text:
    John D. Casey, Administrator, Appellee, v. Siegel, Cooper & Company, Appellant.
    Gen. No. 17,398.
    1. Master and servant—when question of fellow-servants is one of law. Before the question whether the relation of fellow-servants exists in a case can become one of law, it must appear from the evidence that the facts are undisputed, and that the facts shown regarding the relation are of a nature and character so clear and unequivocal that all reasonable men will readily agree that but one conclusion can be drawn therefrom.
    2. Master and servant—when question of carpenter and elevator conductor as fellow-servants is for the jury. Where a carpenter in a mercantile house, who uses the freight elevator occasionally but is not subject to the orders of the superior officer of the elevator conductor, in inclosing space at the bottom of the elevator shaft near the counterweight guide posts is killed by a descending counterweight, through the negligence of the elevator conductor in failing to observe an arrangement that the elevator shall not ascend, the question whether the carpenter and elevator conductor are fellow-servants is a question of fact for the jury.
    3. Master and servant—when rislc of negligence of coemployee is not assumed. Where a carpenter in inclosing space at the bottom of an elevator shaft near the counterweight guide posts isi killed by a descending counterweight either through the elevator conductor's disregarding an arrangement that the elevator should not ascend or, if the arrangement was misunderstood, through the elevator conductor’s forgetting or disregarding that the carpenter was at work at the bottom of the shaft, the negligence of the elevator conductor was not an assumed risk unless the conductor was a fellow-servant.
    4. Master and servant—when injured servant giving instruetions is not guilty of contributory negligence. Where a carpenter inclosing space at the bottom of an elevator shaft near the counterweight guide posts gave the elevator conductor certain plain instructions that he supposed were understood, not to permit the car to ascend, and was killed by a descending counterweight, he is not per se guilty of contributory negligence in failing to make the conductor understand or comprehend such instructions.
    5. Master and servant—when servant properly protects himself. Where a carpenter inclosing space at the bottom of an elevator shaft near the counterweight guide posts is killed by a descending counterweight, and there is evidence that he told the elevator conductor to take the elevator up five or six feet and wait until the work was finished, the carpenter has done what a reasonably prudent man would have done under similar circumstances.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed November 29, 1912.
    J. F. Dammann, Jr., for appellant; Augustus Binswanger, of counsel.
    Burres & McKinley, for appellee; William J. Stapleton, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

From a judgment in favor of plaintiff for $5,000 damages for negligently causing the death of the plaintiff’s intestate, defendant appeals to this court, claiming that the trial court erred in refusing to direct a verdict for the defendant for the reasons, as stated by counsel, that the deceased was guilty of contributory negligence, that he assumed the risk of the condition and danger existing at the time of the injury, and that if there was any negligence on defendant’s part, it was the negligence of a fellow-servant of the deceased, for which the defendant is not liable.

Defendant is a corporation doing business in Chicago, and in 1908 occupied an eight story building in which its business was conducted. In the northeast corner of the building was an elevator which was commonly used for freight purposes, and when so used was not enclosed. It was operated by means of a wire cable, and was provided with a counterweight of iron, which ran up and down between guide posts located at one side of the elevator shaft. This elevator was in charge of an employee of defendant, named Eamsey. The plaintiff’s intestate and one Hubert were carpenters employed by defendant, and were working under the direction and supervision of a “boss” carpenter named Schroeder. The carpenters kept their materials and tools in a carpenter shop located on the eighth floor near the freight elevator. The work required of the carpenters took them into all parts of the building, and they were in the habit of using the freight elevator in going with their tools and materials from floor to floor, as occasion required. Preceding the Christmas shopping season of December, 1908, defendant had caused the freight elevator to be converted temporarily into a passenger elevator. For this purpose, a wire grating about eight feet in height had been constructed on the east and west sides of the elevator platform or cab, and the elevator shaft in the basement had been entirely inclosed with boards, except a space a foot or two in width at the northeast corner near the counterweight guide posts. On the morning of December 8, 1908, Schappert and Hubert, who were then in the carpenter shop, were told by Schroeder to finish the work of inclosing the shaft in the basement. They selected two or three pieces of lumber and carried them with their tools to the elevator, then standing at the eighth floor in charge of Eamsey. Schroeder told Eamsey to take the carpenters down and stay with them. All three descended in the elevator from the eighth floor to the basement. There the elevator remained until the boards were hoisted over the wire grating, placed in position over the open space at the northeast corner, and nailed at the top. In order to do this, Schappert was obliged to climb to the top of the wire grating, and Ramsey assisted in this work to the extent of passing np a board or two and holding Schappert’s legs while he was nailing the boards. After the boards had been nailed at the top, Schappert and Hubert stepped out of the elevator into the basement, and told Ramsey to move the elevator upward five or six feet, so that the two carpenters could go into the shaft under the elevator and nail the boards at the bottom. Hubert testified that Ramsey said “All right.” Ramsey testified that one of them said “that I should go up out of the way so that they could finish their work.” Ramsey then raised the elevator to the first floor, where he took on some trucks, then ascended to the fifth floor, let the trucks off, and then went on up to the top floor. The counterweight, of course, descended as the elevator ascended. Schappert and Hubert went into the elevator shaft as soon as Ramsey had taken the elevator out of the basement, and while Schappert was nailing one of the boards, the descending counterweight struck and killed him.

There were four counts in the declaration as originally filed. The third count was dismissed upon the trial. The negligence averred in the first and second counts is the alleged wrongful and negligent operation of the elevator while Schappert was working at the bottom of the elevator shaft, and it is alleged that the elevator operator was not a fellow-servant of the deceased. The negligence charged in the fourth count is the alleged failure of defendant to warn the deceased that the counterweight would be operated and lowered to the base of the shaft while Schappert was at work at the bottom of the shaft.

In the reply brief of appellant’s counsel a summary of appellant’s contentions is stated as follows: “The plaintiff’s entire claim, as set out in the various counts of his declaration, is based on the assertion that there was no system and no arrangements at the time; and our argument was that those arrangements were either specific and sufficient, or they were not. If they were specific and sufficient, then the negligence in not following them was that of Bamsey, who was a fellow-servant of the deceased. If they were not specific and sufficient, then (1) inasmuch as Schappert knew that condition, he assumed the risk of working there (not of Bamsey’s negligence); (2) inasmuch as it was Schappert’s duty to make them specific and sufficient, then if they were not, Schappert was negligent also, he was guilty of contributory negligence.”

The only witnesses who testified as to what occurred at and immediately prior to the time of the accident were Hubert and Bamsey, both called by the plaintiff. Hubert testified to a definite and specific arrangement with Bamsey to the effect that Bamsey was to take his elevator up five or six feet and then wait until Hubert and the deceased could nail the boards. Bamsey testified that something was said to the effect that he should take the elevator up out of the way “so that they could finish their work.” If Bamsey understood the arrangement in the same way that Hubert understood it, then his act in taking the elevator beyond the first floor was certainly a careless and thoughtless act under the circumstances. If he did not understand the arrangement as Hubert and Schappert evidently understood it, then his act in going to the top with full knowledge on his part that Hubert and Schappert were working in such a position that they might be injured by the descending counterweight, was likewise a very careless and thoughtless act. In either view, it is clear that it was Bamsey’s negligence, in part at least, if not altogether, that caused the injury.

The question then arises, was Bamsey a fellow-servant of Schappert at the time of the injury?

In Chicago City R. Co. v. Leach, 208 Ill. 198, the rule established in this state is stated as follows, (p.205): “those are fellow-servants who are co-operating, at the time of an injury, in the particular business in hand, or whose usual duties are of a nature to bring them into habitual association, or into such relations that they can exercise an influence upon each other promotive of proper caution.” In the same case it is further said, (p. 202): “What facts will create the relation of fellow-servants * * * is a question of law, and whether such facts exist is ordinarily a question of fact. * * * If there is any evidence fairly tending to prove the required averment that they are not fellow-servants the court should submit the issue to the jury, but if there is no controversy about the facts and they bring the parties within the relation of fellow-servants so that a verdict to the contrary would not be supported by any evidence, the court should not submit the question to the jury.”

In Gathman v. City of Chicago, 236 Ill. 9, it is said, (p. 15): “The question whether the servants of a common master are fellow-servants is usually a question of fact, and never becomes a question of law unless the facts proven show such relation so clearly to exist that all reasonable minds will readily agree that such is the relation of the servants of the common master to each other.”

In Bennett v. Chicago City R. Co., 243 Ill. 420, the nature of the inquiry in such cases, and the proper functions of court and jury with reference thereto, are stated as follows, (p 428): “Whether two persons, servants of a common master in a given case, are fellow-servants is a mixed question of law and fact. * * * The definition of fellow-servants is a question of law. * * * The question of the relation of fellow-servants is ordinarily one of fact, and only becomes a question of law when there is no dispute with reference to the facts, and the evidence, with all legitimate inferences to be drawn therefrom, is such that all reasonable and intelligent men must reach the same conclusion.”

In Linquist v. Hodges, 248 Ill. 492, the same principle is again stated in the following language (p. 502): “The question whether servants of a common master are fellow-servants within the meaning of the law is usually a question of fact. If, however, the facts are not in dispute and all reasonable men would readily agree as to the conclusions which should be drawn from the admitted facts, the question whether the relation of fellow-servants exists in a given case becomes a question of law.”

From these quotations, it will be seen that before the question whether the relation of fellow-servants exists in a given case can become a question of law, two concurrent elements of proof must appear from the facts and circumstances in evidence, viz.: First, the facts must be undisputed; second, the facts shown regarding the relation must be of a nature and character so clear and unequivocal that all reasonable men will readily agree that but one conclusion can be drawn therefrom. It follows, as a necessary corollary to this rule, that even though the facts in a given case are undisputed or admitted, still, if there is room for any reasonable difference of opinion, in the minds of reasonable men, as to the conclusion to be drawn from such facts, then the question whether the relation of fellow-servants exists does not become a question of law, but remains a question of fact for the jury to decide.

Applying these principles to the facts of this record, we do not think it can be held that such facts, though undisputed, establish the relation of fellow-servants between Ramsey and Schappert “so clearly that all reasonable minds will readily agree that such relation existed,” but on the contrary, we think there is room for reasonable difference of opinion in the minds of reasonable men upon that question, and therefore, that the court did not err in submitting the question as one of fact to the jury under proper instructions.

In Gathman v. City of Chicago, supra, an employee of the bridge department of the city was taking certain measurements on a lift bridge and was seriously injured by the failure of the bridge tender’s assistants to observe and carry out an arrangement he had made with them as to lifting the bridge after he had taken one measurement, in order to enable him to take a second measurement with the bridge open. Through a misunderstanding of the arrangement thus made, the bridge was opened while Grathman was in a dangerous place and he was injured. The city contended that the bridge-tender’s assistants were fellow-servants of Grathman. In overruling this contention, the court said, (p. 15):

“Here the injured servant was performing service in one department of the city government and was sent by his superior officer to the bridge to make certain measurements, while the servants of the city causing the injury performed service in another department of the city government and were under the control of other superior officers, and the servants of the city handling the bridge had nothing to do with making the measurements which appellee had been directed to make, their duties being to care for and handle the bridge.
“The appellee and the servants of the city who caused the injury were not, therefore, at the time of the injury co-operating with each other in the particular business of making said measurements or of raising said bridge, but at the time the appellee was injured he was engaged in one employment,—i. e., in making measurements,—while the other servants of the city who caused his injury were engaged in doing an entirely other thing,—i. e., raising the bridge. The appellee and said servants were not, therefore, necessarily co-operating together at the time appellee was injured. Neither did the line of the employment or the usual duties of the appelleé and the servants of the city who operated the bridge necessarily bring the appellee and said servants into habitual association so that they might exercise a mutual influence upon each other promotive of the caution which would protect each other from an injury which might result from the negligence of each other. * * * We therefore think it clear the court properly submitted the question whether the appellee and the servants of the city who controlled the bridge at the time he was injured were fellow-servants, to the jury as a question of fact.”

The same reasoning, applied to the undisputed facts shown by the record in this case, leads to a similar conclusion. As to any alleged “co-operation in the business in hand,” the evidence here shows that whatever “co-operation” there may have been on the part of Ramsey in the particular work in hand (closing the hole in the side of the shaft) while the elevator was standing in the basement, such co-operation, if it can be called such, ceased when Ramsey took his elevator out of the way of Schappert. At the time of the injury, Schappert was engaged in one employment (carpentering) while Ramsey was engaged in performing the duties of his employment (operating the elevator) and was doing an entirely different work from the work Schappert was doing. It was the lack of co-operation at that time, between Schappert and Ramsey “in the particular business in hand,” that caused the accident. As to the second branch of the fellow-servant rule, there was no evidence tending to show that the usual duties of Ramsey and of Schappert were of such a nature “as to bring them into habitual association or into such relations that they could exercise an influence upon each other promotive of proper caution,” beyond the mere fact that the carpenters used the elevators occasionally. They were not in the same line of employment, nor subject to the orders of the same superior officer. The doing of carpenter work in or around the elevator was not a usual occurrence, but unusual and exceptional. We do not think the usual duties here shown were of such a nature, as to make them fellow-servants necessarily and as a matter of law.

It is also urged that Schappert assumed .the risk of being injured while at the bottom of the elevator shaft. The only risk there was in going into the bottom of the shaft under the ascending elevator, was the possibility that the elevator man would not follow his instructions, or in the absence of any instructions, or in case of a misunderstanding of his instructions, that he would take his elevator to the top, thereby bringing down the counterweight, forgetting or disregarding, the fact that the carpenters were at work at the bottom of the shaft. That is, the only danger was the possible negligence of Ramsey, and such negligence was not one of the ordinary risks assumed by Schappert by his contract of employment, unless Ramsey was a fellow-servant. Gathman v. City of Chicago, supra.

It is next claimed that it was Schappert’s duty to give proper instructions to Ramsey, and if he failed to do so, he was guilty of contributory negligence. The evidence of Hubert shows that both he and Schappert supposed that Ramsey fully understood the instructions given him. It cannot be said that Schappert was per se guilty of negligence in failing to make Ramsey understand or comprehend such instructions. Nor'can it be said that the evidence clearly and manifestly shows that Schappert failed to do as a reasonably prudent man in his situation would have done under the same or similar circumstances. The verdict is therefore not manifestly against the preponderance of the evidence in this respect.

We have duly considered the point made regarding the alleged errors in the admission and exclusion of evidence, and without entering into any discussion of such rulings, it will be enough to say that we see no error in the rulings of the court in that regard.

For the reasons indicated, the judgment will be affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Fitch

license: Public Domain

text:
    Catherine Agnes Coffey, Administratrix, Appellant, v. Marshall E. Sampsell, Receiver, and Chicago Union Traction Company, Appellee.
    Gen. No. 17,419.
    1. Caebiees—when wagon tongue striking passenger will not raise presumption of negligence. Where a rapidly moving street car is passing a team of unhitched horses standing between the tracks and the curb with a clear space of one foot between the horses and the car, and the horses become frightened and swing around, the wagon tongue striking a passenger, the accident is due to a cause beyond the control of the company, and a presumption of negligence will not arise.
    2. Caebiees—when motorman not negligent where wagon tongue strikes passenger. Where a rapidly moving street car is passing a team of unhitched horses standing between the tracks and a curb with a clear space of one foot between the horses and the car, and the horses become frightened and swing around, the wagon tongue striking a passenger, the motorman is not bound to anticipate the sudden fright of the horses, and there is no evidence of negligence.
    Action in case for death caused by alleged wrongful act. Appeal from the Superior Court of Cook county; the How. Paul Mo-Williams, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    William P. Black and Francis E. Croarkin, for appellant.
    Joseph D. Ryan and Frank L. Kriete, for appellees; John R. G-uilliams, of counsel.
   Mr. Justice Fitch

delivered the opinion of the court.

In this case the trial court, at the close of plaintiff’s evidence, instructed the jury to find the defendants not guilty. A motion for new trial was made , and overruled, and judgment entered against the plaintiff for costs. The plaintiff appeals and urges that there was some evidence fairly tending to sustain the averments of the plaintiff’s declaration, and therefore, the court erred in taking the case from the jury.

The negligence averred in the declaration is the alleged failure on the part of the motorman in charge of one of defendants’ street cars, on which the plaintiff’s intestate was a passenger, to stop his car or to otherwise make some effort to avoid a collision in passing a team of horses which became frightened by the approach of the car and turned towards it from the curb at which they had been standing unhitched and unattended.

It appears from the evidence (stating the facts in the light most favorable to appellant), that in July, 1907, plaintiff’s intestate was a passenger on one of defendants ’ cars going north on Halsted Street. The car was an open car and crowded, and he was standing on the rear platform. As the car approached Twentieth street several of the passengers (and presumably the motorman), saw a team of horses and an empty wagon standing between the street car tracks and the curbstone on the east side of the street, in front of a restaurant, the hordes facing southward and being unhitched and unattended. As the car passed them, the horses became frightened and swung around toward the moving car. The wagon tongue struck the middle of the ear, just above the running board, scraped along the side, and plunged into the open space above the rear platform, striking the plaintiff’s intestate on the leg and inflicting such injuries as to cause his death the next day. The car was moving rapidly at the time of the accident, and there was some evidence to the effect that the motorman did not lessen the speed of his car on approaching the team; and some evidence to the effect that he even increased the speed as, or just before, the car came opposite the team; but all the witnesses agree that there was at least a foot of clear space between the horses and the car until the horses swung around, which, was after the front part of the car had passed them.

The question thus presented is, whether this evidence “with all the legitimate and natural inferences to be drawn therefrom is wholly insufficient if credited to sustain a verdict for the plaintiff. ’ ’ Lake Shore & M. S. R. Co. v. Richards, 152 Ill. 59, 72; Libby, McNeill & Libby v. Cook, 222 Ill. 206, 210. In the last case (Libby v. Cook, supra) it is said (p. 213):

“When a motion for a peremptory instruction is made by the defendant, if the court is of the opinion that in case a verdict is returned for the plaintiff it must be set aside for want of any evidence in the record to sustain it, a verdict -should be directed. If the court is of the opinion that there is evidence in the record which, standing alone, is sufficient to sustain such a verdict, but that such a verdict, if returned, must be set aside because against the manifest weight of all the evidence, then the motion should be denied. * * * Where, as here, there is no affirmative defense, the rule applicable may be clearly expressed in these words: A verdict for the defendant should not be directed when there is in the record evidence which fairly tends to prove all the material averments of the declaration. A mere scintilla of evidence in favor of the plaintiff does not justify the court in refusing to direct a verdict, because that quantum of evidence, only, cannot be said to fairly tend to prove any material averment of the declaration.”

While it is true that “carriers of passengers for hire, though not insurers of absolute safe carriage, are bound to exercise the highest degree of care, skill and diligence consistent with the practical operation of the road and the mode of conveyance adopted” (Sandy v. Lake St. El. R. Co., 235 Ill. 194, 202), yet “the fact that a passenger on a street car, while exercising ordinary care, was struck by a passing wagon and injured, does not, of itself, raise a presumption of negligence against the street car company.” Chicago City Ry. Co. v. Rood, 163 Ill. 477; Chicago Union Traction Co. v. Mee, 218 Ill. 9, 14. If the plaintiff’s own evidence shows that the accident was dne to a cause heyond the control of the defendants, such as “the presence of vis major, or the tortious act of a stranger,” no such prima facie case is made out as will require the carrier to assume the burden of showing that it was not guilty of negligence. (Ibid.) In Barnes v. Danville Street Ry. & Light Co., 235 Ill. 566, it was held that the maxim res ipsa loquitur “does not apply upon mere proof that an accident to the passenger has happened,” but that the evidence must also show that the accident proceeded from an act of such a character “that when due care is taken in its performance no injury ordinarily results from it,” or that the accident was caused “by the mismanagement of a thing over which the carrier has either control or for the management or construction of which it is responsible.”

In this case the evidence showed that the horses, whose sudden fright caused the accident, were not under the control or management of appellees, but were owned by the Western Packing & Provision Company, and were in the care of its driver who had left them standing at the curb, and who was in the restaurant at the time of the accident; and it appears from the record in this case that the plaintiff has received a considerable sum from said Company for a covenant not to sue it for damages arising out of said accident. The only act of appellees’ servant which can be claimed to have been of such a character “that if due care had been taken in its performance” no injury would ordinarily have resulted, is the alleged failure of the motorman to anticipate the sudden fright of the horses, and to operate his car accordingly. In Chicago Union Traction Co. v. Browdy, 206 Ill. 615, where the evidence showed that a horse and wagon were left standing in the street in such a position that a car could safely pass, and remained there until the car was nearly opposite when the driver, without warning, suddenly turned upon the track in front of the car, the court said (p. 613):

“It is clear that negligence cannot be imputed to the motorman because he did not stop the car while the horse and wagon were standing near the curb and out of the line of contact with the car. The peril to appellee did not commence and become apparent until he turned upon the track. Then, and not until then, was the motorman required to act. To hold that it was the motorman’s duty to stop the car because the horse and wagon were standing near the track, although sufficiently distant to permit the car to pass in safety, would be to impose upon the appellant a duty not imposed upon it by law. * * * To require him to run his car with such caution as to guard against unusual or extraordinary perils would be to require him to so operate his car as to prevent the practical operation of the road.”

The same principle was announced in effect in Rack v. Chicago City Ry. Co., 173 Ill. 289, on appeal from a judgment upon a directed verdict for the defendant and certificate of importance granted by the Appellate Court. In North Chicago St. R. Co. v. O’Donnell, 115 Ill. App. 110, the same doctrine was applied to a case in which a passenger was injured by the sudden turning of horses in such a way that the wagon tongue crashed into the vestibule of the car, inflicting injuries which caused the death of a passenger.

Upon the facts shown in this record, and under the authorities above cited, we are of the opinion that there was no evidence fairly tending to prove any negligence on the part of the motorman.

The judgment will be affirmed.

Affirmed.


text:
    Bowes Investment Company, Appellee, v. Paul Steinlauf and Gizella Steinlauf, Appellants.
    Gen. No. 17,441.
    1. Deeds—effect of acknowledgment. Where a deed purports to be duly acknowledged under the hand and seal of an officer legally authorized to take the acknowledgment and certify thereto, the effect of the certificate as to the due execution cannot be overcome by uncorroborated evidence of the grantor, but such evidence must be supported by clear and conclusive proof which excludes all reasonable doubts.
    2. Deeds—what evidence insufficient to show forgery. A decree finding that a release deed which was duly acknowledged before a proper officer and purported to be signed by the owner of a note secured by the trust deed released, was a forgery, is not sustained where the only evidence as to the forgery was that of the grantor corroborated only by the fact that he had possession of the trust deed, which had never been canceled, but the release deed did not purport to release all the property described in the trust deed nor all the debt secured thereby.
    3. Mortgages—credit on mortgage debt when part of property released therefrom. Where four-fifths of property described in a trust deed is released by the owner of the note without reduction of the indebtedness and with knowledge that there have been successive conveyances of parts of such premises and the one-fifth remaining is scant security for the debt, a purchaser of such one-fifth is entitled to credit on the mortgage debt of a sum equal to the value of the property released.
    Appeal from the Circuit Court of Cook county; the Hon. Richard S. Tuthill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 29, 1912.
    Detlenbaok, Riese & Cody, for appellants; Kraus, Alschuler & Holden, of counsel.
    Mather & Hutson, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

This is an appeal from a decree in a forceclosure suit. The defense in the court "below was that the trust deed upon which the suit was based had been released as to the property of appellants by a deed executed by the trustee, duly acknowledged and recorded. The chancellor found in favor of appellee (the complainant) and entered a decree accordingly. On this appeal, the main points urged are that the findings and decree are not sustained by sufficient evidence, and that the decree is otherwise inequitable and unjust.

It appears from the evidence that in October, 1900, one George W. Dawes executed his promissory note for $2,000, payable to his own order and by him endorsed in blank, due two years after the date thereof, with interest at six per cent., and to secure the same executed and delivered a trust deed conveying four lots in Chicago to Edwin J. Bowes, Jr., as trustee. Appellee is an Illinois corporation, and said Bowes was its president. Appellee became the owner of the note above mentioned and said Bowes and his brother became the owners of the four lots, subject to said incumbrance. In March, 1901, the lots were transferred, without any cash payment, to Nathaniel Beardsley, who re-subdivided the four lots into five, and built a house on each of the re-subdivided lots. For this purpose, appellee loaned to Beardsley $2,800 each on four of the lots, and $3,000 on the fifth, for which he gave his notes, payable five years after date, and secured the same by trust deeds on the respective lots. Appellee sold these notes to its customers. The $3,000 note, secured by trust deed on lot 5 of Beardsley’s re-subdivision, was sold to a Mrs.. Bohrer as a first mortgage. To make it such, appellee and Edwin J. Bowes, Jr., as trustee, on April 2, 1901, executed an agreement in writing (called a “subrogation agreement”) by the terms of which the lien of the Dawes note and trust deed for $2,000 was made “subject and subordinate” to that of the note and trust deed sold to Mrs. Bohrer. The record shows that by two deeds dated, acknowledged and recorded in April, 1901, and in August, 1901, respectively, all of the property covered by the Dawes trust deed was released therefrom except the south 22 feet, which is the part covered by the trust deed sold to Mrs. Eohrer, and now known as lot 5 of Beardsley’s re-subdivision. These release deeds recite a consideration of “one dollar and other good and valuable considerations,” but Bowes testified that nothing was ever paid to, or received by appellee, as a consideration for either of said release deeds.

The record further shows that subsequent to the execution and delivery of the note and trust deed which was sold to Mrs. Eohrer, lot 5 was sold to Ann Eliza Westcott, who, on October 7, 1901, executed her notes for $600', payable 1, 2 and 3 years respectively after date, and to secure the same, executed her trust deed conveying said lot 5 to Edwin J. Bowes, Jr., as trustee, which trust deed recited that it was subject to a prior trust deed for $3,000, but made no mention of the Dawes trust deed for $2,000. These notes of Mrs. Westcott were apparently paid in due course, and cancelled.

The record also shows that on January 10, 1907, there was filed for record a release deed, purporting to be signed on August 1, 1906, by Edwin J. Bowes, Jr., as trustee, and purporting to be acknowledged by him on the same date before John H. Londrigan, a Notary Public of Cook County, Illinois, and purporting to release said lot 5 from the lien of said Dawes trust deed. The record also shows that appellants became the owners of said lot 5 subsequent to the date of the record of said release deed.

It further appears that although the Dawes note for $2,000 was by the terms thereof due and unpaid in October, 1902, and although there was also (apparently) then due and unpaid six months’ interest thereon, appellee took no steps to collect the same, or to enforce the lien of the trust deed securing the same, until this bill was filed in November, 1909. Bowes explained the delay by stating that he had several times promised Mrs. Eohrer that he would do nothing “until she got her money out of it first.” In July, 1909, Mrs. Rohrer brought a foreclosure suit against the then owners of lot 5, but a month later she was paid in full and the suit was dismissed. In November following, appellee filed this bill to enforce its lien under the Dawes trust deed, against lot 5 only, alleging that the remainder of the property described in thó trust deed had been released in 1901, that nothing had been paid on the principal note, that no interest had been paid after the maturity of the third interest coupon, that there was due for principal, $2,000', and for accrued interest, $1,069.40; and solicitors’ fees, and that the premises were scant security for such indebtedness and costs.

Upon the hearing a certified copy of the release deed of August 1, 1906’, was offered in evidence. Counsel for defendants also offered to show that the original was not to be found, but appellee’s counsel stated that he “had no objection to a certified copy,” and for that reason proof of the loss of the original was dispensed with. Edwin J. Bowes, Jr., testified that he had never signed, executed or delivered such a release deed, and had never seen the original, nor the record thereof; that the Dawes note and trust deed had been in appellee’s possession since it was delivered by Dawes in 1900, and nothing had been paid thereon except eighteen months’ interest. He further testified that Londrigan, the notary whose signature and seal were attached to the purported acknowledgment of the release deed, was and had been for fifteen years, employed in his office.

At the close of the evidence, the "court remarked that “Mr. Bowes is a man of standing in the community. Somebody has been committing a crime. There has been a forgery committed here, or perjury on the part of Mr. Bowes, which I cannot for a moment think of.” On this view of the evidence the court entered a foreclosure decree as prayed in the bill of complaint, finding in terms that Bowes “did not sign the release deed purporting to be the release of said lot five,” and directing the sale of lot 5 on default of payment by appellants within five days of the whole amout due on the Dawes note, with interest, costs and attorneys’ fees amounting to $3,411.

We do not think that the decree of the court below can be sustained upon the facts contained in this record. The evidence relied on by appellee as tending to prove that the release deed of August 1, 1906, is a forgery, is the testimony of Mr. Bowes alone, uncorroborated by any fact or circumstance other than the fact that he had possession of the Dawes note, which had never been cancelled. The law - is well settled that where a deed purports to be duly acknowledged under the hand and seal of an officer authorized by law to take such an acknowledgment and to certify thereto, the effect of the officer’s certificate as to the due execution of the deed cannot be overcome merely by the uncorroborated evidence of the grantor, but in such case, the grantor’s denial must be supported by evidence so clear, satisfactory and conclusive in its nature as to exclude every reasonable doubt. In Strauch v. Hathaway, 101 Ill. 11, a bill in equity was filed to set aside a trustee’s sale and to have a homestead assigned out of the property sold, upon the alleged ground that the deed of trust contained no waiver of the homestead by the wife of the grantor. It was admitted that the deed of trust was signed by the wife as well as the husband, and the certificate of the magistrate was in due form, showing a release and waiver of the homestead by both. It was claimed that as a matter of fact, however, the husband went alone to the house of the magistrate, and that the wife was not present in his office at any time. Witnesses were heard ivho testified on both sides of this claim. The court there stated the rule in such cases to be as follows (p. 15):

“While we hold the certificate shall not be deemed conclusive in any case so as to 'cut off all inquiry, yet where there is no evidence of fraud, conspiracy or over-reaching of any kind, or anything casting a suspicion upon the integrity or honesty of the certifying officer, and the certificate of acknowledgment is in conformity with the statute, it cannot he impeached by merely negativing the facts therein stated. Monroe v. Poorman, 62 Ill. 523; McPherson v. Sanborn, 88 Ill. 150; Russell v. Baptist Theological Union, 73 Ill. 337.
“Where the controversy is between the former owner and an innocent purchaser, as in the present case, before the title of the latter can be thus impeached the evidence should be clear and conclusive, excluding every reasonable doubt.”

In another part of the opinion the court said:

“Under such circumstances, nothing but the most clear and satisfactory evidence would warrant us in declaring the certificate of the justice a forgery, and thereby defeating the title of the purchaser at the trustee’s sale, who in good faith paid his money for the premises, relying upon the genuineness and truthfulness of the certificate. If landed titles could be set aside and defeated upon a mere conflict of verbal testimony, like that presented in the present case, without any evidence tending to establish fraud or conspiracy, no one could know, with any degree of assurance, when he would be safe in buying a title of any kind, and the general confidence in titles of record would soon be destroyed.”

In Gritten v. Dickerson, 202 Ill. 372, a bill was filed for the cancellation of a deed purporting to have been executed by Gritten and his wife, conveying 640 acres of land. Upon proof of the loss of the original deed, a certified copy thereof was offered in evidence, and the wife of Gritten testified that she had never signed the deed, and could not write her name. The notary was dead at the time of the trial, but three witnesses, one of whom was disinterested, testified that she was present when the deed was signed and requested the notary to sign her name and then made her mark upon the deed. Upon these facts the court said (p. 376):

“The certificate of the notary, that the deed was duly acknowledged by the appellant is such evidence of its execution as cannot be overcome by the testimony alone of the appellant, one of the grantors in the deed. This court has held that the uncorroborated testimony of the grantor, or party executing a deed, is not sufficient to overcome the evidence afforded by the officer’s certificate of acknowledgment. Clear and satisfactory proof is required to impeach a certificate of the acknowledgment of a deed. It is not sufficient that the testimony of a grantor as to the non-execution of the deed should be slightly corroborated. The proof, to sustain the charge that such certificate of acknowledgment is untrue and fraudulent, ‘must be of the clearest, strongest and most convincing character, and be by disinterested witnesses.’ (Sassenberg v. Huseman, 182 Ill. 341, and cases there referred to; Oliphant v. Liversidge, 142 Ill. 160, and cases there referred to; Davis v. Howard, 172 Ill. 340.) In Russell v. Baptist Theological Union, 73 Ill. 337, we said (p. 341): ‘It is a rule that the acknowledgment of a deed cannot be impeached for anything but fraud, and, in such cases, the evidence must be clear and convincing beyond a reasonable doubt. ’ ”

It is, however, urged that the possession of the note and trust deed by Bowes is a fact, which strongly corroborates his testimony. We cannot agree with this view. The release deed in question did not purport to release all the property described in the trust deed, nor all the indebtedness secured thereby. It would be unreasonable to assume that the legal holder of a note would surrender it upon the payment of only part of the amount due thereon, or upon the execution of a partial release of the security. If it be said that this was the last or final release, still it does not follow that the notes would therefore be surrendered to the owner of one part only of the property affected. The trustee in such case would naturally be the proper custodian of the note. Moreover, it appears that nothing was paid on the note when the prior releases were given and the last release does not purport to have been given in consideration of the payment of the whole debt.

This fact suggests another vital objection to the decree, even if it were proved beyond a reasonable doubt that the last release deed was a forgery. It appears that appellee, through its officers, had full notice of the fact that after the Dawes trust deed was executed and delivered, the property thus mortgaged was sold in separate lots to divers purchasers. It appears further, as above stated, that by the prior releases, four-fifths of the property described in the Dawes trust deed was released from the lien thereof by the voluntary act of the trustee, with the knowledge and consent of appellee, without the payment by anyone of any amount whatsoever to be applied on account of the indebtedness secured thereby. There is evidence that each of the parcels so released was of some value at least, but no allowance or credit was made for the value of such lots.

In Boone v. Clark, 129 Ill. 466, it is said, (p. 482):

“And-if the mortgagee, having notice of successive alienations of parts of the mortgaged premises, releases a part then liable for the payment of the debt, he can not charge the other portions of the premises without first deducting the value of the parts released. (2 Jones on Mortgages, sec. 1631.) ”

This point is only hinted at, rather than insisted upon, in appellants’ briefs, but as it goes to the merits of the case, we cannot disregard even the hint. It would be clearly inequitable to permit appellee, for purposes of its own and without making any credit upon or reduction of the indebtedness, to release four-fifths of the security with full knowledge of the fact that there have been successive conveyances of parts of the premises, and then charge the remaining fifth with the whole indebtedness. Especially is this true where, as here, the part thus remaining is alleged to be scant security for the payment of the debt. The authorities are clear that under such circumstances, the purchaser of the part remaining is entitled to a credit upon the mortgage debt of a sum equal to the value of the property released. Hawhe v. Snydaker, 86 Ill. 197; Ames v. Witbeck, 179 Ill. 458; Boone v. Clark, supra.

For the reasons indicated, the decree of the Circuit Court will be reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.


text:
    Vincent Bendix, Appellant, v. Staver Carriage Company, Appellee.
    Gen. No. 17,460.
    1. Agency—what contract does not create. A contract does not create an agency, though it is1 entitled “Agency Agreement” and purports to grant to plaintiff an exclusive right to sell defendant’s motor cars in a specified territory for a certain time, where plaintiff is prohibited from making contracts or sales in defendant’s name or behalf, or for its account, and must pay cash for cars on delivery, and defendant may collect from plaintiff’s customers only on request and must immediately turn over the difference.
    2. Contracts—mutuality. A contract is mutual and binding on both parties thereto where it is apparent that plaintiff’s agreement to maintain a sales office, to buy one of defendant’s motor cars and keep it as a sample, and to use all reasonable efforts to sell such cars, formed an important part of the consideration for defendant’s promises to furnish cars, to give an exclusive territory and to give a discount on all sales made therein by either plaintiff or itself.
    3. Contracts—what not an option contract. A contract is not void as an “option” contract under Crim. Code, § 130, where it provides for the sale of one motor car to plaintiff as a sample and for the sale of additional cars as he sells them to his trade within a specified time at a certain price, though plaintiff is given a “first refusal” on a certain number of cars a month, since such provision is incidental to the main transaction.
    4. Contracts—when agreement is offer which cannot he withdrawn. "Where a contract provides for the sale of one motor car to plaintiff as a sample and of additional cars as he is able to sell them to his trade within a definite time at a certain price, the agreement is to be construed as an offer which, when accepted, becomes binding, but it is not a continuing offer which may be withdrawn by the seller at any time as to the part not accepted, where plaintiff relying on the whole contract makes large expenditures and devotes time to building up a reputation and thereby creates a demand for the cars.
    5. Pleading—what averment of tender of performance of contract sufficient. There is a sufficient averment of tender of performance of a contract as against a general motion to strike out the claim as "unfounded in law,” where such contract provides that plaintiff must take delivery or make deposit on a certain number of motor cars within a specified time and the statement of claim in the language of the contract specifies that plaintiff either took delivery or made deposit on such number within the time.
    6. Pleading—statement of performance of contract. Though a statement of claim for breach of contract does not show that plaintiff ordered a certain number of cars within a time specified by the contract, the court is not authorized to strike out the claim and dismiss the suit where it appears from the statement that plaintiff claims that defendant sold cars in his territory prior to the date fixed and thereby became liable to him for commissions.
    Appeal from the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Reversed and remanded.
    Opinion filed November 29, 1912.
    Brothers & Mills, for appellant.
    Bulkley, Gray & More, for appellee.
   Mr. Justice Fitch

delivered the opinion of the court.

After the appellant (plaintiff below) had filed a second amended statement of claim in the Municipal Court, that court, on motion of defendant, struck out such statement and dismissed the suit, on the ground “that the plaintiff’s said claim is clearly unfounded in law. ’ ’' The question presented here is whether said amended statement of claim states a cause of action.

Said statement recites that the defendant is - an Illinois corporation, having its principal place of business in Chicago; that on April 15, 1909, the plaintiff and defendant entered into a contract in writing, a copy of which is attached to the statement of claim. Said contract is entitled “Agency Agreement” and provides that in consideration of one dollar and “the mutual covenants and agreements herein contained the parties hereto do mutually covenant and agree” as follows, in substance:

The Carriage Company on its part “grants and extends” to Bendix “the exclusive right to sell their Staver motor cars and chasses” in Chicago and all territory within fifty miles thereof “upon the following terms, namely: $50 cash deposit per car with each order, the balance being payable at the time delivery is made,” less a discount of thirty per cent, from the regular list or catalogue price; said agreement to continue in force from the date thereof until September 30, 1910, unless sooner terminated by the company for a violation of any of its provisions.

Bendix, on his part, “agrees to pay for such motor cars upon the terms aforesaid;” to maintain a sales office in Chicago, and to keep in stock one car “as a sample to be used for exhibition or demonstration purposes;” to give the said Staver cars “at least equal representation” with any automobile handled by him; to “faithfully represent the same, and to use all reasonable effort to promote and increase their sale,” and not to sell any of such cars outside of the specified territory without the company’s consent; also “to take delivery of or make deposit on a total of at least ten Staver motor cars on or before the 31st day of December, 1909, otherwise this agreement shall immediately thereafter become null and void. ’ ’

The agreement further provides that on all orders up to and including June 15,1909, Bendix is to give the company at least forty-five days’ notice prior to the date any car is “wanted for delivery,” and after that date ‘ orders are to be filled with reasonable promptness ; ’ ’ that between June 15, 1909, and December 31, 1909, Bendix is to have “the first refusal of at least five motor cars each month,” and between January 1, 1910, and September 30, 1910, he is to have “the first refusal of at least ten motor cars each month;.” also that the company, on the request of Bendix, “will collect from any customer of the latter” whatever amount or balance may be due him and at once remit to him the difference between the amount due to the company on the car sold and the amount collected from the customer therefor; also that the company will endeavor, so far as possible, to “protect the interest of Bendix against any other dealer selling said Staver motor cars in territory assigned to” him, and to “reimburse” him “to the extent of commissions or discounts herein provided” on any Staver motor cars sold by the company in his territory, except that the company reserves the right to sell one car to each of four named persons living in Chicago.

The agreement further states that “it is expressly understood and agreed” that Bendix “is not in any manner authorized or empowered hereunder to conduct business in the name of or for the account of” the company, “nor in their name, nor upon their behalf to enter into contracts with or bill goods to third persons, except as herein otherwise provided, nor in their name nor upon their behalf to make promises or representations with respect to goods other than is contained in the catalogue and literatiire” issued by the company.

After reciting this contract, the plaintiff’s statement of claim then avers, in substance, that in pursuance thereof, plaintiff at once opened a sales office in Chicago and maintained the same during the life of said contract, at an expense of $2,200; that plaintiff gave the said Staver motor cars exclusive representation and faithfully represented the same, by devoting all his time, efforts and energy to promoting the interests of said motor car, and creating a reputation therefor, and by employing assistants, agents and servants at great expense, to the knowledge of defendant, ánd with its advice, consent and co-operation; that he used all reasonable efforts to promote and increase the sale of said ears by advertising, calling npon prospective buyers, demonstrating, and otherwise, at an expense to him of more than $1,000; that he at once gave an order to defendant, with a deposit of $50, for the manufacture and delivery to him of one car to be kept in stock as a sample and to be used for exhibition and demonstrating purposes, and when ready for delivery, he accepted it and paid for the same the sum of $1,200; that during the life of the contract, to the knowledge of defendant, plaintiff kept said car in stock as a sample and used it for exhibition and demonstrating purposes, at an expense of more than $100 a month; that on or before December 31, 1909, plaintiff “either took delivery of or made deposit on a total of at least ten of defendant’s motor ears, that is to say, “that prior to December 31, 1909, plaintiff sold, took delivery of, and paid for five of defendant’s cars, and on that date plain tiff,“in pursuance of the terms of said contract, offered and tendered to the defendant the sum of $250 legal tender, lawful currency of the United States of America, as a deposit, under the terms of said contract, on five of defendant’s motor cars,” which deposit, however, defendant refused to accept; that plaintiff did not conduct business in the name of or for the account of the defendant, nor enter into any contracts nor bill any goods to third persons in its name, nor make any promisés or. representations with respect thereto other than as contained in defendant’s catalogue; that plaintiff at all times performed, and was ready and willing and offered to perform, all the covenants required by said contract to be performed by him, but that defendant at no time lived up to the terms thereof; that defendant did not deliver to plaintiff’s customers any car within the time specified, but invariably delayed delivery, and at no time gave to plaintiff the discount agreed upon, but on one pretext or another made some extra charge in every case of sale, which plaintiff paid rather than lose the sale; that about November 1, 1909, defendant refused to perform any part of said contract, and refused to deliver any car to the plaintiff, or his order, unless plaintiff would consent to a reduction of the commissions and discount to be allowed to him, and also to a reduction of the territory in which he was to have the exclusive sale of said cars; and that on January 2, 1910, defendant arbitrarily, and without right, pretended to cancel the contract, and thereafter refused to recognize it in any way. The statement then avers that by reason thereof, plaintiff was hindered from selling a great many, to-wit, 40 cars, on which his discounts and commissions would have been $500 per car; also that defendant, during the life of the contract, sold and delivered in his territory a great many, to-wit, 50 cars, upon which he is entitled to commissions amounting to $500 per car. The statement further avers that by a supplemental agreement, made May 14th, 1909, the rate of discount was changed from thirty per cent, to “20 and 10 per cent, figured according to the usual custom,” from the list or catalogue price of such cars.

In support of the judgment of the court below, appellee’s counsel maintain, in substance, that the agreement set out in the statement of claim does not create any agency but is merely a contract of purchase and sale; that when so construed, it is void for want of mutuality, and also because “it is a contract for an option” in violation of section 130 of the Criminal Code; and that even if it was a valid contract, the plaintiff’s statement of claim fails to show that it was not “automatically terminated” by a failure, on plaintiff’s part, to purchase, or become liable for the purchase, of at least ten cars on or before December 31, 1909.

We are disposed to agree with the contention that the contract does not create an agency. While it is true that it is entitled “Agency Agreement,” and while it is also true that it purports to “grant” to the plaintiff an exclusive right to sell defendant’s motor ears in a specified territory for a specified period of time, yet most, if not all, of the other provisions of the contract are wholly inconsistent with, and repugnant to, any theory of agency. For example, Bendix is required to open a salesroom, to keep therein a sample car, and to use all reasonable effort to promote sales'; but he is expressly prohibited from making contracts or sales in the name of the defendant, or for its account, or even “in its behalf.” He is given the “ex: elusive right to sell” Staver cars in the prescribed territory, but he must “pay for such ears upon the terms aforesaid,” viz.: cash on delivery. Even the sample car is required to be so paid for in advance. Defendant agrees that it will collect from any customer of Bendix the amount coming to him upon any car sold, but is only to do this upon his request, and in such case it must “at once turn over” to him the difference between the amount due from him to defendant on such car and the amount paid by the customer. In order to keep the contract alive after December 31, 1909, Bendix is required to “take delivery of or make deposit on” i. e. to purchase) at least ten cars on or before that date. It is apparent from these provisions, that the parties intended that Bendix should not act as the agent of defendant in making sales, but should act entirely for himself, in his own name and on his own responsibility; that he should buy outright from the defendant and pay cash on delivery for all such cars as his trade would require, which should not be less than ten cars during the period prior to January 1, 1910. The mere fact that the parties entitled their agreement an “Agency Agreement” does not make it such, even when followed by a grant of an exclusive right to sell, where it appears from the whole contract that the parties intended that the title to the property involved should pass to the alleged “agent” upon delivery. Alpha Checkrower Co. v. Bradley, 105 Iowa 537; Heywood v. Doernbecher Mfg. Co., 48 Ore. 359; Mack v. Drummond Tobacco Co., 48 Neb. 397; Peoria Mfg. Co. v. Lyons, 153 Ill. 427.

As to the question of mutuality, it is claimed by appellee’s counsel, that although by the terms of the contract the defendant was bound, the plaintiff was not bound, and, therefore, it is said the contract is purely unilateral and void. It is urged that although by the terms of the contract defendant gave to Bendix an exclusive right to sell its motor cars in certain territory for a certain period and for a certain price, and also agreed to give him a specified discount on all sales made, either by himself or by defendant, during that time within such territory, yet the plaintiff on his part agreed to do nothing except at his election. We do not so construe the contract. Bendix expressly agrees to maintain a sales office in Chicago, to buy from the defendant and pay for one of its motor cars, and keep it “in stock as a sample to be used for exhibition or demonstration purposes,’"’ and to use all reasonable effort to promote the sale of defendant’s cars. In view of the evident scope and purpose of the whole contract, it is apparent that these promises on the part of Bendix formed a very important, if not the most essential, part of the consideration for the promises of the defendant. The performance by Bendix of this part of the agreement necessarily involved the expenditure by him of both time and money in very considerable amounts. He could neither evade the performance of these undertakings on his part, nor elect not to perform them, without at once incurring a liabliity to the defendant for a breach of his contract. They were good and valuable considerations, and we are of the opinion that the contract was therefore mutual and binding on both parties thereto.

It is next claimed that the contract is an “option” contract and void under section 130 of the Criminal Code, and the case of Schneider v. Turner, 130 Ill. 28, and similar later cases are relied on. In Schlee v. Guckenheimer, 179 Ill. 593, the same claim was made as to a contract by which Guckenheimer sold to Schlee “five cars of sample B barley at 62 cents a bushel, and five cars of sample 0 barley at 57 cents a bushel,” with a further provision that if the samples are found satisfactory “Schlee has the privilege to order 10,000 bushels more of each grade same price, any time to December 31, 1887.” As to the first part of the contract, relating to the sale of the samples, the court held it to be a contract of sale; and as to the privilege of ordering more of the same kind as the samples, the court said that this clause “is a mere offer to sell 10,000 bushels each of two different grades of barley, according to sample, at a specified price for each grade, the offer to be accepted by a specified time. The clause does not constitute a contract for an option, such as that in Schneider v. Turner, 130 Ill. 28. * * * This proposition or offer is similar to everyday business transactions among the people of this state with reference to every character of commodities purchased for use. The offer to sell such a commodity at a specified price, if accepted by a specified time, does not constitute a violation of the statute. Its acceptance within that time is not prohibited or made a criminal offense, but is an every-day transaction- necessary in carrying on business. There is nothing in this contract that is prohibited by the laws of this state and hence it is not void.” The same reasoning was applied, in Kantzler v. Bensinger, 214 Ill. 589, to a contract of sale of the controlling interest in a corporation containing a provision to the effect that the purchasers of the interest would also buy 400 shares of stock retained by the sellers, at a certain price at the end of five years, if the latter then desired to sell. The court there said (p. 596): “There is nothing immoral or illegal in that feature of the contract or anything therein which partakes of the nature of a gambling contract, and we see no reason why it should not be enforced if the plaintiffs, or either of them, accepted its provisions as to said unsold shares of stock at the expiration of the five years by offering to deliver to the defendants all of the stock or the part owned by either of the plaintiffs. True, the parties to whom the offer was made had the right to accept or reject the offer. When accepted, however, it became a binding contract, and such a contract as the courts will enforce.”

In fhe present case, the parties made a definite contract for the purchase and sale of at least one motor car as a sample, with the further agreement on the part of the seller to sell to the purchaser such additional motor cars as the latter might be able to sell to his trade within a definite time at a stipulated price per car. There is nothing in this, that partakes, in any manner, of the character of a gambling transaction, and under the authorities above cited, the agreement must be construed as an offer, which, when accepted became a binding contract, for the sale and delivery to Bendix of the number of motor cars included in the acceptance.

But it is said that this contract contains a continuing offer, and that even if good as to the part accepted, it may be withdrawn at any time as to the part which was not in terms accepted. In view of the averments in the statement of claim to the effect that plaintiff, relying upon the whole contract, made large expenditures and devoted much time to building up a reputation, and thereby creating a demand, for defendant’s machines, we do not think defendant would have any lawful right to thereafter withdraw its offer without liability for actual damages, if any, except for the reasons stated in the contract,—i. e., for violation of any of its provisions.

As to the claim that the giving of a “first refusal” of a certain' number of cars per month constitutes an illegal option, the rule is well settled that where an option feature of this sort is found in a contract containing other provisions, and is only incidental to the main transaction, if the latter is a legitimate business transaction, the option is not illegal. Kantzler v. Bensinger, supra; Wolf v. National Bank of Illinois, 178 Ill. 85; Minnesota Lumber Co. v. Whitebreast Coal Co., 160 Ill. 85; Osgood v. Skinner, 211 Ill. 229.

It is last claimed that the plaintiff’s statement of claim does not show that Bendix ordered a total of at least ten cars within the time limited by the contract, and that therefore it must be assumed that the contract ceased by its own terms to have any effect or force after December 31, 1909. If this were true, it would not authorize the court to strike out the statement altogether and dismiss the suit, for the reason that it appears from the statement that the plaintiff claims that defendant itself sold cars prior to that date in. the territory assigned to plaintiff, and thereby incurred a liability to plaintiff for discounts or commissions thereon. We think, however, the objection to the statement is not well taken. It states, in the language of the contract, that on or before December 31, 1909, plaintiff “either took delivery of or made deposit on a total of at least ten of defendant’s motor cars.” This is sufficient as an averment of a tender of performance on the part of plaintiff, as against a general motion to strike out the whole claim as “unfounded in law.”

After due consideration of the points and authorities submitted to us, we think the plaintiff’s second amended statement of claim states a good cause of action and that therefore the court erred in striking it out and dismissing the suit. We refrain from discussing the proper measure of damages in such a cause of action, as we do not regard that question as properly before us at this time.

The judgment of the Municipal Court will be reversed and the cause remanded.

Reversed and remanded.


author: Mr. Justice McSurely

text:
    Hill Construction Company, for use of The Reddy Roofing Company, Defendant in Error, v. Chicago, Rock Island & Pacific Railway Company, Garnishee, Plaintiff in Error.
    Gen. No. 16,780.
    1. Appeals and ebbors—6ill of exceptions. Where in garnishment the court makes certain findings from the answer of the garnishee and the “admissions of counsel;” the admissions of counsel made in open court are presumed sufficient to sustain the findings of the trial court where there is no bill of exceptions on file.
    2. Municipal court—admissions of counsel. Under the Municipal Court Act, § 48, in a fourth class case in the Municipal Court, the admissions of counsel need not be under oath.
    3. Municipal courts—judgment. The question as to whether in a fourth class action the Municipal Court has power to enter judgment against the garnishee for an amount in excess of $1,000, is not a jurisdictional question, but a question as to the form of a judgment, which should be raised in the trial court and cannot be raised on a petition for rehearing on appeal.
    Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the October term, 19.10.
    Affirmed.
    Opinion filed October 3, 1912.
    Opinion refiled on rehearing November 14, 1912.
    Charles T. Schwartz, for plaintiff in error ; M. L. Bell and T. B. Beman, of counsel.
    William Kan Steele and Clarence J. Silber, for defendant in error; Clarence J. Silber, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is a suit in garnishment, brought by the Hill Construction Co., for the use of The Reddy Roofing Co., against the Chicago, Rock Island & Pacific Railway Co., upon a judgment theretofore obtained by The Reddy Roofing Co. against the Hill Construction Co. for $187.57. The Railway Company filed an answer with a copy of the contract between the Hill Construetion Co. and the Railway Company attached. The cause coming before the trial court, it made certain findings of fact “from a consideration of the answer of said garnishee and the admissions of counsel now here made in open court on behalf of said garnishee,” and upon such findings judgment was entered against the garnishee.

There is no bill of exceptions in the record. We, therefore, must presume that the admissions of counsel made in open court on behalf of the garnishee were sufficient to sustain the findings of the trial court. Blair v. Ray, 103 Ill. 615; Barger v. Hobbs, 67 Ill. 592; Miller v. Glass, 118 Ill. 443; Boyles v. Chytraus, 175 Ill. 370.

This is a case of the fourth class in the Municipal Court, and the admissions of counsel need not be under oath. Illinois Statutes, Chapter 37, Municipal Court, Section 48.

“It has been repeatedly held that an attorney may admit facts on the trial.” Wilson v. Spring, 64 Ill. 14, 18; Meriden Hydro-Carbon Arc Light Co. v. Anderson, 111 Ill. App. 449; Leahy v. Stone, 115 Ill. App. 138.

No error appearing upon the record, the judgment will be affirmed.

Affirmed.

A petition by plaintiff in error for a rehearing having been allowed, there is now presented to this court a question as to the form of the judgment entered by the trial court. It is suggested that, this being a fourth class case, the Municipal Court had no power to enter judgment against the garnishee for an amount in excess of $1,000, even though the judgment of the Beddy Boofing Company was for less than $1,000; and it is claimed that this being a jurisdictional question, it can be raised at this stage of the proceedings, although not raised before.

We are of the opinion that this is not a jurisdictional question, but merely a question as to the form of the judgment, which should have been raised' in the trial court. It comes too late upon a petition for a rehearing.

The opinion heretofore rendered is refiled and the judgment affirmed.

Affirmed.


text:
    Torger Mithen, a minor, by John Alson his next friend, Appellee, v. Charles T. Jeffery and Harold Jeffery, Appellants.
    Gen. No. 17,376.
    1. Master and servant—failure to warn inexperienced employee. In a personal injury action, where the jury find the ignorance and inexperience of the plaintiff, a minor, was such that he failed to appreciate the danger in oiling a machine as indicated by the foreman, it was the duty of defendant to warn him of such danger, and failure to do so is negligence.
    2. Pleading—need not prove each, count. In order to recover it is only necessary to prove one count in the declaration if that count is sufficient.
    3. Jury—questions permissible on voir dire examination. In a personal injury action where a venireman discloses in answer to proper questions that he is an officer of an accident insurance company, it is not error to allow further questions to ascertain if he is interested in the casualty company conducting the defense.
    4. Damages—when verdict not excessive. In an action by a minor for the loss of an arm, a verdict for $15,000 does not, because of the amount, warrant the conclusion that it was the result of passion or prejudice.
    Gridley, P. J., dissenting.
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Fablin Q. Ball, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Rehearing denied December 12, 1912.
    Frank M. Cox and B. J. Fellingham, for appellants.
    Tinsman, Rankin & Neltnor and Johnson & Belasco, for appellee; Joel Baker, of counsel.
   Mr. Justice McSurely

delivered the opinion of the court.

This is an action of trespass on the case for personal injuries received by Torger Mithen, a minor, hereinafter called plaintiff, while in the employ of Charles T. Jeffery and Harold Jeffery, hereinafter called defendants. The plaintiff lost his left arm. The jury returned a verdict for the plaintiff, assessing the damages at $15,000. Plaintiff remitted $5,000 and judgment was entered for $10,000, which defendants ask this court to reverse. Plaintiff was injured while oiling a milling machine in defendants’ plant in Kenosha, Wisconsin. Photographs and portions of the machine, included as exhibits in the record, give a fairly clear indication of its character. Briefly described, the machine consisted of a shaft about eighteen inches long and one and one-half inches in diameter, upon which were cutting wheels six inches in diameter and about three-fourths of an inch across the face. On the face were cutting lmives about three-fourths of an inch deep. The number of cutting wheels placed upon-the shaft was changed according to the work to be done. Sometimes there was only one cutting wheel, but at the time of the accident there were four. These cutting wheels, revolving with the shaft, were used for cutting steel or other metals. Just above the revolving wheels was an arbor support, and the top of the wheels revolved towards this arbor with a speed of about thirty revolutions a minute. The tops of the wheels apparently came close to the arbor. Plaintiff’s left hand was caught between the under side of the, arbor support and the cutting wheel which was nearest the right end of the shaft as the plaintiff faced the machine. This wheel was about one and one-fourth inches from the right end of the shaft, and about four inches from the arbor support at the side. In this end was a small hole running on a center pin attached to the body of the machine. Plaintiff was injured while attempting to oil this center pin.

The averments of negligence in the various counts of the declaration under which evidence was introduced are: 1, that the defendants by their foreman negligently ordered the plaintiff to oil said machine while in motion, and that he was injured while obeying said order; 2, that plaintiff was a minor and ignorant and inexperienced, whereby it became the duty of defendants to warn him of the danger of working upon the machine in its alleged defective condition; 3, that the milling machine which plaintiff was operating was out of order, in that the knives of the machine wabbled and the machine jerked and shook. To the averment that plaintiff was a minor, ignorant and inexperienced, and that therefore there was a duty upon defendants to warn him of the danger when they ordered him to oil the machine, which duty was not performed, the defendants’ reply that the evidence shows that the plaintiff was of sufficient age and intelligence to know and appreciate the danger to which he was exposed, and he must therefore be held to have assumed the risk of such dangers if they were obvious or if he had equal means with his employer of knowing such danger. The evidence before the jury was that plaintiff was born in Norway, where he went to school and farmed, and had never worked there around machinery. He came to this country when seventeen years of age, worked on a farm in Wisconsin about a year, then at a lamp factory in Kenosha, Wisconsin, for five or six months, then went to work for the defendants and worked for them eleven or twelve days before the accident happened; that before he started to work for defendants he had had no experience with machinery and was then about eighteen and one-half years old. He was first placed to work by defendants on a small drill press, drilling small holes in small pieces of metal; then on vise filing gears, and worked at that about four days, and was then placed to work on the milling machines. Plaintiff testifies that before that time he had never seen that kind of a machine. He worked on two machines. The machines were in charge of a mechanic named Herstedt, who adjusted them, and all the plaintiff had to do was to place the material in the machine and start it going. Up to the morning of the accident he worked with only one cutting wheel on the machine, but on that morning Herstedt changed one of the two machines so that instead of only one cutter on the shaft there were four cutters, and also instead of light castings that plaintiff had been milling he was given heavy steel yokes to be milled. Plaintiff worked on the machine with four cutters from nine or ten o’clock until a little after one o’clock, with the exception of the noon hour. At this time plaintiff noticed that the machine was “chattering,” making a shaking, grinding noise. He spoke to a fellow workman about the matter, who came and examined the machine. This man said that the center (referring to the center pin in the shaft) was smoking, showing that it was hot, and he told the plaintiff to report the matter to Mr. Pfau, the foreman. Plaintiff did so and the foreman walked back with him to the machine, looked at it, started it up and took an oil can in his left hand and oiled it at the point where the center pin and shaft connected, at the same time telling plaintiff that it was necessary to oil it while it was running, so as to get the oil in the socket in the end of the shaft. Then the foreman went away. Shortly after one o’clock the machine started “chattering” again, and thereupon, as plaintiff testifies, “I took the oil can in my left hand, as the foreman had showed me to, placed my hand in the machine to oil the machine, and just the instant I did that the machine jerked. I oiled it where the center and arbor are connected, where the foreman showed me to oil it. The machine chattered and jerked at this end, and it got my hand and pulled it in over the cutter, between the cutter and the main axle of the machine and cut it off.” The testimony of the foreT man concerning his directions to plaintiff was: “Í told and showed plaintiff how to oil the machine at the center with the oil can when it became hot. ’ ’ Plaintiff says he had never oiled this machine at that place before.

From this evidence, which in the main was uncontradicted, the jury was asked to determine the fact concerning the ignorance and lack of experience of plaintiff. If the fact found by the jury was that his ignorance and inexperience were such that thereby he failed to appreciate the danger attending the operation of oiling the machine in the manner indicated by the foreman, then it follows that it was the duty of the defendants, through their foreman, to warn him of such danger, and the failure to do so is negligence. We see no good grounds for holding that the finding of the jury in this regard was unwarranted upon the evidence before it. It may be that plaintiff sufficiently understood and appreciated the fact that if his hand should be caught in the cutting wheel he would be hurt. The knowledge that sharp things will cut and hurt is acquired at a very early age; but that was not the danger involved here, but rather the danger incident to oiling the machine in the manner indicated by the foreman. The foreman was an adult man of experience with machinery. His experience had taught him just what to do and what not to do to escape injury while oiling the machine. The plaintiff did not have this experience. He was a young man with practically-no opportunity to acquire the .capacity for self-protection which ordinarily is acquired by one accustomed to working in and around machinery. The jury might well have considered him to have been a raw, green youth, possessed of a certain amount of knowledge acquired in school, but as ignorant as an infant of the dangers present when required to perform this new work. The situation was one wholly different from, anything which he had ever before met. Under such conditions we are of the opinion that the defendants clearly owed him the duty of warning, and in failing to do this were guilty of negligence.

We do not deem it necessary to discuss the question of the alleged defective machinery. “Plaintiff is not bound to prove each count of the declaration in order to entitle him to a verdict, and he may recover if one count is sufficient and the proof supports that count.” Colesar v. Star Coal Co., 255 Ill. 532.

It is urged that reversible error was committed in certain questions put by the attorney for the plaintiff to the venireman, Edward D. Sweetland, on his voir dire examination, and in the ruling of the court denying motion of defendants’ counsel to discharge the entire panel. Mr. Sweetland was asked: “What is your business?” and he replied “All kinds of insurance.” Q. “Liability insurance?” A. “Yes, sir, I am secretary of the corporation.” Q. “Do you know Mr. Jackson?” A. “No.” Q. “Mr. Snow, here?” A. “No.” Q. “The Travelers Insurance Company?” Mr. Cox: “I object to that.1’ The Court: “I did-not catch the question.” Mr. Belasco: “I asked him if he knew anybody connected with the Travelers Insurance Company. He is in the same line of business.” Court and counsel thereupon retired to the judge’s chambers, and the attorney for the defendants moved to discharge the entire panel, which motion was overruled. The attorney for the plaintiff then asked the venirenfan: “Handling liability insurance you would come in contact with personal injury claims.” A. “Our concern does but I do not. My work is fire losses.” Q. “And you have never come in contact with personal injury claims in your experience?” A. “No.” The venireman was then excused. It has been repeatedly held reversible error, where counsel for plaintiff improperly attempts to get before the jury the fact that a casualty company is conducting the defense. On the other hand there may arise a sitúation where the plaintiff would properly he entitled to know whether or not a prospective juror is interested financially or otherwise in the outcome of the case. It can he readily seen in the case at bar that if the venireman had answered that he was connected with the Travelers Insurance Company, and if it was in the knowledge of plaintiff’s attorney that this company was conducting the defense, it would be of importance as affecting the judgment of plaintiff’s counsel as to whether or not such venireman should be accepted by him as a juror. The venireman himself having disclosed in answer to proper questions that he was an officer of an accident insurance company, the questions then put to him might properly be made for the purpose of enabling counsel to exercise his right of peremptory challenge. We believe they were proper in this case, and therefore not ground for reversal. Aetitus v. Spring Valley Coal Co., 246 Ill. 32; Iroquois Furnace Co. v. McCrea, 191 Ill. 340.

Appellants’ counsel also urge as reversible error the ruling of the court in denying a motion to strike out the answer made by plaintiff to a question referring to his conversation with Pfau, the defendants’ foreman. The question put to plaintiff was. “Did he say anything about fixing the machine?” A. “Why he said he would fix it when I was through with that work; they were in a hurry for that work.” It is argued with force that this answer placed before the jury a matter which was entirely incompetent under the pleadings, in that there was no liability claimed because of any promise to repair the machine. While we think the answer might well have been stricken out, still we do not believe that in this regard reversible error was committed.

It is also claimed that the damages awarded by the' verdict were excessive and that this was not cured by the remittitur of $5,000, and the excessiveness of the verdict must have been the result of passion and prejudice on the part of the jury, or sympathy for the plaintiff. There is nothing before this court upon which we can base any conclusion that the verdict was the result of passion and prejudice, except it should be the amount of the verdict. For a jury to award a young man $15,000 for the loss of an arm is not so extraordinary .or unusual as to compel the conclusion that the jury was influenced by anything else than a desire to award what they thought adequate compensation for pain and suffering and the permanent character of the injury under the evidence. We cannot say that the amount of the verdict alone supports the contention of defendants’ counsel in this regard.

Finding, as we do, that defendants were negligent as above indicated, and that there is no reversible error in the record, the judgment will be affirmed.

Affirmed.

Mr. Presiding Justice Gridley dissents.


text:
    George J. Cooke Company, Appellant, v. Peter Pisano et al., Appellees.
    Gen. No. 17,371.
    1. Bills and notes—evidence of fraud and no consideration admissible only under special plea. In an action on a note, as a general rule, evidence that a signature was procured by fraud and that there was no consideration is admissible only under a special plea.
    2. Appeals and errors—specific objection must be made to evidence inadmissible under pleadings. Where in an action on a note evidence is introduced without objection that a signature had been procured by fraud and that there was no consideration for the note, and the holder of the note by introduction of testimony and the question of instructions accepted the issues, it cannot be first urged on appeal that the evidence was not admissible under the general issue.
    3. Bills and notes—when signature is procured by fraud. On an issue of fraud in an action on a note given a brewery by a saloon keeper, plaintiff testified the note was given to pay for the cost of plumbing and fixtures installed in its saloon. Defendant testified the fixtures were to he installed without cost, that he supposed he was signing a duplicate heer contract when he signed the note, that a demand to pay the heer account had been made and nothing was said about the note, and that the brewery had removed the plumbing and fixtures. Held, a verdict for the defendant would not be disturbed.
    4. Bnxs and notes—turden of proving want of consideration. In an action upon a note defendant has the burden of proving a want of consideration.
    Appeal from the Circuit Court of Cook county; the Hon. Chasms M. Walkeb, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1911.
    Affirmed.
    Opinion filed November 29, 1912.
    Harry A. Daugherty, for appellant.
    James J. Kelly, for appellees.
   Mr. Justice McSurely

delivered the opinion of the court.

Judgment by confession having been entered against appellees on a note for $200 held by appellant, on motion the execution was stayed and leave given to plead. The plea of general issue was filed, and upon a trial before a jury a verdict was rendered in favor of appellees and judgment entered on the verdict.

We are asked to reverse this judgment on the ground that the court permitted appellees to testify that their signatures to the note had been procured by fraud and that there was no consideration for the same, which testimony, it is said, was not admissible as a defense under the plea of general issue.

It is undoubtedly the general rule that such evidence is admissible only under a special plea, and not under the plea of general issue. Chapter 98, Negotiable Instruments, secs. 9-10, Hurd’s Ill. Statutes. But it has been repeatedly decided that plaintiff must raise such objection specifically upon the trial or he will be held to have waived the objection. Upon the trial of this case not only was no specific objection made, but appellant, by the introduction of testimony and instructions given to the jury at its request touching the alleged fraud and want of consideration, accepted these issues. At the request of appellant the court instructed the jury in substance that they should find the issues for the plaintiff if the jury believed from the preponderance of the evidence that the note sued upon was executed or delivered for a valuable consideration, and also that the burden of proving that the note was without consideration was upon the defendants. It is therefore obvious that the cause was tried upon the theory that the questions of fraud and of consideration were the issues in the case, and it is too late now to claim otherwise. (St. Louis, I. & E. R. Co. v. Warfel, 163 Ill. 641; Ehrhart v. Rork, 114 Ill. App. 509; Illinois Life Assn. v. Wells, 200 Ill. 445; Warder, Bushnell & Glessner Co. v. Arnold, 75 Ill. App. 674; Prairie State Paper Co. v. Sharp, 67 Ill. App. 477; Wilmerton v. Sample, 42 Ill. App. 254.)

It is urged that one claiming fraud must prove the same by the greater weight of evidence, and that this has not been done. The appellees are Italian saloon keepers, and the appellant is the brewery from which appellees got their supply of beer. Witnesses for the appellant testified that the note was given to pay for the cost of plumbing and fixtures installed by it in the saloon of appellees. Appellees ’ witnesses say that the fixtures were to be' installed by the brewery without cost to them and as an inducement for them to agree to take their supply of beer from appellant. Appellees also testify that they signed a contract to take beer, and supposed they were signing a duplicate copy of the beer contract when they were signing the note in question, and were ignorant of the fact that it was a note; that they have had a dispute with the brewery over the beer account, and that a written demand, with threat of suit, was made on them to pay the account for beer, and nothing said about any note; that all the plumbing and fixtures installed in the saloon by the brewery have been removed by it and are now in its possession. Much more testimony was presented covering the details of the signing of the note, which it would' be useless to repeat. Each set of witnesses flatly contradicts the other as to many of the circumstances of the transaction. It is impossible for this court to determine which was telling the truth. We must leave this to the judgment of the jury and the trial court. As noted above, the jury was properly instructed that the burden of proving want of consideration was upon the appellees. We see no reason for setting aside their conclusion.

For the reasons indicated the judgment will be affirmed.

Judgment affirmed.