text:
    Flora A. Prout, Appellee, v. G. Gordon Martin, a corporation, Appellant.
    Gen. No. 15,399.
    1. Evidence—what competent in action for deceit. A pamphlet containing representations published by the defendant is competent in an action for deceit where such pamphlet in part induced the plaintiff’s action.
    2. Evidence—as to what expert testimony competent. Malpractice in dentistry being charged, expert testimony as to the practicability of doing work in the manner in which it was done, is competent.
    3. Evidence—what competent as tending to show qualification of experts. In order to show that witnesses called as experts are qualified as such, it is competent to interrogate them as to treatises written by them pertaining to the subjects under inquiry.
    4. Evidence—aw to what expert testimony competent. Malpractice in dentistry being charged, expert testimony is competent as to the general prevailing practice of members of that profession; where a question put to a witness is localized a general objection is not sufficient to raise the question of competency.
    5. Evidence—what competent in action for deceit. Malpractice in dentistry by a corporation being charged against it, also deceit, it is not reversible error to show that no such person was engaged in the defendant’s business as the doctor supposed to have invented the process used.
    6. Trial—when improper remarles of counsel will not reverse. Notwithstanding remarks of counsel are improper and calculated unduly to influence the jury, yet a reversal will not be awarded if the reviewing court is unable to discover from the record that the jury were in any manner or to any extent influenced thereby to the material injury of the complaining party.

      7. Trial—effect of permitting jury to take withdrawn count. Reversible error is not committed in permitting the jury to take an entire declaration a part of which has been publicly dismissed or withdrawn in the presence and hearing of the jury.
    8. Practice—when refusal to submit special interrogatories will not reverse. Special interrogatories not submitted to the trial court prior to the commencement of argument may properly be refused.
    9. Verdicts—when not excessive. Held, in an action charging deceit and malpractice in dentistry, that a verdict of $3,000 was not excessive where the injury suffered consisted in loosening and injuring the natural teeth of the plaintiff and in causing other damage to the mouth of the plaintiff.
    Appeal from the Superior Court of .Cook county; the Hon. Arthur H. Chetlain, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed March 3, 1911.
    Rehearing denied March 23, 1911.
    Kickham Scamban and Harvey Strickler, for appellant.
    Charles E. Whitman and J. Marion Miller, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

Appellee, Flora A. Prout, brought this action against G. Gordon Martin, M. D., D. H. S., a corporation, appellant, to recover damages alleged to have been suffered by the appellee because of the negligence and unprofessional treatment by appellant, a corporation practicing dentistry, in replacing certain missing teetb in her mouth with artificial teeth, and for fraud and deceit practiced on the plaintiff in regard to replacing missing teeth in her mouth and in repairing her natural teeth, and falsely and fraudulently representing and pretending to the plaintiff that its method of replacing teeth with artificial teeth, without the use of plate or bridge work, was a secret process, termed the “Alveolar Process,” known only to the defendant; and that teeth could be replaced by that method without the use of plate or bridge work, so perfectly that even a dentist conld not distinguish them from natural teeth; and that while representing and pretending to replace the plaintiff’s missing teeth by that method, they placed in her mouth heavy bridge work, and in so doing filed, ground, broke and loosened plaintiff’s natural teeth, and produced other damage to her mouth.

The case was tried before a court and jury, and the trial resulted in a judgment and verdict for plaintiff, against the defendant, for the sum of $3,000, to reverse which this appeal is prosecuted.

The grounds upon which a reversal of the judgment is sought are, first, that the trial court committed reversible error in submitting the case to the jury on both the malpractice and fraud and deceit counts of the declaration; second, that the trial court committed reversible error in admitting improper evidence offered on behalf of the plaintiff; third, that the trial court failed to properly rebuke and control the conduct of counsel, and permitted counsel for the plaintiff to ask improper questions, for the purpose of embarrassing witnesses and calculated to cause the jury to draw unfavorable inferences against the witnesses and against the defendant, and to place before the jury matter which had been ruled out, as incompetent, by the court; fourth, that the verdict of the jury is against the weight or preponderance of the evidence; fifth, that the trial court erred in refusing to submit to the jury special interrogatories requested by the defendant, appellant; sixth, that the trial court committed reversible error in allowing the entire declaration, including the fifth count, which had been withdrawn, to be taken by the jury when they retired to consider of their verdict; and, seventh, that the damages are excessive, and that the verdict of the jury was the result of passion and prejudice.

We have reviewed the evidence in this case with care, and think that the cause was properly submitted on both the malpractice and fraud and deceit counts of the declaration. The evidence, in onr opinion, sustains the cause of action for malpractice and for fraud and deceit. We think it clearly sustained the counts of the declaration under which it was received, and that the cause was properly submitted to the jury upon both grounds of action.

It is urged that the trial court committed reversible error in admitting in evidence, on behalf of the plaintiff, portions of a pamphlet published by the defendant. We think that the pamphlet was admissible in evidence, especially under the fourth count of the declaration, and because of the fact, which appears in evidence, that the pamphlet was in regard to the new Alveolar Method, which it was claimed was patented and exclusively practiced by G. Gordon Martin, M. D., whose name the appellant has incorporated and under which it transacts its business and practices dentistry; and that the pamphlet was discussed and the method talked about between appellee and Dr. McCullough, representing appellant, at the time that the defendant, appellant, was employed by Miss Prout to do the work in question.

It is also urged that the trial court committed error in allowing counsel for plaintiff to interrogate the witness, Miller, as to the practicability of supplying any bridge work which would support false teeth for the barren spaces in plaintiff’s mouth. Dr. Miller was examined as an expert, and he fully qualified himself as an expert, and we see no error in admitting his evidence.

It is also urged that error was committed by allowing counsel for the plaintiff to interrogate Dr. Mille as to whether or not the bridge work which was placed in appellee’s mouth was a suitable appliance to be applied to plaintiff’s mouth for the purpose of supplying false teeth, attached thereto. We think no error was committed in permitting such testimony.

It is also contended that the trial court erred in allowing counsel for plaintiff to ask Dr. Miller as to ■whether the filing and grinding of plaintiff’s teeth was proper. We see no objection to that line of examination.

It is also urged that the trial court erred in permitting the examination of Doctors Prothero and Eoach as to dental treatises written by them, and the witness Eoach as to dental appliances invented by him. These witnesses were called as experts, and qualified as such, and the evidence objected to was admissible upon the question of the qualification of the witnesses as experts. It is also urged, in connection with the testimony of these witnesses, that they were interrogated as to whether the dental appliance (referring to the bridge work placed in the plaintiff’s mouth by the defendant) was a proper appliance. We think the evidence was admissible under the averments of the declaration. Dr. Prothero was asked to state when, if ever, in dentistry, a bridge of the character of that which was placed in the plaintiff’s mouth had been applied by the dental profession in the city of Chicago. A general objection was made to this question. No specific objection was urged at the time. While we do not understand the object of confining the use of such work to the profession in the city of Chicago, yet we think that a mere general objection would not raise that question, and that there was no material error in permitting the witness to answer. We see no objection to permitting the witnesses Prothero and Eoach to testify as to whether the dental profession would put teeth in cavities where natural teeth had been, and the extent of such practice, under the averments of the declaration. Nor do we think there was any error in allowing the witness Eoach to testify as to whether it was possible to place the dental work which was actually put in the plaintiff’s mouth, without her seeing it. Nor, do we think, under the facts -and circumstances developed in the case, there was any error in getting into the record the fact that Dr. Gr. Cordon Martin was not regarded by dentists of reasonable professional ability as an authority in dentistry, under the facts shown by the record. We do not see that it was reversible error to have the record show that no such person as Dr. G. Gordon Martin was connected with the defendant corporation. The defendant was doing business under the name of Dr. G. Gordon Martin, and impliedly it held out to the world, and represented, that Dr. G. Gordon Martin was engaged in the dentistry business at appellant’s establishment.

The hypothetical question propounded to Dr. Cooke we think substantially sets out the facts which appear in evidence, and while it may have been unnecessarily prolix in the statement of those facts, it contains nothing, so far as we have been able to discover, which does not appear in evidence. We think that no material error was committed in permitting Dr. Cooke to answer it. His answer was a very cautious and non-commital answer, and we do not perceive how it could have influenced the jury against appellant.

Much stress is laid in argument upon the language employed by counsel for the plaintiff, and the conduct of counsel for plaintiff in the presence of the jury, both of which, it is claimed, were highly improper and prejudicial to the defendant on the trial, and that the court failed to properly rebuke counsel and control his conduct. We think the court should have controlled the trial of the 'cause and the language, statements and conduct of the plaintiff’s counsel to a much greater extent than it did. The conduct of counsel for plaintiff and his language and remarks on the trial were improper. They were calculated to influence improperly the jury. If we could see from the record that they did so influence the jury, we would not hesitate to award a new trial, but we are unable to discover from the record that the jury were in any manner or to any extent influenced thereby to the material injury of appellant. We also think that in the closing arguments of plaintiff’s attorney to the jury the court erred in allowing Mm to go beyond the proper limits of argument; but here again we are unable to perceive that the jury were influenced to the prejudice of appellant. If the case on the evidence submitted was a close or doubtful one, we tMnk the improper language, statements and conduct of plaintiff’s attorney would be sufficient to justify the court in granting a new trial for that reason alone. The case as made by the evidence, however, is not, as it seems to us, a close or doubtful case, and the jury were warranted upon the evidence in returning the verdict which was reached by them. We think, therefore, in tMs case, the errors complained of in tMs respect should not result in a reversal of the judgment.

We do not think the trial court committed reversible error in refusing to submit to the jury the special interrogatories requested by appellant. The interrogatories were not submitted before the commencement of the argument to the plaintiff’s attorney or to the court.

The trial court, in our opinion, did not commit reversible error in allowing the fifth count of the declaration to be taken by the jury, with the remainder of the declaration, upon their retirement to consider of. their verdict. The fifth or last count of the declaration had been publicly dismissed or withdrawn in the presence and hearing of the jury. West Chicago St. R. R. Co. v. Buckley, 200 Ill. 260.

We have considered with care the evidence and the argument of counsel for appellant relating to the claim urged that the damages awarded are excessive, and the verdict was the result of passion and prejudice. We are unable to agree with this contention. The amount of damages may be considered liberal, but on the evidence we cannot say they are excessive. We do not think that the verdict was the result of passion and prejudice.

The judgment is affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Presiding Justice Smith

license: Public Domain

text:
    Wabash Portland Cement Company, Appellee, v. Smith H. Bracey, Appellant.
    Gen. No. 15,407.
    1. Vendos and vendee—remedy for breach of contract. Where a purchaser fails to pay for goods as he has agreed to, the vendor may abandon the special contract under which the goods are sold and delivered, and sue and recover in an action of assumpsit under the common counts for the value of the goods sold and delivered to the defendant. The vendor may recover either under the indebitatus assumpsit count or under the count for goods sold and delivered.
    2. Evidence—when execution of contract sufficiently proven. A proposition which becomes a contract by acceptance is admissible in evidence without direct proof of execution if received in due course of business and shown to have been acted upon by both parties.
    3. Evidence-—when contract not basis of action competent. A contract for the delivery of merchandise which has been rescinded for nonpayment of merchandise delivered is competent in an action predicated upon the common counts, to show the ordering of the merchandise, the price to be paid therefor, etc.
    4. Interest—effect of failure to claim by bill of particulars. Interest may be recovered where payment has been unreasonably and vexatiously withheld, notwithstanding no claim therefor has been made in the bill of particulars.
    Appeal from the Superior Court of Cook county; the Hon. Homes Abbott, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Dolph, Silsbee & Putnam, for appellant.
    Thomas B. Marston, for appellee.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

This suit was brought by appellee, Wabash Portland Cement Company, against Smith H. Bracey, William A. Howard and Henry B. Poster, co-partners as Braeey, Howard & Company, to recover for certain shipments of cement claimed by the plaintiff to have been made to the defendants.

The plaintiff shipped the cement in question during the months of August and September, 1902. This suit was brought October 13, 1904. Smith H. Bracey alone was served, the other defendants not being found.

Plaintiff filed its declaration in the common counts, with an affidavit of the amount due, on October 19, 1904. The defendant filed a plea of the general issue.

The evidence consists in the testimony of George L. Morris, the plaintiff’s manager, and the letters and documents offered in connection with his testimony.

The action was based upon a contract entered into between the appellee and appellants, in the following form:

“Chicago, Ills., September 26, 1901.
Wabash Portland Cement Co.,
Detroit, Michigan.
Gentlemen: We do hereby contract with your
Company for you to supply us with seven to ten thousand barrels of Wabash Portland Cement, at the price of $1.35 per bbl. in cloth sacks delivered in Carload lots at the following places: Wheaton, Wayne, Ingleton, Spalding and Elgin, Illinois. Cloth sacks to be paid for 100 each in addition to above price, or you are to buy these cloth sacks back from us at 100 each, if returned by us to Wabash Mills, freight prepaid, within a. reasonable time. Terms: All bills are due and payable to you on the 20th of each month for the shipments of preceding month. You are to supply us first quality Portland Cement of the same quality as supplied by you heretofore, for concrete work on the Aurora, Elgin and Chicago Railway.
Yours truly,
. Bbacey, Howard, Poster & Co.
By W. A. Howard.

P. S. All cement must be acceptable to the Chief Engineer of the Aurora, Elgin & Chicago R. R. Co., and must be delivered within Ten days after receipt of order by Wabash Portland Cement Co., in quantities optional with purchaser, not less than carload, at any one or more of the above named stations, free on board cars.

Accepted:
Wabash Portland Cement Co.
By M. Gr. Borgman, Treasurer.”

Under this contract large quantities of cement were shipped by the plaintiff to the defendants on defendants’ orders, but the defendants failed to make payments in accordance with the contract, and for that reason the plaintiff stopped shipments under the contract.

The record shows that there was some correspondence regarding the delinquency of the defendants, but by a letter dated August 6, 1902, the defendants remitted to the plaintiff the sum of $349.11, covering the balance of the account then due as shown by the statements in the record. In this letter the defendants promised there would be no further delinquency in the matter of payments, and that all invoices in the future would be promptly met when due. Thereupon shipments were renewed, and on August 13, August 25 and August 30, 1902, and on September 10, 1902, shipments were made to the defendants by the plaintiff, which shipments were duly received, as shown by the bills of lading introduced on the trial, and by acknowledgment of defendants, and requests for credits for freight allowances.

Under the terms of the contract payments for shipments of Angustí T3, August 25 and August 30, 1902, were due on the 20th of September, 1902. No payments were made for these carload lots on that or any subsequent date, and no payment was ever made to the plaintiff, the Wabash Portland Cement Company, subsequent to August 12, 1902, above mentioned.

The plaintiff, because of these defaults in payment, or for some other reason, elected to rescind the contract, and subsequently brought this action to recover the balance due for cement delivered thereunder. The cause was brought on to trial and resulted in a judgment in favor of plaintiff, appellee, against the appellant, for $556.94, which includes interest on the amount due, and appellant prosecutes this appeal to reverse the judgment.

The grounds for reversal relied upon'by counsel for appellant are:

First, that plaintiff could not recover under the common counts in this action, and that the contract not having been specially pleaded was not admissible in evidence.

Second, that the court erred in admitting in evidence the agreement between the parties.

Third, that assuming that the contract was properly before the court and jury, a recovery could not be had in the absence of proof that Bracey was a member of the partnership, as alleged in the declaration, and for the further reason that the plaintiff could not recover because it did not show a completion of the contract on its part.

Fourth, that the plaintiff could not recover interest because it was not specified in the bill of particulars filed.

We think it is well settled that where a purchaser fails to pay for goods as he has agreed to, the vendor may abandon the special contract under which the goods are sold and delivered, and sue and recover in an action of assumpsit under the common counts for the value of the goods sold and delivered to the defendant. The vendor may recover either under the indebitatus assumpsit count or under the counts for goods sold and delivered. Hess Company v. Dawson, 149 Ill. 138.

We think it is clear, from the evidence in this case, that because of the nonpayment by the defendant for the cement shipped under the contract, the plaintiff had a right to abandon the contract and terminate it and sue for what was due under the contract for the cement sold and delivered. The plaintiff was not bound to continue delivering cement to the defendants unless the defendants were ready and willing to make the payments as required by the contract.

We do not agree with the contention that the contract was not admissible in evidence under the pleadings. The execution of the contract, so far as the plaintiff is concerned, was proven, and although the signature of the defendants was not proven in direct terms and by direct testimony, it appears from the evidence in the case that the contract was received in the usual course of business in the form of a proposition, and was accepted by the plaintiff; and after the acceptance the parties acted under the contract, and large quantities of cement were shipped by the plaintiff and paid for by the defendants. Under this state of the evidence the contract was properly admissible. It was not necessary that the contract should have been specially pleaded or set out in the pleadings. It was admissible under the common counts, as a piece of evidence tending to show the ordering of the goods, the price to be paid for them, and all other terms under which the cement was furnished.

It is urged that there could be no recovery in this case in the absence of proof that Bracey, the defendant who was served, was a member of the partnership, as alleged in the declaration. This contention we think is without foundation. The plea filed was not sworn to, and the existence of the partnership was not put in issue or questioned; and under the state of the pleadings the plaintiff was not put upon proof in the first instance to show that Bracey was a member of the partnership.

It is claimed that the plaintiff could not recover for the reason that it did not show a completion of the contract on its part. This contention has been sufficiently answered by what we have said above.

It is further contended that the plaintiff could not recover interest, because it was not specified in tbe bill of particulars. We think there is no foundation for this contention. McConnel v. Thomas, 3 Ill. 313; Willard v. Dubois, 29 id. 48; Heiman v. Schroeder, 74 id. 158. The evidence shows that the payments were long-delayed and that the delay was such as to warrant the jury in finding that it was vexatious. That was a question of fact for the jury to determine. Furthermore, the plaintiff was entitled to interest upon the amount due, upon the ground of an account stated. Bills had been rendered and not objected to within a reasonable time, and under the anthorities this amounted to an account stated.

Finding- no error in the record, the judgment is affirmed.

Affirmed.


text:
    Ernest J. Magerstadt, for the use of T. A. Shaw & Company, Plaintiff in Error, v. Wentworth G. Field et al., Defendants in Error.
    Gen. No. 15,355.
    1. Appeals and ebbobs—when rulings upon evidence saved for review. Where the court improperly excludes from the consideration of the jury evidence which has been admitted and which tends to prove the issue in the case, it is not necessary, in order that such action of the court may be assigned as error in the Appellate Court, that a motion for new trial should have been made.
    2. Replevin—how bond construed. A replevin bond is to be construed liberally with a view to promote its object under the statute and the intent of the law and of the parties, and to provide for and assist them in obtaining justice.
    3. Replevin—effect of amendment upon bond. A replevin bond is given in connection with and in contemplation of the statute authorizing amendments and liability upon such bond continues notwithstanding the affidavit in replevin is amended and new parties added and the security of such bond inures to the benefit of such new party.
    Action of debt. Error to the Circuit Court of Cook county; the Hon. Thomas G. Windes, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed March 3, 1911.
    Statement by the Court. By this writ of error the judgment of the Circuit Court in an action of debt on a replevin bond is brought before this court for review.
    On July 23, 1902, William H. Baldwin and others, trading as Woodward, Baldwin & Company, commenced an action of replevin in the Circuit Court of Cook county, Illinois, against Charles Y. Wohlhueter and others, trading as Wohlhueter & Champness. The usual affidavit in replevin was filed and a writ of replevin issued in the usual form for 180,000 yards of brown cotton drill cloth and 218,756 yards of muslin sheeting, which were described in the affidavit and writ. The writ of replevin was placed in the hands of the plaintiff in error, Ernest J. Magerstadt, as Sheriff, for service, to whom was given the replevin bond sued upon in the penal sum of $25,000. Part of the goods were taken from the defendants mentioned in the writ. The defendants in that writ did not have in their possession all of the goods described in the writ. On July 24, 1902, plaintiffs in the replevin suit obtained an order of the court amending the proceedings by making Theodore A. Shaw, T. A. Shaw, Jr., and Frank A. Borwell, trading as T. A. Shaw & Company, additional parties defendant, and at the same time an amended affidavit in replevin was filed describing the same goods, and alleging that Wohlhueter & Champness and T. A. Shaw & Company, giving the individual names, wrongfully detained the goods, and an amended writ of replevin was then issued in the usual form, requiring the sheriff to take from Wohlhueter & Champness and T. A. Shaw & Company the goods described in the original affidavit and in the bond. Under this amended writ plaintiff in error, Magerstadt, as sheriff, proceeded to take certain of the goods mentioned in the replevin bond and writ, being the same goods mentioned in the original writ of replevin, from T. A. Shaw & Company. The plaintiffs in the replevin action, after the evidence was heard, elected to take a non-snit, and the court ordered the return of the property taken under the original writ to Wohlhueter & Champness and under the amended writ to T. A. Shaw & Company, for whose use the action on the replevin bond was brought.
    The declaration filed in the case sets up the above facts, and the affidavits and writs and returns made upon the writs, including the receipt by the plaintiffs, William H. Baldwin and others, and the judgment in the replevin suit for the return of the goods and the issuing of the writ of retorno habendo and the failure of the plaintiffs to return the property in accordance therewith, and alleges that the plaintiffs in the replevin suit did not save the sheriff harmless in replevying the goods and property, and avers the value of the goods to be $25,000, and that damages were incurred for attorney’s fees of $1500 and costs of suit.
    The defendants filed pleas which it is not necessary to describe, as no questions in the trial court arose thereon, or arise here on this writ of error.
    The plaintiff, to maintain the action, offered first the original replevin bond filed July 23, 1902; the first or original writ of replevin, which was issued July 23, 1902; the original affidavit for replevin filed July 23, 1902; the second or amended writ of replevin, issued July 24, 1902; the amended, or so-called second affidavit for replevin, filed July 24, 1902; the order entered July 24, 1902, whereby T. A. Shaw & Company were made defendants without prejudice to the prior proceedings; the order entered in the replevin suit on November 16, 1905, to the effect that on motion of the plaintiffs a non-snit was ordered, and that "Wohlhueter & Champness have and recover from the plaintiffs the possession of the property replevied by virtue of the original writ of replevin, together with their costs and charges on that behalf expended, and awarded a writ of retorno habendo to Wohlhueter & Champness for the goods replevied; that T. A. Shaw,& Company have and recover from the plaintiff the possession of the property replevied by virtue of the amended writ of replevin, together with their costs and charges in that behalf expended and awarded a writ of retorno habendo to T. A. Shaw & Company for the goods taken by the amended writ of replevin; a writ of retorno habendo dated November 22nd, for the return to T. A. Shaw & Company of 92,540 yards of brown cotton drill cloth, and 80,966% yards of plain unbleached muslin sheeting, which describes the goods taken from T. A. Shaw & Company.
    The trial court sustained the objections of the defendants to the evidence offered by the plaintiff and excluded the same from the consideration of the jury.
    Thereupon the parties stipulated in effect, for the purposes of the trial, that the goods described in the original affidavit for replevin, and the goods described in the replevin bond offered in evidence, and the goods described in the original writ of replevin, and the goods described in the amended affidavit for replevin and in the amended writ of replevin, are one and the same goods, and that the goods mentioned in the return of the amended writ of replevin were taken from T. A. Shaw & Company by the sheriff under said amended writ and delivered by the sheriff to Went-worth G-. Field as agent for Woodward, Baldwin & Company, and that said goods have not been returned to T. A. Shaw & Company or paid for. That the replevin bond described in the plaintiff’s declaration was the only replevin bond given in the replevin suit mentioned in the declaration, such bond being the bond that was offered in evidence in the case. And in like manner and for the same purpose it was admitted that on the trial of the replevin case, the attorneys for T. A. Shaw & Company rendered services of substantial value, which the plaintiff offered to prove, and the defendants objected to such proof on the ground that the same was incompetent, irrelevant and immaterial, and the court sustained the objection and due exception was entered. And thereupon the plaintiff offered to prove by Frank L. Borwell, a witness duly sworn in this cause and produced, that the goods replevied from T. A. Shaw & Company were of the value of $8,200, and that the interest of T. A. Shaw & Company therein amounted to the sum of $4,527.77, with interest from February 28,1903, at five per cent, to the date of trial, and that said goods were held by T. A. Shaw & Company as pledges for money advanced to Charles Y. Wohlhueter and Thomas F. Champness; to which offer of the plaintiff defendants objected on the ground that same was incompetent, irrelevant and immaterial, and the objection was sustained by the court, and due exception to the ruling of the court was taken.
    The record shows that the court held that the evidence offered was not competent, because of the court’s ruling with regard to the documentary evidence theretofore offered. Thereupon the plaintiff rested his case, and on motion of the defendants the court instructed the jury that the verdict in the case should be for the defendants and a verdict was accordingly rendered in obedience to the instruction of the court, and judgment was entered thereon. This writ of error is prosecuted to reverse such judgment.
    Lyman, Lyman & O’Connor, for plaintiff in error; E. M. Ashcraft, of counsel.
    Newman, Northrup, Levinson & Becker and Chester E. Cleveland, for defendants in error.
   Mr. Presiding Justice Smith

delivered the opinion of the court.

The record presents two controlling questions:

1st. Are the questions arising upon the rulings of the trial court in excluding the evidence offered by the plaintiff open to review, the same not having been specified in plaintiff’s motion for a new trial?

2nd. If the rulings excepted to are before the court, then the substantial question is, whether a surety on a replevin bond given to procure the execution of an existing original writ of replevin directed against Wohlhueter & Champness can be held liable for damages resulting from the replevin of the property described in the bond from T. A. Shaw & Company, under and by virtue of an amended writ of replevin issued on the following day in the same cause without the knowledge or consent of the surety, and directed against T. A. Shaw & Company.

In our opinion, the questions arising upon the rulings of the trial court in excluding the documentary evidence and all other evidence offered by the plaintiff in the action, are open to review, in this proceeding, although the plaintiff in the action did not specify such rulings in his written motion for a new trial filed in the action. Where the court improperly excludes from the consideration of a jury evidence which has been admitted, and which tends to prove the issue in the case, it is not necessary, in order that such action of the court may be assigned as error in the Appellate Court, that a motion for new trial should have been made. Smith v. Gillett, 50 Ill. 290; Wiley v. Town of Brimfield, 59 id. 306.

We come now to the main question involved in the case, namely, whether the trial court erred in excluding the evidence offered by the plaintiff, and holding as a matter of law that no recovery could be had under the replevin bond sued upon, on account of the goods taken under the amended writ of replevin from T. A. Shaw & Company, upon the ground that T. A. Shaw & Company were not parties to the replevin suit at the time the replevin bond was given, and were not protected thereby.

In the solution of this question we must first determine the true interpretation of the contract. The ends of justice are best subserved by the enforcement of contracts according to the plain intent of the parties to them. “The rule of construction of all contracts of voluntary obligation, whether as to sureties or principals, is to apply that meaning and give that interpretation to the words used, in the light of the whole instrument, together with any side light, in case of ambiguity, as will carry out the evident intent and purpose of the parties thereto; when the construction of the contract is thus ascertained and its meaning determined, then the rule of strictissimi juris applies as to sureties on such contract, and not till then. Statutory bonds taken by court officers will be liberally construed. Courts will look to the meaning of the parties as collected from the instrument itself. * # * A bond in replevin will be liberally construed for the purpose for which it was given. Cobby on Replevin, Sec. 1282.” Hotz v. Bollman Bros. Co., 47 Ill. App. 378; Best Brewing Co. v. Klassen, 85 id. 464.

The manifest object of the bond required and prescribed by the Replevin Act (which enters into and forms a part of the bond) is to secure the prosecution of the replevin suit in which it is given “to effect, and without delay, and make return of the property, if return of the property shall be awarded, and save and keep harmless such sheriff * * * in replevying such property, and * * * for the payment of all costs and damages occasioned by the wrongfully suing out of said replevin,” as expressed in the language of Section 10 of the Act. In other words, the statute providing for the bond, and under which it was given, contemplates the successful prosecution of the suit without delay, and a return of the property taken under the replevin writ, if a return shall he adjudged, and indemnity against any injury that may result from the wrongful taking of the property and the delivery of the possession thereof to the plaintiff in the action. The statute also contemplates that the proceedings in which the bond is given may be amended, and that such amendment shall not affect the protection given by the bond except where the legal effect of such amendment is to enlarge the liability thereunder. The statute enters into and forms a part of a replevin bond in legal contemplation, and the parties are conclusively presumed to intend what the statute provides.

Construing the bond declared on liberally, with a view to promote its object under the statute and the intent of the law and of the parties, and to provide for and assist them in obtaining justice (McGlasson v. Bradford, 7 Bush. (Ky.) 250), the indemnity furnished by the bond covered the property described in the affidavits and the bond, and the plaintiff’s right and title thereto as against the original defendants, Wohlheuter & Champness, and also as against their privies, who had rights in the property through Wohlhueter & Champness and under their right and title. If the property described in the bond and original writ had been taken by the sheriff under the original writ, and Shaw & Company had then intervened in the replevin suit and asserted their right to the property as pledgees from Wohlhueter & Champness, there can be no reasonable doubt, we think, that the bond in question would have operated to secure their rights in the property. McGlasson v. Bradford, supra; Tedrick v. Wells, 59 Ill. App. 657; Katz v. American B. & T. Co., 86 Minn. 168. We are unable to see that the mere fact that the plaintiffs in the replevin suit moved for leave to amend the proceedings by bringing Shaw & Company into the case worked any change in legal effect as to the relative rights of the parties in and to the property described in the replevin papers, including the bond, from the situation produced by the intervention of Shaw & Company, as above supposed. We therefore hold it was the true intent and meaning of the bond that the indemnity thereby given should extend to and include the property described therein and those in possession of or interested in the property through or under the asserted title and right of Wohlhueter & Champness.

Having thus determined the true construction and legal intent of the parties to the bond, the rule of strictissimi juris applies as to the surety on the bond.

Under the proof offered we are of the opinion that the bond sued on covered and protected the property taken under the amended writ of replevin. It was the same property described in the original affidavit and original writ and the bond. Upon the amendment being made, the amended writ became the writ of replevin in the case. The same titles to and rights in the property were involved after the amendment as before. The plaintiffs failed to prosecute their suit to effect and make a return of the property, and save and keep harmless the sheriff, the plaintiff in the action under review, in replevying the property, and thereby a breach of the bond was made. For this breach we think the plaintiff had a good cause of action, for, though not a covenant in express terms to Shaw & Company, it inured to their benefit and operated to secure their rights in the property through the sheriff as might be adjudged to them in the replevin action. McGrlasson v. Bradford, supra; Katz v. American Bonding & Trust Co., supra; Hanna & Finley v. International P. Co., 23 Ohio St. 622.

When the property described in the replevin bond is taken under a writ of replevin and delivered to the plaintiffs, who retain the same, as shown in the record before us, the plaintiffs and their surety are es-topped to deny the authority of the sheriff to take the property. Fahnestock v. Gilham, 77 Ill. 637; McFadden v. Ross, 108 Ind. 512; Cady v. Eggleston, 11 Mass. 282; Jennison v. Haire, 29 Mich. 206.

In onr opinion the trial conrt erred in sustaining the objections to the evidence and in giving the instruction for the defendant. The judgment is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.


author: Mr. Justice Baldwin

text:
    William Everett et al., Plaintiffs in Error, v. The Parker-Washington Company, Defendant in Error.
    Gen. No. 15,266.
    Municipal Court—what win not justify reversal of judgment. Even if the trial judge of the Municipal Court may err in ruling upon propositions of law submitted to him, yet under the Municipal Court Act it is not the duty of the Appellate Court to reverse the judgment rendered if substantial justice has been done.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Rehearing denied March 10, 1911.
    Statement by the Court. Plaintiffs in error brought a suit of the fourth class in the Municipal Court to recover $479.76, for coal delivered to the defendant in February, 1908. Defendant claimed that it bought the coal from Boedeker & Co., to whom it made payment therefor. The case was tried without a jury, and resulted in a judgment in favor of the defendant, to reverse which plaintiffs sued out of this court a writ of error.
    It appears that plaintiffs were buying coal from Boedeker & Co., and were selling to defendant, which was then engaged in constructing a tunnel for the city of Chicago, and had limited storage capacity. The coal was being delivered at the rate of about a carload a day from the yards of plaintiffs, by wagon,' to the different plants of defendant, and was billed to it by the ton. In the latter part of January, 1908, and owing to a disagreement between the parties, defendaat ordered plaintiffs to stop deliveries to it. This left on hand with plaintiffs several carloads of coal, and it is claimed that one Downing, an agent of Boedeker & Co., undertook to dispose of this coal, and that he did, in fact, arrange to sell it to defendant, though at a less price per ton than that charged by Everett & Son.
    Plaintiffs, agreeable to an arrangement with Downing, actually delivered the coal to the defendant from the cars mentioned by teams, whose drivers delivered tickets showing the coal to be received from plaintiffs, and plaintiffs charged upon its books the coal at the price it had theretofore been receiving, and delivered bills therefor to defendant, who claimed, in turn, that it turned over these bills to Boedeker & Co. Boedeker & Co. billed the coal to defendant at the price agreed upon, and were paid by the defendant for it.
    A. W. Martin and Edward H. S. Martlet, for plaintiffs in error.
    Frank L. Childs and Ode L. Bankin, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

The controversy is really to determine whether the plaintiffs shall be paid for the coal in question by the defendant, or whether the contention of the defendant is true that it had ceased its dealings with plaintiffs, and had actually bought the coal in question from Boedeker & Co., and had paid them for it,—and, therefore, whether the plaintiffs, in delivering it, were really delivering their own coal, or delivering for Boedeker & Co.

The controversy is essentially one of fact. The testimony was conflicting, and the trial court had the benefit of personally observing the witnesses and hearing their testimony. Even if the court below erred in some of the propositions submitted to it, yet, under the Municipal Court Act, it is not the duty of this court to reverse the judgment of the court below if substantial justice has been done, as we find in this case it has been.

Affirmed.


text:
    Charles M. Bloom, Defendant in Error, v. John Geanes et al., Plaintiffs in Error.
    Gen. No. 15,277.
    1. Executions—when error to order issuance. It is error to order execution- against a surety upon an appeal bond given upon an appeal from a justice’s judgment without having first entered judgment against him.
    2. Judgments—when amendment should he made nunc pro tunc. When it satisfactorily appears from the records and files of a case that the judgment entered was for an amount different from that intended by the court, upon motion of the party affected thereby a judgment for the amount intended should be entered nune pro tunc.

    Action commenced before justice of the peace. Error to the Circuit Court of Cook county; the Hon. Mebbitt W. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Reversed and remanded.
    Opinion filed March 3, 1911.
    Statement by the Court. November 28, 1905, Bloom, defendant in error here, and plaintiff below, obtained a judgment for $120 and costs against Geanes before Timothy D. Hurley, a justice of the peace. On the same day, Geanes took an appeal and filed with the justice his appeal bond, with Moseley, one of the plaintiffs in error, as surety. The appeal bond, together with the transcript of the justice, purports to have been filed in the Circuit Court on the 14th day of May, 1905, though from the entire record it undoubtedly was 1905. On the 25th of June, 1908, the Circuit Court entered a final judgment in favor of the plaintiff and against defendant, Geanes, for $125, and in the judgment order it was recited that it “is the amount of the judgment rendered herein in the court below,” and the order further granted statutory damages for $12.50 for delay, and directed a scire facias against Moseley, surety on the bond.
    The scire facias issued against Moseley recites that on June 26, 1908, Bloom recovered a judgment for $137.50 in the Circuit Court against Geanes, and that Geanes did on “the 14th of May, A. D. 1905,” file in said cause the appeal bond in question, and the writ commanded Moseley to appear and show cause why judgment should not be rendered against him, etc.
    On November 9,1908, the cause came on to be heard, and the court ordered execution against Moseley for $137.50, though it did not enter any judgment against him.
    Plaintiff in error claims that the court below erred in entering the judgment against Geanes for $137.50, and also erred in ordering execution to issue against Moseley.
    Defendant in error, Bloom, filed here an additional abstract showing that he had moved the conrt below to set aside the order of November 9, 1908, directing execution against Moseley, and that this motion was denied ; that he also moved the court to vacate the judgment against Geanes, entered on June 26, 1908, for $137.50,- as being a manifest mistake, and to enter a judgment order nunc pro tunc as of that date for $120, the amount of the judgment in the justice court, and $12 statutory damages, and he assigns cross-errors upon the action of the court in denying the motions.
    Edward H. Morris, for plaintiffs in error.
    Girard A. Ellingson, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

The court below clearly erred in ordering execution against Moseley, without having first entered a judgment against him, and for this action, plaintiff in error is entitled to reversal.

We also think it satisfactorily appears that the Circuit Court intended to enter a judgment for the same amount as did the justice of the peace, and that the files in the case constituted sufficient data to authorize the Circuit Court to correct its own judgment to make it conform to the manifest intention of the court, and, accordingly that the Circuit Court should have sustained the motion of Bloom to vacate the judgment of June 26, 1908, for $137.50, and to enter a judgment order nunc pro tunc as of that date for the sum of $120, and order a scire facias against Moseley to make him a party to the judgment.

Reversed and remanded.

Mr. Justice Clark did not participate in the decision of this case.


text:
    Sarah N. Johnson, Defendant in Error, v. Modern Woodmen of America, Plaintiff in Error.
    Gen. No. 15,293.
    1. Fraternal benefit societies—what “good health” sufficient to sustain reinstatement. If a person enjoys such health and strength as to justify a reasonable belief, on the part of himself and others, that he is free from serious organic trouble, or from symptoms calculated to cause a reasonable apprehension of such derangement, and if to ordinary observers and outward appearance his health is reasonably such that he might, with ordinary safety, be insured, and upon ordinary terms, the requirement of “good health” is satisfied.
    2. Fraternal benefit societies—when forfeiture mil not he enforced. If the reinstatement was allowed by the society without fraud or concealment practiced upon it, without medical examination made by it, such society will not, after continuing to receive assessments and not moving in the lifetime of the insured to set aside the reinstatement, be allowed to enforce a forfeiture after death as against the beneficiary.
    Assumpsit. Error to the Municipal Court of Chicago; the Hon. Charles N. Goodnow, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Statement by tbe Court. Defendant in error brought ber action in tbe Municipal Court to recover $1,000 from tbe plaintiff in error upon an insurance policy issued by it upon tbe life of tbe deceased, a son of tbe defendant in error. A jury trial was bad, resulting’ in a verdict and judgment for tbe plaintiff, wbicb tbe defendant seeks to reverse on a writ of error.
    Plaintiff in error is a fraternal beneficiary society, incorporated under tbe laws of tbe State of Illinois. Its benefit fund is made up of assessments upon its members, each being payable on or before tbe last day of tbe month following its levy. In case of non-payment during sucb month, tbe member is suspended, and the benefit certificate is null and void and so continues until reinstatement in conformity with the bylaws of the order.
    Deceased failed to pay his assessment during April, 1907, and, therefore, became suspended on May 1st for such non-payment, but on June 11,1907, he did pay his assessment to the Clerk of the local Camp of Modem Woodmen at Detroit, Michigan, where he was then living.
    The by-laws of the organization provide for the reinstatement of a member within sixty days from date of suspension, upon payment of all arrearages, provided that the member be in “good health” at the time of such reinstatement; and the by-laws further provide that the receipt and retention of such assessments, in case a suspended member is not in good health, shall not have the effect of reinstating him, or entitling him or his beneficiary to any rights under the benefit certificate.
    As a defense to the action plaintiff in error insists that deceased was not in “good health” at the time the assessment was paid; while defendant in error on the trial contended, not only that deceased was in such good health as is contemplated by the by-laws, but that even if he were not, this defense was waived by the act of the Clerk of the local Camp at Detroit, in receiving the assessment from deceased with knowledge of his condition at the time.
    While living in Detroit the deceased had been working in a window shade factory, with some irregularity, for several months, and until the latter part of May, 1907, when he quit work, partly because of his physical condition, which he attributed to “rheumatics.” He came to Chicago on the 7th of July, where, about a month later, he was examined by a Doctor Hendricks, to whom he stated that early in the year of 1907 he had fallen from a scaffold, or something of the sort, and hurt his hip. At this examination Dr. Hendricks found that his then suffering was due to sarcoma, or tumor, of the left leg or hip, and deceased was taken to a hospital in Chicago on the 8th or 9th of August, where he died on the 12th of September, 1907.
    During the trial, the court admitted in evidence, over objection of the plaintiff, a so-called hospital sheet, purporting to be a clinical hospital record from St. Elizabeth’s Hospital, Chicago, which gives certain alleged data about the deceased, and under the heading “Present Complaint” the record says, referring to the deceased, “About four months ago patient noticed pain in his left hip, extending to the knee,” etc.
    Truman Plantz, Arthur W. Fulton and George G. Perrin, for plaintiff in error.
    Darrow, Masters & Wilson, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Defendant in error made out a prima facie case, and it devolved upon plaintiff in error affirmatively to establish its defense, that deceased was not in “good health” when he was reinstated on the 14th of June, 1907.

The evidence offered to establish this defense consists largely of the testimony of employers and fellow workmen, and a brother of the deceased, all to the general effect that at different times, during the early months in 1907, deceased was crippled up and unable to work,—sometimes he was lame, and seemed to be in poor physical condition; that he complained of “rheumatics;” that, when he came to Chicago, July 7, 1907, he was not strong or able to work, but limped in his walk, and that really he came on account of his sickness, and being unable to work; that when examined in Chicago, with reference to admission to the hospital, about August 7th, he was found to have a badly swollen leg, which developed into sarcoma or tumor of the hip, from which he died on September 14, 1907.

Dr. Hendricks, who made the examination, testified that deceased told him, at the time of this examination, that he had fallen from a scaffold, or something of the kind, early in the year 1907, and had hurt his hip. The so-called hospital sheet was introduced in evidence over the objection of the plaintiff, which we think was not sufficiently proven to authorize its admission in evidence; yet, for the time being, considering it as properly received, we find that it contained a statement to the effect that, ‘ ‘ about four months ago patient noticed pain in left hip extending to knee. Couldn’t walk without limping. Lost about fifteen pounds. Appetite and strength pretty good at first, later appetite and strength were lost. Leg began to swell, two or three times size of right leg. ’ ’

The testimony on behalf of the plaintiff tended to show that deceased had been able to do his work in a fairly satisfactory manner, and did work up until the last of May, 1907; that from that time until he went into the hospital in Chicago there was no direct evidence about his health, except that he seemed to be about normal, and in Chicago went about apparently in usual health, except that he limped.

Whether or not the deceased was in good health at the time he was reinstated, was a question of fact for the jury. The evidence shows that the deceased died from an enormous tumor on his left hip, and we think the evidence justifies the belief that probably this tumor was caused by some accidental fall months before, and that, at the times he was indisposed, and when he thought himself afflicted with “rheumatics,” he was really suffering from the early stages of this disorder, from which he died. We think the evidence fairly shows that neither he nor his employers, nor his fellow employes, regarded his condition as serious; nor did any of them, at the time, think of his ailments as being more than incidental and ordinary.

It is evident that toward the end of his life the disease developed rapidly, because Dr. Porter, who was a witness, and who examined and treated the deceased in the hospital, testified, that it would be impossible for him to tell whether or not deceased was in good health on June láth,—the date of his reinstatement. Speaking of the condition of deceased, Dr. Porter said, “Why, judging from what we found when we took charge of him, and the progress of the case made after we had it, it was a rapidly growing tumor. Within two weeks we could notice considerable enlargement. ’ ’ This expert testimony, given on behalf of the defendant, the jury may well have regarded as significant, and as tending to confirm the belief that in the months of May and June there was probably no such indication of serious trouble as would alarm deceased or his friends, or suggest to them the necessity of a careful investigation into his condition.

We think the testimony, fairly considered, shows that while at the time of Johnson’s reinstatement his affliction was probably present in his system and gathering strength and virulence as it progressed, it was not then of such character as seriously to affect his physical condition, nor was it then thought by him or those who knew him, that his general health was seriously impaired.

The record contains no.evidence that there was any fraud or concealment practiced or intended by him in securing his reinstatement.

Under the law announced by our Supreme Court in Court of Honor v. Dinger, 221 Ill. 176, and by the Appellate Court in the same case, 123 Ill. App. 406, as applied to the facts in that case, and our own judgment as to a proper construction of the words “good health,” as here used, we think the jury were justified, under the evidence in this case, in finding that the defendant had failed to show that the deceased was not, when reinstated, in “good health,” within the meaning of these words as used in the by-laws.

The law does not require that in order to be in “good health,” Johnson, when reinstated, should have been in perfect health. It has repeatedly been held that the term “good health,” in referring to life insurance, and representing that the insured is in good health, is a comparative expression, and does not mean absolute perfection. If the person enjoys such health and strength as to justify a reasonable belief, on the part of himself and others, that he is free from serious organic trouble, or from symptoms calculated to cause a reasonable apprehension of such derangement, and if to ordinary observers and outward appearance his health is reasonably such that he might, with ordinary safety, be insured, and upon ordinary terms, the requirement of “good health” is satisfied. See Court of Honor v. Dinger, supra.

There is another consideration. Even if there were doubts as to whether deceased was in “good health” at the time of his reinstatement, we should still feel that, under the facts in this case, no fraud in securing reinstatement having been shown, that it would be inequitable to allow defendant to escape liability upon this ground. Johnson was reinstated without medical examination,—that being the regular and only maimer contemplated by the by-laws, where reinstatement was within sixty days; and since this had been done by the organization, through its regular channel, and without concealment or misrepresentation or fraud on Johnson’s part, the defendant should not be allowed to go on indefinitely receiving assessments and dues, and then when the death against which Johnson was insuring himself should overtake him, to claim, in effect, that the requirements for his reinstatement, prescribed by itself, were insufficient.

The organization took no steps during the life of Johnson to set aside the reinstatement, but continued to receive assessments and dues from him, and, after his death, Ford, the Clerk of the local camp at Detroit with whom the transactions as to Johnson’s reinstatement had been had, evidently in the regular course of his business, and on behalf of the defendant, sent additional blanks for proofs of death to the beneficiary, requesting that they be filled out and returned. Proof of such acts tends to establish waiver of forfeiture and acknowledgment of liability.

Forfeitures are never favored by the courts and waiver of forfeiture is possible even in fraternal organizations, in this state, at least. See eases above cited, and Jones v. Knights of Honor, 236 Ill. 113.

As to the alleged error in giving the complained-of instructions, while less concise and exact than might be desired, we do not find substantial error in giving them.

Accordingly the judgment of the court below must be affirmed.

Affirmed.


text:
    A. G. Boggiano, Defendant in Error, v. James R. Navigato et al., Plaintiffs in Error.
    Gen. No. 15,315.
    Municipal Court—when judgment not reversed. Harmless errors will not reverse nor will the judgment of the Municipal Court be set aside on appeal if substantial justice has been done.
    Error to the Municipal Court of Chicago; the Hon. Stephen A. Foster, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Bernard J. Brown, for plaintiffs in error.
    William Reeda, for defendant in error.
   Mr. Justice Baldwin

delivered the opinion of the court.

Boggiano sued James R. Navigato et al. in the Municipal Court of Chicago to recover $67.20, moneys alleged to have been “collected by defendants while defendants were plaintiff’s renting agents.” The case was tried several times, resulting in several verdicts for plaintiff, upon the last of which judgment was entered, to reverse which, cause was brought to this court upon writ of error.

The plaintiff was the owner of certain property, and employed defendants to collect and turn over to her rents therefrom, in consideration of which they were to receive as compensation 4% of the rents collected.

Among the tenants of the property in question was a Mrs. Drummond, and the controversy between the parties in this suit is really as to whether the defendants did or did not collect all the rent from Mrs. Drummond and turn it over, less their commission, to plaintiff; the defendants having testified to having turned over all the rents (less their commission) that they received, while Mrs. Drummond testified that she had paid to them all her rent, which included the amount sued for, and which they had not turned over to the plaintiff.

The defendants below made statements to the plaintiff, and accompanying the last, transmitted a check for the amount shown to he due, and the defendants claimed that there was written upon the face of the check “In full payment of all demands,” and this check was endorsed by the plaintiff, and put through the hank in the usual course, from which defendants claimed an accord and satisfaction.

The questions which we are asked to consider are:

1. Did the court err in admitting improper evidence?

2. Is there a preponderance of evidence to sustain the claim of defendant in error?

3. Does the record disclose an accord and satisfaction which in law is a bar to the action?

As to the first it is claimed, that it was improper to allow Mrs. Drummond to testify that she was in arrears with her rent. If it he conceded that the question was improper, the error was harmless, because she had already testified that she paid her rent each and every month, so that the answer to the other question was unimportant. •

Second, we think the evidence sufficient to sustain the verdict.

Third, we do not regard the circumstances shown sufficient to constitute an accord and satisfaction, and, therefore, a bar to the action.

The relation between the parties was more than debtor and creditor. The plaintiff testified that the wording was not on the check when she used it, or if it was, that she did not see it.

In any event, there was no sufficient showing to justify us in sustaining the claim of accord and satisfaction. Three juries have found against plaintiffs in error, and, from the record submitted to us, we find that substantial justice has been done, and the judgment of the Municipal Court will be affirmed.

Affirmed.


author: Mr. Justice Clark

text:
    The City of Chicago, Defendant in Error, v. The German Catholic Orphan Asylum, Plaintiff in Error.
    Gen. No. 15,308.
    1. Ordinances—validity of sanitary. An ordinance which requires one class of toilet equipment for certain buildings and permits a different equipment for another class of buildings, is valid.
    2. Ordinance <—when does not illegally delegate power. An ordinance pertaining to toilet equipment which designates the class of equipment which is to be used but which leaves the type to be such as will meet with the approval of the commissioner of health is not illegal.
    Action of debt. Error to the Municipal Court of Chicago; the Hon. John C. Scovel, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.

    Affirmed.
    Opinion filed March 3, 1911.
    Albert H. Meads, for plaintiff in error.
    George H. White, for defendant in error; Henry M. Seligman, of counsel.
   Mr. Justice Clark

The city of Chicago obtained a judgment in the Municipal Court of Chicago against the defendant in an action of debt, the suit being based upon an alleged violation of sections 1701, 1702, 1703 and 1709 of the Municipal Code. The plaintiff in error conducts an asylum for orphan children as a charitable institution, which has about 300 boy and girl inmates. The charge is that it permitted, maintained and allowed on its premises in the city of Chicago two trough urinals without automatic flushing tanks, as required by ordinance; that it maintained and allowed water closets and urinals other than that of an individual lipped sanitary urinal bowl, and that the bowls were constructed of cast iron, galvanized iron, sheet metal and steel, and that the same were not separately and independently trapped and revented; that it maintained and allowed two troughs or urinals without having automatically operated flush tanks, or flushing valves protected against a vacuum by ground seat check valves; and further, that it had installed certain plumbing fixtures, which were not “open plumbing,” as required by an ordinance of the city of Chicago. There is no serious contention on the part of the plaintiff in error that the facts shown do not constitute a violation of the ordinance, as charged, but it is insisted that the section particularly in question, viz., Section 1709, is void,—first, because it is unreasonable and oppressive, and second, because it delegates powers which the council cannot delegate, and leaves to an executive officer a discretion which makes the ordinance uncertain.

To substantiate its first point the plaintiff in error called as witnesses several architects and plumbers, but the questions propounded to them could not, if answered, have elicited information which would have aided in the solution of the point at issue.

Some of the questions asked, objections to which were sustained by the court, were the following:

Q. In your opinion, as a plumber, would an individual lip urinal be suitable for an institution of that kind?
Q. In your opinion, as a plumber, which is the better form, an individual lip urinal or a range urinal, for an institution like the one in question?
Q. In your opinion, as a plumber, is a range urinal or closet more necessary in a factory or workshop than in an institution like the one in question ?
Q. In your opinion, as an architect, assuming that there is an institution with three hundred boys or over, and it is necessary that a urinal and a system of closets be installed, is a range urinal and closet as necessary in such an institution as in a workshop or factory?
The particular portion of section 1709, which the plaintiff in error insists is unreasonable, reads as follows :
£ £ ]_7og # # # # *********
> “Range closets of types approved by the commissioner of health and the chief sanitary inspector may be installed in factories and work-shops only, and such closets shall be installed in separate compartments as hereinbefore provided for water closet compartments.”

The common council, in passing this ordinance, evidently took into consideration the fact that workshops and factories, which are occupied generally for only a portion of the day, should be put in a different class with respect to the plumbing, toilet conveniences, etc., than residences, hospitals and schools housing children.

We think that no discrimination is shown in making different provisions for such institutions.

As to the second point made by plaintiff in error, viz., that the ordinance is invalid because it delegates powers which the council cannot delegate, and leaves to an executive officer a discretion which makes the ordinance uncertain, we would say that the ordinance does not provide that the commissioner of health and the chief sanitary inspector shall determine whether a range closet shall be allowed to be installed in buildings other than factories or workshops, but simply that where such range closets are installed in factories and workshops, they shall he of a type such as meets with the approval of the commissioner of health and the chief sanitary inspector. We think it is quite within the power of the council to require, by ordinance, that if range closets are installed in factories and workshops, they shall he of such a character as not to imperil by their use the health of people who may be employed in such factories and workshops.

For the reasons stated the judgment of the Municipal Court will he affirmed.

Judgment affirmed.


text:
    William H. Bowers et al., Defendants in Error, v. Nellie E. Simpson, Plaintiff in Error.
    Gen. No. 15,318.
    Brokers and factors—when not entitled to real estate commissions. In order to sustain a recovery by a broker of real estate commissions it must appear that such broker was tbe procuring cause of tbe sale effected.
    Error to tbe Municipal Court of Chicago; tbe Hon. Hugh R. Stewart, Judge, presiding. Heard in tbe Branch Appellate Court at tbe March term, 1909.
    Reversed.
    Opinion filed March 3, 1911.

      Mason & Wyman, for plaintiff in error.
    Edward J. Kelly, for defendants in error.
   Mr. Justice Clark

delivered the opinion of the court.

Suit was brought by the defendants in error against the plaintiff in error to recover the sum of $200 for commissions alleged to have been earned on the sale of certain property. The agreement sued on reads as follows:

“March 17, 1908.
W. H. Bowers & Co.,
Chicago, Ill.
I hereby give you the exclusive sale of the following described property, to-wit: 3533 Wabash Ave., Chicago, for six months from date and thereafter until withdrawn, and agree to pay you the regular Beal Estate Board rules commission, provided the sale is made. Price $7,200.
(Signed) Nellie E. Simpson.”
It is admitted that a sale of the property was made by Mrs. Simpson to P. A. Dennison in May, 1908, for $7,000. She insists, however, that the defendants in error did not procure the sale and that before the sale was consummated or even contemplated she had withdrawn the authorization given Bowers & Co.
The transaction, so far as Bowers & Co. are concerned, was carried on by Bichard M. O ’Brien of that firm. The testimony in regard to the withdrawal was given by Mrs. Simpson herself, and her daughter, on the one side, and Mr. O ’Brien on the other.
Mrs. Simpson testified:
“I said to Mr. O’Brien ‘We have given up the sale of our house.’ He said ‘That is all right, Mrs. Simpson.’ I said ‘Have you been to any expense, Mr. O’Brien, since you have had this property?’ He said, ‘No.’ I said, ‘Did you advertise?’ He said, ‘Yes.’ I said, ‘Let me see the advertisement?’ He showed it to me on Wabash Avenue, between Thirty-fifth and Thirty-sixth streets, stone front honse, etc., price $7,200. I said ‘We have been very unsettled in selling our house and we wish to give it up.’ He said, ‘That’s all right, Mrs. Simpson, no expense attached to it.’ I said, ‘Is it necessary for me to have my contract; my papers, ’ and he said, ‘ No. ’ I thanked him very much. ’ ’
She testified on cross-examination that this conversation occurred several weeks before the sale of the house. Her daughter, Miss Simpson, corroborates her mother and says that the conversation occurred “about four to six weeks” after this contract was made.
Mr. O’Brien’s testimony in substance is as follows:
“I think I was alone in the office when Mrs. Simpson and her daughter came in. Mrs. Simpson asked how the property on Wabash Avenue was coming on and I said, ‘Not as lively as we might hope;’ that Wabash Avenue was not selling as actively as we hoped for, but we were advertising, and I showed her the book in which the advertisement was. She said it was getting on close to house cleaning time and she did not want to be disturbed by anyone being sent there. I says, ‘That’s all right,’ that we wouldn’t send anyone to the house without first communicating with her by telephone. I said I have one or two persons interested —a Mr. Smith, and he promised that he would inspect your honse before this time. She said that she did not want to sell the house now until later in the summer. I said to her that was her privilege, if she wished to withdraw the house that was her privilege, but we would not send anyone to her house during the time she was cleaning, without first notifying her. Then she says, ‘You have the contract,’ and I says, ‘Yes, we have the exclusive sale contract for six months on the property, and feel confident that we can sell it during that time.’ She said, ‘You haven’t sold it yet?’
I said, ‘That’s true.’ She says not to send anyone to her house. I said, ‘If you wish to withdraw the contract, that’s your privilege at any time, but we will not send anyone without first notifying you, and if the sale is made during the time, of course, we want the same per cent, as before.’ ¥e had spent some money advertising. She says, ‘What’s your expense?’ I says, ‘I can’t tell you, because the bookkeeper isn’t here. I kept no account of that more than writing the ads.’ She says, ‘I am willing to pay all expenses of advertising.’ I says, ‘As I explained to you, where we have the exclusive sale of a piece of property, we at no time request owners of the property to pay for the advertising.’ ”

Cross-examination.

“I told her if she wanted not to sell the property, that was her privilege to withdraw the contract at any time, if she wanted to retain the property. . She did not say she wanted to withdraw the contract.
Q. How did you come to mention that at all? A. When she raised the point that I had a contract of hers.
Q. What did she say about it? A. I says, ‘That is your privilege to withdraw your contract at any time, if you don’t wish to sell your property.’
Q. After she had said something about withdrawing the contract? A. No, sir. When she said that she didn’t want anyone sent to the house during this time. She thought that as I held a contract with her that I would enforce her to show the property during that time.
Q. You said that she could withdraw the contract, did you? A. Yes.”
Testimony on the question as to whether defendants in error were the procuring cause of the sale is also conflicting.
On the part of the defendants in error Mr. Bowers testified:
“I am a member of the plaintiff firm. I know Mr. Frank Dennison. Have known him for ten or fifteen years. I am familiar with his voice. I had a conversation over the telephone with Mr. Dennison in relation to 3533 Wabash Avenue. I had one conversation with him. It was some time around early last spring. I think the last of April, I cannot just state. Mr. Dennison called up our office and I answered the telephone. He told me who he was. I recognized his voice. Told me that there was a piece of property between Thirty-fifth and Thirty-sixth streets, on Wabash Avenne that we had for sale and he wonld like to trade it for a piece that he had on State street. I told him that I didn’t know whether the property was for trade or not, bnt I would take the matter up and let him know. He said he would be very anxious to make the trade; that he would like to get in that location to live. I turned the information over to Mr. O’Brien.”

Mr. 0 ’Brien testifies that a memorandum to call up Mr. Dennison by telephone was given him; that he asked for Mr. Dennison by telephone, “and was connected with a party who answered to that name.” On cross-examination he states, ‘ ‘ The way I submitted the property for sale to Mr. Dennison is that I got the communication from Bowers to call up Main 447, Mr. Dennison, corporation counsel, regarding this property. I called that number and asked for Mr. Dennison, and a party answering the telephone, gave me that as his name; that he was Dennison, assistant corporation counsel. He asked me what there was about this property—this party representing himself as Mr. Dennison. I described the property as clearly as I could and told him that we had it for sale. He wanted to know if he could trade some property that he had on State street for it. I told him he couldn’t as the owner did not want to trade the property, but had it for sale. He said he would be at the office at 8 o’clock Saturday or Sunday night. The day he was to appear it rained and Mr. Dennison didn’t appear. I called up Mr. Dennison and he told me that he was sorry that he had disappointed me and he would be unable to see me for a little time. I never had any personal interview with Mr. Dennis on prior to the time this deal was closed, and I don’t know that I ever saw him.”

May Longwich, who is in the employ of Bowers & Co., testified that she made the memorandum about Easter time and laid it on Mr. O’Brien’s desk. The memorandum read, “This is Mr. Dennison, corporation counsel, call up Main 447.”

On behalf of the plaintiff in error the testimony of Mr. F. A. Dennison was offered:

“I am the Mr. Dennison who purchased the property in question. My attention was called to it by Colonel John R. Marshall, game warden and colonel of the Eighth Regiment. He is game warden under the governor. I do not remember the date my attention was called to it. Mr. Marshall was the first person who called my attention to it. That was probably in February or March, 1908. I didn’t do anything after my attention was called to it. He didn’t call my attention to it for me to buy it. He called my attention to it to help him buy it. He was going to buy it for himself. About two weeks afterwards I took up the matter of purchasing it myself. I took it up with Colonel Marshall. He failed to get enough money to buy it and he told me about it, and I told him I didn’t have that much cash myself but that I had a house on State street and I told him if I could sell it I would buy that property. So he got me to call at the other property, and I went down and met Mrs. Simpson and her daughter and talked about it. She said she had gotten out of the notion of selling it then and had withdrawn it from the market. I didn’t do anything that evening at all. I saw Mr. Roberton, who was my real estate agent, and negotiations made for the property after that were conducted by Mr. Roberton, 100 Washington street. I took it up with Mr. Roberton about two weeks after Marshall had called my attention to it. ' I never had a talk over the telephone with Mr. Bowers about buying this property, but I had a talk with him about selling some property. About selling my propery at 3531 State street. I had received a letter from Mr. Bowers about buying, and I called Mr. Bowers up. I didn’t get him at first, but I went to his office and Mr. Bowers wasn’t in. I asked where he was and they told me at the other office. I went to the other office but didn’t find him. I did not tell them what I wanted to see him about. I didn’t get the proper connection with him. In the meantime, another man who had been trying to bny the house came in; that is the State street property. This man Eoberton came to see me. I didn’t know at that time but that he wanted to buy the house for the man next door. I told him I would sell if I got enough to buy another one equally as good. I told him what the other house had been offered to me at by Mrs. Simpson, and I said, ‘Now if you can buy that house for $6,000 or $6,500, I will take $500 less for mine; $8,000 for the State street house and the other one was $7,000,’ so he took up that and that was the way I got the property.”

Cross-examination.

“I never had any conversation with Mr. Bowers about 3533 Wabash avenue, nor with Mr. O’Brien. I never had any conversation with Bowers & Co., in regard to 3533 Wabash avenue. Mr. Eoberton, a real estate agent, negotiated the purchase of that property for me after I had been there (to 3533 Wabash avenue) with Colonel Marshall. Marshall introduced me to Mrs. Simpson and I never went back any more, but I sent a man by the name of Eoberton to buy that property. Eoberton had to sell one place to buy the other. I let him sell one, provided he would buy the other with that money. I had no conversation with Bowers about 3533 Wabash avenue, nor with anybody in Bowers’ office. I had a talk over the telephone several times trying to locate Bowers, but never said anything to anybody about that property.”
The Court: “You say you received a letter from Bowers about buying what? A. 3531 State street. That was the house that I was to get money from to buy the Wabash avenue house with.”
“I never had any appointment with Mr. O’Brien. Absolutely not.”

The defendants in error offered no testimony tending to show that they had any conference with Colonel Marshall or that they in any way submitted the property to him. It clearly appears that Eoberton had the transaction with Mrs. Simpson with regard to the sale of the property at 3533 Wabash avenue, and that it was part of his arrangement with Dennison that he was to sell for Dennison the property at 3531 State street and Dennison, with part of the proceeds, was to bny the Wabash avenne property.

We have searched the record in vain for any showing that Bowers & Co. were instrumental in the sale of the property by Mrs. Simpson, and we therefore find from the record that the defendants in error were not the procuring cause of such sale. The judgment should he reversed without remanding the cause, and a judgment will he entered in this court on the finding of fact in favor of the plaintiff in error and against the defendant in error.

Judgment reversed on finding of fact.


text:
    Edward J. Cavanaugh, Plaintiff in Error, v. Thomas J. Morris, Defendant in Error.
    Gen. No. 15,326.
    1. Justices of the peace—power to enter judgments Toy confession. Held, under tlie laws of Colorado, which, are substantially identical with those of Illinois, that a justice of the peace has no power to enter judgment by confession upon a cognovit unless summons has been issued and served upon the defendant in person or that the defendant has personally appeared in the suit.
    2. Judgments—effect given to those of sister state. The jurisdiction of the court in the other state must be affirmatively established before judgment will be entered in this state upon such foreign judgment.
    Error to the Municipal Court of Chicago; the Hon. Frank Crowe, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1909.
    Affirmed.
    Opinion filed March 3, 1911.
    Edward H. Thompson, for plaintiff in error.
    Bennison F. Bartel and Philip S. Brown, for defendant in error.
   Mr. Justice Clark

delivered the opinion of the court.

In this case the Municipal Court was asked to enter a judgment in favor of the plaintiff in error against the defendant in error, basing the same upon a judgment entered in a justice’s court before De S. De-Lappe, a justice of the peace in the city and county of Denver, Colorado, on March 25, 1908. The transcript was certified to by the justice in proper form and, in our opinion, the certificate of the county clerk attached to the transcript, and in which are recited the fact that DeLappe was a justice of the peace, the date at which his term began and at which it would expire, and the authority of a justice of the peace to act, etc., was also in proper form. By reference to the transcript, however, it appears that the summons was not personally served upon the defendant. The return of the constable is in the following words: “I hereby certify that I served the within summons on E. E. McGrintie, Attorney in fact under note of the defendant therein by serving a copy of the same.”

The record shows that this suit was brought upon a promissory note, to which was added a power to confess judgment. The question therefore is, whether a justice of the peace in Colorado has the power to enter judgment where no personal service is had upon the defendant but merely upon some attorney who assumes to act for him in pursuance of the cognovit. We agree with the position of defendant in error, that “A justice of the peace is a court of limited jurisdiction, has and can exercise no powers except those conferred' by statute, and whenever it assumes jurisdiction in a matter not conferred by statute, its acts are null and void.” The statute of Colorado with respect to the jurisdiction of a justice of the peace is substantially the same as that of Illinois, except that he may entertain jurisdiction in cases involving $300 instead of $200 as in Illinois. In the very early case of Evans v. Pierce, 2 Scammon 468, the Supreme Court of Illinois held:

“A justice’s jurisdiction is conferred by statute, and in its exercise he must proceed in strict conformity with the manner prescribed. Has that been done in this case? The statute directs that suit before a justice of the peace shall be commenced by a summons, the form of which is given, and that it shall be served upon the defendant by reading it to him; upon return of this process, executed by the proper officer, or upon the parties appearing in person before the justice, and agreeing to waive process, he may proceed to hear and decide the cause. In this case, however, the parties neither appeared and waived process, nor was there any process served. There was, therefore, neither cause nor parties legally before the justice to authorize his rendering judgment. The letter of Pierce did not warrant it, because the law having prescribed a different mode of acquiring jurisdiction of the person of the defendant, it must be strictly pursued, and cannot be varied at the will of the party or the justice. ’ ’
The court further held that “Although the letter of authority to the justice purports to be that of Pierce, yet it may not be genuine, and there is no way of ascertaining that fact; its authenticity cannot be proved in his absence. To institute such an inquiry would be adjudicating upon the rights of the party in his absence, and without communicating to him the nature of the proceeding.”

We hold that the same rule applies to a power of attorney as would apply to a letter purporting to have been sent by a defendant to a justice of the peace, authorizing a judgment to be entered against the writer. In other words, judgment may not be entered in a suit before a justice of the peace upon a power of attorney, unless summons is issued and served upon the defendant in person, or the defendant in person appears before the justice.

The suit of Weinz v. Dopier, 17 Ill. 110, was before a justice of the peace upon an award of arbitrators. In that case the court says: “The record of the proceeding before tbe justice wholly fails to show service of summons on Weinz, or appearance. Tbe judgment was evidently rendered upon tbe award, without summons or appearance, upon tbe supposition that tbe submission authorized tbe rendition of judgment thereon. To authorize a justice of tbe peace to render judgment upon an award, tbe award must be made upon a reference by tbe parties to a suit pending before such justice.”

And tbe court held that no jurisdiction could be obtained upon tbe defendant without service of summons upon him personally or bis appearance personally in the suit.

It is elementary, of course, that full faith and credit must be given by one state to tbe judgments entered in tbe courts of another state, but it is equally elementary that tbe jurisdiction of tbe court of tbe other state must be affirmatively established before a judgment may be rendered in this state upon such foreign judgment.

Judgment affirmed.