois against the Illinois Central ¡Railroad company, • involving thirty or forty millions of dollars. He stated that the Illinois Central railroad case occupied about ten days of his time as near as he could recollect. He was also engaged during tMs same period for two or three days in the Slaughter case, as it is called, and also in the business that a lawyer has in Ms office every day. The actual time, therefore, in wMch appellee could have been performing any service for appellants, including Sundays and holidays, was about sixty-seven days, and the total time between Ms employment and" the termination of his services involved about one hundred and seven days.

In his testimony appellee says that he is unable to say how many actual days’ work he put in on these matters because he never kept books and never worked for people who asked him to keep books.

Prior to the retaining of appellee, Powers & Hall, the Boston attorneys, and Miss Miller proposed filing a bill for partition and procuring the appointment of a conservator in Cook County for John Bross Lloyd. Appellee testifies that he was retained for the purpose of this partition smt, which was to be one of the proceedings to tie up John Bross Lloyd’s property. To that end he made Mmself familiar with the proceedings in the will suit and the will of William Bross Lloyd. This bill for partition was prepared by appellee and Miss Miller in accordance with the suggestions of Powers & Hall, but the bill was never filed, appellee advising William Bross Lloyd that it would not answer the purpose, nor- would proceedings for a conservator. The bill in the William Bross will suit had averred that John Bross Lloyd was a resident of Massachusetts, and appellee was of the opinion that a conservator could not be appointed for a non-resident. It was then suggested by appellee that a supplemental bill be filed in the William Bross will suit setting forth that John was incompetent to manage his own affairs, and asking the court on final distribution to put his property in the hands of a receiver or trustee. Appellant, William Bross Lloyd-, agreed that this should be done, but wished the opinions of his brothers. For that purpose Miss Miller went to Boston and submitted the suggestion to Powers & Hall and Henry D. and Demarest Lloyd, and it was approved. The object of this supplemental bill was to get a distribution of the estate without permitting John Bross Lloyd to receive his share. Appellee prepared the bill and it was filed January 4, 1909. Henry D. and Demarest Lloyd were complainants and John B. Lloyd and William Bross Lloyd defendants. Appellee appeared as solicitor for complainants and Miss Miller for William Bross Lloyd. That bill after setting out the proceedings in the original suit, alleged that John was a distracted person, and that his interest in the William Bross property, worth upwards of seven hundred fifty thousand dollars, would be dissipated if given to him; that his legal residence was in Cook county, and that he was sojourning in Malden, Massachusetts, and was under the control of designing persons believed to be conspiring to defraud him of his property, and that William Bross Lloyd, a resident of Cook county, had refused to join in the supplemental bill and in proceedings to procure a conservator for John. The bill prayed that a receiver be appointed to receive John’s share of the trust estate, and that the court by decree protect the latter’s rights.

Upon the filing of the bill and without notice or contest, Mr. Galt, who was trustee under the will of William Bross, was appointed temporary receiver. The appointment effected no change in the situation and afforded no protection to John’s estate for Galt continued to hold as trustee. Appellee Gilbert testified that a receiver was not necessary but he wanted one for the moral effect on John Bross Lloyd and his lawyer.

Except for the filing of an answer by John Bross Lloyd no further proceedings were had under the supplemental bill, which was dismissed with leave to withdraw it from the files March 29, 1909.

On the same day that the supplemental bill was filed, and in pursuance of a plan agreed upon between appellee and Miss Miller, the latter filed a petition for a conservator of John Bross Lloyd in the Probate Court of Cook county, although appellee had already advised appellants that a proceeding for a conservator would not accomplish the purpose desired by them. Appellee testified that he did not think he could prevail in the conservatorship proceedings; that he had no great faith in it, but thought that it might be beneficial in tying-up the property. It would have a moral effect, at any rate, upon the other side. No service was obtained under the petition for a conservator, and there was of course no hearing upon it, and it was ultimately dismissed.

Appellee and Miss Miller then prepared and filed a bill for partition of the property inherited by the four Lloyd brothers from their mother, none of which was involved in the William Bross will litigation. This bill was but a step taken by appellee in the effort to tie up John’s property and prevent it from coming into his possession and control. The bill was filed January 11,1909, in the Circuit Court of Cook County. Henry D. and Demarest Lloyd were complainants and William and John and others were defendants. The bill set forth the contents of the will of the mother, Jessie Bross Lloyd, and set out in full certain agreements which had been entered into by the four brothers in reference to the property devised to them by her, described the property and alleged that John was a distracted person, and prayed for the appointment of a guardian ad litem and a conservator for him, and for partition.

In the preparation of this bill appellee was assisted by Miss Miller. He made no examination of abstracts of title to the various pieces of real estate included in the bill, and had no memorandum brought down showing such title prior to the filing of the bill. No answer was filed to that bill and it was never set down for trial. It was dismissed March 29, 1909, with leave to withdraw it from the files.

The above proceedings were all that were taken relating to the person and property of John Bross Lloyd except a bill which appellee prepared and filed having for its object the setting aside of a conveyance in trust by John Bross Lloyd of all his property to his own lawyer Sprout, and the procuring of service of summons on Sprout. This ivas done within one day after appellee learned that such a conveyance had been made. No step was thereafter taken in that case except procuring of an order of dismissal.

Appellee testified, “We were all suspicious of Sprout. We felt there was a conspiracy on the part of Sprout and the McG-raw woman to get John B’s property. ’ ’

On January 4, 1909, the supplemental bill was filed in the will case with the design to protect John Bross Lloyd and his property from the supposed conspiracy of Sprout and Mrs, McGraw. It had been agreed that the supplemental bill should be suppressed to enable those who were looking after the Boston end of the matter to watch the McG-raw house in order to obtain evidence when, service by copy of the bill should be had. It was not suppressed, and John B. got notice that it had been filed before service was had upon him. By a deed dated January 13, 1909, he conveyed all his property in trust to Sprout and one James B. Flint. According to Sprout’s statement, it was because of the filing of the supplemental bill that he was enabled to persuade John to put his property into Sprout’s hands. By the terms of his instrument John conveyed to Sprout and Flint substantially all the property he owned, including his interest in the William Bross estate, in trust to pay all the grantor’s existing indebtedness which should be acknowledged in writing to the trustees, to hold and manage the property, sell and dispose of the real estate and personal property, except the interest of John B. in the capital stock of the Chicago Tribune company, and re-invest the proceeds in other securities, to pay over to the grantor quarterly or as often as practicable the whole of the net income, and also to pay to him at any time during the continuance of the trust, if in the judgment of the trustees it seemed wise to do so, a sum not exceeding $35,000 out of the principal to enable him to engage in business; and, in case of his death, before the expiration of five years, to convert the real estate into cash, and after deducting the costs and expenses of the trust and the compensation of the trustee to pay the cash and the cash received from the sale of the remaining property to his executors or administrator. The trust was to terminate at the expiration of five years from its date or at the death of the grantor, if such death occurred earlier. The trustees were required to give bonds in the sum of $500,000.

As far as the record discloses the trustees under the above deed were in possession of all John Bross Lloyd’s property at the close of appellee’s services by the consent and upon the advice of appellee, the trustees having successfully insisted that they should receive the share of the William Brogs estate as such trustees, and not as guardians appointed by the Massachusetts court.

On January 19, 1909, Sprout came to Chicago and engaged counsel, and at a conference of the several attorneys in the will suit with Judge Carpenter of the Circuit Court, the fact of the execution of the deed of trust became known to appellee and to Miss Miller. Some discussion occurred with reference to the appointment of a receiver, but such appointment was objected to by Sprout, and the interview resulted in no definite conclusion. On the next morning appellee filed a bill in the Circuit Court of Cook County in the name of John B. Lloyd by Henry D. Lloyd as next friend against Sprout and Flint. It set out the making of the trust conveyance and the terms thereof and alleged that the complainant was a distracted person, incapable of entering into a valid agreement; that Sprout and Flint were residents of Massachusetts, and had no property in Illinois; that Sprout was complainant’s attorney and had obtained the trust agreement by means of that relation and the distraction of complainant’s mind; that the trustees had taken possession of a part of complainant’s property and were about to reduce the remaining portion to their possession, and prayed that the trust agreement be declared void, and an account be taken and the money and property be delivered to a receiver to manage and control the same until complainant should cease to be a distracted person, and that a restraining order be issued. This suit was never put at issue nor tried, and appellee never appeared in court in the suit. He filed the bill and obtained service'on Sprout. The only order ever entered in the suit was one of dismissal with leave to withdraw the bill from the files.

Subsequently on January 22nd, appellee wrote Powers & Hall that he had become satisfied that no understanding would be satisfactory with Sprout unless it was one that gave Sprout control over the John Bross Lloyd property by transfer to himself or to some person whom he might feel able to control; that Sprout insisted the trust agreement was valid under the laws of Massachusetts, and appellee advised Powers & Hall to be on the lookout for proceedings by Sprout to have a conservator appointed in Massachusetts, and if instituted to delay them until every person interested could be heard.

It further appears that Sprout suggested to Powers & Hall that the matter be settled without litigation by having Sprout or Flint or both appointed guardians of John on the ground that the latter was a spendthrift. Mr. Hall, Henry D. and William B. Lloyd, Miss Miller and appellee had a conference in Chicago February 6, 1909, and appellee’s opinion in regard to the proposed arrangement was asked. Appellee advised that inasmuch0 as Sprout and Flint had been subjected to some suspicion they would probably try to make good if they were appointed guardians, and that they would look after the boy’s interests; that' they had given bonds for $500,000 as trustees, and would give additional bonds if appointed guardians; that Sprout would have more control over John Bross Lloyd than anyone else; and if he would act honestly he was the best man to handle it; and if the whole matter could be gotten rid of by having guardians appointed on the ground that John Bross Lloyd was a spendthrift and not insane it would leave no stain upon him, and that it was to everybody’s interest to settle the matter in that way. Mr. Hall being of the same opinion, it was concluded that he should go back to Boston and make some arrangements of that kind, appellee telling him to make such arrangements as he thought best. Accordingly Sprout and Flint were appointed guardians on February 15, 1909, by agreement, in Massachusetts. In that proceeding appellee took no part.

A supplemental bill in the will case was prepared by appellee, and filed March 30, 1909, setting up the conveyances to Sprout and Flint and their appointment as guardians, and praying that the property be turned over to them as trustees. The attorneys for Galt, the trustee, insisted that the personalty should be turned over to Sprout and Flint, as guardians, and the realty to John Bross Lloyd. The attorney for Sprout and Flint told appellee Gilbert that he was going to ask a decree that John’s interest be turned over to his clients as trustees. Appellee advised him not to, but at the request of the attorney for Sprout and Flint agreed to say nothing in the argument, and the property was finally taken over by Sprout and Flint, as trustees, under the terms of the trust agreement.

The foregoing is a substantial statement of all the matters and proceedings with which appellee had to do under his employment, with the exception of his participation in an adjustment of the fees to be paid to Mr. Rosenthal and Miss Miller, respectively, for services rendered in the will case. The record does not disclose that any great amount of time was consumed in adjusting the-fees as between Rosenthal & Hamill on the one part and Miss Miller on the other.

Appellee testified that the questions of law were numerous; that they were: What was the construction of the will! Whether the Probate Court could appoint a conservator for a nonresident: Whether if the statute did not provide for it the Constitution did: The question of practice as to the method of getting John B. Lloyd’s condition before the Court: The right of Henry D. Lloyd to use John B’s name yi commencing suit as next friend.

As a preliminary to the discussion of the questions involved, we here notice some of the contentions on behalf of appellee It is seriously urged in his behalf, in many pages of the brief, that a verdict in favor of a lawyer in a suit brought to recover compensation for professional services is no exception to the rule that a verdict will not be set aside whenever there is a contrariety of evidence, and the facts and circumstances by a fair and reasonable intendment will authorize the verdict; and it is argued that no case is cited by appellants, and none can be found where in an action at law tried by a jury the rule has been laid down that the verdict of the jury, although in accordance with the opinion of the witnesses as to the value of the services rendered, may properly be set aside by the appellate court if the judges of that court-have a different opinion as to the value of the services from that testified to by the witnesses. Counsel have even gone so far as to say that it is a manifest absurdity that when a suit brought by a lawyer for his fees is tried by a jury on the application of the defendant, and the services ar.e proved and the opinions of witnesses as to the value of those services are taken, and the verdict of the jury corresponds with those opinions the appellate court can disregard the verdict and the evidence and arbitrarily substitute their own opinion for those of the jury and the witnesses.

We dissent from the position and argument thus advanced. The suggestion that the trial was by jury on the application of the defendants has no proper place in the argument. The fact as to which party demanded the jury cannot influence our judgment.

In passing upon decrees based on the findings of chancellors the appellate courts have frequently substituted their own opinions for those of the chancellor and the witnesses. The Supreme Court while holding that opinion evidence must be introduced and considered has expressly declared that in such cases the appellate court is well qualified to form an opinion and to exercise an independent judgment. Metheny v. Bohn, 164 Ill. 495; Lee v. Lomax, 219 id. 218. Such independent judgment has been exercised to the extent of fixing the precise fees to be allowed in many cases. McMannomy v. C. D. & V. R. R. Co., 167 Ill. 497; Blake v. Blake, 70 Ill. 618; Hutchinson v. Hutchinson, 305 Ill. App. 349; Lee v. Lomax, supra. Ho reason is perceived why an appellate court should not be as free to set aside an oppressive verdict in favor of a lawyer against his client as it would any other verdict which is contrary to the manifest weight of the competent evidence. Indeed, the most important considerations which would weigh in restraint of that power in other cases are absent in a case like the one at bar. The reason most frequently given for the reluctance of the courts to disturb verdicts or findings upon trials in open court as being contrary to the weight of the evidence is that the jury or the chancellor had, in addition to what the record shows, the opportunity to observe the witnesses on the stand and to determine what weight should be given to their testimony. In a trial of a suit for lawyers’ fees this observation of the witnesses might be important, upon the question of what services were in fact rendered, where there is a controversy upon that question, but it can be of little or no importance to a determination of what would be a usual, customary or reasonable fee for a given service. The nature and extent of the service being known, if in the judgment of the re-. viewing court the fee is grossly out of proportion thereto, and therefore necessarily contrary to the weight of the evidence, the fact that the judges of the appellate court did not see or hear the expert witnesses calls for slight consideration and is of little weight.

Where the finding of the jury is contrary to the weight of the evidence it is the duty of the appellate court to so declare and to set aside the judgment based upon such finding. Ill. Steel Co. v. Kinnare, 93 Ill. App. 83; Love v. McElroy, 118 id. 412; I. C. R. R. Co. v. Cunningham, 102 id. 206; Borg v. C. R. I. & P. Ry. Co., 162 Ill. 348, 355.

In Chicago City Ry. Co. v. Mead, 206 Ill. 174, it was said: “A performance of this duty is absolutely-essential for the preservation of the rights of citizens and property owners in all those classes of cases where the judgments of the appellate courts are final and conclusive upon all questions of fact.” See also Chicago & Erie R. R. Co. v. Meech, 163 Ill. 305.

In many of the cases already cited it is held that in determining whether the fee is grossly disproportionate to the services rendered the court is not bound by the opinions as to the value of the services. In this jurisdiction the verdict óf a jury as to the value of attorney’s services has never been canonized or made more sacred or infallible than the finding of a chancellor. It is still subject to review by the courts. Counsel for appellee attempt to make a distinction between the verdict of a jury awarding solicitor’s fees, and the finding of a chancellor, regarding the right and duty of an appellate court to review the verdict or finding. There is no basis in the law for such a distinction.

Another argument is presented on behalf of appellee, based upon the proposition that there cannot be a usual-, customary and reasonable charge for professional services when there are wide differences of opinion between lawyers as to the price or value of" such services. To this position we cannot assent, for it would amount to a substantial obliteration of the established rule, whenever a lawyer suing for fees can present a diversity of opinion among lawyers as to the value of his services.

It is also contended that appellants are not in a position to complain that some of the plaintiff’s expert witnesses heard only a part of appellee’s testimony, for the reason that no objection on this ground was made when the witness was examined, and by not objecting they conceded the witness was competent to express an opinion. It is true that no proper objections were made upon the trial of the case, but the infirmity of the testimony thus given remains for our consideration. Its weight and value are affected thereby. _ .

_ Passing now to the consideration of the ultimate question of the case, namely, as to. whether the verdict and judgment are contrary to the manifest weight of the evidence, we have no hesitation in saying they are.

However formidable the questions presented as testified to by appellee may have appeared to the jury, composed of persons who have never considered such questions, and perhaps never employed an attorney, those questions are known to lawyers and to courts to be the simple and ordinary questions presented to practicing lawyers every day, and adjudicated upon by the courts continually. It is clear that the legal questions involved were not difficult. The purpose to be accomplished, and for which appellee was retained, was the very ordinary matter of endeavoring to secure the protection of a person’s estate from his unwise, immature .and reckless judgment, and from the supposed conspiracy between the lawyers employed by John Bross Lloyd, in or near Boston, and Mrs. McG-raw. The method of procedure and the principles involved in securing the appointment of a conservator of a spendthrift or of a person of unsound mind are not involved in difficulty and are of common and ordinary occurrence. That there were practical difficulties in accomplishing the object sought to be accomplished, under the circumstances, may be conceded.

When we look at what was accomplished by the various legal proceedings instituted by appellee we are convinced that no service was rendered which produced directly, if at all, substantial results or substantial benefits to the estate of John Bross Lloyd. This must be taken into consideration when considering the magnitude of the verdict and judgment of $40,000 in this case, appellee having been paid $10,000 on account prior to the commencement of this action. It is to be inferred, we think, from the evidence that appellee himself had very little confidence in being able, under the conditions as they existed at the time he was retained, to secure either the appointment of a conservator or of a trustee and the protection by decree of court of the estate of John Bross Lloyd.

Considering the ordinary character of the legal questions presented and the results accomplished we are constrained to hold that the trial court erred in not sustaining the motion for a new trial and setting aside the verdict.

We think the case was submitted to the jury upon a wrong theory, namely, upon the theory that the professional services were so exceptional that it was impossible to prove a usual, customary and reasonable charge in the City of Chicago for the services so rendered.

We see nothing in the case which should take it out of the ordinary class of suits for lawyers’ fees, and we think the witnesses should be compelled to answer the usual questions propounded to lawyers upon such issue. The case is not exceptional in any sense other than that the estate involved was a large one.

In our opinion the witnesses should be confined to giving opinions upon the usual, customary and reasonable charges for like services in the City of Chicago, and should not be allowed to state as they are allowed to state, in this trial what the fair charge for the services should be.

Furthermore, it is clear that the court erred in allowing witnesses to testify a,s to the fair value of appellee’s services who had not heard the whole of the testimony of appellee as to those services; and while no objection was made to such testimony, and we can conceive of no reason why objections were not made and exceptions preserved, still the testimony is presented to us with the infirmity involved in the fact that the witnesses did not know what the services had been when they were called upon to express an opinion as to the fair value thereof. Some of the other witnesses had no knowledge whatever of the services rendered or claimed for in the suit except by reading the statement prepared by appellee or his counsel. This was not proper testimony, and while its admissibility was not objected to, it presents a radical infirmity which cannot be overlooked in reviewing the case.

The verdict and judgment are excessive and the judgment is accordingly reversed and the case is remanded for a new trial.

Reversed and remanded.


source: Caselaw Access Project

author: Mr. Presiding Justice Gridley

license: Public Domain

text:
    Harry Mace, Defendant in Error, v. J. Sherman McChesney, Plaintiff in Error.
    Gen. No. 16,469.
    Principal and agent—when agent personally liable. “If an agent act for a principal and fails to disclose the principal, or disclose that he is acting for a principal, and the person contracted with does not know that the agent is acting for a principal, then the agent becomes liable on the contract and recovery may be had from the agent.”
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    E. H. Morris and W. L. Houston, for plaintiff in error.
    Eldridge & Rose, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

Harry Mace, defendant in error and hereinafter referred to as plaintiff, recovered a judgment in the Municipal Court of Chicago against J. Sherman Mc-Chesney, plaintiff in error and hereinafter referred to as defendant, in the sum of $50, for services rendered in appraising the value of certain buildings destroyed by fire at Geneva, Illinois, in November, '1909. The trial was had before the court without a jury. The buildings were owned by Mrs. Isabelle McChesney, mother of defendant.

Defendant asks this court to reverse the judgment because he says if any one is liable to plaintiff it is his mother and not he.

It is unnecessary here to mention the testimony of the several witnesses. The evidence tends to show that some of the buildings destroyed by the fire were covered by insurance; that others, likewise destroyed, were not so covered; that defendant employed plaintiff to appraise the value of those buildings not covered by insurance; that plaintiff rendered the services; that the sum of $50 is a reasonable charge for such services; that at the time plaintiff commenced his work defendant did not disclose to him that Mrs. McChesney was the owner of said buildings; that plaintiff did not ascertain that fact until he had completed his work, and that during the performance thereof plaintiff supposed he was working for defendant, as the owner of said buildings.

“It is well settled in this state that if an agent acts for a principal and fails to disclose the principal or disclose that he is acting for a principal, and the person contracted with does not know that the agent is acting for a principal, then the agent becomes liable on the contract, and recovery may be had from the agent.” Geiselman v. Roddinghaus, 158 Ill. App. 316, 318; Wheeler v. Reed, 36 Ill. 81, 90; Rickford v. First National Bank, 42 Ill. 238.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    Louis Bour, Defendant in Error, v. Benjamin M. Thomas, Plaintiff in Error.
    Gen. No. 16,571.
    1. Verdicts—when not disturbed as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    2. Attorney and client—upon what lien for fees does not attach. “An attorney has no lien on property placed in his hands for a special purpose under such circumstances that a trust arises which is inconsistent with, or adverse to, the claim of a lien. ’ ’

    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    James B. Hefferman, for plaintiff in error.
    Frank P. Sadler, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This writ of error was sued out to reverse a judgment of the Municipal Court of Chicago for $1000 in favor of Louis Bour, defendant in error, against Benjamin M. Thomas, an attorney at law, plaintiff in error. Bour brought suit against Thomas claiming that the latter had wrongfully converted to his own use $1000 in United States currency, which after demand made he had refused to turn over to Bour. The case was tried by a jury and they found by their verdict that Thomas was guilty of having wilfully converted said property to his own use, and assessed Bour’s damages at the sum of $1000, upon which verdict the court entered judgment.

The facts are, substantially, that on April 30, 1909, Bour was indicted for having obtained money by means of a confidence game, was arrested and taken to the sheriff’s office in the Criminal Court building in Chicago; that after learning that his bond had been fixed at $1000 he there telephoned his wife to draw out $1000 from a bank and send it down by his son, Gustav Bour, for the purpose of depositing it as cash bail; that subsequently he was introduced to Thomas by a deputy sheriff, with the result that Bour employed Thomas to act as his attorney in the defense of the case in which he had just been indicted; that Bour was then taken to the county jail; that about one hour later Thomas came to the jail with the son, the son handed Bour $1000 in currency, and Bour told Thomas to go and see the proper official and tell him that he (Bour) had the money ready to deposit in lieu of a bail bond; that thereupon, according to Bour’s testimony, Thomas said to Bour, “Don’t you put up that money as cash bond because you will never get a cent of it back; * * * I have a whole lot of property, me and my wife. I send for my wife, you have your bonds signed, we bail you out of here, you let me have the thousand dollars to secure the bond, then you are sure you will get it back,” and thereupon Bour said to Thomas, “You give me a receipt and state that I gave you the money as a bond,” and thereupon Thomas “pulled two sheets of paper out of his pocket and drew up a receipt in his own handwriting, and signed it in my presence;” that, according to Thomas’ testimony as to this conversation, it was Bour, and not Thomas, who was afraid of depositing the money in lieu of a bail bond, and that it was Bour’s urgent request that Thomas’ wife sign the hail bond and the money be put in Thomas’ hands as security for said bond; that thereupon Bour gave Thomas the $1000 in currency and Thomas gave Bour said receipt and that later in the day Thomas’ wife signed Bour’s bail bond and he was released from custody. The said receipt is as follows:

“Chicago, April 30th, 1909.
Received of Louis Bour One Thousand Dollars, the same to be used as a cash bond, or if B. M. Thomas desires to sign bond with wife for one thousand dollars for said Louis Bour in a certain confidence game case now pending against the said Louis Bour in Criminal Court of Cook County then the said Louis Bour says that the said B. M. Thomas is to retain the said one thousand dollars in cash to secure him and his wife for so signing his, the said Louis Bour’s bond, said one thousand Dollars to he returned to Louis Bour when the case is disposed of and bond released, and it is understood that B. M. Thomas is to act as attorney for said Louis Bour throughout the trial of his case.
B. M. Thomas, Atty.”

It further appears from the evidence that a few days later a second indictment was returned against Bour, that Bour procured a surety company to sign his bail bond in said second case and that Thomas, acting as his attorney, accompanied Bour and the representative of said surety company to court, where Bour was released on bail in said second case; that shortly thereafter Bour was sued in the Municipal Court by the same party who had been the complaining witness against him before the grand jury, and Thomas was employed to represent him in the defense of that suit; that Bour became dissatisfied with the actions of Thomas in that ease; that subsequently, in the month of July, the case in which Bour was first indicted, and in which Thomas’ wife had signed Bour’s bond, was called for trial, was continued until October on motion of Thomas, and Bour became further dissatisfied with the actions of Thomas as his attorney; that in September Bour decided that he no longer wanted Thomas to act for him, and he thereupon, in company with his brother, Nicholas Bour, called on Thomas and told him that he was going to release the bond which had been signed by Thomas’ wife and have a surety company sign a new bond for him, and that he wanted the $1000 back, and requested Thomas to make out his bill for services rendered, saying that he was ready to pay for the same; that Thomas did not then render him a bill but delayed doing so from time to time and at no time rendered one; that Bour finally, after notice to Thomas, went into court, had the bond of Thomas’ wife cancelled and gave a new bail bond with a surety company as surety thereon; that Bour then employed another attorney to represent him, who, at his request, on October 18, 1909, wrote Thomas advising him of the cancellation of the wife’s bond, of his dismissal as attorney for Bour, and requesting a bill for services theretofore performed by Thomas, but no bill was sent; that subsequently, on November 19, 1909, said other attorney, at Bour’s request, again wrote Thomas, demanding that Thomas turn over to Bour said $1000 at once, and saying that his failure so to do would be construed to mean that Thomas had converted it to his own use; that Thomas acknowledged receipt of this demand but did not turn over the money to Bour, and that subsequently this suit was instituted.

Thomas was a witness in his own behalf on the trial in the court below. He admitted that, at the time the money came into his possession and when he signed and delivered to Bour said receipt, the $1000 was not given to him for the purpose of paying or securing his fees, but solely as bail bond money. His contentions are, as disclosed from his testimony and from the brief of his counsel, (1), that there was a subsequent verbal agreement entered into between Mm and Bour, by wMch it was understood that he could take Ms fees out of said money, and (2) that even in the absence of such a subsequent agreement he has an attorney’s retaining lien on the money for his fees.

On the question as to whether or not there was such a subsequent verbal agreement, the evidence is conflicting. Thomas testified that, on the day Bour was released from custody and after Ms wife had signed the bail bond, Bour and he had a conversation in Thomas’ office, at which Bour told him that he could take his fees out of said $1000. Bour denied that any such conversation as to fees took place, and in this he is corroborated by the testimony of Ms son, Gustav, who was present. Thomas further testified that some time during the month of June, while Bour and he were returning together from the Municipal Court, they had another conversation as to fees, in which he told Bour that he was going to keep the $1000 which was in his hands as his retainer, and that Bour replied, “I do not care what it costs, * * * I do not want to go to the penitentiary.” Bour denied that any such conversation took place in June, or at any time, arid further stated that he never at any time agreed with Thomas that Thomas might take any part of his attorney’s fees out of the $1000. Whether there was such a subsequent agreement between Bour and Thomas was a question of fact for the jury to determine from all the evidence, and by their verdict they seemingly found in favor of Bour on this issue, and their verdict is not manifestly against the weight of the evidence.

In support of the contention that Thomas has an attorney’s retaining lien on said $1000 fo'r Ms fees, counsel for Thomas cites the cases of Sanders v. Seelye, 128 Ill. 631, affirming Sanders v. Seelye, 27 Ill. App. 288. We have examined the facts of this case, as disclosed from the opimons of both the Appellate and Supreme Courts, and are of the opinion that the case is not in point. In the Seelye case the bonds, on which an attorney’s retaining lien was claimed, came into the attorneys ’ hands in the course of their professional employment, to be held by them not as mere custodians. In the case before us, the $1000 which came into Thomas’ hands, was to be used for a special purpose, viz: as a cash bond or as security to Thomas and his wife, or Thomas’ wife, for executing a bail bond as surety for Bour, and, furthermore, the evident intention of the parties was that the money was to be returned to Bour upon the bond being released. As to the $1000, Thomas’ relation to Bour was that of a trustee, or bailee for a special purpose. Under such circumstances, we are of the opinion that Thomas cannot have an attorney’s retaining lien on the money. This view is fully sustained, we think, by the authorities.

“An attorney has no lien on property placed in his hands for a special purpose under such circumstances that a trust arises which is inconsistent with, or adverse to, the claim of a lien.” (4 Cyc. 1016).

In State v. Lucas, 24 Oregon 168, Lucas was indicted, tried and found guilty on the charge of embezzling and converting to his own use the sum of $300, the property of Ninta Parker. It appeared that he was acting as the attorney at law for Frank Lynch, who, together with Ninta Parker, had been charged with the crime of adultery. Lynch alone was arrested, and at the preliminary examination his bail was fixed at $2000, in default of which he was committed to jail. Subsequently, through the efforts of Lucas, the bail was reduced to $300, but Lynch was still unable to secure a bail bond. Lucas then called upon Ninta Parker and suggested that she furnish the money to deposit in lieu of a bail bond. She thereupon borrowed $300 of M. L. Winser, which money was deliverad to Lucas either by Miss Parker or Winser, both being present at the time, for the purpose indicated, and Lucas gave Winser a written receipt for the $300, “for bail, and for securing the discharge or release of Prank J. Lynch, * * * said bail money to 'be returned to said M. L. Winser upon final disposition of such charge.” Lucas, after securing the money, represented to the committing magistrate that he could not raise more than $150 as bail for Lynch, and the bail was reduced to that amount, which was deposited by Lucas and Lynch was released. Subsequently Lucas filed with said magistrate a bail bond, and received from him the money so deposited. Thereafter Miss Parker repaid to Winser the $300 she had borrowed from Winser, and received from him an order directing Lucas to deliver to her the money placed in Lucas’ hands to be used as a deposit in lieu of bail for Lynch. Lucas refused to pay Miss Parker the money, and on trial of the criminal charge against him set up as a defense thereto that he had a lien on the money for fees due him from Miss Parker for services rendered in the action against her and Lynch, in which they were charged with adultery. The court, after stating that as a general rule an attorney has a retaining lien on papers’, documents, etc. of his client, says (p. 173):

“But no such lien can attach where the papers or money are delivered to the attorney for a special purpose, as if the deeds are delivered in order that he may exhibit them to another, (Balch v. Symes, 1 Turn. & R. 87,) or to enable him to draw a mortgage, (Lawson v. Dickerson, 8 Mod. 306,) or when the money is delivered to him to apply in settlement of a suit (Anderson v. Bosworth (R. I.), 8 Atl. 339; 1 Jones, Liens, 138). It has, however, been held that if the attorney is permitted to retain the property after the object for which it was given has failed, there is a general lien; (Ex parte Pemberton, 18 Ves. 282; Ex parte Sterling, 16 Ves. 258); but this is on the theory that permitting the papers or money to remain in the hands of an attorney after the object for which he received them has been accomplished or failed is equivalent to a general deposit, and can therefore have no application to a case where money or other property of a client is put into the hands of his attorney for a specific purpose, to be disposed of in a particular manner after such purpose shall have been accomplished. In such case no general hen can attach, because the terms of the bailment are inconsistent with the right to a lien. In such case the attorney becomes a bailee of the property for a special purpose, with the same rights, and subject to the same duties and liabilities, as any other bailee. If, therefore, in this case the money of Miss Parker was delivered to the defendant for the specific purpose of being used as cash bail to secure the discharge of Lynch, with an agreement on his part, that when the money should have accomplished the purpose for which it was delivered to him, it should be returned to Winser, the terms of the bailment are inconsistent with, and antagonistic to, his right to hold a lien upon the money for his compensation as attorney for either Miss Parker or Lynch, and no such lien can attach in the absence of a special agreement to that effect.”

It will be noticed that the facts in the Lucas case are quite similar to the facts of the case now before us. Thomas, in the present case, received the money for a special purpose, as did Lucas in the case cited. Thomas, likewise, as did Lucas, agreed to return the money when the bond was released but refused to do so, claiming a lien thereon for fees.

Further discussion of the reported cases, where the same or a similar question has arisen, seems unnecessary. We may, however, with propriety refer to the following additional cases: Henry v. Fowler, 3 Daly (N. Y.) 199; Bracher v. Olds, 60 N. J. Eq. 449; West v. Bacon, 164 N. Y. 425.

For the reasons indicated the judgment of the Municipal Court is affirmed. Affirmed.


text:
    Clara E. Hellen, Defendant in Error, v. Benjamin H. Hellen, Plaintiff in Error.
    Gen. No. 16,591.
    1. Pleading—what not part of declaration. The “copy of instrument sued upon” attached to a declaration or filed with the same, is no part thereof.
    2. Pleading—effect of absence of similiter. The want of a similiter is aided after verdict.
    3. Pleading—how departure should be availed of. If a replication depart from the cause of action set out in the declaration the irregularity should .be taken advantage of by demurrer.
    4. Pleading—how insufficient allegation of facts in replication should be availed of. If a replication to a plea of the Statute of Limitations does not state such facts as would avoid the statute, the defect should be availed of by demurrer.
    5. Pleading—when replication cured by verdict. A defective replication is cured by verdict.
    6. Appeals and errors—what not part of record. A “copy of instrument sued upon” not being a part of the declaration, is not part of the common law record unless made so by incorporation in a bill of exceptions.
    7. Appeals and errors—when evidence presumed to support verdict. In the absence of the preservation of the evidence heard by bill of exceptions it will be presumed that such evidence supported the verdict and judgment rendered.
    8. Statute op Limitations—burden to establish plea. The burden to establish a plea of the Statute of Limitations, the same having been traversed by the plaintiff, is upon the defendant.
    9. Statute of Limitations—when traverse of plea proper. A general traverse of a plea of the Statute of Limitations in the negative of the words of the plea concluding to the country is proper.
    10. Statute of Limitations—what does not start a fresh running of statute. Scheduling by the defendant does not start afresh the running of the Statute of Limitations as applied to the commencement of an action rendered upon the judgment of a court of a sister state.
    Action in debt. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    Rehearing denied June 6, 1912.

      J. Erb and E. C. Mapledoram, for plaintiff in error.
    D. W. Parker and E. B. Hand, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action in debt on a judgment of a district court in the State of Minnesota, brought in the Circuit Court of Cook County on May 13, 1904, by Clara E. Hellen, defendant in error and hereinafter referred to as plaintiff, against Benjamin H. Hellen, plaintiff in error and hereinafter referred to as defendant.' The transcript of the record discloses that on March 12, 1909, “this cause being called for trial, comes the plaintiff, by her attorney, and issues being joined, it is ordered that a jury come,” whereupon twelve jurors, who, being sworn to try the issues and a true verdict render according to the evidence, after hearing all the evidence adduced, say: “We, the jury, find the issues for the plaintiff, and we find the amount of the debt to be $4,060.52, and we assess the plaintiff’s damages at the sum of $4,060.52.” The transcript of the record also discloses that the court gave the jury the following instruction: “The jury are instructed to find the issues for the plaintiff and assess her damages at the sum of $4,060.52,” and that on the same day the court entered a judgment that “the plaintiff do have and recover of and from the defendant her said debt of $4,060.52 and her said damages of $4,060.52, in form as aforesaid by the jury found due and assessed, together with her costs and charges in this behalf expended and have execution therefor. It is ordered that upon payment of said damages with interest thereon and costs of suit said debt be discharged.” To reverse the judgment defendant sued out this writ of error. The transcript of the record does not contain a bill of exceptions. It is stated by counsel for defendant in their printed argument that neither the defendant nor his attorney was present in court when the trial of the case was had and the verdict and judgment entered.

Plaintiff’s declaration was filed on May 13,1904, and consisted of three counts. The first count alleged that plaintiff, in the district court for the 4th judicial district of the State of Minnesota for Hennepin County, to-wit: On November 17, 1893, by the judgment of said court, recovered against the defendant in an action for divorce the sum of $1500, as and for the permanent alimony of plaintiff, and that said judgment is in full force, and not satisfied. The second count alleged that on, to-wit: November 17,1893, by the judgment of the same court and in the same action, plaintiff recovered against defendant the sum of $150, to be paid annually in quarterly installments, for the maintenance and support of the minor child of the parties, until said child should arrive at the age of 18 years, that said judgment is in full force and not satisfied, and that said child remained in plaintiff’s care and custody for about six and one-half years from the date' of said judgment prior to the time said child arrived at the age of 18 years, when a large sum, to-wit: $975, for the maintenance and support of said child, for the period ending on or about May 17, 1900, became due plaintiff. The third count amounted, practically to a consolidation of the first and second counts, being predicated upon the judgment in favor of plaintiff for alimony, as well as upon the judgment for the support and maintenance of said child, and alleged that said respective amounts were due and unpaid, “with interest at the rate of 7 per cent per annum” as provided by the laws of the State of Minnesota, “to the damage of plaintiff of $5,000,” etc.

With this declaration a certified copy of a judgment purporting to be the judgment and decree of said court of the State of Minnesota, was filed as “copy of instrument sued upon.” This instrument is no part of the declaration. Harlow v. Boswell, 15 Ill. 56; Gage v. Lewis, 68 Ill. 604, 618. And it is not a part of the record, unless preserved by bill of exceptions. Hippach v. First National Bank, 169 Ill. 515; Boyles v. Chytraus, 175 Ill. 370. As there is no bill of exceptions in this ease, the said judgment and decree is not properly before us, and therefore, such of the contentions of counsel for defendant as are based upon what that judgment and decree shows upon its face cannot be considered by us.

To the entire declaration the defendant, on June 20, 1904, filed three pleas, (1), nul tiel record, (2), payment and (3), a plea of the statute of limitations as follows:—

“The defendant says that the plaintiff ought not to have her aforesaid action against him, because he says that from, to-wit, the 17th day of November, 1893, to and including the time of the commencement by said plaintiff of her cause of action, he, the defendant has been continuously a resident of and has continuously resided in the State of Illinois, and that the several supposed causes of action in said declaration mentioned and in each count thereof, did not nor did any or either of them, accrue to the plaintiff at any time within five (5) years next before the commencement of this suit in manner and form as_the plaintiff has above complained against him, the defendant; and this the defendant is ready to verify, etc. ’ ’

On September 14, 1907, on plaintiff’s motion, leave was granted her to reply double, and defendant was ordered to rejoin thereto in ten days. On the same day, plaintiff, in addition to properly replying to the defendant’s pleas of nul tiel record and payment, filed the following replications to the defendant’s said plea of the statute of limitations:

1. “And the plaintiff * * * says that she, the plaintiff, by reason of anything in that plea above alleged ought not to be barred from having her aforesaid action, because she says that the several causes of action, and each and every one of them, did accrue to her within five years next before the commencement of this suit, in manner and form as she has above complained against the defendant; and this the plaintiff prays may be inquired of by the country, etc.

2. “And the plaintiff, by leave of court first had and received, * * * further says that she, the plaintiff, by reason of anything in said plea alleged, ought not to be barred from having her aforesaid action, because she says that the defendant in his certain petition and schedule A3 in Bankruptcy, filed in the United States district court clerk’s office for the northern district of Illinois, on September 9, 1908, as No. 8092, acknowledged the validity of the same judgment set out in plaintiff’s declaration and in each count thereof;' whereby the defendant waived his right to the benefit of the statute of the state of Illinois in manner and form as set forth in his said plea; and this the plaintiff is ready to verify, etc.

3. “And the plaintiff by leave of court first had and received, * * * further says that she, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having her aforesaid action, because she says that the said judgments mentioned in her said declaration and in each count thereof, were entered by the district court of the 4th judicial district of the state of Minnesota, for Hennepin county, for the permanent alimony of the plaintiff and the support of the plaintiff’s minor child, in manner and form as is above in said declaration alleged; and this the plaintiff is ready to verify, etc.

4. “And the plaintiff, by leave of the court first had and received, * * * further says that she, the plaintiff, by reason of anything in that plea alleged ought not to be barred from having her aforesaid action, because she says that she resided out of the state of Illinois, when the cause of action set out in the declaration and in each' count thereof in this case accrued, and so continuously resided out of the said state until five years prior to the bringing of this suit; and this the plaintiff is ready to verify, etc. ’ ’

As far as the transcript of the record before us discloses, no further pleadings were filed in the case and no other orders were entered prior to the trial, March 12, 1909, when the verdict was rendered and judgment entered thereon. The defendant neither demurred nor rejoined to any of said replications.

Counsel for defendant contend that the judgment of the trial court should be reversed because of error manifest on the face of the record, in that the judgment is not supported by the pleadings, or, more particularly, in that the trial court erred in not giving effect to the plea of the defendant of the statute of limitaions which, upon the face of the pleádings, barred the claim sued on, with the exception of $187.50 and interest, said sum being the last five installments due and unpaid under said judgment or decree, for the support of said minor child, which, in accordance with Schuler v. Schuler, 209 Ill. 522, are not barred by the statute of limitations of the state of Illinois.

The plea of the defendant of the statute of limitations “is a plea in confession and avoidance. It confesses the plaintiff’s cause of action, but seeks to avoid a recovery, by invoking the bar of the statute.” Bartalott v. International Bank, 14 Ill. App. 158, 162. The plea in this case alleged that “the several supposed causes of action in said declaration mentioned, and in each count thereof, did not * * * accrue to the plaintiff at any time within five (5) years next before the commencement of this suit.” By section 15 of chapter 83 of the statutes of this state it is provided that “all civil actions not otherwise provided for shall be commenced within five years next after the cause of action accrued. ’ ’ By section 18 it is provided, “If, when the cause of action accrues against a person, he is out of the state, the action may he commenced within the times herein limited, after his coming into or return to the state; and if, after the cause of action accrues, he departs from and resides out of the state, the time of his absence is no part of the time limited for the commencement of the action. But the foregoing provisions of this section shall not apply to any case, when, at the time the cause of action accrued or shall accrue, neither the party against nor in favor of whom the same accrued or shall accrue, were or are residents of this state.” The plea of the defendant was in proper form, and if he could prove the truth of same on the trial, regard being had to the provisions of section 18 of the statute, it would be a bar to plaintiff’s action. Davis v. Munie, 235 Ill. 620. But the burden of proving his plea, the same having been traversed by the plaintiff, was upon him. Schell v. Weaver, 225 Ill. 159, 162.

After defendant had filed said plea, plaintiff obtained leave of court to reply double, and plaintiff filed the four replications above set forth. The first was a general traverse of the plea in the negative of the words of the pleas, and concluded to the country. This form of replication to such a plea was proper. 3 Chitty on Pl. p. 1160; Chenot v. Lefevre, 8 Ill. 637, 640. “If the statute of limitations be pleaded, the plaintiff may reply either that the defendant did undertake, or that the cause of action did accrue, within six years, in the negative of the words of the plea.” 1 Chitty on Pl. p. 605. “When the statute of limitations was pleaded, either that the defendant did not undertake, or that the cause of action did not accrue, within six years ‘before the exhibiting of the plaintiff’s bill,’ and the plaintiff could prove a promise or acknowledgment within that time, the replication might deny the plea generally, and conclude to the country; but if the time of issuing the first writ in the action were material, it must have been replied specially, as in the case of a tender; and if continued process were stated, the return of the first must have been shown; but this did not seem necessary when the plea stated ‘before the commencement of the suit,’ instead of ‘exhibiting the bill,’ though a special replication was in general advisable, because it might reduce the proof to be adduced by the plaintiff on the trial.” 1 Chitty on Pl. p. 609. By this first replication of the plaintiff, therefore, issue was joined on defendant’s plea of the statute of limitations. ' Defendant by his plea confessed plaintiff’s cause of action and invoked the statute as a bar. Plaintiff by her replication virtually said that the statute was pot a bar to the action. She generally denied the plea. It is true that it does not appear that a similiter was filed to this replication, but the want of a similiter is aided after verdict. Waters v. Simpson, 7 Ill. 570.

But counsel for defendant contend that this first replication of the plaintiff is a departure from the cause of action as set out in her declaration, and is therefore bad, and that the judgment for this reason should be reversed. We do not agree with this contention. “The replication must not depart from the allegations in the declaration in any material matter. * * * A departure in pleading is said to be when a party quits or departs from the case or defense which he has first made, and has recourse to another; it occurs when the replication or rejoinder, etc., contains matter not pursuant to the declaration or ple.a, etc., and which does not support and fortify it.” 1 Chitty on PI. p. 674. “But matter which maintains, explains, and fortifies the declaration or plea, is not a departure. * * * And if the plaintiff vary in his replication from his count, or the defendant in his rejoinder from his plea, in time, place, or other matter, when immaterial, it is not a departure. As if in a declaration, a promise be stated to have been made twenty years ago, and when the defendant pleads the statute of limitations the plaintiff replies that the defendant did undertake within six years; this is not a departure, because in this case the statement of the time in the declaration was immaterial.” 1 Chitty on Pl. p. 677. And even if there was a departure in this replication, defendant should have demurred to the same. Although this replication was on file for about a year and one-half prior to the time of trial, defendant did nothing with reference to the four replications filed by plaintiff on September 14, 1907. “The only mode of taking advantage of a departure is by demurrer, which may be either general or special; and if the defendant or the plaintiff, instead of demurring, take issue upon the replication or the rejoinder containing a departure, and it be found against him, the court will not arrest the judgment.” 1 Chitty on Pl. p. 678. In support of their contention counsel cite the case of Beatty v. Nickerson, 73. Ill. 605. In that case plaintiff, to a plea of the statute of limitations, replied that defendant fraudulently concealed from plaintiff the knowledge that a cause of action existed, and that suit was brought within the statutory period, after knowledge of the right of action came to plaintiff. The replication was demurred to, and the court held it bad on demurrer in that it failed to -set out the facts constituting the concealment. But it does not follow, because there is a defective pleading in the record, which, if demurred to, would have been held bad by the trial court, that for this reason the judgment should be reversed. Hopkins v. Woodward, 75 Ill. 62; Devine v. Chicago City Railway Co., 237 Ill. 278.

As to the second, third and fourth replications of plaintiff, which were in confession and avoidance of defendant’s plea of the statute, we are of the opinion that, had a demurrer been interposed as to them and been insisted upon, the court would have been obliged to sustain the demurrer to each replication, and on the ground that each failed to state such ..facts as .would avoid the statute. But the defendant neither demurred nor rejoined to any of these replications. Failing to take proper action at the proper time, defendant should not be allowed, after verdict and judgment, to urge first in this court that the trial court erred in proceeding to a trial of the cause on the then existing state of the pleadings.

Counsel for the respective parties have discussed at great length in their printed arguments the question whether the fact, as stated in said second replication, of the defendant scheduling in bankruptcy, on September 8, 1908, said judgment of said Minnesota court, was such an acknowledgment of the debt as would start afresh the running of the statute of limitations in favor of the plaintiff. While in the view we take of this case this point is only indirectly involved, we may say that, after a careful review of the authorities, we are of the opinion that such scheduling by the defendant was not such an act as would in this state start afresh the running of the statute in favor of plaintiff. Keener v. Crull, 19 Ill. 189, 191; Carroll v. Forsyth, 69 Ill. 127, 131; Ennis v. Pullman Co., 165 Ill. 161, 176; Boone v. Colehour, 165 Ill. 305, 315; Georgia Ins. Co. v. Ellicott, 10 Fed. Cas. 248; Roscoe v. Hale, 7 Gray 274; Richardson v. Stillman, 13 Gray 381; Hidden v. Cozzens, 2 R. I. 401; Nonotuck Silk Co. v. Pritzker, 143 Ill. App. 644.

Counsel for plaintiff, in urging this court to sustain the judgment, argue that, if it can be said that the first replication of plaintiff to defendant’s plea of the statute of limitations was defective, the verdict cured such defect. We agree with counsel and are of the opinion that the judgment should be affirmed. Illinois Central R. R. Co. v. Simmons, 38 Ill. 242; Gerke v. Fancher, 158 Ill. 375, 380; 31 Cyc. 763; Sargent Co. v. Baublis, 215 Ill. 428. In the case last cited our Supreme Court said (p. 430):

‘•‘The rule, as often stated, is, ‘that where there is any defect, imperfection or omission in any pleading, whether in substance or form, which would have been a fatal objection upon demurrer, yet if the issue be such as necessarily required, on the trial, proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would have given the verdict, such defect, imperfection or omission is cured by the verdict. ’ ”

In s.aid replication to said plea plaintiff stated that her said cause of action “did accrue to her within five years next before the commencement of this suit.” As there is no bill of exceptions before us, we have no means of knowing what the evidence was which actuated the trial court in giving to the jury the instruction mentioned, and the jury in rendering the verdict. Under this replication, as we have above seen, the plaintiff might prove a new promise “within five years next before the commencement of the suit,” and for aught we know to the contrary she may have done so. Under such a replication, also, plaintiff might have introduced evidence showing that defendant, at the time of the rendition of the judgment by said Minnesota court, was a resident of the state of Illinois, and afterwards departed from and resided out of said state, returning to this state after a sufficiently protracted absence, in which event, under section 18 of our statute, the time of defendant’s said absence from this state “is no part of the time limited for the commencement of the action” in this state. We must and will presume that the evidence supported the verdict and judgment, and in our opinion the state of the pleadings is such as sufficiently supports said verdict and judgment.

The judgment of the Circuit Court of Cook County is affirmed.

Affirmed.


text:
    R. A. Wells Lumber Company, Plaintiff in Error, v. Jonathan Dunfee, Defendant in Error.
    Gen. No. 16,618.
    Statute op Limitations—what “evidence of indebtedness in writing.” Held, that the instrument set forth in this opinion was an ‘‘ evidence of indebtedness in writing ’ ’ withing the meaning of section 16 of the Statute of Limitations notwithstanding it did not fix a time of payment for the merchandise provided to be delivered.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Eeversed and remanded.
    Opinion filed May 23, 1912.
    Atwood, Pease & Loucks, for plaintiff in error; Burrell J. Cramer, of counsel.
    Harry A. Biossat, for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On March 29, 1909, R. A. Wells Lumber Company, a corporation, plaintiff in error and hereinafter referred to as plaintiff, brought suit in the Municipal Court of Chicago against Jonathan Dunfee, defendant in error and hereinafter referred to as defendant, to recover the sum of $123.75 and interest. In plaintiff’s “statement of claim” it is stated that said claim “is for $123.75, with interest at 5% on a written contract or evidence of indebtedness by said defendant, whereby said defendant undertook and promised to pay plaintiff on demand the sum of $123.75, with interest thereon, a copy of which said writing is in words and figures as follows, to-wit:

“Sold subject to our inspection only.
No. 13250. Chicago, Sept. 16, 1899.
Received from R. A. Wells Lumber Co., S. W. Cor. Clark & 22nd Sts., 2743 ft. 1" Walnut.
This lumber is to be $45.00 per M ft.
J. Dunfee.”

On April 21, 1909, the defendant filed an affidavit of merits in which defendant stated that his defenses to said claim were:

1. That said suit “is not brought on said instrument, but is brought on the lumber mentioned therein, and is an open account barred by the statute of limitations. ’ ’

2. That defendant never accepted said lumber and never received same.

3. That said lumber was not up to grade and was refused by defendant upon tender to him for that reason, and has never been accepted or received by defendant.

4. That defendant never signed said instrument.

A trial was had before the court without a jury, resulting in a finding for the defendant, upon which finding judgment for the defendant was entered, to reverse which this writ of error is prosecuted.

It appears from the “Statement of Facts” in the transcript that on September 16,1899, defendant called the president of plaintiff, R. A. Wells, on .the teléphone and said to Wells that he wanted a wagon load of the best walnut lumber, and would pay $65 per thousand feet for it; that Wells replied that plaintiff had the lumber and would send it; that on the same day, plaintiff sent one of its drivers, Charlie, with a wagon load of walnut lumber to defendant’s yard, giving Charlie at the time the usual delivery ticket, which was printed and written in the following words and figures;

“Sold subject to our inspection only.
No. 13250. Chicago, Sept. 16, 1899.
Received from R. A. Wells Lumber Co., S. W. Cor. Clark & 22nd Sts., 2743 ft. 1" Walnut.”

That Charlie gave this delivery ticket, in the above form to defendant when he arrived at the yard with the lumber; that defendant looked at the lumber and told Charlie that it was not what he ordered and that he would not accept it, whereupon Charlie reported this fact by telephone to Wells; that thereupon defendant talked to Wells over the telephone and told Wells that he would pay $45 per thousand feet for said lumber, but would not pay $65, and Wells told defendant that the latter could have the lumber for $45 per thousand feet, and requested defendant to tell Charlie to unload it; that Charlie unloaded the lumber in defendant’s yard, and after the same had been unloaded, defendant returned the said delivery ticket to Charlie with the following written upon it by defendant:

“This lumber is to be $45.00 per M ft.
J. Dtjhfee. ”

That Charlie delivered said delivery ticket to Wells and plaintiff immediately thereafter mailed defendant an invoice of said lumber at $45 per thousand feet; that said lumber has never been paid for, and that this suit was brought within ten years from the date when the cause of action accrued.

On the trial the court held that the instrument sued on was not a written contract, neither was it “such an evidence of indebtedness in writing upon which an action could be commenced within ten (10) years next after the cause of action accrued.” It was upon this ruling alone that the finding and judgment of the court were based.

Section 16 of Chapter 83, Rev. Stat. Ill., provides that “actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing, shall be commenced within ten (10) years next after the cause of action accrued; * * * . ”

We are of the opinion that said instrument, by its terms and under the particular facts in evidence, is such an evidence of an indebtedness in writing as to allow this action to be maintained under said statute. We do not agree with counsel for defendant in his contention that the instrument is “merely a receipt evidencing performance of a prior executed oral contract.” It is something more. After defendant had had his talk with Wells over the telephone, in which, as above stated, defendant told Wells he would pay $45 per thousand feet for the lumber, and in which Wells told the defendant that defendant could have the lumber for that sum per thousand feet, defendant did not' merely sign his name to the delivery ticket and hand the same to the driver, but he wrote on said ticket the words “this lumber is to be $45.00 per M ft.” and then signed- his name underneath. We think this is such an evidence of indebted-’’ ness in writing as is contemplated by the statute. On the face of this instrument we find the names of both plaintiff and defendant, the subject-matter, viz: 2743 ft. 1" Walnut lumber, the amount to be paid, viz: $45.00 per M ft. and the date of the sale, viz: Sept. 16, 1899, and that the lumber sold has been received by the defendant on the date mentioned. It is true that on this instrument it is not disclosed when the lumber is to be paid for, but the law will presume in such a case that payment is due at the time of the delivery of the lumber. Metz v. Albrecht, 52 Ill. 491.

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

Reversed and remanded.


text:
    J. Pizaro, Defendant in Error, v. Inland Steel Company, Plaintiff in Error.
    Gen. No. 16,623.

      Verdicts—when not distwried as against the evidence. A verdict will not be set aside as against the evidence unless clearly and manifestly so.
    Tort. Error to the Municipal Court of Chicago; the Hon. McKenzie Cleland, Judge, presiding. Heard.in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    Rehearing denied June 6, 1912.
    Frank M. Cox and B. J. Fellingham, for plaintiff in error.
    No appearance for defendant in error.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

This was an action in tort brought in the Municipal Court of Chicago by J. Pizaro, defendant in error and hereinafter referred to as plaintiff, against Inland Steel Company, a corporation, plaintiff in error and hereinafter referred to as defendant, to recover damages for personal injuries sustained by plaintiff while in the employ of defendant in its factory or plant, in the city of Chicago. At the time of the accident plaintiff was engaged, together with two other servants of defendant, in pushing a truck loaded with iron along a miniature railway in the shipping room of defendant. The truck was about 4% feet long, was longer than it was wide, and had four wheels. The top of the truck was a flat platform, about two feet above the level of the floor. At each of the four corners of this flat platform there was a vertical stake. As the truck was being pushed forward at the time of the accident, plaintiff was walking on the left hand side of said truck, having hold of the back stake on that side with his right hand, and having hold of the front stake with his left hand. One of his fellow laborers was walking along on the right hand side of said truck, and his other fellow laborer was back of the truck pushing. While the men were so engaged, plaintiff stepped into a hole in the floor and fell in such a manner that a portion of his right hand came upon the rail, and the second finger of said hand was cut off about even with the index finger, and plaintiff’s thumb was also cut, leaving a scar.

On the trial, before a jury, the plaintiff and his two co-laborers were sworn as witnesses for plaintiff and each testified. They were cross-examined by defendant’s attorney. At the conclusion of plaintiff’s case defendant, by its counsel, moved the court to instruct the jury to find the defendant not guilty, which the court refused to do, and thereupon the defendant elected to stand by its motion for a directed verdict and offered no evidence. The jury returned a verdict finding the defendant guilty, and assessed plaintiff’s damages at the sum of $300. Defendant entered its motion for a new trial, which was denied, and the court entered judgment on the verdict in favor of plaintiff, to the entry of which judgment defendant duly excepted..

Counsel for defendant urges this court to reverse the judgment because (1), the verdict is not supported by the evidence, (2), the defendant was not guilty of negligence, which was the proximate cause of the injury, (3), plaintiff assumed the risk, (4), plaintiff was guilty of contributory negligence, (5), error of the trial court in admitting certain testimony, and in refusing to admit certain other testimony.

• No good purpose, it seems to us, will be served by a discussion here of the several points above mentioned. Suffice it to say, that in our opinion, after a review of the evidence, we cannot say that the verdict is not supported by the evidence. On the questions as to whether the defendant was not guilty of negligence which was the proximate cause of the injury, or whether the plaintiff assumed the risk, or whether the plaintiff was guilty of contributory negligence, we are of the opinion that, under the evidence in this case, these questions and each of them were for the jury to pass upon. As to the rulings of the trial court in admitting certain testimony and in refusing to admit certain other testimony we do not think that the rulings are such as would constitute error prejudicial to defendant, warranting a reversal of the judgment.

The judgment of the Municipal Court is affirmed.

Affirmed.


text:
    The People of the State of Illinois, Defendant in Error, v. J. F. Boyd, Plaintiff in Error.
    Gen. No. 16,873.
    1. Informations—when lack of endorsement does not affect validity. A defendant after being arrested, appearing, giving bail, waiving trial by jury, etc., cannot question the validity of the information upon the ground that it lacks endorsement by a judge of the municipal court, as provided by statute.
    2. Variance—when objection comes too late. In a criminal case an objection of variance comes too late if first raised on appeal.
    Error to the Municipal Court of Chicago; the Hon. John W. Houston, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1910.
    Affirmed.
    Opinion filed May 23, 1912.
    S. A. McElwee and Arthur H. Simms, for plaintiff in error.

      John E. W. Wayman, for defendant in error; Zach Hofheimer, of counsel.
   Mr. Presiding Justice Gridley

delivered the opinion of the court.

On August 5, 1910, an information was filed in the Municipal Court of Chicago, charging that J. F. Boyd, on August 3, 1910, at Chicago, Illinois, “unlawfully and unjustly for his own gain and to prevent the owner, from again possessing its property, did buy, receive and aid in concealing 20 lbs. sugar, one can lard, of the value of three dollars of the personal goods, property and chattels of The Lake Shore & Michigan Railroad, the same being a corporation, said goods, property and chattels having been lately before then wrongfully and unlawfully stolen, taken and carried away from the said corporation by a certain evil disposed person or persons, the said J. F. Boyd then and there well knowing the personal goods, property and chattels to have been unlawfully stolen, taken and carried away, contrary to the statute,” etc. The information was signed by E. J. Heptig and was sworn to by him. It does not appear on its face to have been endorsed by one of the judges of the Municipal Court as by statute provided. From an order entered of record on said day it appears that the information was presented to the presiding judge of said court, and that, said judge having examined the same and the person presenting the same, and being satisfied that there was probable cause for filing the same, and “said judge having so endorsed the same,” it was ordered that the information be filed and that a capias be issued. A capias was issued, Boyd was arrested, appeared in court, in person and by counsel, and gave bail. Subsequently Boyd, on being arraigned, pleaded not guilty and waived a trial by jury, and the. cause was submitted to the court for trial without a jury, and after a hearing the court found him guilty in manner and form as charged in the information, and he was adjudged guilty of the criminal offense of receiving stolen property. The usual motions for a new trial and in arrest of judgment were made and overruled, and Boyd was sentenced to confinement in the county jail for one hour and also to pay a fine of $25, together with the costs of the suit. To reverse the 'judgment Boyd sued out this writ of error, and, pending the determination of the same, was admitted to bail.

The facts of the case are, substantially, that on August 3, 1910, about 7:30 o’clock a. m., E. J. Heptig, a special detective for The Lake Shore & Michigan Southern Railway Company, saw someone push a package from the platform of the dining car of one of Qthe company’s trains; that the train was on its way from the La Salle Street station to the company’s yards, and at the time had stopped near 25th street, in Chicago; that Heptig saw Boyd pick up said package and he immediately approached Boyd and asked him why he did so; that Boyd told Heptig that he expected a friend to bring a package of fish to Chicago from some eastern point on that train and that he had been waiting there to get it and thought that the package contained the fish; that Heptig then took Boyd to the office of the superintendent of the company, where Boyd-stated that Walter Washington was the person who he expected would bring the fish; that upon examination it was found that the package contained two five pound packages of sugar and a five pound pail of lard; that subsequently Washington was questioned and he stated that he had bought the package in Buffalo, New York, and that the man from whom he purchased it had brought it to the train to be delivered to another party, and that in the absence of the party for whom it was intended it was offered to Washington and he bought it; that Washington had promised to buy some fish in Buffalo and bring it to Chicago for Boyd and that Boyd was to meet him at the point where the package was pushed from the train for the purpose of getting the package; that Boyd was a chef on one of the dining cars of the railway company and that he and Washington alternated in their services in that capacity on said car, and that the value of the property so found in' Boyd’s possession was about $1.25.

It further appeared from the testimony of the superintendent of the dining car service of the company that the package containing said pail of lard and the packages containing said sugar were similar to the style of packages used exclusively by the company; that the articles were of the same brand as was used exclusively by said company, but that there was no mark on said property by which he could certify to its being the property of the company. Both Boyd and Washington testified on the trial, but it is unnecessary here to mention in detail their testimony. Suffice it to say that, in our opinion, the entire evidence supports the charge contained in the information and also supports the finding and judgment of the court.

It is contended by counsel for Boyd that the information is insufficient to support the judgment because on its face it does not appear to have been endorsed by a judge of the Municipal Court as provided by statute-. In our opinion, this contention is without merit in this court. Boyd, after being arrested, appeared in court, gave bail, waived a trial by jury and submitted his cause to the court without raising the question by motion to quash or otherwise, and from the bill of exceptions it appears that the objection to the information on the ground above stated was not raised until after the motion for a new trial had been argued and overruled. Sec. 411, Chap. 38, Rev. Stat. Ill., provides: “All exceptions which go merely to the form of an indictment, shall be made before trial, and nb motion in arrest of judgment, or writ of error, shall be sustained, for any matter not affecting the real merits of the offense charged in the indictment.” We think the objection was made too late. Cross v. People, 66 Ill. App. 170; Winship v. People, 51 Ill. 296; People v. Zlotincke, 152 Ill. App. 363, 371; 246 Ill. 185.

It is further contended by counsel for Boyd that the judgment should be reversed because in the information the name of the owner of the property is given as “The Lake Shore & Michigan Railroad,” while the evidence disclosed that the property was owned by “The Lake Shore & Michigan Southern Railway Company.” We do not think the judgment should be reversed on this ground. Boyd, having failed in any manner or at any time to make this objection in the trial court, cannot now raise it for the first time in this court. Cross v. People, 47 Ill. 152, 157; Williamson v. Rexroat, 55 Ill. App. 116; Brannan v. Strauss, 75 Ill. 234; People v. Smith, 144 Ill. App. 129. If the objection had been raised in the trial court the information could have been amended. Truitt v. People, 88 Ill. 518; Long v. People, 135 Ill. 435; People v. Manns, 146 Ill. App. 571, 573.

The judgment of the Municipal Court is affirmed.

Affirmed.