author: Mr. Justice Duncan

text:
    United States Aluminum Co., a Corporation, Defendant in Error, v. Armac Motor Co., a Corporation, Plaintiff in Error.
    Gen. No. 15,751.

      Sales-—what implied in general executory order for merchandise. Where the contract of the parties is executory and provides for the manufacture and sale of such merchandise of a particular kind as the vendee shall order during a particular period, it implies an obligation that the manufactured articles shall be made of sound material, be of good workmanship, and that they shall be according to the pattern; further, that the purchaser shall have reasonable time and opportunity to inspect the articles. Only a reasonable time, however, is given by the law in which to make such inspection, and in the absence of fraud an acceptance of an article sold upon such a contract, after an opportunity to inspect the same and after its condition is fully known to the vendee, is an assent and agreement that the quality of the article is satisfactory and that it is according to the contract, and bars all claim for compensation for defects.
    Error to the Municipal Court of Chicago; the Hon. Robert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Statement by the Court. This was an action by defendant in error against the plaintiff in error as purchaser, to recover a balance on account for aluminum crank cases alleged to have been made and delivered. Pleas of the general issue and notice of set-off for defective aluminum crank cases and for expenditures occasioned by defendant in error’s failure to observe its contract to deliver good crank cases, were filed by the plaintiff in error. The trial court heard the cause without a jury and rendered judgment for said balance of $205.94. Plaintiff in error brings the case here on error.
    The material facts are that in the fall of 1907, the Chicago salesman of the defendant in error called on the president of the plaintiff in error, soliciting orders for aluminum castings. No orders were given at that time, but prices were agreed on for the delivery of castings that should be ordered in the year 1908, to be made by certain patterns to be furnished, and for use on motor cycles to be manufactured, by the plaintiff in error. In the early part of 1908, two orders were received by defendant in error, which were delivered by it and paid for by plaintiff in error. On June 11,1908, another order was given, duly shipped by defendant in error, and payments were made to it thereon by the plaintiff in error. The balance sued for was the unpaid portion of that last order, including some other small items for express charges, boxes, repairs on patterns, etc. Plaintiff in error after these orders were delivered to it complained to the agent of defendant in error that twenty of the castings were worthless and not according to the contract. Others of the castings were claimed by the plaintiff in error to be defective and to have latent defects that were not discovered until after it had polished and machined them and fitted the engine and gears therein and filled -the cases with oil, when it was found that the oil leaked through the fine holes in the material and necessitated soldering them before they could be used. The agent of the defendant in error visited the plant of the plaintiff in error as many as two times or more to inspect the castings complained of, and agreed with the purchaser that some of the castings were- defective, and that his company would give credit for them if returned to it. Some of them were returned and credit given for them. After this credit was given, plaintiff in error retained all other castings now claimed to be defective, appropriated all, or most of them, to its use, and, without further complaint or claim for damages until after suit was brought, and with full knowledge of all the alleged defects, agreed repeatedly to pay the full amount of the account.
    Thornton & Chancellor, for plaintiff in error.
    Elbert C. Ferguson, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

The contract of the parties to this suit made in the fall of 1907, was an executory contract for the manufacture and sale by the defendant in error of so many of said castings as the plaintiff in error should order during the year 1908; and that for such castings so delivered plaintiff in error would pay the price then named, fifty cents per pound. Such a contract by a manufacturer carries with it an implied obligation that the manufactured articles shall be made of sound material, of good workmanship, and that they shall be according to the pattern. The H. & S. Mfg. Co. v. Saile, 45 Ill. App. 562; Beers v. Williams, 16 Ill. 69; Archdale v. Moore, 19 Ill. 565; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515.

In such a contract it is also implied that the purchaser shall have reasonable time and opportunity to inspect the articles. Only a reasonable time, however, is given by the law in which to make such inspection. In the absence of fraud an acceptance of the article sold upon such a contract, after an opportunity to inspect the articles, and after its condition is fully known to the purchaser, is an assent and agreement that the qualities of the articles are satisfactory and that they are according to the contract, and bars all claims for compensation for defects in such articles. Eureka C. S. Co. v. Morden F. and C. Works, 23 Ill. App. 591; Barker v. Turnbull, 51 Ill. App. 226; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Studer v. Bleistein, 115 N. Y. 316.

There is no evidence of fraud or of an express warranty in this case that renders the foregoing well-recognized principles inapplicable. The evidence clearly shows that most, if not all, of the defective castings in this case were paid for before this suit was brought; that itemized statements of this very bill sued for were mailed to plaintiff in error monthly from June to November, 1908; and that the defects were known to plaintiff in error within one month after the castings were all received by it in July, 1908. The letters from plaintiff in error to defendant in error, and its agent, which according to the evidence of Mr. Hartenstein, president of the plaintiff in error, were written August 25th, September 14th, and October 22d, 1908, after knowledge of all defects complained of, placed the acknowledged dilatoriness in paying for those castings upon its inability to pay the bills more promptly. In the September letter plaintiff in error said: “We shall make an earnest effort to clean this account up at an early date. ’ ’ In its October letter it said: “We are shipping considerable goods to the coast country, business from that section steadily increasing, and we have recently made a large shipment to our California agent, which we will realize on about the 8th of the coming month, and we will at that time send you a remittance provided the proposition for more capital does not materialize in the meantime.” No further complaint or claim was during that time made, either to the defendant in error or to its agent, about damages or defects concerning the castings. After this suit was brought, November 27, 1908, the present claim for defects and damages was made. Just prior to the suit it was the deliberate judgment of the plaintiff in error that it owed this bill and ought to pay it, and it promised so to do, well knowing all the facts. We are now asked to reverse that judgment, and also the judgment of the lower court in concurring in said judgment. We think that the said acts and the conclusion of the plaintiff in error as to the justness of the claim of the defendant in error at those times are very strong evidence against the former, aind that the judgment of the lower court is right and proper. The particular items of the account objected to here by plaintiff in error were properly allowed by the court. The repairs to the patterns were made at the request of the plaintiff in error, and all of said charges were also recognized as proper items of charge by the plaintiff in error by its repeated promises to pay the same when presented to it in the monthly statements. No evidence appears in the record to show that said charges were unwarranted or unreasonable, and it was testified to by the agent of the defendant in error, that the plaintiff in error owed the whole of the account.

The finding of the lower court that the castings were not manufactured articles was erroneous, as it was a question of law, the facts being uncontroverted. The error, however, was not harmful to. plaintiff in error. We are of the opinion that substantial justice has been done in this case, and that the judgment should be affirmed. It is therefore affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    John Kozowski, Defendant in Error, v. Theadore Ostrowski, Plaintiff in Error.
    Gen. No. 15,756.
    1. Master and servant—how question of safe place determined. If a servant is assigned to work in and about a gangway, the question as to whether such gangway is reasonably safe for the purpose for which it was made is a question of fact to be determined by the jury.
    2. Master and servant—duty of former to furnish safe place. It is the duty of the master to use reasonable care to provide the servant with a reasonably safe place in which to work, and the servant has a right to assume that his master has discharged that duty and to act upon such assumption in the absence of knowledge or means of knowledge to the contrary; and whether or not the servant had knowledge that the place in which he was working was not reasonably safe, or had knowledge of facts from which it might be inferred he knew of • the danger, is a question of fact to be determined by the jury.
    3. Master and servant—when notice of defect charged to former. The master is charged with notice of a defect in a structure to which he has assigned his servant to work where he had himself built such structure.
    4. Appeals and errors—what errors not considered. Error not assigned will not be considered on review.
    5. Appeals and errors—when assignments of error waived. Assignments of error not argued or insisted upon in the appellant’s brief are deemed to have been waived.

      Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Rehearing denied October 25, 1911.
    Statement by the Court. Defendant in error recovered a judgment of $800 in the Municipal Court against plaintiff in error for personal injuries sustained by reason of the alleged negligence of the latter. Defendant in error charged that plaintiff in error negligently failed to provide him a reasonably safe scaffold or gangway on which to work, and a reasonably safe wheelbarrow with which to work; that the gangway was dangerous for want of a guard rail or other guard on its westerly side, and that the wheelbarrow was out of repair and that its wheel wabbled when used in hauling brick. Defendant in error received his injuries by falling with the wheelbarrow full of bricks off the gangway leading from the second story of the building in course of construction to the flat roof of a one story building. The space between the two buildings was about six or seven feet. The gangway consisted of three ■ planks ten inches wide, two inches thick and twelve feet long, securely nailed and made solid through the south door of the building southwesterly to the roof of the smaller building, making about a forty-five degree angle with the buildings and having a slightly declined surface from the larger to the smaller building. A plank ten inches broad and two inches thick was erected as a railing on the easterly side. There was no railing or like device on the westerly side of the gangway. The defendant in error fell a distance of fifteen or twenty feet on top of his load of brick and was rather seriously injured. He had worked for plaintiff in error nine weeks before the injury, digging dirt and hauling brick at other places about the buildings, but had not been on this gangway before the day -of his injury.

      A. E. Teffy, for plaintiff in error.
    Burton & Kannally, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiff in error urges here as his principal reason for a reversal of the judgment that the defendant in error assumed the risk. He argues that the gangway was not dangerous; and that if it was dangerous, defendant in error should not recover because he knew and appreciated the dangers and continued to work without complaint. It was a question for the jury to finally decide under the evidence whether or not the gangway as constructed by plaintiff in error was reasonably safe for the defendant to wheel brick over it, the purpose for which it was made. The evidence clearly showed that the gangway had no rail or other like contrivance to guard against the danger of falling from the scaffold on its westerly side. The declined surface of the gangway, the sharp angle or turn toward that side as it was crossed from the large, building, together with the further fact that the doorway being narrow necessitated considerable pressure to urge the wheelbarrow through on to the gangway, warranted the conclusion of the jury that the gangway was not reasonably safe, and that injury thereby to defendant in error might have been reasonably apprehended. It is true that it was testified to by one of the employes of plaintiff in error that the wheelbarrow passed readily through the door without friction, and that the wheel 'of the wheelbarrow did not wabble, while the defendant in error testified directly the opposite. The defendant in error however is corroborated somewhat by his witness, Barozykowski, and the fact that boards were nailed on the sides of this door to prevent scarring it by contact with the wheelbarrow. The defendant in error also testifies that he never had been on this gangway before he was injured. He is corroborated somewhat by his said witness, and upon this we have the same conflict of testimony. It is also claimed by the defendant in ;error that the wall on the west side of the doorway at the entrance to the gangway prevented him from seeing that the westerly side of the gangway had no rail or guard, as the gangway made a sharp turn to the right just out of the door. The jury were therefore warranted in finding that the defendant in error knew nothing of the dangers of that construction until he forced his wheelbarrow through the door and onto the declined gangway on the very first trip when he was injured, and that his knowledge came too late to save him from the danger.. The defendant in error no doubt knew that the wheel of his wheelbarrow was wabbling, if it did wabble; but the proximate cause of the injury, as the jury evidently found, was the unprotected condition of the gangway, the want of a rail or other like guard. The defendant in error said be was injured on bis very first trip over the gangway, and then said: “When I pushed the wheelbarrow in through the doorway, the leg of the wheelbarrow hit the end of the plank that was there and knocked the handles out of my hand, and the force or weight of the wheelbarrow hit me on the legs, and I did not have nowheres to get a hold of, so I fell down.”'

It is the duty of the master to use reasonable care to provide the servant with a reasonably safe place in which to work. The defendant in error had a right to assume that plaintiff in error had discharged that duty, and to act upon such assumption in the absence of knowledge or means of knowledge to the contrary. C. & A. R. R. Co. v. Maroney, 170 Ill. 524.

Whether or not the defendant in error had such knowledge, or had knowledge of facts from which it might be inferred he knew of the danger, was a question of fact to be passed on by the jury. Pioneer Construction Co. v. Howell, 189 Ill. 125.

The plaintiff in error had notice of the defect because it was his own structure and built by himself. The jury were also warranted in their finding that the defendant in error was not guilty of negligence.

Plaintiff in error also complains of the giving of two. instructions, one based on the city ordinance, and the other bearing on the rule of law as to the master’s duty to provide a reasonably safe place, etc. The only error assigned in this record as to the court’s giving or refusing to give instructions to the jury, is as to the court’s refusal to give the peremptory instruction to find the defendant not guilty. Error not assigned cannot be considered by this court. Maroni v. Paitson, 128 Ill. App. 205; Watke v. Stine, 214 Ill. 563.

There are other errors assigned by plaintiff in error, but they are not argued nor insisted on in his brief and therefore are waived. Acme Harvester Co. v. Chittick, 132 Ill. App. 611.

Finding no reversible error in this record, the judgment is affirmed.

Affirmed.


text:
    Richard Evans, Defendant in Error, v. John Evans, Plaintiff in Error.
    Gen. No. 15,762.
    1. Forcible detainer—where ownership of dwelling not established. Held, under the evidence, that the defendant in this case did not establish the fact of ownership of the dwelling house for the possession of which, together with the land, the action wag brought.

      2. Beal property'—when improvements presumed to become- part of freehold. If the owner of land consents to the building of a house thereon by another, and permits him to live in it without any terms being agreed on, and particularly if the owner of the lot furnishes all or about all of the money with which to build it, a presumption must obtain that the house is to become a part of the freehold.
    3. Landlord and tenant—when lessee is estopped to insist upon notice of termination. If the tenant is in possession under a valid lease and holds over disclaiming that he is holding under his landlord and asserts an adverse right, he is, in an action of forcible detainer, estopped from claiming a notice to determine his lease.
    4. Landlord and tenant—when notice of termination not essential. When a person goes into possession of real property and holds possession under a' verbal permission to live on it with his family and no time is fixed for the duration of such possession and no rent is reserved, agreed upon or paid, he is a tenant at will and his tenancy can be terminated at any instant at the will of the landlord. Under such circumstances a mere demand for possession is all that the law requires.
    5. Instructions—when giving of peremptory, proper. Where the defendant fails to introduce or offer any evidence that fairly tends to establish a defense of any character, a peremptory instruction for the plaintiff is properlyVgiven.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.

      Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed October 4, 1911.
    Rehearing denied October 25, 1911.
    Statement by the Court. In this case the defendant in error filed a complaint in the Municipal Court against the plaintiff in error, for the unlawful detention of the possession of a two story building known as No. 943 East Sixty-fourth street in the city of Chicago. In a jury trial the court on motion of the plaintiff, instructed the jury to find the defendant guilty as charged, and that the right to the possession of the premises is in the plaintiff. Such verdict and a judgment in accordance therewith were rendered, and the defendant brings the case here on error.
    In the year 1904, Eichard Evans was the owner in fee of said premises which were then vacant and unoccupied. He obtained title to an undivided one-half thereof in June, 1901, by virtue of an administrator’s sale and deed to pay the debts of Henry Evans, his deceased brother and partner in business, who died in September, 1897. In the early part of 1904, John Evans, another brother of Richard, at the request of Richard, defendant in error, bought and superintended the moving of the house in question from Sixty-fourth street and Kimbark avenue to and on the lot in question, and fitted up the same as a residence for himself. The cost of the house purchased, and of the moving and fitting the same up as a residence, amounted to about $2,500. The undisputed evidence shows that Richard Evans paid more than $2,000 of this sum. The record does not clearly show that John paid more than $60 of this sum out of his own money, not furnished to him therefor by his brother Richard. After the house was ready for occupancy, J ohn and his family lived in it for more than five years without paying any rent or taxes thereon, and was not called on for either taxes or rents by Richard. There was no contract, written or oral, between John and Richard as to the time or term of John’s occupancy. John was simply told by Richard to buy the house, move it on to the lot, fit it up for a residence, and live in it. He did so and Richard furnished the money, or about all of it. At this time Richard was unmarried and roomed in .the house with John for six or eight months, but paid John’s wife for his board. January 2, 1905, John signed a written lease to Richard for the term commencing January 1,1905, and ending December 31, 1905, providing for an annual rent of $408. It is not claimed by either of the parties thereto that the terms of this lease were to be enforced, and J ohn testified positively that it was not delivered as a lease, but that the same was signed for no other purpose than to convince his family that he was earning something at a time when he was out of employment, and having some trouble with his wife on that account. After this lease had expired by its terms, John continued to live on the premises without any contract or payment in any sum as rent or otherwise. Finally John wrote a letter to Richard saying in substance that Richard should deed the property to him as his share in his brother Henry’s estate, or that proceedings to enforce such a claim would be instituted. On April 13, 1909, Richard had a written demand for the immediate possession of said premises served on John, and on the next day thereafter began this suit in forcible detainer.
    Charles E. Pope, for plaintiff in error.
    Michael Frank Cure, for defendant in error.
   Mr. Justice Duncan

delivered the opinion of the court.

It is first argued by the plaintiff in error that the lower court erred in directing the verdict in this case, because the evidence in his behalf tended to prove, and did prove, (1) that he owned the house; (2) that the lot belonged to Richard; and (3) that the house was moved to the lot by Richard’s permissiori. Hnder such a state of facts it is claimed that the law is that John would have a right to remove the house as his personal property, and that Richard could not prevent such removal, nor have judgment for the possession of the house. The evidence certainly and most clearly proves the last two of said propositions; but we cannot agree with his first proposition, that his evidence proves or fairly tends to prove that he is the owner of the house. There is no evidence in the record fairly tending to prove such proposition. According to the actual facts testified to in this record by John Evans and his witnesses, Richard is the owner of the house presumptively. It is true that John stated frequently while a witness that he considered that he was the owner of the house, and that he was the owner of it, and that it was bought with his own money. But these were merely his conclusions, while all the evidentiary facts testified to by him as a basis for his conclusions, show that there was no proper foundation for his claim of ownership. The following questions and answers taken from his testimony will clearly show the weakness and the unreasonableness of his claim, to-wit:

Q. “Did you consider yourself the owner of the house?” A. “I certainly did.”
Q. “How does it come that if you were under the impression that you were the owner of the property that you signed a lease for it as a tenant?” A. “Under the circumstances.”
Q. “What circumstances?” A. “The circumstances that I was out of employment; that my brother held me under his thumb and finger; that he compelled me to do anything he wished. ’ ’

He then proceeds to say that he was not forced to sign this lease, but did it simply at the request of his brother and without any compulsion whatever. He also stated that he had no deed, or contract, or conversation of any kind before the date of the lease, with his brother regarding the ownership of this house. These questions and answers then follow in his examination :

Q. “How much did you pay on the purchase price on the house out of your own means?” A. “I spent on the purchase price of the house $60.00, as near as I can remember. ’
Q. “Is that the total amount that you expended out of your own means to secure the purchase of the house?” A. “No sir, it was not. All I paid on the house was out of .my own means. ’ ’
Q. “Is it a fact that you received all the money which went into the purchase price of this property from your brother?” A. “It was given me, sir, by my brother as my own. ’ ’
Q. “That is the checks were made to yon?” A “Yes.”
Q. “Did he ever say to yon that it was your own money?” A. “He gave it to me. That was enough. ’ ’
Q. “Is it not a fact that he gave it to you for the purpose of purchasing the place for himself?” A. “No sir, he gave it to me for the purpose of purchasing it for myself.”
Q. “What did he say when the money was handed over to you in reference to that?” A. “The checks speak for themselves. The checks were made out in my name. ’ ’
Q. “Did you draw the conclusion by simply receiving the money that it was yours?” A. “Sure, and the house was to be mine. ’ ’
Q. “And there never was any specific contract, was there?” A. “No sir.”

If the owner of land consents to the building of a house thereon by another and permits him to live in it without any terms being agreed on, and particularly if the owner of the lot furnishes all or about all of the money with which to build it, the presumption must obtain that the house is to become a part of the freehold. Dunstedter v. Dunstedter, 77 Ill. 580.

The plaintiff in error did not furnish the means by which the house was built, and did not have an agreement with Bichard that the house should belong to him as his absolute property. The cases cited by him, therefore, are not in point.

It is next contended by plaintiff in error that if thq lease in evidence was binding between the parties, that the holding over by him without further contract, would make him a tenant from year to year; and that sixty days’ notice was necessary to terminate the tenancy, and that no sufficient notice in this case was given to maintain this suit. He'admits that the lease was never given as a lease, and was never intended as a binding contract, and was never relied on by either of them. But, be that as it may, if the lease be valid, where the tenant holding over disclaims holding under his landlord and asserts an adverse right, he is, in an' action of forcible detainer, estopped from claiming a notice to determine his lease. He was therefore not entitled to a sixty days’ notice. Brown v. Keller, 32 Ill. 151; Fusselman v. Worthington, 14 Ill. 135; Herrell v. Sizeland, 81 Ill. 457.

When one person goes into possession of real property and holds possession under a verbal permission to live on it with his family, and no time is fixed for the duration of such possession, and no rent is reserved, agreed upon or paid, he is clearly a tenant at will, and his tenancy can be terminated at any instant at the will of the lessor. K. & S. R. R. Co. v. Horan, 131 Ill. 302; Herrell v. Sizeland, 81 Ill. 459.

There is no theory advanced by the plaintiff in error why the action of forcible detainer will not lie in this case that is sound so far as we are able to see. The plaintiff introduced evidence that clearly proved all the material averments necessary to maintain his suit, and such evidence was not controverted. Tenants at will are not entitled to a notice to quit. A mere demand for possession is all that the law requires. Cross v. Campbell, 89 Ill. App. 490.

The defendant, plaintiff in error, failed to introduce or to offer any evidence that fairly tended to establish a defense of any character. In such state of the record there was no controversy' of fact to be settled by the jury, and no affirmative right or claim of the defendant to be considered. The court therefore properly directed the verdict in this case. Libby, McNeil & Libby v. Cook, 222 Ill. 206; Young v. Wells Glass Co., 187 Ill. 632; Derby v. Peterson, 128 Ill. App. 496.

The judgment is affirmed.

Affirmed.


text:
    George J. Cooke Company, Defendant in Error, v. Albert Kaiser and Best Brewing Company, Plaintiffs in Error.
    Gen. No. 15,770.
    1. Statute of Frauds—when lease within. A verbal contract for a lease that cannot be performed in one year from the making thereof is within the Statute of Frauds.
    2. Statute of Frauds—who may plead. Parties and privies by contract may plead and rely upon the Statute of Frauds. A lessee of the owner of premises may urge the statute as a defense to an alleged oral contract of letting set up by a previous tenant in possession.
    3. Landlord and tenant—when demand for possession not essential. Demand for possession is not essential where the defendant was in possession under a lease for a certain period which had expired by its own limitations.
    4. Forcible entry and detainer—who may maintain. A lessee of the owner of premises may maintain forcible detainer against a tenant in possession under a previous expired lease.
    5. Fraud—when not defense at law. It is only fraud in the execution of an instrument, as where one is induced to sign it under a false representation that it is another and different instrument, that renders a contract void for fraud and it is only such a defense which is available at law in an action on a sealed instrument. False representations inducing the execution of a sealed instrument will not be considered.
    Forcible detainer. Error to the Municipal Court of Chicago; the Hon. William W. Maxwell, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Statement by the Court. This was an action of forcible detainer brought May 3, 1909, by Greorge J. Cooke Company for the recovery of the possession of the store and basement in the brick building at No. 46 Cleveland avenue, Chicago. The Best Brewing Company was in possession of the premises, through Albert Kaiser, its sub-tenant, under a lease from William Grodenrath, owner thereof, dated January 1, 1907, and expiring by the terms thereof, April 30,1908. Said lease had been extended by written endorsements thereon until April 30, 1909. On March 20, 1909, Godenrath made a written lease to the plaintiff, George J. Cooke Company, for one year, the term thereof to begin May 1,1909. The defendants, Kaiser and Best Brewing Company, being still in possession of said premises, May 1, 1909, on that date a demand for immediate possession thereof was served by the plaintiff on Albert Kaiser, the one in actual possession at that time, by leaving a copy thereof with Mrs. Busch, his mother-in-law, also on the premises, Mr. Kaiser being then there asleep. On a trial before the court without a jury, judgment for possession of said premises was rendered in favor of the plaintiff and against the defendants. The defendants bring the case here on error.
    Winston, Lowy & McGinn, for plaintiffs in error; Charles F. Lowy, of counsel.
    Alden, Latham & Young, for defendant in error; Charles R. Brown, of counsel.
   Mr. Justice Duncan

delivered the opinion of the court.

Plaintiffs in error contend that they were not unlawfully withholding the premises from defendant in error when sued, because they had an oral contract with Godenrath to extend their lease another year from May 1, 1909, which contract was made prior to defendant in error’s lease. Their position is that although an oral lease for more than one year may be void as to the duration of the term, yet, tenants in possession under such an agreement are not trespassers, but should be treated as tenants until their tenancy is terminated by proper notice to quit. No extension of the time of their lease was ever made by Godenrath’s endorsement thereon. We cannot find from the record that there was ever any oral agreement made between the parties thereto to extend the time of that lease. Godenrath asked plaintiffs in error in January or February, 1909, if they wanted the property for another year, and they assured him that they did; but their final conclusion at that time was that they would wait until after May 1,1909, and “see how things come up.” In the meantime, defendant in error obtained its lease by its agent telling Godenrath plaintiffs in error did not want the property for another year, and no further contract was made by plaintiffs in error and Godenrath. If any contract was made as contended by them, their contract is void because made for a lease that could not be performed in one year from the making thereof, and without writings.

It is also contended that the defendant in error is a stranger to the contract of Godenrath to extend the time of the lease of plaintiffs in error; that as to such an agreement it is not void, but voidable only, and that no one except the parties thereto can avoid it; and that, therefore, defendant in error cannot successfully plead the Statute of Frauds as a defense. Conceding that there was such an oral contract, which the record fails to show, we do not think the defendant in error should be treated as a stranger thereto in the sense that he would be barred from pleading thereto the Statute of Frauds. In such case he would be in privity with Godenrath and have an equal right with him to claim the benefit of the Statute. Parties and privies in such cases may plead the Statute of Frauds. Were he a mere stranger and not in privity with Godenrath the rule would be otherwise. Best v. Davis, 44 Ill. App. 624; Grundies v. Kelso, 41 Ill. App. 200; Chicago Dock Co. v. Kinzie, 49 Ill. 289 (merely recognizing the rule).

It is next argued that the service for the demand for possession on Kaiser’s mother-in-law is not good service on Kaiser, and that, therefore, no demand for possession previous to the suit was proved. The lease to plaintiffs in error expired by its own terms, April 30, 1909, and was never extended or followed by another lease to them. “When the tenancy is for a certain period, and the term expires by the terms of the lease, the tenant is then bound to surrender possession, and no notice to quit or demand of possession is necessary.” Hurd’s Rev. Stat. 1909, sec. 12, chap. 80.

The defendant in error as assignee or lessee of Grodenrath had the same right to sue and maintain this suit and in the same manner as Grodenrath could have done had he not leased to defendant in error. Hurd’s Rev. Stat., sec. 14, chap. 80.

It is finally insisted by plaintiffs in error that the lease of defendant in error was procured by fraud and on the false representation that they did not want the premises longer. It does appear from the evidence that the agent of the defendant in error falsely represented to Godenrath that plaintiffs in error did not want the premises longer and that Godenrath, relying on the truth of that statement, leased the property to defendant in error. This character of fraud does not make void a contract in law, and the evidence thereof was properly excluded by the court as constituting no defense. It is only fraud in the execution of an instrument, as where one is induced to sign it under the false representation that it is another and different instrument, that renders the contract void for fraud. Papke v. Hammond Company, 192 Ill. 631; Jackson v. Security L. Ins. Company, 233 Ill. 161.

Finding no error in this record the judgment is affirmed.

Affirmed.


author: Mr. Justice Graves

text:
    Polish Press Publishing Company, Defendant in Error, v. Southern Plantation and Development Company, Plaintiff in Error.
    Gen. No. 15,708.
    1. Municipal Court—when statement of facts not stricken. The Municipal Court has jurisdiction to extend the time to file a statement of facts for ninety days if such extension is granted within thirty days of the judgment date and a statement filed within such time will not be stricken.
    2. Municipal Court—how statement of facts cannot he impeached. A statement of facts will control, and recitals of evidence claimed to have been introduced on the trial contained in the brief will be disregarded; a charge of inadvertent omission likewise contained in the brief will be ignored.
    Error to the Municipal Court of Chicago; the Hon. Egbert H. Scott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.
    W. J. Lavery, for plaintiff in error.
    Stedman, Soelke & Shutan, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This suit was begun against several defendants to recover the price of a job of printing done by defendant in error. On the trial the suit was dismissed as to all defendants except plaintiff in error, Southern Plantation Development Company, and one E. Scoda. The case was tried by the court without a jury and resulted in a finding and judgment for defendant in error and against plaintiff in error and E. Scoda, for $152 and for costs. To review this judgment plaintiff in error brings this suit here.

A motion of defendant in error to strike from the record the statement of facts, and to dismiss the “appeal” was taken with the case. The ground of the motion is “that the Municipal Court had no jurisdiction to enter an order extending the time ninety (90) days within which to file a statement of facts.”

An examination of the record shows that judgment was entered on April 24, 1909, and that on May 21, 1909, by agreement of parties made in open court, time in which to file this statement of facts was extended ninety (90) days. We think the court in granting the extension acted clearly within its authority.

This is a case of the fourth class as classified by section 2 of the Municipal Court Act, and section 23 of that act applies to this case. Clause sixth of that section provides:

“Upon application made at any time within thirty (30) days after the entry of any final order or judgment or within such further time as may, upon application therefor within said thirty days, be allowed by the court, it shall be the duty of the Judge by whom such final order or judgment was entered to sign * * * a correct statement * * * of the facts appearing on the trial thereof,” etc.

The application for the extension of time, and the order extending the time for filing of the statement of facts were within thirty days of the entry of the final judgment in this case and conform to the provisions of the section above quoted. The motion of the defendant in error to strike from the record the statement of facts, and to dismiss the “appeal” is therefore denied.

Plaintiff in error contends that the judgment against it is erroneous in that there is no evidence in the record in this case in any way tending to show a liability on its part. Defendant in error admits that no such evidence is shown in the record but undertakes to set out in his brief and argument what the evidence at the trial actually disclosed, insisting that it was left out of the statement of facts by inadvertence. This court cannot concern itself with what was inadvertently left out of the record, but is bound by what is shown in the record. In this case there is nothing whatever in the record even tending to show a liability on the part of plaintiff in error. The judgment as to plaintiff in error therefore cannot be sustained (Goit v. Joyce, 61 Ill. 489), and the same is reversed and remanded.

Reversed and remanded.


text:
    Frank E. Jaeger, Defendant in Error, v. United States Brewing Company et al., Albert Bruzek, Plaintiff in Error.
    Gen. No. 15,718.
    1. Landlord and tenant—effect of assignment upon liability of lessee. The assignment of a lease, even when coupled with the delivery of possession to the assignee and- a liability on the part of the assignee for the rent, the acceptance of rents by the lessor from the assignee, and the acceptance by the lessor of the assignee as tenant of the premises, does not discharge the lessee from his liability under the covenants of the lease, but such covenants remain in force notwithstanding the lessee has parted with his interest in the estate, unless the lessor accepts the assignee as sole tenant, and absolves the original lessee from further liability under his covenants.
    2. Landlord and tenant—what does not discharge obligation of lessee. Change of possession unaccompanied by any new arrangement with respect to the rent, does not discharge the lessee, nor does an unfulfilled promise to malte a new lease to the assignee of the lessee.
    3. Municipal Court—when objection of variance comes too late.
      An objection of variance first made on appeal comes too late.
    Error to the Municipal Court of Chicago; the Hon. Arnold Heap, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    H. M. Pierce, for plaintiff in error, Albert Bruzek.
    William H. Tatge, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

Defendant in error, Frank E. Jaeger, being the owner of premises No. 1718 West Sixty-third street in the city of Chicago, on November 16, 1903, made a written lease of the same to one Albert Bruzek, at a rental of $35 per month, to be paid in advance; the term of leasing to begin May 1, 1904, and end May-1, 1909. Bruzek went into possession and occupied the premises until November 15, 1906, for a saloon. Just prior to that date Bruzek, having an opportunity to sell his saloon to one Foss, asked Jaeger if he would consent to the United States Brewing Company taking the lease off his hands. Jaeger signified his willingness to do so, and on that date, at the saloon on the leased premises, Jaeger, Bruzek, Foss and representatives of the United States Brewing Company being present, Bruzek announced that he had sold his saloon to Foss and that the United States Brewing Company would take his lease off his hands, and the lease was then assigned by a writing on the back of it in the following words:

“For value received, I hereby assign all my right, title and interest in and to the within lease unto the United States Brewing Company of Chicago,—heirs and assigns, and in consideration of the consent to this assignment by the lessor, I guarantee the performance by said - of all the covenants on the part of the second party in said lease mentioned.
In consideration of the above assignment, and the written consent of the party of the first part thereto, I hereby assume and agree to make all the payments and perform all the covenants of the within lease by said party of the second part to be made and performed.
Witness my hand and seal this 15th day of November A. D., 1906.
(Signed) Albert Bruzek (Seal).”

And the defendant in error thereupon gave his consent to the assignment of the lease by a writing endorsed on the back of it in the following words:

“consent to assignment.
I hereby consent to the assignment of the within lease to the United States Brewing Co., of Chicago, on the express condition, however, that the assignor shall remain liable for the prompt payment of the rent and performance of the covenants on the part of the second party as therein mentioned, and that no further assignment of said lease or sub-letting of the premises or any part thereof shall be made without written assent first had thereto.
Witness my hand and seal this 15th day of November A. D., 1906.
(Signed) Frank E. Jaeger, (Seal).”

There is some evidence that Jaeger promised to make a new lease to the United States Brewing Company, but none was ever made.

Foss then took possession and remained for about one year, then the place was vacant for a few days, then plaintiff in error took possession and ran the place for a few weeks, then a man by the name of Mack ran the place for about six months, then the place was vacant'for about twenty days, when one Charles Win-dish went to defendant in error, having been sent by the United States Brewing Company, and asked for the key to the premises in question. Defendant in error having no key forced a side window and let Windish in, and he remained in possession up to the time of the trial.

After the assignment of the lease on November 15, 1906, the rent that was paid was paid either by the United States Brewing Company or some of the occupants of the place, and when paid by the occupants, it was paid in the name of the United States Brewing Company and the receipts given ran to the United States Brewing Company, except while Windish was in, and during that time the receipts sometimes ran to the United States Brewing Company and sometimes to Windish. All rents have been paid except for the months of December, 1908, and January, February and March, 1909. During those months Windish was in possession.

This suit was begun March 6, 1909, against United States Brewing Company, a corporation, Albert Bruzek and Charles Windish. The case was tried by the court without a jury, and on the trial was dismissed by the court as to the United States Brewing Company and Charles Windish, and judgment was rendered against plaintiff in error, Albert Bruzek, for $140 and for costs of suit.

Plaintiff has brought this suit here for review and' claims that the facts stated amount in law to a surrender of the lease between Jaeger and Bruzek, and that Bruzek was thereby released from liability for the payment of the rent. A careful examination of the record fails to disclose anything to support that contention. The assignment of a lease, even when coupled with the delivery of possession to the assignee and a liability on the part of the assignee for the rent, the acceptance of rents by the lessor from the assignee, and the acceptance by the lessor of the assignee as tenant of the premises does not discharge the lessee from his liability under the covenants of the lease, but such covenants remain in force notwithstanding the lessee has parted with his interest in the estate, unless the lessor accepts the assignee as sole tenant, and absolves the original lessee from further liability under his covenants. There must be a substitution of the assignee for the lessee, and a clear intention to have the assignment constitute a new contract with the assignee and a discharge of the original lessee from further liability under the lease, otherwise both lessee and assignee are liable to the lessor for the rent. Grommes et al v. St. Paul Trust Co., et al, 147 Ill. 634-648, and authorities there cited; C. & M. Tel. Co. v. Type Tel. Co., 137 Ill. App. 163.

In this case no intention to release the lessee is shown by either the assignment or the consent to the assignee are liable to the lessor for the rent. Grommes such writings a clear and unmistakable intention to continue the lessee’s liability is shown.

It is insisted that the continued change of possession of the premises and the promise of the lessor to make a new lease to the United States Brewing Company were sufficient to amount to a release of the lessee by implication.

There was but one assignment of the lease, and that • was the assignment made November 15, 1906, by Bruzek to the United States Brewing Company. The various occupants of the premises after that went into possession under arrangements made with the United States Brewing Company. No new arrangement was ever made by Jaeger with any one after that date, either as to possession or the payment of rent, or that was intended or amounted to any change in the liability of the parties after the consummation' of the deal of November 15,1906. The promise by Jaeger to make a new lease to the United States Brewing Company, referred to by 'counsel, was part of the conversation that culminated in the assignment before referred to, and cannot be considered as varying the contract evidenced by the written assignment and consent thereto, and even if it could be so considered, it was merely a promise that has never been carried out and in no way changed the liability of the parties to this case.

Lastly, it is contended that there is a variance between the statement of claim filed by plaintiff and the proof, in that the statement of claim describes the premises leased as “located and known as 1717 W. 63rd St.” while the premises are described in the lease as “1718 West Sixty-third St.” There was no objection made at the trial to the introduction of the lease, and the question of variance was in no way raised in the court below, and will not be considered when raised here for the first time.

Several other assignments of error are found in the record, but as they have not been argued are treated as abandoned.

The judgment of the Municipal Court will therefore be affirmed.

Judgment affirmed.


text:
    Emma L. Hartzell, Plaintiff in Error, v. Maryland Casualty Company, Defendant in Error.
    Gen. No. 15,727.
    1. Insurance—what does not excuse failure to bring action within limitation period. The bringing of a suit on a policy of insurance in a court not having jurisdiction to hear and determine it on its merits, which suit was afterwards dismissed by the court for that reason, is not such a compliance with and satisfaction of the terms of a clause of the policy sued on which provides for the bringing of suit thereon within the limitation period as that thereafter the only limitation to the bringing of an action on such policy in a court having jurisdiction is that provided by statute.
    2. Insurance—effect of limitation period for bringing of suit. Whether the limitation is by statute or by contract, it applies to the case in which the judgment was rendered that is attacked by appeal or writ of error. No matter how many other suits were begun and dismissed or how many other declarations were filed in the identical case, if the new ease is Degun or the new count or declaration setting out a new cause of action is filed after the limitation by statute or contract has run, the right of recovery is barred.
    Error to the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Affirmed.
    Opinion filed October 4, 1911.
    Horton & Miller, for plaintiff in error; A. L. Ballas, of counsel.
    J. F. Dammann, Jr., for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This is a suit begun August 24, 1908, in the Municipal Court of Chicago by Emma L. Hartzell, the beneficiary named in an accident insurance policy issued by the defendant for five thousand dollars taken out by her husband, John H. Hartzell.

The declaration sets out the policy in haec verba. The nineteenth paragraph of the policy contains the following provisions:

“Legal proceedings for recovery hereunder may not be brought until after three months from date of filing final proofs at the Company’s Home Office, nor brought at all, unless begun within six months from time of death * * *”

It is further averred in the declaration that the said John H. Hartzell died September 14, 1905, as the result of external injuries, within the terms of the policy.

The defendant on the 2d day of November, 1908, filed the general issue and two special pleas. The special pleas each set up the substance of the nineteenth paragraph of the policy above quoted, and aver that suit was not begun within the time limited by the contract. To the plea of the general issue the plaintiff filed a similiter, and to the special pleas replied in substance that suit was begun in Henderson county, Illinois, within the time limited by the contract, but that such suit was not disposed of on its merits, but was dismissed on October 4, 1906, by that court for want of jurisdiction, and that the bringing of the suit in Henderson county satisfied the requirements of the limitation clause in the policy, and that by reason of the bringing of that suit there, within the six months’ limitation clause, that clause constituted no bar to the bringing of this action.

A demurrer to this replication was interposed by the defendant and on a hearing was sustained by the court. The plaintiff elected to stand by her replication, and judgment was entered by the court against the plaintiff in bar of her action for costs.

To review this judgment the plaintiff prosecutes this writ of error. The question, presented for determination is whether the bringing of a suit on this policy of insurance in a court not having jurisdiction to hear and determine it on its merits, which suit was afterwards dismissed by the court for that reason, is such a compliance with and satisfaction of the terms of the nineteenth clause of the policy above quoted as that thereafter the only limitation to the bringing of an action on such policy in a court having jurisdiction is that provided by statute, or in other words, whether the bringing of the suit in Henderson county arrested the running of the limitation in the policy agreed upon between the insured and the insurer. It is conceded by counsel for plaintiff in error that, if the beginning of the suit in Henderson county does not have that effect, then the judgment below must be affirmed.

It is insisted by plaintiff in error that the term “legal proceedings” as used in paragraph nineteen of the policy of insurance above quoted, means “any proceedings in a court to enforce a claim, * * * Such proceedings to enforce a claim as the law sanctions and authorizes,” and that “a suit is a legal proceeding. ’ ’

That contention is correct in the abstract, but as applied to a state of facts like those in the case ac bar needs the qualification that such legal proceedings must be the suit in which the limitation is set up as a bar, and not some other proceeding disposed of before the commencement of that suit. The clear intention of the parties in making the stipulation in question was to limit the time to a period not less than three nor more than six months after the right to recover on the policy had accrued, within which suit could be begun to enforce,the claim, and the “legal proceedings” contemplated were such as should result or at least could result in the adjudication of the differ-' enees between the parties.

The intention clearly was that such proceedings should be begun in some court having jurisdiction of the subject-matter and of the parties. The language used is “Legal proceedings for recovery hereunder.” Manifestly it was not intended by that to refer to a proceeding begun in a court without jurisdiction and where recovery could not be had. In the case of Griem vs. The Fidelity & Casualty Company, 99 Wis. 530-534, cited by counsel for plaintiff in error the court says, “Legal proceedings within the purview of this stipulation must mean, such proceedings to enforce the claim as the laiu sanctions or authorises * * *.” And again in In Re Emsile, 102 Fed. 293, also cited by him the court says, “A legal proceeding is any proceeding in a court of justice by which a party pursues a remedy which the law affords him * * *.”

The law neither sanctions, authorizes nor affords a remedy in a proceeding begun before a court having no jurisdiction.

It is not, however, necessary in this case to draw nice distinctions as to whether the suit in Henderson county is one which the law sanctions or authorizes, or whether the law affords plaintiff a remedy in that suit, because it is now the settled law in this state that, whether the limitation is by statute or by contract, it applies to the case in which the judgment was rendered that is attacked by appeal or writ of error. No matter how many other suits were begun and dismissed or how many other declarations were filed in the identical case, if the new case is begun or the new count or declaration setting out a new cause of action is filed after the limitation by statute or contract has run, the right to recovery is barred.

In the case of Baker vs. Baker, 139 Ill. App. 217, there was a limitation by contract. A suit was begun within the limitation, in the United States Court, and was afterwards on the suggestion of the court dismissed by complainant “without prejudice.” After-wards and about four months after the expiration of limitation by contract, a new suit was begun in the Superior Court of Cook county, wherein the bill set out the contract, the former suit and its dismissal. The defendants demurred, urging that the suit was not commenced within the limitation. The court sustained the demurrer and dismissed the bill. The Appellate Court in affirming that judgment on page 231 of the opinion says: “We are of the opinion that the limitation in paragraph 6 of the trust agreement constitutes a bar to the present suit and that the commencement of the suit in the United States Court, which was subsequently dismissed by the complainant, was not a compliance with the limitation.”

In that case the court cites with approval, and as a basis of its conclusion, the case of Riddlesbarger v. Hartford Insurance Company, 7 Wall. 386, and the case of Arthur v. Homestead Fire Ins. Co., 78 N. Y. 462. The Eiddlesbarger case was a suit on an insurance policy containing a limitation clause. One suit had been begun within the limitation and dismissed after the limitation had run. A second suit was after-wards begun, the defendants pleaded the limitation by contract, and the plaintiff replied setting up the commencement of the first suit, the defendant demurred, and as to that question the court says: “The action mentioned which must be commenced within twelve months is the one which is prosecuted to judgment, the failure of a previous action from any cause cannot alter the case. The contract declares that an action shall not be sustained unless such action, not some previous action, shall be commenced within the period designated. It makes no provision for any exception in the event of the failure of an action commenced and the court cannot insert one without changing the contract, * * * the commencement therefore of the present action within the period designated was a condition essential to the plaintiff’s recovery, and this condition was not affected by the fact that the action which was dismissed had been commenced within that period.”

The Arthur case was a fire insurance case with a limitation by contract. A. suit was begun within the stipulated limitation and plaintiff was non-suited and the suit disposed of by the opinion cited was begun after the expiration of that limitation. In that case the court, speaking of the first suit, says: “That the plaintiff’s counsel failed to proceed in that action, and paying the costs thereof abandoned it, cannot tend to the advantage of the plaintiff or confer a new right against his adversary, and the commencement of that action does not bring the present within the limitation, neither does its failure extend the time.”

In the case of Heffron vs. Eochester Ins. Co., 119 Ill. App. 566, and in 220 Ill. 514, suit was brought on a policy of insurance within the time limited within the policy; the declaration contained only the cpmmon counts. After the time limited for bringing the action had expired the plaintiff filed a special count on the policy, a plea of limitation was interposed, and the court holds that the special count sets up a new cause of action which was barred by the limitation clause in the policy. In that case the Appellate Court on page 569 uses the following language: “* * * the questions presented are questions of law, namely, first, whether the action was barred by the provisions of the contract limiting the time for bringing suit to twelve months after the fire, and second, whether the suit is barred by the statute of limitations. The solution of both these questions depends on the question whether the amended declaration states a new cause of action.” The court then holds that the special count sets out a new cause of action, and on page 571 further says: “We are of the opinion that the suit was barred by the limitation in the contract.” And the Supreme Court affirmed the Appellate Court in the 220 Ill. 514.

In the case of Richter v. Michigan Mutual Life Ins. Co., 66 Ill. App. 606, the court holds, there is no difference in principle between a cause of action being barred by statute of limitations and the barring of such cause of action by limitation fixed by contract.

The case of Western Coal & Dock Co. vs. Traders Insurance Co., 122 Ill. App. 138, was a suit on a policy of insurance, and, as in the Heffron case, plaintiff first, and within the time limited, filed the common counts and after the limitation had run filed a special count on the policy. The court holds that the filing of the common counts did not arrest the running of the .stipulated twelve months’ limitation, and that so far as the cause of action set out in the special count was concerned, the suit must be treated as begun when the special count was filed.

Counsel for plaintiff in error while confessing the correctness of the holdings in the cases cited insist that there is a distinction' to be drawn between the limitation clause in the case at bar and that found in the cases cited: that to say, “No suit or action shall be brought unless begun” within a certain time named has a broader meaning than to say, “Legal proceedings shall not be brought unless begun” within a certain time named. We do not regard the difference in the phraseology to be significant so long as the purpose is made clear to require the bringing of the action to recover on the policy within a certain time named, and we find that such limitation clauses couched in many different forms of expression have been upheld, as for example:

In the Riddlesbarger case:

“That no suit or action of any kind against said company for the recovery of any claim upon, or by virtue of the said policy shall be sustainable in any court, of law or chancery, unless such suit or action shall be commenced within the term of twelve months next after the loss or damage shall occur, and in case any suit or action shall be commenced against said company after the expiration of twelve months next after such loss or damage shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim thereby so attempted to be enforced.”

In Arthur vs. Home Insurance Company, 78 N. Y. 462:

“No suit or action against this company for the recovery of any claim under or by virtue of this policy, shall be sustained in any court of law or equity, unless commenced within the term of one year after any claim shall accrue; and in case such suit or action shall be commenced against the company after the end of one year next after such loss or damage shall have accrued, the lapse of time shall be taken and admitted as conclusive evidence against the validity of the claim, thereby attempted to be enforced, any statute of limitation to the contrary notwithstanding. ’’

In Harrison vs. Fire Insurance Co., 67 Fed. 298:

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity * * * unless commenced within twelve months next after the fire.”

In Harrison vs. Hartford Ins. Co., 102 Ia. 112, 115; (71 N. W. 220):

“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”

In Lewis vs. Metropolitan Ins. Co., 62 N. E. 369; (180 Mass. 317, 318):

“No suit shall be brought or action commenced after six months from the date of the death of the insured, it being understood and agreed that, if any suit or action be commenced after said six months, the lapse of time shall be taken to be conclusive evidence against any claim, the provisions of any and all statutes of limitations to the contrary being hereby waived.”

In Chichester vs. N. H. F. Ins. Co., 74 Conn. 510:

“No suit or action * * * shall be sustainable * * * unless commenced.”

In Guthrie vs. Indemnity Assn., 101 Tenn. 643:

“Agreed that no action shall be maintained.”

In Williams vs. Greenwich Ins. Co., 98 Ga. 532:

“No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months next after the fire.”

In Melson vs. Phenix Ins. Co.—Marill vs. Home Ins. Co., 97 Ga., 722, which were consolidated, one policy reads:

“Hnless such suit or action shall be commenced,” etc., and the other, “No suit or action shall be sustainable unless commenced within twelve months. ’ ’

In Keystone Mutual Benefit v. Morris, 115 Pa. St. 446, 447; (8 Atl. 637):

“No suit or action at law, under this contract, shall lie against this association, unless the same be brought within one year from and after the death of the insured ; and this policy is issued and accepted upon the express conditions that said period of time be the limit of the right of action at law under this contract.”

In McElroy vs. Continental Insurance Co., 48 Kan. 201; (29 Pac. 478):

“It is hereby covenanted and agreed that no suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity until after an award shall have been obtained, nor unless commenced within twelve months next after the fire, exclusive of any time consumed in arbitration or appraisal. ’ ’

In Prudential Insurance Company vs. Howle, 10 Ohio C. D. 290:

“No suit or action at law or in equity shall be maintained * * * until after the filing in the principal office of the company, of the above mentioned proof of death, nor unless such suit or action shall be commenced within six months next after the decease of the person insured under this policy.”

In Provident Fund Society vs. Howell, 110 Ala. 508; (18 So. 311):

The clause in the policy reads exactly as that in the case at bar; that is, “no legal proceedings for recovery under the policy shall be brought * * * nor at all unless begun within six months.” In construing this clause the court says on page 510:

“The stipulation is too plain for construction. In express and unambiguous words, it provides that no suit shall be brought after six months from the date the proofs are received.”

In this holding of the Alabama Court we fully concur.

Plaintiff in error strenuously insists that the conduct of the defendant in the Henderson county case was such as to excuse plaintiff in not bringing this suit within the time limited in the policy, but a careful search of the record fails to disclose any reference to what the defendant did in that case or that it did anything at all. That question is therefore not considered.

The demurrer to the replication was properly sustained. Judgment affirmed.

Judgment affirmed.


author: Mr. Justice G-raves

text:
    Grays Harbor Commercial Company, Appellee, v. Turnbull-Joice Lumber Company, Appellant.
    Gen. No. 15,736.
    1. Sales—rights and obligations of vendor upon refusal of delivery by vendee. When a vendee refuses to receive goods purchased, the contract is not thereby rescinded, unless the vendor treats such refusal as a renunciation. If he does not so treat it he is hound by it and must perform it on his part, and before he can recover against the vendee for its breach he must show a delivery of the goods according to contract or a readiness and offer to do so, and he may deliver the goods or offer to do so up to the last day when by the contract of purchase they were to be delivered and the purchaser may receive them up to the same time, and when under such a contract the vendor shows a state of facts entitling him to recover and brings his suit after the last day when delivery must be made under the terms of the contract, the measure of damages is the difference between the contract price and the. market price of the goods at the time and place stipulated for the delivery. Where an article is to be delivered on or before a time certain without a prior demand the breach can only occur at the time fixed as the limit and the measure of damages will be the difference between the contract price and the market price at that time.
    2. Evidence—who may testify to admissions. Any person who heard them is competent to testify to admissions against interest.
    3. Evidence—attorney not disqualified as witness. While the Supreme Court of this state has criticised the practice of an attorney of record testifying in a ease, it has never been held that to permit, an attorney to so testify was reversible error.
    4. Evidence—what not competent upon question of marlcet price. If there was a market price at the place of delivery it is error to undertake to establish the market price by receiving evidence as to what the market price was at some other point and deducting the amount of the freight.
    Appeal from the Municipal Court of Chicago; the Hon. Edward A. Dicker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.
    Rehearing denied October 25, 1911.
    Harry A. Biossat, for appellant.
    Charles H. Blatchpord, for appellee.
   Mr. Justice G-raves

delivered the opinion of the court.

This suit was begun in the Municipal Court of Chicago by appellee to recover from appellant damages for the breach of a contract for the purchase of shingles by appellant from appellee.

The cause was tried by the court without a jury and resulted in a finding and judgment in favor of appellee for $1,087.26.

There is no dispute as to the making of the contract or its terms. By it the appellant agreed to take and the appellee agreed to deliver at Chicago 20 carloads of Star A Star shingles at $2.76 per thousand, freight paid, shipments to begin within ten days and to be completed within ninety days. The contract was made by an order sent by mail by appellant April 24, 1908, and received by appellee at Seattle, Washington, on April 28, 1908, and accepted by telegram and by letter on the same day it was received. Two days after the acceptance of the order by appellee appellant undertook to rescind the contract of purchase by telegram, appellee refused to accept the rescission, and on May 4th or 5th, 1908, appellee shipped to appellant one carload containing 2731/2 thousand shingles. On the arrival of this carload at Chicago the appellant refused to accept the same, and never did accept it. Other correspondence passed between the parties, appellant insisting upon the rescission and appellee insisting upon the performance of the contract, the last of the correspondence being a letter from appellee dated May 19,1908, in which appellees said in part, “* * * As we advised you on May 11th, the contract which was consummated by our wire to you of April 28th, we expect to execute, and we trust that you will live up to your part of it without forcing us to take the steps that will otherwise be necessary.” No shingles were shipped except the first carload, and that carload was after-wards sold by appellee for $2.40 per thousand at Chicago. This suit was begun more than ninety days after the making of the contract.

When a vendee refuses to receive goods purchased, the contract is not thereby rescinded, unless the vendor treats such refusal as renunciation. If he does not so treat it, he is bound by it and must perform it on his part. Kadish et al. v. Young et al., 108 Ill. 170; Roebling’s Sons Co. v. Lock Stitch Fence Co., 130 Ill. 660; Plumb v. Taylor, 27 Ill. App. 238. And before he can recover against the vendee for its breach he must show a delivery of the goods according to contract or a readiness and offer to do so (Plumb v. Taylor, supra), Lasson v. Mitchell, 41 Ill. 101, and he may deliver the goods or offer to do so up to the last day when, by the contract of purchase, they were to be delivered, and the purchaser may receive them up to the same time. When, under such a contract, the vendor shows a state of facts entitling him to recover, and brings his suit after the last day when delivery can be made under the terms of the contract, the measure of damages is the difference between the contract price and the market price of the goods at the time and place stipulated for delivery. James H. Rice & Co. v. Penn Plate Class Co., 88 Ill. App. 407; Deere v. Lewis et al., 51 Ill. 254; Capen v. De Steiger Class Co., 105 Ill. 185. Where an article is to be delivered on or before a time certain, without a prior demand, the breach can only occur at the time fixed as the limit and the measure of damages will be the difference between the contract price and the market price at that time. Phelps v. McGee, 18 Ill. 155.

The propositions of law submitted by appellant and marked “held” by the court are in conformity with the foregoing views, and no complaint is made as to their correctness.

It is contended that the court erred in its rulings on the admission of evidence and that the judgment is grossly in excess of the amount of damages shown by any legitimate evidence.

The testimony of Charles H. Blackford concerning a conversation between himself and Mr. Joice, the president of appellant company, said to have taken place about the middle of June, 1908, at the office of appellant company, in which Blackford testifies in substance that Joice said he would not receive the carload of shingles already shipped and then in Chicago, is objected to for two reasons: first, because it was not shown by any proper evidence that Blackford was at that time, authorized to act for the appellee, and second, because, when he testified in the case, he was the attorney of record trying the case for the appellee. Neither of these objections is well taken. The conversation, whether admissible for any other purpose, was as to appellant, in the nature of an admission against interest and as such was admissible and provable by any one who heard it, and while the Supreme Court of this state has criticised the practice of an attorney of record testifying in a case, it has never held that to permit an attorney to so testify was reversible error.

Several witnesses for the appellee were allowed over objection to testify as to the market price of shingles in the State of Washington as a basis of establishing the market price in Chicago by adding to the price in Washington the freight rate from there to Chicago. If those two elements were all the elements involved in fixing the market price in Chicago, it would under some circumstances he competent evidence, but by that method the well recognized influence on the market of supply, demand and competition is entirely omitted from the calculation. On that subject the witness Davis, in answer to a question by the Court, said in substance, “The market price in Chicago is fixed by the coast price with the freight rate added, the different competition makes the prices vary according to the demand,” etc. It is that element that has given rise to the now settled rule that where there is in fact a market price at the place in question, it becomes a fact to be established by direct proof, and it is only where there is no market price at such place that proof showing the prices elsewhere and the cost of transportation can be admitted as the next best means of establishing the market value. The proof here shows that there was a market price in Chicago. It was, therefore, error to admit the evidence as to the coast price.

The only competent evidence in the record as to the market price of shingles in Chicago on July 30, 1908, which was the last day on which under the contract they could be delivered there, was the testimony of the witness Joice, who said it was $2.72 per M., making a loss of 4 cents per thousand shingles.

The trial court found that two hundred and twenty-five thousand shingles was an average carload (which finding is supported by the proof); that appellee was damaged 22 cents per thousand shingles on the nineteen cars not shipped, or $940.50 on those cars;.that in the car shipped there were 273% thousand shingles; that on that car the appellee was damaged 36 cents per thousand or $98.46; that appellee was entitled to $25 for brokers’ commissions in selling the one car shipped; $22 for car service at Chicago and $1.90 for repairing broken bunches.

The proof shows that $15 was the highest price charged in Chicago for such commission, and there is no proof to sustain the car service charge or repair charge, excepting the mere fact that those items had been paid. The mere fact of payment, without proof of when or where the appellee became liable to pay them, or that the amounts were reasonable, cannot be taken as a basis for a judgment.

The judgment is reversed and the cause remanded.

Reversed and remanded.


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    William W. Thompson, Defendant in Error, v. Chicago Plate Glass Company, Plaintiff in Error.
    Gen. No. 15,745.
    Municipal Court—effect of refusal to hear all witnesses. It is error to enter judgment against a party without hearing the testimony of a witness who is in court and offered as a witness to testify upon a material fact.
    Error to the Municipal Court of Chicago; the Hon. William N. Gemmill, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.

      Benjamin Samuels, for plaintiff in error.
    James J. Kelly, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

The judgment in this case in the court below was against the plaintiff in error, the Chicago Plate Glass Company, a corporation, for services rendered by defendant in error as an expert accountant in examining the books of the plaintiff in error.

The weight of the evidence shows that the defendant in error was engaged to- do the work by one Abraham Goldstein, who was not and never had been a stockholder or officer of the corporation, and who at the time of the transaction in question was not the agent or in the employ of plaintiff in error; that at the time defendant in error was so engaged he was told to look to Goldstein for his pay; that plaintiff in error never employed or authorized anyone to employ defendant in error or anyone else to audit its books and never made or authorized anyone to make any promise to pay for the same being audited, and that in the conversation resulting in the employment of defendant in error Goldstein made no claim that he was acting as the agent of plaintiff in error.

On that state of facts, the judgment against plaintiff in error was erroneous.

On the trial, and before plaintiff in error had closed its case, and while one of its witnesses was still on the stand, the court entered judgment against it, although its counsel strenuously insisted on being allowed to call another witness then in court to prove that Goldstein was not in its employ at the time in question. Whether or not Goldstein was the agent of the plaintiff in error at the time he employed defendant in error to audit the books was the vital question in this case so far as the liability of plaintiff in- error was Concerned, and it had a right to introduce all the proof it had on that subject. The action of the court in that regard also was erroneous.

The judgment of the court is, therefore, reversed and the cause remanded.

Reversed and remanded.


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    Bartholomae & Roesing Brewing and Malting Company, Appellee, v. Maria Motycka, Appellant.
    Gen. No. 15,796.
    1. Suretyship—xohen guaranty without consideration. A written guaranty even though under seal is void if entered into without any consideration moving to the guarantor after the debt guaranteed has been created and a note given to represent the same.
    2. Suretyship—what essential to render forbearance eonsideration for guaranty. Before forbearance can be held to be the consideration for a guaranty the obligation must be mutual and reciprocal and binding on both parties, on the one hand to pay and on the other hand to forbear, the promise to forbear being as well the consideration for the promise to pay, as the promise to pay is the consideration for the prom-' ise to forbear.
    Assumpsit. Appeal from the Superior Court of Cook county; the Hon. Homer Abbott, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed with finding of facts.
    Opinion filed October 4, 1911.
    Mason & Wyman, for appellant.
    Winston, Payne, Strawn & Shaw, for appellee.
   Mr. Justice Graves

delivered the opinion of the court.

On September 1, 1903, one Voclav Motyeka, the husband of the appellant, was indebted to the appellee in the sum of $365.12, for which on September 8, 1903, he gave his judgment note, on which note he paid $2 before October 5, 1903. On October 5, 1903, the appellant gave to the appellee the following writing:

“I, Maria Motycka, in consideration of the sum of one dollar ($1.00) in hand paid to me, and other good and valuable considerations, I hereby agree to be responsible for the indebtedness of Voclav Motycka to the Bartholomae and Boesing Brewing and Malting Company for the sum of Three Hundred and Sixty-three and 12-100 Dollars ($363.12), being for the balance due for beer and license to the aforesaid brewery while conducting a saloon at 640 Throop Street.
Chicago, Illinois, October 5th, 1903.
(Signed) Maria Motycka (Seal).
Witness to Signature
(Signed) John F. Seitz.
August Pohlihg.
John Vyduna.”

In a suit in assumpsit brought in June, 1905, the appellee filed its declaration, consisting of the common counts and two special counts, the first special count declaring on the foregoing writing, which is set out in that count in haec verba, and the second special count declaring on a parol promise of the same import.

The appellant filed the general issue and to the first special count pleaded that the guaranty sued on was the special promise of defendant to pay the debt of another; that it was without consideration and, therefore, void, To the second special count she pleaded the statute of frauds. Appellee joined issue on these pleas, and on the trial the court instructed the jury to find the issue for the appellee and to assess its damages at $462.95, which it did, and judgment on the verdict followed.

There is no claim that the proof shows a liability on the part of the appellant, except on the writing set out in the first special count. This writing was executed after the debt had been created and after Voclav Motyeka had given his note for it, and after he had made a payment of $2 on the note, and was no part of the transaction in which the debt was created, or in which the note was given. A guaranty made under that state of facts, if made without consideration, is not enforceable. The fact that it is under seal and recites a consideration does not prevent the want of consideration from being pleaded and proven. Gage v. Lewis, 68 Ill. 604; Rogers v. School Trustees, 46 Ill. 428; Bullen v. Morrison, 98 Ill. App. 669.

There was no money paid to appellant for signing this guaranty. The only consideration claimed by appellee to exist is an agreement to forbear to sue the husband of appellant on his note given for the debt mentioned in the guaranty in question. No express agreement to forbear is contained in the written guaranty or was made, but appellee contends such agreement must be .inferred from the facts and circumstances surrounding the transaction. All there is in the record as to what the circumstances were surrounding the parties at the time the guaranty was signed is found in the testimony of the witness John F. Seitz, who was the manager of the appellee company. By his testimony it appears that Voclav Motyeka, whose debt appellant agreed to be “responsible for,” was a drunken, indolent person, as to whose financial responsibility the witness knew nothing; that the appellee supposed the appellant was “perfectly good and would pay;” that appellant had come to the office of appellee with a man named Scheller, ■ who had bought out the saloon business of Voclav Motyeka, and introduced him to the witness; that Scheller wanted to make arrangements . with Seitz to do business and to get some money to buy a license; that Seitz, upon being told that Voclav Motyeka had sold his saloon, asked appellant to pay what her husband owed, which she said she would do. There was no threat to sue Voclav or to put his note in judgment, and no suggestion that such a course had been or was then contemplated, and no promise not to do so, but the conversation seems to have arisen solely from the fact that by the sale of the saloon the dealings between Voclav and the brewing company had come to an end. Seitz said to appellant: “You will pay the account if he doesn’t. Here, give us that in writing.” To which appellant replied, “All right, I will sign it for you,” and she thereupon signed the guaranty in question. Before forbearance can be held to be the consideration for a guaranty the obligation must be mutual and reciprocal and binding on both parties, on the one hand to pay and on the other hand to forbear, the promise to forbear being as well the consideration for the promise to pay, as the promise to pay is the consideration for the promise to forbear. McMicken v. Safford, 197 Ill. 540.

Although a contract to forbear need not be in express terms or for an exact period of time, but the terms may be gathered from the circumstances surrounding the making of it and may be for a reasonable time, still it must exist and be enforceable before a promise to pay the debt of another can be held to be in consideration of forbearance. McMicken v. Safford, supra.

In the case at bar no action was taken to place the note given by Voclav Motyeka in judgment, but mere forbearance is not enough, it must be in pursuance to a mutual agreement, the consideration being a promise for a promise. Shupe v. Galbraith, 32 Pa. 10; Webbe v. Ramona Oolitic Stone Co., 58 Ill. App. 222.

We have searched this record in vain to find any testimony from which an inference can be drawn that, by reason of anything said or done at the time of the signing of the guaranty in question by appellant, appellee made any promise or had any understanding that it would not or should not pursue its claim against Voclav Motycka at any time it chose, but if any inference could properly be drawn from the conversation testified to by Seitz as having taken place at the time of the signing of the guaranty, in which Seitz said to appellant, “You will pay the account if he doesn’t. Here, give us that in writing,” it would seem to be that the intention of the parties was that appellee should get it from Voclav, if possible, and only to call on appellant when it became apparent that Voclav would not pay, which would be wholly inconsistent with the idea of forbearance.

Forbearance being the only consideration appellee claims existed for the making of the guaranty, and no evidence of a contract for forbearance appearing in the record, it follows that the contract of guaranty was without consideration and is not enforceable.

The judgment of the court below is, therefore, reversed without remanding the cause with the finding of fact to be incorporated in the judgment that the contract of guaranty sued on was without consideration.

Reversed with finding of facts.


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    Mary A. Brady, Defendant in Error, v. F. F. Chaffee, Plaintiff in Error.
    Gen. No. 15,805.

      Evidence—-what does not constitute preponderance. An affirmative statement by one witness met by a flat categorical denial by another of equal credibility, does not meet the requirement of the law that the plaintiff must make out his or her ease by a preponderance of the evidence.

      Error to the Municipal Court of Chicago; the Hon. Max Eberhabdt, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1909.
    Reversed and remanded.
    Opinion filed October 4, 1911.
    Gale Blocki, for plaintiff in error.
    J. S. Reynolds, for defendant in error.
   Mr. Justice Graves

delivered the opinion of the court.

This is an action for slander; the judgment was for the plaintiff (defendant in error) for $200. Plaintiff in error is a doctor. Defendant in error is an under graduate nurse who had nursed two cases for plaintiff in error, and had been recommended by him in other oases. During their association as doctor and nurse, her conduct was that of a lady, and his conduct was that of a gentleman, and up to the moment when it is alleged that he spoke the slanderous words, there had never been a word of disagreement or a feeling of ill will between them. The last case defendant in error had nursed for plaintiff in error was in November, 1908.

The parties themselves are the only witnesses in the case. Defendant in error testifies that on January 6, 1909, at 12:45 P. M., she met plaintiff in error on 63rd street between Monroe and Madison avenues, Chicago; that it was one of the coldest days, if not the coldest day, of that winter; that she said to him, “How do you do, doctor?” and bowed; that he replied, “You are a nice whore, you are an Irish whore, Jimmie Finn’s whore;” that he repeated these words three times; that he stood there addressing these words to her for a “couple of minutes;” that while he was so addressing her, five men passed by, two going one way and three going the other; that when these men passed where the plaintiff in error was using the language, they were “all in a bunch” about a foot apart; that these men did not stop, but after they had passed, some of them turned and looked back. Plaintiff in error testified that he did not meet defendant in error at the time and place testified to by her; that he did not use the language attributed to him by her, or anything like it, then or at any other time or placethat he did not see her on the 6th day of January, 1909, at all; that he was not at the place that day, where she testified the conversation took place; that his habit was to be at his home for lunch from twelve o’clock M. to one o’clock P. M. each day; that he was always at lunch at that time, unless kept away by an emergency case; that he thought he was at lunch as usual that day, although he based his testimony in that regard chiefly on his habit; that January 6, 1909, was a very busy day for him; that eighteen visits were shown on his day book for that day, half of which were outside visits; that none of the visits made by him that day necessitated his passing the point where the slanderous words are said to have been spoken; that he would be going out of his way to reach that point, either in going to lunch or visiting the patients he visited that day; that he knew nothing about the personal life or morals of defendant in error; that he had always supposed she was a pure woman, and did not know, and had never heard anything to the contrary^ and would have given her a case the very day this suit was brought, if a suitable case had presented itself; that he did not know anyone by the name of “Jimmie” Finn; that he knew a man by the name of Finn, but did not know whether his name was Jimmie or not, and did not know whether the Mr. Finn he knew, knew defendant in error or not.

- It is insisted by plaintiff in error that the evidence of defendant in error falls far short of amounting to ¡the preponderance of the evidence necessary to entitle iher to recover; that the plaintiff in error is, to say the ifleast, of equal credibility with defendant in error; that the story told by plaintiff in error is reasonable and wprthy of belief, while the story told by defendant in error is unreasonable and unworthy of credence.

Defendant in error reverses these contentions, and, in addition, insists that it is peculiarly the province of the jury to weigh the testimony and pass upon the credit each of the witnesses is entitled to receive; that the jury, having performed that duty, and having returned a verdict finding the plaintiff in error guilty, and the court who heard the case and who had the advantage of seeing the witnesses and hearing them testify, having entered a judgment on the verdict, this court ought not to set that judgment aside as being contrary to the weight of the evidence.

The testimony of the parties to this case is in flat contradiction on the material issues of the ease. There is no room for construction and no chance to harmonize it. One has testified to the truth and the other lias not. Each had equal means of knowing the facts about which they testified. They were equally interested in the result of the suit. Neither was impeached and they stood before the court equal in character. There is but one means by which this court can judge of their comparative credibility, and that is the well known test of the reasonableness of their stories. Measured by that test, we are forced to the conclusion that the story told by the plaintiff in error is the more reasonable. The story told by defendant in error, that, upon her politely greeting plaintiff in error, he should, without motive, provocation, justification, or excuse, and in the vilest terms, denounce her as a woman of the lowest character to which her sex can fall, is so inherently improbable as to weigh heavily against her credibility.

On the other hand, the story of plaintiff in error is told in an apparently candid, manly way. While not over stated, it is positive and to the point, as to facts within his knowledge, and as to such facts as he had no positive recollection about, he frankly says he bases Ms concMsions upon Ms custom and on Ms memoranda. There is nothing in his testimony that leaves the impression of falsity.

Assuming the two witnesses to be of equal credibility, it would still be necessary to reverse this case. An affirmative statement by one witness, met by a flat categorical denial by another, of equal credibility, does not meet the elementary requirement of the law that a plaintiff must make out his or her case by a preponderance of the evidence. Broughton v. Smart, 59 Ill. 440; Kenyon v. Hampton, 70 Ill. App. 80; Siegmund v. Strackbein, 140 Ill. App. 454.

The defendant in error, not having proven her case by a preponderance of the evidence, and the verdict being against the decided weight of the evidence, it is the duty of this court to reverse the judgment and remand the cause. I. C. R. R. Co. v. Haecker, 110 Ill. App. 102; C. & A. R. R. Co. v. Heinrich, 157 Ill. 388; C. & E. R. R. Co. v. Meech, 163 Ill. 308.

The judgment is reversed and the cause is remanded.

Reversed and remanded.