text:
    Drainage Commissioners of Union Drainage District No. 1 in the Towns of Harmon and Marion in Lee County, Appellees, v. James R. McCormick, Appellant.
    Gen. No. 6,020.
    (Not to be reported in full.)
    Appeal from the Circuit Court of Lee county; the Hon. Richard S. Fabband, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Statement of the Case.
    Assumpsit by Drainage Commissioners of Union Drainage District No. 1 in the towns of Harmon and Marion in Lee county against James R. McCormick.
    Defendant had acted as treasurer of said district for two years. The district, which was organized under the Farm Drainage Act (J. & A. ¶¶ 4475-4556) fixed the compensation of its first treasurer at two per cent.; though the compensation of subsequent treasurers up to defendant’s incumbency had not been fixed, they had been paid the same compensation. Defendant was also paid two per cent, for compensation for the first year of his term and retained $218 for his compensation for his second year. To recover this amount, plaintiff brought this suit, and a jury having been waived and the case tried on a stipulation as to the facts, the issues were found for plaintiff and its damages assessed at $218, and it had judgment therefor.
    Abstract of the Decision.
    1. Officers, § 62*—when not entitled to compensation. One who accepts a public office for which no compensation has been provided, is not entitled to any compensation and cannot appropriate to his own use for that purpose moneys of the office.
    2. Officers, § 62*—when written order for compensation necessary. Under the Farm Drainage Act, sec. 15b (J. & A. If 4491), a written order of the drainage commissioners is necessary to authorize the treasurer of the drainage district to retain his compensation out of moneys of the district.
    From this judgment, defendant appeals.
    Henry C. Ward, for appellant.
    H. A. Brooks and J. W. Watts, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.


source: Caselaw Access Project

author: Mr. Justice Niehaus

license: Public Domain

text:
    Anna Saxton, Appellee, v. Flora Drake, Appellant.
    Gen. No. 6,022.
    1. Evidence, § 476

      —when preponderance of witnesses not sufficient to show that verdict is contrary to evidence. Where the evidence is conflicting and there is nothing in the record to show that the jury were not justified in believing that the greater weight of the evidence rested in the plaintiff and her witnesses, the mere fact that defendant had the greater number of witnesses is not sufficient on appeal to justify a holding that a verdict for plaintiff was against the weight of the evidence.
    2. Master and servant, § 85*—where modification of instruction proper in action for wages. In an action by a servant to recover wages, an instruction requested by defendant to the effect if the jury believed that during the time for which the wages were sought plaintiff “was treated and cared for as a member of the family of the defendant,” such relation is presumed to continue and the burden of showing a change therein is upon the defendant, is properly modified by adding after the words quoted, the words “and so accepted such treatment.”
    3. Master and servant, § 85*—when modification of instruction in action for wages proper. Where defendant, in an action by a servant for wages, asks an instruction to the effect that if there was an implied understanding between the parties by which each was to receive the services of the other, without any intention of making charges therefor, then neither could recover for her respective services, though the jury might believe there was a difference in the value of such services, a modification of the instruction by adding thereto the words “unless you further believe from the evidence there was an express agreement to pay for such services,” is not error, where the change makes the instruction include an element of plaintiff’s case which the requested instruction omitted.
    4. New triad, § 77*—when newly-discovered evidence not ground for. Where there is nothing in the record to show that the witnesses, the newly-discovered evidence of whom is urged as a ground for a new trial, could not, by reasonable diligence, have been looked up, their knowledge of the facts ascertained long before the trial, and their attendance at the trial secured, it is not error to refuse to grant a motion for a new trial.
    Appeal from the Circuit Court of Peoria county; the Hon. N. E. Worthington, Judge, presiding. Heard in this court at the October term, 1914.
    Affirmed.
    Opinion filed January 6, 1915.
    Wolfenbarger & May, for appellant.
    W. M. Barnes, for appellee.

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

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

   Mr. Justice Niehaus

delivered the opinion of the court.

This is a suit in assumpsit which was originally brought by the appellee, Anna Saxton, against the appellant, Flora Drake, before a justice of the peace in the city of Peoria, to recover money claimed from the appellant for wages, alleged to be due the appellee under an express verbal contract. A trial was had before the justice, who found that the appellee was entitled to recover, and rendered a judgment for the'sum of one hundred and fifty dollars. The appellant then took an appeal to the Circuit Court, where the case was tried de novo by a jury, and a verdict was rendered finding the issues for appellee and assessing her damages at two hundred dollars. The appellant made a motion for a new trial and filed, in support of her motion, affidavits which set forth newly-discovered evidence.

The court, upon considering the motion, ordered the appellee to enter a remittitur of fifty dollars, which was done by her, and thereupon the motion for a new trial was denied, and a judgment entered on the verdict for the sum of one hundred and fifty dollars against the appellant, from which judgment she has appealed to this court. The principal errors assigned by appellant and urged as ground for the reversal of this judgment are:

(1) That the verdict of the jury is manifestly against the weight of the evidence; (2) that the court improperly modified two of the appellant’s instructions, and refused to give one of the instructions requested by the appellant; (3) that the court should have granted a new trial on account of the newly-discovered evidence.

While appellant has an apparent basis for claiming that the verdict is against the weight of the evidence, inasmuch as one more witness testified in support of appellant’s side of the controversy than on the side of the appellee, yet the number of witnesses does not necessarily determine the weight of the evidence. This seems too well settled to require any elucidation. The credibility of witnesses is always a large and important factor in determining the question of the weight of the evidence. The evidence in this case was very conflicting and contradictory, and the jury, who saw all the witnesses, observed their demeanor on the witness stand and their manner of testifying, their intelligence and candor, or lack of it, and considered the reasonableness or unreasonableness, the probability or improbability of the matters about which they testified, are in the best position to form a correct conclusion in determining the question of the relative credibility of the witnesses, and the relative weight of their testimony. To pass upon the credibility of witnesses who testify in a case and the relative weight of their testimony is the peculiar function of the jury.

This court cannot say from anything that appears in the record that the jury were not justified in believing that the greater weight of the evidence rested in the testimony of appellee and her witnesses, though there were a greater number of witnesses on the side of the appellant.

The rule laid down by the Supreme Court in the case of Lowry v. Orr, 6 Ill. (1 Gilm.) 70, has been constantly adhered to in this State, and in our opinion is decisive of the question now under discussion. The Court in that case says: 1 ‘ Where there is a contrariety of evidence on both sides, and the facts and circumstances, by a fair and reasonable intendment, will warrant the inferences of the jury, courts will reluctantly, if ever, disturb their verdict, notwithstanding it may appear to be against the strength or weight of the testimony. So, where the verdict depends upon the credibility of the witnesses, it is the peculiar province of the jury to judge of that credibility, to attach such weight to the testimony of each, as may seem to be proper, after a due consideration of all the circumstances, arising in the particular case.”

In considering the errors assigned in connection with the modification and refusal of instructions, we find that the court gave four instructions on. the part of the appellant, two of which, namely, Nos. 3 and 4, were modified, and one instruction requested by the appellant was refused.

Instruction No. 3 was modified by interlining the words, ‘ and so accepted such treatment, ’ ’ which made the instruction read as follows:

“You' are instructed that if you believe from the evidence that during the period in question in this case, the plaintiff was treated and cared for as a member of the family of the defendant and so accepted such treatment, then you are instructed that such family relation is presumed to continue and the burden is upon the party alleging a change of such relation to prove such change.”

Instruction No. 4 was modified by adding at the end the words, “unless you further believe from the evidence there was an express agreement to pay for such services, ’ ’ making the instruction read as follows:

“You are instructed that if you believe from the evidence that the plaintiff and the defendant understood that they were each receiving services from the - other with no.then present intention of making any charges therefor, then you are instructed that neither can recover of the other for any such services performed, even though you may believe from the evidence there was a difference in the value of such services, unless you further believe from the evidence there was an express agreement to pay for such services.”

We are of opinion that these modifications of instructions were proper. Instruction No. 3 as presented, embodied the assertion that if the appellee was treated and cared for as a member of the family of the appellant, that such relation is presumed to continue, and that the burden is upon the party alleging a change of such relation to prove it. The relation mentioned would not be presumed in law to continue, unless it was first established, and to establish it would require not only that the treatment and care be given to appellee as a recognition of such family relation by the appellant, but also the recognition of such family relation by the appellee, by such acceptance of care and treatment as would indicate that she regarded herself as a member of the family, and did not receive the same merely as a servant of the family. By the interlineation of the words mentioned, the instruction, we think, more accurately expressed the law upon the point involved, as applicable to the matters in controversy in the case, and the modification was therefore proper.

The fourth instruction, without the modification, is to this effect: That if there was an implied understanding between the parties by which each was to receive the services of the other, without any intention of making charges therefor, then neither could recover for her respective services, though the jury might believe that there was a difference in the value of such services. While the proposition of law set out in this instruction is not incorrect, it did not state the whole of the question involved, in its application to the case. The appellee claimed that there was an express agreement between her and the appellant, by which she was to receive a definite amount of wages for her services; and if this was proven, the implication suggested by the instruction would not arise to defeat her right of recovery under the express contract. The modification broadened the scope of the instruction to meet this additional element, which was a part of the controversy and was therefore proper.

The refused instruction which the appellant presented to the court to be given to the jury does not accurately state the law as applicable to the controversy. The appellee might have resided with the appellant as a member of her family, and received care, support and attention as such, and no charge be made for such care, support and attention by appellant, yet at the same time she might also have had an express agreement with appellant, as she claims she did, to receive a certain amount of pay for the work she was to perform • for appellant." Under this instruction, even though the greater weight of the evidence should show that appellee had such an agreement, she would not be entitled to receive a verdict in her favor. The instruction was therefore properly refused.

But it is insisted that the court should have granted a new trial on account of newly-discovered evidence, which is set forth in the affidavits of G-. C. Seddon and A. H. Eifert.

In order to entitle a party to a new trial on the ground of newly-discovered evidence, it must clearly appear that the party could not have procured such evidence at the previous trial, by the exercise of reasonable diligence. In the case of Wright v. Gould, 73 Ill. 56, the Supreme Court, in deciding the point in question, used the following significant language:

‘ ‘Waiving all other objections which might be taken to the sufficiency of this affidavit, it is palpably defective in not showing that Bagan’s evidence could not have been discovered and produced on the trial by the use of reasonable diligence. His affidavit shows that he would have contradicted certain statements sworn by certain of appellees’ witnesses to have been made by himself, with regard to the quantity of flax seed received by appellants. It does not appear that Bagan could not have been found, and the correctness of those statements learned in time to have used his evidence, if it had been found desirable, before the trial concluded. A party is not allowed, on a motion for new trial, to avail of his ignorance of evidence which he could have discovered in apt time, by the exercise of reasonable forethought and diligence. His affidavit should have negatived every circumstance from which negligence may be inferred.”

In this case, about four months intervened between the time of the commencement of the suit and the time of the trial in the Circuit Court. This gave appellant ample time to look up all the evidence pertaining to her side of the case. The witnesses in question resided in the city of Peoria, and appellant knew they had been boarders at her house during part of the time that appellee worked there, and that naturally they might know something concerning the matters in controversy between her and the appellee.

There is nothing in the record to show why the appellant could not, by the- exercise of reasonable diligence, have looked up the witnesses and ascertained from them what they claimed to know about the case long before the time of the trial in the Circuit Court, and to have had them in attendance at that trial if she desired tó avail herself of their testimony. In not doing so, the appellant was clearly lacking in reasonable diligence, and the court below was therefore fully justified in refusing to grant a new trial on the ground of this newly-discovered evidence.

We are of "opinion that the motion for a new trial was properly denied, and that a judgment should have been rendered upon the verdict.

Judgment affirmed.

Affirmed.


author: Mr. Presiding Justice Baume

text:
    John F. Devine, Administrator, Plaintiff in Error, v. Illinois Central Railroad Company and Blue Island Car & Equipment Company, Defendants in Error.
    Gen. No. 18,723.
    (Not to be reported in full.)
    Error to the Superior Court of Cook County; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed in part, reversed in part and remanded.
    Opinion filed February 3, 1915.
    Statement of the Case.
    Action by John F. Devine, suing as the administrator of the estate of Russell S. Scott, deceased, against the Illinois Central Railroad Company, a corporation, and Bine Island Car & Equipment Company, a corporation, for the wrongful death of plaintiff’s intestate. From separate judgments against the plaintiff in favor of defendants upon directed verdicts, plaintiff brings error.
    On October 29, 1908, the defendant Equipment Company operated a plant for the manufacture and repair of freight cars. At the southwest comer of the enclosure was a double gate which was ordinarily kept closed and locked. The Railroad Company maintained a single track which ran into the plant through a double gate, where it connected with a system of tracks belonging to the Equipment Company running through the plant. The space between the westerly track and the next track to the east was used by the Equipment Company for storage and for the piling thereon of “kindall frames,” which were T-shaped, constructed of wrought iron, six or seven feet in height, having a bottom width of about three feet, and weighing about two tons each. As so placed or piled in said space there was usually a distance of about eight inches between the frames and the body of cars of ordinary width, passing on the westerly track. The frames were removed from time to time as required for use, but the frames in question had remained where they stood at the time of the accident for about five days. The deceased was employed by the Equipment Company as a night watchman, and among his duties was to open and close the gates, and to deliver orders from his superintendent to incoming train crews with reference to the disposition of cars hauled within the plant. At about ten o’clock on the night in question, a crew of the Railroad Company approached the gates with a train consisting of a locomotive, three cars and a caboose, and gave the usual signal for the gates to be opened. The deceased opened the gates in response to the signal and delivered an order for the placing of the cars to the conductor. The cars were of the gondola type and the one in question was loaded to its capacity with lumber. The end gates of said car were turned down upon the platform and the lumber was piled upon the platform and held in place by the upright sides. As the train entered the plant of the Equipment Company the cars were ahead. The train thus backed in slowly, and the deceased and McCarthy, a switchman employed by the Railroad Company, walked upon the track ahead of the cars. When the head car, being the one in question, reached the point where the frames were standing, it came in contact with one or more of said frames, causing the same to fall. As the frames were falling, the deceased ran to the right to avoid some anticipated danger and was struck by one of the falling frames and injured, from which injuries he died. An examination of the car made early the following morning disclosed that both sides of the car were bulged out, the east side, being the side which had come in contact with the frames, more than the other; that the east side was bulged out six or seven inches at the- top; that the upright stakes which supported that side of the car fit into iron pockets which were bolted to the under sill; that the bolts had been drawn into the wood of the sill, thus permitting the pockets to enlarge and the stakes to sway out; that there was a fresh mark or cut on the front stake about eighteen inches from the top and a like mark or cut on the sill; that one of the grab irons appeared to have been recently tom off. The car was loaded solidly with oak planks placed “back and forth” tier upon tier. Prior to the accident, and while the frames were in the same position, the Railroad Company had made frequent deliveries of cars within the plant of the Equipment Company, upon which occasion the cars operated upon the track in question had safely cleared said frames.
    Johnson & Belasco, for plaintiff in error.

      Abstract of the Decision.
    1. Negligence, § 48

      —what constitutes proximate cause. In an action for personal injuries, where either of two causes may produce a result and only one of them is shown to have been present, it may be concluded by the jury that the cause shown to have been present at the time the result was produced is responsible for it.
    2. Negligence, § 204*—propriety of verdict directed for defendant. Where plaintiff seeks to hold an equipment company liable for alleged negligence in placing “kindall frames” so close to a railroad track as to he likely to he struck by a passing car, and the evidence clearly established that the frames as placed afforded sufficient room for all properly loaded cars in good order to safely clear the frames, and no evidence tended to show that the Equipment Company was chargeable with notice or knowledge that the car in question which struck the frames was so improperly loaded or permitted to project outward that it was liable to strike the frames, which were placed in such manner as not to fall unless violently struck by a defective car or other violent means, held that a peremptory instruction to find the Equipment Company not guilty for the wrongful death of its watchman while walking near the pile and a passing car was properly given by the court.
    3. Railroads, § 695*—sufficiency of declaration to support proof of improper loading of car. Where a count attempts to charge a railroad company with negligence in having the car in question project outward, and the sufficiency of the charge is not challenged in the court below, an Appellate Court will hold it sufficient to support proof of negligence in permitting the car to so project outward and in operating the car in such condition.
    4. Railroads, § 740*—where question of negligence requires submission to jury. In an action for wrongful death from being injured by falling frames when struck by a passing freight car which was found to be tightly loaded between its projecting sides, and the nuts or heads upon the bolts by which the iron pockets were presumed to be securely fastened to the body of the car were found to be drawn into the wood on the inside of the sill, whereby the pockets were enlarged and the stakes spread outward, and it appeared that cars of like width in good order had been hauled upon the same track without striking the frames as they were placed at the time of the accident, held the court erroneously directed a verdict in favor of the defendant Railroad Company.

      Calhoun, Lyford & Sheean, for defendant in error, Illinois Central Railroad Company; John G. Drennan, of counsel.
    H. B. Bale and Rose, Symmes & Kirkland, for defendant in error, Blue Island Car & Equipment Company.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

5. Railroads, § 740 —questions for jury. Whether the sides of a freight car improperly project so as to strike a pile of frames alongside a railroad track-and whether a railroad company is chargeable with knowledge that its sides so project are questions requiring submission to the jury under the evidence.

6. Railroads, § 516*—duty towards persons near defective car moved on track. Where the sides of a car improperly project prior to an accident, and the railroad company is chargeable with knowledge of such projection, the duty is imposed upon the railroad company to exercise reasonable care to see that the track upon which it moves the car is in a reasonably safe condition to permit such car to be moved thereon without injury to persons rightfully near such car.

7. Railroads, § 740*—question of notice as to clear space for jury. The question whether a railroad company is charged with notice of the clear space between a pile of frames and its track is one for the jury.

8. Railroads, § 762*—where question of contributory negligence requires submission to jury. In an action for the wrongful death of a watchman injured by frames falling when struck by a passing freight car, whether deceased was in the exercise of due care for his own safety is one of fact requiring submission to the jury.


text:
    Michael Morrison, Appellee, v. The Peoples Gas Light & Coke Company, Appellant.
    Gen. No. 19,271.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Hugo Pam, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed February 3, 1915.
    Rehearing denied February 18, 1915.
    Statement of the Case.
    Action by Michael Morrison against The Peoples Gas Light & Coke Company to recover for personal injuries. From a judgment in favor of plaintiff for twenty-seven hundred and fifty dollars, defendant appeals.
    The declaration alleged that plaintiff was a laborer working in a ditch nine feet deep and three feet wide; that boards were placed on each side of said ditch for the purpose of supporting the walls thereof, which boards were driven into the earth at the bottom of said ditch by means of mauls; that it was the duty of defendant to exercise reasonable care to furnish plaintiff and the other workmen there mauls that were in a reasonably safe condition and repair; that defendant negligently furnished the workmen driving said boards with an unsafe maul, in that the head of said maul was insecurely fastened to the handle thereof, and was liable to slip from said handle; that defendant knew that said maul was unsafe and in a bad condition of repair; that while plaintiff was working in said ditch and while a colaborer of plaintiff was driving one of said boards into the earth with said maul, the head of said maul slipped from the handle thereof and fell into said ditch striking plaintiff on the head; that said colaborer of plaintiff was without negligence. At about nine o ’clock in the forenoon of April 13, 1910, plaintiff, who was employed as a ditch digger, had prepared the ditch for boards to be driven into the ground for the purpose of preventing the sides from caving in. Higgins, a gang foreman, directed McEwen to take a wooden maul, which was then lying on the earth bank, and drive the boards down. In response to such direction McEwen took the maul and drove the boards down while plaintiff, stationed in the bottom of the ditch, held the boards in an upright position. After McEwen had been so engaged in driving down the boards for fifteen or twenty minutes, and while he was swinging the maul, the head of the maul slipped or came off the handle and struck plaintiff on the head, causing injuries complained of. Plaintiff had no occasion or opportunity to inspect the maul, and while McEwen had not inspected it carefully, the head of the maul appeared to him to be tight upon the handle. During the forenoon of the day preceding the injury to plaintiff, the same maul had been used for the same purpose by Connors, another laborer, and while he was then so using it the head had come off the handle and fallen in the bottom of the ditch. Higgins, the foreman, then told C'urrey, who was employed by defendant as a laborer and repair man, to replace the handle in the head of the maul, and Currey then did so replace the handle and drove a wedge in the end of the handle to keep it firmly in place in the head of the maul, the same maul was thereafter during the remainder of that day used in driving boards into the bottom of the ditch. The maul was examined by Higgins the following morning and the head was found by him to be properly fastened to the handle and held in place by a wedge driven into the end of the handle.
    Sears, Meagher & Whitney, for appellant; James F. Meagher and Edwin Hedrick, Jr., of counsel.
    David K. Tone and H. M. Ashton, for appellee.

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

Abstract of the Decision.

1. Master and servant, § 132 —simplicity of tool as relieving from duty to inspect. A maul for driving boards into the earth is a simple tool so that no duty is imposed upon the master to inspect it for defects.

2. Master and servant, § 132*—sufficiency of repair and inspection of tool. Evidence held not only to negative any knowledge on the part of the master that a maul used for driving boards was defective and unsafe when direction was given to use it, but affirmatively to show that the maul had been recently repaired and that the master had every reason to believe It to be in a reasonably safe condition for use.


author: Mr. Presidirtg Justice Baume

text:
    Herman Ulrich by Augusta Ulrich, Appellee, v. Knickerbocker Ice Company, Appellant.
    Gen. No. 19,313.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Henry V. Freeman, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed February 3, 1915.
    Statement of the Case.
    Action by Herman TJlrich, a minor, by Ms next friend, Augusta Ulrich, against Knickerbocker Ice Company, a corporation, to recover for personal injuries. From a judgment for twenty-two hundred and fifty dollars against defendant in favor of plaintiff, defendant appeals.
    The declaration alleged that on December 1, 1909, plaintiff, aged fourteen years, was lawfully walking upon and along Archer avenue, near its intersection with Blake street; that the defendant was then and there possessed of an ice wagon and. of horses drawing the same, which were then and there .under the care of certain servants of the defendant who were then and there driving the same upon and along said Archer avenue near its intersection with said Blake street; that it became and was the duty of the defendant by its said servants to drive, manage and control the said horses so attached to said ice wagon with reasonable care, along and upon said street, and not wantonly, maliciously and wilfully strike at persons who might then be walking upon said street, yet the, defendant did not regard its duty in that behalf, but on the contrary thereof, by its said servants, wantonly, maliciously and wilfully struck at the plaintiff, who was then lawfully upon said street with all due care and caution for his own safety, with the whip, then and there in the hands of the servant of the defendant, causing the plaintiff in his endeavor to escape the said blow so directed at him to jump out of the reach of the said whip, and in so doing the rope which was attached to the plaintiff’s arm caught in the wheel of the defendant’s wagon, throwing the plaintiff down to and upon the ground there, dragging him along said street so that he sustained severe internal and external injuries, etc.
    The evidence introduced on behalf of plaintiff showed that plaintiff was then about fourteen years and two months of age. While returning from an errand on which he had been sent by his mother in company with his cousin, who was then about nine years and ten months old, they had crossed the street car tracks in Archer avenue, in a southerly direction, and plaintiff was standing about midway between the south or eastbound track and the south curb swinging a lasso over his head preparatory to throwing it at his cousin, who was then some eight or nine feet ahead of him, the lasso being tied about plaintiff’s left wrist. The defendant’s ice wagon was coming from the south towards them and when it reached the place where the boys were the driver of the team, who was sitting on the side nearest the boys, cursed the boys and struck the plaintiff over the back with a whip, causing the plaintiff in his sudden fright to let go of the lasso which he had been swinging over his head and causing it to fly onto the hub of the right hind wheel of the defendant’s wagon. As the wagon went on it wound the lasso around the hub, drawing the plaintiff up into the wheel, breaking the plaintiff’s arm in several places. There was no pretense that the plaintiff was, at the time in question, attempting to get upon the wagon or that he was obstructing or attempting to obstruct or interfere with its movement, or that defendant’s servant struck the plaintiff for the purpose of preventing the latter from doing any like act, or in retaliation of anything the plaintiff had done or had threatened or purposed to do.
    Abstract of the Decision.
    1. Master and servant, § 846

      —when an act not within the scope of employment. Where a servant commits an act which causes injury to another, the master is not liable if the servant in causing the injury, is not acting within the general scope of his employment, and while engaged in his master’s business with a view to the furtherance of that business.
    2. Master and servant, § 846*—acts not■ within the scope of employment. Where a driver of a wagon for his master struck a boy across the back with his whip, while the latter was playing with another boy with a rope as a lasso, no attempt being made to interfere with the driver or the movement of his wagon, held to be an act not within the scope of the servant’s employment such as to permit recovery for damages for injuries received as against the master.
    Quin O’Brien and O. A. Arnston, for appellant; John P. McKinley, of counsel.
    Joseph A. Weber, for appellee.

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

   Mr. Presidirtg Justice Baume

delivered the, opinion of the court.


text:
    William H. Carpenter, Appellee, v. Charles. S. Norlander, Appellant.
    Gen. No. 20,618.
    (Not to be reported in full.)
    Interlocutory appeal from the Circuit Court of Cook county; the Hon. John P. McGooety, Judge, presiding. Heard in the Branch Appellate Court.
    Reversed.
    Opinion filed February 3, 1915.
    Statement of the. Case.
    Bill by William H. Carpenter against Charles S. Norlander to restrain the interference with the use of a water supply from a certain tank and windmill. From an interlocutory order overruling defendant’s motion to dissolve a temporary injunction restraining defendant from further depriving complainant of the water supply and from continuing to divert the same from a tank installed and connected with said windmill, defendant appeals.
    The material averments of the bill were that complainant is the owner of a certain farm, which, on December 6, 1911, by a written lease, he demised to defendant for the" term of three years from March 1, 1912; that said lease contains a reservation to complainant as follows: “Said Carpenter hereby reserves the house now occupied by him and family with front and back yards with convenient room for access to and from and about the same, also reserves the barn known as the North Barn on said premises with convenient room for access and use of same, also reserves the orchard nursery on said farm and included access * * * ”; that defendant went into the occupancy of said premises, under said lease, and now occupies the same; that the back yard mentioned in said reservation clause in said lease is located behind the house back to a tight board fence which separates said back yard from the premises leased to defendant; that at the time said lease was executed there was a circular tank ten feet in diameter so placed as to be convenient for use as a watering place for stock kept in either of the barns on said premises and for general farm purposes; that, about one half of said tank was and is located upon the portion of said farm reserved by complainant and the other half of said tank was and is located upon the portion of the farm leased to defendant; that about one-half of said tank is on either side of said tight, board fence and said tank was and is supplied with water from a windmill standing on the portion of the farm leased to and occupied by defendant. The bill further alleges that by the terms and provisions set forth in said lease that said water supply, as so furnished by said windmill and tank "at the time of the execution of said lease, was reserved by complainant; that at the time of and in connection with the execution of said lease, the matter of said water supply, as then furnished by said windmill and tank, was discussed by the parties thereto, and it was then specifically stated by complainant and defendant that said water supply was included in the reservations set forth in said lease and should be so considered by and between said parties; that defendant then stated, in connection with the execution of said lease, that said reservations set forth therein should be so construed as to assure to complainant the undisputed right to said water supply during the term of said lease, and under said interpretation of the provisions of said lease, complainant, relying upon the same, delivered possession of said premises to defendant; that both of said parties did so use said water supply from said tank for all the purposes aforesaid without dispute or question until March 1, 1913, when defendant refused to allow complainant to use the same, and has resisted complainant’s attempts to use the same for his stock and other purposes; that complainant 'has no other water supply on said premises from which he can furnish water for his stock and household, and that complainant has about six head of cattle and six head of horses on the portion of the premises reserved to him by said lease; that unless defendant is restrained from further depriving complainant of said water supply and use of the portion of the premises reserved by him, he will suffer irreparable injury at the hands of defendant; that defendant is insolvent.
    Abstract of the Decision.
    1. Equity, § 247

      —necessity of amendment of supplemental Mil on demurrer sustained. Where a demurrer interposed by defendant to an original bill and supplemental bills is sustained and leave was given to file an amended bill, and an amendment was filed t.o the original bill, but no leave was asked or granted to amend the supplemental bill, the supplemental bill ceases to be a part of the case for review.
    2. Landlobd and tenant, § 155*—rule as to exceptions anrl reservations. Exceptions or reservations embodied in a leasehold contract for the benefit of the lessor will, in the case of doubt or ambiguity, be construed least favorable to the party claiming the benefit of the exceptions or reservations.
    3. Injunction, § 192*—insufficiency of Mil to shou> property rights in lessor. Where it was contended that a windmill, pump and well on the portion of premises leased to defendant, together with the tank, which was in part upon the portion of the premises reserved to complainant, were fixtures running with the land, and the bill does not set forth the manner in which or means whbreby the water was carried from the pump to the tank, or how the pipe, if it be such, carrying the water was connected or fixed to the pump and tank, there are not enough specific allegations to determine whether or not such instrumentalities are fixtures.
    Charles B. Hazelhurst and Eddy, Wetten & Pegler, for appellant.
    L. H. Grange, for appellee.

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

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

   Mr. Presiding Justice Baume

delivered the opinion of the court.

4. Landlord and tenant. § 84 —inadmissibility of parol evidence to aid construction. Where a bill to restrain the interference with a certain water supply reserved to the complainant in a lease predicates a right to relief upon an alleged oral agreement entered into between the lessor and lessee contemporaneous with the written contract under seal, it is inadmissible to vary the terms of the written conti-act, as the leasehold contract cannot rest partly in writing and partly in parol.

5. Landlord and tenant, § 84*—when the doctrine of practical construction may be invoiced. In an action to restrain a lessee from interference with lessor’s water supply alleged to be reserved in a lease, the doctrine of practical construction may only be properly resorted to when the terms of the contract are uncertain and ambiguous.


author: Me. Justice Graves

text:
    Albert A. Newman, Defendant in Error, v. Newman Clock Company, Plaintiff in Error.
    Gen. No. 19,193.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Harry M. Fisher, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed.
    Opinion filed February 3, 1915.
    Rehearing denied February 18, 1915.
    Statement of the Case.
    Action by Albert A. Newman against Newman Clock Company, a corporation, to recover monthly instalments of salary due under a written contract of employment. From a judgment on a directed verdict in favor of plaintiff for seven hundred and fifty dollars, defendant brings error.
    Amos W. Marston, for plaintiff in error.
    Elmer E. Jackson and Newman, Levinson, Becker & Cleveland, for defendant in error.

      Abstract of the Decision.
    1. Contracts, § 294

      —performance as condition precedent to recovery on. Where a plaintiff causes the record to show that he elects to stand by his amended and supplemental bill and permits the same to be dismissed for want of jurisdiction at his costs and appeals on the record to reverse the order appealed from, it constitutes such a breach of his covenant to “forthwith discontinue” all suits against defendant as to preclude his recovery for salary on a written contract of employment containing such covenant for discontinuance of all suits.
    2. Contracts, § 294*—sufficiency of performance to assert rights. Where under a written contract of employment it is agreed that all suits brought by plaintiff against a. defendant corporation and its directors, or any of them, and by defendant corporation against said plaintiff shall be forthwith- discontinued without costs to either party as against the other, plaintiff will not be heard to'say that his appeal from an order of the Federal courts was to permit a proper adjudication as to the disposition of funds in the hands of a receiver, in an action by him to recover unpaid instalments of his salary.

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

   Me. Justice Graves

delivered the opinion of the court.


author: Mr. Justice Graves

text:
    B. A. Lynch, Plaintiff in Error, v. Charles Eifler and Bertha Eifler, Defendants in Error.
    Gen. No. 19,229.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph P. Rafferty, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed and judgment here.
    Opinion filed February 3, 1915.
    Statement of the Case.
    Action by B. A. Lynch against Charles Eifler and Bertha Eifler to recover balance due on contract for the sale of real estate on instalments. From a judgment in favor of defendants, plaintiff brings error.
    Charles and Bertha Eifler entered into a contract on April 17,1909, with Mary and Emil Marshall, whereby they agreed to pay to the said Marshalls the sum of $1,500 in instalments and assumed and agreed to pay a certain mortgage for $2,200 on certain premises described in the contract, and the Marshalls agreed that when all of the said instalments were paid they would convey to the Eiflers the premises in fee, subject to the mortgage. The premises had been occupied by the Marshalls for several years as their home. Upon the execution of the contract the Marshalls surrendered to the Eiflers the possession of the premises and they were still in possession when this action was instituted. The contract was filed for record on December 18,1911. On May 3,1910, the Brand Brewing Company obtained a judgment by confession in the Circuit Court of Cook county against the Marshalls for $617.12 and costs. An execution was issued on the judgment and returned unsatisfied. On August 16, 1912, an alias execution was issued and wás levied on the premises in question, and on September 17,1912, the said premises were sold under this execution to the Brand Brewing Company and that company held the certificate of sale at the time this action was commenced. On May 18,1911, the Marshalls borrowed of Mary H. Fox the sum of $250 and assigned to her their interest in the contract above mentioned as security for the loan. On April 17, 1912, Mary H. Fox assigned to B. A. Lynch the said contract, and three days later she brought suit against the Eiflers to recover the amount then due on said contract, which was admitted to be $346.50.
    Emery S. Walker and Walter E. Moss, for plaintiff in error.
    Max Borchardt, for defendants in error.

      Abstract of the Decision.
    1. Vendob and purchases, § 306*-rnohen judgment against vendor no defense to action for purchase price. Where real estate is sold on instalments to one who goes into possession and a "judgment is subsequently obtained against the vendor, the vendee cannot set up a sale of the vendor’s interest in the premises under an execution on the judgment as a defense to a suit for unpaid instalments instituted upon an assignment subsequent to the rendition of the judgment, since the vendor had no interest in the property to which a lien could attach'.
    2. Judgment, § 553*—effect of judgment as to vendor's interest in property sold on instalments. Where a purchaser of real estate goes into possession, a subsequent judgment against the vendor constitutes no lien on the title or interest remaining in such vendor by reason of unpaid instalments.
   Mr. Justice Graves

delivered the opinion of the court.


text:
    United States of America for use of J. G. McCarthy Company, Appellee, v. L. L. Leach & Son et al., on appeal of The United States Fidelity & Guaranty Company, Appellant.
    Gen. No. 19,287.
    1. Payment, § 6

      —effect of taking note on original debt. The giving and acceptance of a promissory note for and upon the settlement of a previously existing past due indebtedness is prima facie evidence of the satisfaction and extinguishment of such indebtedness, so that no recovery can be had on the original account or. debt without an affirmative showing that the note was not intended as a payment, satisfaction or extinguishment of the old debt.
    2. Payment, § 6*—effect of failure to surrender note on, original • debt. The fact that an unpaid note given for an original indebtedness was not surrendered before suit tends to show that it and ' not the original debt was considered the basis of liability.

      3. Payment, § 6

      —effect of giving note to preclude action on original debt. In an action in debt upon a bond given by a contractor and his surety in compliance with an Act of Congress for the protection of persons furnishing material and labor for the construction of public works, held as an ultimate fact that certain notes given by the contractor to the subcontractor were given and accepted in full settlement, satisfaction arid payment of the original debt such as to preclude recovery on the obligation.
    Appeal from the Circuit Court of Cook county; the Hon. Samuel C. Stough, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of fact.
    Opinion filed February 3, 1915.
    Judah, Willard, Wolf & Reichmann, for appellant.
    Edward H. Morris, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

L. L. Leach & Son, ah Illinois corporation, on July 14,1900, entered into a contract with the United States Government to construct certain buildings in Washington, D. C., for which they were to receive $76,000. On July 21, 1900, it gave a bond in the sum of $38,000, in compliance with the provisions of an Act of Congress then in force, approved August 13,1894, entitled, “An Act for the protection of persons furnishing material and labor for the construction of public works,” with appellant, the United States Fidelity and Guaranty Company, as surety, and conditioned in part that it, the said L. L. Leach & Son, should “promptly make payment to all persons supplying labor or materials in the prosecution of the work contemplated by the contract,” which said bond was then duly approved. Leach & Son were to be paid for the work as it progressed, amounts aggregating ninety per cent, of the agreed total amount. The other ten per cent, of such amount was to be paid upon the completion and acceptance thereof. The J. G. McCarthy Company, also a corporation, did the painting and glazing for the structure and furnished the materials used in so doing, under a subcontract entered into between it and Leach & Son. For the part of the work and materials furnished by McCarthy Company, Leach & Son agreed to pay to it the sum of $1,967. Eighty-five per cent, of the value of the materials so furnished and of the labor performed was to be paid for from time to time, and at such time or times as Leach & Son should receive from the United States its payments under the original contract, the remaining fifteen per cent, thereof to be paid when all the materials and labor contracted for had been furnished and completed to the satisfaction of the supervising architect or person in charge of the work for the United States. The work under the McCarthy contract was by its terms to be completed on or before December 20, 1900. The entire contract of Leach & Son was to be completed by January 21,1901. McCarthy Company performed its contract within the specified time and in due time Leach & Son completed its original or main contract and was paid therefor in full by the Government. Leach & Son and McCarthy Company had other business transactions during and after the time the work was being done under the contracts in question, and entirely disconnected therewith. Money was loaned by the McCarthy Company to Leach & Son from time to time and money was paid by Leach & Son to the McCarthy Company. On October 8, 1901, almost ten months after the work done by McCarthy Company was completed, and almost nine months after the entire contract was completed and after Leach & Son had received its pay from the Government therefor, two notes were given by Leach & Son to McCarthy Company, aggregating $3,321.21. This was the total amount then due from Leach & Son to McCarthy Company on all accounts. One of these notes for $1,660.60 was due in six months from date and. the other was for $1,660.61 and was due in one year from the date thereof. Each note drew five per cent, annual interest. The first one of these notes to become due included $301.37 of the amount due on the McCarthy contract, and the note last due included $979.46 of the amount so due thereon, a total of $1,280.83. The six months’ note was paid at maturity. Afterwards Leach & Son became insolvent and the note due in one year was not paid at maturity and had not been paid when this suit was begun, which was on May 1, 1906, five and one-half years after McCarthy Company was entitled to its money under the contract sued on. This suit is in debt on the bond. The jury found the issues for the plaintiff, found the debt to be $38,000 and assessed the plaintiff’s damages at the sum of $1,342.68. Upon this verdict judgment was entered.

Appellant makes the point that the notes given on October 8, 1901, were given and accepted in full payment of all amounts due appellee from Leach & Son, including the balance due under the contract in question here, and that appellant was thereby discharged from all liability to appellee on the bond sued on. Appellee does not deny that if the notes were so given and accepted in discharge and payment of the original obligation secured by the bond then appellant was discharged from liability thereon, but insists that the verdict, which amounts to a finding that they were not so given and accepted, is amply supported by the evidence and should not be set aside. In this connection, our attention is called to the fact that L. L. Leach, the president of Leach & Son, testified that the notes were given as an “evidence of indebtedness,” “to show, that is, what was due on each job.” “To straighten up the account on different jobs.” “Well they were not given as payment,” and when asked: “When you gave these two notes were they not given in full settlement of the balance that was due from L. L. Leach & Son to J. Gr. McCarthy Company”? Answered, “No,” and when asked at another time, “Weren’t they given in full settlement”? Answered, “Well you might call it.” And that Justin Gr. McCarthy testified that the notes were placed on the books of McCarthy Company' as bills receivable and not as a cash credit. In weighing this testimony it should be borne in mind that it was given in December, 1912, while the transaction to which it relates took place October 8, 1901. More than eleven years intervened between the occurrences testified about and the trial. It is also worthy of note that both of these witnesses while they were testifying were interested in having appellant held liable on its bond. McCarthy was interested in collecting the unpaid balance and Leach was interested in having an honest obligation of Leach & Son collected from a corporate surety that had been paid to assume the liability. The testimony of Justin Gr. McCarthy was at the most but a conclusion from what appears on the books and is worthless as evidence. He testified: “I don’t know what they (the notes) were given for.” “I have no personal knowledge about it.” “I am taking the book’s word for it.”

It is often true that facts existing, things done and circumstances surrounding the parties at the time of a transaction and connected therewith, the existence of which no one disputes, are of more probative force than the testimony of witnesses given at a time, long after the transaction is closed, when the particulars of it may well have been forgotten, or the interest of the witnesses may be a hindrance to frankness. Particularly is that true when the thing to be determined is the intent with which a given act was performed. There are in this case a number of uncontroverted facts that tend most forcibly to prove that the notes in question were intended as a payment of the debt.

First. The notes were given for an amount found due upon the settlement of existing past due accounts. It has long been the settled law of this State that the giving and acceptance of a promissory note for and upon the settlement of a previously existing past due indebtedness is prima facie evidence of the satisfaction and extinguishment of such indebtedness and that no recovery can be had on the original account or debt without affirmatively showing that the note was not intended as a payment, satisfaction or extinguishment of the old debt. McConnell v. Stettinius, 7 Ill. 707, 713; Ralston v. Wood, 15 Ill. 159, 171, 172; Smalley v. Edey, 19 Ill. 207-211; White v. Jones, 38 Ill. 160-165; Morrison v. Smith, 81 Ill. 221, 223, 224.

Second. The debt was due January 21, 1901. The notes were given and accepted October 8, 1901. The first note to mature was due and was paid April 8, 1902. Before the maturity of the second note Leach & Son were hopelessly insolvent, as McCarthy Company well knew, and the note was not paid, yet no claim or demand on appellant was made for this debt and no notice, constructive of direct, of its existence was given appellant, until May, June or July, 1905, and no suit was begun to recover on it from appellant until May, 1906, five and one-half years after the debt was due, although other claims of appellee against appellant on like bonds given after this debt was due, to the amount of $7,000, were in the meantime adjusted and paid. The insolvency of Leach & Son furnished ample reason why appellee would naturally apply promptly to appellant for the payment of this debt, if it was believed a valid liability therefor existed. These circumstances without explanation are in accord with the theory, and strongly tend to show that it was mutually understood between appellee and Leach & Son that the original debt was paid and extinguished and merged in the notes.

Third. The explanation made in 1905 by J. Gr. McCarthy, Sr., who was president of the McCarthy Company when the debt became due and when the notes were accepted, of why claim was finally at that late date made by his company against appellant for this debt was that, while he did not consider his company had any claim it was entitled to enforce against appellant for this debt, his son, Justin, who had been attending law school, believed it had. When this explanation is considered in the light of the facts that McCarthy, Sr., knew all about and participated in the transaction when it took place, and knew that appellant was originally liable for this debt, and that McCarthy, Jr., knew nothing about it except what he got from the books, the conclusion is irresistible that McCarthy, Sr., understood that the liability of appellant had been extinguished by the giving of the notes.

Fourth. The books of McCarthy Company show that the account in question was balanced by the notes, and the books of Leach & Son contain the following memoranda with reference to the unpaid note: ‘ ‘ Our note given them for twelve months after date, due October 8, 1902, in full settlement of contract for painting, glazing, etc., of the northwest extension of the Bureau of .Engraving & Printing.”

Fifth. The rule adhered to in the Federal courts is that where a note is taken as mere evidence of a debt and is dishonored, the creditor, if he desires to sue on the original indebtedness, must surrender the note, but that the action on the original debt is in the meantime suspended. Harris v. Johnston, 3 Crunch (U. S.) 317; The Kimball, 3 Wall. (U. S.) 37; Looney v. District of Columbia, 113 U. S. 261; Segrist v. Crabtree, 131 U. S. 287. The fact that the unpaid note was not surrendered before suit tends to show that it and not the original debt was considered to be the basis of liability.

To our minds the testimony of Leach, uncorroborated by any fact, circumstance or witness, and contradicted by the recitals in the books of his own company, as well as by the books of McCarthy Company, falls far short of overcoming the legal presumption arising from the giving of the notes, corroborated as that presumption is by the facts and circumstances hereinbefore recited. From a careful consideration of all the evidence in this record, we are forced to the conclusion that by a great preponderance of that evidence it is established that the notes were taken and accepted as a payment of the indebtedness included therein, and that in so far as the verdict of the jury amounts to a finding that the same were not so taken, it is against the manifest weight of the evidence.

The judgment of the Circuit Court is therefore reversed with a finding of fact to be incorporated in the judgment of this court.

Judgment reversed with finding of fact.

Finding of fact.—We find as an ultimate fact that when the notes in question were given by L. L. Leach & Son and accepted by J. Gr. McCarthy Company they were given and accepted in full settlement, satisfaction and payment of the indebtedness sued for in this case.


text:
    Charles F. Ross, Appellant, v. New South Farm & Home Company, Appellee.
    Gen. No. 19,304.
    1. Appeal and error, § 1078

      —necessity of cross-error to appellee's right to review. Where appellant has assigned all errors necessary to the review of all findings and rulings adverse to him and no cross-errors have heen assigned, the findings of fact must, as against appellee be considered to be supported by the evidence.
    2. Corporations, § 748

      —when want of license not a defense. In an action to recover a commission for securing a loan, the fact that defendant is a foreign corporation and has not complied with Hurd’s R. S., ch. 32, sec. 67c (J. & A. If'2527) does not constitute a defense, since it is not primarily unlawful to contract for a commission to secure a loan.

      3. Corporations, § 748

      —enforceability of unlawful contract against foreign corporation. While contracts made in violation of Hurd’s R. S., ch. 32, sec. 67c (J. & A. H 2527) are not enforceable at the instance of the corporation, they are enforceable against the corporation unless they are unlawful in themselves.
    4. Brokers, § 4*—construction of requirement of license as to isolated acts. An ordinance making it unlawful for one to engage in the business or act in the capacity of a broker, within the city, without first obtaining a license, applies only to persons engaged in the business of brokerage as an occupation or vocation and not to those who have participated in isolated acts.
    5. Brokers, § 28*—what constitutes an unlicensed brolcer. In an action to recover a commission for securing a loan, held as an ultimate fact that plaintiff was not at the time of the transaction involved a broker or acting in the capacity of a broker within the meaning of sections 192 to 198 of chapter XV of the Ordinances of the City of Chicago, making it unlawful for one to engage in the business or act in the capacity of a broker, within the city, without first obtaining a license.
    Appeal from the Municipal Court of Chicago; the Hon. Harry C. Moran, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Reversed with finding of fact and judgment here.
    Opinion filed February 3, 1915.
    Miller, Starr, Packard & Peckham, for appellant; Charles L. Cobb, of counsel.
    W. A. Bowles and Foreman, Levin & Robertson, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

Appellee is a Florida corporation owned chiefly, if not exclusively, and officered by three gentlemen respectively named Sieg, Leven and Strauss. This corporation dealt in Florida lands extensively, had large assets, substantial liabilities, and was in need of money. On February 7, 1911, Leven, on behalf of the corporation, told its needs to one Clyde A. Mann, and told him if he would put the corporation in touch with some one from whom it could borrow $50,000 or $100,000, it would give to Mann ten per cent, on the amount borrowed as his commissions. Mann told Leven he thought the loan could be secured and asked him to put his offer in writing which was done. This written proposal was assigned by Mann to C. F. Ross. A loan of $100,000 from the Assets Realization Company, sometimes called “Cobe and McKinnon” was soon negotiated. Thereafter, but before the money was paid over, Ross asked Sieg and Strauss for a written confirmation to him of the agreement made between Leven and Mann, which had been so assigned to him. In response to that request the following writing was executed by appellee and delivered to Ross:

“New South Farm and Home Company
Merchants Loan & Trust Building, Chicago,
March 1, 1911.
Mr. Chas. F. Ross,
339-341 Rand McNally Bldg.,
Chicago, Ills.
Dear Sir:
We hereby confirm the arrangement made by Mr. Ben Leven of date February 7th, 1911, whereby we are to pay you 10% commission on all-moneys received by us from Cobe and McKinnon or from others which you are instrumental in getting for us. Said commission is to be paid in cash when any deal is consummated.
Yours truly,
New South Farm & Home Company,
Chas. H. Sieg,
President.”

Soon thereafter the Assets Realization Company began to pay over to appellee the funds negotiated for, and appellee began paying to appellant instalments on his commissions. In that way appellant received from appellee $1,000 on March 10, 1911, $1,000 on March 13, 1911, and $1,000 on March 15,1911. Further payments were refused by appellee and this suit was brought to recover $7,000, as the unpaid balance of commissions due Boss for being instrumental in getting the loan. The court before whom the case was tried without a jury held the following facts, among others, to be established by the evidence: That the contract between the parties for procuring a loan was repeatedly ratified and acknowledged by appellee; that appellee continued throughout the transaction to request and encourage appellant to continue his efforts to procure the loan with full knowledge of his claim for commissions, and that it was estopped to deny the contract; that appellant was instrumental and the procuring cause in securing the loan of $100,000 for appellee; that appellant did not procure the contract by fraud, circumvention or false representations; that in rendering the services he did render in securing this loan appellant was engaged in the business and was acting in the capacity of a broker in the city of Chicago, and had not complied with the ordinances of the city regulating brokers; that appellee is a foreign corporation not duly - licensed to do business in this State and not entitled to do business here without a license; that the business here involved was transacted in the city of Chicago and in the State of Illinois.

The court then found the issues for the defendant (appellee here) and rendered judgment against the plaintiff (appellant here) for costs. ‘

Appellant had assigned all errors necessary to the review of all findings and rulings adverse to him. No cross-errors have been assigned. The findings of fact must, therefore, as against appellee, be considered to be supported by the evidence.

During the trial a motion of appellant to strike from the files that paragraph of appellee’s affidavit of defense which set up the defense that it was a foreign corporation not licensed to do business in this State was reserved to the end of the case and was then allowed. No cross-error has been assigned by appellee to that action of the court and the correctness of that ruling is, therefore, not here for review. However, as counsel on both sides have argued at length the question whether a foreign corporation of a character requiring a license in this State before it is authorized to do business here, and not so licensed, can avail itself of that fact to defeat its own contract, we have given it consideration.

Section 67c, ch. 32, Hurd’s R. S. (J. & A. ¶ 2527), which prohibits foreign corporations of certain kinds from doing business in this State without being first licensed by the Secretary of State, was enacted for the protection of persons dealing with such corporation and not for the protection of the corporation against those with whom it deals.' No foreign corporation is bound to comply with that statute. It may refrain from so doing and be safe, provided it at the same time refrains from transacting business and exercising its corporate powers here. If it undertakes to transact business or exercise its corporate powers in this State without complying with this statute, it does so at its own risk. It is presumed to know the law, and it necessarily knows the fact whether it has complied with the law or not, for to comply with the law requires affirmative action on the part of its officers. Those with whom it deals, while also presumed to know the law, may not and usually do not know and are not able to find out whether it has complied with the law without very considerable trouble and delay and some expense. To exact the same penalty from one who acts in ignorance of whether those with whom he is doing business have complied with the law, and are, therefore, entitled to transact the business in hand and who relies and has the right to rely on the presumption that every man will comply with the requirements of law and act honestly, as is exacted from him who knowingly acts in violation of law, would manifestly not be dealing out even-handed justice, even in cases where the transaction entered into is unlawful in itself. We think no respectable authority can be found which, when rightly understood, can be construed to announce the law to be that in cases where the transaction is not in itself unlawful, the party who knowingly acts in violation of law can use such acts as a shield or defense when called upon by the innocent to perform, its part of the transaction so entered into. Contracts made in violation of the section of the statute above referred to are not enforceable at the instance of the corporation, but unless they are unlawful in themselves they are enforceable against the corporation. It was not primarily unlawful for appellee to contract for a loan or to contract with appellant to aid them in securing a loan and to pay him a commission for so doing. The fact that appellee was a foreign corporation and had not complied with the provisions of section 67c of chapter 32, Hurd’s Revised Statutes, constitutes no defense to appellant’s claim in this case. Watertown Fire Ins. Co. v. Rust, 141 Ill. 85, adopting the opinion in the same case found in 40 Ill. App. 119; Rockhold v. Canton Masonic Mut. Benevolent Society, 129 Ill. 440; McCartney v. Supreme Tent, 132 Ill. App. 15; Thompson on Corporations, vol. 5, sec. 6711.

What we regard as the controlling question presented by this appeal is whether appellant, while performing the services in which he claims to have earned the commissions sued for, came within the provisions of section 192 to 196 inclusive of chapter XY of the Ordinances of the City of Chicago. Section 192 provides that: “It shall be unlawful for any person or corporation to engage in the business or act in the capacity of a broker, within the City, without first obtaining a license therefor. ’ ’ Section 194 defines a broker as ‘ one "who is engaged for others in negotiating contracts relative to property with the custody of which he has no concern.” Section 195 defines a real estate broker to be “one who is engaged for others in negotiating contracts relative to real estate.”

In the case of O’Neill v. Sinclair, 153 Ill. 525, an ordinance, in substance the same as the one now in force, with the words “or in the capacity of” omitted, was construed. That court held that the negotiation of a single sale by a person who was not in the business of selling or negotiating sales of real estate did not constitute him a real estate broker within the meaning of the ordinance; that the term “real estate broker” applied solely to persons making sales or negotiation of sales of real estate as a business or occupation. The O’Neill case, supra, has been cited with approval in Weinshenker v. Epstein, 176 Ill. App. 104; Jones v. Missouri Lumber & Mining Co., 166 Ill. App. 266; Packer v. Sheppard, 127 Ill. App. 598; Lake v. Koutsogianis, 174 Ill. App. 252, and in each of those cases, except the Weinshenker case, supra, as well as in Crilly v. Young, 152 Ill. App. 72, the plaintiff who was suing for commissions in a single transaction without having taken out a license as a broker was allowed to recover his commissions on the theory announced in the O’Neill case, supra, the evidence being held not to show that the party was engaged as a business in selling property for others or negotiating contracts relative thereto.

We are not prepared to hold, as was apparently done in the Crilly case, supra, that it necessarily requires more than one act of brokerage to bring one under the provisions of the ordinance in question. If one should rent and furnish an office and place on the doors and windows thereof signs announcing that he is in the brokerage business, spend his time in listing property for sale and customers for property, solicit business in his line and undertake to negotiate for others contracts relative to real estate, he would, we think, be a broker and be amenable to the ordinance referred to, even before, and certainly when, he had consummated the first deal. There is no mystery about this ordinance. It is plainly intended to reach those who are in the, business of brokerage and no one else. Appellee insists that the words “or act in the capacity of a broker,” added by an amendment to the ordinance, were so added for the purpose of prohibiting and do prohibit single acts, such as, if repeated, would constitute a-brokerage business. Whatever reason there might be in that contention, if it were now a question for original construction, we do not consider it now to be an open question. In all the cases above cited, we think, with the exception of the O’Neill case, supra, the words “or act in the capacity of a broker” were included in the ordinances at the time the cases.arose, yet the court either ignored the added words or- treated them as surplusage and construed the ordinance to mean the same as it was construed in the O’Neill case. In all those cases, except the Weinshenker case, the plaintiff, who was not a licensed broker, and who was suing to recover for commissions earned in a single transaction, was allowed to recover. In Banta v. City of Chicago, 172 Ill. 204, this ordinance, containing the words in question, was construed to be “an ordinance declaring it unlawful for any person, association or corporation to engage in business in the capacity of a broker” and that it “levies a license fee upon each person pursuing the occupation of a broker,” and was held valid, because the city has “ample power and authority to impose license fees upon the occupation of a broker * * *.” All through that opinion the ordinance is treated as applying to persons engaged in the occupation or pursuing the vocation of a broker. No expression is there found that suggests even the possibility that the words referred to could be intended to apply to isolated acts of persons not so engaged. In view of the long and unbroken line of cases in which the rights of litigants have been determined by the courts of this State upon the theory that this ordinance as at present worded applies only to persons engaged in the business of brokerage as an occupation or vocation and not to those who have participated in isolated acts, it would be the height of presumption for this .court now to give to it a contrary meaning.

On the question of whether appellant at the time he rendered the services for which he claims commissions was engaged in the city of Chicago in the business of a broker as an occupation or vocation, there is no conflict in the evidence. It all comes either from the mouth or pen of appellant or from those who have testified of his acts. On the witness stand appellant told, apparently without reserve, of the various places where he had been employed or in business from his first start in a business life in Toronto, Canada, to the day of the trial, and what he did in those various places, although it is inconceivable how what he did, or where he was engaged in business at times and places both before and after the transaction here involved and at remote distances from the city of Chicago, can be of much aid in determining whether he was engaged in brokerage as a business, calling or vocation at the time in question. The list of the businesses in which he has been engaged includes banking in Toronto, Canada, from 1882 to 1896; brokerage at the same place about two years after he quit the banking business there; manager of trading stamp companies in Massachusetts and Connecticut; selling paving blocks in New York on commission; general agent on salary for Pacific Coast Borax Company at Boston, Mass., and Buffalo and Bochester, New York, up to about the time he came to Chicago, which was in June, 1909; an accountant, auditing' the books of the Chicago Athletic Club; selling stock and promoting for the Consolidated Casualty Company up to March, 1910; “got out pamphlets and things like that” at Newton, Iowa, in connection with an issue. of preferred stock in a corporation there; worked a “couple of months” in Southern Illinois for C. S. Kidder of Chicago, who was in the bond business; audited the books of the Lamont City Bank; went to Indiana and tested out a railroad safety device; and sold life insurance for Union Central Life Insurance Company. That was in January, 1911. It was while he was so last engaged that the contract between Leven and Mann on which this suit is based was turned over to him. On March 1, 1911, he introduced a Mr. Baldwin, connected with and who wanted a loan for the San Jose Lumber Company, to Mr. Ridgely of the Assets Realization Company. Between February 8th and March 10th he secured some money for Leven or the appellee from some person other than the Assets Company. This was the last transaction appellant was engaged in up to the time this suit was commenced. During his examination as a witness he was asked: “You found that the supposition prevalent, that you had procured this loan from the Assets Realization Company for the New South Farm & Home Company helped you in your business, did it not?” To this he answered, “No, I didn’t have any business as a matter of fact. ’ ’

A careful consideration of appellant’s testimony must, it seems to us, convince any impartial mind that in truth he did not have any definite business which it can be said he was following as an occupation or employment, and that his last answer above quoted was literally correct. It further shows that he was a man who held himself ready and willing to pursue any line of endeavor where his personal efforts and ingenuity would be likely to be remunerated.

' If his testimony is true, and it is uncontradicted and sounds reasonable, if he could be said to have any business at the time he undertook to render and when he rendered the services sued for, it was that of a life insurance agent, or, as it is sometimes called, selling life insurance. If it be a fact that his success in this transaction stimulated in him a determination to enter the business of a broker, and if in fact he did thereafter engage in that business, such facts could not be considered as relating back to and characterizing this transaction, the opportunity for which came about unsought. We think that the finding of the trial court that at the time of this transaction appellant was engaged in the business of a broker and that he was acting in the capacity of a broker is clearly in conflict with the evidence.

The contract sued on and its performance by appellant being established, judgment should have been entered in the Municipal Court for the $10,000 agreed commission, less $3,000 paid before suit was brought, together with interest on the unpaid balance of $7,000 at five per cent, per annum from March 17, 1911, the date the contract was repudiated to the date of the judgment.

The judgment of the Municipal Court is, therefore, reversed with a finding of fact to be incorporated in the record of this court, and judgment here entered in favor of appellant and against appellee for $8,357.21, which includes $7,000, the unpaid part of the agreed commission stipulated for, and $1,357.21, interest on $7,000 at the rate of five per cent, per annum from March 17, 1911, when this debt was repudiated, to this date, and for costs in both courts.

Judgment reversed with finding of fact and judgment here.

Finding of fact.—We find as an ultimate fact that appellant was not at the time of the transaction here involved a broker or acting in the capacity of a broker within the meaning of sections 192 to 198 of Chapter XV of the Ordinances of the City of Chicago.


text:
    Oliver K. Burkey, Appellee, v. Chicago City Railway Company, Appellant.
    Gen. No. 19,323.
    (Not to be reported in full.)
    Appeal from the Circuit Court oí Cook county; the Hon. Adelob J. Petit, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1913.
    Affirmed.
    Opinion filed February 3, 1915.
    Statement of the Case.
    Action by Oliver K. Burkey against Chicago City Railway Company for personal injuries. From a judgment against defendant in favor of plaintiff, defendant appeals.
    Plaintiff testified that he attempted to board defendant’s street car, which had stopped on a signal to receive passengers, and that before he reached the platform, the car started with a violent jerk, throwing him partly on the platform and partly off, so that by the force of the motion he rolled off into the street, resulting in the fracture of a bone in one of his legs. In these particulars he was corroborated by an apparently disinterested eyewitness and by the undisputed fact that he suffered the fracture on the day in question.
    He was also corroborated by the testimony of the conductor of a car which he says he boarded soon after the accident, who testified that he complained to him of having been thrown from a car and hurt about the time and place testified to by appellee, and also by a doctor who testified to being called to treat plaintiff and that he found the fracture complained of.
    The conductor in charge of the car in question testified plaintiff did not attempt to board the car and was not thrown from the car at all. His testimony was in a way corroborated by the negative testimony of some other witnesses who were in a position in which they might have seen the occurrence, if it had taken place, who say they did not see it occur. Plaintiff was contradicted by the testimony of the conductor to whom he complained and whom he asked to report the accident to the company, who testified ■ that plaintiff then pointed out a different place in the street where he then said the accident happened and that he then made statements in conflict with his testimony as to how it happened. This plaintiff denied.
    Abstract of the Decision.
    1. Street railroads, § 113

      —irrelevancy of evidence. In an action for personal injuries, testimony as to the manner in which plaintiff attempted to board the street car and the way in which he fell and where he went and what he did before and after the accident throw no light on the vital questions whether he was thrown from the car at all, and if so whether it was the result of the negligence of the street railroad company or of the passenger.
    2. Carriers, § 476*—sufficiency of evidence upon conflicting testimony to sustain verdict for personal injuries. In an action to recover damages for personal injuries alleged to be due to plaintiff’s being thrown from a street car by reason of its sudden starting up while he was attempting to board it, evidence held, sufficient to support a verdict upon conflicting testimony and a judgment in favor of the plaintiff.
    Watson J. Ferry, for appellant; Leonard A. Busby, Warner H. Robinson & Benjamin F. Richolson, of counsel.
    Harper E. Osborn and Albert M. Cross, for appellee.

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

   Mr. Justice Graves

delivered the opinion of the court.


text:
    Thomas Fitzgerald by Sarah Fitzgerald, Appellee, v. Marshall E. Sampsell, Receiver, Appellant.
    Gen. No. 19,363.
    (Not to be reported in full.)
    Appeal from the Superior Court of Cook county; the Hon. Harry M. Waggoner, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Affirmed.
    Opinion filed February 3, 1915.
    Rehearing denied February 18, 1915.
    Statement of the Case.
    Action by Thomas Fitzgerald, a minor; suing by Sarah Fitzgerald, his next friend, against Marshall E. Sampsell, as receiver of Chicago Union Traction Company, to recover for personal injuries. From a judgment for twenty-seven hundred and fifty dollars in favor of plaintiff, defendant appeals. While defendant’s street car had stopped at an appropriate" and customary place to discharge passenger, plaintiff, of the age of about six and one-half years, was thrown to the pavement, with his mother, who was assisting him to alight, because of the starting of the car at the conductor’s signal.
    The undisputed evidence of the father and mother of plaintiff and a nurse who attended him showed that he was bruised on the hip, groin and knee and for a long time was sore in those parts, and that he was confined to his bed the larger part of the time for a month or more; that the bruise on the knee became infected and did not heal for several weeks; that parts of his body near the bruise on the hip became black and blue and- there was a swelling in the groin; that he from the moment of the injury has walked with a limp; that a year or more after the accident the mother of plaintiff claimed to have noticed a curvature of his spine and an apparent shortening of one of his legs, and that prior to the injury he was a sound, healthy boy. The evidence tended to show that the neck of the right femur between the ball of the hip joint and the great trachanter was shorter than natural by a half inch, and that where the right femur connects with the pelvic bone that bone is higher than its counterpart on the left side of the body.
    Abstract of the Decision.
    1. Carriers, § 404

      —liability for negligence in starting car. Where a child of tender years was thrown from a street car to the pavement because of the starting of the car while he, with the assistance of his mother, was alighting therefrom and the car was started because of the negligent order of the conductor, held that the child was entitled to recover such damages as such starting of the car was the proximate cause.
    2. Carriers, § 390*—duty towards passenger alighting from street car. Where there was no doubt as to the act of a street car conductor in causing the car to start while a passenger was attempting to alight therefrom being negligence under any view of the duty of the carrier to its passenger, an instruction that it was the duty of the carrier to exercise for the safety of its passengers the highest degree of care “consistent with the operation of the road,” is held not to require a reversal, although erroneous, the rule being that such carrier must use the highest degree of care for the safety of its passengers consistent with the practical operation of the road.
    3. Carriers, § 390*—duty towards alighting passengers. It is the duty of a carrier, when its street car has been stopped to permit passengers to alight therefrom, to see that the same is not started while such passengers are in the act of so alighting.
    4. Instructions, § 52*—effect of use of mandatory word. An instruction regarding the elements the jury might take into consideration in determining whether plaintiff had proved his case by a preponderance of the evidence, the use of the words “should take into consideration” is held not to be reversible error, although “may” or some equivalent should have been used instead of a mandatory word such as “should.”

      Charles L. Mahony and William H. Symmes, for appellant; John R. Guilliams and Frank L. Kriete, of counsel.
    Morse Ives, for appellee.

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

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

   Mr. Justice Graves

delivered the opinion of the court.

5. Instructions, § 41 —province of jury as judges of facts. An instruction informing the jury that they are, “under the instructions of the court and from the evidence,” the sole judges of the facts is not faulty as making the jury “the sole judges of all questions of fact.”

6. Damages, § 110*—where verdict not excessive for permanent injuries. Where plaintiff, of tender years, from the time of an accident had walked with a limp and had a curvature of the spine and shortening of a leg, with other permanent injuries, while he had previously been a sound, healthy boy, a verdict for twenty-seven hundred and fifty dollars held not excessive.


author: Mr. Presiding Justice Fitch

text:
    Dan Baldino, Defendant in. Error, v. Rose Henneberry, Plaintiff in Error.
    Gen. No. 19,545.
    (Not to be reported in full.)
    Error to the Municipal Court of Chicago; the Hon. Joseph E. Ryan, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.
    Reversed and remanded.
    Opinion filed February 4, 1915.
    Statement of the Case.
    Action by Dan Baldino against Bose Henneberry for a commission for procuring a purchaser for real estate. Prom a judgment against defendant for $625 in favor of plaintiff, defendant brings error.
    In 1910 defendant listed an apartment building and-a cottage in Chicago with several real estate brokers, including the plaintiff, to sell and the price named was ' $30,000. Plaintiff put the price on a card, placed the card among Ms office files, and submitted the property to several prospective purchasers, without result. In 1911 the cottage was sold by the defendant, and thereupon the price for the apartment building was reduced to $26,000. This fact was communicated to the plaintiff and he noted it on the card in his office. The plaintiff testified that about that time, one Joe Viviano, a dealer in macaroni, living in Chicago, told the plaintiff he was looking for a building for his brother, Sam (or Salvatore) Viviano, who, at that time, lived in St. Louis, Missouri; that plaintiff and his salesman showed Joe Viviano several pieces of property, including that of the defendant, and that Joe Viviano then said he could do nothing until his brother came to Chicago. Joe Viviano testified that plaintiff showed him “many properties”; that he wanted “to buy me and my brother together a residence property” and that when plaintiff pointed out defendant’s building to Mm, “I say it is not the house that we want— it don’t suit us, this place.” He denied that he acted as his brother’s agent, and denied that he ever told plaintiff that such was the fact. Sam Viviano arrived in CMcago early in the year 1912. Plaintiff claims that he then called upon him and asked bim whether his brother Joe had spoken to him about “that comer I showed him”; that on receiving' a reply in the negative, the plaintiff made an appointment to show him the property, and that the next day he did “show” him the property, by driving him around in a buggy and pointing out three pieces of property, one of which was that of the defendant. The plaintiff also claims that on another occasion, in the summer of 1912, he walked with Sam Viviano to the defendant’s property and again called Ms attention to it, from the sidewalk. He admitted that he never took either of the Vivianos inside the building, at any time. Nothing came of these efforts on the plaintiff’s part to sell the property.

      The plaintiff did not report any of these facts to the defendant, and, apparently, nothing further was done by him towards effecting a sale to either of theVivianos until after he learned that Sam Viviano had been induced by another broker, a woman named Mrs. Emily Badali, to examine the property, as hereinafter stated.
    The defendant was out of the city from June, 1912, until October 7,1912. In September, 1912, Mrs. Badali, who was acquainted with Mrs. Sam Viviano, was endeavoring to sell her some property on Congress street, and while returning from a visit to that property met one of the defendant’s tenants on the street. In talking to him they learned that defendant’s property was for sale. They went to the building and looked throug’h one of the flats. The next day they sought the defendant’s son, who took them through the building. A few days later, at Mrs. Badali’s instance, both Mrs. Viviano and her husband examined the property. This was the first time he had seen the inside of the building, and soon after he made a further examination with the assistance of a contractor and plumber, whom he employed for that purpose. Some negotiations followed with the son of the defendant, and later, upon her return to the city, with the defendant in person, which resulted in the defendant’s accepting an offer of $25,000 made by Viviano. A written contract to that effect was prepared by Viviano’s lawyer on October 12,1912, but owing to some dispute about “pro-rating” taxes and other small matters it was not signed until October 15, 1912.
    The plaintiff testified that on October 6th or 7th he called on the defendant and told her that he had a customer named Viviano, who would pay $24,500 for the property, and that the defendant replied that she would not take less than $25,000. He did not claim that he ever mentioned Viviano’s name to the defendant prior to that time. The defendant and her daughter both testified that the defendant did not return to the city until October 7th; that the next day after she returned, Sam Viviano and Mrs. Badali called at defendant’s house, and again a day or two later, as above stated, and that it was not until after their second visit— which was on October 9th or 10th—that the plaintiff made the visit he claims he made on October 6th or 7th. On October 13, 1912, plaintiff wrote a letter to the defendant, saying that he had had ‘ ‘ a long talk with Viviano Bros.”; that “he” had said “he” would not pay over $25,000, and that the plaintiff had told “him” that defendant would not consider less than $25,500; that “this property has been submitted to these people out of my office in the last year or so”; that “one of their brothers accompanied the man I had working for me at the time,” who “took them over and showed the property, but he did not take them through”; that “they were not taken through the building because you were away”; and that he understood from Viviano that “there is a girl between the deal.” The letter concludes by asking defendant to let him know “the lowest price on the property.” This letter was received by defendant after the contract had been prepared, but before it was signed. She gave the letter to her lawyer. After taking from Sam Viviano an affidavit as to the facts, the sale was consummated on October 24, 1912, and defendant paid a full commission to Mrs. Badali. Plaintiff based his action on the theory that he had found a purchaser who was accepted by the defendant.
    James S. Deming and D. I. Jarrett, for plaintiff in error; Thomas J. Young, of counsel.
    Miles J. Devine and John T. Murray, for defendant in error.

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

   Mr. Presiding Justice Fitch

delivered the opinion of the court.

Abstract of the Decision.

1. Brokers, § 29 —compensation where several brokers. Where an owner of real estate employs several real estate brokers to effect a sale of his property, the broker whose efforts actually bring about the sale is the one who is entitled to the commission for a sale, provided the owner acts in good faith.

2. Brokers, § 37*—necessity of showing procuring cause of sale. Where several brokers are employed to procure a purchaser for real estate and one of them brings an action for commissions, he not only must prove that he commenced negotiations with a party who subsequently purchased the property but, in order to recover, must also show by a preponderance of the evidence that he actually brought about a consummation of the sale, or was prevented from so doing by the fraud, procurement or misconduct or fault of the owner.

3. Brokers, § 90*—evidence insufficient to show procuring cause of sale. In an action for real estate commissions, evidence held. insufficient to show that a broker “actually brought about a consummation of the sale.”

4. Brokers, § 54*—evidence held insufficient to show bad faith in owner. Where a broker sought to recover commissions for effecting a sale of real estate, evidence held insufficient to show that the owner acted in bad faith in selling -the property through another agent, such as to entitle each broker to a commission.