author: Mr. Justice Mack

text:
    William H. Bartlett et al., Appellants, v. First National Bank of Chicago, Appellee.
    Gen. No. 14,854.
    1. Negotiable instruments—when payment of draft upon forged endorsement does not confer cause of action. If notwithstanding the name of the nominal payee of a note, an existing person not intended to have any interest therein, is forged as endorsee, payment has in fact been made to the person entitled thereto, there can be no recovery back.
    2. Negotiable instruments—io7i.cn payment of draft rvpon forged endorsement confers cause of action. Payment made to one claiming through the forgery of the endorsement of the real owner of the paper may ordinarily be recovered back by the drawee who paid in ignorance of the forgery.
    3. Negotiable instruments—when banh not liable bach as upon forged endorsement. If bearer drafts or drafts intentionally made to a fictitious payee (which in law are bearer drafts) are drawn by an agent either expressly or by implication of law authorized so to do and such drafts are cashed in the belief that the endorsements are the genuine signatures of the payees named ¿herein, a bank so cashing such drafts is not liable but the loss must be borne by the principal who has so expressly or by conduct permitted such agent to operate.
    4. Election of remedies—when does not arise. If two persons are independently liable, the act of suing one of them is not an election of remedies and does not preclude suit against the other.
    5. Election of remedies—what does not constitute. Mere suit against an undisclosed principal after the relation has been disclosed is no bar to suit against the agent.
    6. Agency—when doctrine of undisclosed principal does not apply. The doctrine of undisclosed principal is not applicable to commercial paper.
    Assumpsit. Appeal from the Municipal Court of Chicago; the Hon. Harry Olson, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    George P. Merrick, for appellants.
    H. K. and H. H. Wheeler and Ouster & Camerok, for appellee,
   Mr. Justice Mack

delivered the opinion of the court.

Plaintiffs sued defendant to recover back moneys paid to it on drafts drawn and indorsed in July 1906 substantially as follows:

‘1327 ' Babtlett, Frazieb $24.64

and

Cabbiitgtoh".

Reddick, 7-6, 1906.

Pay to the order of Chas. Elliott Twenty-four and 64/100 Dollars for 52 bushels 20 lbs. E. C. 47c.

Bartlett, Frazier & Carrington,

By R. L. Walsh,

Agent.

To Bartlett, Frazier & Carrington,

Chicago, Ill.

(stenciled stamp) ‘First Rat’l Bank

(Across the face) Rote Teller.

Paid July 9, 1906.

Chicago, Ill.

(Endorsements on draft) :

‘Chas. Elliott.’

‘Pay to the order First Rational Bank

Chicago,

Reddick State Bank,

Reddick, Illinois,

Huntington James, Cashier.’ ”

The payees named were farmers in and about Reddick, Illinois, from whom plaintiffs bought grain. The drafts, 135 in number, aggregated over $20,000, but plaintiffs’ loss thereon was about $13,000. Walsh had forged the payees’ names and had discounted the paper at the Reddick State Bank.

The following letters were introduced in evidence:

“Bartlett, Frazier & Carrington,

Western Union Building.

Chicago, Sept. 8th, 1905.

Hr. R. L. Walsh,

Reddick, Ill.

Dear Sir:—

Tours of the 7th inst. at hand. In reference to your endorsing the farmer’s name, we do not approve of this as we do not consider it business-like—unless you have direct, written authority from the farmer to do so. When you want to draw money from the Bank yourself to pay currency to the farmer, make the check read ‘Pay to the order of Currency account’ (and then give the name of the farmer) and then when you draw the money at the Bank, endorse your name but not the farmer’s name on the back.

This will make our records here show plainly to whom the money should be charged and under our surety bond we will be protected in case any of our Agents make a wrong use of the money.

Very truly yours,

B. F. & C.”

“Bartlett, Frazier & Carrington,

Western Union Building.

Chicago, May 29th, 1906.

Mr. B. L. Walsh,

Beddick, III.

Dear Sir:—

Tour favor of the 28th inst. at hand in reference to the manner in which you have conducted our business at Beddick.

As we have written you before, we think you have been rather careless in the manner in which you have written checks. It is a very bad habit to write your currency checks or large checks to your own order. To speak plainly, it puts it in a man’s power to use them if he wishes to do so, and where there is an opportunity the temptation of course is much greater, you must remember. We have had one or two other agents who have gone wrong in the last five or six years and generally in some such manner. We felt that an investigation would be a good thing and you certainly must feel a good deal better that one has been made, and that everything, as far as the writer knows, has turned out to show that you have been perfectly honest in your management of the affairs.

We have a few other agents who sometimes advance money to farmers, but they always make the note to themselves and when the money is returned insist on the farmer giving him a check payable to his own order so as to keep their own personal affairs and funds entirely separate from the funds of the firm. You speak about the grain shortages, which certainly were entirely too large, but we trust you have taken such precaution now that no such large shortage will occur again. We trust you will continue to do the largest business at Beddick.

Very truly yours,

B. F. & 0.”

Plaintiffs discovered some irregularities in Walsh’s transactions in the spring of 1906, but, on investigation made in May 1906, found that while he had not followed the instructions of September 8, 1905, but had made the drafts payable to the farmer and had indorsed the farmer’s name thereon, nevertheless, in each instance he had actually received the grain and had paid the payees of the drafts, whose names he had indorsed, out of his own account.

At the same time that the letter of September 8, 1905, was sent to Walsh the following letter was sent by plaintiffs to the Beddick bank:

“Bartlett, Frazier and Carrington.

Chicago, September 8, 1905.

State Bank of Beddick,

Beddick, Ill.

Dear Sir:—

In future, will you kindly cash drafts drawn on us which read—‘Pay to the order of currency account of’ (name of the farmer to be inserted) and then endorsed on the back by Mr. B. L. Walsh, our agent at Beddick and, of course, signed by him.

This will enable Mr. Walsh to draw all the currency necessary where the farmers wish payment in currency and at the same time it will keep our records straight.

Yours very truly,

B. F. & C.”

After the investigation of May 1906 and the discovery that Walsh had not followed his instructions literally, but had continued his former practice of making the checks payable to the farmer and indorsing the farmer’s name, plainti Ss gave neither the Reddick bank nor the appellee any notice of the investigation or discoveries made by them, or any additional notice not to continue to discount such drafts. In November 1906, within a month after the discovery of Walsh’s wrongdoing, plaintiff’s sued the Reddick Bank, hut dismissed the suit before commencing this action. About December 1906, or January 1907, plaintiffs verbally notified defendant of the forgeries, stating that they understood they could hold either defendant or the Reddick Bank, but hoped it would not become necessary to sue defendant. In December 1907, written notice was given to the same effect.

In the trial court, appellee succeeded on the authority of U. S. v. Nat. Exch. Bk., 141 Fed. R. 209. Since then this decision has been reversed by the Supreme Court of the United States, 214 U. S. 302. If, in this case, the appellee was the rightful owner of these instruments so that the payments made by appellants to it were made to the person entitled thereto, then there can be no recovery back. If, on the other hand, payments were made under a mutual mistake to one not the rightful holder, we should have to determine whether or not the recovery is barred by mere delay in giving notice.

The Supreme Court of the United States held that one paying a draft hearing a forged indorsement is not barred from recovering hack merely by his failure to give reasonable notice of the discovery of the forgery but only on proof by defendant of loss actually suffered by the delay.

Whether this decision is in conflict with the rule enunciated in Continental Natl. Bk. v. Metropolitan Natl. Bk., 107 Ill. App. 455, or whether, in the absence of binding Illinois authority, we should follow the decision of the Supreme Court of the United States or that of other courts, as e. g., McNeely Co. v. Bk. of North Am., 221 Pa. St. 588, holding that recovery is barred irrespective of loss, need not, in view of the results reached by us on the principal question in this case, he here determined.

We cannot, however, agree with appellee that the bringing of the suit against the Reddick Bank, subsequently dismissed on motion of plaintiffs, was an election of remedies and a waiver of any possible claim against appellee. The only basis for a claim of appellants ag'ainst the Reddick Bank is either that by its indorsement the Reddick Bank warranted the genuineness of the payees’ signatures, not only to subsequent purchasers but also to the drawee, or that the appellee was merely a collecting agent for the Reddick Bank, its undisclosed principal. Without expressing any opinion as to whether or not any indorser ever warrants the genuineness of the document to the drawee, it is clear that if both the Reddick Bank and appellee did so warrant, each would be liable independently of the other, on its warranty. No question of election of remedies could arise. As to the second possible basis, first, the doctrine of undisclosed principal is not applicable to commercial paper (Mechem, 23 Harvard Law Review, 519); second, even if it were, mere suit against the principal after the relation has been disclosed, is no bar to suit against the agent. Mechem Agency, sec. 699; Mussenden v. Raiffe, 131 Ill. App. 456.

It is therefore necessary to ascertain whether appellee was the rightful owner of the drafts, or whether it held under a forged endorsement.

The law is well settled that payment made to one claiming through the forgery of the endorsement of the real owner of the paper may ordinarily be recovered back by the drawee who paid in ignorance of the forgery. In this State it has been held that the same principle is applicable when A, forging the name of B as drawer, draws a bill on D, payable to 0, and then forges C’s name as endorser, even though in this case A, who is the real though not the nominal drawer, never intended 0 to have any interest in the paper and G in fact acquired no interest therein. First Natl. Bk. v. N. W. Bk., 152 Ill. 296. It is unnecessary for us to consider in how far the authority of this case, which is in conflict with cases in other jurisdictions, is shaken by the fact that the case of Vagliano v. Bank of England, 23 Q. B. Div. 243, upon which great reliance was placed by the court, had been reversed by the House of Lords (Bk. of Eng. v. Vagliano, (1891) A. C. 107) while the North Western Natl. Bank case was under qdvisement. Moreover, inasmuch as the documents in question in the present case were all paid prior to July 1, 1907, it is unnecessary to consider the effect of the Negotiable Instrument Act of 1907, par. 9, subsec. 3.

While there is at common law a conflict as to whether D, the drawee of a bill drawn by A, in his own name as drawer, payable to B, whose signature is endorsed by A, is barred from recovering back money paid thereon to a holder in due-course if A used B’s name fictitiously but D did not know that it was so used, there is no question whatsoever that A would be liable as drawer on such an instrument. Anyone who makes an instrument payable to a real person, intending that the person named shall have no interest therein but using his name fictitiously, is liable to the bearer. Such an instrument, at least as to the drawer, is deemed payable to bearer.

In the present case, the drawers’ name was not forged as in the Northwestern Natl. Bank case, supra, but on the other hand the drawers themselves did not sign it. The members of the firm of Bartlett, Frazier & Carrington in fact knew nothing of the drawing. Their agent drew in their names on themselves, not in their interest to pay their obligations, but in his own interest, to obtain money which he could embezzle. They were, however, the drawers of the instrument by him as their agent. If it can be said that they intended to make the instrument payable to a fictitious person, then they became obligated to the bearer thereof. Clearly Walsh did so intend; that is, the agent, purporting to act on behalf of his principals, intended, not that the parties named as payees but anyone to whom he, endorsing the payees’ names, should deliver the documents, should be the owners thereof.

Does such an intention bind the principals ? Is he, in other words, expressly or impliedly, either actually or apparently authorized to make bearer drafts in the name of and drawn upon his principals ?

A bank cashier has implied authority to draw drafts on correspondent banks; of course, his actual authority is limited to transactions in the interest of the bank, but because of his apparent authority, he binds the bank, whether the bearer draft is sold to a customer or utilized for his own purposes. And it is immaterial whether such a draft is made expressly payable to bearer or to a known individual, intended by the cashier not to have any interest therein and whose name is subsequently endorsed by the cashier for his own purposes. Money paid on such an instrument to an innocent purchaser under such an endorsement cannot be recovered back, because, while the endorsement is in a sense a forgery, nevertheless, the nominal payee is not the actual payee; the actual payee is bearer because the bank, through its cashier, intended to make the instrument payable not in name but in fact to bearer. The intention of the cashier is the intention of the drawer within the rule that an instrument intentionally made payable to a fictitious person is payable to bearer.

In Phillips v. Bank, 140 N. Y. 556, the drawee bank sought to hold the drawer bank for payments made on drafts drawn by its cashier in which the names of regular depositors were used by the cashier as payees and then endorsed by him for his own illegitimate purposes. The court said:

“ * * * Whether indorsing the check in the name of the payee therein was a forgery in the legal sense, or not, is not the important question. In a general sense, of course, the cashier did forge the payee’s name, but that fact did not affect the title or rights of the defendant. ******

“Though Bartlett selected, for the execution of his dishonest purposes, the names of persons who were dealers with his bank, it was, in legal effect, as though he had selected any names at random. The difference is that, by the methods resorted to, he averted suspicion on the part of the directors or other officers of his bank. The names he used were, for his purposes, fictitious, because he never intended that the paper should.reach the persons whose names were upon them. The transaction was one solely for the fraudulent purpose of appropriating his bank’s moneys, by a trick which his position enabled him to perform. ******

“It may be quite true that the cashier was not the agent of the bank to commit a forgery, or any other fraud of such a nature; but he was authorized to draw or check upon the bank’s funds. If he abused his authority and robbed his banlc, it must suffer the loss. The distinction between such a case and the many other cases, which the plaintiff’s counsel cites from, is in the fact that it was within the scope of the cashier’s powers to bind the bank by his checks. In transmitting them, made out and indorsed as they were, the bank was so far concluded by his acts as to be estopped from now denying their validity.”

While it is true that a corporation cannot act except through its representatives, whereas partners can act personally, nevertheless the relation of a cashier to his bank is merely that of an employe or agent. He does not represent the bank in any sense other than that in which any agent represents his principal. As the court intimated in the Phillips case, the directors of a bank are its representatives. We cannot agree with appellants’ argument that, “the bank, in acting through its cashier in the matter of the issuance of commercial paper, the drawing arid endorsing of checks, etc., in reality is acting in person and not through an agent.”

Moreover in Snyder v. Bank, 221 Pa. St. 599, the checks were drawn not by a cashier of a bank but by an agent of an individual. He was authorized to draw checks. He drew them payable to an existing person whose name he endorsed for his own purposes. The court said:

“ * * * Greenfield had admittedly been authorized to draw checks payable to bearer. A check so drawn and delivered by him to anyone could have been indorsed by the holder to another, and the payment of it by the bank to the indorsee could not have been questioned by the appellant. If, instead of drawing the four checks to the order of Niemann he had made them payable to bearer and gone to the bank and drawn the money himself, the appellant could not have repudiated the bank’s payment to him. * * * *

“The intent of the drawer of the check, in inserting the name of a payee, is the sole test of whether the payee is a fictitious person, and the intent of the drawer of these checks as attorney for the appellant must, as just stated, be regarded as against the banlc upon which they were drawn as the intent of the appellant himself.”

The agency to draw bearer checks in both of these cases authorized the agent to draw them payable either directly to bearer or to a' person intended to have no interest therein.

In this case, Walsh, too, was empowered to draw bearer checks. He was appellants’ agent clothed with authority to make negotiable paper. The present case could not be distinguished from the Hew York and Pennsylvania cases if this authority had been, as in those cases, to draw any kind of bearer checks. The letter of September 8, 1905, however, imposed a'restriction as to the form of such paper, a restriction of which notice was given to the Eeddick Bank.

Whether Walsh’s agency was so general in its nature that such a restriction upon the form of the- drafts might be deemed a non-essential even as against the Eeddick Bank or as a secret limitation, not binding on appellee, a purchaser without notice thereof, need not be here determined, for in any event, limitations upon the authority granted an agent may be removed and his power to bind the principal extended, by subsequent grant, either express or implied, from the course of dealings and conduct of the parties. In the present case, appellants knew in May, 1906, that their specific instructions had been violated, that drafts had been drawn nominally payable to customers but endorsed in their names by Walsh, that the Eeddick Bank and appellee had discounted such drafts and that they themselves had paid them, nevertheless they neither repudiated the transactions nor instructed him to discontinue this originally forbidden practice.

It is true that there" is no proof that appellee knew that the instructions had been departed from and Walsh’s conduct condoned. It was not misled into further discounts by appellants’ failure to stop these practices. It discounted in the belief that the endorsements were genuine. The question, however, is not, whether appellee can claim by estoppel against appellants, an estoppel to deny Walsh’s authority to make bearer checks as against one purchasing them in the belief that they are bearer checks and in reliance upon that authority, but whether appellants by their letter of May 29, 1906, authorized Walsh to draw his checks in this way thereafter. If that be the fair interpretation thereof, if after having originally authorized him to use only one form of bearer check, they had, not by express words, but by the fair construction of their letter and by their failure to disaffirm his prior acts, authorized him to use other forms after having found that his use of the other forms had not resulted, as they had feared it might, in loss and fraud, then appellee would be entitled to protection, not by way of estoppel but because it had dealt with an agent acting within the scope of his authority. The letter of May 29, 1906, especially in connection with the failure of appellants to take any steps reimposing the original restrictions, after discovery of their violation, amounts, in our judgment, to a waiver of the restrictions as to the form of bearer drafts theretofore imposed on Walsh and justified his continued use of the former method, not of course for fraudulent but for legitimate purposes.

As Walsh was thus authorized to make the drafts payable to the farmer, and to endorse his name and to discount them, for the purpose of raising money to pay the farmer, in other words, as he was authorized to issue any form of bearer draft, the Reddick and the defendant banks became the rightful owners of these drafts. Plaintiffs’ loss is due, therefore, not to payments made by them as drawees to wrongful holders or to those claiming under forged endorsements, but as in the Dew York and Pennsylvania cases, because their agent, act ing within the scope of his authority to discount bearer checks, discounted them, not in the interest of his principals, but for his own fraudulent purposes. A third party, dealing with an agent, acting within the scope of his authority, is, however, not responsible for an abuse of his powers if he has no knowledge of such abuse. The loss is due to the agent’s embezzlement. For this appellee is not answerable, and the judgment therefore must be affirmed.

'Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Dora Kauffmann, Administratrix, Appellee, v. H. W. Johns-Manville Company, Appellants.
    Gen. No. 14,999.
    1. Evidence—right of party to contradict witness. A party cannot impeach a witness whom he has called, but he may show that his testimony should be disregarded because of its having been contradicted.
    2. Master and servant—what tars recovery at law. If before a servant undertakes work, he is shown and warned against a particular danger and notwithstanding incurs it and in consequence is injured, he cannot recover.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon. Lockwood Honoré, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed June 28, 1910.
    Rehearing denied July 12, 1910.
    H. B. Bale and Morse Ives, for appellant.
    Leopold Saltiel, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

John Kauffmann was killed by an accumulator carrying a weight of 40 tons descending upon him in an elevator shaft in which he was working for defendant. The shaft was four feet square, the accumulator three feet square. The accumulator reached the base only when all the elevators whose running was regulated by it were in use. The space on three sides of the accumulator weight, between it and the walls of the shaft, was at the most a foot. On the south side, there was a space of about fourteen to sixteen inches between the weight when it was down and two valves, and several feet of open space south of the valves—the shaft being open on this side except for the guides.

The body was found crushed under the accumulator. Kauffmann’s duty was to guide certain ropes that hung in the shaft so as to keep them from getting tangled. These ropes regulated a block and tackle in the shaft.

Appellant claims that Kauffmann was specifically ordered not to stand in the shaft, but to remain in the space on the south outside of the shaft, where he was standing eight minutes before the accident.

Appellee admits that “if Kauffmann had received the instructions that the defendant claims he had and thereupon disobeyed the commands and instructions of his superiors, the plaintiff in this case would have to fail and no recovery could be had.”

Lager, his immediate superior, was called by plaintiff to prove that he was not a fellow servant but a vice principal. On cross examination he testified that when his foreman helped him to rig up he told him to be very careful in the shaft and to see that everybody else was careful not to get the lines tangled up in that accumulator or get near it; that Kauffmann was present at that conversation. A motion by plaintiff to strike out this statement was overruled. Later in the course of the cross examination he testified without objection or motion to strike as follows:

“The Court: Q. Have you stated all you said to him before you went up ? A. I showed him the accumulator, and not to go in there whatsoever, and stay in between the two valves; I asked if he understood it thoroughly, and he said ‘yes.’ ”

On redirect he further testified:

“Q. What were the exact words you used to Mr. Kauffmann at the time you placed him to work ? A. The exact words I told him: ‘John, you stand in there now, and I am going up-stairs,’ and I told him the signals; that is all, and I says: ‘Don’t go in there where that accumulator is, do you understand me ?’ He says ‘Yes.’

Q. Did you tell him the accumulator was moving up and down? A. Yes, I did, and he seen it.

“The rope that Kauffmann was to guide was hanging on the inside of the shaft, on the east side of the court. It was about two feet from the edge of the wall and up against the east wall.”

There was no testimony offered in contradiction of this, and if it be true plaintiff, it is conceded, cannot recover.

Appellee argues that as she was compelled in the nature of things to call Lager to prove that he was a superior she should not be bound by his testimony. While counsel states that this was brought out on cross examination over his strenuous objection and that it was improper cross examination, we cannot find anything in the record to justify this statement. In any event, it is conceded that the evidence would have been admissible if Lager had been called as a witness by defendant. Lager, moreover, is in no manner impeached. Her credibility could not have been attacked by plaintiff. She may, however, contend that his statement is contradicted by other evidence and that therefore the jury was justified in disregarding it. The only basis, however, for such a contention is that, under all of the facts in the case, to believe him “would be doing violence to common sense. They would have to believe that Kauffmann was insane or bent upon committing suicide if, with all the warning that he allegedly had received, he comfortably seated himself under a weight of 80,000 pounds, which may at any time descend upon him and crush him.”

If insanity or suicidal intent were the sole explanation of his act, in case he had been warned, this argument might be valid. But we cannot so interpret the evidence. The accumulator moved slowly. It came down as the car dropped, how far down depended upon how many of the six cars were moving in the shaft. Sometimes it came to the bottom; sometimes only half down. It was evidently easier to keep the ropes untangled by standing or sitting in the shaft than outside of it. Plaintiff herself urges this on the assumption that he was not warned, in answer to the charge of contributory negligence. The deceased, despite the warning, might well have calculated that he could get out in time in case the accumulator weight began to descend. The jury was therefore not justified in disregarding the clear, uncontradieted testimony of a thoroughly credible witness who moreover was not even in the employ of defendant at the time of the trial.

In view of our conclusions, which require reversal with a finding of facts, it is unnecessary to comment upon the other serious errors shown by this record.

Reversed with finding of facts.


text:
    Mary J. Carl, Appellee, v. Patrick W. Loftus et al., Appeal of Patrick W. Loftus, Appellant.
    Gen. No. 15,007.
    Appeals and errors—what not considered upon review of refusal to vacate judgment. Upon such an appeal alleged errors at the trial or defects in the declaration will not be considered.
    Trespass on the case. Appeal from the Superior Court of Cook county; the Hon. Robert W. Weight, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    Statement by the Court. In an action of trespass on the case against three defendants, one only, the appellant here, was served with process. All of them, however, pleaded the general issue.
    When the case was called for trial, defendants did not appear, and after an ex parte hearing before a jury, a verdict of $1,000 was returned against one defendant, the appellant here. The record recites that “issues being joined as to Patrick W. Loftus, it is ordered that a jury come,” etc. The record shows no disposition made of the issues between plaintiff and the other defendants. Judgment was rendered against Patrick W. Loftus alone, at the same term of court. At the second term thereafter, the appellant moved the court to set aside the judgment. From a denial of this motion an appeal was prayed and allowed»

      John J. Swenie and T. F. Monahan, for appellant.
    A. W. Briokwoob, for appellee.
   Mr. Justice Mack

delivered the opinion of the court.

The court had jurisdiction of the parties and the subject-matter. Its judgment therefore was not a nullity; it was valid until reversed. After the term, the court was powerless to set aside the judgment, even if this defendant’s attorney, contrary to the facts in this case, had known nothing of the verdict and so had been unable to move for a new trial during the term. The court therefore did not err in refusing to vacate the judgment.

It would he improper on this appeal from the order refusing to vacate a judgment to consider the alleged errors at the trial or defects in the declaration.

The appeal was not and could not after the term have been allowed from the original judgment. The remedy to correct any errors therein is by writ of error.

Affirmed.


author: Mr. Justice Smith

text:
    South Side Lumber Company, Appellant, v. Sydney S. Date et al., Appellees.
    Gen. No. 15,055.
    1. Mechanic’s liens—who subcontractor within meaning of section SI of Act. Held, that a lumber company, under the evidence in this case, was a subcontractor within the meaning* of section 21 of the Mechanic’s Lien Act of 1903.
    2. Mechanic’s liens—hoio notice 'of subcontractor’s lien must be served. The subcontractor’s notice provided for by section 24 of the Mechanic’s Lien Act must be personally served upon the owner within sixty days after the date of completion of the subcontract in order to lay the foundation for a lien in every case when the sworn statement of the contractor has not been made to the owner and notice given him of the amount due and to whom it is due.
    3. Mechanic’s liens—when judgment against contractor in favor of subcontractor properly denied. If the case involving the appeal has not been disposed of as to the subcontractor it will not be considered as error if the court in denying a judgment in favor of the subcontractor against the owner of the premises in question fails to enter a judgment against the contractor.
    Mechanic’s lien. Appeal from the Circuit Court of Cook county; the Hon. Oscar E. Heard, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Statement by the Court. This is an appeal by the South Side Lumber Company from a decree of the Circuit Court dismissing for want of equity its bill of complaint to establish a mechanic’s lien on certain premises therein described.
    The bill of complaint filed October 23, 1906, was subsequently amended June 18, 1907, and as so originally filed and amended alleged that the complainant was engaged in the manufacture and sale of lumber, etc.; that on December 24, 1905, Sydney S. Date owned the premises described therein situated at the southeast and the southwest corners of Harvard street and Springfield avenue, in Chicago, Cook County; that on December 24, 1905, the defendant, Sydney S. Date, entered into a contract with the Chicago Land, Loan and Construction Company, whereby the Construction Company was to construct four residence buildings on the premises, to superintend the work of construction and order the material, and Date was to pay the entire cost of all the said buildings, including the material used in the same, and in addition thereto pay to the Construction Company four per cent, of the entire cost of the buildings; that on December 24, 1905, the Construction Company, pursuant to the contract, purchased from the complainant Lumber Company lumber, lath and posts as it might order from time to time at the prevailing prices at the time of delivery, and the complainant delivered to the premises for use in said buildings the lumber, posts and lath upon the order of the Construction Company to the amount of $1,989.85, when charged at the prevailing market prices at the time of delivery as shown by the itemized statement attached to the bill and made a part thereof as “Exhibit A”; that all the said material was necessary in the construction, erection and completion of said buildings, and was used in the same, and the prices charged were the prevailing market prices at the time of delivery and were also fair and reasonable; that the first delivery of material was on December 20, 1905, and the last on August 3, 1906; that all of the buildings were erected on the premises in accordance with the said agreement between Date and the Construction Company, and constitute a valuable improvement thereon; that they have been completed and accepted by Date as a complete performance of the contract.
    It is averred that Date did not require of the Construction Company sworn statements as to the subcontractors and the amount due to each of them, and such statements were not furnished when Date made payments on the contract; that there became due and owing from Date to the Construction Company under their contract the sum of $5,000, which is still due and owing to the Construction Company from Date, and that there is due and unpaid to the complainant for material furnished and delivered at said premises from the Construction Company $1,979.85 with five per cent, interest from August 10, 1906; that on October 2, 1906, the complainant served on Date a notice of its claim for lien as follows:
    “To Sydney S. Date, owner.
    You are hereby notified that the South Side Lumber Company has been duly employed by Chicago Land Loan & Construction Company to furnish materials, lumber, lath and posts under its contract with you on your proeprty, described as follows:
    Numbers 2050, 2052, 2054 and 2056 Harvard street, being at the southeast and southwest corners of Springfield avenue, Chicago, Cook County, Illinois, and that there was due it on the 10th day of August, 1906, therefor the sum of nineteen hundred and seventy-nine and 85/100 dollars, and that it shall hold the buildings and your interest in the grounds liable for the amount that is due it on account thereof.
    Dated this 2nd day of October, A. D. 1906.
    South Side Lumber Company,
    By J. J. Nichols,
    President,”

      The petition makes Nellie B. Date and Theo. Bost parties defendant, averring .that they have some interest in the premises.
    Exhibit “A” attached to the bill or petition is a list of lumber as itemized and amounts from December 20, 1905, to and including August 3, 1906, aggregating $1999.63, with a credit of $9.78 for lumber returned, showing the balance due of $1989.85. The last item on the list is August 3, 2000 No. 2 lath at $5 per thousand, $10. The next preceding item is dated June 23, 1906, sundry lumber $78.07.
    Nellie B. Date filed an answer admitting her interest as the wife of Sydney S. Date. Her answer neither admits nor denies any other allegation.
    Sydney S. Date filed an answer to the bill as amneded, admitting ownership and the contract with the Construction Company, which Company was to furnish all material and labor necessary, and to pay in full for the same and turn the buildings over to Date free from lien, and Date was to pay therefor the actual cost of said buildings plus four per cent, of said actual cost; that prior to notice to him he had paid the Construction Company more than the actual cost, plus four per cent, thereon.
    His answer calls for proof of the sale and delivery of material by the complainant; denies that the Construction Company purchased for use in the buildings the material described in Exhibit “A” attached to the bill; denies that the material was necessary in the erection of the buildings; that the prices were the prevailing ones at the time of the delivery; denies that the last delivery was August 3, 1906. Defendant avers that the defendant is informed that the Construction Company has paid the Lumber Company much, if not all, of the amount claimed due to it, and that nothing is due to it, and denies that there is due to the Construction Company from him any. sum of money or any sum of money from the Construction Company to the Lumber Company; alleges that on August 22, 1908, the Construction Company settled and adjusted all of the complainant’s demands; denies the service of a notice of the lien by the complainant.
    Rost and the Chicago Land, Loan & Construction Company were defaulted. The cause was referred to a master in chancery to take proofs and report his conclusions of law and facts. The master filed his report January 30, 1908. The objections filed before the master were ordered to stand as exceptions in the Circuit Court. On the filing of the report and the consideration of the exceptions thereto the court entered a decree dismissing the bill for want of equity.
    John E. Obawfobd and Robebt E. Kolb, for appellant.
    Gail E. Deming, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

The complainant urges a reversal of the decree of the court below upon the following grounds :

First, that the court erred in finding that nothing was due from Date to the Construction Company; second, the court wrongfully found that the alleged delivery of August 3,1906, was not made; third, the court wrongfully found that the notice of lien was not properly served; and fourth, that the court below should have decreed the lien on the premises in question and should have entered a judgment in favor of the complainant against the Construction Company.

The evidence in the record tends to show that on December 14, 1905, the defendant, Sydney S. Date, was the owner of the real estate described in the bill of complaint and that four buildings were erected on the premises described under a verbal contract between Date and the Construction Company which was made about December 14, 1905, whereby the Construction Company agreed to build and construct upon the premises four buildings to be used for residence purposes, the Construction Company agreeing to furnish the material and labor for the complete erection and construction of the buildings, and was to pay in full for the same and turn them over to Date fully completed and paid for, free from all mechanics’ liens and in consideration thereof Date was to pay the Construction Company the actual cost of the buildings plus four per cent, thereof; and that Date was not to be personally responsible for any bill for material or labor ordered by, furnished to or accepted by the Construction Company in the erection and construction of the buildings.

A statement was offered in evidence made by Bumann, president of the Construction Company, to Date showing a total amount for material and labor furnished of $21,054.84, and a payment of $20,085.00, leaving a balance due at date of the statement, May 28, 1906, of $969.84. At the bottom of the statement there appears what purports to be a list of bills unpaid amounting to $1,140. This statement was offered in evidence merely to show that it was not such a contractor’s statement as is contemplated by the mechanic’s lien law, and for no other purpose. The statute requires a sworn statement of a specified character to be served upon the owner by the contractor. This writing was offered in evidence to prove that it, the only'writing that passed between the parties which could in any way be claimed to be a compliance with the statutory requirement, did not in fact comply therewith, as it was not sworn to. The contents of the writing were not offered in evidence as an admission of the Dates or to prove the truth or the falsity thereof. In other words, this paper was offered to show that it did not contain an oath; not, that it contained admissions. We do not regard it as competent evidence to show what was due from Date to the Construction Company, or as in any way binding upon Date. Both Date and Bumann testify that all that was due by that statement was paid, and that there was nothing due to the Construction Company at the time of the filing of the bill or the alleged service of a notice for a lien upon Date.

The evidence tends to show likewise that about December 14, 1905, Bumann, the president of the Construction Company, entered into a verbal contract with the Lumber Company substantially as alleged in the bill of complaint and that pursuant to that contract the Lumber Company delivered at the premises described in the bill of complaint for use in the construction of the buildings being erected thereon lumber, posts and lath upon the order of Bumann to the amount of $1,989.85, the same being charged at the prevailing market prices at the time of the respective deliveries of the said material, and that all of the said material was necessary in the construction and erection of the buildings and was used in the same in practically equal proportions, and that the prices for the lumber as charged were the prevailing market prices, and the fair and reasonable prices at the time of the deliveries. The first delivery of material at the premises was made about December 20, 1905, and the last delivery concerning which there was no real controversy in evidence was a load of posts which was delivered on June 23, 1906. There is no real controversy in the record as to the deliveries of all the material at the times mentioned in the statement attached to the bill of complaint, except one item thereof under date of August 3, 1906. As to that item of August 3 for 2000 lath $10, it is contended on behalf of the complainant that it was ordered by Bumann to be used on the premises in some repairing or in completing a small portion of the work; that Bumann gave the order to Crawford for this lath, and that Crawford ordered the shipping clerk to deliver the lath. On the part of the defendant it is proven by Bumann that no such order was given. Bumann’s testimony is positive upon this point, and also with equal positiveness he testifies that the building was fully completed sometime in the early part of July, 1906; that the last work on the premises was the erection of fences, which was done during the first two weeks of July. In further support of the giving of the order the testimony of the shipping clerk is shown in the record as to his custom to put on the delivery ticket the exact date when the delivery was made, and he testifies that he received the order from the order clerk and saw the lath were loaded on a wagon, and that he made out a ticket dated August 3, 1906, and gave it and the lath to a teamster named Oyr to be delivered on that day. Cyr testifies that on that day he delivered the lath at the buildings in question and got a receipt therefor signed by one Brook, who he says was a carpenter working at the building at the time when he delivered, the lath. Date, the owner of the building; Funk, who was employed as a carpenter at the premises during the months of July and August, 1906; two real estate men who had charge of renting the premises; Bumann, and a Mrs. Williams who occupied a flat in the building Number 2056 Harvard street, all substantially support Bumann in his statement that the buildings were all completely finished before the middle of July, and that the last work done was the erection of the fences and the painting of the same, which was completed before July 15, and that no carpenters were working on these buildings or any of them after that date, and that there was no man named Brook employed at the premises on August 3, or any time during the progress of the work.

An attempt was made in the record to impeach Bumann and three witnesses were produced on behalf of the complainant who testified they would not believe him under oath. A like number of witnesses on behalf of the defendant swore that they would believe him under oath, but a fair construction of their testimony is that it is based on their personal dealings with Bumann rather than on their knowledge of his general reputation for truth and veracity. The delivery ticket of this last delivery of August 3, 1906, was before the witnesses while they testified, and Crawford and Sullivan and Cyr admitted substantially that they had no independent recollection of the transaction and did not testify from an independent recollection, but based their testimony upon the sales ticket. This ticket was offered in evidence. It appears to be badly mutilated, particularly where the address or location for the delivery of the lumber appears thereon. Erasures seem to have been made at some time. Other circumstances appear from the face of the ticket and its condition which tend to provoke very strong suspicion as to its being a genuine delivery ticket made out and used in the ordinary course of business in connection with this transaction. All of the witnesses on behalf of the defense are positive in their statement and in their recollection that nothing was done upon the premises and no lumber was delivered there after July 15, 1906. Upon a consideration of all the evidence that appears in the record upon this question, and without attempting any extended analysis of the testimony of the witnesses, we are of the opinion that the master and the court below were correct in their finding that there was no delivery of lath on August 3, 1906, at the premises in question.

In our opinion the Lumber Company was a subcontractor, within the meaning of section 21 of the Mechanics Lien Act of 1903, which defines a subcontractor as follows:

“Every mechanic, workman or other person who shall furnish any materials, apparatus, machinery or fixtures, or furnish or perform services or labor for the contractor shall be known under this act as a subcontractor.”

Section 24 of the above mentioned Act provides that subcontractors furnishing labor or materials may at any time after making his contract with the contractor, “and shall within sixty (60) days after the completion thereof * * * cause a written notice of his claim and the amount due or to become due thereafter to be personally served on the owner or his agent or architect or the superintendent having charge of the building or improvement; provided, such notice shall not be necessary when the sworn statement of the contractor or subcontractor provided for in the Act shall serve to give the owner notice of the amount due and to whom due.”

We think the notice provided for in the above quoted section must be personally served upon the owner within the sixty days after the date of completion of the subcontract in order to lay the foundation for a lien in every case when the sworn statement of the contractor has not been made to the owner and given him notice of the amount due and to whom it is due. Beidler v. Hutchinson, 233 Ill. 192; Merritt v. Crane Co., 126 Ill. App. 337-347; Hurtt v. Sanders Bros. Mfg. Co., 99 Ill. App. 665-668. If, as we hold, there was no delivery of materials on August 3, 1906, and the last delivery was made by the complainant on June 23, 1906, the alleged notice was not served in time to entitle the complainant to a lien.

Furthermore, the notice attempted to be served on Date, the owner, was not served as required by the statute. The evidence shows that on October 2, 1906, the complainant by its agent delivered to an employe of Lamson & Company, at the office of the firm in the city of Chicago, the notice alleged in the bill of complaint. Date was not in the city of Chicago on that day. The clerk of Lamson & Company promised to hand it to Date. Date was not then a member of the firm of Lamson & Company, and had not been connected with the firm since May 1, 1906. He had left his desk in the office of the firm and went there occasionally for his mail. On the day following, October 3, Date found the notice on his desk. This was not the personal service of a notice within the terms and intent of the statute.

It is urged on behalf of the complainant that the decree is erroneous in that the court below should have entered a judgment for the amount of complainant’s claim against the Construction Company. We think the decree appealed from disposes of the case as to the defendants Sydney S. Date and Hellie B. Date and the right of complainant to a mechanic’s lien on the premises in question, and no further. It does not dispose of the bill as to the defendant Chicago Land, Loan & Construction Company. The bill is left pending as to that company. The decree is, howevér, final as to the Dates and the alleged lien on the land. We see no reason why complainant may not apply for and recover in this cause a judgment in the lower court against the Construction Company, if, under the statute it is entitled to such a judgment. We are not called upon, however, to pass upon that question and do not express any opinion upon it.

We find no error in the record and" the decree of the Circuit Court is affirmed. - - • - '

Affirmed.


text:
    Steve Kuiwiski, Appellee, v. Bauer & Black, Appellant.
    Gen. No. 15,062.
    Master and servant—when dootrine of assumed, rish applies. If the danger which caused the plaintiff’s injury was obvious and in open and plain view, the servant is charged with knowledge thereof and he cannot recover.
    Action in case for personal injuries. Appeal from the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Reversed with finding of facts.
    Opinion filed June 28, 1910.
    Statement by the Court. This appeal by the defendant Bauer & Black is from a judgment for $3,000 against it in favor of the plaintiff for personal injuries claimed to have been sustained while he was in the employ of the defendant.
    The defendant is a corporation engaged in manufacturing various kinds of physicians’ and druggists’ supplies. Among these supplies is sterilized cotton, used for dressing cuts, wounds, etc. While the plaintiff was engaged in re-covering the top roller of a machine in which this cotton is washed, with rope, his right foot was caught between two rollers which are a part of this machine and the toes and front part of his foot were crushed.
    The record shows that this machine was used to wash the cotton in an antiseptic solution and then squeeze the liquid out of the cotton by means of rollers. The machine is about twenty-live feet long and twenty-seven inches wide, and at the time of the injury" it stood in a north and south direction the rollers being at the north end, and the cotton to be washed and squeezed entering the machine at the south end. It may be described in a general way as a long trough or vat, about three feet six inches high, into which the cotton was put at the south end; and by a series of rakes it was propelled in the vat by the same power which runs the machine itself, through the vat to the north end, where it passed out through the rollers. Immediately in front of the rollers, that is, on the south side of them, was a brass plate, slightly convex, extending across the machine from side to side. On this plate the cotton was dropped by the rakes just before it passed through the rollers. These rollers are made of steel, are as long as the machine is wide, and are about twelve inches in diameter. The upper roller of the two is covered with rope and burlap, the rope being first wound tightly around the roller, and then the roller so wound was covered with burlap. This burlap has to be replaced from three to five times a day, while the rope has to be replaced once in four or five weeks. Still above these two rollers is a little roller which revolves faster than the others. It is called a “beater”, and it performs the office of knocking off the cotton which sticks to the roller beneath it. The top of the lower roller is about on a level with the top of the machine, and the upper roller is entirely above the machine. '
    The machine is so constructed that the several parts may be operated independently of each other. At the time of the injury in question only the rollers were in motion and this was for the purpose of winding the rope upon the upper one of the two large rollers. The rake was not in motion and was back about 18 inches from the rollers. The movement of the rollers is controlled by a lever located on the west side of the machine at its north end. This lever operates a belt shifter, and moves the belt from the loose to the tight pulley.
    At the time of his injury the plaintiff was about forty years old. He commenced working for the defendant in May, 1903, as a laborer, and was doing whatever work the foreman told him to do. This employment continued until his injury, October 13, 1904. After the first two months of work he was put to running a machine, and from this time on until his injury, he was always engaged in operating one or another of the machines in defendant’s plant. He had operated the machine on which he was injured two or three months. He attended to the machine alone. While he was operating the machine he had seen others put on the rope and burlap, but claims that the occasion of his injury was the first time he had assisted in putting them on the roller, and was the first time he was ever up on top of the machine. As to this claim there is a controversy in the evidence.
    At the time of the injury the plaintiff and his brother-in-law, Guminski, were re-covering the roller with rope. Guminski was'on the floor just north of the machine holding the rope as it wound around the roller, and pulling* on it so that it would wind tightly around the roller. The plaintiff was on top of the machine, standing on the brass plate mentioned above, and with a hammer was pounding the coils of rope tightly against each other as they wound on the roller. They had put one layer of rope on the roller and had about half finished the second layer when the plaintiff got his foot between the rollers.
    E. E. Gbay, E. J. Canty and J. C. M. Clow, for appellant.
    Ossian Camebon and A. S. Lakey, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

The declaration consists of four counts. The allegation of negligence in the first is, that the defendant directed, ordered and required the plaintiff to work in an unsafe and dangerous place. The negligence averred in the second count is that the defendant ordered the plaintiff to perform labor upon a certain washing machine, and negligently failed to provide reasonably safe appliances for the plaintiff with which to do the work. The negligence averred in the third count is, that the defendant ordered and directed the plaintiff to work upon and around a certain dangerous and defective machine. The fourth count alleges that the defendant negligently permitted the washing machine to be and remain in a defective condition and state of repair; that the machine was old, defective and dangerous in that a certain lever and bolts connected therewith and other appliances were defective, broken and in bad condition, and certain bolts were missing from the lever so that the same would not work and control the machine, whereby the machine operated erratically, and this was unknown to the plaintiff but was known, or by due diligence would have been known, to the defendant.

From the detailed description of the machine given in the testimony of the plaintiff it appears that he had worked on the machine several months prior to his injury, having sole charge of the machine, and that he was familiar with its construction and its operation. He had observed the wrapping of the roller with rope and burlap at times when he . was at work on the machine. The parts of the machine and particularly the rollers were in full view. He knew that if he got his foot between the rollers he would get hurt. On the day plaintiff was injured, and shortly before he was injured, the foreman went up on the machine and showed the plaintiff what he was to do and how to do it, by taking a hammer and pounding the coils of rope close together as the rope was coiled around the roller. The assistant foreman, Guminski, plaintiff’s brother-in-law, stood before the rollers holding the rope, and keeping it tight as it wound around the roller. The plaintiff testified: “It was my right foot that went between the rollers. The rollers caught my foot and pulled it in. The roller touched my foot and pulled in my foot. The roller did not jump out of place at my foot. It stayed in the same place only and caught my foot and pulled it in. The reason the roller did not catch both feet was that the right foot ivas too near the roller and the roller caught the end of my shoe and pulled it in. The roller did not touch my left foot.”

Guminski was called as a witness for the plaintiff and corroborated the plaintiff’s testimony as to the material facts. This was all the evidence offered by the plaintiff.

The defendant produced five witnesses who worked in the same room with the plaintiff while he was engaged on the machine on which he was injured. These witnesses all testified seeing plaintiff up on top of this machine several times helping to cover the roller with burlap. While we cannot regard the fact, if it be the fact, that plaintiff was on top of the machine many times engaged in the work of covering the roller, or whether this was the first time he ever was there engaged in that work, as in any way decisive of the question of liability, we think that, considering the admitted fact that it was necessary to renew the burlap covering three or more times every day while the machine was in use, and that the roller was covered with rope once in five or six weeks while the plaintiff operated the machine, the manner of doing the work must have been familiar to the plaintiff ; and further, it is entirely probable, in our opinion, that he actually helped to re-cover the roller several times before he was injured, as testified to by the defendant’s witnesses, four of whom were not in the emplov.of the defendant at the time of the trial; and that the preponderance of the evidence on this question is with the defendant.

On the question of liability, it clearly appears, we think, from the testimony of the plaintiff, that the cause of the injury which he received was not the negligence charged in the declaration or any count thereof. The defect in the machine claimed to exist does not appear to have had any causal connection with the injury or to have produced any action of the machine which caused the injury. The plaintiff says in his testimony quoted above, that there was no unusual action of the rollers; that the reason the rollers did not catch both feet was that his right foot was too near the roller, and the rollers caught the end of his shoe. The roller did not touch his left foot. Ho reason appears in his testimony for his foot being so near the rollers that it would be caught and drawn in between them, unless it was put there negligently by the plaintiff himself. He knew the place where he was standing, its shape and character and that the rollers on which he was working were in close proximity to the toes of his feet; and he admits that he knew that if the rollers caught his foot it would necessarily be injured. It is clear that the danger was obvious and the revolving rollers by which the danger was created were in open and plain view. Such dangers the law charges the plaintiff with knowledge of, and does not allow him to recover against the defendant therefor. Galloway v. C., R. I.& P. Ry. Co., 234 Ill. 474; Steffen v. Illinois Steel Co., 140 Ill. App. 551; Kath v. East St. L. Sub. Ry. Co., 232 Ill. 126; I. C. R. R. Co. v. Fitzpatrick, 227 id. 478; Higgins Carpet Co. v. O’Keefe, 79 Fed. Rep. 900; Wilson v. Mass. Cotton, 47 N. E. Rep. (Mass.) 506; Collins v. Laconia Car Co., 38 Atlantic Rep. (N. H.) 1047; Graves v. Brewer, 38 N. Y. Sup. 566; Barrett Mfg. Co. v. Marsh, 137 Ill. App. 110.

By a clear preponderance of the evidence in the record it is shown that the defect in the machine in question, if it existed at the time of the injury, alleged in the declaration, did not have the slightest connection with the plaintiff’s injury. Guminski testified that a certain box on the floor through which the shaft of the machine was running was loose and ivas riding up and down about four inches or more; that the box was loose because one of the bolts by which it was originally fastened was broken off, and the other bolt was bent; and that he told the foreman of its condition a week or more before the injury to plaintiff, and that the foreman promised to fix it. The only effect of this defect, according to the testimony, was that when too much cotton got in between the rollers the belt running the rollers would run off the tight pulley onto the loose pulley and the machine would stop. It was obvious that this did not and could not have any connection with the injury to plaintiff. Ho attempt is made in the evidence to show that this caused the injury, or that it could have any such effect. On the contrary, it affirmatively appears by the evidence on the part of the plaintiff that the machine Avas stopped, Avhen plaintiff’s foot got between the rollers, by throwing the belt off the tight pulley to the loose pulley by means of the lever provided for that purpose.

In regard to the claim made on behalf of the plaintiff that the defendant negligently took a man who was stationed at the lever to operate it when the plaintiff commenced to work at the roller away from that position and stationed a boy there, the evidence shows that there was a change made, but it does not appear that this had anything to do with the injury. Moreover, the undisputed evidence is that Carpenter, 'who was at the lever when plaintiff was injured, was two years older than Fosberg, whom he had replaced.

In our opinion the evidence fails to show any actionable negligence of the defendant which caused the injury complained of, and the judgment must be reversed with a finding to that effect.

Reversed ivith finding of facts.


text:
    The Sargent Company, Appellant, v. Morse Ives et al., Appellees.
    Gen. No. 15,067.
    1. Judgments—when equity should not interfere with enforcement. Courts of equity should not restrain the execution of judgments upon the ground that they were obtained by perjury except where such perjury is established beyond reasonable controversy by evidence clear, convincing and satisfactory, and in making the investigation required the chancellor may consider testimony given by the witnesses called both by the complainant and the defendant.
    2. Judgments—what newly discovered evidence will not justify interference 6y court of chancery. Newly discovered evidence impeaching, cumulative and inconclusive in character, will not justify the interference by chancery with a judgment at law.
    3. Costs—when reversal will not be awarded because of manner of taxation. If an error is committed in the manner of taxation so that the payment of a fee allowed in favor of a master might be paid twice, a reversal will not be awarded but the parties left to have the error corrected by means of a motion to retax.
    Appeal from the Superior Court of Cook county; the Hon. Faelin Q. Ball, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    Rehearing denied July 12, 1910.

      Certiorari denied by Supreme Court (making opinion final).
    Elbridge Haneot, Frangís J. Gantt and Egbert J. Folonie, for appellant.
    Morse Ives, for appellees.
   Mr. Justice Smith

delivered the opinion of the court.

This cause was before this court in Sargent Co. v. Baublis, 127 Ill. App. 631, where a sufficient statement of the bill appears. After the cause was redocketed in the Superior Court the defendants filed an answer denying the material averments of the bill as to fraud and perjury charged therein in obtaining the judgment against complainant, and denying the alleged admissions of Baublis after the judgment at law was affirmed in the Supreme Court.

On motion of the complainant certain exceptions to the answer of the defendants were sustained, and the complainant thereafter filed its replication to the answer.

The cause was referred to a master to take testimony and report his conclusions thereon. The death of defendant William Baublis was suggested, and Konstancya Golubicki, executrix, was substituted as defendant. After taking the testimony offered by the respective parties the master filed his report finding that no credible evidence had been offered before him to prove that the defendant William Baublis committed perjury on the trial of the action at law; and that no credible evidence had been offered -to prove a conspiracy between Baublis and Golubicki, as alleged in the bill of complaint; and that on the evidence in the case the complainant was not entitled to a new trial at law, and recommended that the bill of complaint be dismissed for want of equity.

By the decree appealed from complainant’s objections and exceptions to the master’s report were overruled and the master’s report was in all things approved and the bill of complaint was dismissed for want of equity.

The prayer of the bill as amended is that the judgment of the Superior Court in the case at law Ho. 222,550 be set aside and vacated, and for an injunction against the execution of the judgment and for other and further relief. The complainant in the court below asked and insisted upon the ordering of a new trial in the law case, and so contends in this court. The main question now presented on this appeal is, we think, does the evidence in the record entitle the complainant to the relief asked. The complainant, however, insists that the sole questions determinable hy the court below were, and by this court are, (1) whether complainant had material evidence affecting the material issues of the law case; and (2) whether complainant was guilty of neglect in not producing such evidence on the trial. Upon the first question complainant contends that the evidence for the complainant entitled it to a decree, and that the question of the believability of the witnesses for the complainant as opposed to the witnesses for the defendants are for the jury on a retrial, and not for the master or the court below; and that accordingly the evidence produced hy the defendants should not have been admitted or considered.

With these contentions of the complainant we cannot concur. A court of equity is not thus limited in its jurisdiction to enjoin judgments at law and to grant new trials. In High on Injunctions (3d Ed.) Vol. 1, p. 101, the learned author says: “To warrant a court of equity in enjoining a judgment at law and awarding a new trial in the action because of newly discovered evidence, substantially the same grounds must be shown as are necessary to justify a court of law in awarding a new trial. In other words, it must satisfactorily appear that the judgment is manifestly wrong; * * * . And the inquiry is whether, if the judgment were set aside and a new trial awarded, complainant, upon the showing made, would be entitled to a recovery in the action at law.”

In Holmes v. Stateler, 57 Ill. 209, the court held: “It is only in cases which commend themselves strongly to equitable relief, that the chancellor feels at liberty to interpose his power to vacate the judgment of a court of law. * * "x" It will not be done capriciously or as a mere matter of discretion, nor because the chancellor would, on the evidence heard in the suit at law, have arrived at a different conclusion from that reached by the jury. * * * Before a new trial will be granted in equity, it should appear with reasonable certainty, that a different verdict would result. It is not in every case where new evidence is discovered, or when such evidence only renders it probable that the jury would find a different verdict, thftt the relief should be granted,”

The rule is stated by the Wisconsin Supreme Court in Boring v. Ott, 119 N. W. Rep. 865, as follows: “It is established by all the authorities that a very high degree of proof in such cases is required, many cases holding that there must be a conviction for perjury before equity will interfere, while others hold that it must be established beyond a reasonable doubt, either by admission, documentary evidence, or by such other proof as to leave no reasonable ground for doubt. Moore v. Gulley, supra (144 N. C. 81); Peagram v. King, 9 N. C. (2 Hawks) 605, 11 Am. Dec. 793; Woodruff v. Johnston, 29 Jones & S. 348, 19 N. Y. Supp. 861; Bloss v. Hull, 27 W. Va. 503; Moore v. Parker, 25 Iowa, 355; Jones v. South, 3 A. K. Marsh, 352; Clark v. Hackett, 1 Cliff. 269, Fed. Cas. No. 2,823; Oldham v. Cooper, 5 Del. Ch. 151; Ableman v. Roth, 12 Wis. 90; Stowell v. Eldred, 26 Wis. 504; Barber v. Rukeyser, 39 Wis. 590; Jilsun v. Stebbins, 41 Wis. 235; Tucker v. Whittlesey, 74 Wis. 74. The reason of the rule is obvious as laid down in the cases. If a litigant were permitted to restrain the enforcement of a judgment regularly entered after a trial in a court of law upon conflicting or uncertain evidence as to whether perjury were committed in securing the judgment, it is easy to see what interminable litigation such a rule would invite. Courts of equity, therefore, should not restrain the execution of judgments, except where the ground for interference is established beyond all reasonable controversy by evidence clear, convincing and satisfactory. Linde v. Gudden, 109 Wis. 326. All the authorities agree that evidence of the highest dignity is necessary to justify the interference of equity in such cases.”

It is clear, we think, that a chancellor cannot consider and determine the character, dignity and probative force of the evidence upon which his action must be based, under the authorities cited, if he may hear only the evidence offered by the complainant as contended, and cannot weigh it in connection with the defendant’s evidence. How can the chancellor determine that a different verdict would result with reasonable certainty or the controlling and conclusive character of the evidence (Champion v. Ulmer, 70 Ill. 322; People v. McCullough, 210 id. 488) by considering only the evidence offered to impeach the verdict and judgment regularly entered? Bloss v. Hull, supra. How can the chancellor determine that it satisfactorily appears that the judgment is manifestly wrong, by hearing and considering the evidence on one side of the. question only ? A mere statement of the questions to be determined by the chancellor seems to us a sufficient answer to the contention of complainant. In our opinion the master and the court were required to hear and consider the evidence offered by the defense, as well as that offered by the complainant, and it would have been manifest error to exclude defendants’ evidence and refuse to consider it. It is a novel and, we think, unfounded contention that the defendants, having been required to answer the bill, and having by their answer put in issue every material averment thereof, cannot support by evidence their side of the issues so made.

Upon a careful examination of the evidence we are of the opinion that it falls short of sustaining the material allegations of the bill of complaint. Some of the witnesses do not sustain or confirm by their testimony their affidavits attached to the bill. The averments of the bill as to a conspiracy between the defendant Baublis and Golubicki are not sustained by the evidence. The newly discovered evidence offered by the complainant is quite largely impeaching, cumulative and inconclusive in character. Evidence of this character is insufficient to obtain relief in equity against a judgment entered after a trial at law and in the regular course of judicial procedure. Champion v. Ulmer, supra; People v. McCullough, supra; Rogers v. Daniels, 116 Ill. App. 515; Bemis v. Horner, 165 Ill. 347; Knickerbocker Ins. Co. v. Gould, 80 id. 388.

We do not find in the record any serious attempt to show that the verdict and judgment sought to be set aside is wrong. It does not appear from the evidence offered by the complainant that the claim itself or cause of action upon which the judgment was entered, was fraudulent, fictitious or unjust, or that, apart from the alleged release, the plaintiff Baublis did not have a just and meritorious cause of action for negligence on the part of complainant herein causing the injury. On the contrary it appears from the record that the judgment was affirmed by this court and by the Supreme Court. The sole basis of attack upon the judgment in the evidence offered is that the release set out in the bill of complaint purporting to have been executed by Baublis and acknowledging the receipt of $100 in full settlement, accord and satisfaction of all claims and demands which Baublis had or might thereafter have against the complainant on account of an accident causing injury to him on or about May 26, 1902, was not given full force and effect because of the fraud and perjury of Baublis and Joseph Powlowski in their testimony in that case, relating to the alleged settlement and the execution of the alleged release. This does not impeach or tend to disprove the just and meritorious character of the original claim or cause of action. And the only newly discovered evidence shown relates to certain admissions alleged to have been made by Baublis since the affirmance of the judgment by the Supreme Court, to the effect that Baublis had sworn falsely on the trial of the action at law with reference to the execution of the release, and the settlement and satisfaction of his claim against the complainant, as set forth in the release. This new evidence is the testimony of McConnell, John Serunas, Jr., Maggie Serunas, Slakis, Smith and Staponkus as to oral admissions made by Baublis. Their testimony was flatly and specifically contradicted by Baublis, as to the alleged admissions and conversations, and by Grolubieki as to his alleged advice and talk with Baublis regarding, his testimony concerning the release and the circumstances under which if was signed, and as to his conversations with other witnesses for the complainant.

Considering all the evidence on this issue and the relations of the complainant’s witnesses to the complainant at the time the alleged admissions were obtained, and the manner of obtaining them as disclosed by the evidence, it does not satisfactorily appear by evidence which leaves no reasonable ground of doubt, either that the judgment is wrong, or that Baublis made the alleged admissions, or that a new trial of the case at law would result in a different verdict and judgment from that rendered. The evidence is not of the highest dignity, nor is it clear, convincing and satisfactory in character. It does not justify the interference of a court of equity.

Error is assigned on the provisions of the decree fixing the amount to be allowed the master for his services in the case. The court reduced the amount claimed by the master to $150 and directed the clerk to tax that amount for the master’s services in examining the questions at issue and preparing his report. In addition to that amount the decree allows $211.95 to the master for taking the testimony. It is urged that of this amount the complainant had paid $123.75 and that this action of the court in effect requires the complainant to pay that amount the second time. If this be true, the Superior Court will doubtless correct the matter on a motion to retax the costs. We find no error in allowing $150 for his services as above set forth.

The decree of the Superior Court is affirmed.

Affirmed.


text:
    E. Eugenia Bower, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 15,077.
    1. . Verdicts—when not disturbed. A verdict will not be set aside on review as against the weight of the evidence unless clearly and manifestly so.
    2. Instructions—upon exercise of ordinary care approved. An instruction upon this subject as follows, approved:
    “The court instructs the jury as a matter of law that while it was the duty of the plaintiff at the time and place in question to exercise due care and foresight for her own safety, yet she was obliged to exercise only such care and foresight as is ordinarily exercised by reasonably careful persons under similar circumstances.”
    3. Instructions—upon consideration of plaintiff’s testimony not

      error. Held, in view of the other instructions given in the case, that the giving of an instruction upon this subject as follows, was not error:
    “The court instructs the jury as a matter of law that the plaintiff is a competent witness in her own behalf, and if the testimony of the plaintiff appears to be fair and not unreasonable and is consistent with itself and she has not been in any manner impeached, then they have no right to disregard the testimony of the plaintiff merely because she is the plaintiff, or from mere caprice or without cause. It is the duty of the jury to consider the whole of the evidence and to render a verdict in accordance with the weight of all the evidence in the case and under the instructions of the court, as to the law.”
    Action in case for personal injuries. Appeal from the Superior Court of Cook county; the Hon. Ben. M. Smith, Judge, presiding.
    Heard in the Branch Appellate Curt at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    John A. Eose and Frank L. Kriete, for appellant; W. W. Gurley, of counsel.
    Frederick A. Brown and William E. T. Ewen, Jr., for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

Appellee, E. Eugenia Bower, recovered a judgment in the Superior Court against the appellant for $1,250 for negligence of the appellant whereby she received personal injuries while attempting to enter a street car being operated by appellant on November 20, 1905. The negligence averred in the declaration is that the defendant carelessly and negligently caused the car to be suddently and violently started and moved while appellee was in the act of getting upon appellant’s car.

It is contended on the part of appellant that the verdict and judgment are not supported by the evidence.

At the trial the plaintiff, appellee, testified to a state of facts which in our opinion would justify a verdict in her favor. Her testimony, together with the testimony of two physicians, was all the evidence offered on behalf of the plaintiff.

On the part of the defendant the testimony of the witness Arentz, an investigator for the defendant, was received to the effect that he had examined the reports or hooks of the claim department of the defendant and found no report of the accident. The defendant also proved by the witness Sullivan that he was general supervisor of the defendant and had charge of the records of that company; that he had examined the records of his office and that the name of the conductor who had badge number 634, the number given by the plaintiff as the badge worn by the .conductor who had charge of the car on which she was injured, was Henry Meierhoff. Meierhoff was then called and identified his trip sheet of November 20, 1905, and that he did not recognize the plaintiff as the lady who had an accident on his ear ón that date; and that he did not have an accident on that date in which the plaintiff was dragged or carried along by the car, while she was in the act of getting on the car; and that he did not at the time and place of the alleged accident start the car while the plaintiff was in the act of getting on the car; and that he did not say to her, “hurry up; get on now;” and that he did not on that date complain to the passengers because four or five women at that particular corner did not get on the front of the car but ran to the rear of the car.

The defendant also called the witness Cunningham who testified that he was an adjuster and investigator for the defendant, and that he took the sworn statement of the plaintiff on March 21, 1906, which statement was put in evidence.

Sangston, a witness called by the defendant, identified a record of the trainmen of the defendant company kept by him, which was read in evidence and showed that Meierhoff had badge 634, and that he received the badge September 16, 1903, and resigned May 2, 1906. This was the substance of all the evidence offered by the defendant.

From the evidence thus briefly stated it appears that the positive and direct testimony of the plaintiff regarding the accident is corroborated in part by the records of the defendant put in evidence. The only witness for the defendant whose testimony relates directly to the accident is that of the conductor of the car. The jury were justified in giving less weight to his testimony than to that of thq plaintiff, for the reason that it appears from his testimony that he was testifying largely from his conclusion that nothing happened at the time and place in question, because he made no report of it to the defendant company, rather than from any distinct recollection of what occurred. His answer to a question put to him by the presiding judge discloses the reason why he made no report of the accident. We cannot disturb the verdict and judgment upon the ground that the evidence does not support the verdict.

We cannot say that there is no connection between the accident and the injury shown. There was competent evidence admitted which warranted the jury in finding that the injuries shown were the direct result of the accident. The jury upon the evidence so found. If the injuries resulted from the accident, the verdict is not excessive.

We do not think the trial court committed reversible error in permitting appellee to account for her condition since the accident by attributing it to the effect of the accident upon her back and nerves, when, as in this case, she is supported by the testimony of two physicians that such an accident would cause the condition testified to by the plaintiff, and found to exist by the physicians who examined her.

Error is assigned upon the giving of the second and fourth instructions requested by the plaintiff.

The second instruction was as follows:

“The court instructs the jury as a matter of law that while it was the duty of the plaintiff at the time and place in question to exercise due care and foresight for her own safety, yet she was obliged to exercise only such care and foresight as is ordinarily exercised by reasonably careful persons under similar circumstances.”

The objection to this instruction urged is that it “operated to eliminate from the consideration of the jury their determination of the fact whether plaintiff at all, at Evanston and Lawrence avenues, received such an injury as she claimed.” We are unable to see any force to the objection. We cannot perceive how the instruction eliminates any question from the consideration of the jury.

The fourth instruction was as follows:

“The court instructs the jury as a matter of law that the plaintiff is a competent witness in her own behalf, and if the testimony of the plaintiff appears to be fair and not unreasonable and is consistent with itself and she has not been in any manner impeached, then they have no right to disregard the testimony of the plaintiff merely because she is the plaintiff, or from mere caprice or without cause. It is the duty of the jury to consider the whole of the evidence and to render a verdict in accordance with the weight of all the evidence in the case and under the instructions of the court, as to the law.”

It is urged that the part of the instruction which called attention to the fairness and reasonableness of appellee’s testimony tended strongly to influence the jury to give credit to her testimony over that of appellant’s conductor.

Appellant asked and the court gave appellant’s instruction Ho. 15, on the same subject, in which the jury were told that “while the law permits the plaintiff in the case to testify in her own behalf, nevertheless the jury have the right in weighing her evidence to determine how much credence is to he given to it and to take into consideration the fact that she is the plaintiff and interested in the result of the suit.” This instruction called particular attention to the plaintiff as a witness. But reading and considering these instructions together, we do not think the jury were misled or influenced in the manner suggested.

We find no reversible error in the record. The judgment is therefore affirmed.

Affirmed.


text:
    Henry F. Rautman, Administrator, Appellee, v. Chicago Consolidated Traction Company, Appellant.
    Gen. No. 15,083.
    1. Injuries act—upon whom cause of action conferred. This act is to be liberally construed and so construed it confers a cause of action upon a husband for the death of his wife caused by the wrongful act of the defendant.
    2. Damages—presumption in actions under Injuries Act. The law presumes damage to have resulted to adult children from the death of their mother.
    3. Instructions—upon question of damages in action under Injuries Act approved. An instruction upon this subject as follows, approved:
    “The court instructs the jury that' if, from the evidence in the case and the instructions of the court, the jury shall find the issues for the plaintiff and that the husband and next of kin of said deceased have sustained damages by way of pecuniary loss, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves may make such estimate from the facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the affairs of ordinary life.”
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Cook county; the Hon.-John Gibbons, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    John A. Rose and Frank H. Kriete, for appellant; W. W. Gurley, of counsel.
    Gail E. Deming, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was brought by Henry F. Rautman, as administrator of the estate of Frances J. Rautman, deceased, against Chicago Consolidated Traction Company, appellant, to recover damages sustained by the husband and next of kin of the deceased, by reason of the negligence of the defendant causing the death of plaintiff’s intestate on August 17, 1904. Defendant’s street cars were propelled against a train of cars of the Chicago Great Western Railway Company at the intersection of the Chicago Terminal Transfer Railroad Company’s right of way with Forty-eighth avenue in the city of Chicago. On the trial the jury returned a verdict for $4,000, in favor of the plaintiff. The court required a remittitur of $500, which being entered, the court denied a new trial, overruled a motion in arrest of judgment and entered a judgment on the verdict.

The next of kin besides the husband were three adult children, and one child between the age of twenty and twenty-one years who died before the cause came on for trial. Frances J. Rautman, plaintiff’s intestate, at the time of her death was between fifty-seven and fifty-eight year’s of age. Her children, with the exception of William O. Hawthorne, her son by a former marriage, all lived at home with their mother and father and paid their board. The deceased was a housewife, kept her husband’s household and cared for him and their children. Besides these duties she took care of a flat building, consisting of three flats, renting and collecting the rents and looking after the repairs. Her husband was in the milk and dairy business conducted on the premises Ho. 839 Washington boulevard, where they lived. The deceased assisted her husband in this business. There was a mortgage on the flat building at the time of Mrs. Rautman’s death which she was endeavoring to pay off out of the rents of the building. That mortgage was still on the premises at the time of the trial. Without objection the plaintiff testified that if the deceased had lived she would have paid off the mortgage. Ia fact this testimony was brought out on cross-examination of the plaintiff.

Counsel for appellant say in their brief filed in this cause that there is no question raised as to the liability of the defendant, it being conceded that deceased came to her death in a grade crossing collision while a passenger on appellant’s cars.

The contentions of appellant are that the statute does not give .an action for the benefit of the husband for a wrongful act resulting in the death of the wife; second, that no evidence was offered of pecuniary loss to the adult children; third, that the verdict should have been for only nominal damages; fourth, the verdict and judgment are excessive, and fifth, the court erred in giving plaintiff’s instruction.

The first question as to the right of recovery for the benefit of the husband for the death of the wife through the wrongful act of the defendant being given by the statute is settled by City of Chicago v. Major, 18 Ill. 349, and C. C. C. & St. L. Ry. Co. v. Baddeley, Admr., 150 Ill. 328. The statute is to be liberally construed, and although the husband is not mentioned in the statute, the construction given to the statuta in the above cited cases gives to the husband as well as to the wife the right to recover pecuniary loss for the death of the other.

As to the second contention that there is no evidence of pecuniary loss to the adult children, the law presumes pecuniary loss from the fact of death. C. P. & St. L. R. R. Co. v. Woolridge, 174 Ill. 330, 334, and cases there cited; Huff v. Peoria & Eastern Ry. Co., 127 Ill. App. 242; Grace & Hyde Co. v. Strong, 127 id. 336. But, aside from this presumption, we think the evidence in this case furnishes an abundant basis for a finding by the jury of a substantial amount of damages. The deceased was a woman possessing practical business ability and of good industry and thrift. We think the evidence shows that her industry and business ability was of value to her husband and children. The extent of their pecuniary loss was for the jury to estimate from the facts and circumstances proven. As said in the Wool-ridge case, supra, “the poverty, wealth, helplessness or dependence of the lineal next of kin is immaterial on the question of the amount of the recovery under this statute. That feature is not at all to be considered in measuring or estimating the loss sustained, or in determining the liability, in case of lineal kindred, where there is a death caused by a wrongful act.”

We do not regard the damages allowed in this case as excessive under the facts and circumstances shown in the evidence.

At the request of the plaintiff the court instructed the jury as follows :

“1. The court instructs the jury that if, from the evidence in the case and the instructions of the court, the jury shall find the issues for the plaintiff and that the husband and next of kin of said Frances J. Fautman, deceased,' have sustained damages by way of pecuniary loss, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damages, but the jury themselves may make such estimate irom the-facts and circumstances in proof, and by considering them in connection with their knowledge, observation and experience in the affairs of ordinary life.”

This instruction is criticised by appellant’s counsel upon the ground that the jury are referred to the declaration as a basis for determining the damages suffered by the husband, and the declaration contains an improper element of damages. We think it is a strained and unreasonable construction of. the instruction. The criticism is without merit. The damages claimed in the declaration and each count are those sustained by way of pecuniary loss only. The proposition of the right of the husband to recover, involved in the instruction, is sustained, as we have above held, by the authorities cited on that point. In our opinion the Harried Woman’s Act does not prevent a recovery by a husband in this class of cases for any pecuniary loss of the wife’s services which the jury may find, from the facts and circumstances proven, the husband might reasonably have expected to receive had she lived. Instructions are to be considered together as a series, and when so considered, if as a whole they state the law correctly, there is no error. The fourth and fifth instructions given on the request of the defendant confine the damages to such only as will make good the pecuniary loss, if any, shown by the evidence, and exclude mental suffering and loss of domestic or social happiness, and the degree of culpability of the defendant, if any, as not proper elements in the calculation of damages, and also exemplary or vindictive damages. The jury are told that they must be guided solely by the evidence in the case and the law as stated in the instructions; and that, “in determining the amount of damages they are limited solely to the consideration of what the pecuniary or property interest of such next of kin in the life of the deceased was in case her death had not occurred at the time in question in this case.” We think the rights of the defendant were carefully guarded and protected in the instructions of the court.

Finding no substantial error in the record the judgment of the Circuit Court is affirmed.

Affirmed.


text:
    Elevator Supply & Repair Company, Appellee, v. Biddle-Murray Manufacturing Company, Appellant.
    Gen. No. 15,088.
    Principal and agent—effect of ratification. If a letter assuming a liability is unauthorized when written by an agent, a subsequent ratification of such letter by the principal supplies the want of initial authority.
    Action commenced before justice of the peace. Appeal from the County Court of Cook county; the Hon. W. C. Ds Wolf, Judge, presiding.
    Heard in the Branch Appellate Court at the October term, 1908.
    Affirmed.
    Opinion filed June 28, 1910.
    Alfred E. Case, for appellant.
    James J. Leahy, for appellee.
   Mr. Justice Smith

delivered the opinion of the court.

This action was commenced before a justice of the peace by the Elevator Supply & Repair Company, appellee, against the Biddle-Murray Manufacturing Company to recover a balanee of $63.98 alleged to be due the plaintiff on an outstanding account. Judgment was entered against the defendant for that amount. An appeal was prosecuted to the County Court, where a jury was waived and the cause was submitted to the court for trial. Upon hearing the evidence the court found for the plaintiff, and entered a judgment against the defendant for $63.98. This further appeal is prosecuted to reverse that judgment.

The only question presented on this appeal is as to the liability of the defendant for the balance of account sued for. The record shows that this account was due to the plaintiff from the Biddle-Murray Manufacturing Company, an Illinois corporation. On August 20, 1908, Alfred E. Case purchased and took over all the property and assets of the Illinois corporation, and became the sole owner of the business. He then organized the defendant company under the laws of the State of Maine, with a capital of $300,000, for the purpose of continuing the same business—manufacturing automobile trucks. Case personally transferred all the property and assets of the Illinois company to the Maine company.

In our opinion the evidence shows that the defendant, by its general manager, Alfred E. Case, assumed and agreed to pay the account sued on, both by the letter of October 11, 1906, to the plaintiff, and by the oral agreement made by Case, as such general manager, and as such agent and attorney for the defendant while this action was pending before the justice of the peace. The letter says: “We have assumed the liabilities and beg to state that your account will be paid within the next sixty days.” This letter was acquiesced in by the general manager of the defendant with full knowledge of its terms, and was never repudiated or disavowed by the defendant, after its general manager and principal stockholder had knowledge of it, but on the contrary it was ratified and approved by Case, who conducted, as he testifies, all the business of the defendant. If the writing and mailing of the letter was unauthorized at the time it was written, as it is claimed, it was thus ratified and confirmed. Atwater v. American Exchange Natl. Bank, 152 Ill. 605; Lake St. Elev. R. R. Co. v. Carmichael, 184 Ill. 348; Ragland v. McFall, 137 id. 81.

In our opinion the evidence sustains the judgment which is accordingly affirmed. _ _ .

Affirmed.